AS TO THE ADMISSIBILITY OF
Application No. 30887/96
by Zvone LONCARIC
against Slovenia
The European Commission of Human Rights (First Chamber) sitting
in private on 4 September 1996, the following members being present:
Mrs. J. LIDDY, President
MM. M.P. PELLONPÄÄ
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
G.B. REFFI
B. CONFORTI
N. BRATZA
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
Mrs. M.F. BUQUICCHIO, 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 2 March 1996 by
Zvone LONCARIC against Slovenia and registered on 1 April 1996 under
file No. 30887/96;
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 Slovenian citizen born in 1953. He is
detained on remand at Radovljica Prison. Before the Commission he is
represented by Mr. A. Rus, a lawyer practising in Maribor. The facts
of the case, as they have been submitted by the applicant, may be
summarised as follows.
A. The particular circumstances of the case
On 17 April 1995, in the course of a quarrel, the sister of the
applicant's partner was wounded by a bullet while she was trying to
take a pistol away from the applicant. After the incident the
applicant went, of his own initiative, to a police station where he was
arrested.
On 18 April 1995 the Kranj District Court (Okrozno sodisce)
remanded the applicant in custody. It considered his detention
necessary within the meaning of Section 201 para. 2 (2) and (3) of the
Code of Criminal Procedure (see "The relevant domestic law" below).
On 11 August 1995 the applicant went on hunger strike as he
considered that his detention on remand was unlawful and that the
judges dealing with his case were biased. He was examined by experts
several times. On 24 January 1996 he collapsed. He was placed in a
hospital and perfusion was administered to him. On 29 January a TV-
team wanted to make an interview with the applicant but he was brought
back to the prison. He decided to remain on hunger strike.
According to an expert's report dated 6 March 1996, the applicant
refused to be examined thoroughly. The expert found, inter alia, that
the applicant was weak and had problems with concentration due to
considerable loss of weight. For this reason the applicant was not
able to attend court hearings. In the expert's view the amount of food
the applicant was partaking was sufficient for the preservation of his
life. The expert considered that the applicant could recover entirely
within 2 to 4 weeks if he ceased striking.
The following relevant events occurred and decisions were taken
in the course of the applicant's detention.
1. Criminal proceedings against the applicant
On 22 June 1995 the Kranj District Prosecutor filed the bill of
indictment charging the applicant with attempted murder pursuant to
Section 127 para. 1 of the Criminal Code and with threatening the
security of other persons pursuant to Section 145 para. 1 of the
Criminal Code.
The main hearing was to be held from 7 to 11 August 1995. It was
postponed as the applicant had challenged the President of the Kranj
District Court's chamber which was dealing with his case. The main
hearing was then scheduled for 20 September 1995 but was postponed
because a judge was ill.
The next hearing was to start on 10 October 1995. However, the
applicant informed the court that he was not able to attend it due to
his hunger strike. The hearing was postponed.
Further hearings were scheduled for 24 October 1995, 9 January
and 7 March 1996 respectively. Prior to each hearing an expert
established that the state of the applicant's health (which was due to
his hunger strike) excluded his attendance. For this reason the
hearings were postponed.
2. Proceedings concerning prolongation of the applicant's detention
on remand
On 26 June 1995, i.e. after the file of indictment had been
lodged, the Kranj District Court prolonged the applicant's detention
on remand by two months pursuant to Section 207 para. 2 of the Code of
Criminal Procedure. On 24 August 1995 it prolonged the applicant's
detention again. The District Court considered that the detention was
necessary within the meaning of Section 201 para. 2 (3) of the Code of
Criminal Procedure.
On 23 October 1995 the Kranj District Court decided to prolong
the applicant's detention on remand. It pointed out that no relevant
new facts could have been established in the applicant's case because
the hearings had had to be postponed, and that the detention was
necessary within the meaning of Article 20 of the Constitution and of
Section 201 para. 2 (3) of the Code of Criminal Procedure.
The District Court recalled that prior to the incident the
applicant had verbally threatened his partner and her sister, aimed a
pistol from a small distance at the latter, and that the file provided
sufficient evidence for bringing charges against him. In the court's
view, the applicant's aggressive and uncontrolled behaviour made his
further detention necessary in order to prevent him from carrying out
his threats. The court noted that the health care granted to the
applicant was adequate and held that the applicant's state of health,
due to the hunger strike in which the applicant had engaged himself,
was not a relevant reason for releasing him.
The applicant lodged a complaint against this decision. He
maintained that there was no real danger of his completing the offence
of which he was accused or committing further offences. He pointed out
that after the incident he had not made any attempts to commit the
offence of which he was accused but had gone to the police of his own
initiative. He also challenged the evidence against him.
On 30 October 1995 the Ljubljana Higher Court (Visje sodisce)
upheld the District Court's decision. It held that the evidence
available was sufficient for remanding the applicant in custody. The
Higher Court also recalled that the Kranj District Court could not
proceed with the case and establish possible new relevant facts because
of the applicant's hunger strike.
On 4 November 1995 the applicant lodged a constitutional
complaint. He complained, inter alia, that the reasons for his
detention on remand invoked by the Kranj District Court and the
Ljubljana Higher Court were fictitious and irrelevant. In particular,
he claimed that he had proved that he was able to control his behaviour
as he had not completed the act which was imputed to him but had given
himself up to the police immediately after the incident.
The Constitutional Court dismissed the complaint on 7 December
1995. It found that the interference with the applicant's
constitutional right to liberty was necessary for the protection of the
life and security of both his partner and her sister. The
Constitutional Court held that the ordinary courts had examined the
particular circumstances of the applicant's case and had given
sufficient and relevant reasons for their decisions.
In the Constitutional Court's view, a person's hunger strike
could not be accepted, in a State of law, as a legally relevant means
of affecting lawful decisions of State organs. The Constitutional
Court also recalled that it could not act as a court of appeal in
respect of decisions of the ordinary courts.
On 21 December 1995 the Kranj District Court prolonged the
applicant's detention pursuant to Section 207 para. 2 of the Code of
Criminal Procedure. It recalled that because of the applicant's hunger
strike it had not been possible to proceed with his case. The court
concluded from the record which had been drawn at the place of the
incident, from photographic and forensic experts' evidence, from
records of statements made by the wounded person and four witnesses,
and from other documents included in the file that the applicant could
reasonably be suspected of having committed the offences with which he
was charged.
The court recalled that before his partner's sister had been
wounded the applicant had behaved in an aggressive manner, that he had
verbally threatened his partner and had aimed a pistol at her from a
small distance. The court considered that these facts permitted to
conclude that there was a danger of the applicant's acting in a similar
way again. The applicant's further detention was therefore necessary
for the protection of security of both his partner and her sister and
was, therefore, compatible with Section 201 para. 2 (3) of the Code of
Criminal Procedure.
The applicant lodged a complaint against this decision. He
maintained that the courts should take into consideration that instead
of giving himself up to the police he could have completed the acts or
carry out the threats imputed to him if that had been his intention.
In his view, this proved that he had been able to control his
behaviour, and that he represented no danger for his partner and her
sister any longer.
The complaint was dismissed by the Ljubljana Higher Court on
29 December 1995. The Higher Court held that if the applicant were
released, he could not be prevented from meeting his partner or her
sister. The court concluded from an expert's opinion and other
evidence included in the file that the applicant's reactions were
inadequate and unforeseeable to such an extent that the apprehensions
for his partner's and her sister's security in case of his release were
justified. Furthermore, the fact that the applicant had gone to the
police after the incident did not exclude his possible acting in a
similar way again or carrying out his threats.
On 5 February 1996 the Supreme Court (Vrhovno sodisce) dismissed
the applicant's appeal for preservation of law which concerned the
Higher Court's decision of 29 December 1995. The Supreme Court held
that the reasons for which the lower instances had decided to prolong
the applicant's detention were sufficient and relevant.
On 19 February 1996 the Kranj District Court prolonged the
applicant's detention pursuant to Section 207 para. 2 of the Code of
Criminal Procedure. It recalled that the court hearings had been
postponed several times as the applicant had been incapable, because
of his hunger strike, of attending them. The court referred to its
decision of 21 December 1995 and held that in view of the evidence
available the applicant could reasonably be suspected of having
committed the offences imputed to him.
