Communicated on 26 June 2015

FIFTH SECTION

Application no. 44151/12 Robert TEMPEL against the Czech Republic lodged on 11 July 2012

STATEMENT OF FACTS

The applicant, Mr Robert Tempel , is a Czech national, who was born in 1973. He is currently serving his prison sentence in the Valdice Prison.

A. The circumstances of the case

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

1. Criminal proceedings

On 28 January 2003 the applicant was formally indicted by the Plzeň regional prosecutor for murdering two people on 20 August 2001 at a car park. On 25 April 2003 he was indicted also for robb ery and unlawfully possessi on of a weapon.

On 17 September 2004 a chamber of the Plzeň Regional Court found the applicant guilty of robbery and acquitted him of murder and unlawful possession of a weapon. It did not consider proven that the applicant had possessed the gun. Nor was it proven, according to the court, that it was the applicant who had murdered the two people. It observed there were two accounts of the events of 20 August 2001: one put forward by the applicant claiming it was L.V. – the key witness for the prosecution – who had murdered the people in connection with a drug trade and the other one put forward by L.V. claiming that the applicant had murdered them in order to obtain the car of one of the victims. The court did not find L.V. credible for significant contradictions in his testimony. For instance, L.V. claimed he had left Karlovy Vary at around 9 a . m . , but, according to mobile phone operator records, he was still in Karlovy Vary after 10 a . m. He also claimed that he had been with the applicant at a certain time, but the mobile phone records suggested they had been in different cities at that moment. A ballistic expert opinion established that one of the victims had been shot from behind, but L.V. had never mentioned that. The court also held that experts in forensic pathology had found the applicant ’ s description of the shooting more plausible and had disproved L.V. ’ s claims that the applicant had jumped on one of the victims ’ neck as well as the way the applicant had allegedly hit the victim with a lug wrench. Finally, the court noted that according to a psychological assessment of L.V., he very likely had increased tendencies to lie. It stressed that it could only find the applicant guilty based on credible evidence and well-established facts, not only a certain probability. The court concluded that since it was unable to find out for sure which of the accounts of the events was true, it was obliged to acquit the applicant.

The applicant appealed the conviction of robbery, while the prosecution appealed the acquittal.

On 1 December 2004 the Prague High Court quashed the judgment and remitted the case to the Plzeň Regional Court. In the appellate court ’ s view, the acquittal of murder and unlawful possession of a weapon was premature. As for the murder, the Plzeň Regional Court did not assess all the evidence, in particular the piece s supporting L.V. ’ s credibility. The appellate court found the assessment of L.V. ’ s credibility by the first-instance court to be done in a “destructive way” ( destruktivním způsobem ) .

On 1 February 2005 the Plzeň Regional Court found the applicant guilty of robbery . The court acquitted the applicant of murder and unlawful possession of a weapon, remaining absolutely convinced of L.V. ’ s lack of credibility. In addition to its concerns expressed in the previous judgment, the court also noted that L.V. alleged he had been fined for speeding at the relevant time, but the evidence disproved the claim. L.V. was also not able to explain why he had gone to a house of one of the victims the next day. In the court ’ s view, L.V. was changing his testimony during the proceedings depending on the evidence taken. The court concluded that it was proven that two people had been murdered, but not that it was the applicant who had murdered them.

The applicant appealed the conviction of robbery, while the prosecution appealed the acquittal.

