AS TO THE ADMISSIBILITY OF
by Libor ČESKÝ
by Ota KOTÍK
against the Czech Republic
The European Court of Human Rights (Fifth Section), sitting on 7 April 2009 as a Chamber composed of:
Mirjana Lazarova Trajkovska,
Zdravka Kalaydjieva, judges,
and Claudia Westerdiek, Section Registrar,
Having regard to the above applications lodged on 7 May and 4 July 2001 respectively,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
The applicants, Mr Libor Český (application no. 76800/01, “the first applicant”) and Mr Ota Kotík (application no. 78801/01, “the second applicant”), are Czech nationals who were born in 1962 and 1955 respectively, and live in Roudnice and Prague respectively. The Czech Government (“the Government”) were represented by their Agent, Mr V.A. Schorm, from the Ministry of Justice.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. The first round of criminal proceedings
At the beginning of October 1990 the Czech authorities investigated a case of two missing persons. On 16 and 18 October 1990 a certain B. was heard, who stated that he and the applicants had decided to rob these people in the flat of one of them. B. did not know how the two persons had been killed, but he saw their bodies being removed from the apartment. According to B. the applicants had removed the bodies. Between 17 and 19 October 1990 seven witnesses (Ms M., Ms Ch., Mr Š., Mr R., Ms P., Mr B. and Ms Z.) were heard in absence of the first applicant and his lawyer. On 19 October 1990 the applicants were charged with complicity in robbery. On the same day, the second applicant was placed in custody. On 22 October 1990 the Prague Municipal Court (městský soud) ordered the first applicant's arrest. At the same time, a lawyer was appointed to him.
On 6 February 1993 the first applicant was arrested in Italy and, pursuant to an extradition warrant, he was extradited on 18 February 1993. On the next day, he was placed in custody.
On 2 July 1993 the Prague Municipal Prosecutor (městský státní zástupce) charged the applicants and B. with robbery before the Municipal Court. He requested the court to hear sixty-two witnesses and to consider further evidence taken during the investigation.
On 10 March 1994 the first applicant's lawyer requested the hearing of further witnesses and the appointment of a medical expert.
On 10 June 1994 the Municipal Court convicted the applicants and B. of robbery. It sentenced the first applicant to fifteen years' imprisonment, ordered the confiscation of his car and fined him CZK 4,372,000 (EUR 166,7101), and sentenced the second applicant to ten years' imprisonment. The applicants declined to give evidence. The court found it established that in October 1990 the applicants and B. had killed the two persons and stolen CZK 8,750,000 (EUR 333,649). It stressed that the first applicant had already been convicted of robbery in 1987.
On 16 January 1995 the Prague High Court (vrchní soud) quashed the first instance judgment and remitted the case to the Municipal Prosecutor for further investigations. It considered that the Municipal Court had not established all the relevant facts of the case with sufficient certainty.
2. The second round of criminal proceedings
On 14 April 1995 the investigator ordered a medical examination of the first applicant's mental health and appointed two experts for that purpose.
On 31 May 1996 the Municipal Prosecutor informed the applicants and B. that, having re-assessed the charges, he had decided to charge them with murder. At trial, the applicants and B. proposed that further evidence be produced.
On 17 December 1996 the Municipal Court convicted the applicants and B. of robbery and sentenced the first applicant as a very dangerous recidivist to thirteen years' imprisonment and ordered that his car be confiscated, and sentenced the second applicant to ten years' imprisonment and B. to fifteen years' imprisonment.
On 17 February 1997 the High Court quashed this judgment and remitted the case to the Municipal Court for a new decision on the merits. It considered that the lower court had not properly assessed the evidence, had not established all the relevant facts and had based its judgment on evidence which had not been produced before it. The High Court determined the evidence which had to be assessed.
3. The third round of criminal proceedings
On 8 July 1997 the Municipal Court again convicted the applicants and B. of robbery and sentenced the first applicant to thirteen years' imprisonment and ordered the confiscation of his car, again sentencing B. to fifteen years' imprisonment and the second applicant to ten years' imprisonment.