A further decision to prolong the applicant's detention on remand
was taken by the Kranj District Court on 18 April 1996. The court
referred, inter alia, to an expert's opinion according to which the
applicant had an unstable personality with a low threshold of
tolerance. This resulted in his reduced capacity to control his
behaviour. The District Court held that the aforesaid facts, as well
as other evidence included in the file substantiated sufficiently the
apprehension that he could complete the act imputed to him or carry out
his threats.
The District Court also noted that the applicant was on hunger
strike and that his physical capacities were considerably reduced. It
considered this fact irrelevant because, according to the expert's
opinion of 6 March 1996, the applicant could recover entirely within
2 to 4 weeks if he started partaking food.
The applicant lodged a complaint. He challenged the evidence
against him and alleged that the District Court had misinterpreted the
expert's opinion concerning his personality.
The complaint was dismissed by the Ljubljana Higher Court on
24 April 1996. The Higher Court held that the evidence against the
applicant permitted to suspect him, on reasonable grounds, of the
offences for which he had been indicted. It recalled that several
witnesses had confirmed, inter alia, that the applicant had repeatedly
threatened his partner who had therefore decided to move away. The
Higher Court considered that the applicant's being on hunger strike
confirmed the expert's opinion concerning his personality.
3. Proceedings concerning the applicant's request for release
On 11 December 1995 the Kranj District Court refused to release
the applicant as it held, for the same reasons for which it had
prolonged his detention, that he represented danger for his partner and
her sister.
The applicant challenged this decision before the Constitutional
Court. He alleged that the District Court had decided erroneously and
had violated, inter alia, his right to a fair hearing by a tribunal
guaranteed by Article 23 of the Constitution.
The Constitutional Court rejected the complaint on 12 March 1996.
It held that the District Court had established, for reasons set out
in its decision, that the applicant's detention was necessary for
protection of other persons, i.e. for a relevant reason under Article
20 of the Constitution. It found no violation of the applicant's
constitutional rights.
4. Proceedings concerning the applicant's requests for his case to
be transferred to a different court
On 24 August 1995 the applicant informed the District Court that
since 11 August 1995 he had been on hunger strike and requested that
his case should be dealt with by the District Court in Ljubljana. On
12 September the applicant lodged a formal request in this respect.
It was dismissed by the Ljubljana Higher Court on 15 September 1995.
On 26 October and on 15 November 1995 respectively the Ljubljana
Higher Court dismissed further two requests by the applicant that his
case should be transmitted to a different court. The applicant lodged
constitutional complaints against these decisions. He referred to
Section 35 of the Code of Criminal Procedure according to which a case
shall be transmitted to a different court if it is obvious that it will
facilitate the conduct of the proceedings. The applicant complained
that the Higher Court had not taken into account that he was on hunger
strike also because his case was dealt with by the Kranj District
Court's judges, and that his life was in danger. He alleged a
violation of his constitutional right to have his case tried by an
impartial judge.
On 22 November and on 19 December 1995 respectively the
Constitutional Court refused to admit the complaints for further
proceedings. It held, inter alia, that the applicant's being on hunger
strike could not be considered as a relevant reason for transmitting
his case to a different court, and that the applicant had submitted no
relevant information indicating lack of impartiality of the Kranj
District Court's judges.
On 5 January 1996 the Supreme Court dismissed the applicant's
appeal for preservation of law which the applicant had lodged in
respect of the aforesaid Ljubljana Higher Court's decisions of
26 October and of 15 November 1995.
On 29 January and on 1 February 1996 the applicant reiterated his
request that his case should be transmitted to the Ljubljana District
Court. The request was dismissed by the Ljubljana Higher Court on
6 February 1996 on the ground that the applicant's hunger strike could
not be considered as a relevant reason for exclusion of the Kranj
District Court's judges.
B. The relevant domestic law
Section 20 of the Constitution provides that a person reasonably
believed to have committed a criminal offence may be arrested, but only
by order of a court and only where such an arrest is absolutely
necessary for the proper conduct of criminal proceedings or for the
protection of society. Within 24 hours after the arrest the person
concerned must be handed a notice in writing of the order of the court,
with the reasons for his or her arrest. A person so arrested has the
right to appeal against such an order, and his or her appeal must be
determined by a court within 48 hours. The duration of any detention
so ordered shall only be for such period as is allowed by statute, with
the longest allowable period being three months from the day of arrest.
This period may be extended by another three months by the Supreme
Court. If no charges are laid by the end of this period, the accused
person must be released.
