AS TO THE ADMISSIBILITY OF
Application No. 31902/96
by Jozef HRENÁK
against the Slovak Republic
The European Commission of Human Rights (Second Chamber) sitting
in private on 3 December 1997, the following members being present:
Mrs G.H. THUNE, President
MM J.-C. GEUS
G. JÖRUNDSSON
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
F. MARTINEZ
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
P. LORENZEN
E. BIELIUNAS
E.A. ALKEMA
A. ARABADJIEV
Ms M.-T. SCHOEPFER, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection
of Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 18 March 1996 by
Jozef HRENÁK against the Slovak Republic and registered on 13 June 1996
under file No. 31902/96;
Having regard to the report provided for in Rule 47 of the Rules
of Procedure of the Commission;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a Slovak national born in 1958. At the relevant
time he was detained in the Leopoldov prison.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
A. The particular circumstances of the case
On 7 May 1991 the applicant was remanded in custody. On
20 August 1991 the Povazská Bystrica District Court (Okresny súd)
convicted the applicant of robbery and theft. The court imposed a
combined eight years and four months' prison sentence on the applicant
pursuant to Section 35 (1) of the Criminal Code (see "Relevant domestic
law and practice" below). The District Court's judgment became final
on 15 October 1991 and the applicant started to serve his sentence.
On 10 December 1991 the Povazská Bystrica District Court, in the
context of different proceedings, convicted the applicant of theft.
The District Court set aside the applicant's combined sentence of
20 August 1991 and imposed a consolidated nine years' prison sentence
on him pursuant to Section 35 (2) of the Criminal Code. The judgment
of 10 December 1991 became final on 5 February 1992.
On 8 June 1995 the Supreme Court (Najvyssí súd) found, upon a
complaint lodged by the Public Prosecutor, that the applicant's
conviction of theft of 10 December 1991 was unlawful. The Supreme
Court quashed the District Court's judgment of 10 December 1991 and
discontinued the proceedings leading to that judgment.
On 5 September 1995 the Povazská Bystrica District Court
dismissed the applicant's request for reopening of the proceedings
leading to the judgment of 20 August 1991. On 22 November 1995 the
Banská Bystrica Regional Court (Krajsky súd) rejected the applicant's
complaint against this decision.
The applicant considered that after the judgment of
10 December 1991 had been quashed there existed no legal ground for his
further detention and requested his release.
On 28 September 1995 the president of the Povazská Bystrica
District Court's chamber sent a decision by which the execution of the
applicant's sentence of 20 August 1991 had been ordered to the
Leopoldov prison administration. The accompanying letter stated that
as a result of the Supreme Court's decision of 8 June 1995 the judgment
of 20 August 1991 had become binding and enforceable and that the
applicant had to continue serving his sentence under that judgment.
On 10 October 1995 the Ministry of Justice informed the applicant
that as a result of the Supreme Court's judgment of 8 June 1995 the
binding effect of the Povazská Bystrica District Court's judgment of
20 August 1991 had been renewed ex lege and that the applicant had
therefore to continue the service of the eight years and four months'
prison sentence which had been imposed on him by that judgment. The
Ministry further noted that the applicant was considered to be serving
the aforesaid sentence as from 7 May 1991 and that the order concerning
the execution of that sentence had been delivered to the Leopoldov
prison administration.
On 11 October 1995 the Director-General of the Prisons and Courts
Guard informed the applicant that the Supreme Court's judgment of
8 June 1995 had automatically renewed the binding effect of the
Povazská Bystrica District Court's judgment of 20 August 1991. The
letter further stated that subsequently the District Court had sent the
relevant documents concerning the execution of the applicant's sentence
to the Leopoldov prison administration.
On 24 October 1995 the Public Prosecutor's Office dismissed, for
the same reasons, the applicant's complaint about the unlawfulness of
his detention.
On 9 January 1997 the Trnava District Court granted the applicant
conditional release.
B. Relevant domestic law and practice
Pursuant to Section 35 (1) of the Criminal Code, when a court
convicts a person of two or more offences it shall impose a combined
sentence (úhrnny trest) pursuant to the relevant provision of law
which covers the offence punishable with the severest of the penalties
available for the individual offences.
Section 35 (2) of the Criminal Code provides that a court shall
impose a consolidated sentence (súhrnny trest) according to the
principles set out in Section 35 (1) when it convicts a person of an
offence which he or she had committed before the first instance court
convicted him or her of another offence. Along with its pronouncing
a consolidated sentence the court shall set aside the sentence imposed
by the earlier judgment.
Section 139 (1) of the Code of Criminal Procedure provides as
follows:
"A judgment shall become final and, unless this law provides
otherwise, also enforceable if
a) the law provides for no appeal against it,
b) the law provides for an appeal against it but
aa) no appeal was lodged within the time-limit set for this
purpose,
bb) the persons entitled to lodge an appeal expressly waived
their right to do so or withdrew their appeal, or
cc) an appeal was rejected."
According to the case-law of the Supreme Court (Najvyssí súd)
relating to Section 139 of the Code of Criminal Procedure and published
in the Collection of Judicial Decisions and Opinions (Zbierka súdnych
rozhodnutí a stanovísk) under No. R 58/1977, the binding effect of the
part of an earlier judgment by which a sentence had been imposed and
which was subsequently set aside while a consolidated sentence was
pronounced pursuant to Section 35 (2) of the Criminal Code shall be
renewed when the judgment by which a consolidated sentence was imposed
is quashed.