On 27 April 2005 the Prague High Court upheld the conviction of robbery and the acquittal of unlawful possession of a weapon, but quashed the acquittal of murder and remitted the case to a different chamber of the Plzeň Regional Court. As for the unlawful possession of a weapon, the appellate court agreed with the Plzeň Regional Court that the standard of proof required for conviction had not been met. However, it did not share the same view on the charge of murder and again considered the acquittal premature at best. It criticized the Plzeň Regional Court for making the same errors again. It held that the first-instance court had not assessed all the evidence taken, in contravention of Article 2 § 6 of the Code of Criminal Procedure (hereinafter “CCP”). It considered that “the assessment [of L.V. ’ s credibility] was again done in a destructive way to [L.V. ’ s] disadvantage, despite the fact the High Court had already criticized the tendentiousness [of the first-instance court] in this regard”. It further noted that the assessment of evidence by the Plzeň Regional Court barely differed from its previous judgment, while stressing that the assessment of evidence was the exclusive right of the first-instance court. It maintained that it did not criticize the first-instance court for holding a different view on the assessment of evidence, but for not taking account of all the evidence and rather focusing only on the evidence which made L.V. ’ s testimony, in the first-instance court ’ s view, less credible. According to the appellate court, the first-instance court also did not pay enough attention to the applicant ’ s defence and his credibility. Relying on Article 262 of the CCP, the Prague High Court went on to order the case to be assigned to a different chamber of the Plzeň Regional Court. It reasoned this decision as follows:

“It is clear, from the above said, that not only the [ Plzeň ] Regional Court did not rectify the mistakes criticized by the High Court in its [first] quashing decision, but its chamber in the current composition took a one-sided stand favouring the accused, which it insisted on in its [second] decision. Apparently, the chamber is not able to disengage from the biased assessment of evidence, thus the High Court has strong doubts about its ability to decide the case objectively and fairly”.

The applicant lodged a constitutional appeal against the decision of the Prague High Court to assign the case to a different chamber of the Plzeň Regional Court, claiming his right to a lawful judge had been violated, as the conditions for application of Article 262 of the CCP had not been met.

On 15 September 2005 the Constitutional Court dismissed the applicant ’ s constitutional appeal as manifestly ill-founded. According to the Constitutional Court, the conditions for applying Article 262 of the CCP were met, since the appellate court found again the same deficiencies in the first-instance court ’ s judgment and had doubts about its ability to decide the case objectively.

On 18 May 2006 a different chamber of the Plzeň Regional Court acquitted the applicant of murder. The court d id not find L.V. ’ s testimony, as the only direct evidence, credible, since they were full of contradictions; they not only contradicted each other, but also other pieces of evidence, and the witness was not able to explain the contradictions. The court did not believe L.V. that he had reported the crime for fear of the applicant, as it found out they had kept meeting afterwards in a friendly manner. The mobile phone records also cast doubts on the time-line put forward by L.V. and his claim that he had been with the applicant when he called to find a garage for the car, since their mobile phones had been in different places at that time. Neither was it proven that L.V. had been fined for speeding by the police or tha t a police patrol had driven by when L.V. and the victims were waiting for the applicant , as alleged by the witness. The court also pointed out that several expert opinions substantially challenged some of L.V. ’ s claims, namely his account of the execution of the shooting and his claim that he had been sitting on the driver ’ s seat at that time. Furthermore, no print or biological evidence was found on the lug wrench, produced by L.V., which the applicant had allegedly used to beat one of the victims. The court also mentioned the fact that no gun had been found in the area indicated by L.V. as the place where the applicant had thrown it away. As for the motive, the court did not find convincing the version put forward by the prosecution and L.V. that the applicant had murdered the people in order to obtain their car. The court pointed out that no motivation was established for L.V. ’ s involvement in this scenario, yet he had even helped the applicant with the registration of the car. T wo witnesses testified they had been offered heroin by L.V. shortly after the murder, corrobating the applicant ’ s claim of a crime related to a drug trade. According to the court, the assessment of circumstantial evidence did not unambiguously point out to the applicant ’ s guilt and there are other possible explanations of the events. It came to the conclusion that it was not proven beyond a reasonable doubt that the crime had been committed by the applicant.

The prosecution appealed the judgment.