Pursuant to Section 201 para. 2 (2) of the Code of Criminal
Procedure a person can be remanded in custody if there is a serious
risk that he or she would destroy the traces of an offence or obstruct
the proceedings by exercising undue influence on the witnesses or other
persons involved in the proceedings.
In accordance with Section 201 para. 2 (3) of the Code of
Criminal Procedure a person can be remanded in custody if the
particular circumstances of the case indicate the existence of real
danger of his or her repeating an offence, completing an attempted
offence or committing an offence which he or she threatened to commit
vis-à-vis another person.
Section 207 para. 2 of the Code of Criminal Procedure provides
that a court shall examine ex officio every two months whether a
person's detention is still necessary and deliver a decision by which
the detained person is either released or his or her detention on
remand is prolonged.
COMPLAINTS
The applicant complains that he has been detained on remand
unlawfully as the reasons for which the courts decided to prolong his
detention are erroneous and irrelevant. In particular, he complains
that the courts (i) ignored that he had given himself up to the police
after the incident, (ii) considered, in disregard of the state of his
health, that he could represent a danger for his partner and her sister
if released, and (iii) relied on false or inaccurate evidence against
him.
The applicant considers that by the aforesaid facts and by the
refusal to transfer his case to a different District Court his right
to a fair hearing by an impartial tribunal and to be presumed innocent
was violated. He alleges a violation of Articles 6 and 13 of the
Convention.
THE LAW
1. The applicant complains that he has been detained unlawfully
because the reasons on which the courts based themselves in deciding
to prolong his detention on remand are erroneous and irrelevant. The
Commission considers that this complaint should be examined under
Article 5 para. 1 (c) (Art. 5-1-c) of the Convention which provides 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:
...
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;"
The Commission recalls that in order to comply with the
requirements of Article 5 para. 1 (Art. 5-1) of the Convention, a
person's deprivation of liberty has to be lawful. Lawfulness implies
conformity with the substantive and the procedural rules of domestic
law and also with the purpose of Article 5 (Art. 5), namely to protect
individuals from arbitrariness (cf., i.e, Eur. Court HR, Winterwerp v.
the Netherlands judgment of 24 October 1979, Series A no. 33, p. 16,
para. 37; Wassink v. the Netherlands judgment of 27 September 1990,
Series A no. 185-A, p. 11, para. 24).
In addition, Article 5 para. 1 (c) (Art. 5-1-c) of the Convention
requires that there was either a reasonable suspicion of the arrested
or detained person having committed the offence in question or that the
arrest or detention was reasonably considered necessary to prevent his
or her committing an offence or fleeing after having done so.
The Commission notes that the applicant was arrested on 17 April
1995. On 18 April 1995 the Kranj District Court remanded him in
custody. The bill of indictment was filed on 22 June 1995.
Subsequently, the Kranj District Court decided to extend the
applicant's detention on remand on 26 June, 24 August, 23 October,
21 December 1995, on 19 February and on 18 April 1996 pursuant to
Section 207 para. 2 of the Code of Criminal Procedure. On 11 December
1995 the Kranj District Court dismissed the applicant's request for
release.
Upon complaints lodged by the applicant the Kranj District
Court's decisions concerning the prolongation of his detention were
reviewed on 30 October 1995, on 29 December 1995 and on 24 April 1996
by the Ljubljana Higher Court. In addition, the lawfulness of the
applicant's detention was examined by the Supreme Court on 19 February
1996, and on 7 December 1995 and 12 March 1996 respectively the
Constitutional Court found that it was in conformity with the
Constitution.
The applicant has been kept in detention pursuant to Section 201
para. 2 (3) of the Code of Criminal Procedure according to which a
person can be remanded in custody if the particular circumstances of
the case indicate the existence of a real danger of his or her
repeating an offence, completing an attempted offence or committing an
offence with he or she threatened to commit vis-à-vis another person.
On 12 March 1996 the Constitutional Court found that his detention was
necessary for the protection of other persons which is a relevant
reason under Article 20 of the Constitution. The applicant's
deprivation of liberty had, therefore, a legal basis under Slovenian
law.