COMPLAINTS
The applicant complains under Article 5 para. 1 of the Convention
that his detention after 8 June 1995 had no legal basis in Slovak law.
The applicant further complains that his rights under Article 6
para. 1 of the Convention and Articles 3 and 4 of Protocol No. 7 were
violated by the authorities which dealt with his complaints about the
unlawfulness of his detention and with his request for reopening of the
criminal proceedings against him.
THE LAW
1. The applicant complains that his detention after 8 June 1995 was
unlawful as it had no legal basis in Slovak law. He alleges a
violation of Article 5 para. 1 (Art. 5-1) of the Convention which
provides, in so far as relevant, as follows:
"Everyone has the right to liberty and security of person.
No one shall be deprived of his liberty save in the following
cases and in accordance with a procedure prescribed by law:
a. the lawful detention of a person after conviction by
a competent court;"
...
The Commission recalls that the requirement that a person's
deprivation of liberty be "in accordance with a procedure prescribed
by law" and "lawful" set out in Article 5 para. 1 (Art. 5-1) of the
Convention refers back to domestic law and states the obligation to
conform to the substantive and procedural rules of that law. In
addition, it requires that any deprivation of liberty should be
consistent with the purpose of Article 5 (Art. 5), namely to protect
individuals from arbitrariness.
The Commission further recalls that it is in the first place for
the national authorities, notably the courts, to interpret and apply
domestic law. However, since under Article 5 para. 1 (Art. 5-1)
failure to comply with domestic law entails a breach of the Convention,
the Convention organs can and should exercise a certain power to review
whether this law has been complied with (see Eur. Court HR, Tsirlis and
Kouloumpas v. Greece judgment of 29 May 1997, Reports 1997-III, No. 38,
paras. 56-57, with further references).
The Commission notes that in the present case the Povazská
Bystrica District Court sentenced the applicant, on 20 August 1991, to
eight years and four months' imprisonment. On 10 December 1991 the
same court convicted the applicant of another offence and imposed a
consolidated nine years' prison sentence on him. At the same time, the
District Court set aside, pursuant to Section 35 (2) of the Criminal
Code, the original sentence which it had imposed on the applicant on
20 August 1991.
On 8 June 1995 the Supreme Court found the applicant's conviction
of 10 December 1991 unlawful and quashed the relevant judgment of the
Povazská Bystrica District Court. As a result, the decision of
10 December 1991 to set aside the sentence of 20 August 1991 also
became void and, in accordance with Section 139 (1) of the Code of
Criminal Procedure, as interpreted and applied by the Slovak courts,
the part of the judgment of 20 August 1991 by which an eight years and
four months' prison sentence had been imposed on the applicant became
binding and enforceable again. Subsequently the applicant remained
detained for the purpose of serving the remainder of the aforesaid
sentence.
In these circumstances, the Commission considers that the
applicant's detention in question was a lawful detention after
conviction by the competent court within the meaning of Article 5
para. 1 (a) (Art. 5-1-a) of the Convention.
It follows that this part of the application is manifestly ill-
founded within the meaning or Article 27 para. 2 (Art. 27-2) of the
Convention.
2. The applicant further complains that his right to a fair and
public hearing was violated in the proceedings concerning his requests
for release and for reopening of the criminal proceedings against him.
He alleges a violation of Article 6 para. 1 (Art. 6-1) of the
Convention which, in so far as relevant, provides as follows:
"In the determination of his civil rights and obligations or of
any criminal charge against him, everyone is entitled to a fair
and public hearing ... by an independent and impartial tribunal
established by law..."
a) To the extent that the applicant alleges a violation of Article 6
para. 1 (Art. 6-1) of the Convention in the proceedings concerning his
complaints about the unlawfulness of his detention and requests for
release, the Commission recalls that the right to liberty is not a
civil right within the meaning of Article 6 (Art. 6) of the Convention
(see No. 11352/85, Dec. 10.12.85, D.R. 45, pp. 273 and 275, with
further reference).
Furthermore, the Commission has found above that the applicant's
detention after 8 June 1995 had as its basis his conviction by the
Povazská Bystrica District Court of 20 August 1991. The aforesaid
judgment was final and enforceable and, in the Commission's view, the
applicant's subsequent complaints challenging the lawfulness of his
detention did not concern the determination of any separate criminal
charge against him within the meaning of Article 6 (Art. 6) of the
Convention.
b) To the extent that the applicant alleges a violation of Article 6
para. 1 (Art. 6-1) of the Convention in the proceedings concerning his
request for reopening of the criminal proceedings against him, the
Commission recalls that Article 6 (Art. 6) is not applicable to
proceedings concerning an application for a retrial after conviction
(see No. 13601/88 and No. 13602/88, Dec. 6.7.89, D.R. 62, pp. 284, 291,
with further references).
If follows that this part of the application must be rejected as
being incompatible ratione materiae with the Convention within the
meaning of Article 27 para. 2 (Art. 27-2) of the Convention.
3. Finally, the applicant alleges a violation of Articles 3 and 4
of Protocol No. 7 (P7-3, P7-4).
The Commission has examined these complaints but finds that in
so far as they have been substantiated and are within its competence,
they do not disclose any appearance of a violation of the rights and
freedoms set out in the Convention or in its Protocols.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.-T. SCHOEPFER G.H. THUNE
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy