DECISION

AS TO THE ADMISSIBILITY OF

Application no. 31315/96

by Siegfried PUNZELT

against the Czech Republic

The European Court of Human Rights ( Third Section) sitting on 4 May 1999 as a Chamber composed of

Mr J.-P. Costa, President ,

Mr L. Loucaides ,

Mr P. KÅ«ris ,

Mrs F. Tulkens ,

Mr W. Fuhrmann

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 25 March 1993 by Siegfried PUNZELT  against the Czech Republic and registered on 2 May 1996 under file no. 31315/96;

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 18 February 1998, the applicant’s observations in reply submitted on 29 April 1998 and the supplementary observations submitted by the Government on 12 August 1998;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a German national, born in 1930 and living in Munich.

He is represented before the Court by Mr C. Pinkerneil , a lawyer in the firm of Pinkerneil & Marschner , practising in Munich.

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

A. Particular circumstances of the case

On 5 September 1991 the Munich I Regional Court ( Landgericht ) issued an arrest warrant against the applicant on the ground that he had been accused of fraud and forgery in Germany. The warrant stated that the applicant had previously been convicted of similar offences, that the probationary period of a suspended prison sentence which had been imposed on the applicant had not yet expired, and that the applicant had left Germany for Prague.

On 10 December 1992 the Czech authorities took the applicant into custody prior to his extradition to Germany.

On 14 April 1993, while he was detained pending his extradition, the Czech authorities accused the applicant of fraud pursuant to Sections 8 (1) and 250 (1) and (4) of the Criminal Code (see “Relevant domestic law” below) on the ground that he had issued two uncovered cheques for Deutschmarks (DEM) 891,412 and 682,139 respectively. On 23 April 1993 the Prague City Court ( MÄ•stský soud - “the City Court”) released the applicant from detention pending extradition and remanded him in custody in connection with the aforesaid charge.

The City Court noted that the applicant had been prosecuted and sentenced for similar offences in the past, that he was a foreign national who had earlier absconded from the German criminal proceedings, and that he risked a heavy penalty in the Czech Republic. The City Court therefore considered the applicant’s detention necessary within the meaning of Sections 67 (a) and 68 of the Code of Criminal Procedure and refused to release the applicant on bail.

On 26 April 1993 the applicant complained about his detention on remand to the Court of Cassation ( Vrchní soud ).  He contended, in particular, that the criminal court dealing with his case in Germany was prepared to release him on bail and discontinue the proceedings against him, and that the money he had invested in the Czech Republic constituted a safeguard against his absconding. The applicant also referred to his health problems.

On 7 May 1993 the Court of Cassation dismissed the applicant’s complaint with reference to the reasons set out in the first instance decision.

Subsequently the following relevant events occurred and decisions were taken in the applicant’s case.

Decisions on extension of the applicant’s detention on remand

On 21 June 1993 the City Court extended the applicant’s detention on remand until 23 August 1993.  The court noted that the case could not be proceeded with as Austrian authorities had failed to submit information about the applicant’s account in an Austrian bank.

On 7 August 1993 the City Court extended, at the Prague Public Prosecutor’s request, the applicant’s detention on remand until 23 October 1993.  The City Court held that the Austrian authorities had not submitted the requested information concerning the applicant’s bank account, that this information constituted an important element of the evidence, and that it was also necessary to hear further witnesses for the defence. The court noted that the applicant had communicated with persons outside the prison by means of a radio transmitter which he had unlawfully held in his cell.  It concluded that the applicant’s further detention was also necessary within the meaning of Section 67 (b) of the Code of Criminal Procedure as there was a risk that he could influence the witnesses.

The applicant lodged a complaint.  He maintained that the evidence available proved that he was innocent and pointed out his health problems.

On 15 September 1993 the Court of Cassation dismissed the applicant’s complaint against this decision.

On 12 April 1995 the Supreme Court ( Nejvyšší soud ), at the General Prosecutor’s request, extended the applicant’s detention until 23 August 1995. The Supreme Court held that the detention was still necessary within the meaning of Section 67 (a) and (c) of the Code of Criminal Procedure. It referred to the complex character of the case, the danger of the applicant’s absconding and held that his release would jeopardise the purpose of the criminal proceedings.

