AS TO THE ADMISSIBILITY OF
Application No. 24211/94
by Ondrej KAJBA
against the Czech Republic
The European Commission of Human Rights sitting in private on
11 January 1995, the following members being present:
Mr. H. DANELIUS, President
Mrs. G.H. THUNE
MM. G. JÖRUNDSSON
S. TRECHSEL
J.-C. SOYER
H.G. SCHERMERS
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
Mr. K. ROGGE, 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 24 August 1993 by
Mr. Ondrej Kajba against the Czech Republic and registered on
27 May 1994 under file No. 24211/94;
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 facts of the case, as they have been submitted by the
applicant, may be summarised as follows.
The applicant, born in 1955, is a Czech national. When his
application was introduced he was detained in prison in Ostrava-Poruba
(the Czech Republic).
A. Particular circumstances of the case
On 4 February 1992 the applicant was charged with assault on his
girlfriend under Article 222 para. 1 in connection with Article 8 para.
1 of the Criminal Code.
On the same day the judge at the Ostrava District Court (Okresní
soud) ordered the applicant's detention on remand under Articles 67 a)
b) c) and 68 of the Code of Criminal Procedure. The judge, having
regard to the content of the file, the girlfriend's statement and the
applicant's previous convictions, found a strong suspicion that the
applicant had committed the offence, a risk of his absconding on the
ground of the potentially severe sentence, and a danger of his
influencing witnesses.
On 30 March and 29 May 1992 the judge at the Ostrava District
Court ordered the applicant's continued detention on remand until
3 June and 15 July 1992, respectively. The judge considered that the
reasons for the detention on remand still applied, in view of the
nature of the offence and the danger of repetition of offences of the
same nature.
On 18 July 1992 the Ostrava Municipal Prosecutor instituted
criminal proceedings against the applicant for rape, insulting a person
in public office and physical assault, pursuant to Articles 241 para.
1, 156 paras. 1a), 3 and Article 222 para. 1 in connection with Article
8 para. 1 of the Criminal Code.
On 19 May, 1 July and 29 September 1992 the applicant applied to
the judge at the Ostrava District Court to be released, challenging the
grounds put forward to justify his continued detention. He also
submitted that his girlfriend had expressed the wish that they should
continue to live together. These applications were dismissed on
29 May, 22 July and 4 November 1992. The judge, noting that the
applicant had no stable work and having regard to the potentially
severe sentence, found that there was a risk that the applicant would
not appear at his trial. These decisions were confirmed by the judge
at the Ostrava Regional Court (Krajsky soud) on 16 June, 13 August and
23 November 1992.
In the meantime, on 4 November 1992, the Ostrava District Court
adjourned the hearing of the applicant to allow further witnesses to
be examined.
On 22 January 1993 the applicant's trial opened before the
Ostrava District Court; it was adjourned when the applicant challenged
the impartiality of the court.
On 11 March 1993 the applicant again filed an application for
release with the judge at the Ostrava District Court. However, on
8 June 1993 the judge rejected this application. He relied on the
reasoning in earlier decisions. On 29 June 1993 the judge at the
Regional Court confirmed the findings of the District Court as to a
strong suspicion against the applicant, the risk of repetition of
criminal offences and the danger of his absconding.
On 10 March 1993, the Ostrava District Court again adjourned the
applicant's trial in view of his application to remove his case from
that court.
On 22 July 1993, the Chamber of the Czech Supreme Court (Senát
Nejvyssího soudu), at the request of the President of the Chamber of
the Ostrava District Court, prolonged the period of the applicant's
detention to 15 October 1993, in accordance with Article 71 paras. 4
and 5 of the Code of Criminal Procedure. The Chamber considered that
the preliminary investigations had not been completed and noted
difficulties arising in the examination of witnesses and in view of the
applicant's behaviour. The Chamber considered that, given his previous
convictions, the applicant posed a risk to the public.
On 27 July 1993 the applicant made another application for
release, maintaining that the original grounds for detention were
invalid. His application was rejected on 6 August 1993 by the judge
at the Ostrava District Court, who, referring to the earlier decisions,
considered that the reasons for the applicant's detention were still
pertinent. This decision was confirmed on 24 August 1993 by the judge
at the Ostrava Regional Court.
