THIRD SECTION

DECISION

AS TO THE ADMISSIBILITY OF

application no. 33644/96

by Libor ČESKÝ

against the Czech Republic

The European Court of Human Rights ( Third Section ) sitting on 31 August 1999 as a Chamber composed of

Sir Nicolas Bratza , President ,

Mr J.-P. Costa,

Mr L. Loucaides ,

Mr P. KÅ«ris ,

Mrs F. Tulkens ,

Mr K. Jungwiert,

Mrs H.S. Greve, 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 23 November 1995 by Libor Český against the Czech Republic and registered on 4 November 1996 under file no. 33644/96;

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 20 March 1998 and the observations in reply submitted by the applicant on 5 May 1998;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a Czech national, born in 1962 and living in Roudnice nad Labem . When he lodged the present application, he was being held in detention on remand in Prague Pankrác Prison.

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

A. Particular circumstances of the case

In 1987 the Prague Municipal Court ( městský soud ) convicted the applicant of robbery and sentenced him to six and a half years’ imprisonment. On 4 April 1990 he was released and placed on probation for three years.

At the beginning of October 1990 the Czech authorities investigated a case of two missing persons. On 16 and 18 October 1990 a certain Mr B. was heard in connection with this investigation and stated that he, the applicant and another person had decided to rob these people at the apartment of one of them. Mr B. did not know how the two persons had been killed but he saw their bodies being removed from the apartment, and stated that the applicant and his accomplice had removed them.

On 18 October 1990 the Prague Municipal Prosecutor ( městský prokurátor ) was requested to authorise the applicant’s arrest. Agreement was given. On 19 October 1990 the Prague 1 police investigator ( vyšetřovatel ) charged the applicant with complicity in robbery under Section 9(2) and Section 234(1) and (3) of the Criminal Code. On 22 October 1990 the Prague Municipal Court ordered the applicant’s arrest and detention. At the same time, a lawyer was appointed to represent the applicant.

On 12 January 1991 the applicant was arrested in Italy where he was working as a waiter.  On 6 December 1991 he was released.  On 2 December 1992 the Rome Court of Cassation ( Cassazzione di Roma ) upheld an extradition warrant.  On 6 February 1993 the applicant was arrested and detained, pursuant to the extradition warrant, and on 18 February 1993 he was extradited.

On 19 February 1993 a judge at the Prague Municipal Court ( soudce městského soudu ) , ordered the applicant's detention on remand under Section 67(a)-(c) of the Code of Criminal Procedure with effect from 6 February 1993.  The court held that on 15 October 1990 the applicant had left the country although he had known that he was sought by the police. He had not returned and had not informed the competent authorities about his stay abroad. He had illegally obtained a passport with the likely intention of travelling to the United States. The court further noted that the applicant was being prosecuted for a robbery committed while on conditional release in connection with a sentence for a similar offence. This reasonably gave rise to the risk that he would re-offend. The court also found that the applicant could influence witnesses: during his stay in Italy, he had intervened in the procedure of investigation and had advised potential witnesses. Moreover, the investigator did not hear the applicant, and it could not be excluded that he would influence his co-accused who were not detained on remand.

The applicant complained about his detention on remand to the High Court ( Vrchní soud ) . He contended, in particular, that there was no fear that he would abscond or influence witnesses. He submitted that he had his permanent residence in the Czech Republic where his family was living and that, in Italy, he had stayed at a known address and had appeared in court during the extradition proceedings. He also submitted that the majority of the witnesses had been heard. He further disputed the Municipal Court’s argument that his previous conviction justified the fear that he would re-offend .

On 29 March 1993 the High Court dismissed the applicant’s complaint as unsubstantiated and found that his detention was legal and justified. It upheld the reasons given by the Prague Municipal Court.

On 5 April 1993 the Prague Municipal Court, at the Prague Municipal Prosecutor’s ( městský státní zástupce ) request of 29 March 1993, extended the applicant's detention on remand until 6 June 1993. The court held that the detention was still necessary within the meaning of Section 67 (a)-(c) of the Code of Criminal Procedure. It stressed that the Court awaited the results of the expert reports, the confrontation of the applicant with his co-accused and the completion of other steps in the investigation .

On 14 April 1993 the Prague Municipal Court decided that, according to Section 71(7) of the Code of Criminal Procedure, the time spent in detention pending extradition, i.e. from 6 to 18 February 1993, would not be counted as part of the length of the applicant's detention on remand.  Accordingly, the applicant's detention on remand started on 18 February 1993 when he was extradited to the Czech Republic.

On 2 June 1993 the Prague Municipal Court, upon the Prague Municipal Prosecutor’s request, extended the applicant’s detention on remand until 6 July 1993.

On 2 July 1993 the Prague Municipal Prosecutor indicted the applicant, pursuant Section 234(1) and (3) of the Criminal Code, for robbery before the Prague Municipal Court. He requested, inter alia , the Prague Municipal Court to hear 62 witnesses and to consider further evidence taken during the investigation. At the same time, he requested the Municipal Court to remand the applicant in custody under Section 67(a)-(c) of the Code of Criminal Procedure.

On 20 July 1993 the applicant lodged a request for release claiming that there was no concrete reason for him to remain in custody and that the conclusions given by the Prague Municipal Court were not complete or sufficiently justified. On 10 November 1993 the Prague Municipal Court dismissed the request. The court considered that the reasons for the applicant’s detention on remand, as set out in the earlier decisions, were still relevant. It emphasised that the fear that the applicant would influence witnesses was justified by the existing contradictions between the statements given by the applicant and one of his co-accused, who was not held in detention on remand.

On 17 November 1993 the applicant appealed against this decision, disputing the reasons for his detention on remand and claiming that four months had elapsed between the introduction of his request for release and the decision of the Prague Municipal Court.

The trial before the Prague Municipal Court was held on 13 December 1993, but was adjourned because one of the defendants and the victims were absent.  Further hearings were adjourned on 29 December 1993, 28 February, 11 April and 6 June 1994, because of the absence of certain witnesses and on the suggestion of the applicant and his co-accused to examine further evidence. Moreover, on 28 February 1994 the case was dealt with by a differently constituted chamber of the Municipal Court, which had to recommence the assessment of the evidence.

On 3 March 1994 the Municipal Court dismissed the applicant’s further request for release, stating that there was still a risk that the applicant would abscond and considered, therefore, the applicant’s detention to be necessary within the meaning of Article 67(a) of the Code of Criminal Procedure.

On 10 March 1994 the applicant’s lawyer requested a hearing of further witnesses and the appointment of a medical expert.

On 15 April 1994 the Prague Municipal Court rejected the applicant’s third request for release submitted on 8 April 1994. The court found that there was still a risk that the applicant would abscond. It referred to the fact that in Italy, when the applicant had become aware that criminal proceedings had been brought against him, he had not informed the Czech authorities of his whereabouts. On 11 May 1994 the applicant appealed against this decision submitting that, when he had become aware that criminal proceedings had been initiated against him, Czech television had portrayed him as a killer, contrary to the presumption of innocence. This had convinced him not to return to the Czech Republic.

On 10 June 1994 the Prague Municipal Court convicted the applicant of robbery and sentenced him to 15 years' imprisonment, the confiscation of his car and a fine of CZK 4,372,000.  The court found it established that in October 1990 the applicant and his two co-accused had killed two persons and stolen CZK 8,750,000. The court stressed that the applicant had already been convicted of robbery and sentenced to six and a half years’ imprisonment in 1987.

On 16 January 1995 the High Court quashed the judgment and remitted the case to the Prague Municipal Prosecutor for further investigations. The court considered that the Municipal Court had not established all the relevant facts of the applicant's case with sufficient certainty.

On 26 January 1995 the Supreme Court ( Nejvyšší soud ) , at the High Court’s request of 17 January 1995, extended the applicant's detention on remand until 30 June 1995 because of the complexity of the investigation. The court recalled that, shortly after the crime, the applicant had absconded to Italy.  It further recalled that in the past the applicant had committed a similar offence.  It therefore considered his detention necessary, within the meaning of Section 67(a)-(c) of the Code of Criminal Proceedings.

On 4 April 1995 the Prague 10 District Court ( obvodní soud ) dismissed the applicant's fourth request for release of 8 March 1995, finding that there was still a risk of absconding, repetition of offences of the same nature and influencing witnesses.  The court recalled that the case had been remitted to the Prague Municipal Prosecutor who would necessarily hear further witnesses whom the applicant could influence, thereby frustrating the investigation of the facts which were of importance for the conduct of the proceedings. The applicant appealed against this decision. He submitted that the Prague Municipal Court had already stated that there no longer existed specific grounds to believe that he would influence the witnesses or that he would re-offend. He also maintained that the necessity to hear further witnesses could not in itself justify the court’s anxiety that he would influence them and frustrate the criminal proceedings.

