AS TO THE ADMISSIBILITY OF
Application No. 32110/96
by Peter POBOZNY
against the Slovak Republic
The European Commission of Human Rights (Second Chamber) sitting
in private on 16 April 1998, the following members being present:
MM J.-C. GEUS, President
M.A. NOWICKI
G. JÖRUNDSSON
A. GÖZÜBÜYÜK
J.-C. SOYER
H. DANELIUS
Mrs G.H. THUNE
MM F. MARTINEZ
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 17 October 1995
by Peter POBOZNY against the Slovak Republic and registered on
2 July 1996 under file No. 32110/96;
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 1961. He is serving
a custodial sentence in the Banská Bystrica prison.
The facts of the case, as submitted by the applicant, may be
summarised as follows.
On 19 May 1993 the Banská Bystrica police investigator accused
the applicant and his father-in-law of theft. As from that date both
accused were remanded in custody pursuant to a decision of the Banská
Bystrica Regional Court (Krajsky súd) of 20 May 1993. On 8 June 1993
the Supreme Court (Najvyssí súd) dismissed the applicant's complaint
against this decision. On 15 July 1993 and on 11 January 1994 the
Banská Bystrica Regional Court dismissed the applicant's requests for
release.
On 19 May 1993 the applicant's father-in-law admitted to the
police investigator, in the presence of his lawyer, that he and several
other persons including the applicant had stolen cigarettes from a
warehouse in which he worked as a watchman. The applicant's father-in-
law stated that the theft had been initiated by the applicant and that
it had been caused by their financial problems. He described in detail
how he had permitted the other persons involved to commit the theft.
On 20 May 1993 the applicant's father-in-law confirmed the aforesaid
statement before a judge of the Banská Bystrica Regional Court.
At a later stage of the proceedings the applicant's father-in-law
denied the truth of his statements of 19 and 20 May 1993 and alleged
that he had been attacked by unknown persons who had threatened him
with a pistol. He explained that he had invented his earlier
statements in revenge for the applicant's bad behaviour to his
daughter.
On 16 December 1993 the Banská Bystrica Regional Prosecutor
indicted the applicant and his father-in-law of theft. Charges were
also brought against three other persons.
On 19 August 1994 the Banská Bystrica Regional Court convicted
the applicant of theft and sentenced him to eight years' imprisonment.
The Regional Court established that in the night of 15 May 1993
the applicant's father-in-law, while being on duty as a watchman, had
permitted several unknown persons to enter a warehouse and to steal
cigarettes in the value of 3,313,465 Slovak crowns from it. The court
further found that the perpetrators had tied the applicant's father-in-
law with a view to faking a robbery. Subsequently, the stolen
cigarettes had been transported to a house in Turová where the police
had later found them.
At the main hearing before the Regional Court the driver of the
truck in which the cigarettes had been transported confirmed that he
had seen the applicant, for the first time, on 15 May 1993 at about
9 p.m. near a hotel in Banská Bystrica. The applicant had been talking
to a man by whom the driver had been hired for that night. After the
cigarettes had been loaded on the truck in the warehouse, the driver
had been asked to drive to a parking. He further stated that at about
11.25 p.m. the applicant had come to the parking and had shown him the
way to a house in Turová where the cigarettes had been unloaded. The
applicant had then rewarded him for the transport.
Another witness stated that the applicant had been present in the
yard of the house in Turová at the moment when the truck transporting
the cigarettes had been unloaded. Two other witnesses confirmed that
at the relevant time the truck in question had moved on the road
between the warehouse and Turová.
The court further established that the aforesaid house in Turová
had been rented by an accused according to an agreement with the
applicant.
At the main hearing the applicant's father-in-law decided not to
give evidence. The court read out his statements of 19 and 20 May 1993
in which he had described in detail the circumstances which had
preceded the theft, and had admitted that he had instructed the
applicant and another person how to enter the warehouse. The court
recalled that he had also admitted that on 16 May 1993 the applicant
had informed him that the cigarettes had been at a safe place in a
house outside Banská Bystrica. Finally, the Regional Court noted that
at the moment when the applicant's father-in-law had been found tied,
he had indicated to a witness which warehouse had been broken into
notwithstanding that the warehouse could not be seen from the place
where he had been found.
The court also heard the applicant's wife and mother-in-law who
stated that in the night of 15 May 1993 the applicant had not left his
home after 10.45 p.m. However, it considered their statements
unreliable as the applicant had been seen both by the driver of the
truck transporting the cigarettes and by another witness at the moment
when the cigarettes had been unloaded in Turová.
The Regional Court also noted that two other witnesses for the
defence had confirmed that they had been with the applicant in the
centre of Banská Bystrica at approximately the same time when the
driver of the truck had seen him for the first time near a hotel.
However, the court found that both places were close to each other and
held that the applicant's presence in the centre of Banská Bystrica did
not exclude his being, a few minutes later, at the place where he had
been seen by the truck driver.
