THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 35848/97

by Jiří BARFUSS

against the Czech Republic

The European Court of Human Rights ( Third Section ) sitting on 7 September 1999 as a Chamber composed of

Sir Nicolas Bratza, President ,

Mr J.-P. Costa,

Mr L. Loucaides,

Mr P. KÅ«ris,

Mr W. Fuhrmann,

Mr K. Jungwiert,

Mr K. Traja, Judges ,

with Mrs S. Dollé, Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 5 February 1997 by Jiří Barfuss against the Czech Republic and registered on 29 April 1997 under file no. 35848/97;

Having regard to the reports provided for in Rule 49 of the Rules of Court;

Having regard to the observations submitted by the respondent Government on 14 May 1998 and the observations in reply submitted by the applicant on 22 September 1998;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Czech citizen born in 1942. He is also, apparently, a German citizen under Section 16(1) of the Fundamental Act of the Federal Republic of Germany. At present he is detained at Všehrdy Prison (Czech Republic). He is represented before the Court by Mr Oldřich Choděra, a lawyer practising in Prague.

The facts of the case, as submitted by the parties, may be summarised as follows.

A. Particular circumstances of the case

Criminal proceedings against the applicant

On 19 May 1994 the investigator (vyšetřovatel) charged the applicant with fraud under Section 250(1) and (4) of the Criminal Code on the ground that in November 1991 and January 1992, he had misled the Czech Commercial Bank (Česká komerční banka) and the Pragobank (Pragobanka) having concluded two loan contracts for CZK 5,000,000 and CZK 57,000,000, without informing the banks about his previous credits of CZK 4,900,000, CZK 21,217,000 and CZK 15,000,000. On the same day, the applicant was arrested.

On 20 May 1994 the Karlovy Vary District Court (okresní soud) (“the District Court”) ordered the applicant's detention on remand under Section 67 of the Code of Criminal Procedure, with effect from 19 May 1994, stating that the applicant could influence witnesses who had not been heard by the police. At the same time, the court refused to release the applicant on bail or on oath. The applicant challenged the order claiming that he was prepared to satisfy his creditors and did not intend to abscond or influence the witnesses. He repeated his request to be released, invoking his health problems.

On 17 June 1994 the Plzeň Regional Court (krajský soud) (“the Regional Court”) stated, referring to Section 67(a) of the Code of Criminal Procedure, that the applicant was under the threat of a heavy prison sentence which justified the concern of the court that he would abscond and avoid the criminal proceedings. It further stated that the applicant had already been prosecuted, had abused alcohol during the last years and would probably not be able to compensate the damage he had caused to the banks immediately. The court refused to release the applicant on bail.

On 26 October 1994 the applicant was charged with ten further acts of fraud, pursuant to Section 250(1) and (4) of the Criminal Code, which he had allegedly committed between 12 July 1991 and 9 September 1992. The damage was estimated at CZK 185,000,000.

On 19 September 1995 the Plzeň Regional Prosecutor (krajský státní zástupce) formally indicted the applicant before the Regional Court. A preliminary hearing was held on 11 April 1996. The court decided to send the case back to the Regional Prosecutor for further investigations and taking of evidence. On 18 July 1996 the High Court (Vrchní soud) quashed this decision and ordered the Regional Court to deal with the case.

On 19 August 1996 the President of the Chamber (předseda senátu) of the Regional Court informed the applicant's representative that it would be impossible to deal with the case before March 1997, because of the overwhelming workload of the court and the chamber dealing with the case.

On 27 August 1996 the Vice-president of the Regional Court (místopředseda soudu) transferred the applicant's case to another chamber which was able to deal with it without any particular delay. On 2 September 1996 the Plzeň Regional Court decided to transfer the case to the Prague Regional Court, pursuant to Sections 18(1) and 188(1)(a) of the Code of Criminal Procedure, as it appeared from the primary evidence and witness statements that the offences had been committed in Prague. On 4 October 1996 the Prague Regional Court refused to deal with the case on the grounds that the indictment had been lodged with the Plzeň Regional Court which had already held the preliminary hearing and that one of the banks concerned had its seat in the Plzeň region. On 30 October 1996 the High Court decided that the Plzeň Regional Court (“the Regional Court”) was competent to deal with the case.

On 30 January 1997 the Regional Court scheduled main hearings for 12-13 March, 1-4 April, 7-10 April and 21-24 April 1997. The hearing held on 24 April 1997 was adjourned (no new date was fixed) as the court considered it necessary to hear further witnesses and to take further documentary evidence. On 11 September 1997 the main hearing continued before this court and was adjourned until 7 November 1997 because of the applicant's suggestion to take further evidence.