On 14 April 1995, the investigator ordered a medical examination of the applicant’s mental health and appointed two experts for that purpose.

On 3 May 1995 the Municipal Court dismissed the applicant’s appeal against the decision of the Prague 10 District Court of 4 April 1995. The court found that there was still a suspicion that the applicant had committed the offence with which he had been charged. It held that the Municipal Court’s finding that there had been no reason for the applicant’s detention under Article 67(a) and (c) of the Code of Criminal Procedure related to that particular stage of the criminal proceedings. However, the situation with regard to the evidence had changed, as the High Court had quashed the judgment of the first instance court and had sent the case back to the investigation authorities. Moreover, the fear that the applicant would influence the witnesses was justified by the fact that one of his co-accused (Mr B.) had modified his statement and the court would call a new witness, whose identity was known to the applicant, and whose statement could be necessary for consideration of the applicant’s guilt.

On 14 June 1995 the Supreme Court, upon the General Prosecutor’s ( Nejvyšší státní zástupce ) request, extended the applicant's detention on remand until 30 November 1995, upholding the reasons given for the previous extension.

On 18 August 1995 the applicant lodged a constitutional appeal against this decision. He complained under Articles 5 § 3 and 6 § 1 of the Convention about delays in the proceedings and the unreasonable length of his detention on remand. The applicant states that the Constitutional Court rejected the appeal for being outside the 60 day time limit required for introducing such appeals, pursuant to the Constitutional Court Act no. 182/1993.

On 21 November 1995 the High Court, at the General Prosecutor’s request, extended the applicant's detention on remand until 31 March 1996, pursuant to Section 71(3) of the Code of Criminal Procedure, on the ground that it was necessary to examine further evidence, confirming that all the reasons for detention under Section 67(a)-(c) of the Code of Criminal Procedure continued to apply.  The court stated that the investigation authorities had not yet been provided with a report of the Czech Commercial Bank or with a statement of a witness in France, taken by French judicial authorities. It further held that the applicant, being a dangerous offender who had already been convicted and sentenced to a heavy prison sentence, could, in case of his release, jeopardise the criminal proceedings.

On 20 December 1995 the Supreme Court confirmed this extension.

On 16 January 1996 the applicant lodged a second constitutional appeal against the decisions of the High Court on 21 November 1995 and of the Supreme Court on 20 December 1995, respectively.  He complained in particular that he had been detained for more than two years and that the courts had not dealt with the case fairly in examining the reasons when extending his detention on remand. He invoked Article 8 §§ 1, 2 and 5 (personal liberty), Article 36 § 1 (fair trial) and Article 40 §§ 2 and 4 (presumption of innocence) of the Charter of Fundamental Rights and Freedoms ( Listina základních práv a svobod ) (“the Charter”) .

On 26 March 1996 the High Court extended the applicant's detention on remand until 30 June 1996, pursuant to Section 71(3) of the Code of Criminal Procedure, on the ground that the reasons for his detention within the meaning of Section 67(a) and (c) of the Code of Criminal Procedure continued to exist.  The court considered, inter alia , that, given the legal qualification of the applicant's offence, he was likely to be sentenced to a lengthy prison sentence.  The court also recalled that the applicant had already been convicted in the past and, if released, could frustrate the purpose of the present criminal proceedings. It noted that the applicant had frustrated the investigation when he had been in Italy. Even if he had stayed at a known address, he had not been at the disposal of the Czech criminal authorities and his absence had therefore impeded the proceedings.

The applicant’s appealed, disputing the findings of the High Court and claiming, inter alia , that there were no relevant facts justifying his continued detention on remand. On 2 May 1996 the Supreme Court upheld the extension.

On 14 May 1996 the applicant introduced a third constitutional appeal against the aforesaid decisions of the High Court and the Supreme Court.  He alleged violations of his constitutional rights, in that the reasons for his detention invoked by the courts were not sufficient and relevant.  The applicant also alleged that the decisions in question were not based on the real facts of his case.  He complained that the detention lasted unreasonably long. The applicant further pointed out that his previous constitutional appeal had still not been decided by the Constitutional Court. He invoked Article 8 §§ 1, 2 and 5, Article 36 § 1 and Article 40 §§ 2 and 4 of the Charter.

