THIRD SECTION
Application no. 36997/08
Mikuláš CERNÁK
against Slovakia
lodged on 22 July 2008
STATEMENT OF FACTS
1. The applicant, Mr Mikuláš Cernák, is a Slovak national, who was born in 1966, and presently serves a life sentence in the Ilava prison. He is represented before the Court by Mr J. Gereg, a lawyer practising in Banská Bystrica.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Background
2. By way of a series of judgments of 2000, 2001 and 2002, the applicant was acquitted of murder and found guilty of extortion, tax fraud and customs fraud, for which he was sentenced to eight and a half years’ imprisonment (see Cernák v. Slovakia (dec.), no. 67431/01, 1 March 2005).
The applicant was serving this sentence until 2002, when he was released on parole.
3. In 2003 a warrant was issued in Slovakia for the applicant’s arrest for the purpose of carrying out the remainder of his sentence; he was arrested in the Czech Republic, and he was extradited to Slovakia.
4. The term of the applicant’s sentence came to an end on 26 October 2006.
5. However, prior to that date, the applicant was remanded in detention on newly brought charges, which lead to a new trial and conviction.
The details are summarised below.
2. Murder trials
(a) Charges
6. The applicant was charged with seven counts of murder and conspiracy in murder, on 22 December 2005 and 15 February, 4 April and 25 October 2006 and 21 February 2007, respectively.
The murders in question had taken place before the applicant’s extradition to Slovakia in 2003 (see paragraph 3 above).
The proceedings on all these charges were joined, on 26 February 2007, and the proceedings in respect of one count of murder were hived off, on 10 June 2007.
(b) Initial pre-trial detention
7. Meanwhile, on 24 October 2006, the Banská Bystrica District Court (Okresný súd) had remanded the applicant in detention pending trial on the charge of 15 February 2006. The detention was to commence as soon as the applicant would complete his sentence (see paragraphs 2 and 4 above).
Following the applicant’s interlocutory appeal (stažnost), the detention order was upheld by the Banská Bystrica Regional Court (Krajský súd), on 15 November 2006.
8. The applicant remained detained until his release on 1 February 2007 pursuant to a decision of the Banská Bystrica Regional Court of the same day to uphold a release order by the Banská Bystrica District Court of 21 December 2006.
The courts held that the applicant’s charge of 15 February 2006 was in breach of the rule of speciality under Article 14 of the European Convention on Extradition 1957 (“the ECE”) with respect to the applicant’s extradition in 2003 (see paragraph 3 above), and so was his detention on that charge.
It was also held that, consequently, the charge against the applicant and any procedural action taken in the framework of the proceedings against him on that charge was flawed in law.
Nevertheless, the applicant’s prosecution could proceed subject to additional consent by the Czech Republic.
9. Immediately on his release, the applicant was rearrested and subsequently re-remanded, the details being described below.
(c) Consent by the Czech Republic to the applicant’s prosecution in Slovakia
10. Meanwhile, on 19 and 26 January 2007 respectively, the Prague (the Czech Republic) Municipal Court (Mestský soud) and, following the applicant’s appeal, the Prague High Court (Vrchní soud) had given consent to the applicant’s trial in Slovakia on the charge of 25 October 2006.
The decision was based on a European arrest warrant (“EAW”) by the Prešov (Slovakia) District Court of 22 December 2006 in respect of the applicant and the charge in question.
11. On 19 April and 2 May 2007 respectively, the Prague City Court and, following the applicant’s appeal, the Prague High Court gave consent to the applicant’s trial in Slovakia on the charges of 22 December 2005, 15 February and 4 April 2006 and 21 February 2007.
The decision was based on a EAW by the Prešov District Court of 2 March 2007 in respect of the applicant on the charges in question.
(d) Renewed pre-trial detention
12. After his re-arrest on 1 February 2007 (see paragraph 9 above), the following day, that is to say on 2 February 2007, the applicant was brought before a single judge of the Prešov District Court for a habeas corpus hearing. He was questioned in the presence of three counsels and his detention was ordered pending trial on the charge of 25 October 2006 in order to prevent him from absconding. The decision relied on the EAW of 22 December 2005 and the ensuing consent by the Czech Republic (see paragraph 10 above).
13. On the pronouncement of the detention order both the defence and the Public Prosecution Service (“the PPS”) declared orally that they wished to appeal. The PPS subsequently supplied the grounds of their appeal in writing while the defence waited for a written version of the detention order of 2 February 2007 to be served on them so that they could contest it properly.
14. On 12 February 2007 the Prešov Regional Court dismissed the appeal by the defence in a private session (neverejné zasadnutie) without hearing the defence. The decision was taken prior to the service of the detention order on the defence and, therefore, in the absence of their grounds for appealing.
In the same decision, the Regional Court allowed the appeal by the PPS in as much as they were seeking an extension of the grounds for detaining the applicant so as to prevent him from reoffending. In that respect, the Regional Court referred, inter alia, to the applicant’s previous conviction for violent offences and his further charges of 22 December 2005 and 4 April 2006.
