SECOND SECTION
PARTIAL DECISION
AS TO THE ADMISSIBILITY OF
Application no. 41384/98
by Štefan VARGA
against the Slovak Republic
The European Court of Human Rights (Second Section), sitting on 29 June 2000 as a Chamber composed of:
MrC.L. Rozakis, President,
MrA.B. Baka,
MrB. Conforti,
MrG. Bonello,
MrsM. Tsatsa-Nikolovska,
MrE. Levits,
MrA. Kovler, judges,
MrE. Fribergh, Section Registrar,
Having regard to the above application introduced with the European Commission of Human Rights on 5 June 1992 and registered on 28 May 1998,
Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,
Having deliberated, decides as follows:
THE FACTS
The applicant is a Slovak national, born in 1963 and living in Košice.
A.The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
On 5 July 1990 the applicant was apprehended by the police. A policeman hit several times his face. On 19 December 1990 the police investigator dismissed the applicant’s criminal complaint about this incident. On 24 January 1991 the Prešov Military Prosecutor upheld the investigator’s decision. Further criminal complaints lodged by the applicant were dismissed by the Košice City Prosecutor on 25 July 1991, by the Inspection of the Ministry of the Interior on 5 October 1992 and by the General Prosecutor’s Office on 28 July 1993. The authorities found that the applicant had failed to substantiate his allegations and that his criminal complaints contained no new relevant facts. On 1 October 1998 the Inspection of the Ministry of the Interior dismissed a fresh criminal complaint filed by the applicant on the ground that the final decision on the issue had been delivered in 1990.
On 6 July 1990 the police investigator accused the applicant of theft and of violation of domestic privacy.
On 7 July 1990 the Košice Public Prosecutor decided to remand the applicant in custody as from 5 July 1990.
On 23 July 1990 the Košice Public Prosecutor appointed a lawyer to represent the applicant in the criminal proceedings.
On 4 January 1991 the applicant was indicted for several offences.
On 16 May 1991 the Supreme Court (Najvyšší súd) decided that the case was within the jurisdiction of the Košice Regional Court (Krajský súd).
On 19 April 1991 the prison officers beat up the applicant while repressing a rising in several cells. He was not provided with appropriate health care. On 2 August 1991 and on 30 December 1991 the Košice City Prosecutor dismissed the applicant’s criminal complaints about his ill-treatment in prison.
On 3 July 1991 the Košice Regional Court sent the applicant’s criminal case back to the Public Prosecutor for further investigation. The Regional Court pointed out that, contrary to the law, the applicant had been examined without the assistance of a lawyer on 19 July 1990 and that it could not consider the evidence thus obtained.
On 31 December 1991 the applicant was released from detention on remand.
On 13 April 1992 a new indictment was filed against the applicant.
On 10 August 1992 the Košice 1 District Court (Obvodný súd) returned the case to the Public Prosecutor for further investigation.
On 5 October 1994 the applicant was indicted for several offences before the Košice 1 District Court.
On 30 June 1995 the District Court returned the case to the Public Prosecutor and ordered further investigation into the case.
On 16 September 1996 the Košice 1 District Court convicted the applicant on 69 counts of theft and attempted theft, of violation of domestic privacy and of damaging other persons’ property. The court established that between 7 February 1990 and 4 July 1990 the applicant had committed housebreaking and had stolen objects for Slovak korunas (SKK) 599,928 and that he had damaged property for 5,641 SKK.
The court noted that at the preliminary stage of the proceedings the applicant had admitted the offences imputed to him and had described in detail how he had committed them. However, at a later stage the applicant denied his statements and requested that his mental health should be examined. The opinion submitted by two experts showed that the applicant did not suffer from any mental disease.
The District Court pointed out that the applicant had been convicted on three occasions between 22 April 1992 and 9 February 1996 and that he had been sentenced to a total of 5 years and 3 months’ imprisonment. It also recalled that in the context of the criminal proceedings before it the applicant had been detained on remand from 5 July 1990 to 31 December 1991. The court therefore decided not to impose a consolidated sentence pursuant to Article 37 of the Criminal Code (see “Relevant domestic law” below).