On 9 August 1995 the Supreme Court extended the applicant’s detention until 23 February 1996, pursuant to Section 71 (3) of the Code of Criminal Procedure.  It held that the applicant was prosecuted for serious offences, and that his release would frustrate the proceedings as he was a German citizen and was also being prosecuted in Germany. The Supreme Court found no unjustified delays in the proceedings. It considered the applicant's detention on remand necessary within the meaning of Section 67 (a) and (c) of the Code of Criminal Procedure.

On 12 February 1996 the Court of Cassation extended the applicant's detention until 30 June 1996. It found no undue delays in the proceedings before the City Court and considered that their length was justified, in particular, by the complexity of the case, the heavy workload of the City Court and also by the proceedings concerning the complaint in the interests of the law which had been lodged in the meantime by the Minister of Justice at the applicant’s initiative (see “The criminal proceedings against the applicant” below).

On 15 February 1996 the applicant challenged this decision.  He recalled that he had resided in Prague since 1990, that he owned real property in the Czech Republic and that his wife was a Czech national.  The applicant concluded that there were no relevant reasons justifying his further detention on remand.

On 7 March 1996 the Supreme Court dismissed the applicant's complaint.  It held that the reasons invoked by the Court of Cassation were relevant and sufficient within the meaning of Section 71 (3) of the Code of Criminal Procedure.

On 14 May 1996 the Court of Cassation extended the applicant's detention until 30 September 1996, pursuant to Section 71 (3) of the Code of Criminal Procedure. It noted that the case had been submitted to the appellate court on 3 May 1996, and that the first hearing was scheduled for 31 July 1996, i.e. at the court’s earliest convenience.  The Court of Cassation considered the further detention of the applicant necessary within the meaning of Section 67 (a) of the Code of Criminal Procedure, i.e. in order to prevent his absconding.   

On 27 May 1996 the applicant lodged a complaint against this decision which he supplemented on 6 June 1996.  He alleged that the accusations brought against him were unsubstantiated.

On 19 June 1996 the Supreme Court dismissed the complaint. The Supreme Court noted that the applicant had been sentenced to five years’ imprisonment at first instance and that the hearing before the appellate court was scheduled for 31 July 1996. It held the applicant’s detention necessary in order to prevent his absconding and found the decision to extend it until 30 September 1996 justified under Section 71 (3) of the Code of Criminal Procedure.

Proceedings concerning applications for release lodged by the applicant

On 18 June 1993 the applicant lodged a request for release pursuant to Section 72 (2) of the Code of Criminal Procedure. He maintained that his acts did not constitute a criminal offence.

On 24 June 1993 the City 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 referred to the applicant’s personal situation and held that Czech korunas (CZK) 1,000,000 the applicant had offered for his release on bail did not represent a sufficient guarantee for ensuring the applicant’s appearance at the trial.

On 4 August 1993 the Court of Cassation dismissed the applicant’s complaint against this decision.              The Court of Cassation excluded the possibility of releasing the applicant on bail at this stage of the proceedings.

On 25 October 1993 the applicant requested again that he should be released. He pointed out, in particular, that he had been detained for several months, that all witnesses in the proceedings against him had been heard and that he was suffering from diabetes. The applicant further stated that he and his family had permanent residence in Prague and that he did not intend to abscond.  He offered a security of  CZK 1,000,000.

On 12 November 1993 the City Court dismissed the aforesaid request. It noted that the offence with which the applicant had been charged was punishable with a possible prison sentence varying from five to twelve years. The court recalled that the applicant had absconded from Germany in the context of other criminal proceedings. It therefore considered his detention necessary within the meaning of Section 67 (a) of the Code of Criminal Procedure.

The City Court further recalled that in the past the applicant had allegedly been involved in fraudulent transactions in Germany and concluded that he might commit further similar offences.  It therefore considered the applicant's detention also to be necessary pursuant to Section 67 (c) of the Code of Criminal Procedure.

Finally, the City Court held that detained persons were entitled to the same health care as other individuals and that the applicant’s state of health was not, as such, a relevant reason for his release.

On 22 November 1993 the applicant lodged a complaint for which he submitted the reasons on 29 November and on 21 December 1993. He challenged the City Court’s finding according to which he could have committed offences in the past, that he might abscond and that he was provided with adequate health care in the prison.

