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FIFTH
SECTION
CASE OF BREUKHOVEN v. THE CZECH REPUBLIC
(Application
no. 44438/06)
JUDGMENT
STRASBOURG
21 July 2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Breukhoven v. the
Czech Republic,
The
European Court of Human Rights (Fifth Section), sitting as a Chamber
composed of:
Dean Spielmann,
President,
Elisabet Fura,
Karel
Jungwiert,
Boštjan M. Zupančič,
Mark
Villiger,
Ganna Yudkivska,
Angelika Nußberger,
judges,
and Claudia Westerdiek,
Section Registrar,
Having
deliberated in private on 28 June 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 44438/06) against the Czech
Republic lodged with the Court under Article 34 of the Convention for
the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Dutch national, Mr Johan Breukhoven (“the
applicant”), on 24 October 2006.
- The
applicant was represented by Mr L. Petříček, a
lawyer practising in Prague. The Czech Government (“the
Government”) were represented by their Agent, Mr V. A. Schorm,
of the Ministry of Justice.
- The
applicant alleged, in particular, a violation of his right to
cross-examine witnesses under Article 6 § 1 and 3 (d) of the
Convention.
- On
15 March 2010 the President of the Fifth Section decided to give
notice of the application to the Government. It was also decided to
rule on the admissibility and merits of the application at the same
time (Article 29 § 1). On 17 March 2010 he decided to give
notice of the application to the Government of the Netherlands in
order to enable them to exercise their right to intervene in the
proceedings (Article 36 § 1 and Rule 44). On 30 June 2010
the Government of the Netherlands informed the Court that it did not
wish to exercise their right to intervene.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1952 and currently lives in Valcea, Romania.
- The
applicant was the owner of a night club in Dolní Dvořiště,
Czech Republic. On an unspecified date the police started
investigating the club, on the suspicion that women working there
were being forced to prostitute themselves. On an unspecified date
the applicant left the Czech Republic. His whereabouts were unknown
to the Czech authorities.
- During
the initial stage of the investigation five women, all Romanian
nationals who worked in the club, were questioned. The interviews
were conducted in the presence of a judge under Article 158a of the
Code of Criminal Procedure as an urgent measure (neodkladný
úkon) because the women said that they wished to return to
Romania and never come back to the Czech Republic. Under the same
procedure, two customers of the club were also questioned. Neither
the applicant nor his lawyer were present at these interviews and the
applicant did not even know about them as they were carried out
before he was charged.
- Witnesses
F.D., N.D and V.D. testified that the applicant had met them in
Romania and had lured them to the Czech Republic with the promise of
work as bartenders or cleaning ladies. However, after their arrival,
he had forced them to prostitute themselves under the threat of
killing their families. The applicant had also taken their passports
so that they would not be able to leave. They had had to give the
applicant one half of the money they earned from their customers.
- Witnesses
D.C.C. and A.T.V. testified that they had worked as prostitutes in
the club voluntarily and that they had been required to give the
applicant one half of what they earned from their customers.
- On
25 February 2005 a judge of the Český Krumlov District
Court (okresní soud) ordered a search of the club,
which the police carried out on the same day.
- On
3 May 2005 the applicant was charged with trafficking in human beings
and procuring prostitution.
- The
applicant was represented by a lawyer of his own choosing until 31
August 2005, when the latter stopped representing him because he had
not paid his fees. On 7 September 2005 the České
Budějovice District Court appointed a lawyer to represent the
applicant in the proceedings. He defended the applicant
until 19 April 2007, when the judgment in his case became
final. Subsequently the applicant was represented by another lawyer
in the proceedings before the Supreme Court (Nejvyšší
soud) and the Constitutional Court (Ústavní
soud).
- On
27 September 2005 a sixth witness, a certain I.M., was interviewed by
the police. She testified that in Romania she had been promised by
the applicant’s wife that she would work in a kitchen in the
Czech Republic. When she arrived at the applicant’s club,
however, she was told that she would work as a prostitute, which she
agreed to do as she was afraid of the applicant. She further
testified that there were other prostitutes at the club, namely F.D.,
N.D. and a certain M. at that time. She did not elaborate any
further, however, as to how these girls had arrived at the club or
whether they were there voluntarily or not. Neither did she know
whether other girls had been threatened by the applicant. She further
described the situation in the club: the customers paid the applicant
directly who then gave money to the girls working there; the girls
could leave the premises but had to stay in town; and their passports
had been taken away from them. The applicant’s lawyer was
present at the interview but did not ask any questions.