The Public Prosecutor appealed and challenged the first-instance decision not to impose a consolidated sentence.
On 30 September 1997 the Košice Regional Court granted the appeal. It quashed a 24 months‘ prison term to which the applicant had been sentenced, for theft on several counts, by the Prešov District Court on 22 April 1992 and imposed a consolidated three years‘ prison sentence with reference to Article 35 § 2 of the Criminal Code.
On 5 November 1997 the Košice 1 District Court seized, pursuant to Article 73 § 1 (c) of the Criminal Code, a savings book with 12,000 SKK from the applicant. The court held, with reference to the applicant’s criminal file, that the savings had been deposited during the period when the applicant had committed the thefts of which he had been convicted. It further held that the applicant’s official income was not sufficient to account for the savings.
On 18 February 1998 the Košice Regional Court dismissed the applicant’s complaint against the decision to seize his savings book. It shared the District Court’s view that the savings had as their origin the offences of which the applicant had been convicted.
On 22 April 1999 the applicant sued a newspaper and a public prosecutor for publishing an article about his case. The proceedings appear to be still pending before the Košice 2 District Court.
B.Relevant domestic law
Pursuant to Article 35 § 1 of the Criminal Code, when a court convicts a person of two or more offences it shall impose a combined sentence (úhrnný trest) pursuant to the relevant provisions covering the offence punishable with the severest of the penalties available for the individual offences.
Article 35 § 2 of the Criminal Code provides that a court shall impose a consolidated sentence (súhrnný trest) according to the principles set out in Article 35 § 1 when it convicts a person of an offence which he or she had committed before the first instance court convicted him or her of another offence. Along with its pronouncing a consolidated sentence the court shall set aside the sentence imposed by the earlier judgment.
Under Article 73 § 1 (c) of the Criminal Code, courts may seize objects acquired by means of an offence when the security of persons or property so requires or when it is justified by other similar considerations of general interest.
COMPLAINTS
The applicant alleges a violation of Article 3 of the Convention in that he was ill-treated by a policeman on 5 July 1990 and by prison officers on 19 April 1991.
The applicant complains that his detention on remand lasted an unreasonably long time. He alleges, in substance, a violation of Article 5 § 3 of the Convention.
The applicant alleges a violation of Article 6 §§ 1 and 3 (b) and (c) of the Convention in that the criminal charges against him were not determined within a reasonable time, that his conviction and the sentence imposed on him was arbitrary and that he was questioned in the absence of his lawyer at the preliminary stage of the proceedings.
The applicant alleges a violation of Article 1 of Protocol No. 1 in that that his bank savings were seized.
Under Article 10 of the Convention the applicant complains that a newspaper article about his case was defamatory.
Lastly, the applicant alleges a violation of Articles 13, 14 and 17 of the Convention.
THE LAW
1.The applicant alleges a violation of Article 6 §§ 1 and 3 (b) and (c) of the Convention in the criminal proceedings against him.
a)To the extent that the applicant complains about the length of the criminal proceedings, the Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 3 (b)[Note1] of the Rules of Court, to give notice of this complaint to the respondent Government.
b)The applicant further complains that he was questioned in the absence of his lawyer at the preliminary stage of the proceedings and that he was convicted of offences which he did not commit.
The Court notes that the applicant did not appeal against the Košice 1 District Court’s judgment of 16 September 1996. In this respect he has not, therefore, exhausted domestic remedies as required by Article 35 § 1 of the Convention.
It follows that this part of the application must be rejected pursuant to Article 35 § 4 of the Convention.
c)To the extent that the applicant complains that the decision to impose a consolidated sentence on him was arbitrary, the Court finds that this complaint, to the extent that it has been substantiated and is within its competence, does not disclose any appearance of a violation of the rights guaranteed by the Convention.
It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
2.The applicant alleges a violation of Article 3 of the Convention in that he was ill-treated by a policeman on 5 July 1990 and by prison officers on 19 April 1991. He also complains that his detention on remand between 5 July 1990 and 31 December 1991 lasted an unreasonably long time and alleges, in substance, a violation of Article 5 § 3 of the Convention.