On 4 October 2006 the Prague High Court quashed the acquittal. At the outset, the appellate court noted that the appealed judgment was sufficiently reasoned, in compliance with Article 125 of the CCP, and that great attention had been paid to the assessment of evidence. However, the way the evidence had been assessed by the first-instance court was again found to violate Article 2 § 6 of the CCP and principles of formal logic. The appellate court held that the first-instance court had been unable to disengage itself from the one-sided stand to assess the evidence unequivocally in the applicant ’ s favour. The appellate court noted that the principle in dubio pro reo had its limits and did not mean that all doubts in assessing evidence had to be interpreted strictly in the accused ’ s favour. The appellate court pointed out that the first-instance court, relying on the mobile phone records, had found possible that L.V. had been nearby one of the victim ’ s house the day after the murder, although the records also showed that L.V. had been 160 km away five minutes before that and also during the rest of the day. The first-instance court did not clarify the obvious error on the part of the telecommunications operator . A s for the missing fine record, t he first-instance court did no t make an attempt to verify L.V. ’ s claim that he had found the traffic ticket at home later on and han ded it over to the p olice. The Prague High Court also observed that the fir st-instance court had relied on L.V. ’ s testimonies from the heari ngs before the previous chamber, which were however obtained through tendentiously conducted examinations . The court further noticed that L.V. had voluntarily reported the crime to the p olice, helped them to find the bodies and claimed from the start that the applicant was the murderer. Had L.V. been the murderer, it w ould have been illogical for him to go to the police. The appellate court found his claim that he had reported the crime six months after the murder because of his bad conscience convincing. Moreover, a letter , written by L.V. and handed over to his parents in case something should happen , showed that L.V. was afraid of the applicant . This letter had been disregarded by the first-instance court. The appellate court further disagreed with the first-instance court that the expert opinions disproved L.V ’ s account of the execution of the shooting, moreover had L.V. been shoot ing , he would have described the shooting accurately. The appellate court held that the contradictions in L.V. ’ s testimony involved only minor details, while he had remained consistent as to the basic facts, relevant for the decision. While stressing that assessment of evidence was, in principle, the exclusive right of the first-instance court , the a ppellate court considered that L.V. ’ s credibility had been again assessed in a “ destructive way ” . It held:

“The regional court again assessed the evidence one-sidedly, as it did not attach the proper importance to a number of pieces of evidence, in particular those which were to the accused ’ s disadvantage, downplayed them, or did not deal with them in the appropriate way, whereas it overrated and attached undue importance to the evidence, which in its opinion cast doubts on L.V. ’ s credibility.”

As for the applicant , the first-instance court should have paid attention to the fact that he had not initially commented on the murder and always waited for the results of the taking of evidence before making his statement. Moreover, the applicant attempted to establish a false alibi and had in fluenced a number of witnesses. The court further pointed to the psychological assessment of the applicant, which the first-instance court did not pay attention to, describing him as a dominant, confident person with aggressive tendencies casting doubts on the first-instance court ’ s conclusion that the applicant ’ s search for witnesses to testify was a sign of his feeling of helplessness. The appellate court attached great importance to the part of the expert opinion stating that intentional distortion of facts by the applicant could not be excluded, since he was aware of t he potentially high punishment. The appellate court further criticized the first-instance court for disregarding contradictions in the a pplicant ’ s sporadic statements and for attaching too great importance to the motive. It noted that the claim of a drug related crime had not been substantiated by the evidence – the witnesses making such statements were close to the applicant and the appellate court considered their testimonies untrustworthy a nd influenced by the applicant. The only possibly reason for the meeting at the car park was thus the car sale. The appellate court held that the first-instance court ’ s approach that it had to examine whether the prosecution ’ s claims were proven, not whether the accused ’ s defence was disproved, directly contradicted Article 2 § 6 of the CCP . The appellate court concluded that the assessment of evidence had not been objective, the first-instance court had attached too great importance to the evidence corrobating the applicant ’ s version, while even leaving aside, maybe intentionally, the evidence corrobating L.V ’ s account. Had the first-instance court followed the principles set out in Article 2 § 6 of the CCP, it could not have reached the factual conclusions which had resulted in the acquittal.

On 24 October 2006 L.V. was indicted of complicity in the murder.