On 7 November 1997 the Regional Court convicted the applicant of fraud under Section 250(1) and (4) of the Criminal Code and sentenced him, inter alia, to nine years' imprisonment. On 26 March 1998 the High Court, after a public hearing of 9 December 1997, upheld this judgment.

Decisions on extension of the applicant's detention on remand

On 4 November 1994 the District Court extended the applicant's detention on remand until 19 February 1995. The court held that the detention was necessary, within the meaning of Section 67(a) of the Code of Criminal Procedure, as there was a danger that the applicant would abscond. It stated that the extension of the charges against the applicant would necessitate further investigation, including the hearing of employees of the banks concerned and the gathering of further documentary evidence.

On 6 February 1995 the District Court, at the District Prosecutor's request, extended the applicant's detention on remand until 19 June 1995, having regard to the further investigations and the risk that the applicant would abscond.

On 8 June 1995 the District Court, upon the District Prosecutor's request, extended the applicant's detention on remand until 19 September 1995. The District Prosecutor submitted that the investigation authorities had not been provided with an accounting expert report or the statements of two witnesses living in Germany. The court found that the applicant's release would frustrate or impede the purpose of the criminal proceedings. The applicant appealed against this decision claiming that his company “Georgia” had begun to cover its outstanding debts. On 10 July 1995 the Regional Court dismissed the applicant's complaint and upheld the findings of the District Court.

On 11 April 1996 the Regional Court, at the end of the preliminary hearing, decided, under Section 192 of the Code of Criminal Procedure, to keep the applicant in custody on the grounds that the reasons for his original detention continued to apply. On 18 July 1996 the High Court upheld this decision.

On 30 April 1996 the President of the Chamber of the Regional Court requested the High Court to grant an extension of the applicant's detention on remand until 30 November 1996, stating that the indictment had only been presented on 19 September 1995 and the court had had repeatedly to deal with the applicant's requests for release. He noted that the consideration of the case-file had been finished on 11 April 1996, when his court had decided to send the case back to the prosecutor for further investigations and to keep the applicant in detention. He further submitted that, having regard to the character and extent of the further investigations, and in case the said decision, against which the Regional Prosecutor had appealed, were to be upheld, the examination of further evidence would take several months. He also submitted that the chamber was overwhelmed with work until the end of 1996.

On 17 May 1996 the High Court granted the request and extended the applicant's detention on remand until 30 November 1996, pursuant to Section 71(3) of the Code of Criminal Procedure. It referred to the complex character of the case and the necessity to examine further evidence. The court stated inter alia that given the legal classification of the applicant's offence, he was likely to be sentenced to a lengthy term of imprisonment if convicted. It also noted that having multiple contacts abroad and being in debt, the applicant might abscond. It considered, therefore, that the applicant's detention was necessary within the meaning of Article 67(a) of the Code of Criminal Procedure. On 12 June 1996 the Supreme Court (Nejvyšší soud) upheld this extension and found that the applicant's alleged health problems were not sufficient to convince the court that the applicant would not abscond.

On 19 November 1996 the High Court, at the request of the President of the Chamber of the Regional Court, extended the applicant's detention on remand until 15 May 1997, pursuant to Section 71(3) of the Code of Criminal Procedure. The reasons given for the extension were similar to those given for the previous extension. The court noted that the length of the proceedings was due to the length of the investigation and the complexity of the case.

On 26 November 1996 the applicant lodged a complaint against this decision with the Supreme Court. He contested the High Court's arguments and noted that his detention had lasted 16 months, that the indictment had been presented 14 months ago and that no main hearing had been held so far. On 19 December 1996 the Supreme Court rejected the complaint, upholding the findings of the High Court.

On 23 April 1997 the President of the Chamber of the Regional Court requested the High Court to extend the applicant's detention on remand until 30 October 1997, pursuant to Section 71(3) of the Code of Criminal Procedure. He stated that during the main hearing the applicant had changed his defence strategy, and that this had required a hearing of further witnesses living in Germany, who would not appear before the court but would be heard by the German authorities in May 1997. He also stated that the fear of the applicant's absconding was further substantiated by the fact that if he left the country for Germany, he would, according to German law, acquire German citizenship, which would prevent the Czech authorities from asking for his extradition.

