Jozef WENNER v Slovakia - 14579/05 [2010] ECHR 2130 (23 November 2010)

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The European Court of Human Rights (Fourth Section), sitting on 23 November 2010 as a Chamber composed of:

Nicolas Bratza, President,
David Thór Björgvinsson,
Ján Šikuta,
Päivi Hirvelä,
Ledi Bianku,
Nebojša Vučinić,
Vincent Anthony de Gaetano, judges,
and Lawrence Early, Section Registrar,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

The applicant, Mr Jozef Wenner, is a Slovak national who was born in 1968 and lives in Trnava. Before he changed it in 2007, the applicant’s family name was Sedlák. He was represented before the Court by Mr M. Ficek, a lawyer practising in Bratislava.

The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková.

The facts of the case, as submitted by the parties, may be summarised as follows.

On 17 August 1999 a single judge of the Trnava District Court (Okresný súd) issued a penal order (trestný rozkaz) finding the applicant guilty of theft and sentencing him to four months in prison. The applicant challenged the order by way of an objection (odpor) which he later withdrew. The order thus became final and binding, on 11 March 2004.

Meanwhile, the applicant was charged with embezzlement on two counts (on 17 January 2000 and 16 November 2001, respectively), continuing fraud (on 5 November 2001), breach of the rules on the circulation of goods in foreign trade (on 8 January 2003) and fraud (on 3 December 2003).

On 3 December 2003 the applicant was arrested and, on 6 December 2003 a single judge of the Bratislava II District Court remanded him in custody pending trial on the fraud charge of 3 December 2003.

The applicant was incarcerated in a detention centre (Ústav na výkon väzby) in Bratislava.

On 25 March 2004 the Trnava District Court ordered the enforcement of the penal order of 17 August 1999. The applicant was subsequently transferred from detention and put in prison (Ústav na výkon trestu) in Zeliezovce to serve his sentence under that order (for details see section “B” below).

On 5 April 2004, while the applicant was detained pending trial on the fraud charge of 3 December 2003, that charge and the remaining charges against him were joined to a single set of proceedings

Upon service of his sentence under the penal order of 17 August 1999, the applicant was again remanded in detention pending trial on the fraud charge of 3 December 2003 and the remaining charges (for details see section “C” below).

On 22 April 2004, sitting in private (neverejné zasadnutie), a single judge of the Trenčín District Court ordered what amounted to an end of the applicant’s detention pending trial (prepúšťa z väzby) and ruled that, immediately thereafter, he be transferred to prison (ihneď dodaný do výkonu trestu) in order to serve his four-month sentence under the penal order of 17 August 1999. The decision was to be implemented on 7 May 2004 and, accordingly, the applicant was due to finish serving that sentence on 7 September 2004.

The decision of 22 April 2004 was served on the applicant on 7 May 2004 and a copy of it was sent to the Bratislava detention centre by fax on 13 May 2004. On the latter date the applicant was transferred from the detention centre to prison to serve his sentence under the penal order of 17 August 1999.

On 31 August 2004 the prosecution service applied for a new order for detention of the applicant pending trial in view of the approaching end of his four-month prison sentence.

On 3 September 2004, sitting in private, a single judge of the Trenčín District Court ordered that, as soon as the four-month sentence under the penal order of 17 August 1999 had been served, on 7 September 2004, the applicant be again detained pending trial in connection with the fraud charge of 3 December 2003 and the remaining charges against him.

The District Court judge referred to the order for the applicant’s detention of 6 December 2003 and its contents, including the fact that the applicant was not staying at the place of his registered residence (trvalé bydlisko), that his whereabouts were unknown, that there had been two warrants for his arrest issued and that he had been apprehended while attempting to commit another offence.

From 1992 until his arrest the applicant had been involved in various property-related offences in at least three districts, was unemployed and had no source of regular income. It was also observed that the applicant had three previous convictions, mainly for property-related offences.

The order of 3 September 2004 was enforced on 7 September 2004 at 4:30 a.m. when the applicant was transferred from the Zeliezovce prison to the Leopoldov detention centre.

A copy of the decision of 3 September 2004 was served on the applicant’s lawyer on 7 September 2004. He lodged an interlocutory appeal (sťaZnosť) on behalf of the applicant on 9 September 2004. He relied on the principle of presumption of innocence, argued that there was no risk that the applicant would reoffend and offered a pledge on the applicant’s behalf that he would live in accordance with the law.

A copy of the decision of 3 September 2004 was served on the applicant on 16 September 2004. In addition to the appeal lodged on his behalf by his lawyer, the applicant lodged an interlocutory appeal on his own.