On 26 August 1993 the Ostrava District Court again adjourned the
applicant's trial because he had challenged the court's impartiality.
On 3 September 1993 the Ostrava Regional Court dismissed the
applicant's challenge and assigned the case to the Ostrava District
Court.
On 20 October 1993 the Chamber of the Czech Supreme Court again
ordered the applicant's continued detention on remand to
15 January 1994, having regard to the developments in the
investigation. The Court based its decision on the content of the
file, the date on which the applicant was first remanded in custody and
the original grounds for detention.
It appears that the proceedings are still pending before the
Ostrava District Court.
B. Relevant domestic law
Constitutional law No. 91/1991 on the Constitutional Court of the Czech
and Slovak Federal Republic
Art. 6
[Translation]
"The Constitutional Court shall determine constitutional
complaints made against an act ... or decision or other
interference by a 'public organ' with the fundamental rights and
freedoms guaranteed by a constitutional law ... or an
international treaty ..."
[Original]
"Ústavní soud rozhoduje o ústavních stíznostech proti opatrením,
... rozhodnutím nebo jinym zásahum orgánu verejné moci, jestlize
stezovatel tvrdí, ze jimi byly poruseny jeho základní práva a
svobody, zarucené ústavním zákonem Federálního shromázdení nebo
mezinárodními smlouvami ..."
Law No. 491/1991 on the Procedure before the Constitutional Court of
the Czech and Slovak Federal Republic
Art. 54
[Translation]
"1. A constitutional complaint may be made ... by any physical
person ... claiming to be the victim of a violation by an act,
... or decision or other interference by a 'public organ' with
the rights and freedoms set out in a constitutional law ... or
an international treaty ..."
[Original]
"1. Ústavní stíznost ... muze podat fyzická ... osoba, která
tvrdí, ze opatrením, ... rozhodnutím nebo jinym zásahem orgánu
verejné moci bylo poruseno její základní právo nebo svoboda,
zarucené ústavním zákonem Federálního shromázdení nebo
mezinárodními smlouvami ..."
Constitution of the Czech Republic
Art. 3
[Translation]
"The Charter of Fundamental Rights and Freedoms is part of the
constitutional order of the Czech Republic."
[Original]
"Listina základních práv a svobod je soucástí ústavního porádku
Ceské republiky."
Art. 87
[Translation]
"1. The Constitutional Court shall determine:
...
(d) constitutional complaints made against ... decisions or
other interference by a 'public organ' with the fundamental
rights and freedoms guaranteed by a constitutional law ..."
[Original]
"1. Ústavní soud rozhoduje
...
d) o ústavní stíznosti proti ... rozhodnutí a jinému zásahu
orgánu verejné moci do ústavne zarucenych základních práv a
svobod, ..."
Charter of Fundamental Rights and Freedoms
Art. 8
[Translation]
"1. Personal liberty is guaranteed.
2. No one shall be deprived of his or her liberty except on
grounds and in a manner prescribed by law ...
3. Any person accused or suspected of having committed a
criminal offence may be detained only in accordance with the law.
Such detained person shall be informed without delay of the
reasons for the detention, questioned, and not more than twenty-
four hours later, be brought before a court. Within twenty-four
hours of having been brought before a court, a judge shall
question such person and decide whether to place the person in
custody or to release him.
4. A person accused of a criminal act may be arrested only on
the basis of a written warrant issued by a judge, which includes
the grounds for its issue. The arrested person shall be brought
before a court within twenty-four hours. A judge shall question
the arrested person within twenty-four hours and decide whether
to place the person in custody or to release him.
5. Nobody may be placed in custody except in accordance with
the law and on the basis of a judicial decision ..."
[Original]
"1. Osobní svoboda je zarucena.
2. Nikdo nesmí byt stíhán nebo zbaven svobody jinak nez z
duvodu a zpusobem, ktery stanoví zákon ...