On 1 October 1997 the High Court quashed this judgment and sent the case back to the first instance, ordering that the case be heard by another chamber. It found, inter alia, that the Municipal Court had not respected the High Court's decision of 17 February 1997 and had practically copied its previous judgment.
4. The fourth round of criminal proceedings
In a judgment of 20 January 2000 comprising eighty-two pages, the Municipal Court convicted the applicants and B. of theft of CZK 5,837,143 (EUR 222,578), sentenced the first applicant as a very dangerous recidivist to twelve years' imprisonment and ordered the confiscation of his car, the second applicant to nine years' imprisonment and B. to fourteen years' imprisonment.
The court heard eight witnesses and read out statements of 109 other witnesses (including (Ms M., Ms Ch., Mr Š., Mr R., Ms P., Mr B. and Ms Z.), ordered six expert reports, viewed video evidence and assessed other evidentiary materials. None of the witnesses identified the applicants or their accomplice. There was no direct evidence against the three accused. The court relied on the complex, indirect incriminating evidence, which, it considered, enabled it, with sufficient certainty, to establish the relevant circumstances of the case: witnesses described the movement of three persons who could have been the three accused, a substantial sum of money was found on the accused who, immediately after the offence, bought cars and spent money on other expensive items, the applicant left the country for Italy where he changed his name. The court dealt with all questions and matters mentioned in the High Court's decision of 17 February 1997. Among other things, the court did not take into account the first two hearings of B. held on 16 and 18 October 1990.
At the trial, the first applicant requested that three further witnesses be heard to clarify his financial situation at the relevant time. The court rejected his request, stating that the proposed witness evidence would not affect its view of the applicant's guilt, its finding being based on completely different and more relevant facts.
The second applicant argued that the bank strips, with which wads of banknotes handled by him and the first applicant had been bundled together, had disappeared from the case file. The court accepted that there were some gaps in the file, which contained 6,000 pages. It was, however, of the opinion that this did not affect the state of the evidence, which had been based on the witness statements and other material evidence.
On 28 July 2000 the High Court, having held a hearing on 26 and 28 July 2000, quashed the first-instance judgment and decided anew finding the three accused guilty of theft of at least CZK 5,837,143 (EUR 222,578). It stated that the first-instance court had established all the relevant facts of the case and had assessed the evidence in an exhaustive and convincing manner. Nevertheless, it considered that the first applicant and B. could not be classified as extremely dangerous recidivists within the meaning of Article 41 § 1 of the Criminal Code referring in this respect to a significant delay which had elapsed between the crime and the conviction of the three accused, which reduced the degree of danger the crime presented for society. It therefore reduced the applicants' prison sentence to eight years.
On 19 September 2000 the second applicant filed a constitutional appeal (ústavní stíZnost) alleging a violation of Article 8 § 2 (right to liberty), Article 36 § 1, Article 38 § 2 and Article 40 §§ 2, 3 and 4 (presumption of innocence, defence rights and right to remain silent) of the Charter of Fundamental Rights and Freedoms (Listina základních práv a svobod).
On 9 October 2000 the first applicant lodged a constitutional appeal in which he alleged a violation of Article 8 § 2 (right to liberty) and Article 40 § 4 (right to remain silent) of the Charter.
On 8 February and 9 March 2001 respectively, the Constitutional Court (Ústavní soud) found the applicants' appeals clearly unsubstantiated.
On 28 February and 18 November 2003 respectively, the Municipal Court rejected the applicants' requests for re-opening of the criminal proceedings. On 15 April and 18 December 2003 respectively, the High Court dismissed the applicants' complaints against these two decisions.
On 7 December 2004 the Minister of Justice filed a complaint in the first applicant's favour, alleging a breach of law (stíZnost pro porušení zákona). The Minister's complaint was dismissed by the Supreme Court (Nejvyšší soud) on 28 April 2005.
B. Relevant domestic law and practice
The relevant domestic law and practice concerning remedies as regards the length of judicial proceedings are stated in the Court's decision in the case of Vokurka v. Czech Republic, no. 40552/02 (dec.), §§ 11-24, 16 October 2007).²
They further complained that they had been charged with robbery on the basis of B.'s statement which had been obtained illegally and had not been corroborated by any other evidence. The applicants underlined in this respect that B. had not been represented by a lawyer while the legal representation had been compulsory under the Code of Criminal Procedure and his interrogation had been carried out without the presence of an uninvolved person contrary to the Code of Criminal Procedure.
The first applicant added that he had been extradited in 1993 on the basis of a charge of robbery. However, this charge had been re-qualified to one of murder, which was contrary to the bilateral agreement between Italy and the Czech Republic.
The second applicant maintained, relying on Article 6 § 3 (c) of the Convention, that his defence rights had been violated since his request to adduce further evidence had been rejected.
The Government noted that the applicants could have resorted to the compensatory remedy provided for by Act no. 82/1998 and, therefore, failed to exhaust domestic remedies available to them.
The Court has already examined that remedy for the purposes of Article 35 § 1 of the Convention and found it effective in respect of complaints about the excessive length of judicial proceedings in the Czech Republic. In particular, it considered that it was capable of providing adequate redress for any breach of the reasonable time requirement that has already occurred (Vokurka v. Czech Republic, cited above, §§ 58-65).
However, the applicants despite having been informed by the Court of the possibility of using this remedy maintained that they should not be required to exhaust such a remedy. It thus appears that they have chosen not to avail themselves of this remedy.
The Court therefore considers that the applicants have not exhausted domestic remedies within the meaning of Article 35 § 1 of the Convention. This part of the application must therefore be declared inadmissible according to Article 35 § 4 of the Convention.
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal ... the press and public may be excluded from all or part of the trial in the interest of morals, ..., where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
3. Everyone charged with a criminal offence has the following minimum rights:
c. to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
d. to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;”
1. Submissions by the parties
The Government maintained that the applicants' complaints relating to the appointment of their defence counsel and their absence from the examination of the witnesses, the notification of the accusation as well as the police broadcasting in October 1990 were incompatible ratione temporis, outside the six-month time-limit and, in respect of the first applicant, also inadmissible for non-exhaustion of domestic remedies as he had not raised these objections, including the alleged violation of the principle of presumption of innocence, before the Constitutional Court. Moreover, the circumstances of the first applicant's accusation were examined in his previous application no. 33644/96 which was partly declared inadmissible as having been filed outside the six-month time-limit.
As to the merits, the Government maintained that the applicants' defence rights were not violated, and disputed their assertion that the courts did not take into account the evidence proposed by them. The applicants, throughout the criminal proceedings, had the opportunity to supplement the evidence and they took plentiful advantage of this. Where their requests were not granted, the court duly explained its course of action and allowed them to produce evidence that could contribute to the clarification of the case. The evidence proposed by the applicants which was not allowed by the court could not, according to the Government, influence the court decision or cast doubts on the applicants' guilt.
The Government did not deny that in the criminal proceedings there had been a number of procedural errors which, however, were remedied later upon the appellate court's initiative, and which did not have any influence on the right to a fair trial as a whole. They admitted that some of the witness examinations referred to by the applicants had been mentioned during the pre-trial proceedings, but if there actually had been any such procedural mistake in the preliminary proceedings, it was corrected in the proceedings before the court because during the trial hearings the witnesses were examined again and the courts based the reasoning of their decisions on these examinations. According to the Government, the Municipal Court conducted an extensive and exhaustive review of the evidence. In addition to B.'s inconsistent statements it based its factual findings on the above-mentioned witness statements of 117 persons, six expert opinions and extensive documentary evidence, which also contained the findings made by the police while inspecting the locus delicti. According to the Government, all the evidence was assessed in detail by the Municipal Court which paid due attention to the arguments of the defence, and took them into account in assessing the evidence, deducing that the applicants' acts had been convincingly clarified so that their guilt was beyond any doubt.
