THIRD SECTION

DECISION

Application no . 23146/09 Mariá n NEŠTINA against Slovakia

The European Court of Human Rights (Third Section), sitting on 16 October 2012 as a Committee composed of:

Alvina Gyulumyan , President, Ján Šikuta , Nona Tsotsoria , judges, and Marialena Tsirli , Deputy Section Registrar ,

Having regard to the above application lodged on 27 April 2009,

Having regard to the observations submitted by the respondent Government,

Having deliberated, decides as follows:

THE FACTS

1 . The applicant, Mr Mariá n Neština , is a Slovak national, who was born in 1980 and lives in Gáň . He was repres ented before the Court by Mr D. Divko , a lawyer practising in Považská Bystrica .

2. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková .

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

A. Trial

3. On 4 and 27 January 2006 the applicant was charged with two separate counts of robbery and burglary. Both charges were joined on 3 March 2006 into a single set of proceedings. The applicant was detained and remanded on those charges.

4. On 2 October and 9 November 2006 the applicant complained to the Public Prosecution Service (“the PPS”) in writing that he had been unable to obtain access to the investigation file. According to the applicant, those complaints went unanswered. According to the Government, the applicant ’ s submissions resulted in an instruction to the investigator to ensure respect for the applicant ’ s procedural rights, including that of access to the investigation file.

5. In the meantime, on 3 October 2006 the PPS had invited the applicant to enter into a plea bargain ( dohoda o vine a treste ) within the meaning of Article 232 of the Code of Criminal Procedure (CCP), pursuant to which he would confess in return for a negotiated sentence. The parties eventually failed to agree on terms for the plea bargain (see below). Should agreement have been reached, the plea bargain would have been submitted to a court for approval instead of an indictment. It would have allowed for a sentence below the lower end of the ordinary penalty scale to be imposed.

6. On 8 November 2006 the investigator concluded the investigation. Under applicable law, at this procedural stage, the applicant should have been allowed to inspect the investigation file. According to the applicant, that did not happen. According to the Government, the applicant and his lawyer were duly invited to a conference for the purpose of inspecting the investigation file and submitting applications for the taking of further evidence. Such a conference was then held with the participation of the applicant but not his lawyer. The applicant declared that he did not wish to adduce any further evidence. At the same time, he refused to sign the prescribed record of inspection of the investigation file.

7. On 21 November 2006 the PPS indicted the applicant to stand trial in the Galanta District Court ( Okresný súd ) on the charges mentioned above.

8. On 6 December 2006 the applicant made submissions to the District Court adducing oral evidence.

9. On 12 December 2006 the applicant petitioned the District Court in writing that he be allowed to examine the investigation file. According to the applicant, his petition went unanswered.

10. On 20 December 2006 the District Court was to hold a conference with a view to making an initial assessment of the indictment ( predbežné prejednanie obžaloby ). Before it started, however, the conference was adjourned until 10 January 2007 at the request of the applicant and his lawyer, in order for the defence to explore the possibility of negotiating a plea bargain with the PPS under Article 232 of the CCP. No complaint was made concerning access to the file.

11. On 10 January 2007 the District Court held the conference with a view to making an initial assessment of the indictment. The applicant accepted liability for the robbery but denied the charge of burglary. The District Court accordingly ordered a hearing of the indictment ( hlavné pojednávanie ) on 31 January 2007.

12. At the hearing held on 31 January 2007, the applicant confessed to the robbery but again denied the burglary. He stated that he was prepared to enter into a plea bargain under Article 232 of the CCP. However, without giving any reason, the PPS ruled out such an arrangement. Following the hearing, on the same day, the District Court found the applicant guilty of the former charge and acquitted him of the latter. It found that there was not enough evidence that the burglary had actually been committed by the applicant. At the same time, the District Court sentenced the applicant to seven years in prison. This sentence was within the ordinary penalty scale, at its lower end.

13. The applicant appealed against the sentence, arguing that all conditions had been fulfilled for a plea bargain to be made under Article 232 of the CCP, which would have allowed for a far lighter sentence, and that the only obstacle to such an arrangement had been the unfounded accusation of burglary.

14. On 12 April 2007 the Trnava Regional Court ( Krajský súd ) dismissed the appeal. It observed, inter alia , that neither at the preliminary conference on 10 January 2007 nor at the hearing on 31 January 2007 had the parties been in a position to enter into a plea bargain under Article 232 of the CCP and that the sentence imposed by the District Court had been lawful and justified.

