THIRD SECTION

CASE OF ÄŒAÄŒKO v. SLOVAKIA

( Application no. 49905/08 )

JUDGMENT

STRASBOURG

22 July 2014

FINAL

15/12/2014

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Čačko v. Slovakia ,

The European Court of Human Rights ( Third Section ), sitting as a Chamber composed of:

Josep Casadevall, President, Alvina Gyulumyan, Ján Šikuta, Dragoljub Popović, Luis López Guerra, Johannes Silvis, Valeriu Griţco, judges, and Marialena Tsirli , Deputy Section Registrar ,

Having deliberated in private on 1 July 2014 ,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1 . The case originated in an application (no. 49905/08 ) against the Slovak Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Slovak national, Mr Róbert Čačko (“the applicant”), on 10 October 2008 .

2 . The applicant, who had been granted legal aid, was represented by Mr M. Kuzma , a lawyer practising in Ko š ice . The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Piro šíková.

3 . The applicant alleged, in particular, that there had been a breach of Article s 3 and 13 of the Convention in the context of imposition of an irreducible life sentence on him .

4 . On 29 March 2011 the application was communicated to the Gove rnment.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

5 . The applicant was born in 1970 . He is serving a life sentence in the Leopoldov prison .

A . The applicant ’ s arrest, detention and prosecution at the pre-trial stage

6 . On 7 September 2005, at about 10 p.m ., the applicant was taken to a police station. In the course of the night he was questioned about the violent death of his stepfather. He was tested for alcohol in his blood and biological samples were taken from him. A police investigator accused the applicant of murder. The applicant was suspected of having stabbed his stepfather fourteen times on 7 September 2005, as a result of which the latter had died. At the request of the public prosecutor the applicant was formally arrested at 12.30 a.m. on 8 September 2005.

7 . By a decision of 12 September 2005 a judge of the Ko Å¡ice I District Court remanded the applicant in custody with effect from 8 September 2005. On 28 September 2005 the Ko Å¡ice Re gional Court dismissed a complaint by the applicant against that decision.

8 . In the context of the investigation the applicant, repeatedly and in the presence of his lawyer, admitted having stabbed his stepfather and described the circumstances. He later requested that his action be qualified as causing bodily harm as he had not intended to kill the victim.

9 . On 5 December 2005 the public prosecutor indicted the applicant before the Ko Å¡ ice Regional Court.

B . Trial and conviction of the applicant

10 . On 13 July 2007 the Ko šice Regional Court convicted the applicant of murder. With reference to Article 219 § 2, Article 29 §§ 1 and 3, Article 30 § 1(c), Article 43 § 1 and Article 35 § 3 of the Criminal Code of 1961, the first-instance court sentenced the applicant to life imprisonment without the possibility of release on parole.

11 . On the basis of statements by twenty-two witnesses, the opinions of five medical experts and a forensic institute, and the documentary evidence available, the court established that the applicant had deliberately stabbed his stepfather fourteen times with a knife with the intention of killing him. That action had been prompted by the applicant ’ s aggressive behaviour while in a state of intoxication and his abnormally antisocial personality.

12 . The Regional Court noted that at the pre-trial stage the applicant had admitted, several times and in the presence of his lawyer, the offence imputed to him and had described the relevant facts in detail. However, at the main hearing he denied having killed the victim. The court held, for the reasons which were set out in detail in its judgment, that the evidence available clearly indicated that he had committed the offence. He had done so in a particularly contemptible manner as he had attacked the victim unexpectedly and had taken advantage of the latter ’ s incapacity to defend himself as a result of heavy intoxication.

13 . According to the expert opinion on which the court relied, the applicant was pathologically aggressive. He lacked any self-control and there were practically no prospects of his re-socialisation at that time. The probability that he would re-offend in the future was extremely high.

14 . The applicant had been convicted of different offences five times previously. Those convictions included a rape and a murder. He had committed the second murder only several months after his conditional release from prison, where he had been s erving a sentence imposed for a similar offence. The Regional Court concluded that the statutory conditions for imposing a life sentence without the right to be released on parole were therefore met.