At the main hearing the applicant requested that he should be
cross-examined together with his father-in-law, but his request was not
granted.
The applicant appealed. He claimed that the Regional Court had
erroneously relied on the statements made by his father-in-law on
19 and 20 May 1993. He complained that the first instance court had
not taken into account that his father-in-law had revoked these
statements and that it had disregarded the evidence in his favour. The
applicant considered that the evidence on which the Regional Court had
based its decision was not sufficient to conclude that he had committed
the offence in question.
On 12 April 1995 the Supreme Court quashed the first instance
judgment as in the operative part of its judgment the Regional Court
had committed an error when specifying the stolen goods. The Supreme
Court then convicted the applicant of theft and sentenced him to eight
years' imprisonment.
The Supreme Court held that the Regional Court had taken all
necessary evidence and assessed it correctly after having considered
all relevant facts. In the Supreme Court's view, the Regional Court
had clearly stated which facts it had considered to be established, on
what basis it had considered them to be established, and what had been
its considerations when assessing the evidence before it and specifying
why it had not relied on the arguments of the defence.
In particular, the Supreme Court recalled that in his statements
of 19 and 20 May 1993 the applicant's father-in-law had admitted that
the applicant had informed him, on 16 May 1993, that the stolen
cigarettes had been stored in a house outside Banská Bystrica
notwithstanding that this fact had not been known at the moment when
the statement had been made. It therefore considered that the
subsequent denial of this statement by the applicant's father-in-law
was tendentious and unreliable.
The Supreme Court further noted that in the course of the
relevant night the applicant had shown the way to the driver of the
truck transporting the stolen cigarettes and had rewarded him for the
transport, and that another witness had seen the applicant in the yard
of the house where the truck had been unloaded. The Supreme Court held
that the aforesaid witnesses were independent of each other and
considered that their evidence was sufficiently reliable to exclude the
possibility of an error. It therefore found it established that the
applicant had been involved in the theft.
At the main hearing before the Supreme Court the applicant
complained that the first instance court had not granted his request
for his cross-examination together with his father-in-law.
COMPLAINTS
Under Article 5 of the Convention the applicant complains that
both his complaint against the decision to remand him in custody and
his requests for release from detention on remand were rejected.
The applicant further complains that his conviction was based on
the statements of his father-in-law made in the course of pre-trial
proceedings notwithstanding that the latter had denied the truth of
these statements. The applicant also complains that he did not have
an opportunity to have his father-in-law cross-examined and that the
courts disregarded the evidence in his favour, relied on false evidence
and decided arbitrarily. He invokes Article 8 of the Convention.
THE LAW
1. The applicant complains that both his complaint against the
decision to remand him in custody and his requests for release from
detention on remand were rejected. He alleges a violation of Article 5
(Art. 5) of the Convention.
The Commission notes that the applicant was remanded in custody
pursuant to a decision of the Banská Bystrica Regional Court of
20 May 1993, and that the Supreme Court rejected the applicant's
complaint against this decision on 8 June 1993. Since the application
was introduced on 17 October 1995, this part of it must be rejected for
the applicant's failure to respect the six months' time-limit laid down
in Article 26 (Art. 26) of the Convention.
The Commission further notes that it does not appear from the
documents submitted that the applicant lodged a complaint against the
decisions by which the Banská Bystrica Regional Court had dismissed his
requests for release from the detention on remand. In this respect,
the applicant has failed to comply with the requirement as to the
exhaustion of domestic remedies laid down in Article 26 (Art. 26) of
the Convention.
It follows that this part of the application must be rejected
pursuant to Article 27 para. 3 (Art. 27-3) of the Convention.
2. The applicant further complains under Article 8 (Art. 8) of the
Convention that the judicial proceedings in his case were not fair and
that his conviction was arbitrary. The Commission finds that in
substance these complaints fall under Article 6 (Art. 6) of the
Convention and will examine them under this head.
Article 6 (Art. 6) of the Convention, in so far as relevant,
provides as follows:
"1. In the determination of ... any criminal charge against
him, everyone is entitled to a fair and public hearing ... by an
independent and impartial tribunal established by law.
...
3. Everyone charged with a criminal offence has the following
minimum rights:
...
d. to examine or have examined witnesses against him and
to obtain the attendance and examination of witnesses on his
behalf under the same conditions as witnesses against him;"
...
a) The applicant complains that his conviction was based on the
statements of his father-in-law of 19 and 20 May 1993 notwithstanding
that the latter had denied the truth of these statements. He further
complains that he did not have an opportunity to have his father-in-law
cross-examined.
The Commission has examined this complaint under paras. 1 and
3 (d) of Article 6 (Art. 6-1, 6-3-d) of the Convention taken together
(see Eur. Court HR, Isgrò v. Italy judgment of 19 February 1991, Series
A no. 194-A, p. 12, para. 31).