On 12 May 1997 the High Court granted the request. On 6 June 1997 the Supreme Court rejected the applicant's complaint against this decision and upheld the High Court's findings that the nature of the offence with which the applicant had been charged, and his contacts abroad, substantiated the reasons for his detention under Section 67(a) of the Code of Criminal Procedure.

On 21 October 1997 the High Court, at the request of the President of the Chamber of the Regional Court's on 6 October 1997, ordered the applicant's continued detention on remand until 31 December 1997, for reasons similar to those given for the previous extension. On 26 November 1997 the Supreme Court dismissed the applicant's claim against this extension.

On 15 December 1997 the High Court extended the applicant's detention on remand until 19 May 1998. The court stated that it could not deal with the applicant's appeal against the judgment of 7 November 1997 until 31 December 1997. It further stated that, having regard to the extent of the applicant's criminal activities, the damage caused by him, a lengthy sentence of imprisonment if convicted and a danger of his absconding, there was the risk that, if released, he would impede or frustrate the purpose of the criminal proceedings. The court did not find any particular delay in the proceedings.

On 14 January 1998 the Supreme Court upheld the High Court's decision. It found that the reasons invoked by the High Court were relevant and sufficient within the meaning of Section 71(3) of the Code of Criminal Procedure. The court noted that the judgment of the Regional Court, by which the applicant had been sentenced to nine years' imprisonment, had not yet come into effect and held that the applicant's detention was necessary in order to prevent his absconding. The decision to extend it until 19 May 1998 was therefore necessary under Section 67(a) of the Code of Criminal Procedure.

Proceedings concerning requests for release lodged by the applicant

On 19 July 1994 the District Court rejected the applicant's request for release finding that the evidence taken during the investigation created a reasonable suspicion that he had committed the offences. It therefore considered his detention necessary within the meaning of Section 67(a) of the Code of Criminal Procedure. On 15 August 1994 the Regional Court dismissed the applicant's complaint against this decision, referring to its findings of 17 June 1994 and stating that the reasons for the applicant's detention continued to apply.

On 14 September 1994 the applicant lodged a further request for release. He submitted inter alia that his detention prevented him from taking any steps to compensate the damage. On 17 September 1994 the District Court rejected the request. On 17 October 1994 the Regional Court rejected the applicant's complaint against this decision.

On 28 November 1994 the applicant lodged his third request for release, denying that he had committed the offences. On 15 December 1994 the District Court rejected his request, with reference to the establishment of the facts of the case and the state of the investigation, and found that the applicant's detention on remand was justified under Section 67(a) of the Code of Criminal Procedure. On 20 January 1995 the Regional Court dismissed the applicant's complaint against this decision.

On 27 February 1995 the District Court rejected the applicant's request for release of 14 February 1995, in which the applicant referred to his aggravated health problems and complained about unjustified delays in the investigation. The court stated that the reasons for the applicant's detention continued to apply and that his health problems did not allay the court's concern that he would abscond or avoid the criminal prosecution. It further noted that the detention on remand did not interfere with the applicant's health or life.

The applicant lodged a complaint against the aforesaid decision. He submitted that he had not concluded the loan contracts with fraudulent intentions and that he was taking steps to compensate the damage. He therefore contested the court's reasoning that he would abscond or avoid the criminal prosecution. On 6 April 1995 the Plzeň Regional Court rejected the complaint, upholding the applicant's detention on remand pursuant to Section 67(a) of the Code of Criminal Procedure. The court noted that the applicant had been convicted in the past, risked a heavy prison sentence, had allegedly profited from his criminal acts (CZK 260,000,000), had personal and business contacts abroad and was an alcoholic.

On 12 May 1995 the applicant lodged a new request for release, maintaining his innocence and offering as guarantor a certain citizen of Georgia. On 15 May 1995 the District Court dismissed his request, stating that, having regard to the seriousness of the criminal offence with which the applicant had been charged, any security proposed by him was excluded. On 26 June 1995 the Regional Court upheld this decision.

On 3 October 1995 the Regional Court dismissed the applicant's further request for release.

On 7 November 1995 the Regional Court rejected the applicant's request for release of 24 October 1995. The court referred to its previous decisions relating to the applicant's detention and added that his health problems did not, in themselves, constitute a reason for his release when one of the reasons for his detention still applied. The applicant complained against this decision, alleging that the threat of a lengthy prison sentence and his contacts abroad could not, in themselves, justify the fear that he would abscond, in particular, if his passport had been seized by the authorities. He stressed that before the criminal prosecution had officially been brought, he had not shown any intention to abscond or avoid the prosecution. On 24 January 1996 the High Court rejected the applicant's complaint.

On 30 April 1996 the Regional Court dismissed the applicant's request for release submitted on 16 April 1996. On 18 July 1996 the High Court upheld the Regional Court's dismissal.

On 8 November 1996 the Regional Court dismissed the applicant's further request for release referring, as to the reasons, to its previous decisions. On 25 November 1996 the High Court dismissed the applicant's complaint against this decision. As to his claim that the Regional Court had not considered the reasons for his detention on remand but had just referred to its previous decisions, it emphasised that the Regional Court was not required to repeat the facts which had already been sufficiently elaborated in its previous decisions, when the applicant's arguments and the reasons for his detention remained unchanged.

On 22 January 1997 the applicant submitted another request for release, claiming that his health problems were incompatible with his continued detention and excluded any fear of his absconding. On 6 February 1997 the Regional Court dismissed the request stating that the reasons for the applicant's detention remained unchanged and that the applicant's health was not jeopardised by his stay in custody, as confirmed by the report of the prison health centre (zdravotní středisko věznice) of 30 January 1997.

On 9 July 1997 the applicant's further request for release was dismissed by the Regional Court.             

On 29 September 1997 the Regional Court dismissed the applicant's last request for release. On 21 October 1997 the High Court rejected his complaint against this decision.

Proceedings before the Constitutional Court

On 27 June 1996 the applicant lodged a constitutional appeal (ústavní stížnost) with the Constitutional Court (Ústavní soud) against the Supreme Court's decision of 12 June 1996, by which his detention on remand had been extended until 30 November 1996. He complained in particular that his continued detention on remand was not justified and that the Supreme Court had not dealt with the case properly when examining the existence of the reasons for extending his detention. He invoked Article 8 § 5 of the Charter of Fundamental Rights and Freedoms (Listina základních práv a svobod) .

On 11 October 1996 the Constitutional Court rejected the applicant's appeal. The court accepted that the risk of a lengthy prison sentence could not constitute the sole ground for detention on remand. It stated, however, that in the applicant's case there were other facts justifying the fear of his absconding and held that the applicant's state of health did not exclude this possibility. It referred to two medical reports of 17 May and 10 September 1996.

On 7 February 1997 the applicant introduced a second constitutional appeal, this time against the decision of the Supreme Court of 19 December 1996, by which his detention on remand had been extended until 15 May 1997. He alleged violations of Article 5 §§ 1(c) and 3 and Article 6 § 1 of the Convention, in that the reasons for his detention invoked by the courts were not sufficient or relevant. He claimed inter alia that the decisions extending the detention were not based on the real facts of his case and that there was no justification for extending his detention over two years. He also claimed that the overload of the court dealing with his case, the insufficient number of judges and administrative difficulties could not justify the delays in the proceedings.

On 10 September 1997 the Constitutional Court dismissed the applicant's second constitutional appeal as being manifestly ill-founded. It found that the Regional Court and Prague Regional Court had breached the principle of the economy of proceedings in that they had been unable to resolve the question of their local competence. It also considered that, in general, the delays in the proceedings could not be justified by the applicant's requests for release which he had regularly submitted. The court stated, however, that in the present case not all of the applicant's requests were "reasonable". It held that the case was particularly complex and that the reasons for the applicant's detention continued to apply. The court noted that the decisions extending the applicant's detention over two years had been taken in accordance with Section 71(3) of the Code of Criminal Procedure, and that it was clear from the evidence available that these decisions had been taken on the basis of the facts established at the material time. The court concluded that the length of the applicant's detention on remand, extended until 15 May 1997, could not be considered unreasonable within the meaning of Articles 5 § 3 and 6 § 1 of the Convention.

In June or July 1997, the applicant introduced a third constitutional appeal against the decision of the High Court of 12 May 1997, as confirmed by the Supreme Court on 6 June 1997, by which his detention had been extended until 30 October 1997. He alleged violations of Articles 5 § 3 and 6 § 1 of the Convention.

On 17 February 1998 the applicant lodged a fourth constitutional appeal, this time against the decision of the Supreme Court of 14 January 1998, claiming that there was no reason to extend his detention on remand over 2 years, in violation of his rights guaranteed by Article 5 §§ 1(c) and 3 and Article 6 § 1 of the Convention. He submitted that his criminal case was not complex, that the delays in the proceedings could not be explained by the overwhelming workload of the courts or by the fact that he had used his right to request release. Rather the courts had conducted the proceedings in an inappropriate manner, including their dispute over territorial competence.