On 31 May 1996 the Prague Municipal Prosecutor informed the applicant that he had re-assessed the applicant’s criminal offence and indicted him for murder, pursuant to Section 219(1), (2)(a) and (h) of the Criminal Code.

On 3 June 1996 the Prague Municipal Prosecutor formally indicted the applicant before the Prague Municipal Court.

On 5 June 1996 the President of the Prague Municipal Court submitted a request to the High Court for a further extension of the applicant’s detention on remand until 18 February 1997, pursuant to Section 67(a) and (c) of the Code of Criminal Procedure. She stated that the criminal proceedings were at the stage of an indictment, that the chamber dealing with the case would be overburdened until November 1996 and that the case was very complex.

On 18 June 1996 the High Court granted the request and extended the applicant's detention on remand until 18 February 1997. The court referred to its decision of 26 March 1996, upheld by the Supreme Court on 2 May 1996, by which the applicant’s detention had been previously extended, recalling that the investigation was very complex and that there was still a risk that the applicant would abscond and re-offend. The court considered that there were no particular delays in the investigation.

The applicant appealed against this decision to the Supreme Court, which dismissed his appeal on 11 July 1996.  The court noted that the offence with which the applicant had been charged was punishable by a lengthy prison sentence, and that the applicant’s release would frustrate or hinder the purpose of the criminal proceedings. It recalled that the applicant had absconded from the Czech Republic to Italy, where he had lived illegally. It therefore considered his detention necessary, within the meaning of Section 67(a) of the Code of Criminal Procedure.  The court further recalled that the applicant had been convicted in the past and concluded that he could re-offend.  It therefore held that the applicant's detention was also necessary, pursuant to Section 67(c) of the Code of Criminal Procedure. The court added that it lacked jurisdiction to deal with the applicant’s complaint about the delays in the proceedings, which fell within the sole competence of the President of the Prague Municipal Court.

On 30 July 1996 the applicant made a fourth constitutional appeal, this time against the last extension of his detention on remand.  He alleged violations of Articles 8 §§ 1, 2 and 5, 36 § 1 and 40 §§ 2 and 4 of the Charter.

On 26 August 1996 the re-trial started before the Prague Municipal Court and it was adjourned on 29 August 1996 until 18 November 1996 because certain witnesses did not appear and the applicant and his co-accused suggested producing further evidence. Before the adjournment, the applicant requested to be released from custody.

On 28 August 1996 the Constitutional Court dismissed the applicant's second constitutional appeal as manifestly ill founded.  The court noted that the decisions extending the applicant's detention had always been taken in accordance with the law, and that it was clear from the evidence available that the decisions concerned had always been given on the basis of the facts as they had been established at the relevant period.  The court further held that it lacked jurisdiction to review the reasons for which the ordinary courts had considered the applicant's detention on remand necessary.

On 3 September 1996 the Prague Municipal Court dismissed the applicant's request for release of 29 August 1996 considering that his detention was still necessary, within the meaning of Section 67(a) and (c) of the Code of Criminal Procedure. The court referred to the applicant’s previous conviction and his avoidance of the criminal prosecution abroad. It also noted that neither the applicant nor his co-accused had given evidence before the court.

On 1 November 1996 the High Court rejected the applicant’s appeal against this decision. It noted that there was still a danger that he would abscond and re-offend. The court noted that the decision of the Municipal Court could have been formulated more precisely, but this did not make it unlawful. It recalled that the applicant had been charged, on the basis of the guilty plea of his co-accused, with an offence punishable by a heavy prison sentence, and that the circumstances in which he had left the Czech Republic, and stayed successively in Germany and Italy, unambiguously proved that he had not been looking for a job but had been trying to avoid the criminal prosecution. The court also recalled that the applicant had entrusted more than CZK 4,000,000 to an acquaintance, bought a car using another person’s identity card, obtained a false passport and tried to get details about the criminal procedure. It further noted that the character of the criminal offence with which the applicant had been charged justified the fear that he would re-offend, and recalled that the offence was committed during the applicant’s probationary period.

On 18 November 1996 the trial resumed before the Prague Municipal Court. It was adjourned on 21 November 1996 until 9 December 1996 because certain witnesses did not appear.