On 21 December 1993 the Court of Cassation dismissed the complaint. It considered that the applicant's detention was necessary within the meaning of Section 67 (a) and (c) of the Code of Criminal Procedure. Like the City Court, the Court of Cassation did  not consider a security of CZK 1,000,000 to be a sufficient safeguard against the applicant’s possible absconding or, as the case might be, his committing further offences.

On 3 January 1994 the applicant lodged a new request for release. On 14 February 1994 he offered the court a security of CZK 15,000,000 for his release on bail.  The applicant stated that he and his family resided in Prague, that he was not provided with adequate health care in the prison and that the charges against him were unsubstantiated.

The City Court dismissed the request on 28 February 1994.  It recalled that the applicant had absconded from Germany where he had been indicted for fraudulent activities and that in the proceedings before the City Court he had been charged with fraud in that he had issued two uncovered cheques amounting to the equivalent of CZK 28,400,000.  The court held, with reference to a police report, that the applicant had not formally registered his residence in the Czech Republic. It concluded that he could abscond and commit further offences.

Finally, the City Court expressed its readiness to release the applicant on bail, with regard to his health problems, if he paid a security of CZK 30,000,000.  In this respect, the court recalled that prior to his arrest the applicant had intended to buy two department stores for CZK 338,856,000 and 236,000,000 respectively and that he had undertaken to pay instalments of CZK 150,000,000 in this context.

On 4 March 1994 the applicant lodged a complaint for which he submitted the reasons on 15 March 1994. He maintained that there was no risk of his absconding as he and his family resided in the Czech Republic, and that the acts imputed to him had generated no negative effects. The applicant further challenged the judges dealing with his case, but on 24 March 1994 he withdrew this objection through the intermediary of his lawyer.

On 15 April 1994 the Court of Cassation dismissed the applicant’s complaint. It noted that the fixing of the amount of a security to be paid by a person who requests release on bail was within the discretionary power of the courts.

On 21 October 1994 the City Court dismissed another request for release lodged by the applicant.  On 19 December 1994 the Court of Cassation upheld this decision.  The courts noted that the applicant was a German national with multiple contacts abroad, that he had absconded in the past, and that his children lived abroad. The courts also noted that the applicant still had at his disposal one of the department stores he had intended to buy, notwithstanding that the evidence available indicated that the department store did not belong to him. They considered the applicant’s age and state of health irrelevant when deciding on his request for release. In the courts’ view, the applicant’s further detention on remand was necessary within the meaning of Section 67 (a) and (c) of the Code of Criminal Procedure.

On 10 January 1995 the City Court dismissed a further request for release lodged by the applicant. It held that the applicant was under the threat of a heavy prison sentence and that he was a foreign national who had moved to the Czech Republic in order to avoid criminal proceedings against him in Germany. The court noted that the applicant was prosecuted for fraudulent activities in Germany and continued to use one of the department stores in Prague which he had acquired, according to the first instance judgment delivered on the same day, by means of a fraud.  It considered the applicant’s further detention necessary pursuant to Section 67 (a) and (c) of the Code of Criminal Procedure.

On 17 February 1995 the applicant lodged a complaint.

The Court of Cassation dismissed it on 15 March 1995. The Court of Cassation did not consider the security of CZK 10,000,000 and a written pledge not to abscond offered by the applicant as a sufficient guarantee in the particular circumstances of the case.

On 22 May 1995 and on 22 August 1995 respectively the applicant requested that he should be released.  He offered a security of CZK 10,000,000.             

The requests were dismissed by the Prague 1 District Court ( Obvodní soud ) on 2 June and 22 August 1995 respectively.  On 28 June and on 24 November 1995 respectively, the City Court dismissed the applicant’s complaints against these decisions. The courts considered the applicant’s detention on remand necessary within the meaning of Section 67 (a) and (c) of the Code of Criminal Procedure.  They also  noted that in case of his release the applicant would have to be re-detained pending his extradition to Germany, and that the Czech authorities would then be under the obligation to restore to the applicant any security paid by him.

On 3 and 7 November 1995 the applicant lodged another request for release.  It was dismissed by the City Court on 16 January 1996.  On 2 May 1996 the applicant lodged a complaint against this decision.  The Court of Cassation dismissed it, for similar reasons as before, on 14 May 1996.

On 24 June 1996 the applicant lodged another request for release.  It was dismissed by  the Court of Cassation on 17 July 1996.