On 17 March 1999 the Constitutional Court dismissed the applicant's appeal. It recalled its findings in its previous decisions of 27 June 1996 and 10 September 1997 and considered that, even though the court of first instance had not proceeded, after the applicant's indictment, in accordance with the principle of the economy of proceedings, it could not be said that the applicant's constitutional rights and freedoms had been breached.

On the same day, the Constitutional Court also rejected, as manifestly ill-founded, the applicant's third constitutional appeal. The court found that it was similar to his previous constitutional appeals and did not contain any new arguments supporting his allegations of a violation of his constitutional rights and freedoms.

B. Relevant domestic law

Charter of Fundamental Rights and Freedoms

According to Article 8 of the Charter, personal liberty is guaranteed. Paragraph 2 provides that nobody may be prosecuted or deprived of his liberty except on grounds and in a manner specified by law. Under paragraph 3, any person accused or suspected of having committed a criminal offence may be detained only in cases specified by law. Paragraph 4 provides inter alia that a person accused of a criminal act may be arrested only on the basis of a written warrant issued by a judge, which must include the grounds for its issue. According to paragraph 5, nobody may be placed in custody except for reasons specified by law and on the basis of a judicial decision.

According to Article 36 § 1, everybody may defend, in a way prescribed by law, his right before an independent and impartial tribunal and, in specified cases, before another authority.

Article 38 § 2 provides inter alia that everybody has the right to have his case examined by a court without undue delay.

Criminal Code

Section 41 (2) in conjunction with Section 62 of the Criminal Code characterises fraud under Section 250 (1) and (4) of the Criminal Code as a particularly serious offence. Such an offence is punishable with a prison sentence of 5 to 12 years.

Code of Criminal Procedure

Section 67

“An accused person may be remanded in custody only if there exist specific grounds to believe that he

a) will abscond in order to avoid prosecution or punishment, in particular if his identity cannot be immediately established, if he has no permanent residence or if he is under the threat of a heavy punishment; ... .”

Section 68 provides that only an accused person may be remanded in custody. The relevant decision shall be issued by a court or, at the pre-trial stage, by a judge upon a proposal lodged by the public prosecutor. It must be justified by the particular circumstances of the case.

Pursuant to Section 71(1), the competent authorities shall give priority to cases involving a person's detention on remand and deal with them as speedily as possible.

Under 72(2), an accused person is entitled to request his release at any time. Decisions on such requests are to be delivered without delay. In case of its dismissal, a request for release may be re-introduced 14 days after the binding effect of the relevant decision if it is based on the same reasons.

Section 71(3) provides that an accused person's detention on remand shall not exceed 2 years. If it is not possible, because of the complexity of the matter or for other serious reasons, to complete the criminal proceedings within this period, and if the release of the accused person would jeopardise or substantially complicate the achievement of the aim of the proceedings, the High Court may extend the detention for the necessary period.

Under Section 71(4), a person's detention on remand shall not exceed 3 years. In cases of particularly serious offences, within the meaning of Section 41(2) of the Criminal Code, the maximum period for detention on remand is 4 years.

Section 167 provides that the accused person and the victim have the right to request the public prosecutor, at any time during the investigation, to eliminate the delays in the investigation or any defect in the investigator's procedure. The public prosecutor must deal with the request immediately.

Under Section 192, if the accused person is remanded in custody, the court holding a preliminary hearing must also decide on the person's continued detention.

Courts and Judges Act no. 335/1991

According to Section 6(1), complaints about delays in the proceedings may be addressed to the organs of the State administration of the courts.

Certain Measures in the Judiciary, Elections of Associate Judges, their Release and Removal and on the State Administration of the Courts of the Czech Republic Act no. 436/1991

According to Section 26(1), natural and legal persons are entitled to lodge complaints with organs of the State administration of the courts in those cases envisaged by a special law. Section 28 provides that such complaints may be lodged in writing or orally with the organ of the State administration of the court which is competent to deal with them. According to Section 29(a), the Ministry of Justice deals inter alia with complaints against the High Court and regional courts concerning delays in the proceedings. According to Section 31(a), the president of the regional court deals inter alia with the complaints of delay.

Constitutional Court Act no. 182/1993

Article 72

"1. A constitutional appeal may be introduced by

a) any natural person ... who claims to be the victim of a breach by 'a public authority' of the fundamental rights or freedoms recognised in a constitutional law or an international treaty ... ."