The written version of the detention order of 2 February 2007 was eventually served on the defence on the same day, that is to say on 12 February 2007, but only after the Regional Court had dismissed their appeal as mentioned above.
(e) Extension of pre-trial detention
15. On 6 July 2007 the PPS requested an extension of the applicant’s detention by 6 months, that is to say until 1 February 2008. A copy of the request was served on the applicant on 9 July 2007. The following day, on 10 July 2007, a single judge of the Prešov District Court acceded to the request, without hearing the applicant. The decision relied on the EAWs of 22 December 2005 and 2 March 2007 and the ensuing consents by the Czech Republic (see paragraphs 10 and 11 above).
16. On 25 July 2007 the Prešov Regional Court dismissed the applicant’s interlocutory appeal finding that the grounds for detaining him persisted, as established at the time of his remand, and observing that the joinder of all the charges against the applicant had given rise to a complex trial that required adequate time.
The Regional Court also observed that the PPS’s request for an extension of the applicant’s detention (see the precedent paragraph) had been served on him on 9 July 2007; that the defence had not reacted in respect of it in any way; that the applicant’s interlocutory appeal contained no information calling for a public hearing; and that the applicant had not requested expressly that he be questioned orally.
(f) Constitutional complaint in respect of the renewal and extension of pre-trial detention
17. On 5 April 2007 the applicant lodged a complaint under Article 127 of the Constitution with the Constitutional Court (Ústavný súd) alleging a violation of his rights under Articles 5 §§ 1 (c), 3 and 4 of the Convention.
18. In particular, the applicant argued that the renewal of his detention was linked to charges for offences that were alleged to have taken place prior to his extradition from the Czech Republic in 2003 (see paragraph 3 above); that the Czech Republic had effectively not consented to his prosecution on those charges; and that, consequently, there was a breach of the rule of speciality under Article 14 of the ECE.
The applicant also contested that the subsequent EAWs had been issued and the ensuing extradition procedure had been carried out in secret, without his knowledge, and without an opportunity for him to comment.
Furthermore, the applicant contended that he had not been served in good time a copy of the detention order of 2 February 2007 and of the PPS’s interlocutory appeal to be able to appraise and contest them (see paragraphs 12-4 above).
19. On 2 August 2007 the applicant amended his constitutional complaint in that he alleged a violation of his rights under Article 5 § 4 of the Convention claiming that the decision to extend his renewed detention had been taken without his presence and hearing and it had not been supported by adequate reasons.
20. On 29 November 2007 the Constitutional Court declared the complaint inadmissible. It established, inter alia, (i) that the renewal of the applicant’s detention had been prompted by an application from the PPS; (ii) that a copy of this application had not been served on the defence; (iii) that the detention order of 2 February 2007 had been served on the applicant’s counsel on 12 February 2007, that is to say on the same day when the applicant’s interlocutory appeal against that detention order had been dismissed; (iv) that neither the application for the EAWs nor for the applicant’s extradition from the Czech Republic had been communicated to the defence; (v) that that there was no statutory duty to have an application for an EAW, a detention order, and a foreign consent to prosecution served on the person concerned; (vi) that neither was there any time-limit for serving a copy of the PPS’s reasons on that person; (vii) that the applicant and his three counsels had been heard by a judge on 2 February 2007; and (viii) that the defence had had and had exercised their rights to inspect the content of the case-file.
21. The Constitutional Court found that the ordinary courts had properly examined the case and had supported their decisions by adequate reasons free from constitutionally relevant arbitrariness.
22. The Constitutional Court’s decision was served on the applicant’s lawyer on 24 January 2008.
(g) Indictment and subsequent detention
23. The decision applicant’s pre-trial detention was extended by the Prešov Regional Court on 22 December 2008, until 1 April 2008.
24. However, meanwhile, on 13 February 2008, the applicant had been indicted to stand trial on the remaining charges of murder and conspiracy in murder on six counts (see paragraph 6 above).
25. On 14 March 2008 the Prešov District Court ruled that the applicant should remain detained on the same grounds as when remanded.
(h) Confirmation of detention and related constitutional complaint
26. On 25 September 2008 the Prešov District Court held a public session (verejné zasadnutie) with a view to examine the indictment preliminarily. The applicant was heard, contending inter alia that his extradition from the Czech Republic had been unlawful and that his detention in Slovakia was in breach of the rule of speciality as mentioned above.
27. Following the session of 25 September 2008, on the same day, the District Court ruled that the applicant’s detention should continue on the same grounds as when remanded.
28. The applicant challenged the decision by way of an interlocutory appeal, arguing mainly that there were no lawful charges to detain him on as the existing charges against him were in breach of Article 14 of the ECE as mentioned above.
29. On 21 October 2008 the Prešov Regional Court dismissed the applicant’s interlocutory appeal summarising the District Court’s reasons and fully subscribing to them.
30. On 18 December 2008 the applicant lodged a complaint under Article 127 of the Constitution, to which he added further grounds of complaint on 5, 9 and 16 February 2009. Relying on Articles 5 §1 (c) and 6 § 1 of the Convention, he contested the confirmation of his detention arguing mainly that it was in breach of the specialty rule and that the courts had ignored his objections to that effect.