On 6 March 2007 the Plzeň Regional Court acquitted the applicant of murder for the fourth time. It noted at the outset that the reasoning of the Prague High Court gave the impression that the appellate court would assess the evidence differently and reach a different conclusion on the applicant ’ s guilt. If t he Plzeň Regional Court were to follow these indications and decide the case in accordance with the Prague High Court ’ s view , it would violate Article 2 § 6 of the CCP according to which the authorities in criminal proceedings assess evidence according to their own conviction. The court responded to the appellate court ’ s criticism and took some further evidence. It accepted that the mobile phone record suggesting that L.V. had been near the victim ’ s house the next day could be incorrect. As for the rest, it remained unconvinced that the applicant ’ s guilt had been proven with the required level of cert ainty. It still considered L.V. ’ s testimonies to be full of contradictions which were not subsequently clarified by him, and therefore not credible. As for the letter, the first-instance court found possible that L.V. had written it later in order to enhance the credibility of his testimony. The traffic ticket had never been found and the traffic offence never been registered. The first-instance court remained unconvinced that the applicant would have murdered the people to obtain the car which was not of a very high value, given its doubtful origin. It concluded that the applicant ’ s account of events was not disproved and his guilt not proven with the required certainty.

The prosecution appealed the judgment.

On 23 April 2007 L.V. was acquitted of complicity in the murder by the Plzeň Regional Court. The prosecution appealed but, later on, t he Prague High Court upheld L.V. ’ s acquittal.

On 29 May 2007 the Prague High Court quashed the applicant ’ s acquittal of murder for the fourth time and assigned the case to the Prague Regional Court. Again it found that the way the evidence had been assessed by the first-instance court violate d Article 2 § 6 of the CCP, as the Plzeň Regional Court was not able to disengage itself from its one-sided assessment of evidence and of L.V. ’ s testimony in particular. In the appellate court ’ s view, save for the mobile phone records issue, the first-instance court did not take its objections into account and did not have any intentions to accept them. While noting that its powers to interfere in the assessment of evidence by the first-instance court w ere substantially restricted , the appellate court held that the first-instance court ’ s factual conclusions were not substantiated by the evidence taken. It stated that the assessment of evidence had not been objective and that the Plzeň Regional Court downplayed some evidence, while overrating evidence in the applic ant ’ s favour. Because the Plzeň Regional Court was not able and willing to objectively and fairly decide the case, the appellate court assigned the case to the Prague Regional Court under Article 262 of the CCP.

On 24 July 2007 the applicant lodged a constitutional appeal against the decision of the Prague High Court to assign the case to the Prague Regional Court, claiming his right to a lawful judge had been violated, as the conditions for application of Article 262 of the CCP had not been met. The applicant alleged that the Prague High Court had been pushing its own assessment of evidence and that the assessment of evidence by the Plzeň Regional Court had shown no signs of subjectiveness .

On 13 December 2007 the Constitutional Court dismissed the applicant ’ s constitutional appeal. As regards his complaints against the quashing of the acquittal, the Constitutional Court considered the constitutional appeal premature, as the proceedings were not concluded by that decision. The complaints against the assignment of the case to the Prague Regional Court were found manifestly ill-founded. The Constitutional Court held that the decisions of the Prague High Court were sufficiently reasoned and that the Prague High Court criticized the Plzeň Regional Court (not only) for its assessment of the evidence, but for some logical incoherencies in its decision and for not taking into account all the circumstances of the case.

On 26 November 2008 the Prague Regional Court convicted the applicant of murder and sentenced him to life imprisonment. It found L.V. ’ s testimonies to contain only minor contradictions and to be credible as to the key facts. It found L.V. ’ s account of events to be more precise and convincing than the applicant ’ s and corroborated by other evidence.

The applicant appealed the judgment.

On 9 December 2009 the Prague High Court upheld the conviction. It admitted that the appealed judgment contained a number of typos and obvious inaccuracies, for instance labelling L.V. as the accused on occasions. Also the factual findings in the operative part of the judgment could have been more preci se and the reasoning in relation to some of the evidence could be regarded as insufficient. However, the reasoning of the appealed judgment complied with Article 125 of the CCP. The first-instance court absolutely aptly pointed out to the evidence which was crucial in the case and its assessment of evidence was logical and in compliance with Article 2 § 6 of the CCP. The appellate court agreed with the factual findings of the first-instance court and its assessment of credibility of K.V. and the applicant, reiterating some of its observations on the assessment of evidence from its p revious decisions in the case. The appellate court concluded that the evidence unequivocally showed that the applicant was guilty and that no other conclusion could be drawn from the evidence.