3. Obvineného nebo podezrelého z trestného cinu je mozno
zadrzet jen v prípadech stanovenych v zákone. Zadrzená osoba musí
byt ihned seznámena s duvody zadrzení, vyslechnuta a nejpozdeji
do 24 hodin propustena na svobodu nebo odevzdána soudu. Soudce
musí zadrzenou osobu do 24 hodin od prevzetí vyslechnout a
rozhodnout o vazbe, nebo ji propustit na svobodu.
4. Zatknout obvineného je mozno jen na písemny oduvodneny
príkaz soudce. Zatcená osoba musí byt do 24 hodin odevzdána
soudu. Soudce musí zatcenou osobu do 24 hodin od prevzetí
vyslechnout a rozhodnout o vazbe nebo ji propustit na svobodu.
5. Nikdo nesmí byt vzat do vazby, lec s duvodu a na dobu
stanovenou zákonem a na základe rozhodnutí soudu ..."
Law No. 182/1993 on the Constitutional Court of the Czech Republic
Art. 72
[Translation]
"1. A constitutional complaint may be made by:
(a) any physical person ... claiming to be the victim of
a violation by ... a decision or an act of a 'public organ'
of the rights or liberties set forth in a constitutional
law or an international treaty ..."
[Original]
"1. Ústavní stíznost jsou oprávneni podat
a) fyzická osoba ..., jestlize tvrdí, ze ... opatrením nebo
jinym zásahem orgánu verejné moci bylo poruseno její základní
právo nebo svoboda zarucené ústavním zákonem nebo mezinárodní
smlouvou ..."
COMPLAINTS
1. The applicant complains under Article 5 paras. 1 and 3 of the
Convention that inadequate reasons were given for the detention and
that the length of the detention is excessive.
2. He also complains under Article 6 para. 1 of the Convention that
he did not have a fair trial before an independent and impartial
tribunal within a reasonable period of time.
3. The applicant complains under Article 8 of the Convention of a
violation of his right to respect for his private and family life by
virtue of the length of his detention on remand.
THE LAW
1. The applicant complains of the reasons for and the length of his
detention on remand. He relies on Article 5 paras. 1 and 3
(Art. 5-1, 5-3) of the Convention. These provide as follows:
"1. 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:
...
c. the lawful arrest or detention of a person effected for
the purpose of bringing him before the competent legal authority
on reasonable suspicion of having committed an offence or when
it is reasonably considered necessary to prevent his committing
an offence or fleeing after having done so;
...
3. Everyone arrested or detained in accordance with the
provisions of paragraph 1.c of this Article ... shall be entitled
to trial within a reasonable time or to release pending trial.
Release may be conditioned by guarantees to appear for trial."
The Commission is not, however, called upon to decide whether the
facts alleged by the applicant disclose any appearance of a violation
of the above provisions. Under Article 26 (Art. 26) of the Convention,
"the Commission may only deal with the matter after all domestic
remedies have been exhausted, according to the generally recognised
rules of international law".
Insofar as the applicant complains about the reasons for his
detention on remand, the Commission notes that the applicant has not
shown that he filed an appeal against the decision of the judge at the
Ostrava District Court, taken on 4 February 1992, ordering his
detention on remand. It is true that against the subsequent decisions
of the District Court of 29 May, 22 July and 4 November 1992 by which
his release was refused he appealed to the Ostrava Regional Court,
which rejected the appeals. He also appealed against the subsequent
decisions of the Ostrava District Court dated 8 June and 6 August 1993
by which his release had been refused, but these appeals were again
rejected by the Regional Court. However, he did not pursue any of these
proceedings by lodging a constitutional appeal with the Constitutional
Court of the Czech and Slovak Republic or the Constitutional Court of
the Czech Republic. Nor did he lodge constitutional appeals against the
decisions of the Supreme Court of 22 July and 20 October 1993 which
prolonged his detention on remand.