The criminal proceedings against the applicant

On 8 October 1993 the applicant was acquainted with the outcome of the investigation.  He stated  that he had no other proposals as regards the evidence to be taken and agreed that the file be transmitted to the public prosecutor.

On 21 October 1993 the Prague Public Prosecutor’s Office indicted the applicant before the City Court, pursuant to Section 250 (1) and (4) of the Criminal Code, for fraud.  The indictment stated that the applicant had deposited two cheques as a security for negotiations concerning the sale of two department stores in Prague. The vendor was not able to cash the securities in accordance with the relevant provisions of the contracts as the cheques issued by the applicant were not covered. The prosecuting authority suggested that the City Court hear ten witnesses and accept the further documentary evidence submitted by it.

In his submissions of 26 October and 22 November 1993 the applicant requested the that the City Court take further evidence.

On 5 November 1993 the applicant asked the City Court to hear him, and on 15 February 1994 he  requested that a witness be heard.

On 18 November 1993, 15 February 1994 and on 11 April 1994 the applicant asked the court to order expert opinions to be submitted.

On 8 and 9 November 1993 and on 21 April 1994 the applicant submitted further evidence to the City Court.

On 16 February 1994 the applicant complained to the vice-president of the City Court about delays in the proceedings.

On 14 March 1994 the applicant appointed a second lawyer representing him in the proceedings. Subsequently he revoked the authority of the latter as the other lawyer representing him informed the applicant, allegedly after an agreement with the public prosecutor dealing with the case and the presiding judge of the City Court, that the outcome of the proceedings would be more favourable for the applicant if the second lawyer’s defence strategy was dropped.

On 26 May 1994 the City Court scheduled a hearing for 28 and 29 June 1994.  The hearing took place and the case was adjourned until 22 August 1994 as the City Court considered it necessary to hear further witnesses and to take new evidence. The proceedings  were adjourned for similar reasons on 9 September and on 21 October 1994.

On 24 August 1994 the City Court prohibited the applicant from using his property pending the outcome of the criminal proceedings.

On 2 September 1994 the applicant requested that this measure should not comprise the maintenance of his two children who studied in Germany.

On 9 September 1994 the president of the City Court dismissed the applicant’s request.  On 23 September 1994 the Court of Cassation quashed the latter decision as the first instance court had not established the relevant facts with sufficient certainty.

On 22 November 1994 the applicant challenged the City Court judges dealing with his case.  He also complained that the proceedings had lasted unreasonably long.

On 23 November 1994 the City Court dismissed the applicant’s request for exclusion of its judges. On 19 December 1994 the Court of Cassation quashed the aforesaid decision as the relevant law had not been specified in it correctly.  It agreed, however, with the reasons for its merits.

On 10 January 1995 the City Court convicted the applicant of fraud pursuant to Section 250 (1) and (4), in conjunction with Section 8 (1), of the Criminal Code and sentenced him to eight years’ imprisonment and to expulsion from the Czech Republic. The City Court found that the applicant had deposited two cheques for DEM 891,412 and 682,139 respectively as a security for the sale by tender of two department stores in Prague. He had acquired one of the department stores but failed to pay the instalments. As to the other department store, he had withdrawn from the negotiations. The securities had been adjudicated to the vendor, but the latter could not recover them as the cheques issued by the applicant had been uncovered.

The applicant appealed on 17 February 1995.

On 15 March 1995 the Court of Cassation quashed the first instance judgment. It held that the City Court had not established and considered all relevant facts of the applicant’s case, that it had applied the law erroneously and that its judgment was unclear. The Court of Cassation concluded that extensive new evidence should be taken, and sent the case back to the Prague Public Prosecutor for further investigation.

On 17 July 1995 the Minister of Justice lodged, at the applicant’s initiative, a complaint in the interests of the law in respect of the aforesaid decision of the Court of Cassation .

On 14 September 1995 the Supreme Court granted the complaint and quashed the decision of the Court of Cassation of 15 March 1995 to the extent that the case was to be sent back to the Public Prosecutor.  The Supreme Court shared the view of the Court of Cassation according to which the first instance court had not established all relevant facts and that its judgment was unclear. The Supreme Court found, however, that the Court of Cassation had not sufficiently specified the shortcomings in the first instance judgment and the further steps to be taken. In its judgment the Supreme Court pointed in detail to the factual and legal errors and other shortcomings in the City Court’s judgment. It ordered the City Court to supplement the evidence in accordance with its instructions and to adjudicate on the matter again.