The Commission notes that the Kranj District Court, when deciding
to prolong the applicant's detention on remand, and the Ljubljana
Higher Court, when reviewing these decisions, concluded from the record
which had been drawn at the place of the incident, from photographic
and experts' evidence, from statements made by the wounded person and
four witnesses and from other documents included in the file that the
applicant could reasonably be suspected of having committed the
offences for which he had been indicted.
The courts further found that prior to the incident in which his
partner's sister had been wounded the applicant had behaved
aggressively, that he had verbally threatened his partner and had aimed
a pistol at her from a small distance. They referred to expert's
evidence according to which the applicant had an unstable personality
with a low threshold of tolerance which resulted in his reduced
capacity to control his behaviour. The courts therefore considered
that the applicant still represented a danger for his partner and her
sister which rendered his further detention on remand necessary.
The Commission notes that the aforesaid courts also dealt with
the applicant's arguments that he should be released but refused, for
reasons set out in their decisions, to accept them. In particular,
they held that the applicant's hunger strike could not be considered
as a relevant reason in considering whether he should be released. As
to the evidence challenged by the applicant, the courts noted that it
was for the court examining the charges against him to establish
whether the evidence was well-founded.
Furthermore, on 7 December 1995 the Constitutional Court found
that the general courts had examined the particular circumstances of
the applicant's case and had given sufficient reasons for their
decisions. On 19 February 1996 the Supreme Court expressed a similar
view.
In these circumstances, the Commission finds that the aforesaid
reasoning of the Slovenian courts reveals neither abuse of authority
nor arbitrariness, and that the applicant's detention on remand could
reasonably be considered necessary to prevent his committing concrete
and specific offences within the meaning of Article 5 para. 1 (c)
(Art. 5-1-c) of the Convention (cf. Eur. Court HR, Guzzardi v. Italy
judgment of 6 November 1980, Series A no. 39, p. 38, para. 102).
The applicant's submissions do not, therefore, disclose any
appearance of a violation of his rights under Article 5 para. 1
(Art. 5-1) of the Convention.
It follows that this part of the application is manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2).
2. The applicant also complains about the refusal to transfer his
case to another court. He considers that the proceedings in his case
have not been fair and that the courts have not presumed him innocent.
He alleges a violation of Article 6 (Art. 6) of the Convention which
provides, so far as relevant, as follows:
"1. In the determination of ... any criminal charge against
him, everyone is entitled to a fair and public hearing ... by an
... impartial tribunal established by law...
2. Everyone charged with a criminal offence shall be presumed
innocent until proved guilty according to law."
...
a) To the extent that the applicant alleges that his right to a fair
hearing by an independent and impartial tribunal was violated, the
Commission notes that the criminal proceedings against him are still
pending before the first instance court. This complaint is therefore
premature.
b) The applicant further alleges a violation of his right to be
presumed innocent.
The Commission recalls that the authorities do not violate
Article 6 para. 2 (Art. 6-2) of the Convention if they state that a
suspicion exists. What is excluded, however, is a formal declaration
that somebody is guilty (cf. No. 10847/84, Dec. 7.10.85, D.R. 44 p.
238, with further references).
In the present case the courts which examined whether the
applicant should be detained on remand held, with reference to the
evidence included in the file concerning his case, that the applicant
could reasonably be suspected of having committed the offences imputed
to him. In the Commission's view this finding cannot be considered as
a formal declaration that the applicant is guilty, nor does it affect
the applicant's rights of defence.
The Commission therefore considers, and even assuming that the
applicant has complied with the requirement as to the exhaustion of
domestic remedies in this respect, that the examination of this
complaint does not disclose any appearance of a violation of the
applicant's rights guaranteed by Article 6 para. 2 (Art. 6-2) of the
Convention.
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.
3. Finally, the applicant alleges a violation of Article 13
(Art. 13) of the Convention which provides as follows:
"Everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy before a
national authority notwithstanding that the violation has been
committed by persons acting in an official capacity."
The Commission recalls that the guarantees of Article 13
(Art. 13) apply only to a grievance which can be regarded as "arguable"
(cf. Eur. Court HR, Powell and Rayner v. the United Kingdom judgment
of 21 February 1990, Series A no. 172, p. 14, para. 31, with further
references). In the present case the Commission has rejected the
substantive claims as being manifestly ill-founded. Accordingly, they
cannot be regarded as "arguable".
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.F. BUQUICCHIO J. LIDDY
Secretary President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy