AS TO THE ADMISSIBILITY OF
Application No. 29462/95
by Ernst REHBOCK
against Slovenia
The European Commission of Human Rights (First Chamber) sitting
in private on 20 May 1998, the following members being present:
MM N. BRATZA, Acting President
E. BUSUTTIL
A. WEITZEL
C.L. ROZAKIS
Mrs J. LIDDY
MM L. LOUCAIDES
B. MARXER
B. CONFORTI
I. BÉKÉS
G. RESS
A. PERENIC
C. BÎRSAN
K. HERNDL
M. VILA AMIGÓ
Mrs M. HION
Mr R. NICOLINI
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 17 September 1995
by Ernst REHBOCK against Slovenia and registered on 6 December 1995
under file No. 29462/95;
Having regard to:
- the reports provided for in Rule 47 of the Rules of Procedure of
the Commission;
- the observations submitted by the respondent Government on
9 April 1996 and supplemented on 21 May 1996 and the observations
in reply submitted by the applicant on 1 and 29 January,
28 February and 7 March 1997 ;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a German national born in 1959. He is an active
sportsman and resides in Landshut. Before the Commission the applicant
is represented by Mr. H. Boog, a lawyer practising in Rostock.
The facts of the case, as submitted by the parties, may be
summarised as follows.
A. The particular circumstances of the case
Treatment of the applicant during his arrest and detention
On 8 September 1995 at about 2 p.m. the applicant crossed the
border between Austria and Slovenia near Sentilj. In his car he had
a package of pills which an acquaintance of Slovenian origin had asked
him to bring to Slovenia. He did not declare this fact to the customs
officers. At 4.55 p.m. of the same day the applicant was arrested by
the Slovenian police in Dolic.
According to the applicant's version of the facts, he found
himself threatened by several men who had a sawn-off shotgun and
pistols. They were in plain clothes and wore no visible signs
indicating that they belonged to the police. They attacked the
applicant without any prior warning. He was held tight and made no
attempt to resist. Despite his shouting in both German and English
that he was not resisting he was dragged brutally to the bonnet of a
car. Two men held him tight and pushed the upper part of his body
against the bonnet and four other men kept hitting his head with
cudgels and fists. His face was seriously injured and he suffered from
severe pains.
According to the respondent Government, the applicant was
arrested in the context of an action which had been planned by the
competent authorities on the basis of their operational data. When
constituting the arrest team the authorities bore in mind that the
applicant, whom they expected to be among the suspected drug dealers,
was extremely strong as he had won the German championship in body-
building on several occasions.
The Government further submit that the applicant was arrested by
four police officers in duty anoraks visibly indicating that they
belonged to the police. They were equipped with personal defence arms.
The officers warned the applicant that they belonged to the police and
asked him to keep still. As he disobeyed their order and attempted to
resist his apprehension, the police officers had to restrain him by
means of physical force and handcuffs. While they were taking a grip
on the applicant and pushed him to the ground, the applicant hit his
head on the bumper of a nearby car.
After his arrest the applicant was detained by the police. He
was suffering from headaches and had problems with his vision. He was
threatened with beating and sworn at as "German Nazi swine". Although
it was cold, he did not receive any covers. No meals or drinks were
served to him nor did he receive toilet paper. He was not allowed to
contact a lawyer and was obliged to sign a statement that he had
himself caused the injury and that he had not asked for a lawyer.
Subsequently the applicant was allowed to call his fiancée in Germany.
The applicant was first examined by a doctor at the Maribor
General Hospital on 9 September 1995. The report states that he was
brought to the hospital by the police and that his jaw was injured.
The applicant alleged to the doctor that he had been injured by the
police. The latter stated that the applicant had hit the edge of a car
during his arrest.
The doctor found that the applicant's temporomandibular joint
was sensitive to pressure and that he could not open his mouth
properly. The report further indicates that the applicant's occlusion
was irregular as the teeth on the left side had been displaced. The
doctor x-rayed the applicant and diagnosed a double fracture of the jaw
and facial contusions.
The doctor concluded that a surgery under general anaesthesia was
necessary and made arrangements for it to be carried out the next day.
He allowed the police to keep the applicant in custody in the meantime.
On 10 September 1995 the applicant was brought to the hospital
but he did not consent to the intervention as he considered that he
would be released soon and that he would undergo the operation in
Germany. It was agreed that the applicant would be examined again on
12 September 1995.
On 12 September 1995 the applicant was re-examined and stated
that he felt sick and that he had vomited. He still did not consent
to the surgery recommended by the doctor. The latter ordered that
pulpy food should be served to the applicant and that he should be
provided with sugar-free chewing-gum. Another examination was fixed
for 18 September.
The medical report of 18 September 1995 indicates that the
applicant felt better. His pains were weaker but still present when
he was chewing and eating. He could open his mouth only by some
fifteen to twenty millimetres. The doctor recommended that the
applicant should be provided with pulpy food and chewing-gum.
The next medical examination was scheduled for 25 September 1995
but it did not take place. The applicant signed a statement, according
to him under pressure, that he did not wish to be examined in a
hospital.
Further examinations at the Maribor General Hospital took place
on 3 October and on 25 and 27 November 1995. The applicant admitted
a slight improvement of his problems with the jaw but complained of
pains in his abdomen and blood in his excrements. He refused a rectal
examination. His abdomen and urine were examined but no abnormalities
were found. The doctors prescribed a special diet and, if need be, a
further examination.
In a letter of 20 November 1995 to the prison governor the
applicant stated that he had unsuccessfully attempted, as from the very
first week of his detention, to contact him both in person and in
writing and to complain that he had not been allowed to contact the
German consul, that he had not been provided with pulpy food as
recommended by the doctors and that as a result he had suffered both
physically and morally. He requested an appropriate examination in a
hospital.
On 23 November 1995 the applicant complained in writing to the
prison governor that his jaw was aching. On 26 and 28 November 1995
the applicant again asked the prison governor for an examination in
hospital.
On 29 November 1995 the applicant received the medical documents
relating to his treatment. Until then these documents had been
constantly refused him and the authorities had not accepted the
applicant's requests to give him the grounds for such refusal in
writing.
On 4 December 1995 the applicant was examined again at the
Maribor General Hospital. The report states that his occlusion was
damaged and that the applicant complained about pain in his jaw.
On 7 December 1995 the applicant was treated in the hospital for
two superficial cuts on his left wrist which he had caused himself in
depression on 3 December 1995.
In a letter of 17 December 1995 addressed to the Ministry of
Justice the applicant complained that he had been brutally beaten up
and that he had suffered a double fracture of his jaw. He stated that
he had not been provided with appropriate medical care. He claimed
damages of DEM 1,000,000.
A further medical examination was carried out on 16 January 1996.
The applicant complained about pain in his left temporomandibular joint
and in his ears. The doctor prescribed analgesics to the applicant and
noted that a specialist should be consulted as regards the treatment
of his jaw.
On 23 January 1996 a specialist concluded that the applicant's
jaw required prothetic rehabilitation or even a surgery. As the
applicant stated that he wished to undergo the treatment in Germany,
the doctor recommended that he should be sent there as soon as
possible.
On 5 March 1996 the applicant complained to the prison governor
that he was suffering pains from an inflammation in his middle ear and
requested treatment in a hospital.
On 7 March 1996 the applicant complained to a doctor about severe
pains in his head and that he had not been provided with appropriate
medical care in the prison. In particular, he complained that the
medicaments prescribed to him had not been given to him regularly.
In a letter of 9 June 1996 addressed to the German Embassy in
Slovenia the applicant complained that he had not been provided with
adequate food and medicaments prescribed by the doctors. He also
stated that for this reason he had once refused to undergo a medical
examination.
On 10 June 1996 the applicant complained to the Maribor prison
governor that on 8 and 9 June the guards had not provided him with
analgesics prescribed by the doctor and that, as a result, he was
suffering from severe pains and was depressed.
On 20 June 1996 the applicant complained to the prison governor
that on 18 and 19 June he had not been provided with the medicaments
which had been prescribed to him. On 30 June and 3 July 1996 he
complained again that medicaments had been refused to him. In his
complaints the applicant stated that he wished to bring criminal
proceedings against the staff of the prison and requested that he
should be allowed to file a criminal complaint with the police.
On 4 July 1996 the applicant complained to a judge of the Maribor
Higher Court that he suffered from severe pains and that pain killing
medicaments had been provided to him irregularly.
Decisions relating to the applicant's detention on remand
After his arrest on 8 September 1995 the applicant unsuccessfully
requested that he should be allowed to talk to a lawyer.
The applicant was brought before an investigating judge of the
Slovenj Gradec Regional Court (Okrozno sodisce) on 10 September 1995,
according to him at approximately 11 a.m., and according to the
respondent Government at 9 a.m. It appears that it was on this
occasion that he was granted the assistance of a lawyer for the first
time. The applicant was in a state of shock and had difficulties in
understanding the interpreter who did not speak German properly.
On 10 September 1995 an investigating judge of the Slovenj Gradec
Regional Court remanded the applicant in custody as from the moment of
his arrest, i.e. 4.55 p.m. of 8 September 1995. The judge noted that
the applicant was suspected of illegal production of and dealing in
narcotics and considered his detention necessary within the meaning of
Section 201 para. 2 (1) and (2) of the Code of Criminal Procedure (see
"The relevant domestic law" below).
On 3 October 1995 the applicant lodged, through his lawyer, a
request for release. He submitted that he would not abscond and
offered a security of DEM 50,000. The applicant further claimed that
his detention was no longer necessary as all witnesses had already been
heard and all relevant evidence had been taken.
On 6 October 1995 the Slovenj Gradec Regional Court extended the
applicant's detention on remand until 8 December 1995 pursuant to
Section 205 para. 2 of the Code of Criminal Procedure. The court noted
that the investigation into the applicant's case could not have been
completed within a month. It further pointed out that the applicant
was reasonably suspected of criminal offences under Slovenian law. As
he was a foreign national, there existed a risk that he could hinder
the investigation by absconding. The court therefore held that his
further detention was necessary within the meaning of Section 201
para. 2 (1) of the Code of Criminal Procedure and Article 20 of the
Constitution.
The applicant lodged a complaint against the aforesaid decision.
He claimed that there existed no reason for his detention and that the
Regional Court had not decided on his request for release on bail of
3 October.
On 19 October 1995 the Maribor Higher Court (Visje sodisce)
dismissed the applicant's complaint. It noted that the applicant was
a foreign national who had no links in Slovenia. It therefore held
that there existed the risk of his absconding. The court further noted
that proceedings were pending, in the same context, against two other
persons and considered the applicant's detention necessary also in
order to ensure their proper conduct. As to the applicant's request
for release on bail, the Higher Court held that it had to be first
decided upon by the Regional Court.
On 26 October 1995 the Slovenj Gradec Regional Court dismissed
the applicant's request for release on bail of 3 October 1995. The
court did not consider the security offered by the applicant as a
sufficient guarantee for his attending the proceedings before it. The
court noted that the proceedings concerned also two other accused
persons and held that it would not be possible to conduct them properly
if the applicant absconded.
