Published on 27 February 2023
FIRST SECTION
Applications nos. 38838/21, 39024/21, 45671/21 and 15011/22
Roderik ABAFFY
against Slovakia
lodged on 29 July, 29 July and 8 September 2021 and 15 March 2022
respectively
communicated on 9 February 2023
SUBJECT MATTER OF THE CASES
The applications concern the applicant’s continued detention on remand in connection with his prosecution for fraud, based on a suspicion that, along with several others, they created an organised structure for selling to random buyers real property belonging to unrelated third parties on the basis of forged documents.
The applicant was remanded on 19 October 2018 and the present four applications concern the part of his detention that was based on the risk that he would continue criminal activities, as covered by the Constitutional Court’s decisions of 27 January, 9 February, 6 May and 21 October 2021 (file nos. III. US 19/21, IV. US 64/21, II. US 236/21 and IV. US 541/21, respectively).
In support of their finding that there was such a risk, the courts referred to the applicants’ two previous convictions, the latter being for an offence (criminal damage) committed while he was on parole in relation to the former (extortion), and the character of the offence of which he stood accused in the present case (fraud committed over a longer period of time, consisting of several incidents, and the applicant having played a leading role in the whole scheme). In its decisions file nos. IV. US 64/21 and IV. US 541/21, the Constitutional Court also held that, unlike with the other grounds for detention on remand, if it was based on the risk of reoffending, this risk stemmed from facts existing already at the time of the commission of the offence and being impervious to passage of time.
The applicant argues that his previous convictions were not relevant as they had been for a generically different type of offences and that the remaining grounds were abstract, stereotyped and in all four sets of decisions repetitive without adding anything new.
As the offence of fraud with which the applicant had been charged was considered to be particularly grave (obzvlášť závažný zločin), under Article 80 § 2 of the Code of Criminal Procedure any possibility for his detention to be replaced by alternative measures was limited to instances when this was justified by exceptional circumstances (výnimočné okolnosti prípadu) and no such circumstances were found to be present in his case.
Following the detention at stake in this case, on 25 May 2021 the applicant was found guilty and sentenced to twelve years’ imprisonment and his conviction has meanwhile become final.
The case raises an issue under Article 5 § 3 of the Convention.
QUESTIONS TO THE PARTIES
Was the applicant’s continued detention under the decisions of the ordinary courts that ultimately resulted in the Constitutional Court’s decisions of 27 January, 9 February, 6 May and 21 October 2021 in conformity with the Article 5 § 3 of the Convention?
In particular, at the given point in time,
- in view of the reasons given by the courts in their decisions and the facts stated by the applicant in his appeals (see McKay v. the United Kingdom [GC], no. 543/03, § 43, ECHR 2006-X), was his continued detention supported by “relevant and sufficient” reasons (see Buzadji v. the Republic of Moldova [GC], no. 23755/07, § 92, 5 July 2016)?
- in the light of the circumstances of the case and in particular the past history and the personality of the applicant, was the danger of his reoffending plausible and was his detention appropriate a measure of response (see, for example, Clooth v. Belgium, 12 December 1991, § 40, Series A no. 225 and Toth v. Austria, 12 December 1991, § 70, Series A no. 224)?
- in view of all the circumstances, including the limitations stemming from Article 80 § 2 of the Code of Criminal Procedure, was the duty complied with to consider alternative measures of ensuring the applicant’s appearance at trial (see Jabłoński v. Poland, no. 33492/96, § 83, 21 December 2000)?