On 9 December 1996 the Prague Municipal Court dismissed the applicant’s complaint of bias against the President of the chamber dealing with his case. On 11 December 1996 the applicant appealed against this decision.

On 17 December 1996 the Prague Municipal Court convicted the applicant of robbery under Section 234(1) and (3) of the Criminal Code and sentenced him as a very dangerous recidivist, pursuant Section 41(1) of the Criminal Code, to 13 years' imprisonment and the confiscation of his car.

On the same day, the court rejected the applicant’s further request for release. It found that, with reference to the previous decisions concerning the applicant’s detention, there was still the risk of his absconding and re-offending.

On 15 January 1997 the applicant completed his appeal against the decision of the Prague Municipal Court of 9 December 1996, by which his complaint of bias against the President of the chamber had been dismissed.

On 3 February 1997 the High Court rejected the applicant’s appeal against the Prague Municipal Court’s decision of 17 December 1996, by which his further request for release had been dismissed. The court stated that, having regard to the applicant’s personality and his criminal record, it could not be excluded that, if released, he would abscond and avoid prosecution. It also stated that the applicant’s prosecution for the offence committed during his probationary period justified the fear that he would re-offend.

On 10 February 1997 the High Court dismissed the applicant’s appeal against the Prague Municipal Court’s decision of 9 December 1996.

On 17 February 1997 the High Court quashed the judgment of the Prague Municipal Court of 17 December 1996 and remitted the case to that court for a new consideration of the case and a decision on the merits. The court considered that the Municipal Court had not properly assessed the evidence produced, had not established all the relevant facts of the applicant's case and had based its judgment on evidence which had not been before it. The High Court determined what evidence it would be necessary to consider.

On 18 February 1997 the applicant was released because of the expiration of the four year maximum permissible period for detention on remand, within the meaning of Section 71(4) of the Code of Criminal Procedure.

On 8 July 1997 the Prague Municipal Court convicted the applicant of robbery and sentenced him to 13 years' imprisonment and the confiscation of his car.

On 1 October 1997 the High Court quashed this judgment and sent the case back to the Prague Municipal Court ordering that the case should be heard by another chamber of the Municipal Court. The High Court found, inter alia , that the Municipal Court had not respected the High Court’s decision of 17 February 1997 and had practically copied its previous judgment.

On 21 January 1998 the third re-trial before the new chamber of the Prague Municipal Court was held. It was adjourned until 3 March 1998.

B. Relevant domestic law and practice

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 includes 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 or her rights 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 or her case examined by a court without undue delays.

According to Article 40 § 2, everyone charged with a criminal offence shall be presumed innocence until proved guilty by a final judgment delivered by a court. Paragraph 4 provides that the accused has the right to refuse to make a statement. He or she may not be denied this right in any manner whatsoever.

Criminal Code

Section 41(2) of the Criminal Code, in conjunction with Section 62, characterises robbery under Section 234(2) and (3) as a particularly serious offence.  Such an offence is punishable with a prison sentence from ten to fifteen years.

Code of Criminal Procedure

Until 31 December 1993, the relevant provisions of the Code of Criminal Procedure read as follows:

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 penalty;

b) will try to influence the witnesses or co-accused or otherwise frustrate the investigation into the facts which are of importance for the conduct of the proceedings, or

c) will carry on the criminal activity for which he is prosecuted, will accomplish an offence attempted by him or will commit an offence which he was preparing or threatened to commit.”             

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, and it must be justified by the particular circumstances of the case.

Under Section 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 fourteen days after the binding effect of the relevant decision if it is based on the same reasons. (If there are new elements, a further request may be lodged at any time.)

As of 1 January 1994 the Code of Criminal Procedure was revised, its Section 67 being substantially continued, except for a slight modification to sub-section (b), as follows:

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

b) will try to influence the witnesses or co-accused who have not yet been heard by the court or otherwise frustrate the investigation into the facts which are of importance for the criminal proceedings, … .”

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

Section 71(3) provides that a person’s detention on remand shall not exceed two years. If, because of the complexity of the matter or for other serious reasons, it is not possible to complete the criminal proceedings within this period, and if the release of the accused person would jeopardise or substantially complicate achieving 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 three years. In cases of particularly serious offences, within the meaning of Section 41(2) of the Criminal Code, the maximum permissible period of a person’s detention on remand is four years.

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 by constitutional law or international treaty ... ."