On 27 November 1995 the Slovenj Gradec Regional Court extended
the applicant's detention on remand pursuant to Section 272 para. 2 of
the Code of Criminal Procedure. The court noted that on
24 November 1995 the Public Prosecutor's Regional Office in Slovenj
Gradec had indicted the applicant of smuggling and of unlawful
production of and dealing in narcotics.
The court noted, with reference to the file concerning the
applicant's case, that there existed a strong suspicion that the
applicant had committed the offences imputed to him. It further
pointed out that the applicant was a foreign national and considered
that the accusations brought against him could encourage him to
abscond. The court considered the detention necessary also in order
to ensure proper conduct of the proceedings which involved two other
accused. It referred to Section 201 para. 2 (1) of the Code of
Criminal Procedure and to Article 20 of the Constitution.
On 13 December 1995 the Maribor Higher Court dismissed the
applicant's complaint against the aforesaid decision. It considered,
with reference to the Regional Court's reasoning, that the applicant's
further detention was necessary within the meaning of Section 201
para. 2 (1) of the Code of Criminal Procedure. The Higher Court dealt
also with the applicant's argument that a witness had given evidence
that undermined the arguments of the prosecution. The court held,
however, that it was for the criminal court examining the charges
against the applicant to assess such evidence.
On 29 November 1995 the applicant lodged, through his lawyer,
another request for release. He claimed that there existed no relevant
reasons for his detention and offered a security of DEM 50,000.
On 22 December 1995 the Slovenj Gradec Regional Court dismissed
the aforesaid request. The court considered that the reasons for the
applicant's detention, as established in the earlier decisions, still
existed. The court noted that a witness had given evidence in the
applicant's favour. It pointed out, however, that it was for the
chamber dealing with the case to assess such evidence and considered,
on the basis of the documents included in the file, that the applicant
could reasonably be suspected of having committed the offences imputed
to him.
On 8 January 1996, after having convicted the applicant, the
Slovenj Gradec Regional Court extended the applicant's detention until
the moment when its judgment became final or, as the case might be,
until the expiry of the prison sentence imposed on him.
The criminal proceedings against the applicant
On 21 September 1995 an investigating judge of the Slovenj Gradec
Regional Court decided, upon the request of the public prosecutor of
12 September 1995, to institute a criminal investigation into the
applicant's case. The judge noted, on the basis of the information
available in the file, that the applicant was suspected of having
smuggled narcotics to Slovenia with a view to selling them and that
further investigation into the case was necessary.
On 23 October 1995 an acquaintance of the applicant appeared, at
his own initiative, before the Slovenj Gradec Regional Court. He
stated that he had asked the applicant to transport anabolic steroids
from Germany to Slovenia and that the applicant had not known that in
fact he had transported the substance referred to as "Ecstasy".
On 24 November 1995 the Slovenj Gradec public prosecutor
indicted the applicant of unauthorised production of and dealing in
narcotics and of smuggling. Charges were also brought against two
other persons.
On 8 January 1996 the Slovenj Gradec Regional Court convicted the
applicant of the aforesaid offences pursuant to Sections 196 para. 1
and 255 para. 1 of the Criminal Code and sentenced him to one year's
imprisonment.
The Regional Court established that on 8 September 1995 at about
2 p.m. the applicant had illegally transported 6,066 pills of "Ecstasy"
and 581 other pills from Austria to Slovenia. The court found, with
reference to two expert opinions, that the aforesaid pills contained
amphetamine and metylhendioxidmetamphetamine. It established that both
substances were listed as narcotics in the Narcotics Regulation
No. 74/78 as amended by Regulation No. 10/87 of the former Socialist
Federal Republic of Yugoslavia which had been incorporated in Slovenian
law by virtue of Article 4 of the Constitutional Act No. 1/91. The
value of the smuggled goods amounted to DEM 102,000.
The court further established that the applicant had been
actively involved in the sale of the aforesaid pills in that he had
transported them, from 7 September to the moment of his apprehension
on 8 September 1995 at 4.55 p.m., with a view to handing them over, for
reward, to another person.
Before the court the applicant admitted that he had brought,
without an authorisation, pills which he had considered to be anabolic
steroids to Slovenia. He claimed that illegal transporting of anabolic
steroids did not constitute an offence as they were not considered as
narcotics. The applicant further admitted that he had been told that
he would receive DEM 66,000 for the pills including a reward of
DEM 5,000 for their transport.
The applicant explained that he had agreed to transport the pills
at the request of an acquaintance of Slovenian origin. He had hidden
them in his car as he had known that anabolic steroids could not be
imported freely. He alleged that he had not known the amount of the
pills he had transported and their real nature.
The Regional Court did not accept the applicant's arguments. It
established that prior to 8 September 1995 the applicant and his
acquaintance had come to Slovenia where they had met with a person to
whom the applicant had been expected to hand over the pills.
The court noted that the acquaintance who had asked the applicant
to transport the pills had confirmed that he had pretended to the
applicant that the pills were anabolic steroids and that the
applicant's meeting with a person to whom, in the court's view, the
pills had had to be handed over had been purely accidental.
However, the Regional Court did not rely on the statements of the
aforesaid witness. It held that he had given evidence against himself
and in favour of the applicant as he knew that no criminal proceedings
could be brought against him in Slovenia in this context.
The applicant attended the hearing in person and was represented
by Rok Gerlovic, a lawyer practising in Maribor and Andrej Kac, a
trainee lawyer from Maribor.