In so far as it can be established from the documents submitted to the Court, the applicant argued that the decision of 3 September 2004 had been phrased in general terms, that there had been irregularities in transferring the applicant from the detention centre to prison, that the applicant had not been informed of the reasons for his arrest and had not been heard in person by a judge.

On 7 October 2004 the Trenčín Regional Court (Krajský súd) upheld the decision of 3 September 2004.

It held that the applicant’s transfer from the detention centre to prison had been in conformity with section 75 of the Code of Criminal procedure, his detention was justified and his pledge could not be accepted as it had not been made directly by him.

On 16 September 2004 the applicant lodged a complaint under Article 127 of the Constitution with the Constitutional Court (Ústavný súd). On 10 November 2004 he amended his complaint.

Relying on Article 5 §§ 1 (c), 3 and 4 of the Convention and on their constitutional counterparts, the applicant challenged the decisions of the Trenčín District Court of 22 April 2004 and of the Regional Court of 7 October 2004 as being unlawful and arbitrary.

In so far as can be established from the documents submitted to the Court, the applicant argued in particular that, in its decision of 7 October 2004, the Regional Court had failed to examine properly his objections against the decision of 3 September 2004. The applicant also asserted that the decision of 22 April 2004 had been taken by a court which had no jurisdiction ratione loci to take it.

On 25 December 2004 the Constitutional Court declared the applicant’s complaint inadmissible. It found that, in so far as the complaint related to the decision of the District Court of 22 April 2004, it had been lodged outside the applicable two-month time-limit.

As to the remainder of the complaint, the Constitutional Court found no constitutionally relevant error or arbitrariness in the decision of the Regional Court of 7 October 2004.

On a number of occasions the applicant sought review by the public prosecution service of the legality of his detention and of the procedure followed in respect of it.

The public prosecution service acknowledged in letters of 24 May and 6 June 2005 (the Trenčín Regional Office of Public Prosecution), 14 July 2005 (the Trnava Regional Office of Public Prosecution) and 25 August 2005 (the Office of the Prosecutor General) that the Trenčín District Court had erred in having transmitted its decision of 22 April 2004 to the Bratislava Detention Centre no earlier than 13 May 2004. As the decision was to have taken effect on 7 May 2004, the applicant had been kept in detention six days longer and had started serving his four-month sentence six days late. This, however, had no impact on the lawfulness of the deprivation of the applicant’s liberty as the extra time spent in the detention centre had been deducted from the time spent in prison.

The Court considers that these complaints most naturally fall to be examined under Article 5 § 1 (a) and (c) of the Convention, which provide as follows:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

The Government pointed out that in its decision of 25 December 2004 the Constitutional Court had declared the applicant’s constitutional complaint inadmissible as belated in so far as it concerned the decision of 22 April 2004. The Government concluded that, accordingly, the relevant part of the application was inadmissible for non-exhaustion of domestic remedies.

The Government also submitted that, in any event, the applicant’s detention had been in compliance with the applicable domestic law and the requirements of Article 5 § 1 (a) and (c) of the Convention.

The Court observes at the outset that in his constitutional complaint of 16 September 2004 the applicant challenged the decision of 22 April 2004 on account of the alleged lack of jurisdiction ratione loci of the court which had given it. On 25 December 2004 the Constitutional Court rejected this part of his complaint as having been lodged outside the statutory two month time limit.

The Court concludes that, in this respect, the applicant cannot be considered as having exhausted domestic remedies for the purposes of Article 35 § 1 of the Convention.

The Court further observes that, in so far as the application has been substantiated, in addition to challenging the decision of 22 April 2004, in his constitutional complaint the applicant only seems to have contested the examination by the Regional Court of his objections to the decision of 3 September 2004. It is therefore questionable whether he complied with the requirement to exhaust domestic remedies in respect of the substantive objections that he makes under the Convention. The Court however considers that it is not necessary to rule separately on this issue as the relevant part of the application is in any event inadmissible for the following reasons.

The Court reiterates that the expressions “lawful” and “in accordance with a procedure prescribed by law” in Article 5 § 1 essentially refer back to national law and state the obligation to conform to the substantive and procedural rules thereof. It is in the first place for the national authorities, and notably the courts, to interpret domestic law, and in particular, rules of a procedural nature, and the Court will not substitute its own interpretation for theirs in the absence of arbitrariness. However, since under Article 5 § 1 of the Convention failure to comply with domestic law entails a breach of the Convention, it follows that the Court can and should exercise a certain power to review whether this law has been complied with (see, for example, Toshev v. Bulgaria, no. 56308/00, § 58, 10 August 2006, and Öcalan v. Turkey [GC], no. 46221/99, § 84, ECHR 2005-IV).