15 . At the same time, the Regional Court quashed the six-month prison sentence which the Michalovce District Court had imposed on the applicant on 24 October 2005, as well as all consecutive decisions concerning that punishment.

16 . The applicant appealed. He submitted that he had made the initial statements admitting the offence while in a state of a shock and fatigue resulting from his intoxication, and that the police had exposed him to psychological pressure prior to the interrogation. There existed no direct evidence proving that he had committed the offence. The applicant further argued that the first-instance court had not established all the relevant facts and had committed errors of law. The evidence obtained did not suffice for his conviction. No reconstruction of the crime had been carried out, the reference in the expert opinion as to an injury to the victim ’ s hand and the applicant ’ s social and psychological profile were confusing. The applicant further argued that the Regional Court had failed to hear the children who had found the blood-stained knife.

17 . On 27 February 2008 the Supreme Court quashed the first-instance judgment to the extent that it concerned the sentence imposed. It then imposed a term of life imprisonment on the applicant and held, with reference to Article 30 § 1(d) of the Criminal Code, that the possibility of his release on parole was to be excluded. It did so because the Regional Court had incorrectly referred, in the operative part of its judgment, to the subparagraph of Article 30 § 1 of the Criminal Code which allowed for such a penalty.

18 . In all other respects the Supreme Court endorsed the conclusions reached at first instance. It considered the applicant ’ s arguments irrelevant. In particular, in September and October 2005 the applicant had admitted three times, in the presence of his lawyer, to hav e committed the offence. In that context he had indicated manifold details which could only have been known to the perpetrator, for example that he had taken the knife from the flat where he and his mother lived, and where he had hidden it after the incident. The applicant had also described the T-shirt he had worn and such a T-shirt had been found hidden in the applicant ’ s flat stained with the victim ’ s blood. That blood could not have stemmed from an injury on the victim ’ s hand, as claimed by the applicant, as the experts had excluded such an injury. The applicant had also indicated a motive for his actions.

19 . The Supreme Court held that the Regional Court had gathered all relevant evidence with a view to establishing the facts of the case and had correctly applied the law when convicting the applicant. The statutory prerequisites for imposing a life sentence without the possibility of release on parole were met.

20 . The appeal court also quashed the six-month prison sentence which the Michalovce District Court had imposed on the applicant on 24 October 2005, as well as all relevant consecutive decisions relating to that punishment.

21 . The applicant lodged an appeal on points of law. As in the appeal proceedings, he challenged the establishment of the facts and the conclusions reached in the first-instance and appeal proceedings.

22 . On 2 March 2009 the Supreme Court (cassation chamber) dismissed the applicant ’ s appeal on points of law. The decision stated that in proceedings in an appeal on points of law courts could only examine errors of law allegedly committed at lower levels of jurisdiction. However, no such arguments had been put forward by the applicant. The interrogations at the pre-trial stage in the course of which the applicant had admitted the offence had been carried out in accordance with the Code of Criminal Procedure and in the presence of his lawyer. The Regional Court had therefore been entitled to read out those statements at the main hearing before it.

23 . As to the sentence imposed, the applicant had not raised any specific arguments in his appeal on points of law. In any event, the lower courts had correctly concluded that, given his earlier convictions, the three-strike rule set out in Article 43 § 1 of the Criminal Code was applicable to his case. Similarly, the lower courts had correctly exercised their discretionary power under Article 30 § 1(d) of the Criminal Code when excluding the possibility of his release on parole.

C . Complaint to the Constitutional Court

24 . On 7 May 2009 the applicant submitted a complaint to the Constitutional Court. He indicated that it was directed against the above ‑ mentioned ordinary courts at three levels which had dealt with his case, and at the prosecuting authorities involved. In the summary of his complaint the applicant indicated that it concerned his conviction and the sentence imposed. He alleged a breach of his rights under the Constitution and the Convention. He complained, inter alia , that he had been detained unlawfully and that the criminal proceedings against him had been flawed. He explicitly alleged a breach of Article 3, Article 5 § 1(a) and (c) and § 3, Article 6 §§ 1, 2 and 3(d), and Articles 8, 13 and 14 of the Convention, as well as Article 2 § 1 of Protocol No. 7.

