THIRD SECTION

Application no. 56783/11 Miroslav KRÁĽ against Slovakia lodged on 30 August 2011

STATEMENT OF FACTS

1. The applicant, Mr Miroslav Kráľ , is a Slovak national, who was born in 1976 and is currently detained in the Leopoldov prison.

A. The circumstances of the case

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

1. Charges and trial

2. On 25 October 2009 the applicant and five others were charged with aggravated robbery on the suspicion that, on 5 September 2009, as an organised group, they had forcibly entered private forest grounds; inflicted injuries on the guard to which he later succumbed; alienated two tractors and attempted to alienate a third one; and fled the crime scene once it had proven impossible to load the former two tractors onto a lorry.

3. Later that day, 25 October 2009, one of the applicant ’ s co-defendants (A.) made a deposition in which he confessed and gave his version of how the events had taken place, including the role played by the applicant.

This deposition would later become instrumental for the applicant ’ s conviction (see paragraph 10 below).

As the charges against A. were subject to mandatory defence, a lawyer of his choosing (B.) had previously been contacted by telephone but was unable to attend. As a result, during the deposition, no lawyer on behalf of A. was present.

It would later become disputed whether, at that time, A. effectively had legal representation (see paragraph 8 below) and, accordingly, whether the deposition could be admitted as lawful evidence (see paragraphs 10 and 12 below).

4. On 19 November 1999 another lawyer (C.) was appointed by the State to represent A.

5. On 1 December 2009 the same lawyer, C., was appointed by the State to represent the applicant, who was missing.

6. On 28 January 2000 the applicant and the others were indicted to stand trial on the above charges in the Žilina Regional Court ( Krajský súd ). At the same time, a warrant was issued for the applicant ’ s arrest. Another similar warrant followed on 27 March 2000.

7. On 5 March 2001 a decision was taken that the applicant, who was still missing, would be tried as fugitive ( konanie proti ušlému ).

8. On 3 September 2001 B. was questioned as regards the controversy concerning A. ’ s legal representation during his deposition of 25 October 2009. He submitted that he had not accepted to defend A. and that, for objective reasons, he had at that time had no means of doing so.

9. On 22 March 2001 the C. ’ s mandate to represent the applicant was terminated because, according to the evidence given by A. the previous day, his interests conflicted with those of the applicant. At the same time, a new lawyer (D.) was appointed by the State to represent the applicant who was still missing.

10. On 4 March 2002 the Regional Court found the applicant and his co ‑ accused guilty, having taken into account abundant written, oral and expert evidence, including the deposition of A. of 25 October 2009.

As regards the applicant, it was in particular this deposition that was instrumental in establishing his guilt. In respect of the lawfulness of this deposition as evidence, the Regional Court considered that the mere absence of B. at that deposition was not enough a ground to exclude it as unlawful.

In terms of sentence, the applicant was convicted to thirteen and a half years in prison.

11. All of the applicant ’ s co-accused as well as the Public Prosecution Service appealed ( odvolanie ).

As for the applicant, D. appealed on his behalf, arguing inter alia that the court had failed to take any note of the applicant ’ s letter to the court of 19 December 2000, in which he had denied the charges, disputing in particular their factual basis.

In addition, D. relied on the premise in dubio pro reo and submitted that the entire conviction of the applicant was based on evidence given by A., who had however discredited himself by changing his story and making allegations of coercion that he had failed to prove.

She also pointed out that two of the remaining co-accused no more than presumed the applicant ’ s presence at the crime scene and that the other two had not seen him there.

12. On 26 September 2002 the Supreme Court ( Najvyšší súd ) corrected certain technical errors in the judgment of 4 March 2002, reducing the applicant ’ s sentence to twelve and a half years on the ground that, combined with a previous sentence, the penalty imposed by the Regional Court would exceed what was permitted by the statute.

As to the specific question of the admissibility as lawful evidence of the deposition of A. on 25 October 2009, the Supreme Court found that B. had accepted to act as defence counsel for A by implication ( konkludentne ).

13. On 21 January 2003 the Regional Court issued a warrant against the applicant for the enforcement of his sentence and ordered that he be brought to prison.

2. Applicant ’ s detention pending extradition

14. On 9 April 2004 the Prague (the Czech Republic) City Court ( Městský soud ) remanded the applicant ’ s in detention pending extradition to Slovakia in connection with the above proceedings and conviction.

15. On 25 April 2005, while he was still detained in the Czech Republic, the applicant requested that a copy of his judgment be served on him. So it was, on 24 May 2005, albeit with no instructions ( poučenie ) as to any possible remedies available to the applicant in the specific circumstances of his case.

16. According to the applicant, between 3 April 2005 and 14 May 2007 he requested the Czech prison authorities four times in writing that Slovak criminal law legislation be made available to him, all to no avail.

17. The applicant remained detained in the Czech Republic until 19 November 2010 when he was transferred to Slovakia.

3. Applicant ’ s appeal

18. However, while he was still in the Czech Republic and following the service of his judgment on him, the applicant had made a submission to the Regional Court formulated as an appeal. His submission was received at the Regional Court on 30 May 2005.

19. On 22 June 2005 the Supreme Court dismissed the applicant ’ s appeal as belated and because, under the Code of Criminal Procedure applicable at that time (Law no. 141/1961 Coll., as amended) (“the CCP”), a person convicted as fugitive by force of a final and binding judgment had no right of appeal. At the same time, the Supreme Court noted that it was open to the applicant to assert his rights by way of a petition for a complaint in the interest of law ( sťažnosť pre porušenie zákona ) to be lodged by the Prosecutor General or the Minister of Justice on the applicant ’ s behalf and by a petition for retrial ( obnova konania ).

20. According to the applicant, it was not before 5 October 2011 and in response to his request that the Supreme Court sent a copy of the decision of 22 June 2005 to him.

4. Petition for retrial

21. Meanwhile, on 19 June 2006, while he had still been in detention in the Czech Republic, the applicant had filed a petition for a retrial, to which he and his lawyer, D., added on 11 July 2006 and 3 May 2010, respectively.

22. The submission by D. followed a questioning of the applicant by the Brno- venkov (the Czech Republic) District Court ( Kresní soud ) on 25 February 2005 upon a letter rogatory from the Žilina Regional Court.

In sum, it was submitted by the applicant or by D. on his behalf that the applicant had learned of the events underlying the charges from television; that he had not been present on the crime scene; that at the request of A. he had only been on a lookout nearby; that at the time of the impugned events he had not known the remaining four of his co-accused; that they had implicated him self ‑ servingly; and that he had left Slovakia out of fear for his life after he had learned that two of his co-accused were planning to take out a witness.

In addition, it was submitted that at no stage of the proceedings had the applicant been heard and that despite mandatory legal representation he had had none at the pre-trial stage of the proceedings, which was in violation of his right to a fair trial under Article 6 of the Convention.

Moreover, the penalty was disproportionate to the applicant ’ s real involvement and the submissions of his co-accused at pre-trial stage were to be re-examined before a court.

In terms of new evidence, the applicant identified one witness; asked that he be examined by polygraph; and requested a face ‑ to ‑ face interview ( konfrontácia ) with the other co-accused.

23. The petition was dismissed by the Regional Court at a public session ( verejné zasadnutie ) on 19 May 2010 and, following the applicant ’ s interlocutory appeal, by the Supreme Court on 1 February 2011.

In sum, the courts observed that the applicant was serving a ten-year sentence in the Czech Republic, which was why he could not be present in person. Under the applicable statutory rules, a retrial would only be warranted if there was new evidence that could bring about a different outcome. Although the applicant ’ s testimony would constitute evidence which was new, in view of the evidentially situation as a whole no other outcome could be expected.

Without further elucidation the courts concluded that, since the witness identified by the applicant had refused to give evidence at the original trial, his testimony did not constitute new evidence and neither would there be any new evidence as a result of the face-to face interview. Moreover, results of polygraph were not recognised as evidence within the meaning of the CCP applicable at that time (Law no. 301/2005 Coll., as amended).

Lastly, it was nothing new to the court that the applicant had lacked legal representation at the pre-trial stage. However, any objection in this respect should have but had not been raised by his State-appointed lawyer at the trial-stage and on appeal.

There was therefore no ground to reopen the proceedings.

5. Constitutional complaint

24. On 20 March 2011 the applicant lodged a complaint under Article 127 of the Constitution (Law no. 460/1992 Coll., as amended) with the Constitutional Court ( Ústavný súd ). At the same time, he requested that a legal-aid lawyer be appointed to him.

As for the substance, the applicant relied on Article 6 of the Convention and challenged the dismissal of his petition for retrial arguing that he had never been heard, that he had not had legal representation at the pre-trial stage of the proceedings despite its being mandatory and that the principle of equality of arms had been disrespected.

25. On 15 April 2011 the Constitutional Court declared the complaint inadmissible, essentially relying on its doctrine that application of a statute in judicial proceedings in a manner consistent with the applicable procedural rules may not amount to a violation of fundamental rights and freedoms. The complaint was thus manifestly ill-founded and there was no purpose in examining the applicant ’ s legal-aid request.

6. Subsequent attempts at obtaining redress

26. On 16 September 2011 the applicant requested leave to appeal out of time, to which he joined a request that the case be re-examined. In support of these requests, the applicant argued that neither during his detention in the Czech Republic nor during his detention in Slovakia had he had access to the Collection of Laws of Slovakia. He was therefore impaired in asserting his rights properly and in a timely manner.

27. At an unspecified time the applicant also requested protection of his rights by means of an appeal on points of law ( dovolanie ) to be lodged on his behalf by the Ministry of Justice. In a letter of 6 October 2011 the Ministry informed the applicant that the temporal application of the rules of the 2005 CCP on appeals on points of law did not extend to the applicant ’ s case and that, therefore, no such appeal was available.

28. On 20 October 2011 the Supreme Court dismissed the applicant ’ s requests admitting that errors might have been committed in connection with imposing several sanctions on the applicant in parallel, but observing that no such errors had been contested by the applicant.

B. Relevant domestic law and practice

1. Constitution and Code of Criminal Procedure of 1961

29. The relevant constitutional provisions and provisions of the 1961 CCP, as well as the relevant practice, are summarised in Šupák v. Slovakia (( dec. ), no. 4973/03, 23 February 2010).

2. Code of Criminal Procedure of 2005

30. The 2005 CCP entered into force on 1 January 2006 and it wholly replaced the 1961 CCP.

31. Under Article 62 § 1 submissions are always to be interpreted according to their contents even if they are erroneously named. A similar provision existed under the 1961 CCP (Article 59 § 1).

The rules concerning proceedings against fugitive defendants are contained in Section ( Oddiel ) 5 of Chapter 7 ( Hlava ) in Part 3 ( Časť ). Under these rules, the convicted fugitives have the right to request, within six months of the day when they learn of their prosecution or conviction, but no later than within the applicable period of limitation, that their case be examined new by a court in their presence (Article 362 § 1). If these conditions are met, the previous decision is to be quashed and the case is to be re-examined on the basis of the original bill of indictment (Article 362 § 1).

32. Petitions for retrial are governed by the provisions of Section 3 of Chapter 8 in Part 3. In particular, a retrial of a matter resolved with the force of final and binding judgment may be ordered inter alia if there are facts or evidence not know to the court in the original trial which of themselves or in conjunction with facts and evidence known to the court at the original trial may result in a different decision on guilt or render the punishment imposed manifestly disproportionate to the gravity of the offence or the circumstances of the offender (Article 394 § 1).

COMPLAINTS

33. The applicant complains under Article 6 § 1 of the Convention that the criminal charges against him have not been heard in his presence and that it has been impossible for him to obtain a fresh examination of these charges in his presence. Under the same provision, he also complains that the length of the proceedings on his petition of 19 June 2006 was excessive.

34. In his submission of 30 November 2011 the application also stated that it was contrary to his rights under Article 6 § 3 (b) and (c) of the Convention ( i ) to admit in evidence the deposition of A. of 25 October 2009 with the justification that his legal representation by B. had been “implicit”; and (ii) that the applicant ’ s legal representation at the initial state of the proceedings had been ensured by C. because C. had also been representing A., with whom the applicant had opposing interests, as had later been recognised by the courts. The applicant also submitted that he had been unable to make these claims earlier because had not had in his possession the relevant documentary material.

35. Lastly, the applicant complains under Article 13 of the Convention that he has had no effective remedy at his disposal as regards the alleged violation of his right to have the criminal charges against him re-examined in his presence.

QUESTIONS TO THE PARTIES

1. Did the applicant have a fair hearing in the determination of the criminal charges against him, in accordance with Article 6 §§ 1 and 3 of the Convention?

In particular, were the criminal charges against him heard in his presence?

If not, did the applicant have the opportunity to obtain a fresh determination of the merits of the charge against him by a court in accordance with his defence rights (see the summary of the relevant principles in Sejdovic v. Italy [GC], no. 56581/00, §§ 81 et seq ., ECHR 2006 ‑ II)?

2. Were the guarantees of Article 6 § 3 (b) and (c) of the Convention respected?

3. Did the applicant have at his disposal an effective domestic remedy for his complaint about the alleged violation of his right to have the criminal charges against him re-examined in his presence, as required by Article 13 of the Convention?

4. In view of the all the circumstances, was Article 6 § 1 of the Convention applicable to the proceedings in the applicant ’ s petition of 19 June 2006 (see, mutatis mutandis , Melis v. Greece , no. 30604/07, §§ 19 ‑ 20, 22 July 2010)?

If so, was the length of those proceedings in breach of the “reasonable time” requirement of Article 6 § 1 of the Convention?