The Court observes that the applicant was remanded in detention pending trial within the meaning of Article 5 § 1 (c) of the Convention by the detention order of 6 December 2003.

The Court also observes that by virtue of the enforcement order of 22 April 2004 the applicant’s detention was to be reclassified as detention after a conviction within the meaning of Article 5 § 1 (a) of the Convention.

The enforcement order of 22 April 2004 was to be implemented on 7 May 2004. However, in so far as the transfer of the applicant from a detention centre to a prison facility is concerned, it was only implemented on 13 May 2004, which has not been disputed by the parties.

However, the Court considers that, in so far as the facts of the present application have been substantiated, the institution in which the liberty of the applicant was restricted was not in itself decisive for determining the legal regime he was detained under for Convention purposes (for contrast and comparison see Ashingdane v. the United Kingdom, 28 May 1985, § 44, Series A no. 93; Bouamar v. Belgium, judgment of 29 February 1988, Series A no. 129, § 50; Aerts v. Belgium, judgment of 30 July 1998, Reports 1998 V, § 46; Enhorn v. Sweden, no. 56529/00, § 42, ECHR 2005 I and Saadi v the United Kingdom [GC], no. 13229/03, § 69, ECHR 2008-...).

It has equally not been disputed that the applicant’s detention under Article 5 § 1 (a) of the Convention ended on 7 September 2004 when the detention order of 3 September 2004 was implemented and the applicant was physically transferred from the prison facility to a detention centre.

As exhaustively explained by the public prosecution service, the late implementation of the enforcement order of 22 April 2004 was taken into account in determining the date when the applicant’s four-month prison sentence was to be completed. It was completed on 7 September 2004, four months after it had to commence, on 7 May 2004.

It follows that the fact that the applicant was physically transferred from the detention centre to a prison facility six days later had no material impact on when his detention after a conviction under Article 5 § 1 (a) of the Convention ended and, by implication, on when it had started.

The Court also observes that, contrary to what the applicant appears to be suggesting, the enforcement order of 22 April 2004 by no means implied that the applicant was to be released, but merely that he was to be transferred from a detention centre to prison.

Finally, the Court also observes that, when the decision of 22 April 2004 was taken and implemented, the applicant did not challenge it.

In these circumstances, with reference to the conclusions of the public prosecution service, the Court accepts that the applicant’s detention under Article 5 § 1 (a) and (c) of the Convention was “lawful”, “in accordance with a procedure prescribed by law” and in general compatible with the guarantees under those provisions.

It follows that, to the extent that this part of the application has been substantiated and the domestic remedies have been exhausted, it is manifestly ill-founded. It must therefore be rejected in accordance with Article 35 §§ 1, 3 and 4 of the Convention.

“Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.”

The Court observes first of all that in his complaint to the Constitutional Court the applicant made no reference to Article 5 § 2 of the Convention. In so far as this part of the application has been substantiated, there is no indication that the applicant raised the complaints now made before the Court under that provision, at least in substance, in the Constitutional Court.

It follows that, to the extent that this complaint has been substantiated, it must be rejected under Article 35 §§ 1 and 4 of the Convention for non exhaustion of domestic remedies.

“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 and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”

The Government submitted that the applicant’s detention under the order of 3 September 2004 had been a continuation of his detention under the detention order of 6 December 2003 and that no new bringing before a judge had been required.

In reply, the applicant disagreed and pointed out in particular that the detention order of 3 September 2004 relied on suspicion against him for offences that carried a heavier potential penalty than that underlying the detention order of 6 December 2004.

The Court observes that, in respect of this part of the application, there are similar doubts as to the exhaustion of domestic remedies as those explained above. It similarly considers that a separate ruling in this respect is not called for as the relevant part of the application is in any event inadmissible for the following reasons.

The Court reiterates that Article 5 § 3 is structurally concerned with two separate matters: the early stages following an arrest, when an individual is placed under the power of the authorities, and the period pending any trial before a criminal court, during which the suspect may be detained or released with or without conditions. These two limbs confer distinct rights and are not on the face of it logically or temporally linked (see T.W. v. Malta [GC], no. 25644/94, § 49, 29 April 1999).

Taking the initial stage under the first limb, the Court’s case-law establishes that there must be protection, through judicial control, of an individual arrested or detained on suspicion of having committed a criminal offence. Such control serves to provide effective safeguards against the risk of ill-treatment, which is at its greatest in this early stage of detention, and against the abuse of powers bestowed on law enforcement officers or other authorities for what should be narrowly restricted purposes and exercisable strictly in accordance with prescribed procedures (see Medvedyev and Others v. France [GC], no. 3394/03, § 120, ECHR 2010 ....).