On 7 December 1995 the City Court fixed the main hearing for 15 and 16 January 1996.

The City Court delivered a new judgment on 16 January 1996. It convicted the applicant of fraud pursuant to Section 250 (1) and (4), in conjunction with Section 8 (1), of the Criminal Code. With reference to the applicant’s age and state of health, the City Court reduced the prison sentence originally imposed on the applicant to five years. It also decided to expel the applicant from the Czech Republic.

In its judgment the City Court found that the applicant had caused damage of DEM 1,573,551 in that he had deposited, in the context of sale negotiations concerning two department stores in Prague one of which he had actually acquired and used until 10 January 1995, a security which could not be recovered by the vendor in accordance with the relevant provisions of the contract.

The applicant appealed and maintained that his acts could not be qualified as an offence.

On 31 July 1996 the Court of Cassation upheld the applicant’s conviction and sentenced him to three and a half years’ imprisonment and to expulsion from the Czech Republic. The Court of Cassation held that the City Court had established the relevant facts correctly and had decided in accordance with the law. However, the Court of Cassation considered it appropriate, having regard to the applicant’s age and state of health, to reduce the prison sentence imposed on him at first instance.

Proceedings before the Constitutional Court and other relevant facts

On 11 May 1993 the Minister of Justice granted a request lodged by the German authorities that the applicant be extradited to Germany. The Minister further decided to postpone the extradition until the end of the criminal proceedings against the applicant in the Czech Republic.

Following the applicant’s complaint that his detention on remand had resulted in the deterioration of his health, the City Court ordered his medical check-up. The prison health service submitted reports on the applicant’s health on 17 November and on 10 December 1993 as well as on 12 May 1994. In addition, the applicant was examined on 16 February 1994 by experts from civil hospitals.

On 25 November 1994 the applicant lodged a constitutional complaint against the City Court’s decision of 21 October 1994 concerning the dismissal of his request for release (see “Proceedings concerning applications for release lodged by the applicant” above). He complained, in particular, that he had been detained for twenty-two months, and that the City Court had not proceeded with his case for nearly eight months.

On 25 January 1995 the Constitutional Court ( Ústavní soud ) rejected the applicant's constitutional complaint. It held, inter alia , that the applicant’s detention and the proceedings against him had not lasted unreasonably long.

On 1 April 1996 the applicant introduced another constitutional complaint in which he challenged the Supreme Court’s decision of 7 March 1996 in conjunction with the decision of the Court of Cassation of 12 February 1996 concerning an extension of his detention on remand (see “Decisions on extension of the applicant’s detention on remand” above). He alleged a violation of Article 5 § 1 of the Convention in that the reasons for his detention invoked by the courts were not sufficient and relevant. The applicant also complained that the decisions in question were not based on any real facts in his case, that neither he nor his lawyer was heard prior to their delivery, and that the courts unjustifiedly referred to his German origin and to criminal proceedings which had been instituted against him in Germany. He also complained that his detention lasted unreasonably long.

The applicant further alleged that the courts, when deciding on his requests for release, had not taken into consideration his age, the fact that the first instance court had imposed a five year prison sentence on him, that he had been already detained for more than three years, that he had both his family and business in Prague, and that he had offered a security for his release. He complained that the courts had not specified which offence he could commit in case of his release.

On 15 October 1996 the Constitutional Court rejected the constitutional complaint. It noted that the length of the applicant's detention had not exceeded the maximum period provided for in Czech law, that the decisions on extension of the applicant’s detention had always been taken in time and in accordance with the law, and that it was evident from the evidence available that the decisions in question had been delivered on the basis of the facts as they had been established at the relevant period. The Constitutional Court therefore concluded that the applicant’s complaint was manifestly ill-founded. The Constitutional Court also held that it lacked jurisdiction to review the reasons for which the general courts had considered the applicant’s continued detention on remand necessary.

In its decision the Constitutional Court also stated, with reference to both constitutional complaints lodged by the applicant, that the criminal proceedings against the latter had always conformed to the constitutional guarantees enshrined, inter alia , in Article 38 of the Charter of Fundamental Rights and Freedoms.