31. On 14 October 2009 the Constitutional Court declared the complaint inadmissible. It observed that the applicant had or must have known of the unlawfulness alleged in the present complaint at the latest when he had introduced his previous constitutional complaint, on 5 April 2007 (see paragraph 17 above), which had been declared inadmissible on 29 November 2007 (see paragraphs 20 et seq. above). However, the present complaint had only been introduced on 18 December 2008, which was after the statutory two-month time-limit. The complaint was therefore belated. Lastly, observing that the applicant’s trial was ongoing, the Constitutional Court held that it was still open to the applicant to assert his rights before the ordinarily courts.
The decision was served on the applicant’s lawyer on 9 November 2009.
(i) Conviction and related constitutional complaint
32. On 10 November 2009 the applicant was found guilty and sentenced for life. His appeal was dismissed on 22 September 2010 and his constitutional complaint was declared inadmissible on 3 May 2011.
33. As to the applicant’s contentions in respect of the speciality rule, the Constitutional Court found, inter alia, that the applicant’s prosecution in Slovakia after his extradition from the Czech Republic in 2003 for offences that had taken place before the extradition had been allowed by virtue of the additional consents of the Czech Republic (see paragraphs 10 and 11).
34. In so far as any procedural actions had been taken prior to these additional consents, the Constitutional Court found that they had all been subsequently repeated. However, this factual finding is being contested by the applicant. Nevertheless, the Constitutional Court concluded that any such procedural actions had thereby been legalised.
35. The Constitutional Court also found that, in the circumstances of the present case, the using of a EAW with a view to obtaining subsequent consent of the Czech Republic for the prosecution of the applicant in Slovakia was not contrary to the object and purpose of the applicable rules despite the applicant’s being detained in Slovakia at that time.
36. Moreover, the Constitutional Court found that, as the applicant’s prosecution in Slovakia had been subsequently consented to by the Czech Republic, there was no need to deal with his objection that he had not been heard in the extradition proceedings.
In sum, the Constitutional Court held that there had been no breach of the speciality rule under Article 14 of the ECE.
37. The applicant’s trial and conviction as such are the subject matter of a separate application under the Convention, registered under file no. 1702/11.
B. Relevant domestic law
Criminal Procedure Code (Law no. 301/2005 Coll., as amended)
38. Pursuant to Article 9 § 1 (b), criminal prosecution is not permissible if it is subject to consent which has not been given by the competent authority.
39. Under Article 72 § 2 proceedings and decisions concerning detention may only be taken in respect of a person against whom charges have been brought.
40. The speciality rule is embodied in Article 496, which provides that an extradited person is not to be proceeded against for any offences committed prior to his or her surrender other than for which he or she was extradited (paragraphs 1) unless, inter alia, the surrendering State waives the rule or grants additional consent to that person’s prosecution.
C. European Convention on Extradition
41. The relevant provisions of the ECE are summarised, for example, in Woolley v. the United Kingdom (no. 28019/10, § 67, 10 April 2012).
42. Following its ratification byt the Czech and Slovak Federal Republic (Notice of Federal Ministry of Forren Affairs no. 549/1992 Coll.), the ECE entered into force in resepct of Slovakia on 1 January 1993.
COMPLAINTS
43. Relying on Articles 5 § 1 (c) and 6 § 1 of the Convention, the applicant complains that his detention on remand following the detention order of on 2 February 2007 was unlawful in that it was in breach of the speciality rule under Article 14 of the ECE.
44. The applicant also complains that the proceedings in respect of (i) his interlocutory appeal against the detention order of 2 February 2007 and (ii) the extension of his detention following the PPS’s application of 6 July 2007 were incompatible with the guarantees of Article 5 § 4 of the Convention because:
(a) at the time of his remand he had not been served a copy of the PPS’s application for the EAW of 22 December 2005, Slovakia’s request for additional consent by the Czech Republic with his prosecution in Slovakia, the PPS’s application for the detention order of 2 February 2007 and their written grounds for appealing it;
(b) the detention order of 2 February 2007 had only been served on him after his interlocutory appeal against that order had been dismissed; and
(c) the decisions on his interlocutory appeal against the detention order of 2 February 2007 and on the extension of his detention were taken without hearing him.
QUESTIONS TO THE PARTIES
1. Following the detention order of 2 February 2007, was the applicant deprived of his liberty in breach of Article 5 § 1 (c) of the Convention? In particular, in view of the specialty rule, was the applicant’s detention lawful?
2. Was the procedure by which the applicant sought to challenge the lawfulness of his detention order of 2 February 2007 and the extension of his detention following the Public Prosecution Services’ application of 6 July 2007 in conformity with Article 5 § 4 of the Convention, in particular in view of his claim that relevant documents had not been served on him at all or in due time, and the fact that he had not been heard in person (see, mutatis mutandis, Michalko v. Slovakia, no. 35377/05, § 159, 21 December 2010, Mamedova v. Russia, no. 7064/05, § 90, 1 June 2006, and Jankauskas v. Lithuania (dec.), no. 59304/00, 16 December 2003)?