25 . The applicant joined to his appeal the three ordinary courts ’ decisions in his case and requested that the Constitutional Court quash them. He indicated that he was indigent and asked the Constitutional Court to appoint a lawyer to represent him in the constitutional proceedings.

26 . In a letter dated 21 September 2009 a Constitutional Court judge informed the applicant that in his complaint he had not specified an outcome he sought to obtain from the Constitutional Court which would be enforceable given the powers of that court. As the Constitutional Court could not deal with such a submission, it had to be set aside pursuant to section 23(a) of the Constitutional Court Act 1993.

D . Other facts referred to by the applicant

27 . On 21 December 2005 the Košice I District Court ordered that the applicant be released from pre-trial detention and start serving a six-month prison term which had been imposed by a penal order issued by the Michalovce District Court on 24 October 2005 in a different set of proceedings.

28 . In a decision of 14 July 2006 the Ko šice Regional Court ordered that the applicant be released from pre-trial detention and start serving a thirty-seven month prison term which had been imposed in a different set of proceedings by the Bansk á Bystrica District Court .

29 . A decision issued by a higher judicial officer of the Ko šice Regional Court on 31 March 2008 stated that the period of the applicant ’ s detention from 8 September 2005 to 14 July 2006 was to be incorporated into the term of life imprisonment imposed on him. The applicant was further ordered to reimburse to the State the costs of his detention during the above period, pursuant to Article 555 § 1 (a) of the Code of Criminal Procedure of 2005. On 12 May 2008 the presiding judge of the Regional Court dismissed the applicant ’ s complaint against that decision. On that basis the Ko šice prison administration ordered the applicant, on 4 June 2008, to pay the equivalent of approximately 800 euros (EUR) in respect of the 310 days he had spent in pre-trial detention.

30 . In the course of the criminal proceedings, newspapers published several articles about the case in which they i mplied that the applicant was a brutal offender. The applicant considered that those articles were based on information which the media had obtained from the prosecuting authorities dealing with his case.

31 . On 1 4 November 2013 the applicant filed a fresh appeal on points of law in respect of the proceedings leading to his conviction. The proceedings are pending.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A . The Constitution

32 . Article 102 § 1(j) entitles the President of Slovakia to grant pardon s and commute sentences imposed by courts in criminal proceedings and to expunge convictions by means of an individual pardon or an amnesty.

33 . Pursuant to Article 102 § 2, a President ’ s decision to grant a pardon is valid subject to its signature by the Prime Minister or a minister authori s ed by the latter.

B . The Criminal Code of 1961

34 . The following provisions of the Criminal Code of 1961 (Law no. 140/1961, as in force until 31 December 2005) are relevant in the present case.

35 . Article 29 § 1 governs exceptio nal punishments. They include a prison term ranging from fifteen to twenty-five years and life imprisonment. An exceptional sentence can be imposed only for the offences set out either in the general part (Article 43) or the special part of the Criminal Code.

36 . Paragraph 3 of Article 29 allows for a term of life imprisonment to be imposed exclusively in the cases enumer ated in Article 43 § 1, or on a person convicted of a murder where (a) such an offence is particularly dangerous for society in view of the particularly contemptible (i) manner in which it was committed, (ii) motive for the offence, or (iii) its consequences; (b) it is required with a view to ensuring the effective protection of society; and (c) there is no prospect of reforming the offender by means of a prison term of between fifteen and twenty-five years.

37 . Article 30 § 1(d) entitles a court which imposes a term of life imprisonment to prohibit the convicted person from being released on parole where such a person has earlier been convicted of an offence listed in Article 43.

38 . Pursuant to Article 31 § 1, when determining the sentence a court has to consider to what extent the offence is dangerous for society, and the possibility of rehabilitation of the accused and his or her situation.

39 . Pursuant to Article 43 § 1, where a court convicts a perpetrator of, inter alia , murder or rape, and where such a person has earlier been convicted and punished twice for such offences and served at least a part of the sentence imposed, it should impose a sentence of life imprisonment provided that the conditions set out in Articl e 29 § 3 are met. Otherwise, a twenty-five year prison term is to be imposed on the perpetrator unless there are circumstances warranting special consideration. In any event, a prison term of less than twenty years is not permissible.

40 . Article 62 § 3 provides that a person sentenced to an exceptional prison term pursuant to Article 43 § 1 cannot be conditionally released.

C. The Criminal Code of 2005 with amendments in force since 1 January 2010 and the Supreme Court ’ s practice

41 . The Criminal Code of 2005 (Law no. 300/2005) entered into force on 1 January 2006.

42 . Article 47 § 2 provides for the imposition of a whole life sentence on a nyone convicted of committing murder, bodily injury or one of the other serious offence s listed therein where the offender ha s already been sentenced to a prison term twice for any such offence.

44 . Pursuant to Article 67 § 2, the conditional release of a whole-life prisoner may tak e place at the earliest after twenty-five years of the prison term have been served .

45 . Until 31 December 2009 Article 67 § 3 excluded the conditional release of a person on whom a whole-life sentence had been imposed under Article 47 § 2 .

As o f 1 January 2010 , an amendment to this provision h as me a n t that the prohibition on conditional release now applies exclusively to prisoners who have been given whole-life sentence s repeatedly.

46 . Under Article 68, a court which dec ides to conditionally release a prisoner must set a probation period of between one and seven years. It may also impose probationary supervision lasting up to three years and appropriate restrictions on the person conditionally released . Where that person has beha ved in an appropriate manner during the probation period and has complied with t he obligations and restrictions imposed on him or her , the court must issue a finding confirming such compliance . It will then be considered that the sentence imposed was fully serv ed on the date of the conditional release.

47 . Article 437 contains transitional provisi ons. In particular, its section 2 provides that the Criminal Code of 2005 is to be applied when determining whether the requirements for the conditional release of a convicted person have been met in respect of sentences which were imposed for an offence committed under the Criminal Code of 1961 in the period after the entry into force of the Criminal Code of 2005.

48 . In decision file no. 3 Tdo 29/2012 of 27 June 2012 the Supreme Court confirmed , in respect of a person who had been convicted in 2010 of theft under the Criminal Code of 1961 , that the provisions of the Criminal Code of 2005 were applicable when deciding on that person ’ s conditional release.

D . T he Code of Criminal Procedure of 2005

49 . The Code of Criminal Procedure of 2005 (Law no. 301/2005) entered into force on 1 January 2006.

50 . Article 372 § 2 provides that a person whose appeal on points of law was dismissed is not entitled to file another appeal on points of law in the same matter.

51 . Pursuant to Article 472, the President of Slovakia may grant an individual pardon in accordance with the right which the Constitution confers on him or her.

52 . Pursuant to Article 473 § 1, the Minister of Justice prepares relevant information and documents on the basis of which the President takes a decision in proceedings concerning an individual pardon. In the course of such proceedings the President may order that the serving of a sentence be delayed or stayed (sub-paragraph 2 of Article 473).

53 . Article 475 allows for a conditional pardon. The fulfilment of the conditions set and the rehabilitation of the convicted person is to be supervised by the court which decided at first instance. A decision as to whether the person concerned has complied with the conditions set at the time of the pardon is to be taken by the President of Slovakia on the basis of information provided by the Minister of Justice.

54 . Pursuant to Article 555 § 1, an accused person who has been found guilty by a decision with final effect is obliged to pay to the State:

(a) the costs of detention;

(b) the costs involved in the serving of the prison term;

(c) the costs and fees of counsel appointed to assist the accused, unless he or she is entitled to free legal assistance; and

(d) a lump sum in respect of other costs borne by the State.