The applicant submitted a copy of the Constitutional Court’s decision to the European Commission of Human Rights on 13 January 1997.

B. Relevant domestic law

Constitutional provisions

Article 38 (2) of the Charter of Fundamental Rights and Freedoms provides, inter alia , that everybody has the right to have his or her case examined by a court without undue delays.

The Criminal Code

Section 8 (1) qualifies as an attempted offence any uncompleted deliberate act representing a danger for society and directly aimed at committing an offence.

Under Section 250 (1), a fraud is any act based on another person’s error and resulting in an enrichment, to an extent which is not negligible, to the detriment of the property of others.

Section 41 (2), in conjunction with Section 62 and Section 250 (4), qualifies fraud resulting in widely extensive damage as a particularly serious offence. It is punishable with a prison sentence varying from five to twelve years.

The Code of Criminal Procedure

Until 31 December 1993, the relevant provisions read as follows:

Section 67  [translation]

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

a) will abscond in order to avoid prosecution or punishment, in particular if his or her identity cannot be immediately established, if he or she has no permanent residence or if he or she 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 or she is prosecuted, will accomplish an offence attempted by him or her or will commit an offence which he or she 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 or her 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 after the expiry of fourteen days after the binding effect of the relevant decision unless it is based on different reasons.

Pursuant to Section 73a (1) and (2), a court is entitled to release on bail persons detained on remand for reasons set out in Section 67 (a) or (c) of the Code of Criminal Procedure. The amount of the security to be paid in such a case is to be between CZK 10,000 and 1,000,000 and it should be determined with regard to the person and financial situation of the accused, to the nature of the offence in question and also to the amount of the damage which he or she caused.

As of 1 January 1994, the relevant provisions have read as follows:

Section 67  [translation]

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

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

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, or

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

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.

Section 71 (3) provides that a person’s detention on remand shall not exceed two 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 achieving of the aim of the proceedings, the Court of Cassation 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 for a person’s detention on remand amounts to four years.

Pursuant to Section 73a (1) and (2), persons detained on remand under Section 67 (a) or (c) of the Code of Criminal Procedure may be released on bail. The minimum security should be CZK 10,000 and its actual amount is to be determined by the court with regard to the person and financial situation of the accused, to the nature of the offence in question and also to the amount of the damage which he or she caused.

COMPLAINTS

The applicant complains that that he could not be reasonably suspected of having committed an offence, that he was detained on remand for reasons which were erroneous and irrelevant, that his requests for release on bail were not granted and that his detention on remand lasted unreasonably long. He alleges a violation of Article 5 §§ 1 (c) and 3 of the Convention.

The applicant further complains under Article 6 §§ 1 and 3 (c) of the Convention that the criminal proceedings against him lasted unreasonably long and that he had to revoke the authority of a lawyer whose line of defence was not acceptable for the Czech authorities.

Finally, the applicant alleges a violation of Article 3 of the Convention in that he was detained on remand despite the state of his health and that he was not provided with adequate health care.

PROCEDURE

The application was introduced before the European Commission of Human Rights on 27 March 1996 and registered on 2 May 1996. The applicant alleged a violation of Articles 5 and 6 of the Convention.

On 3 December 1997 the Commission decided to communicate the application to the respondent Government.  The Commission requested the parties to answer specific questions under Articles 5 § 3, 6 § 1 and former Article 26 of the Convention (now Article 35 § 1 after the entry into force of Protocol No. 11 to the Convention).

The Government’s written observations were submitted on 18 February 1998. The applicant’s lawyer replied on 6 April 1998. On 19 April 1998 the applicant revoked the authority of the lawyer representing him until then. On 29 April 1998, after an extension of the time-limit fixed for this purpose, the applicant submitted new observations in which he alleged a violation of Article 3, Article 5 §§ 1 (c) and 3 and Article 6 §§ 1 and 3 (c) of the Convention. On 12 August 1998 the Government submitted supplementary observations in reply.

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 that he could not be reasonably suspected of having committed an offence and that he was detained on remand for reasons which were erroneous and irrelevant.  He alleges a violation of Article 5 § 1 (c) of the Convention.  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:

a.  the lawful detention of a person after conviction by a competent court;

...