- After
the applicant was arrested in Bulgaria and extradited to the Czech
Republic, the District Court ordered his pre-trial detention on
31 January 2006. On 17 October 2006 the České
Budějovice Regional Court (krajský soud) extended
the applicant’s pre-trial detention because of a danger of his
absconding. The applicant was heard in person on this occasion but in
his lawyer’s absence, the latter
being on holiday.
- During
his pre-trial detention, the applicant was allegedly held in
deplorable conditions: the cell that he shared with another prisoner
measured only five square metres; there was a bright light on in the
cell for twenty-four hours a day; he was not allowed to speak with
other prisoners; he could not work; he had only one hour per day of
outdoor exercise and during the rest of the day he could not take
part in any other activities and could only sit in his cell.
- The
applicant was tried at the Regional Court and seven witnesses were
heard during the trial.
L.K.
testified that he had leased a flat and an office in Dolní
Dvořiště to the applicant.
J.B.
stated that he had been a taxi driver and in 2003, on the applicant’s
request, he had picked up a girl at Prague Airport and had
brought her to the club.
L.B.
testified that the applicant had been the owner of the night club
where he had had girls of Romanian or Hungarian origin. According to
him, the applicant had also had some girls in another night club in
Dolní Dvořiště.
S.M.
said that he was the husband of I.M., who had worked as a prostitute
in the club. His wife had had some problems with the applicant and
had wished to leave the club. However, she did not have her passport
like the other girls in the club. She had nevertheless left the club
and only when she had threatened the applicant that she would inform
the police had he returned her passport to her. He also said that his
wife had only come to the club because the applicant’s wife had
allegedly promised her that she would work in the club as a cleaning
lady.
K.W.
gave evidence that the applicant had rented the building in which the
club had been. He believed that prostitutes had been working in the
club.
A.Š.
said that she had been the caretaker of the building in which the
club had been. Several girls had been living in the building. She had
never been in the club in the evening but she thought that the girls
had worked as prostitutes.
Lastly,
W.E. stated that the applicant had owned the club where he had had
some girls. He said that it had been a night club and in these places
prostitution usually took place.
- The
court also heard the applicant, who testified as follows:
“He admitted that he ran the club HOT CAT in Dolní
Dvořiště. ... All the girls living in the club ...
stayed there entirely voluntarily. ... They could move freely and
leave the club whenever they wanted. ... They worked as companions,
dancers and strippers. For that they received a commission. Besides
that, they could go with the guests to a room where they could
sit, even naked, for example. That had to be paid for by the
customer. The price was set by the girls. The company then charged
fifty euros for one hour and thirty euros for half an hour.
The building was locked for security reasons. All the
girls had a key and they could leave at any time. ... He did
absolutely not lure anybody to the club under a false pretext or
force anybody to have sex. Nor did he take their passports. The girls
even had to sign an oath in which they were expressly forbidden to
prostitute themselves. To the extent that the passports were stored
behind the bar, that was similar to any other hotel in the Czech
Republic.”
- The
Regional Court further read out several documents, including a police
report on the search of the club of 25 February 2005. During the
search signed declarations of all the women working in the club had
been found, in which they had pledged not to prostitute themselves.
- Another
report by the policemen who had conducted an inspection of the club
on 22 February 2005 was also read out at court. It stated that when
the police had approached the club in the evening it had been locked,
but a certain R.G. had opened the door. When they had sought to check
the identity of all those who had been present, the applicant had
unlocked a drawer behind the bar where he had kept the passports of
all the prostitutes.
- The
court further read out the testimony of the six women working at the
club as prostitutes and their two customers that had been taken at
the pre-trial stage. It refused the applicant’s request to
summon the women to court on the grounds that it was unnecessary,
holding that their testimonies had been taken in full compliance with
the law as an urgent measure and thus, in accordance with the Code of
Criminal Procedure, they could be read out at the trial without
reservation. The applicant was allowed to comment on these
testimonies.
- The
court found that the applicant had run a club where prostitution had
taken place. Based on the statements of witnesses F.D., N.D. and
V.D., it found that they had been lured to the Czech Republic under
the pretext of working as bartenders but when they had arrived, the
applicant had taken their passports and forced them to prostitute
themselves under threats of violence against their families, and that
he had benefited from the prostitution. Based on the witness
statements of I.M., D.C.C. and A.T.V., the applicant’s own
testimony and his bank account statement, the court held that he had
benefited from the prostitution of these three girls.
