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FOURTH SECTION

CASE OF MACKO and KOZUBAĽ v. SLOVAKIA

(Applications nos. 64054/00 and 64071/00)

JUDGMENT

STRASBOURG

19 June 2007

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Macko and Kozubaľ v. Slovakia,

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

Sir Nicolas Bratza, President,
Mr J. Casadevall,
Mr S. Pavlovschi,
Mr L. Garlicki,
Ms L. Mijović,
Mr J. Šikuta,
Mrs P. Hirvelä, judges,
and Mrs F. Aracı, Deputy Section Registrar,

Having deliberated in private on 29 May 2007,

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

PROCEDURE

The case originated in two applications (nos. 64054/00 and 64071/00) 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 two Slovak nationals, Mr Viktor Macko and Mr Miroslav Kozubaľ (“the applicants”), on 1 June 2000.

The applicants were represented by Ms M. Ilčišinová, a lawyer practising in Vranov nad Topľou. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Mrs M. Pirošíková.

The applicants alleged, in particular, that their right under Article 6 § 1 of the Convention not to incriminate themselves had been violated.

The Chamber decided to join the applications (Rule 42 § 1).

By a decision of 5 January 2006 the Court declared the applications partly admissible.

The applicants and the Government each filed further written observations (Rule 59 § 1).

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

Mr Viktor Macko, the applicant in application No. 64054/00 (the first applicant), was born in 1965 and lives in Humenné. Mr Miroslav Kozubaľ, the applicant in application No. 64071/00 (the second applicant), was born in 1963 and lives in Hanušovce.

A. Criminal proceedings against Mr I. and other persons

Between 19 November 1993 and 29 January 1996 the second applicant was the representative of the company ILaS Vranov, s.r.o. and he was entitled to act on the company's behalf in that capacity. On 30 January 1996 he was replaced by the first applicant who carried out that function until 2 September 1997. Prior to that, on 14 August 1995, the second applicant had authorised the first applicant, then director of company ILaS Vranov, s.r.o., to act on the company's behalf. From 3 September 1997 to 13 September 1998 Mr I. succeeded the first applicant as the above company's representative.

On 16 December 1998 Mr T., a police investigator of the Regional Office of Investigation in Prešov, accused Mr I. of unauthorised trading in foreign currency. I. was accused of having authorised, as a co-owner of the company ILaS Vranov, a sale of bills of exchange in Austria without the approval of the central bank. The transaction had been carried out in 1994. The investigation file had the number KÚV-80/20-98.

On 2 July 1999 investigator T. accused Mr I. of a different offence in the context of proceedings KÚV-80/20-98. I. was accused of fraud and money laundering on the ground that he had unlawfully obtained and used a sum of money while acting as the representative of companies Classinvest Slovakia o.c.p., a.s. and C.S.I. Slovenka Vranov, a.s. According to the accusation, I. had issued bills of exchange which had been uncovered and void. The transaction had allegedly been made in Vienna in 1997 and it had involved the same person as the above transaction of 1994.

The police investigator summoned the first applicant to an interview as a witness in the case against I. The first applicant appeared before the investigator and indicated that he wished to avail himself of the right under Article 100 § 2 of the Code of Criminal Procedure to remain silent with a view to avoiding any criminal proceedings against him. This fact is recorded in the minutes of the first applicant's interview of 5 October 1999.

12. On 23 November 1999 investigator T. issued a decision, under Article 66 § 1 of the Code of Criminal Procedure, in which he imposed a procedural fine of SKK 20,000^¹ on the first applicant. The decision stated that the applicant had refused, on 5 October 1999, to make a witness statement in the criminal case against I. concerning fraud. The decision also stated that the applicant had relied on Article 100 § 2 of the Code of Criminal Procedure and that the investigator had concluded, after having considered the position in the case, that the applicant's statement as a witness could not result in the initiation of criminal proceedings against him. The decision had the number KÚV-80/OVEK-98.

13. The second applicant, like the first applicant, was summoned to an interview by investigator T. in the context of criminal proceedings brought against Mr I. On 18 November 1999, prior to interviewing the second applicant, the investigator informed him that he could remain silent, pursuant to Article 100 § 2 of the Code of Criminal Procedure, if his statement could result in his or his close relatives' prosecution for a criminal offence. The second applicant used that right. According to the minutes, he had stated that he would not mention the reasons for his decision to remain silent.

14. In a decision of 23 November 1999 the investigator imposed a procedural fine of SKK 20,000 on the second applicant under Article 66 § 1 of the Code of Criminal Procedure. The decision stated that the applicant had refused, without justification, to make a witness statement in a criminal case and that he had been warned that he could be fined therefor. According to the decision, the applicant had not indicated any reason for his refusal and the investigator concluded, after having considered the evidence in the case, that his witness statement had not been susceptible of resulting in his prosecution.