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 Government contend that the final decision in the applicant’s case was delivered by the Constitutional Court on 25 January 1995 and conclude that the applicant failed to introduce his application within the six months’ time-limit set out in Article 35 § 1 of the Convention.

The applicant disagrees.

The Court notes that, in respect of this part of the application, the applicant has only respected the six months’ time-limit set out in Article 35 § 1 of the Convention as regards the decisions on his detention on remand which are covered by his second constitutional complaint and the related Constitutional Court decision delivered on 15 October 1996.

In the above constitutional complaint the applicant challenged the decisions delivered by the Court of Cassation and the Supreme Court on 12 February and 7 March 1996 respectively, concerning an extension of his detention on remand until 30 June 1996.

These decisions were delivered after the City Court had convicted the applicant, on 16 January 1996, of an offence under the relevant provisions of the Criminal Code. Accordingly, during the period under consideration the applicant was detained, for the purposes of the Convention, “after conviction by a competent court” within the meaning of Article 5 § 1 (a) notwithstanding that under domestic law he continued being detained on remand (see the B. v. Austria judgment of 28 March 1990, Series A no. 175, pp. 14-16, §§ 35-39).  The Court has no evidence before it to indicate that this detention was not “in accordance with a procedure prescribed by law” or that it was otherwise not “lawful” within the meaning of Article 5 § 1 (a) of the Convention.

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).

In these circumstances, the Court considers that the applicant’s detention during the relevant period was compatible with his rights under Article 5 § 1 of the Convention.

It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.

2. The applicant further complains that his detention on remand lasted unreasonably long and that his requests for release on bail were not granted. He alleges a violation of 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 first submit that the applicant failed to respect the six months’ time-limit laid down in Article 35 § 1 of the Convention. In particular, they consider that the applicant set out for the first time the object of his application in his submission of 27 March 1996, i.e. more than six months after the Constitutional Court had delivered, on 25 January 1995, its decision on his first constitutional complaint.

The applicant contends that he continued being detained on remand and that the criminal proceedings against him were still pending after the delivery of the Constitutional Court’s decision of 25 January 1995.  In his view, the aforesaid decision cannot, therefore, be considered as “final” for the purposes of Article 35 § 1 of the Convention.

The Court first notes that the applicant’s complaints in question are not directed against a particular decision as such or against any other specific event. They rather concern the length and justification of a continuing situation, namely that of his detention on remand.  When examining this issue, the Court must take into account the development of the proceedings as a whole and not only isolated factors which might have contributed to the overall length complained of.

Furthermore, the applicant continued being detained on remand after he had introduced his application before the Commission. On 15 October 1996, i.e. after the application had been registered and while it was pending before the Commission, the Constitutional Court delivered a second decision on the issues under consideration. The applicant submitted a copy of this decision to the Commission on 13 January 1997, i.e. less than six months after its delivery.

Having regard to these facts, the Court considers that the Government’s objection relating to the applicant’s failure to comply with the six months’ time-limit cannot be accepted (see also, mutatis mutandis , the Neumeister v. Austria judgment of 27 June 1968, Series A no. 8, p. 38, § 7).

As regards the merits of the complaint about the length of the applicant’s detention, the Government maintain that the Czech authorities took into account all the particular circumstances of the applicant’s case and that the reasons invoked in their above decisions are sufficient and relevant.

As to the applicant’s complaint about the refusal to release him on bail, the Government submit, with reference to the particular circumstances of the case, that the refusal to accept the security offered by the applicant was compatible with the requirements of Article 5 § 3 of the Convention.

Finally, the Government point out that the detention did not exceed the maximum period permissible under Section 71 (4) of the Code of Criminal Procedure and maintain that the applicant’s right to trial within a reasonable time as guaranteed by Article 5 § 3 was respected.

The applicant contends that the domestic courts failed to establish any sufficient grounds reasonably permitting a suspicion of him having committed an offence. In his view, the Czech courts disregarded the relevant provisions of the international law on cheques which form a part of the Czech legal order and which were decisive for determining whether or not his acts constituted an offence.

The applicant further submits that he lived in Prague together with his wife, a Czech national, and that he made substantial investments in the Czech Republic.  He considers that the mere reference to his German nationality did not permit the conclusion that there was a risk of his absconding. He further considers as unsubstantiated the Czech courts’ reasoning according to which he could commit further offences in case of his release.