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 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) annul 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

1. The applicant complains under Article 5 § 1 of the Convention that the investigation authorities decided to charge and arrest him, and the courts ordered his detention on remand, for reasons which were erroneous, irrelevant and unjustified.

2. The applicant further complains under Article 6 § 1 of the Convention that the criminal proceedings against him have lasted unreasonably long due to the unfair and partial handling of his case by the President of the Prague Municipal Court and the Prague Municipal Prosecutor’s Office which, in 1992, retained the applicant’s criminal case file for 14 months after the investigation had been closed.

3. The applicant also complains under Article 6 § 1 of the Convention that the national courts have not dealt with the case fairly, impartially or independently. He maintains that the President of the chamber of the Prague Municipal Court accepted the official indictment although it did not contain a description of the criminal act at issue. Moreover, the manner in which it was pursued ignored the applicant’s claim that he did not have the time to prepare his defence. He alleges that, in violation of the International Agreement on Legal Assistance between Italy and the Czech Republic, his criminal charges have been re-assessed without the consent of Italy. He also submits that on 3 September 1996 the President of the chamber of the Prague Municipal Court referred, in her refusal to release him from custody, to the fact that he did not give evidence before the court.

4. Finally, the applicant complains under Article 6 § 2 of the Convention that the national courts extending his detention on remand and the Constitutional Court dealing with his constitutional appeal on 28 August 1996 did not observe the principle of the presumption of innocence as they based their decisions on the possibility of a lengthy prison sentence being imposed on the applicant and on his previous conviction rather than on relevant, specific evidence.

PROCEDURE

The application was introduced before the European Commission of Human Rights on 23 November 1995 and registered on 4 November 1996.

On 14 January 1998 the Commission decided to communicate the application to the respondent Government.

The Government’s written observations were submitted on 20 March 1998. The applicant replied on 5 May 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 of the Convention that the investigation authorities decided to charge and arrest him, and the courts ordered his detention on remand, for reasons which were erroneous, irrelevant and unjustified. The relevant provisions of Article 5 § 1 read 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 having done so; … .”

The respondent Government contend that the criminal prosecution in the present case started, and the applicant was charged, in accordance with the procedure prescribed by law. The fact that an international warrant of arrest was issued on the basis of this charge, and that the Italian authorities imprisoned the applicant for the purpose of extraditing him to the Czech Republic, cannot be considered unlawful. Moreover, the applicant’s extradition procedure has already been considered by the European Commission of Human Rights in its decision of 17 January 1996, declaring the case inadmissible (application no. 22001/93).

The Government also submit that the applicant was remanded in custody by the decision of the judge at the Municipal Court on 19 February 1993, in which it was clearly stated that the applicant had refused to make any statement concerning his charges and that the judge ordered his detention on the basis of his consideration of the file, the contents of which were specific enough to justify not only the suspicion that the criminal offence had been committed by the applicant, but also the fear of his absconding, influencing witnesses or co-defendants and re-offending.

The Government conclude that the decision to remand the applicant in custody was in conformity with the national law, and consider that this part of the application is manifestly ill-founded, as well as incompatible ratione temporis with the provisions of the Convention because the Convention entered into force with regard to the Czech Republic on 1 January 1993.

The applicant disputes the Government’s arguments.

The Court notes that in respect of this part of the application, and with reference to Articles 34 and 35 § 2(b) of the Convention, it can only examine the events which occurred on the territory of the Czech Republic after 18 March 1992, which is the date of the entry into force of the Convention with regard to the former Czech and Slovak Federal Republic (see no. 23889/93, Nohejl v. the Czech Republic, Dec. 13.5.1996, unpublished, and, mutatis mutandis , no. 23131/93, Brežný & Brežný v. the Slovak Republic, Dec. 4.3.1996, D.R. 85, p. 65, 78-80). Moreover, Article 35 § 1 of the Convention provides that the Court may only deal with an application “within a period of six months from the date on which the final decision was taken”.

The Court observes that the applicant was arrested for the purposes of the criminal procedure conducted by the Czech authorities on 6 February 1993. On 19 February 1993 the judge at the Prague Municipal Court ordered his detention on remand with effect from 6 February 1993. This order was upheld, upon the applicant’s complaint, on 29 March 1993. On 14 April 1993 the Municipal Court decided that the time spent in detention pending extradition, i.e. from 6 to 18 February 1993, would not be counted as part of the length of the applicant's detention on remand.