15. On 22 February 2000 the police investigator accused the first applicant of conspiracy to defraud on the ground that he had been involved in the fraudulent elaboration of a contract with a view to obtaining a considerable sum of money from the State. The decision had the file number KÚV 4/OVEK 2000.

16. On 1 August 2000 investigator T. issued two decisions under investigation file number KÚV-83/20-98 accusing several persons of criminal offences.

17. In the first decision Mr I., the two applicants and five other persons were accused of conspiracy to defraud. The case concerned the transfer of securities of the joint stock company Transpetrol, a.s. The alleged offence had been committed in 1998. A public prosecutor at the Regional Prosecutor's Office in Prešov quashed the investigator's decision on 7 August 2000. No further criminal proceedings have been brought against the second applicant subsequently.

18. In the second decision dated 1 August 2000 investigator T. accused the first applicant, together with Mr I. and another person, of preparatory acts relating to money laundering. It was imputed to the first applicant that, as representative of the company Brilant, a.s., he had participated in the fraudulent elaboration of a contract in 1996, and that he had transferred securities of the company Transpetrol, a.s. to his company.

19. On 2 August 2000 the police investigator joined to a single set of proceedings the above cases against Mr I. and, inter alios, the first applicant registered under file numbers KÚV-80/20-98, KÚV-83/20-98 and KÚV 4/OVEK-2000. On 2 July 2001 the investigator discontinued the proceedings against Mr I. (file number KÚV-80/20-98) brought on 16 December 1998 as no offence had been committed.

20. On 10 December 2001 the public prosecutor indicted the first applicant, Mr I. and six other persons before the Regional Court in Prešov in the context of transfer of securities of Transpetrol, a.s. The first applicant was charged with two offences.

21. Firstly, the applicant was accused of fraud, together with Mr I. and two other persons, on the ground that they had fraudulently elaborated a pre-dated contract, in 1996, after a tax authority had issued a warrant with a view to securing a possible debt of company ILaS Vranov, s.r.o. As the warrant had prevented the company ILaS Vranov, s.r.o. from complying with its obligations under the above contract, the State had later been ordered to pay SKK 43,265,591 as compensation for the fine foreseen under that contract. The State's alleged debt had subsequently been enforced by means of a transfer of securities of the company Transpetrol, a.s. The public prosecutor concluded that, as a result, the Ministry of Economy had suffered a financial loss totalling SKK 2,184,000 million.

22. Secondly, the first applicant was accused of having engaged in preparatory acts relating to money laundering in that he had acquired, as representative of the company Brilant, a.s., 98 shares in the company Transpetrol a.s. which had been obtained by means of the above transasction and that he had intended to sell those securities abroad through his co-accused Mr I.

23. On 3 August 2004 the Regional Court in Zilina returned the case to the public prosecutor for further investigation.

24. On 25 May 2006 the Supreme Court quashed the Regional Court's decision of 3 August 2004 and ordered the first-instance court to proceed with the case. In its decision the Supreme Court referred to the fact that the second applicant had refused to make statements as a witness at interviews on 11 February 2000, 10 May 2000 and 20 March 2001 with reference to Article 100 § 2 of the Code of Criminal Procedure. Further questioning of the second applicant would in such situation amount to undue pressure with a view to forcing him to make a statement which he had refused to make in accordance with the relevant provisions of the Code of Criminal Procedure. The Supreme Court concluded that any evidence obtained in those circumstances could not be used in subsequent proceedings.

25. The criminal proceedings are pending.

B. The applicants' attempts to obtain redress

1. The first applicant

26. On 10 December 1999 the first applicant filed a complaint against the decision of 23 November 1999 to impose a fine on him. He argued that he had availed himself of his right to remain silent as he had considered that his statement could give rise to criminal proceedings against him. He had not been warned that a fine could be imposed on him, and the investigator had not informed him that the position in the case excluded the bringing of criminal proceedings against the first applicant.

27. On 30 December 1999 the Prešov Regional Deputy Prosecutor dismissed the complaint. The decision stated that the first applicant had not indicated the reason for his refusal to make a statement. Under Article 100 § 2 of the Code of Criminal Procedure, a witness was obliged to inform an investigator why he or she refused to make a statement. Where the investigator did not accept the reasons invoked, the witness was obliged to answer the questions.

28. The first applicant requested that an extra-ordinary complaint be filed against the above decision imposing a fine for his refusal to make statement as a witness.