Article 75

“1. A constitutional appeal shall be inadmissible if the applicant has not exhausted all remedies ... .”

Article 82

"1. In its judgment, the Court shall hold that it allows the constitutional appeal in its entirety, dismisses it in its entirety, or allows it in part and dismisses it in part.

2. If the Court allows the constitutional appeal, it shall declare in its judgment:

a) ..., which of the constitutionally guaranteed rights or freedoms and which provision of a constitutional act or an international treaty ... was violated, and which action by a public authority resulted in the violation;

...

3. If it allows the constitutional appeal of a natural or legal person ..., the Court shall:

a) quash the contested decision of the public authority, or

b) if a constitutionally guaranteed fundamental right or basic freedom was violated as the result of an action by a public authority other than a decision, order the authority not to continue violating this right or freedom and order it, to the extent possible, to restore the situation that existed prior to the violation. ..."

COMPLAINTS

The applicant complains that his rights under Article 5 §§ 1(c) and 3 and Article 6 § 1 of the Convention were breached, in that the domestic courts decided to keep him in custody and to extend his detention on remand without relevant reasons, and that his detention on remand, as well as the criminal proceedings against him, lasted unreasonably long. He submits that neither the risk of a lengthy prison sentence, nor his various contacts abroad, constituted relevant reasons for keeping him in custody, under Section 67(a) of the Code of Criminal Procedure, or for extending his detention over two years pursuant to Section 71(3) of the Code of Criminal Procedure. The applicant also complains that the High Court based its decision to extend his detention on the possible examination of further evidence. He claims that the overload of the Regional Court, the insufficient number of judges, administrative difficulties and the fact that the court had to deal with his requests for release submitted in the course of the investigation, did not justify the delay in the proceedings. He submits that delays were caused by the courts' erroneous procedure and by the argument between the Plze  Regional Court and the Prague Regional Court about their competence.

PROCEDURE

The application was introduced before the European Commission of Human Rights on 5 February 1997 and registered on 29 April 1997.

On 4 March 1998, the Commission decided to communicate the application.

The Government's written observations were submitted on 14 May 1998. The applicant replied on 22 September 1998.

On 1 November 1998, by operation of Article 5 § 2 of Protocol No. 11 to the Convention, the case fell to be examined by the Court in accordance with the provisions of that Protocol.

THE LAW

1. The applicant complains under Article 5 §§ 1(c) and 3 of the Convention that the domestic courts decided to keep him in custody and to extend his detention on remand without relevant reasons and that his detention on remand lasted unreasonably long.

Article 5 §§ 1(c) and 3 of the Convention reads as follows:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

...

c. the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after done so; ...

3. Everyone arrested or detained in accordance with the provisions of paragraph 1.c of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”

The respondent Government submit that the applicant's detention on remand was based on a reasonable suspicion that he had committed the criminal offence of fraud causing great damage. He was deprived of his liberty in accordance with a procedure prescribed by Czech law. The national courts' fear that the applicant would abscond was based on concrete facts. They took into account that the applicant was charged with a serious offence, that he risked a lengthy prison sentence and that his German citizenship would made his extradition for the criminal prosecution in the Czech Republic impossible, if he absconded to Germany. Furthermore, the applicant had numerous business contacts abroad and was greatly in debt in the Czech Republic. The domestic courts also took into consideration the applicant's personal situation as established by expert reports. Furthermore, the applicant had already been convicted. The Government state that, in the applicant's case, the domestic courts concluded that the public interest prevailed over respect for his personal liberty, and decided to remand the applicant in custody and to extend that detention for the required period.

The Government further submit that the length of the applicant's detention on remand was influenced by the factual and legal complexity of the case, which required the extensive taking of evidence during the investigation and the detailed assessment of that evidence by the courts. The decisions of the domestic courts extending the applicant's detention on remand were always duly and sufficiently substantiated. The Government note that the reasons for the detention, together with the reasons for its extension, were reviewed by the domestic courts, including the Constitutional Court, and that the courts dealt with the applicant's case with special diligence. They conclude that the length of the applicant's detention on remand was reasonable within the meaning of Article 5 § 3 of the Convention.

The applicant maintains his original submissions.

a) As regards the reasons for detention

To the extent that the applicant complains of the reasons for which he was remanded in custody, the Court recalls that Article 5 § 1 (c) of the Convention authorises arrest or detention simply for the purpose of bringing the person concerned “before the competent legal authority” on the basis of a “reasonable suspicion” that he or she “has committed an offence”, the persistence of that suspicion being a condition for the validity of any continued detention (see the Stögmuller v. Austria judgment of 10 November 1969, Series A no. 9, p. 40, § 4; the Brogan and Others v. the United Kingdom judgment of 29 November 1988, Series A no. 145-B, p. 29, §§ 51-53).

