Published on 8 January 2024

FIFTH SECTION

Application no. 34067/23 Ondřej BOUŠA against the Czech Republic lodged on 1 September 2023 communicated on 5 December 2023

SUBJECT MATTER OF THE CASE

The application concerns the applicant’s conviction of drug trafficking.

The applicant’s three co-accused, including K.B., were convicted in a previous separate set of proceedings in which the court endorsed the plea ‑ bargain agreements that they had concluded with the prosecutor. The factual definition of the impugned criminal activity contained in the judgment endorsing those agreements referred to the applicant, identified by his full name, with a mention that he was being prosecuted separately.

Later, the same court bench convicted the applicant, describing the relevant part of his acts in substantially the same terms and relying primarily on the former statements of K.B. as a co-accused, which he had repeated later when heard as a witness.

In his constitutional appeal the applicant complained for the first time, under Article 6 §§ 1 and 2 of the Convention, that by its ruling delivered in his co-accused’s case the court had breached his right to be presumed innocent, which tainted that court’s impartiality in his own trial; he also asserted that the criminal proceedings against him had not been fair.

The Constitutional Court dismissed that constitutional appeal (no. IV. ÚS 878/23), holding that the proceedings against the applicant’s co ‑ accused had to be disjoined because they had concluded plea-bargain agreements, that any change in the composition of the bench subsequently hearing the applicant’s case would amount to a violation of his right to a lawful judge or protract the proceedings, and that the applicant had been convicted on the basis of K.B.’s detailed statements which remained consistent throughout the proceedings and was corroborated by other evidence. The Constitutional Court did not address the applicant’s complaint concerning the presumption of innocence.

Relying on Article 6 §§ 1 and 2 of the Convention, the applicant complains about a violation of his rights to be presumed innocent and to have a fair hearing before an impartial tribunal.

QUESTIONS TO THE PARTIES

1. Has the applicant exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention, with regard to his complaint concerning the alleged lack of impartiality of the criminal tribunal, given that he neither lodged an objection of bias nor did he raise the issue of impartiality in his appeal and appeal on points of law?

If so, was the tribunal which dealt with the applicant’s case impartial, as required by Article 6 § 1 of the Convention, in particular in view of the manner in which that tribunal referred to the applicant in its previous judgment concerning his co-accused who had entered into a plea-bargain agreements (see Meng v. Germany , no. 1128/17, 16 February 2021; Mucha v. Slovakia , no. 63703/19, 25 November 2021)?

2. Did the applicant have a fair hearing in the determination of the criminal charge against him, in accordance with Article 6 § 1 of the Convention, given that he was convicted mainly on the basis of a statement given by K.B. who had previously entered into a plea bargain agreement (see, mutatis mutandis , Xenofontos and others v. Cyprus , nos. 8725/16, 74339/16 and 74359/16, 25 October 2022; Adamčo v. Slovakia , no. 45084/14, 12 November 2019)?

3. Did the applicant have at his disposal an effective domestic remedy in respect of his complaint under Article 6 § 2 of the Convention, having regard to the fact that the judgment concerning his co-accused was delivered in a separate set of proceedings to which the applicant was not a party?

4. Was the presumption of innocence, guaranteed by Article 6 § 2 of the Convention, respected in the present case? In particular, in its judgment concerning the applicant’s co-accused, did the tribunal make it sufficiently clear that it was not also implicitly determining the applicant’s guilt, so as to avoid, as far as possible, giving the impression that it was prejudging it (see Karaman v. Germany , no. 17103/10, 27 February 2014; Bauras v. Lithuania , no. 56795/13, 31 October 2017; and Mucha v. Slovakia , no. 63703/19, §§ 57 ‑ 58, 25 November 2021)?