E . T he Constitutional Court Act 1993

55 . Section 20(1) provides that a request for proceedings to be instituted before the Constitutional Court must indicate, inter alia , the decision which the plaintiff seeks to obtain, specify the reasons for the request and adduce evidence in support.

56 . Pursuant to Section 20(2), a person who wishes to bring proceedings before the Constitutional Court has to submit a mandate in favour of the lawyer representing him or her in the proceedings unless the 1993 Act provides otherwise.

57 . Pursuant to section 23(a), where a judge of the Constitutional Court establishes from the contents of a submission that it is not a motion for proceedings to be instituted, he or she sets such submission aside. The author of the submission is to be informed thereof in writing.

58 . Pursuant to section 50(1), a complaint under Article 127 of the Constitution must indicate, in addition to the information mentioned in section 20, the fundamental rights or freedoms the violation of whic h a plaintiff alleges, the final decisions or other interference at the origin of the alleged breach, and the authority against which it is directed.

59 . Section 53(3) provides that a complaint to the Constitutional Court can be lodged within two months of the date on which the decision in question becomes final and binding, or on which a measure is notified or notice of another interference with the plaintiff ’ s interests is given.

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION , BOTH TAKEN ALONE AND IN CONJUNCTION WITH ARTICLE 13

60 . The applicant complained that he had been sentenced to life imprisonment without the possibility of release on parole and that he was unable to obtain redress at domestic level . The Court decided to examine this part of the application under Article s 3 and 13 of the Convention, which provide:

Article 3

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

Article 13

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

61 . The Government conteste d that argument.

A. Admissibility

62 . The Government objected that the applicant had not exhausted domestic remedies as he had failed to file his constitutional complaint in accordance with the formal requirements.

63 . The applicant argued that the Constitutional Court had neither given him an opportunity to eliminate the shortcomings in his submission, nor considered his request for the appointment of a lawyer.

64 . As regards compliance by the applicant with the requirement under Article 35 § 1 of the Convention to exhaust domestic remedies, the Court reiterates that it must take realistic account, inter alia , of the personal circumstances of the applicant. It must examine whether, in all the circumstances of the case, the applicant did everything that could reasonably be expected of him or her to exhaust domestic remedies (see D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 116, ECHR 2007 ‑ IV).

65 . In the present case a constitutional judge set the applicant ’ s complaint of 7 May 2009 aside, finding that he had not specified in an appropriate manner the outcome he sought to obtain from the Constitutional Court. It is not the Court ’ s role to replace national authorities in assessing compliance with the requirements of domestic law in the context of using remedies available. It is nevertheless relevant that in his complaint the applicant, inter alia , invoked Article 3 of the Convention in connection with his conviction and the sentence imposed, and asked the Constitutional Court to quash the criminal courts ’ decisions in the proceedings leading to his conviction (see paragraphs 24-25 above).

66 . It is further relevant that legal representation in constitutional proceedings is mandatory and that i n his submission the applicant applied for the appointment of a lawyer with reference to his financial situation. It does not appear from the documents available that the Constitutional Court considered that request.

67 . Finally, the Constitutional Court informed the applicant that his submission had been set aside in a letter dated 21 September 2009. At that time the statutory two-month time-limit for lodging a constitutional complaint had lapsed, and the Constitutional Court did not allow additional time to the applicant for eliminating the shortcomings in his submission.

68 . Considering that the applicant did everything that could have been reasonably expected of him in the circumstances to exhaust domestic remedies, the Court cannot uphold the Government ’ s objection. It must therefore be dismissed.

69 . The Court further notes that th is part of the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B. Merits

1. Article 3 of the Convention

(a) The arguments of the parties

70 . The applicant argued that t he use of the power to grant pardon s or commute sentences was within the discretion of the President of Slovakia. In practice the applicant saw no prospect of obtaining a pardon or having his sentence commuted .

71 . The Government maintained that , as from 1 January 2010, the relevant provision s of the Criminal Code of 2005, namely Article 67 § 2 read in conjunction with Article 4 3 7 § 2 , allowed for the applicant ’ s conditional release. Furthermore, the p ossibility of petitioning for a presidential pardon rendered the applicant ’ s life sentence reviewable both de j ure and de facto . Its imposition had therefore not been contrary to Article 3.