The Commission notes in this respect that the applicant was able,
under Article 54 para. 1 of Law No. 491/1991 on the Procedure before
the Constitutional Court of the Czech and Slovak Federal Republic, to
introduce a constitutional appeal before the Constitutional Court
against the decisions of the judge at the Ostrava Regional Court dated
16 June, 13 August and 23 November 1992 which confirmed the refusals
by the judge at Ostrava District Court to release the applicant. The
applicant was able in the same way, pursuant to Article 72 para. 1 of
Law No. 182/1993 on the Constitutional Court of the Czech Republic, to
lodge a constitutional appeal with the Constitutional Court against the
decisions of the judge at the Ostrava Regional Court taken on 29 June
and 24 August 1993 which confirmed the refusal of the judge at the
Ostrava District Court to release him from detention on remand, and
against the decisions of the Supreme Court taken on 22 July and 20
October 1993, prolonging his detention on remand. The Commission notes
that the Constitutional Court of the Czech Republic is also competent
to hear a constitutional appeal against an act of a 'public organ'
which was committed after 1 January 1993 (cf. No. 22926/93, Dec.
7.4.94, D.R. 77-A p. 118).
It follows that in this respect the applicant did not exhaust the
domestic remedies as required by Article 26 (Art. 26) of the Convention
and that the application is in this respect inadmissible according to
Article 27 para. 3 (Art. 27-3) of the Convention.
As regards the applicant's complaint as to the length of his
detention on remand, the Commission recalls that "if there is doubt as
to whether a particular remedy may or may not offer a real chance of
success, the point must be submitted to the domestic courts themselves
before any appeal can be made to the international court" (No. 6861/75,
Dec. 14.7.75, D.R. 3 p. 147; No. 10267/83, Dec. 10.12.87, D.R. 54 p.
5). In Czechoslovak as well as in Czech law, the Constitutional Court
[was] is the final instance before which an allegation of a violation
by a 'public organ' of rights and fundamental freedoms set forth in a
constitutional law or an international treaty [could] can be made.
The Commission notes that in respect of the length of the
applicant's detention on remand, the applicant did not lodge a
constitutional appeal against any of the court decisions by which his
release was refused.
As part of such a constitutional appeal, the applicant could have
complained about the length of his detention, invoking a violation of
Article 8 of the Charter of Fundamental Rights and Freedoms which
guarantees the right to personal freedom.
The Commission considers that such an appeal appears to be an
adequate and effective domestic remedy available in Czech law which
must therefore be exhausted.
Thus, the Commission finds that, as the applicant has not
complied with the requirements under Article 26 (Art. 26) of the
Convention as to the exhaustion of domestic remedies, this complaint
must be rejected under Article 27 para. 3 (Art. 27-3) of the
Convention.
2. The applicant also complains that he did not have a fair trial
before an independent and impartial tribunal within a reasonable time
and invokes Article 6 para. 1 (Art. 6-1) of the Convention, the
relevant part of which reads:
"In the determination ... of any criminal charge against him,
everyone is entitled to a fair trial ... within a reasonable
period of time by an independent and impartial tribunal ..."
While the Commission notes that Article 6 (Art. 6) of the
Convention is applicable to the criminal proceedings against the
applicant, it is not called upon to decide whether the facts alleged
by the applicant disclose any appearance of a violation of that
provision. First, the criminal proceedings are still pending and the
application is therefore, as regards the impartiality and independence
of the tribunals, premature. It follows that in this regard the
complaint is manifestly ill-founded within the meaning of Article 27
para. 2 (Art. 27-2) of the Convention.
Secondly, as regards the length of the criminal proceedings, the
applicant has failed to lodge a constitutional appeal with the
Constitutional Court under Article 72 para. 1 of Law No. 182/1993 on
the Constitutional Court of the Czech Republic (cf. mutatis mutandis
No. 23548/94, Dec. 29.6.94, not published). In this regard, the
applicant has not therefore complied with the requirement as to the
exhaustion of domestic remedies and this complaint must be rejected
under Article 27 para. 3 (Art. 27-3) of the Convention.
3. With reference to length of his detention on remand, the
applicant also complains, inter alia, of a violation of his right to
respect for his private and family life within the meaning of Article
8 (Art. 8) of the Convention.
However, the Commission has found above that, with regard to the
length of his detention, the applicant has failed to exhaust domestic
remedies.
For these reasons, the Commission, unanimously
DECLARES THE APPLICATION INADMISSIBLE.
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (H. DANELIUS)
Full & Egal Universal Law Academy