In the applicant’s view, the way in which the City Court determined the security which it showed willingness to accept and the dismissal of the proposals submitted by him in this respect were incompatible with Article 5 § 3 of the Convention.

Finally, the applicant maintains that the Czech courts did not act with due diligence when dealing with his case. In particular, he submits that his case was not complex, that the indictment was lodged almost six months after he had been remanded in custody, and that the City Court held the first hearing only after a further eight months had elapsed.

In accordance with its relevant case-law (see the B. v. Austria judgment cited above,  pp. 14-16, §§ 35-39), the Court may examine under Article 5 § 3 the length of the applicant’s detention between 23 April 1993 and 10 January 1995, i.e. from the moment when the applicant was remanded in custody in the context of the criminal proceedings brought against him in the Czech Republic until the delivery of the first City Court’s judgment, and also the period between 15 March 1995 and 16 January 1996, i.e. from the moment when the Court of Cassation quashed the first judgment delivered by the City Court until the latter delivered its second judgment. Accordingly, the detention to be taken into consideration lasted two years, six months and eighteen days.

Having examined the above issues the Court finds that they raise 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.

3. The applicant further complains that the criminal proceedings against him lasted unreasonably long and that he had to revoke the authority of a lawyer whose line of defence was not acceptable for the Czech authorities.  He alleges a violation of Article 6 §§ 1 and 3 (c) of the Convention which provides, so far as relevant, as follows:

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

3. Everyone charged with a criminal offence has the following minimum rights:

...

c. to defend himself in person or through legal assistance of his own choosing...”

a) To the extent that the applicant complains about the length of the proceedings leading to his conviction, the Government first object that the applicant introduced this complaint more than six months after the final decision in his case had been delivered by the Constitutional Court on 25 January 1995.

The applicant disagrees.

The Court notes that, when dealing with the second constitutional complaint introduced by the applicant, the Constitutional Court apparently also examined the question of the length of the criminal proceedings against the applicant since in the decision of 15 October 1996 it expressly found, inter alia , that the applicant’s constitutional right to have his case tried without unjustified delays as guaranteed by Article 38 (2) of the Charter of Fundamental Rights and Freedoms had been respected at all stages of the criminal proceedings against the applicant. This decision was rendered after the application had been lodged with the Commission.

In these circumstances, the Court considers, for similar reasons as are set out in point 2 above, that the Government’s objection cannot be accepted.

As to the merits of the complaint, the Government maintain that the applicant’s case was complex, that the applicant contributed to the length of the proceedings at first instance by exercising his rights of defence, and that there were no undue delays on the part of the Czech authorities.

The applicant contends that his case was not complex and points out, in particular, that the way in which his case was dealt with at first instance resulted in undue delays in the proceedings. In his view, the fact that he had recourse to the means of defence available to him with in order to eliminate the shortcomings in the proceedings cannot be held against him when considering the length of the proceedings.

The Court first notes that the criminal proceedings against the applicant were brought on 14 April 1993, when he was accused of fraud, and ended on 31 July 1996, when the Court of Cassation delivered the final judgment in this respect.  Accordingly, the period to be taken into consideration lasted three years, three months and seventeen days.

The Court considers, in the light of the criteria established in its case-law on the question of “reasonable time” (the complexity of the case, the applicant’s conduct and that of the competent authorities), and having regard to all the information in its possession, that an examination of the merits of this complaint is required.             

b) As to the applicant’s complaint under Article 6 § 3 (c) of the Convention, the Court notes that the applicant failed to raise it in the proceedings before the Constitutional Court.  He has not, therefore, complied with the requirement as to the exhaustion of domestic remedies laid down in Article 35 § 1 of the Convention. It follows that this part of the application must be rejected under Article 35 § 4 of the Convention.

4. Finally, the applicant alleges a violation of Article 3 of the Convention in that he was detained on remand despite the state of his health and that he was not provided with adequate health care.

Even assuming that the applicant has complied with the formal requirements set out in  Article 35 § 1 of the Convention, the Court finds that this complaint is wholly unsubstantiated and, therefore, does not disclose any appearance of a violation of the rights and freedoms set out in the Convention and its Protocols.

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 complaints 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, and under Article 6 § 1 of the Convention about the length of the criminal proceedings;

DECLARES INADMISSIBLE the remainder of the application.

S. Dollé J.-P. Costa

Registrar President