On 11 January 1996 the applicant requested Andrej Kac to lodge
a constitutional complaint on his behalf and to invoke Articles 3, 5,
6 and 7 of the Convention and also Articles 2 and 3 of Protocol No. 7.
The lawyer dissuaded the applicant from pursuing this remedy.
On 24 January 1996 the applicant terminated his contract with
Boris Kac, a lawyer practising in Maribor, who had represented him,
together with Andrej Kac, since 18 September 1995. In his letter the
applicant stated that he had financial problems and expressed his
gratitude for the lawyers' work.
Subsequently the applicant was represented by Ljubo Kolbl, a
lawyer practising in Maribor.
Both the public prosecutor and the applicant appealed against the
Regional Court's judgment of 8 January 1996. The former claimed that
the sentence imposed on the applicant was too lenient. The applicant
alleged that the first instance court had failed to establish the facts
correctly and that he had been convicted arbitrarily. The applicant
also complained that the Regional Court had not applied the law
correctly in that its judgment was contradictory, that his actions
could not be qualified as an offence and that the substances
transported by him had not been considered as narcotics in Slovenian
law.
On 29 April 1996 the Maribor Higher Court dismissed the
applicant's appeal as being manifestly ill-founded and, following the
public prosecutor's request, increased the applicant's sentence to
seventeen months' imprisonment.
The Higher Court held that the first instance court had
established all relevant facts with sufficient certainty and had
applied the law correctly. In particular, it found no relevant
contradictions in the Regional Court's judgment and held that the
latter had given a correct qualification of the applicant's actions
under Slovenian law.
The Higher Court further recalled that the substances transported
by the applicant had been identified as amphetamine and
methylendioxidmetamphetamine by two forensic institutes independent of
each other and that the regulation of the former Socialist Federative
Republic of Yugoslavia qualifying these substances as narcotics had
been incorporated into Slovenian law by virtue of Article 4 of
Constitutional Act No. 1/91.
In the proceedings before the Maribor Higher Court the applicant
was represented by his lawyer. Upon the latter's advice the applicant
decided not to attend the hearing.
Interferences with the applicant's correspondence
During his detention in Slovenia all applicant's correspondence
was monitored. As a result, his letters were delivered with delays of
up to three or four weeks.
The first letter of the Commission's Secretariat was sent to the
applicant on 27 October 1995. It was handed to the applicant, open,
on 9 November 1995. The second letter with the application form was
sent by urgent mail on 20 November and it was transmitted to the
applicant on 28 November 1995.
B. Relevant domestic law
Constitutional provisions
Article 19 of the Constitution provides as follows:
(translation)
"The right of each individual to the liberty of person shall be
guaranteed.
Nobody may be deprived of his liberty except in cases and in
accordance with the procedures prescribed by law. Any person
deprived of his liberty must be immediately informed, in his
mother tongue or in a language which he understands, of the
reasons for his arrest.
Within the shortest possible time thereafter the arrested person
shall be informed in writing of the reasons for his arrest. Such
a person shall be immediately informed that he is not obliged to
make any statement, that he has the right to obtain immediately
the assistance of a lawyer of his own choice and also that the
authority responsible for his arrest is under the obligation to
advise, upon his request, his family or his friends that he has
been arrested."
Article 20 of the Constitution provides, in so far as relevant,
as follows:
(translation)
"A person reasonably suspected of having committed a criminal
offence may be detained, but only by order of a court and only
where such a detention is absolutely necessary for the proper
conduct of criminal proceedings or for the protection of society.
Within twenty-four hours after his arrest the person concerned
shall be handed in writing the order of the court specifying the
reasons for his detention..."
Pursuant to Article 160 of the Constitution, the Constitutional
Court is empowered to decide, after the exhaustion of other available
remedies, on complaints concerning individual acts of public
authorities infringing human rights and fundamental freedoms.
Under Article 162 of the Constitution any person having a legal
interest in doing so may initiate proceedings before the Constitutional
Court.
Pursuant to Article 4 of Constitutional Act No. 1/91 on
Implementation of the Constitutional Charter on Independence of the
Republic of Slovenia, legal rules of the former Socialist Federative
Republic of Yugoslavia which do not contradict the Constitution and the
legal order of the Republic of Slovenia shall be applicable in the
latter until the adoption of new legislation.
Constitutional Court Act
The proceedings before the Constitutional Court are governed by
the Constitutional Court Act (Zakon o Ustavnem sodiscu, Official
Gazette No. 15/94).
Pursuant to Section 50 para. 1, any person considering that his
or her human rights and fundamental freedoms have been violated by an
individual act of a public authority may lodge a constitutional
complaint with the Constitutional Court.
Under Section 51 the Constitutional Court may only deal with a
constitutional complaint after all other available remedies have been
exhausted. However, the Constitutional Court may, exceptionally,
decide on a constitutional complaint prior to exhaustion of all
extraordinary remedies provided that the alleged violation of human
rights and fundamental freedoms is obvious and that the implementation
of the act complained of would cause irreparable damage to the person
concerned.
Section 52 provides that a constitutional complaint shall be
filed within sixty days after the delivery of the act against which it
is permissible. However, in exceptional cases the Constitutional Court
may decide to deal also with complaints introduced after the expiry of
the aforesaid time-limit.
Under Section 59 para. 1, in cases where the Constitutional Court
has accepted a constitutional complaint it is entitled to quash, either
ex tunc or ex nunc, the act complained of and to send the case back to
the competent authority.
Pursuant to Section 60 of the Constitutional Court Act, if the
Constitutional Court quashes an individual act ex tunc it may also
deliver a decision on the contested right or freedom if it is necessary
in order to eliminate the consequences of the act complained of or if
it is required by the nature of the right or freedom in question and
provided that the Constitutional Court can reach such a decision on the
basis of the information before it. Such a decision of the
Constitutional Court shall be implemented by the public authority
concerned.