The Commission notes that the applicant's father-in-law, who was
a co-accused in the proceedings complained of, revoked his statements
made to the police investigator and to a judge on 19 and 20 May 1993
respectively and availed himself of his right not to give evidence at
the trial. However, the aforesaid statements, as taken down in writing
and then read out at the main hearing, were before the courts
determining the criminal charge against the applicant, which took them
into account. The Commission therefore considers that the applicant's
father-in-law should, for the purposes of Article 6 para. 3 (d)
(Art. 6-3-d) of the Convention, be regarded as a witness (see Eur.
Court HR, Artner v. Austria judgment of 28 August 1992, Series A no.
242-A, p. 10, para. 19).
The Commission recalls that the admissibility of evidence is
primarily a matter for regulation by national law and, as a rule, it
is for the national courts to assess the evidence before them. The
Convention organs' task is to ascertain whether the proceedings
considered as a whole, including the way in which evidence was taken,
were fair.
In particular, all the evidence must normally be produced in the
presence of the accused at a public hearing with a view to adversarial
argument. This does not mean, however, that the statement of a witness
must always be made in court and in public if it is to be admitted in
evidence. The use in this way of statements obtained at the pre-trial
stage is not in itself inconsistent with paras. 3 (d) and 1 of
Article 6 (Art. 6-1, 6-3-d) of the Convention, provided that the rights
of the defence have been respected. As a rule, these rights require
that the defendant be given an adequate and proper opportunity to
challenge and question a witness against him, either when he was making
his statements or at a later stage of the proceedings (see Eur. Court
HR, Asch v. Austria judgment of 26 April 1991, Series A no. 203, p. 10,
paras. 26 and 27).
The Commission considers that the right on which the applicant's
father-in-law relied in order to avoid giving evidence could not be
allowed to block the prosecution. Subject to the rights of the defence
being respected, it was therefore open to the Slovak courts to have
regard to his statements of 19 and 20 May 1993, in particular in view
of the fact that they could consider these statements to be
corroborated by other evidence before them (see Eur. Court HR, Asch
v. Austria judgment cited above, pp. 10 and 11, para. 28; Artner
v. Austria judgment cited above, p. 10, para. 22).
In this respect, the Commission notes that both the Regional
Court and the Supreme Court, when deciding on the applicant's case,
also had regard to the evidence given by the truck driver. They noted
that the latter had seen the applicant talking to the man who had hired
him for the relevant night. According to the driver's statement, the
applicant had shown him, after the truck had been loaded with the
cigarettes, the way to a house in Turová in which the cigarettes had
been found later. The driver also stated that the applicant had
rewarded him for the transport.
The courts also relied on the evidence of another witness who had
seen the applicant in the yard of the aforesaid house at the moment
when the truck transporting the cigarettes had been unloaded. They
further noted that the house in question had been rented by another
accused following an agreement with the applicant.
Accordingly, the statements made by the applicant's father-in-law
on 19 and 20 May 1993 did not constitute the only item of evidence on
which the domestic courts based their finding that the applicant had
been involved in committing the offence in question.
In these circumstances, the Commission considers that the fact
that it was impossible for the applicant to have his father-in-law
cross-examined in the course of the judicial proceedings was not
incompatible with the requirements of paras. 1 and 3 (d) of Article 6
(Art. 6-1, 6-3-d).
b) To the extent that the applicant complains that the courts
evaluated the evidence in his case erroneously and convicted him
arbitrarily, the Commission recalls that, in accordance with Article 19
(Art. 19) of the Convention, its only task is to ensure the observance
of the obligations undertaken by the Parties in the Convention. In
particular, it is not competent to deal with an application alleging
that errors of law or fact have been committed by domestic courts,
except where it considers that such errors might have involved
apossible violation of any of the rights and freedoms set out in the
Convention. The Commission refers, on this point, to its constant
case-law (see, e.g., No. 25062/94, Dec. 18.10.95, D.R. 83, pp. 77, 86).
In the present case the Regional Court examined the evidence
before it and came to the conclusion, for reasons expressly set out in
its judgment, that the applicant had been actively involved in the
theft of cigarettes committed in the night of 15 May 1993. Its
findings on both the facts and the law were shared by the Supreme Court
which held that the first instance court had taken all necessary
evidence and assessed it correctly after having considered all relevant
facts. The Commission considers that the reasons on which the courts
based their above decisions are sufficient to exclude that the
evaluation of the evidence in the applicant's case had been arbitrary.
In these circumstances, the Commission considers that the
proceedings leading to the applicant's conviction were not contrary to
the requirements laid down in Article 6 (Art. 6) 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.
For these reasons, the Commission, unanimously,
DECLARES THE APPLICATION INADMISSIBLE.
M.-T. SCHOEPFER J.-C. GEUS
Secretary President
to the Second Chamber of the Second Chamber
Full & Egal Universal Law Academy