The Court notes that the applicant lodged the present application on 23 November 1995, which is more than six months after the date on which the final decision ordering his detention on remand was given.

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

It follows that this part of the application must be rejected for failure to observe the six months’ time-limit, in accordance with Article 35 §§ 1 and 4 of the Convention.

2. The applicant com plains that the criminal proceedings against him have lasted unreasonably long. He invokes Article 6 § 1 of the Convention which provides, so far as relevant, as follows:

“1. In determination of … any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time … .”

The Government first object that the applicant did not exhaust all domestic remedies at his disposal: in his constitutional appeal of 16 January 1996, which the Constitutional Court decided on 28 August 1996, he did not complain of the length of the proceedings under Article 6 § 1 of the Convention or Article 38 § 2 of the Charter of Fundamental Rights and Freedoms. This constitutional appeal was lodged against the decision of the High Court of 21 November 1995 in connection with the decision of the Supreme Court of 20 December 1995, by which the applicant’s detention on remand had been extended.

As regards the merits of the complaint, the Government submit that the particular circumstances of the case show that the criminal proceedings had been conducted in accordance with the requirement of reasonable time provided for in Article 6 § 1 of the Convention. They note that the applicant’s complaints of 27 December 1995, 1 January and 23 July 1996 concerning the delays in the proceedings were rejected as unsubstantiated by the Prosecutor General and the Prague Municipal Court.

The applicant disagrees and submits that the competent criminal authorities have not proceeded in accordance with the national law and are responsible for the delays in the proceedings.

The Court recalls that under Article 35 § 1 of the Convention, it may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law.

The Court notes that, pursuant to Section 72(1) of the Constitutional Court Act, it was open to the applicant to lodge a constitutional appeal before the Constitutional Court on this subject. In such an appeal, the applicant could have raised the complaints relating to the length of the proceedings, by alleging a violation of Article 38 § 2 of the Charter of Fundamental Rights and Freedoms, which guarantees inter alia the right to be heard without unnecessary delay, or of Article 6 § 1 of the Convention, which is directly applicable in Czech law.

The Court considers, in particular in the light of Article 82 § 3 of the Constitutional Court Act, that this remedy could have afforded redress in respect of the situation of which the applicant complains. It cannot therefore be deemed ineffective. It is true that the applicant complained of the delays in the criminal procedure in his first constitutional appeal of 18 August 1995. However, this appeal was rejected by the Constitutional Court, as out of time, without a decision on the merits. The fact that the applicant was released before the end of the criminal procedure and might have lost interest in accelerating the procedure cannot absolve him, according to the generally recognised rules of international law, from the obligation to exhaust this remedy and thus to try to shorten the overall length of the proceedings.

It follows that the applicant did not exhaust the remedies at his disposal under Czech law, as required by Article 35 § 1 of the Convention, and therefore this part of the application must be rejected pursuant to Article 35 § 4 of the Convention.

3. The applicant also complains under Article 6 § 1 of the Convention that the national courts did not deal with the case fairly, impartially and independently. He maintains that the President of the chamber of the Prague Municipal Court accepted the official indictment although it did not contain the description of the criminal act at issue. Moreover, the manner in which it was pursued ignored the applicant’s claim that he did not have the time to prepare his defence. He alleges that, in violation of the International Agreement on Legal Assistance between Italy and the Czech Republic, his criminal charges have been re-assessed without the consent of Italy. He also submits that on 3 September 1996 the President of the chamber of the Prague Municipal Court referred, in her refusal to release him from custody, to the fact that he did not give evidence before the court.

a) The Court notes that Article 6 of the Convention is applicable to the criminal proceedings against the applicant, but that an assessment of their fairness, or the independence and impartiality of the courts, depends on an overview of the proceedings as a whole (see No. 13521/87 Berns and Ewert v. Luxembourg, Dec. 6.3.91, DR 68, p. 161). The Court observes that the judgment of the Prague Municipal Court of 8 July 1997, by which the applicant had been convicted of robbery and sentenced to 13 years’ imprisonment and the confiscation of his car, was quashed by the High Court on 1 October 1997. The case was therefore remitted to the Prague Municipal Court for a new trial. According to the Government, the re-trial before the Municipal Court scheduled for 21 January 1998 was adjourned until 3 March 1998.