Criminal Code
Section 196 para. 1 of the Criminal Code provides that anyone
who, without authorisation, produces, alters, sells or offers for sale,
buys with a view to selling, keeps or carries or serves as an
intermediary in the sale and purchase, or in any other way engages in
unauthorised circulation of substances classified as narcotics is
punishable with a prison sentence from one to ten years.
Pursuant to Section 255 para. 1 of the Criminal Code, anyone who
transports goods of substantial value across the border and avoids
customs control, or transfers such goods as a member of a group, while
being armed or with the use or threat of force is punishable with a
fine or imprisonment up to three years.
Code of Criminal Procedure
Pursuant to Section 201 para. 2 (1) of the Code of Criminal
Procedure, a person reasonably suspected of having committed a criminal
offence may be remanded in custody when he or she is hiding, when his
or her identity cannot be established or when the particular
circumstances of the case indicate that there is a danger of his or her
absconding.
Pursuant to para. 2 (2) of the same Section, 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.
Section 205 para. 1 of the Code of Criminal Procedure provides
that an investigating judge may remand an accused person in custody for
no longer than a month from the moment when he or she was arrested.
After the expiry of this period a person may be detained only upon the
basis of a decision to extend his or her detention.
Under para. 2 of the same Section, such a decision shall be
delivered by a court's chamber and the accused person's detention may
thereby be extended for no longer than two months.
Section 211 para. 3 of the Code of Criminal Procedure provides
that a detainee may correspond or establish other contacts with persons
outside the prison with the consent and under the supervision of the
investigating judge dealing with his or her case. The latter may
prohibit the detainee to send or receive letters or having other
contacts when they could affect the criminal proceedings pending
against him or her. However, it is not permissible to prevent a
detained person from sending applications or appeals.
Pursuant to para. 4 of the aforesaid Section, during the period
between the filing of indictment and the moment when a judgment becomes
final the control of a detained person's correspondence shall be
exercised by the president of a court's chamber.
In accordance with Section 272 para. 2 of the Code of Criminal
Procedure, when an indictment is filed against a person detained on
remand and provided that it does not contain a proposal that such a
person should be released, a court's chamber shall examine ex officio,
within three days after the filing of the indictment, whether relevant
reasons for a further detention of the accused exist and issue a
decision by which either the detention on remand is extended or the
person concerned is released.
COMPLAINTS
The applicant complains under Article 3 of the Convention about
the treatment to which he was subjected during his arrest and his
subsequent detention by the Slovenian authorities. In particular, he
complains that the police officers arresting him fractured his jaw,
that he was subjected to degrading treatment while being detained by
the police, that he was not granted appropriate medical treatment and
that the prison staff did not provide him regularly with adequate food
and medicaments as ordered by the doctors.
The applicant further complains that his detention was unlawful,
that he was not informed promptly of the reasons for his arrest, that
he was brought before a judge with a considerable delay after his
arrest and that he could not, especially at the initial stage of his
detention, take proceedings with a view to having the lawfulness of his
detention examined speedily by a court. He alleges a violation of
Article 5 paras. 1 (c), 2 and 5 of the Convention.
The applicant also complains under Article 8 of the Convention
that all his correspondence was monitored by the Slovenian authorities
and transmitted with considerable delays.
Finally, the applicant complains about the criminal proceedings
leading to his conviction. In particular, he alleges that at the
preliminary stage of the proceedings he did not benefit from the
guarantees set out in Article 6 para. 3 (a), (b), (c) and (e) of the
Convention and that the courts dealing with his case failed to
establish the facts correctly and decided arbitrarily. He further
complains under Article 7 of the Convention that his actions did not
constitute a criminal offence. He alleges also a violation of
Articles 2 and 3 of Protocol No. 7 in the context of the criminal
proceedings against him.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 17 September 1995 and
registered on 6 December 1995.
On 18 January 1996 the Commission decided to communicate the
application to the respondent Government and to invite the latter to
submit written observations on its admissibility and merits. The
Commission invited the Government to deal in their observations, in
particular, with questions under Article 3, Article 5 paras. 3 and 4
as well as Articles 8 and 25 of the Convention. As regards the
applicant's complaints under Article 3 of the Convention, the
Commission invited the Government to state their opinion as to whether
the applicant had had any effective remedies at his disposal.
The Government's written observations were submitted on
9 April 1996, after an extension of the time-limit fixed for that
purpose. On 25 April 1996 the President of the First Chamber set, at
the Government's request, a new time-limit for supplementing the
observations. The Government's supplementary observations were
submitted on 21 May 1996. The applicant replied on 1 and 29 January,
28 February and 7 March 1997, after two extensions of the time-limit.
On 16 April 1996 the Commission granted the applicant legal aid.
THE LAW
1. The applicant complains about the treatment to which he was
subjected during his arrest and subsequent detention by the Slovenian
authorities. He alleges a violation of Article 3 (Art. 3) of the
Convention which provides as follows:
"No one shall be subjected to torture or to inhuman or degrading
treatment or punishment."
The Commission first recalls that under Article 26 (Art. 26) of
the Convention it may only deal with a matter after all domestic
remedies have been exhausted. It is the normal practice of the
Commission, where a case has been communicated to the respondent
Government, not to declare the application inadmissible for failure to
exhaust domestic remedies, unless this matter has been raised by the
Government in their observations (see No. 22947/93 and No. 22948/93,
Dec. 11.10.94, D.R. 79-A, p. 108).