The applicants disputed the Government's arguments, referring, inter alia, to the complaint of breach of law lodged by the Minister of Justice in their favour. They argued that the first instance court had decided on the basis of the insufficiently established facts and had not assessed the evidence in accordance with its deep conviction based on the careful consideration of all the facts of the case, separately and jointly, irrespective of whether they had been supplied by the authorities acting in criminal matters or by one of the parties to the proceedings. Moreover, the court had not properly motivated its judgment. According to the applicants, the appellate court had not remedied to the procedural errors and had decided in a judgment the verdict of which had been unclear and unreviewable.
2. The Court's assessment
i. The applicants first complained that they had not had a fair trial, that their convictions had been based on insufficient and wrongly assessed indirect evidence produced before them without having applied the principle in dubio pro reo. The second applicant maintained that his defence rights had been violated since his request to complete evidence had been rejected.
The Court considers that in the present case it can leave open the question whether the applicants exhausted domestic remedies because even assuming that this requirement has been fulfilled their complaints are in any event inadmissible for the following reasons.
Court reiterates that, as a general rule, the assessment of the facts
and the taking of evidence and its evaluation is a matter which
necessarily comes within the appreciation of the national courts and
cannot be reviewed by the Court unless there is an indication that
the judges have drawn grossly unfair or arbitrary conclusions from
the facts before them (mutatis mutandis, Tamminen v.
Finland, no. 40847/98, § 38, 15 June 2004; García
Ruiz v. Spain [GC], no. 30544/96, § 28, ECHR 1999-I).
Moreover, it is primarily for the national authorities, notably the
courts, to interpret and apply domestic law (Streletz, Kessler and
Krenz v. Germany [GC],
no. 34044/96, 35532/97 and 44801/98, § 49, ECHR 2001-II).
More specifically, Article 6 § 3 (d) of the Convention leaves it to the national authorities, in principle, to assess whether it is appropriate to call witnesses, in the “autonomous” sense given to that word in the Convention system. It does not require the attendance and examination of every witness on the accused's behalf (Bricmont v. Belgium, 7 July 1989, Series A no. 158, § 89; Vidal v. Belgium, 22 April 1992, Series A no. 235-B, § 33). In respect of witnesses on behalf of the accused, only exceptional circumstances could lead the Court to conclude that a refusal to hear such witnesses violated Article 6 of the Convention (Bricmont v. Belgium, loc. cit). However, complete silence in a judgment as to why the court refused to hear a witness for the defence is not consistent with the concept of a fair trial envisaged by Article 6 of the Convention (Vidal v. Belgium, loc. cit).
Turning to the present case, the Court observes that the Municipal Court convicted the applicants after having heard eight witnesses, read out statements of one hundred and nine other witnesses, ordered six expert reports, viewed video evidence and assessed other evidentiary materials. The court relied on the complex, indirect incriminating evidence, which, it considered, enabled it, with sufficient certainty, to establish the relevant circumstances of the criminal case. Moreover, in rejecting the first applicant's request for further evidence in the course of the fourth round of criminal proceedings, the court explained why such evidence was irrelevant and unnecessary. In particular, it found that the witnesses requested by the first applicant – would have given evidence as to the applicant's financial affairs – were not relevant. The second applicant did not request further witnesses.
The Court finds that having regard to the quantity and quality of the indirect evidence adduced by the prosecution, it does not appear that the first instance court's conclusion on the strength of the prosecution case was in any way arbitrary, the more so since the High Court reviewed its assessment on all relevant points and confirmed its findings, reducing, at the same time, the applicant's prison sentence.
ii. The applicants further complained that the national courts had not motivated their decisions.