29. On 19 February 2001 a public prosecutor at the General Prosecutor's Office dismissed the request. In his letter the public prosecutor summed up the relevant facts as follows. On 5 October 1999 the first applicant had to be heard as a witness in the context of criminal proceedings KÚV-80/20-98 against Mr I. Those proceedings concerned an unlawful sale of bills of exchange, in 1994, which had resulted in the transfer of approximately SKK 19 million to the account of the company ILaS Vranov, s.r.o. on 7 July 1994. The offences imputed to the accused comprised also several other actions including the misuse, in 1996, of bonds issued by a company of which Mr I. had been the director and transfer of that company's assets to several persons including the applicant. The police investigator had joined the above proceedings, on 2 August 2000, as both the applicant and Mr I. had been accused in the case registered under file number KÚV-83/20-98. However, the actions imputed to Mr I. in proceedings KÚV-80/20-98, in the context of which the applicant had refused to make a witness statement, were entirely unrelated to the facts of the other cases.

30. The public prosecutor held that a witness could remain silent only to the extent that a specific part of his statement was susceptible of resulting in the introduction of criminal proceedings against the witness or his or her next of kin. As the first applicant had had no apparent reason for refusing to make a witness statement, and since he had given no specific reason for such a refusal, the decision imposing a procedural fine had been justified.

2. The second applicant

The second applicant filed a complaint against the decision imposing a fine on him. He argued, with reference to the record of the interview with the investigator, that he had remained silent as he had considered that a statement could give rise to criminal proceedings against him. The fine amounted to the application of psychological pressure to him.

32. On 30 December 1999 the Prešov Regional Deputy Prosecutor dismissed the second applicant's complaint. The decision stated that the applicant had not given any reason for his refusal to make a statement. Under Article 100 § 2 of the Code of Criminal Procedure, a witness was obliged to inform the investigator why he or she refused to make a statement. Where the investigator did not accept the reasons invoked, the witness was obliged to answer the questions.

33. On 12 December 2000 the second applicant petitioned the General Prosecutor's Office for a complaint in the interest of the law to be filed on his behalf. He challenged the above procedural fine. The fact that the same investigator had accused him of an offence on 1 August 2000 proved that the fine had been imposed with a view to coercing the second applicant to make a statement on the relevant facts.

34. In a letter of 19 February 2001 a public prosecutor of the General Prosecutor's Office refused to file an extra-ordinary complaint on the second applicant's behalf for reasons similar to those set out above in respect of the petition filed by the first applicant.

35. On 25 July 2001 a different public prosecutor of the General Prosecutor's Office confirmed that conclusion. The letter stated, in particular, that the interview in question had concerned offences imputed to other persons and that the second applicant, therefore, had had no valid reason for refusing to answer the questions. The offence of which the second applicant had been accused subsequently concerned facts different from those on which he had been asked to make a witness statement.

II. RELEVANT DOMESTIC LAW AND PRACTICE

A. Constitution

Article 47 § 1 reads as follows:

“Everyone is entitled to refuse to make a statement where it would be susceptible of resulting in his or her prosecution for a criminal offence or in prosecution of a different person close to him or her.”

B. Code of Criminal Procedure

Under Article 66 § 1, a person who, despite previous warnings, disturbs proceedings or behaves in an offensive manner in relation to a court, a public prosecutor, an investigator or a police authority or, without sufficient excuse, does not obey an order or does not comply with an instruction addressed to him or her under the Code of Criminal Procedure, can be punished with a procedural fine of up to SKK 50,000.

Pursuant to Article 97, everybody is obliged to appear before a prosecuting authority upon summons and to make a statement as a witness about facts which he or she knows about an offence, its perpetrator or issues which are considered important for the purpose of criminal proceedings.

39. Article 100 § 2 reads as follows:

“A witness is entitled to refuse to make a statement where such a statement would entail the risk that criminal proceedings would be brought against him, against his relative in direct line, his sibling, a person whom the witness adopted or by whom he was adopted, against the spouse or partner of such a witness or against any other person with whom the witness has family-like relations and whose harm the witness would justifiably perceive as being his own harm.”

C. Relevant practice

The domestic authorities have held that a person who wishes to remain silent pursuant to Article 100 § 2 of the Code of Criminal Procedure must state the reason for his or her refusal to make a statement. The decision whether or not such a person's recourse to Article 100 § 2 is justified lies with the authority by whom the witness is to be heard. Where the authority concerned does not accept the reasons invoked, the witness is obliged to make a statement.