The Commission notes that on 18 January 1996 it decided to
communicate the applicant's complaints under Article 3 (Art. 3) of the
Convention and invited the parties to submit observations as to whether
the applicant had had any effective remedies at his disposal.
In their observations the respondent Government made no comments
concerning the applicant's compliance with the requirement as to the
exhaustion of domestic remedies laid down in Article 26 (Art. 26) of
the Convention. In these circumstances, the Commission considers that
this part of the application cannot be rejected for non-exhaustion of
domestic remedies.
As to the merits, the respondent Government submit that the
applicant was arrested by four officials with visible external signs
indicating that they belonged to the police. As the applicant did not
react to their oral warnings and attempted to resist his apprehension,
the officers were obliged to have recourse to mild means of constraint.
While he was being restrained and pushed to the ground, the applicant
hurt his head against the bumper of a nearby car. The Government
further submit that the use of force while arresting the applicant was,
irrespective of its consequences, legitimate and conformed to the
relevant provisions of Slovenian law.
The applicant contests the Government's version of the facts.
He contends that the police officers were in plain clothes and
threatened him with a sawn-off shotgun and pistols. He was held tight
by two persons and four other persons kept hitting his head with
cudgels and fists notwithstanding that he shouted both in German and
English that he was not resisting.
The applicant further maintains that after his arrest he was
brought to a police station and transported to a hospital only after
a considerable delay. His jaw was seriously injured and he suffered
from headaches and had problems with his vision. During his detention
at the police station he was threatened with beating and sworn at as
"German Nazi swine". Although it was cold, he did not receive any
covers. No meals or drinks were served to him nor did he receive
toilet paper. He could not contact a lawyer and was obliged to sign
a statement that he had caused himself the injury.
Finally, the applicant submits that the medical care granted to
him in Slovenia was inappropriate and that the prison staff repeatedly
failed to provide him with adequate food and medicaments which the
doctors had prescribed to him.
The Commission considers that the applicant's above complaints
raise serious issues of fact and law under the Convention the
determination of which should depend on an examination of the merits.
It follows that this part of the application cannot be dismissed as
being manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention. No other ground for declaring it
inadmissible has been established.
2. The applicant further complains about his detention in Slovenia.
He alleges a violation of Article 5 paras. 1 (c), 2 and 5
(Art. 5-1-c, 5-2, 5-5) of the Convention.
a) To the extent that the applicant complains that his detention was
unlawful, that he was not informed promptly of the reasons for his
arrest and that he was not compensated for his detention, the
Commission notes that it does not appear from the documents submitted
that the applicant raised these issues in his complaints addressed to
the Slovenj Gradec Regional Court and the Maribor Higher Court.
Furthermore, the applicant has not, ultimately, filed a constitutional
complaint before the Constitutional Court.
The Commission notes that the applicant was evidently aware of
the existence of a remedy before the Constitutional Court as on
11 January 1996 he requested the lawyer who then represented him to
lodge a constitutional complaint on his behalf relying on the
complaints submitted in the present application. It is true that the
lawyer dissuaded the applicant from pursuing such a remedy. However,
in this respect the Commission recalls that a lawyer does not engage
the responsibility of the State under the Convention (see No. 9022/80,
Dec. 13.7.83, D.R. 33, p. 21).
Furthermore, after 24 January 1996 the applicant was represented
by another lawyer of his own choice and it does not appear from the
documents submitted that he sought to obtain redress in this respect
either through his intermediary or in person.
In these circumstances, the Commission considers that the
applicant has not complied 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
under Article 27 para. 3 (Art. 27-3) of the Convention.
b) The applicant further complains that after his arrest he was not
brought promptly before a judge. The Commission has examined this
complaint under Article 5 para. 3 (Art. 5-3) of the Convention which
provides, so far as relevant, as follows:
"Everyone arrested or detained in accordance with the provisions
of paragraph 1 (c) of this Article shall be brought promptly
before a judge or other officer authorised by law to exercise
judicial power..."
The Commission first notes that this part of the application was
communicated to the respondent Government. Since the latter failed to
address the question of exhaustion of domestic remedies in this
respect, the Commission considers that this part of the application
cannot be rejected for non-exhaustion of domestic remedies (see para. 1
above).
As to the merits, the respondent Government submit that the
applicant was arrested on 8 September 1995 at 4.55 p.m. and brought
before a judge on 10 September 1995 at 9 a.m.
The applicant contends that he was brought before a judge on
10 September 1995 at about 11 a.m.
The Commission finds, on the basis of the parties' submissions,
that the applicant was brought before a judge no longer than forty-two
hours after his arrest. In the Commission's view, this period is in
keeping with the requirement of promptness laid down in Article 5
para. 3 (Art. 5-3) of the Convention (see, e.g., No. 11256/84, Dec.
5.9.88, D.R. 57, pp. 47, 70, with further references).
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.
c) The applicant also complains that he was not able to take
proceedings by which the lawfulness of his detention would be decided
speedily. The Commission has examined this complaint under Article 5
paras. 4 and 5 (Art. 5-4, 5-5) of the Convention which provide as
follows:
"4. Everyone who is deprived of his liberty by arrest or
detention shall be entitled to take proceedings by which the
lawfulness of his detention shall be decided speedily by a court
and his release ordered if the detention is not lawful.
5. Everyone who has been the victim of arrest or detention in
contravention of the provisions of this Article shall have an
enforceable right to compensation."