The Court recalls that the facts complained of relate to a period which is prior to 18 March 1992 when the former Czech and Slovak Federal Republic ratified the Convention and recognised the right of individual petition. However, the Convention only governs, for each Contracting Party, facts which are subsequent to its entry into force with respect to that Party.
The Court has noted that after 18 March 1992 the Slovak authorities rejected several criminal complaints about the applicant’s ill-treatment by a policeman. They found that the complaints contained no new relevant facts and that the final decision on the issue had been delivered in 1990. In these circumstances the Court finds that the dismissal, after 18 March 1992, of further criminal complaints filed by the applicant does not bring the complaint under Article 3 of the Convention within the Court’s temporal jurisdiction.
It follows that this part of the application is incompatible ratione temporis with the provisions of the Convention within the meaning of Article 35 § 3.
3.The applicant complains that his bank savings were seized. He alleges a violation of Article 1 of Protocol No. 1.
The Court finds that the decision to seize the applicant’s savings amounted to an interference with his property which comes under the first sentence of the first paragraph of Article 1 (see Iatridis v. Greece [GC], no. 31107/96, § 55, to be published in the Court’s official reports).
The Court is satisfied that the interference was in accordance with Article 73 § 1 (c) of the Criminal Code and that it was in the general interest of preventing the applicant from profiting from property which, in accordance with the domestic courts’ finding, he had acquired by means of criminal offences. In the Court’s view, this interference was neither arbitrary nor did it upset the fair balance which should be struck between the demands of the general interest of the community and the requirements of the protection of the individual’s fundamental rights (see Iatridis v. Greece cited above, § 58, with further reference).
If follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
4.Under Article 10 of the Convention the applicant complains that a newspaper article about his case was defamatory.
The Court notes that the proceedings concerning this issue are still pending before the Košice 2 District Court. This complaint is therefore premature.
It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
5.Lastly, the applicant alleges a violation of Articles 13, 14 and 17 of the Convention.
a)To the extent that the applicant complains that he had no effective remedy at his disposal as regards his complaint under Article 6 § 1 of the Convention about the length of the criminal proceedings, the Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 3 (b)[Note2] of the Rules of Court, to give notice of this complaint to the respondent Government.
b)The Court declared the applicant’s complaints under Articles 3 and 5 § 3 inadmissible as falling outside its temporal jurisdiction (see point 2 above). For the same reasons, the Court cannot deal with the applicant’s complaints about a violation of Articles 13 and 14 of the Convention in this context.
It follows that this part of the application is incompatible ratione temporis with the provisions of the Convention within the meaning of Article 35 § 3.
c)The Court further declared inadmissible the remaining complaints under Article 6, the complaint under Article 10 of the Convention and also the complaint under Article 1 of Protocol No. 1 (see points 1 (b), (c), 3 and 4 above). These grievances cannot, therefore, be regarded as “arguable”. Accordingly, they do not attract the guarantees set out in Article 13 of the Convention (see Powell and Rayner v. the United Kingdom, no. 9310/81, Series A no. 172, § 31).
It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
d)The Court has examined the applicant’s complaints under Article 14 of the Convention taken together with Articles 6 and 10 of the Convention and with Article 1 of Protocol No. 1 (points 1, 3 and 4 above) as well as the complaint under Article 17 of the Convention but finds that, insofar as they have been substantiated and are within its competence, these complaints do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or the protocols thereto.
It follows that this part of the application is manifestly ill-founded within the meaning of Article 35 § 3 of the Convention.
For these reasons, the Court, unanimously,
DECIDES TO ADJOURN the examination of the applicant’s complaints[Note3] under Articles 6 § 1 and 13 of the Convention about the length of the criminal proceedings and that he had no effective remedy at his disposal in this respect;
DECLARES INADMISSIBLE the remainder of the application.
Erik FriberghChristos Rozakis
RegistrarPresident
[Note1]Change as necessary.
[Note2]Change as necessary.
[Note3]Summarise the complaints without necessarily citing the invoked Convention Articles.
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