B. Constitutional complaint

15. On 13 June 2007 the applicant lodged a complaint under Article 127 of the Constitution with the Constitutional Court ( Ústavný súd ). He contended that at the pre-trial stage of the proceedings he had been denied access to the investigation file in breach of his defence rights. His complaints to that effect had been ignored by both the PPS and the District Court and the shortcoming had not been remedied at the trial stage. As a result, the applicant had been deprived of the possibility of receiving a lighter sentence through the use of a plea bargain under Article 232 of the CCP. In particular, his defence rights had been curtailed as regards the charge of burglary. Had he been able to exercise all of his defence rights, the charge of burglary ought to have been dropped at the pre-trial stage of the proceedings and there would have been no obstacle to achieving a plea bargain under Article 232 of the CCP as regards the charge of robbery.

16. On 27 November 2008 the Constitutional Court declared the applicant ’ s complaint inadmissible. It acknowledged that access to an investigation file is an important component of the rights of the defence and of a fair trial. It also acknowledged that the District Court should have reacted to the applicant ’ s request for access to the investigation file. However, it held that this aspect of the case could not be considered in isolation and had to be assessed from the point of view of its impact on the applicant ’ s sentence. For that matter, it was clear that the PPS had opposed the possibility of reaching a plea bargain under Article 232 of the CCP. There had been no legal entitlement on the part of the applicant to reach such an agreement and there was not enough evidence to show that it would have been reached with a sentence below the ordinary penalty scale. Therefore, although an error might have been committed at the pre-trial stage of the proceedings, it had had no impact on the outcome of the proceedings and the relevant part of the applicant ’ s complaint was manifestly ill-founded.

17. Lastly, in so far as the applicant ’ s constitutional complaint was directed against the PPS, it was rejected as belated.

C. Appeal on points of law

18. In parallel to his constitutional complaint, the applicant also challenged his conviction and sentence by way of an appeal on points of law ( dovolanie ). It was declared inadmissible by the Supreme Court ( Najvyšší súd ) on 6 February 2008 on account of procedural shortcomings.

COMPLAINTS

19. Relying, in substance, on Article 6 § 3 (b), in conjunction with Article 6 § 1 of the Convention, the applicant complained that he had been denied access to the investigation file, which had effectively resulted in a curtailment of his chances of making a plea bargain with the prosecution under Article 232 of the CCP and receiving a lighter sentence.

THE LAW

20. The applicant complained that his trial had been unfair on account of his lack of access to the case file. In substance, he relied on the provisions of Article 6 §§ 1 and 3 (b) of the Convention, the relevant parts of which provide:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...

...

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

...

(b) to have adequate time and facilities for the preparation of his defence;

...”

21. The Government argued, primarily, that the applicant had failed to exhaust domestic remedies as required under Article 35 § 1 of the Convention, in that he had failed to lodge and pursue his appeal on points of law in accordance with the applicable procedural rules and in so far as his constitutional complaint had concerned the PPS, it had been belated.

22. The Government also submitted that despite having been duly invited, the applicant ’ s lawyer had failed to take part in the conference on 8 November 2006 at which the investigation file had been made available for inspection (see paragraph 6 above) and neither he nor the applicant had requested that the conference be rescheduled. Furthermore, the Government submitted that the applicant himself had taken part in that conference; had had access to the investigation file; and had not adduced any further evidence. Similarly, it had been open to the applicant on several subsequent occasions before the trial court to seek access to the investigation file but he had failed to do so. Moreover, the Government submitted that it was obvious from the applicant ’ s submissions of 6 December 2006 (see paragraph 8 above) adducing oral evidence that he had in fact had knowledge of the contents of the investigation file. They also submitted that it was not true that the applicant ’ s complaints to the PPS had gone unanswered (see paragraph 4 above). In conclusion, in view of these factual clarifications the Government considered that the application should be declared manifestly ill founded.

23. On 31 January 2012 the Registry informed the applicant that the period allowed for submission of his observations on the admissibility and merits of the application had expired, and that neither any submissions nor a request for an extension of time had been received. Reference was also made to the provisions of Article 37 § 1 (a) of the Convention.

24. On 13 February 2012 the applicant ’ s lawyer made a submission, from the content of which it may be understood that the applicant wished to maintain the application and to refer to the statements and evidence previously submitted. However, no observations in reply to those of the Government were presented.

25. The Court observes that the main complaint in the present application is that the applicant was denied access to the investigation file contrary to his rights under Article 6 of the Convention. The factual submissions of the Government, however, indicate that the basis for this complaint is not, in fact, accurate. In the absence of any counter-argument on the part of the applicant, the Court concludes that the application is unsubstantiated and as such manifestly ill founded. It must accordingly be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court unanimously

Declares the application inadmissible.

Marialena Tsirli Alvina Gyulumyan Deputy Registrar President