The Commission first notes that this part of the application was
communicated, under Article 5 para. 4 (Art. 5-4) of the Convention, to
the respondent Government. Since the latter failed to address the
question of exhaustion of domestic remedies in this respect, the
Commission considers that this part of the application cannot be
rejected for non-exhaustion of domestic remedies (see para. 1 above).
The respondent Government submitted no observations as regards
the merits of this part of the application.
The applicant alleges that at the initial stage of his detention
on remand he was not able to have the lawfulness of his detention
reviewed speedily by a court. In the proceedings before the Slovenian
authorities he also complained that the Slovenj Gradec Regional Court
had not decided on his request for release of 3 October 1995 speedily.
The Commission notes that the Slovenj Gradec Regional Court
decided on the applicant's request for release of 3 October on
26 October 1995. On 29 November 1995 the applicant lodged another
request for release and the Slovenj Gradec Regional Court decided on
it on 22 December 1995.
The Commission considers that the above complaints raise serious
issues of fact and law under the Convention the determination of which
should depend on an examination of the merits. It follows that this
part of the application cannot be dismissed as being manifestly ill-
founded within the meaning of Article 27 para. 2 (Art. 27-2) of the
Convention. No other ground for declaring it inadmissible has been
established.
3. The applicant complains that while he was detained the Slovenian
authorities monitored his correspondence including the letters sent to
him by the European Commission of Human Rights and that his letters
were delivered with considerable delays. He alleges a violation of
Article 8 (Art. 8) of the Convention which provides, so far as
relevant, as follows:
"1. Everyone has the right to respect for his ... correspondence.
2. There shall be no interference by a public authority with the
exercise of this right except such as is in accordance with the
law and is necessary in a democratic society in the interests of
national security, public safety or the economic well-being of
the country, for the prevention of disorder or crime, for the
protection of health or morals, or for the protection of the
rights and freedoms of others."
The Commission first notes that on 18 January 1996 it decided to
invite the parties to submit observations as regards the applicant's
complaint under Article 8 (Art. 8) of the Convention.
In their observations the respondent Government made no comments
concerning the applicant's compliance with the requirement as to the
exhaustion of domestic remedies laid down in Article 26 (Art. 26) of
the Convention. In these circumstances, the Commission considers that
this part of the application cannot be rejected for non-exhaustion of
domestic remedies (see para. 1 above).
As to the merits, the respondent Government submit that the
applicant's correspondence was monitored by an investigating judge
pursuant to Section 211 of the Code of Criminal Procedure. They
further point out that the delays in handing the letters to the
applicant were due to the fact that during the preliminary stage and
at first instance his case was dealt with by the Slovenj Gradec
Regional Court whereas he was detained in the Maribor prison.
The applicant contends that his letters were regularly opened and
handed to him with delays amounting to three or four weeks. He submits
that it was therefore not possible for him to carry out a free and
unhindered exchange of ideas by correspondence and that this
interference had no reasonable justification.
The Commission considers that the applicant's above complaint
raises serious issues of fact and law under the Convention the
determination of which should depend on an examination of the merits.
It follows that this part of the application cannot be dismissed as
being manifestly ill-founded within the meaning of Article 27 para. 2
(Art. 27-2) of the Convention. No other ground for declaring it
inadmissible has been established.
4. The Commission has examined, ex officio, the applicant's
complaint about the interference with his correspondence with the
Commission also under Article 25 para. 1 (Art. 25-1) of the Convention
which provides as follows:
"The Commission may receive petitions addressed to the Secretary
General of the Council of Europe from any person, non-
governmental organisation or group of individuals claiming to be
the victim of a violation by one of the High Contracting Parties
of the rights set forth in this Convention, provided that the
High Contracting Party against which the complaint has been
lodged has declared that it recognises the competence of the
Commission to receive such petitions. Those of the High
Contracting Parties who have made such a declaration undertake
not to hinder in any way the effective exercise of this right."
The Commission notes that the first letter of the Commission's
Secretariat was sent to the applicant on 27 October 1995. It was
handed to the applicant, open, on 9 November 1995. The second letter
with the application form was sent by urgent mail on 20 November and
it was transmitted to the applicant on 28 November 1995.
The Commission has before it no indication that the aforesaid
letters or any other letters between the Commission and the applicant
were tampered with. Furthermore, and even assuming that there were
delays attributable to the Slovenian authorities in handing the
aforesaid letters to the applicant, the Commission has no evidence
before it that the applicant suffered any prejudice in regard to the
presentation of his application to the Commission or that he was in any
way frustrated in the exercise of his right of individual petition (see
Campbell v. the United Kingdom, Comm. Report 12.7.90, paras. 73-76,
Eur. Court HR, Series A no. 233, p. 41; the Court, in its judgment of
25 March 1992, made no finding as to Article 25 (Art. 25) of the
Convention; p. 23, para. 66).
The Commission therefore considers that no further action need
be taken in respect of compliance with the applicant's right under
Article 25 para. 1 (Art. 25-1) of the Convention.
5. The applicant further complains about the criminal proceedings
leading to his conviction. 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
independent and impartial tribunal established by law.
...
3. Everyone charged with a criminal offence has the following
minimum rights:
a. to be informed promptly, in a language which he
understands and in detail, of the nature and cause of the
accusation against him;
b. to have adequate time and facilities for the
preparation of his defence;
c. to defend himself in person or through legal
assistance of his own choosing or, if he has not sufficient means
to pay for legal assistance, to be given it free when the
interests of justice so require;
...
e. to have the free assistance of an interpreter if he
cannot understand or speak the language used in court."
a) 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 a possible 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 Slovenj Gradec Regional Court examined
the evidence before it and came to the conclusion, for reasons
expressly set out in its judgment, that the applicant had committed the
offences of which he had been indicted.