The Court reiterates that, according to its established case-law reflecting a principle linked to the proper administration of justice, judgments of courts and tribunals should adequately state the reasons on which they are based. The extent to which this duty to give reasons applies may vary according to the nature of the decision and must be determined in the light of the circumstances of the case (García Ruiz v. Spain, cited above). Moreover, although the Convention obliges the courts to give reasons for their judgments, this obligation cannot be understood as requiring a detailed answer to any argument put forward (Van de Hurk v. the Netherlands, judgment of 19 April 1994, Series A no. 288, § 61).
The Court notes that it transpires from the Municipal Court's judgment of 20 January 2000 that this court carefully examined and assessed all the evidence administered at the main hearing. The judgment contained twenty-nine pages of legal reasoning as to how the Municipal Court assessed the evidence and other ten pages as to why the applicants' arguments and submissions were unsubstantiated or irrelevant.
In its judgment of 28 July 2000, the High Court, having examined the circumstances of the case and the findings of the Municipal Court, found that the latter had correctly established all the relevant facts and had assessed the evidence in an exhaustive and convincing manner. As it has already been mentioned above (i.), it did not share the Municipal Court's opinion as to the length of the term of imprisonment of the applicants and, therefore, mitigated their sentences. The Court notes that the fact that the High Court partly endorsed the factual and legal findings of the Municipal Court does not suggest that it failed to adopt a reasoned decision (see, mutatis mutandis, Helle v. Finland, judgment of 19 December 1997, Reports 1997-VIII, §§ 59-60; García Ruiz v. Spain [GC], no. 30544/96, § 26, ECHR 1999-I; and Hirvisaari v. Finland, no. 49684/99, § 30, 27 September 2001).
iii. The applicants also complained that they had been charged with robbery on the basis of B.'s statement which had been obtained illegally because it had not been carried out in the presence of an independent person, had not been recorded, B. had not been warned of his right not to testify and to have a lawyer appointed. Moreover, B.'s statement had not been corroborated by any other evidence.
The Court finds the applicants' allegation unsubstantiated as it appears from the judgment of the Municipal Court of 20 January 2000 that the court excluded the evidence obtained from the first two hearings of B. on 16 and 18 October 1990.
iv. The first applicant further maintained, still in the context of Article 6 of the Convention, that he had been extradited in 1993 on the basis of a charge of robbery. However, this charge had been re-qualified to one of murder, which was contrary to the bilateral agreement between Italy and the Czech Republic.
The Court notes that the first applicant's arrest and extradition from Italy to the Czech Republic was examined from the standpoint of Article 5 of the Convention in his previous application no. 33644/961. Moreover, although the first applicant was initially charged with murder, in apparent breach of the terms of the extradition agreement, he was ultimately convicted of theft, which was covered by the extradition agreement. Therefore, assuming the point to be relevant to a consideration of Article 6, the complaint is unsubstantiated.
v. The first applicant also maintained that his defence rights had been breached because he and his lawyer had not been present at a hearing of seven witnesses between 17 and 19 October 1990.
The Court observes that these hearings took place prior to 18 March 1992, which is the date of which the Convention entered into force in respect of the Czech Republic. This complaint is therefore incompatible ratione temporis with the provisions of the Convention. In any case, the testimonies of these witnesses were taken into account by the trial court which delivered the meritorious judgment on 20 January 2000 following the main hearing held in the applicants' presence.
Taken as a whole, the applicant's complaints under Article 6 of the Convention are therefore manifestly ill-founded and must be rejected under Article 35 §§ 3 and 4 of the Convention.
5. The second applicant also alleged a violation of Article 5 § 2 of the Convention which provides:
“Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.”
The Court observes that the second applicant was arrested and placed in custody on 18 October 1990. However, as it has been mentioned above, the Convention entered into force in respect of the Czech Republic on 18 March 1992.
It follows that this complaint is incompatible ratione temporis with the provisions of the Convention within the meaning of Article 35 § 3 of the Convention and must be rejected in accordance with Article 35 § 4 of the Convention.
For these reasons, the Court by a majority
Decides to join the applications;
Declares the applications inadmissible.
Claudia Westerdiek Rait Maruste
1 1 EUR = 26.28 CZK
1 Decision of 31 August 1999