The Court observes that such “reasonable suspicion” presupposes the existence of facts which would satisfy an objective observer that the person concerned may have committed the offence. What may be regarded as “reasonable” will depend upon all the circumstances (see the Fox, Campbell and Hartley v. the United Kingdom judgment of 30 August 1990, Series A no. 182, p. 16, § 32).

In the present case, the Court notes that the applicant was arrested and remanded in custody on a reasonable suspicion, originally based on documentary evidence, which was later supported by other material evidence, that he had committed the offence of fraud, contrary to Section 250(1) and (4) of the Criminal Code. His detention was ordered under Section 67 of the Code of Criminal Procedure on the grounds that the applicant could influence witnesses who had not been heard by the police. The detention was subsequently extended under Section 67(a) of the Code of Criminal Procedure, according to which a person may be remanded in custody if there exist specific grounds to believe that he will abscond in order to avoid prosecution or punishment, particularly if he risks a heavy penalty . The national courts dealing with the applicant's detention on remand relied principally on the fact that the applicant had been convicted in the past, that he was being prosecuted for a serious criminal offence and risked a heavy prison sentence in case of his conviction, that he had had numerous business contacts abroad and had run into debt. The Court considers that the applicant's deprivation of liberty therefore had a legal basis under Czech law.

The Court also notes that the national courts, when extending the applicant's detention on remand over 2 years pursuant to Section 71(3) of the Code of Criminal Procedure, concluded that the investigation could not be completed within this period, mainly because of its complexity, and that the applicant's release, having regard to the justified fear of his absconding, would jeopardise or substantially complicate the achievement of the aim of the criminal proceedings. Furthermore, the courts held that the applicant's state of health was not such as to exclude the possibility of his absconding.

In these circumstances, the Court finds that the applicant's arrest and his subsequent detention on remand were “lawful” as there were court decisions thereon based on a reasonable suspicion of the applicant having committed an offence. The Court also finds that the applicant's detention on remand was authorised “in accordance with a procedure prescribed by law”.

It follows that this part of the application must be rejected as being manifestly ill-founded within the meaning of Article 35 §§ 3 and 4 of the Convention.

b) As regards the length of the applicant's detention on remand

The Court considers that the issues invoked by the applicant relating to the protracted length of his detention on remand fall to be examined under Article 5 § 3 of the Convention (see, mutatis mutandis , the Scott v. Spain judgment of 18 December 1996, Reports and Judgments and Decisions 1996-VI, p. 2397, § 61).

In this regard, the Court recalls its case-law in the B. v. Austria judgment of 28 March 1990 (Series A no. 175, pp. 14-16, §§ 35-39), by which it may examine under Article 5 § 3 of the Convention the length of the applicant's detention between 19 May 1994 and 7 November 1997, i.e. from the moment when the applicant was remanded in custody until the delivery of the Plzeň Regional Court's judgment. Although under domestic law the applicant continued to be detained on remand after that judgment, for the purposes of the Convention the applicant became a person lawfully detained after conviction by a competent court, within the meaning of Article 5 § 1 (a) of the Convention. As of 7 November 1999, the applicant's detention on remand ceased from the perspective of Article 5 § 3. Thus, the detention to be taken into consideration for the latter purposes lasted 3 years, 5 months and 19 days.

Having examined the applicant's complaint under Article 5 § 3 of the Convention, the Court finds that it raises serious questions of fact and law which are of such complexity that their determination should depend on an examination of the merits. Accordingly, this part of the application cannot be regarded as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and no other ground for declaring it inadmissible has been established.

2. The applicant further complains that the criminal proceedings against him were unreasonably long. He invokes Article 6 § 1 of the Convention which, so far as relevant, reads as follows:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal ... .”

The Government first submit that the applicant did not exhaust all domestic remedies at his disposal as he did not submit, during the preliminary proceedings, a complaint to the public prosecutor, pursuant to Section 167 of the Code of Criminal Procedure, or to the various presidents of those courts dealing with his criminal case and the Ministry of Justice (the competent organs of the State administration), pursuant to Section 6(1) of Act no. 335/1991, in order to eliminate the delays in the proceedings. According to the Government, these procedures, unlike a constitutional appeal on which the Constitutional Court decides after a considerable period of time, constitute effective remedies. They emphasise that the public prosecutor and the organs of the State administration deal with complaints about the length of proceedings immediately.

