THIRD SECTION

Application no. 34840/08 Duš an PRIWITZER against Slovakia lodged on 10 July 2008

STATEMENT OF FACTS

1. The applicant, Mr Dušan Priwitzer , is a Slovak national, who was born in 1975 and lives in Banská Bystrica .

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

A. Contested trial

2. On 31 January 2006 the applicant was indicted to stand trial before the Banská Bystrica District Court ( Okresný súd ) on charge of extortion committed as a member of an organised group within the meaning of Article 235a §§ 1 and 2 (a) of the Criminal Code (Law no. 140/1961 Coll., as applicable at the relevant time). The case was assigned to a chamber presided over by judge A.

3. During the extortion trial the applicant was detained on remand in the context of another unrelated trial (see below).

4. A hearing ( hlavné pojednávanie ) of the extortion charge was scheduled for 27 April 2007. Prior to that hearing, on 23 April 2007, sitting as a singe judge, judge A. had taken a decision concerning the applicant ’ s detention in the context of the other trial (see below).

5. The written version of the decision of 23 April 2007 contains an observation on the part of judge A. that the applicant “[had been] found guilty and convicted [for the extortion charge] by a judgment of the [District Court] dated 27 April 2007 ... [by which] he had been sentenced to a term of imprisonment of 5 years”.

6. On 27 April 2007 the District Court held the hearing in the extortion trial as scheduled. Having examined witnesses and heard closing statements of the parties, on the same day, it found the applicant guilty and sentenced him to 5 years in prison.

7. The applicant challenged the judgment of 27 April 2007 by way of an appeal ( odvolanie ). He denied the charge and contested the District Court ’ s findings of fact as arbitrary and its reasoning as unclear and incomprehensible.

8. In a submission of 7 June 2007 the applicant supplemented his appeal. Among other things, he specifically complained of the observation by judge A. in his decision of 23 April 2007, which he considered contrary to his right to be presumed innocent and, in substance, also his right to a hearing by an impartial tribunal. In support of that argument, the applicant submitted that judge A. had to have been decided that the applicant was guilty even before the proceedings were completed despite the fact that there had been further evidence to be examined.

9. On 21 June 2007 the Banská Bystrica Regional Court ( Krajský súd ) dismissed the appeal as unfounded. It took no position in respect of the applicant ’ s arguments concerning the observation of judge A. in his decision of 23 April 2007.

10. On 13 August 2007 the applicant challenged his conviction by way of a complaint under Article 127 of the Const itution (Constitutional Law no. 460/1992 Coll., as amended). He relied, inter alia , on Article 6 §§ 1, 2 and 3 of the Convention and invoked his right to be presumed innocent and to a hearing by an impartial tribunal in connection with the observation of judge A. in his decision of 23 April 2007. In addition, he argued that he had been denied access to the submissions of his co-accused and had thus prevented from exercising his rights of defence in that respect.

11. On 7 February 2008 the Constitutional Court ( Ústavný súd ) declared the complaint inadmissible.

Any complaints concerning the District Court fell to be examined by the Regional Court and were thus outside of the remit of the Constitutional Court ’ s review.

As to the alleged lack of access to the submissions of his co-accused and its impact on the applicant ’ s rights of defence, the Constitutional Court found that the applicant had failed to respect the admissibility requirement of exhaustion of other remedies in that the could and should have raised the argument by way of an appeal on points of law ( dovolanie ).

As regards the presumption of innocence, the Constitutional Court observed that it had allegedly been breached by operation of a decision in the other trial and that it was there where the applicant could assert his rights. There was no indication of a violation of this presumption in the extortion trial.

The remainder of the applicant ’ s complaint was found to be manifestly ill ‑ founded.

B. Detention in the context of another trial

12. The applicant was also tried and detained pending trial on charge of aggravated theft.

13. On 23 April 2007 judge A. of the District Court, sitting as a single judge, held a public session ( verejné zasadnutie ) with a view to examining the applicant ’ s request for release. Following the session, on the same day, judge A. dismissed the request.

14. In his decision of 23 April 2007 judge A. observed that the applicant had two previous convictions of similar offences and that he had also been indicted, tried and convicted on the extortion charge as mentioned above. It was therefore still necessary to keep him detained to prevent his committing of an offence.

15. The applicant ’ s interlocutory appeal ( sťažnosť ) against the decision of 23 April 2007 was dismissed by the Regional Court on 9 May 2007. It is unclear whether in that appeal the applicant made any complaint in respect of the impugned observation by judge A. There is no mention to that effect in the Regional Court ’ s decision.

16. On 28 May 2008 the District Court dismissed a further request by the applicant for release. In his interlocutory appeal against that decision the applicant challenged the contested observation by judge A. The interlocutory appeal was dismissed by the Regional Court on 13 June 2008 without any mention of that argument.

17. The further course and outcome (if any) of the proceedings is unknown.

COMPLAINTS

18. In his submission dated 8 July 2008 and posted on 10 July 2008, addressed to European Committee for the Prevention of Torture, the applicant invokes Article 6 §§ 1, 2 and 3 of the Convention and expressed the wish to complain of his conviction by the judgment of the District Court of 27 April 2007, as upheld by the Regional Court on 21 June 2007, because his complaint to the Constitutional Court failed.

19. In his application form dated 5 January 2009 the applicant invokes Article 6 § 1 of the Convention, relies on his right to a trial by an impartial tribunal, and contests the observation by judge A. four days before the conclusion of the extortion trial prejudging the outcome of that trial.

QUESTIONS TO THE PARTIES

1. Did the applicant have a fair hearing by an impartial tribunal in the determination of the criminal charge of extortion against him, in accordance with Article 6 § 1 of the Convention?

In particular, in view of the observation by judge A. in his decision of 23 April 2007 in the theft trial to the effect that the applicant was guilty of the extortion, and the fact that his complaints in that respect do not appear to have been addressed by any higher court on the merits, did the applicant benefit of the guarantees of his right to a hearing by an impartial tribunal in the extortion trial, as required by Article 6 § 1 of the Convention?

2. In connection with ( i ) the observation by judge A. in his decision of 23 April 2007 in the theft trial to the effect that the applicant was guilty of the extortion, (ii) the impact of that observation on the extortion trial, and (iii) the fact that his complaints in that respect do not appear to have been addressed by any higher court on the merits, was the applicant ’ s presumption of innocence, guaranteed by Article 6 § 2 of the Convention, respected in the extortion case?