Where the refusal of a witness to make a statement is justified, an investigator cannot circumvent the witness's right to remain silent by inquiring into the reasons for such a refusal and facts related to the subject-matter of the envisaged interrogation, and by mentioning those facts subsequently in the minutes of the interrogation. The information contained in such an unlawfully obtained statement cannot be used as evidence in criminal proceedings.

THE LAW

ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

The applicants complained that their right not to incriminate themselves had been violated by the above imposition of fines. They alleged a violation of Article 6 § 1 of the Convention which in its relevant part provides:

“In the determination of any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

A. Parties' submissions

1. The Government

The Government maintained that the interviews of the applicants as witnesses had concerned criminal proceedings against Mr I. related to facts in which the applicants had not been involved.

As to the first applicant, he had been summoned as a witness as his business activities were related to those of Mr I. The first applicant had been subsequently accused of different offences. He had not been obliged to make statements in respect of the activities in which he had been involved.

As regards the second applicant, the investigator had intended to hear him as a witness in the context of a criminal activity different from that of which he had later been accused. The second applicant had been fined as he had refused to indicate any reason for his refusal to make a witness statement in proceedings concerning the suspicion of a criminal activity unrelated to his person. The second applicant had thus not shown that he had had any grounds to fear that he risked incriminating himself by answering the investigator's questions in the case against I.

The imposition of the fines in issue was not, therefore, contrary to the applicants' rights under Article 6 § 1 of the Convention to remain silent and not to incriminate themselves.

2. The applicants

The applicants maintained that they had explicitly stated before the investigator that they had decided to remain silent with a view to avoiding the introduction of criminal proceedings against themselves. That fact was mentioned in the record of the interviews. The authorities' conclusion that they had not indicated why they had refused to make a statement was therefore arbitrary. Furthermore, the investigator who had imposed the fines had not informed the applicants of the position in the case and had offered no guarantees that they ran no risk of being prosecuted by answering the questions. According to the first applicant, the investigator had stated that he was one of the main suspects. The fact that several proceedings were brought subsequently in relation, in particular, to the first applicant's activity as a representative of the company ILaS Vranov, s.r.o. showed that their fear of making statements in the above case against Mr I. had been justified.

B. The Court's assessment

The Court recalls that, although not specifically mentioned in Article 6 of the Convention, the right to silence and the right not to incriminate oneself are generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6. Their rationale lies, inter alia, in the protection of the accused against improper compulsion by the authorities thereby contributing to the avoidance of miscarriages of justice and to the fulfilment of the aims of Article 6. The right not to incriminate oneself is primarily concerned with respecting the will of an accused person to remain silent. It presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused.

The Court's task has been to examine, in the light of all the circumstances of the case, whether the prosecution made use of the applicant's silence in such a way as to amount to an unjustifiable infringement of the right. In particular, it must be determined whether the applicant has been subject to compulsion to give evidence and whether the use made of the resulting testimony (or his silence, as the case may be) at his or her trial offended the basic principles of a fair procedure inherent in Article 6 § 1 of which the right not to incriminate oneself is a constituent element (for recapitulation of the relevant principles see, for example, Saunders v. the United Kingdom, judgment of 17 December 1996, Reports of Judgments and Decisions 1996 VI, §§ 68-69 and Condron v. the United Kingdom, no. 35718/97, § 56, ECHR 2000 V, both with further references).

In the decision on the admissibility of the present applications the Court concluded that the guarantees of Article 6 § 1 do not extend to the proceedings leading to the above imposition of fines on the applicants. It declared admissible the complaint concerning the privilege against self-incrimination. The sole issue to be determined in the present case is therefore whether the fact of the applicants' refusal to make a statement in respect of the proceedings against Mr I. had a bearing on the fairness of the applicants' trial.

The applicants were summoned to an interview as witnesses in the context of criminal proceedings against Mr I. registered under file number KÚV-80/20-98. Those proceedings concerned financial transactions in which I. had engaged in 1994 and 1997. There is no indication that the investigator anticipated the bringing of criminal proceedings against the applicants on the basis of the facts which underlay those transactions when he had summoned the applicants as witnesses. No criminal charges have been filed against them in that context subsequently.

The accusations which were later actually filed against the applicants concerned different facts, namely the alleged fraud and attempted money laundering in the context of transfer of securities of the company Transpetrol, a.s. The fact that, at a certain stage, the investigator joined the proceedings KÚV-80/20-98 in which the applicants had refused to make statements as witnesses and the proceedings KÚV-83/20-98 in which the first applicant was accused together with I. and several other persons of an offence unrelated to the offences investigated in proceedings KÚV-80/20-98 cannot affect the position.