The applicant did not submit any arguments under Article 35 § 1 of the Convention.

The Court first recalls that, in accordance with the case-law established by the Convention organs, a constitutional appeal in Czech law constitutes an effective remedy in cases concerning the length of criminal proceedings (see application no. 24211/94, Kajba v. the Czech Republic decision of 11 January 1995, unreported; application no. 31315/96, Punzelt v. the Czech Republic decision of 4 May 1999 (Third Section), unreported).

The Court further recalls that the rule of exhaustion of domestic remedies referred to in Article 35 § 1 of the Convention requires an applicant to have normal recourse to remedies within the national legal system which are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness. However, there is no obligation to have recourse to remedies which are inadequate or ineffective (see the Andronicou and Constantinou v. Cyprus judgment of 9 October 1997, Reports of Judgments and Decisions 1997-VI, pp. 2094-2095, § 159). Moreover, an applicant who has exhausted a remedy that is apparently effective and sufficient cannot be required to have tried others which were available but probably no more likely to be successful (see, mutatis mutandis , the A. v. France judgment of 23 November 1993, Series A no. 277-B, p. 48, § 32).

The Court notes that the applicant lodged three constitutional appeals, arguing that his right to have his case tried within a reasonable time, as guaranteed by Article 6 § 1 of the Convention, had been breached. The Constitutional Court admitted the applicant's appeals without imposing upon him an obligation to file a complaint with the public prosecutor or the organs of the State administration of the courts as part of the requirement to exhaust remedies pursuant to Section 75(1) of Constitutional Court Act no. 182/1993. It examined them on their merits, finding that the applicant's right had been respected.

The Court further notes that the different judicial authorities repeatedly reviewed the progress of the preliminary and trial proceedings when rejecting the applicant's various requests for release and extending his detention on remand. Moreover, in August 1996 the President of the Chamber of the Plzeň Regional Court informed the applicant's representative that it would be impossible to deal with the case before March 1997 because of the overwhelming workload of the Chamber. The applicant cannot therefore be criticised for not having made use of a legal remedy pursuing the same aim, but without any better prospect of success than his constitutional appeals (see, mutatis mutandis , the Miailhe v. France judgment of 25 February 1993, Series A no. 256-C, p. 87, § 27).

In these circumstances, the Court considers that the Government's preliminary objection under Article 35 § 1 of the Convention cannot be accepted.

As to the merits of the complaint, the Government contend that the applicant's criminal case was dealt with by the domestic courts in a reasonable time, as required by Article 6 § 1 of the Convention. They maintain that the case was complex, that the applicant contributed to the length of the proceedings at first instance by submitting new facts which he had deliberately not mentioned during the investigation and which had to be, therefore, verified by further evidence, and by suggesting, during the main hearing, the hearing of further witnesses. They also maintain that the applicant submitted his requests for release at very short intervals without modifying his arguments.

The Government further state that there were no undue delays on the part of the Czech authorities. The length of the preliminary proceedings is explained by the difficult time-consuming investigation and the exceptionally serious charges against the applicant. During this period the domestic judicial authorities examined 13 requests for release lodged by the applicant and 3 requests for the extension of his detention. Between the applicant's indictment and the first main hearing, 18 months elapsed during which the courts examined the applicant's 11 requests for release and 2 requests for the extension of his detention on remand. Furthermore, the courts had to resolve the question of their competence in dealing with the case which, in the Government's view, cannot be considered as an undue delay in the proceedings. The main hearing lasted 12 months. The Government explain this period by the extensive assessment of the evidence and the applicant's behaviour. The courts had to deal with 10 of his requests for release and 2 requests for the extension of his detention on remand.

The applicant maintains his original submissions.

Having examined the applicant's complaint under Article 6 § 1 of the Convention, the Court finds that it raises serious questions of fact and law which are of such complexity that their determination should depend on an examination of the merits. Accordingly, this part of the application cannot be regarded as being manifestly ill-founded within the meaning of Article 35 § 3 of the Convention, and no other ground for declaring it inadmissible has been established.

For these reasons, the Court, unanimously,

DECLARES ADMISSIBLE , without prejudging the merits, the applicant's complaints under Articles 5 § 3 and 6 § 1 of the Convention;

DECLARES INADMISSIBLE the remainder of the application.

S. Dollé N. Bratza

Registrar President