In the present case the applicant was arrested on 3 December 2003 and brought before a judge, who ordered his detention on 6 December 2003 pending trial on the fraud charge of 3 December 2003. From that moment on the applicant’s detention was at all times under a judicial order, in particular the order of 22 April 2004 for enforcement of the penal order of 17 August 1999 and the detention order of 3 September 2004.

As the Court has found above, the applicant’s detention from 7 May until 7 September 2004 in execution of the penal order of 17 August 1999 fell within the purview of Article 5 § 1 (a) of the Convention, to which Article 5 § 3 of the Convention does not apply. At that stage of the proceedings an order was made on 3 September 2004 for the applicant’s detention following the completion of his four-month sentence with a view to his standing trial on the fraud charge of 3 December 2003 as well as on other charges. As with the order for his detention of 6 December 2003, the order of 3 September 2004 was made within the framework of Article 5 § 1 (c) of the Convention.

The Court observes that, in these circumstances, the applicant’s deprivation of liberty under the order of 3 September 2004 cannot be said to have been effected at an early stage of his detention or ordered by a decision of a law enforcement agency or by any other executive agency. It was ordered by a judge and the applicant had and in fact did use the right to appeal the detention order in question, which provided him with proceedings for the review of the lawfulness of his detention in terms of Article 5 § 4 of the Convention.

The Court concludes that, after the applicant had been brought before a judge on 6 December 2003, the guarantees of Article 5 § 3 of the Convention did not require that he be brought before a judge again, in connection with the detention order of 3 September 2004.

The Court also observes that, like the order of 6 December 2003, the order of 3 September 2004 referred specifically to the fraud charge of 3 December 2003 and, in addition, to the other charges that had been joined to a single set of proceedings by the decision of 5 April 2004. The applicant’s detention was considered necessary because he was not staying at the place of his registered residence, his whereabouts were unknown, two arrest warrants had been issued against him, he had been apprehended red handed, was suspected of having been involved in various other property related offences, was unemployed with no other source of income and had three previous convictions. The Court considers these reasons relevant, sufficient and not arbitrary.

It follows that, to the extent that this part of the application is compatible ratione materiae with the provisions of the Convention, it is manifestly ill founded. It therefore must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

“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.”

The Government submitted that the applicant had had, and in fact had used, the opportunity to lodge an interlocutory appeal with the Regional Court and a complaint under Article 127 of the Constitution, which provided him with the proceedings envisaged under Article 5 § 4 of the Convention.

The Court observes first of all that at the domestic level the applicant was represented by a lawyer and that he was provided with ample opportunity to state his arguments, to challenge the submissions made by the prosecution and to submit anything he considered relevant to the outcome.

The Court also observes that, in so far as can be established, in his constitutional complaint the applicant merely contended that, in its decision of 7 October 2004, the Regional Court had failed to examine his objections to the detention order of 3 September 2004.

In so far as can be established, those objections dealt with the substantive reasons for the applicant’s detention, a pledge that he would live in accordance with the law, that there had been irregularities in transferring him from the detention centre to prison, and that he had not been informed of the reasons for his arrest and had not been heard by a judge.

In its decision of 7 October 2004 the Regional Court concluded that the applicant’s transfer from the detention centre to prison had been in conformity with the relevant law, that his detention was justified by concrete circumstances and that his pledge could not be accepted.

The Constitutional Court found in its decision of 25 December 2004 that the examination of the applicant’s appeal by the Regional Court had been compliant with his constitutional rights.

The Court observes that the scope of the Regional Court’s examination of the applicant’s appeal was not exhaustive.

Nevertheless, the Court reiterates that it is not always necessary that the procedure under Article 5 § 4 be attended by the same guarantees as those required under Article 6 § 1 of the Convention for criminal or civil litigation (see A. and Others v. the United Kingdom [GC], no. 3455/05, § 203, ECHR 2009-...).

In view of the above considerations the Court finds that the way in which the domestic courts examined the applicant’s arguments was compatible with the guarantees of Article 5 § 4 of the Convention.

The Court further notes that the applicant does not appear to have raised his remaining complaints under Article 5 § 4 of the Convention in the Constitutional Court. In particular, in his constitutional complaint, he does not appear to have invoked his right to an oral hearing.

It follows that, to the extent that this part of the application has been substantiated and the domestic remedies have been exhausted, it is manifestly ill-founded. It therefore must be rejected in accordance with Article 35 §§ 1, 3 and 4 of the Convention.

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You are here: BAILII >> Databases >> European Court of Human Rights >> Jozef WENNER v Slovakia - 14579/05 [2010] ECHR 2130 (23 November 2010) URL: http://www.bailii.org/eu/cases/ECHR/2010/2130.html Cite as: [2010] ECHR 2130