The applicant lodged an appeal on points of law against the judgment of the Prague High Court.

On 28 July 2011 the Supreme Court dismissed the applicant ’ s appeal on points of law as manifestly ill-founded. As for the complaints against the assignment of the case to a different court, the Supreme Court referred to the decision of the Constitutional Court of 13 December 2007, which the Supreme Court considered binding. The Supreme Court also found the decision of the Prague High Court in this regard convincing. Furthermore the assessment of evidence by the Prague Regional Court and the Prague High Court was found logical, showing no signs of arbitrariness.

The applicant lodged a constitutional appeal against the decisions of the Supreme Court of 28 July 2011, the Prague High Court of 9 December 2009 and the Prague Regional Court of 26 November 2008. Invoking Articles 6 and 7 of the Convention, he alleged that the legal conditions for imposing a sentence to life imprisonment had not been met, that the courts intentionally misinterpreted the evidence (the biased appellate court which assigned the case to a different court in the first place), and that his conviction was based exclusively on the testimony of a liar, as the psychological assessment and the contradictions in the testimony proved.

On 19 April 2012 the Constitutional Court dismissed the applicant ’ s constitutional appeal as manifestly ill-founded. The Constitutional Court, relying on its decisions of 15 September 2005 and 13 December 2007, held that the Prague High Court had had legitimate reasons to assign the case to another chamber and, subsequently, to another court. Furthermore, the impugned decisions were thoroughly reasoned and disclosed no signs of arbitrariness.

2. Proceedings for damages

The applicant applied to the Ministry of Justice, claiming compensation for non-pecuniary damage caused by the unreasonable length of the criminal proceedings.

On 29 June 2012, the Ministry of Justice did not find the proceedings to be unreasonably long, mainly given the very high complexity of the factual circumstances of the case and the nature of the crime. It also noticed that the applicant had already been sentenced to imprisonment for another crime. Given the outcome of the proceedings, the Ministry also questioned the claim for non-pecuniary damage allegedly sustained by the applicant.

On 19 September 2012 the applicant brought an action for compensation before the Prague 2 District Co urt, clai ming EUR 10,317. On 29 November 2013 the District Court delivered a judgment finding a violation of the applicant ’ s right to trial within reasonable time, but dismissing the claim for just satisfaction. It observed that the proceedings took ten years and one month and considered that the length was unreasonable. The court noted that it could not be excluded that the applicant, even as the perpetrator of a serious crime, had suffered non-pecuniary damage arising from the state of uncertainty as to the outcome of the proceedings, especially given the four acquittals. However the District Court held that, from the perspective of the common notion of justice, the finding of a violation was sufficient redress .

Upon the applicant ’ s appeal, on 29 May 2014 , the Prague Municipal Court upheld the judgment of the Prague 2 District Court. It held that the financial compensation would not be appropriate, as the claim had been lodged by a criminal (and recidivist) convicted of a brutal crime committed for especially contemptible reasons . It noted that the applicant already had “experience with criminal proceedings”. It would contradict the common notion of justice and ethics to award the applicant financial compensation.

It appears that the proceedings are pending before the Supreme Court.

B. Relevant domestic law and practice

1. Code of Criminal Procedure (Act no. 141/1961)

Under Article 2 § 5 the authorities in criminal proceedings proceed so as to properly establish facts of the case about which there are no reasonable doubts.

Under Article 2 § 6 the authorities in criminal proceedings assess the evidence according to their own conviction based on diligent evaluation of all circumstances of the case.

Under Article 258 § 1 (b) the appellate court quashes the appealed judgment if the factual findings are unclear or incomplete or if the first-instance court did not take into account all the relevant circumstances.

Under Article 258 § 1 (c) the appellate court quashes the appealed judgment if there are doubts about the correctness of the factual findings or if it is necessary to take further evidence.

Pursuant to Article 262, when the appellate court remits the case back to the first-instance court for a new examination, it may order the case to be assigned to another chamber of the first-instance court. For important reasons, it may also order the case to be assigned to another first-instance court.

2 . Case-law of the Constitutional Court

In its judgment no. I. ÚS 49/06 of 20 May 2008, the Constitutional Court held that the appellate court may not quash a judgment of the first-instance court in criminal proceedings because of its disagreement with the assessment of evidence by the first-instance court and because it would assess the evidence differently. The appellate court should not prefer its own assessment of evidence and impose it on the first-instance court.

In its judgment no. II. ÚS 2317/11 of 24 January 2012, the Constitutional Court held that decisions under Article 262 of the Code of Criminal Procedure should be taken only exceptionally and the provision cannot be applied in order to reach a different decision of the first-instance court corresponding with the opinion of the appellate court.

In its judgment no. II. ÚS 3564/12 of 5 March 2013, the Constitutional Court held that the appellate court may not quash a decision of the first-instance court just to push through its own assessment of evidence and Article 262 of the Code of Criminal Procedure cannot be used to circumvent this restriction.

In its judgment no. I . ÚS 2726/14 of 1 April 2015, the Constitutional Court held that, when remitting the case back to the first instance court, the appellate court shall not make conclusions concerning the facts of the case and thus replacing the trial before the first-instance court. It may only present reasons as to why the factual findings of the first-instance court are incorrect, whether more evidence should be taken, or what other evidence should be taken into account. In a situation when the first-instance court assesses the evidence and all circumstances of the case diligently in compliance with Article 2 § 6 of the Code of Criminal Procedure, the appellate court could not quash the impugned judgment because it would assess the same evidence differently. The appellate court could only point out to the first -instance court what other circumstances to take into account, but it should not bind the first-instance court as to what factual conclusions it should reach. For instance, when considering credibility of a witness, the appellate court could hold that the first-instance court erred by overrating negligible discrepancies in describing the perpetrator, because the f orensic psychology showed that such discrepancies were common when witnesses were in a stressful situation. It should not, however, order the first-instance court to consider the witness credible. This would be particularly inappropriate when the appellate court itself did not examine the witness, thereby unlawfully circumventing the task of the first-instance court to assess credibility of the witness ’ testimony on the basis of a directly and immediately conducted examination during the trial. A particular caution was required when the first-instance court acquitted the accused with regard to the principle in dubio pro reo and clearly explained its doubts about the accused person ’ s guilt. Not having reasonable doubts about the accused person ’ s guilt based on the case file – when the first-instance court had these doubts after taking all the evidence with regard to the principle of immediacy – and therefore quashing the acquittal was allowed only when the doubts of the first-instance court were without merits.

COMPLAINTS

1. T he applicant complains under Article 6 §§ 1 and 2 of the Convention that the proceedings were unfair, since the biased Prague High Court, as an appellate court, essentially imposed its presumption of the applicant ’ s guilt upon the first-instance courts which had acquitted him four times. When the Plzeň Regional Court refused to accept it, the Prague High Court unlawfully, in contravention of Article 262 of the Code of Criminal Procedure, assigned the case to another first-instance court , which arbitrarily assessed the evidence along the lines of the appellate court .

2. The applicant also alleges a violation of his right to a trial within reasonable time, arguing that the proceedings for damages proved to be ineffective in his case.

QUESTION S TO THE PARTIES

1. Was the length of the criminal proceedings in the present case in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention? If so , did the finding of a violation of the applicant ’ s right to a trial within reasonable time by the domestic courts constitute sufficient redress?

2. Did the applicant have a fair h earing in the determination of the criminal charges against him, in accordance with Ar ticle 6 § 1 of the Convention? In particular, was the reasoning of the appellate court when quashing the acquittals in compliance with the principle of immediacy?

3 . Can the Prague Regional Court be regarded as ‘ a tribunal established by law ’ , as required by Article 6 § 1 of the Convention? In particular, was the assignment of the case to that court in accordance with Article 262 of the Code of Criminal Procedure as interpreted by the Constitutional Court?

4 . Was the presumption of innocence, guaranteed by Article 6 § 2 of the Convention, respected in the present case? In particular, did the appellate court reflect the opinion that the applicant was guilty before he was proved guilty according to law?