In the light of these circumstances, the Court considers that these complaints are premature because there can be no finding at this stage of the domestic proceedings that there has been a violation of Article 6 § 1 of the Convention. It follows that this part of the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

b) To the extent that the applicant’s submissions raise an issue concerning the reasons for and length of his continued detention on remand, the Court considers it appropriate to examine them under Article 5 § 3 of the Convention which provides, so far as relevant, as follows:

“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 Government maintain that the national authorities, when dealing with the applicant’s detention on remand, took into account all the particular circumstances of the applicant’s case and that the reasons invoked in their decisions are sufficient and relevant.

The Government note that the courts based their decisions on Section 67 of the Code of Criminal Procedure, referring to the conduct of the applicant, his criminal past, the character and degree of social dangerousness of the offence for which he was prosecuted and the type and length of an eventual prison sentence. The courts repeatedly extended the applicant’s detention because the complexity of the criminal case required a large quantity of evidence to be examined and because of the fear that the applicant would frustrate the purpose of the proceedings.

They observe that the applicant was detained on 18 February 1993, pursuant to Section 67 (a)-(c) of the Code of Criminal Procedure. The risk of his absconding, within the meaning of Section 67(a) of the Code of Criminal Procedure, persisted throughout his detention. It was justified given the applicant’s absconding from the Czech Republic to Italy, where he was arrested and extradited back. The risk of influencing witnesses and of re-offending, within the meaning of Section 67(b) and (c) of the Code of Criminal Procedure, varied depending on the procedural situation. These risks were based on the fact that, before his arrest, the applicant had influenced possible witnesses and that the state of evidence during the proceedings seemed to be complex. Moreover, the applicant had been convicted in the past and the offence with which he was charged was committed during his probationary period.

The applicant contends that the national authorities failed to establish any sufficient grounds reasonably permitting a suspicion of his having committed an offence. He maintains that he left the Czech Republic for Italy in order to find a job and stayed there because of a Czech television program where he was portrayed as a killer. His lawyer advised him to stay abroad. He stresses that the national courts did not take into account that he had regularly appeared in the extradition proceedings and respected the extradition warrant. He adds that the risk of absconding cannot only be based on a possible lengthy prison sentence.

The applicant further contends that the national courts’ finding of the risk of collusion, under Section 67(b) of the Code of Criminal Procedure, was unlawful and unjustified being based merely on the fact that from Italy he had called possible witnesses, and that the state of evidence changed as one of his co-accused had modified his statement.

In accordance with its relevant case-law (see the B. v. Austria judgment of 28 March 1990, Series A no. 175, pp. 14-16, §§ 35-39), the Court may examine under Article 5 § 3 of the Convention the length of the applicant’s detention for the following periods:

- between 6 February 1993 and 10 June 1994, i.e. from the moment when the applicant was arrested in Italy pursuant to a Czech extradition request until the delivery of the first Prague Municipal Court’s judgment;

- between 16 January 1995 and 17 December 1996, i.e. from the moment when the High Court quashed the first judgment delivered by the Municipal Court until the latter delivered its second judgment; and

- the period of two days between 17 and 18 February 1997, i.e. from the moment when the High Court quashed the second judgment of the Municipal Court until the applicant was released from custody.

Thus, the detention to be taken into consideration lasted 3 years, 3 months and 7 days.

In the light of the above considerations, the Court finds that this aspect of the case 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.

4. The applicant finally complains under Article 6 § 2 of the Convention that the national courts extending his detention on remand and the Constitutional Court dealing with his constitutional appeal on 28 August 1996 did not observe the principle of the presumption of innocence as they based their decisions on the possibility of a lengthy prison sentence being imposed on the applicant and on his previous conviction rather than on relevant, specific evidence.

Article 6 § 2 of the Convention states:

“Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”

The Court considers that the national courts dealing with the applicant’s continued detention on remand did not determine any criminal charge against the applicant or, accordingly, his guilt. The applicant has not shown how these decisions could have influenced the independence and impartiality of the Prague Municipal Court, which has tried him on three occasions.

It follows that this part of the application is manifestly ill-founded and must be rejected pursuant to Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court, unanimously,

DECLARES ADMISSIBLE , without prejudging the merits, the applicant’s complaint under Article 5 § 3 of the Convention that there has been a breach of his right to trial within a reasonable time or to release pending trial;

DECLARES INADMISSIBLE the remainder of the application.

S. Dollé N. Bratza

Registrar President