(b) The Court ’ s assessment

( i ) Recapitulation of the relevant principles

72 . The applicable principles are set out in Vinter and Others v. the United Kingdom [GC], nos. 66069/09, 130/10 and 3896/10, § § 1 02 -122 , ECHR 2013 (extracts) , with further references . They may be summ aris ed as follows.

73 . I n the context of a whole- life sentence, Article 3 must be interpreted as requiring reducibility of the sentence, in the sense of a review which allows the domestic authorities to consider whether any changes in the life prisoner are so significant, and such progress towards rehabilitation has been made in the course of the sentence, as to mean that continued detention can no longer be justified on legitimate penological grounds.

74 . In view of the margin of appreciation which must be accorded to Contracting States in matters of criminal justice and sentencing , it is not the Court ’ s task to prescribe the form (executive or judicial) which that review should take or to determine when that review should take place. However, w here domestic law does not provide for the possibility of such a review, a whole life sentence will not measure up to the standards of Article 3 of the Convention.

75 . A whole life prisoner is entitled to know, at the outset of his sentence, what he must do to be considered for release and under what conditions, including when a review of his sentence will take place or may be sought. W h ere domestic law does not provide any mechanism or possibility for review of a whole life sentence, the incompatibility with Article 3 on this ground already arises at the moment of the imposition of the whole life sentence and not at a later stage of incarceration.

( ii ) Application of th e se principles to the present case

76 . The Court notes that in the present case the applicant was sentenced to life imprisonment without the possibility of release on parole , on the basis of Artic le 43 § 1 in conjunction with Article 29 § 3 of the Criminal Code of 1961. The c ourts involved examined th e relevant factors and explained in their decisions why a life sentence without the possibility of parole was justified (see paragraphs 12, 14, 18-19 and 23 above). The Court discerns no issue under Article 3 of the Convention as far as the imposition of that sentence is concerned (see also Vinter and Others , cited above, § 102 ) .

81 . In the light of the foregoing, the applicant ’ s life sentence cannot be said to constitute a breach of Article 3 of the Convention. Accordingly, the Court finds that there has been no violation of that provision.

2. Article 13 in conjunction with Article 3 of the Convention

82 . Given that national law and practice have afforded, since 1 January 2010, the possibility of a dedicated judicial review of the life sentence imposed on the applicant in compliance with the criteria established by its case-law , and also having regard to the reasons set out in paragraph 8 0 above , the Court finds that in the present case there has been no violation of Article 13 of the Convention in conjunction with Article 3.

II . OTHER ALLEGED VIOLATION S OF THE CONVENTION AND ITS PROTOCOLS

83 . The applicant complained that his rights had been breached in the context of his arrest and detention, that the criminal proceedings against him had been unfair , and that the judges involved had lacked impartiality. He also complained about the search of his flat during the investigation, about publication in the media of information about the case and himself , and that he had been unlawfully ordered to reimburse the costs of his detention for the period 21 December 2005 to 14 July 2006. He relied on Article 5 §§ 1 (a) and (c) and 3, Article 6 §§ 1, 2 and 3 (d), Articles 8, 13 and 14 of the Convention and Article 2 § 1 of Protocol No. 7.

84 . The Court has examined th e se complaint s but finds, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, that they do n ot disclose any appearance of a violation of the rights and freedoms set out in the Convention , or its Protocols. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

FOR THESE REASONS, THE COURT , UNANIMOUSLY,

1 . Declares the complaint s under Articles 3 and 13 of the Convention concerning the imposition of a life sentence on the applicant admissible and the remainder of the application inadmissible;

2 . Holds that there has been no violation of Article 3 of the Convention;

3 . Holds that there has been no violation of Article 13 in conjunction with Article 3 of the Convention .

Done in English, and notified in writing on 22 July 2014 , pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Marialena Tsirli Josep Casadevall Deputy Registrar President