Subsequently, the Maribor Higher Court found that the first
instance court had established all relevant facts with sufficient
certainty and had applied the law correctly. In particular, it found
no relevant contradictions in the Regional Court's judgment and held
that the latter had given a correct qualification of the applicant's
acting under Slovenian law. Both courts dealt also with the
applicant's defence and in their judgments they set out the reasons for
which they refused to accept it.
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.
b) To the extent that the applicant complains that at the
preliminary stage of the criminal proceedings his rights under
Article 6 para. 3 (c) (Art. 6-3-c) were not respected, the Commission
recalls that the question whether a trial is in conformity with the
requirements of Article 6 (Art. 6) must be considered on the basis of
an examination of the proceedings as a whole and not one isolated
aspect (see No. 11069/84, Dec. 17.9.89, D.R. 62, pp. 5, 19).
The Commission notes that in the proceedings before the Regional
Court, which he attended in person, the applicant was assisted by a
lawyer and a trainee-lawyer. The applicant decided not to attend the
hearing before the Higher Court upon the advice of his lawyer, and the
latter represented him in the proceedings at second instance.
Thus in the course of the judicial proceedings concerning his
case the applicant could defend himself either in person or through his
lawyer, and the Commission has before it no information that would
indicate that the Slovenian authorities restricted the exercise of his
right to defend himself in a way which is incompatible with
Article 6 para. 3 (c) (Art. 6-3-c) of the Convention.
c) As regards the applicant's complaints under Article 6
para. 3 (a), (b) and (e) (Art. 6-3-a, 6-3-b, 6-3-e) of the Convention,
the Commission notes that it does not appear from the documents
submitted that the applicant raised these issues in the proceedings
before the Slovenj Gradec Regional Court and, subsequently, in his
appeal to the Maribor Higher Court. In this respect he has not,
therefore, complied 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
under Article 27 (Art. 27) of the Convention.
6. Finally, the applicant alleges a violation of Article 7 (Art. 7)
of the Convention and of Articles 2 and 3 of Protocol No. 7
(P7-2, P7-3) in the context of the criminal proceedings leading to his
conviction. The aforesaid provisions read, so far as relevant, as
follows:
Article 7 (Art. 7) of the Convention
"1. No one shall be held guilty of any criminal offence on
account of any act or omission which did not constitute a
criminal offence under national or international law at the time
when it was committed. Nor shall a heavier penalty be imposed
than the one that was applicable at the time the criminal offence
was committed."
...
Protocol No. 7, Article 2 P7-2) of the Convention
"1. Everyone convicted of a criminal offence by a tribunal
shall have the right to have his conviction or sentence reviewed
by a higher tribunal. The exercise of this right, including the
grounds on which it may be exercised, shall be governed by law."
...
Protocol No. 7, Article 3 (P7-3) of the Convention
"When a person has by a final decision been convicted of a
criminal offence and when subsequently his conviction has been
reversed, or he has been pardoned, on the ground that a new or
newly discovered fact shows conclusively that there has been a
miscarriage of justice, the person who has suffered punishment
as a result of such conviction shall be compensated according to
the law or the practice of the State concerned, unless it is
proved that the non-disclosure of the unknown fact in time is
wholly or partly attributable to him."
a) To the extent that the applicant alleges a violation of Article 7
(Art. 7) of the Convention in that his actions did not amount to a
criminal offence, the Commission recalls that the applicant was
convicted of unauthorised production of and dealing with narcotics and
of smuggling pursuant to Sections 196 para. 1 and 255 para. 1 of the
Criminal Code as in force at the relevant time. Furthermore, the
Commission has before it no information that would indicate that the
Slovenian courts exceeded the limits of a reasonable interpretation of
these provisions (see No. 9870/82, Dec. 13.10.83, D.R. 34, pp. 208,
211).
b) As regards the applicant's complaint under Article 2 of Protocol
No. 7 (P7-2), the Commission notes that the applicant had the
possibility of having the judgment of the Slovenj Gradec Regional Court
of 8 January 1996 reviewed by a court of second instance, namely the
Maribor Higher Court.
In these circumstances, the Commission considers that the
requirements of Article 2 of Protocol No. 7 (P7-2) have been complied
with.
c) To the extent that the applicant alleges a violation of Article 3
of Protocol No. 7 (P7-3), the Commission recalls that the right to a
compensation guaranteed by it covers exclusively cases when a final
conviction of a criminal offence has been reversed or if a person
convicted of a criminal offence has been pardoned on the ground that
a new or newly discovered fact shows conclusively that there has been
a miscarriage of justice.
However, in the present case the judgments by which the applicant
was convicted and sentenced to a prison sentence are binding.
Accordingly, the applicant cannot claim compensation for his conviction
under Article 3 of Protocol No. 7 (P7-3).
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 ADMISSIBLE, without prejudging the merits, the
applicant's complaints that he was subjected to treatment
incompatible with Article 3 of the Convention, that he was not
able to take proceedings by which the lawfulness of his detention
would be decided speedily as required by Article 5 para. 4 of the
Convention, that his right to a compensation in this respect as
guaranteed by Article 5 para. 5 of the Convention was not
respected, and that his correspondence was interfered with
contrary to the requirements of Article 8 of the Convention;
DECIDES NOT TO PURSUE the examination of whether the applicant's
right under Article 25 para. 1 of the Convention was interfered
with;
DECLARES INADMISSIBLE the remainder of the application.
M.F. BUQUICCHIO N. BRATZA
Secretary Acting President
to the First Chamber of the First Chamber
Full & Egal Universal Law Academy