The Court notes that the charges laid against the second applicant were dropped (see paragraph 17 above). Although this is not decisive, the Court has also noted that the domestic authorities differentiated between the situations in which the second applicant had availed himself of his right under Article 100 § 2 of the Code of Criminal Procedure. In particular, the Supreme Court's decision of 25 May 2006 indicates that the second applicant had refused to make statements as a witness at interviews on 11 February 2000, 10 May 2000 and 20 March 2001 in the context of criminal proceedings related to the transfer of securities of the company Transpetrol, a.s. (see paragraph 24 above). There is no indication that any compulsory measures were taken in respect of the second applicant in that context.

53. The Court's inquiry in the present case is therefore limited to the first applicant's trial. There is nothing to suggest that in the criminal proceedings pending against the first applicant the prosecuting authorities used the fact that he had refused to make a witness statement, in the course of the investigation into alleged offences committed by Mr I. in 1994 and 1997, in a manner which sought to incriminate the first applicant. Should such situation occur in the subsequent course of the criminal proceedings in issue, it will be open to the first applicant to seek redress before the competent domestic authorities and, ultimately, before the Court.

Thus it has not been established that the refusal of the first applicant to make a statement in respect of the proceedings against Mr. I. had any bearing on the fairness of his own trial.

In the applicants' case there has therefore been no violation of Article 6 § 1 of the Convention.

FOR THESE REASONS, THE COURT UNANIMOUSLY

Holds that there has been no violation of Article 6 § 1 of the Convention.

Done in English, and notified in writing on 19 June 2007, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Fatoş Aracı Nicolas Bratza
Deputy Registrar President

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the concurring opinion of Mr Garlicki is annexed to this judgment.

N.B.
F.A.

CONCURRING OPINION OF JUDGE GARLICKI

I am ready to accept the finding of no violation, but only because I think that the first applicant did not act in accordance with the requirement established in Article 110 § 2 of the Code of Criminal Procedure. This provision, as developed in the domestic practice (see paragraphs 40-41 of the judgment) allowed a refusal to make a statement only after a witness had informed the investigator about the reasons for such refusal. The domestic authorities, when examining the applicant's complaint about the fine, found that he had not indicated the reason for his refusal. Nor did the applicant, at any stage of the proceedings, challenge the compatibility of that requirement with the national Constitution or with the European Convention. This constitutes a sufficient ground not to accept the applicant's claim.

It would, for me, be more difficult to go beyond that formal ground and – as the majority did – to assess the claim on its merits. I am not convinced that this case may be properly addressed by assuming that Article 6 § 1 of the Convention does not apply to fines imposed as a consequence of a refusal to testify based on self-incrimination grounds. The right not to incriminate oneself constitutes one of the basic guarantees for persons who feel that a criminal investigation comes too close to their own security. Even if a compulsion to testify does not lead to any criminal charge and/or conviction against the person affected, the fact that such person had been fined (i.e. punished) for the refusal cannot remain outside the area protected by the Convention. Our interpretation of the Convention should not leave any gaps in that area, particularly in respect of the investigation stage when a witness testifies before a prosecutor and not before an impartial court.

However, in the present case it would be impossible to address that aspect, since the applicant's claim under Article 6 § 1 was declared inadmissible by an earlier decision. We have no alternative but to respect that decision. At the same time, however, any examination of the merits of the case would produce a dead-end situation in which either the finality of inadmissibility decisions or the essence of the protection against self-incrimination is undermined. The formal approach, as proposed in this opinion, allows both of those difficulties to be avoided.

This may warrant an additional observation. The practice of our Court has always accepted the possibility of revisiting any decision declaring a case admissible – Article 35 § 4 of the Convention constitutes a sufficient basis for such interpretation. At the same time, it has been recognised that that principle does not work the other way round and that a decision declaring a case or claim inadmissible immediately becomes final. While, in most cases, that approach seems to be correct and can be justified by the need for an orderly procedure, its absolute nature may be open to doubt.

There may be situations (as the present case amply demonstrates) where a decision as to the inadmissibility of one of the claims may simply appear erroneous when the judgment concerning the remaining claims is prepared. The text of Article 35 § 4 of the Convention is clear only as to the principle of non-finality of admissibility decisions and says nothing about inadmissibility decisions. A conclusion that Article 35 § 4 establishes the principle of finality of inadmissibility decisions seems to be based on an argumentum a contrario. But such an argument is, methodologically, not always defendable in the field of human rights. Its application results here in a situation where admissibility decisions (that usually respond to the applicant's position) are less safe than inadmissibility decisions (that are usually more in line with the government's arguments). This result is hardly compatible with the general logic of the Convention.

1 SKK 20,000 was the equivalent of 465 euros at that time.