- In
the light of these conclusions, the court found the applicant guilty
of the crime of trafficking in human beings as regards F.D. and N.D.
under Article 246 (2)(d) of the Criminal Code and of trafficking in
human beings as regards V.D. under Article 232a(3)(d) of the Criminal
Code and of the crime of procuring prostitution as regards I.M.,
D.C.C. and A.T.V. and benefiting from it under Article 204(1) of the
Criminal Code. The court sentenced him to five and a half years’
imprisonment. The sentence was calculated solely on the basis of the
crime of trafficking in human beings, which attracted the higher
sentence between these two crimes.
- The
applicant appealed, arguing, inter alia, that he had been
found guilty exclusively on the basis of the testimony of witnesses
who had not appeared at the trial and whom he had never had an
opportunity to question.
- On
19 April 2007 the Prague High Court (Vrchní soud)
dismissed the applicant’s appeal. It held, inter alia,
that the testimonies of the witnesses who had not appeared in person
had been read out at the trial in compliance with the law and that
the Regional Court had not based its decision solely on these
testimonies, holding that:
“... during the pre-trial investigation, and in
particular in the proceedings before the court, a number of other
pieces of evidence were adduced, in particular witness testimonies,
to which the Regional Court referred and which confirmed that the
situation in the club was the same as that described by witnesses
questioned under Article 158a of the Code of Criminal Procedure.
Therefore it is not true that the Regional Court found the defendant
guilty solely on the basis of evidence adduced in the way
suggested above.”
- On
10 July 2007 the applicant lodged an appeal on points of law
(dovolání). He argued that the case should have
been decided by a Romanian court, that he should have had a lawyer
with knowledge of Romanian law, that he had not been allowed to be
represented by a lawyer of his own choosing and that he had not been
given the opportunity to examine witnesses against him.
- On
29 November 2007 the Supreme Court dismissed the applicant’s
appeal on points of law, stating that the applicant’s conduct
had occurred mostly within the territory of the Czech Republic and
that therefore the Czech courts had jurisdiction over it. He had been
legally represented throughout the whole proceedings by his appointed
lawyer and at no point had he tried to choose another lawyer. There
was no need for a lawyer with knowledge of Romanian law. Regarding
the last complaint, the court held that the testimonies of the
witnesses who had not appeared in person had been read out at the
trial in accordance with the law and that they had not been the only
evidence on which the applicant’s guilt had been determined.
- Since
2007 the applicant has sent several letters and complaints to the
Ministry of Justice asking the Minister to lodge a complaint on his
behalf, alleging a breach of the law (stíZnost pro porušení
zákona). On 20 February 2009 the Ministry of Justice
informed him that there was no reason to lodge such a complaint.
- On
29 April 2008 the applicant lodged a constitutional appeal (ústavní
stíZnost). He argued, with references to the Convention
and the Court’s case-law, that he had not been able to
cross-examine the witnesses against him and that the only purported
proof of the crimes of which he was found guilty was the testimony
given by those same witnesses. He also argued that there had been no
reason not to summon the witnesses as their addresses had been known.
Furthermore, he argued that the Czech courts had had no jurisdiction
to hear the case because it should have been decided by the Romanian
courts. He further complained that he should have been assigned a
lawyer who had some knowledge of Romanian law and that as a result
his right to an effective defence had been violated. Lastly, he
complained that the search of his club had been conducted without a
warrant, which had violated his right to privacy.
- On
26 June 2008 the Constitutional Court rejected the applicant’s
constitutional appeal as manifestly ill-founded. It held that his
conviction had not been based solely on the testimony of the
witnesses whom he had not been able to examine, referring mainly to
the testimony of S.M; that it was not possible to determine the
whereabouts of the witnesses; and that the positive obligations of
the State to protect the rights of victims of trafficking in human
beings had to be taken into account. The court considered the rest of
the applicant’s complaints to be
manifestly ill-founded and agreed with the findings of the ordinary
courts.
II. RELEVANT DOMESTIC LAW
A. Code of Criminal Procedure (Act no. 141/1961)
- Under
Article 158a, if it is necessary to question a witness as an urgent
or unrepeatable measure during an investigation at a time before
anybody has been charged, such an interview can be conducted on the
request of a prosecutor and in the presence of a judge.
- Article
211 § 2 provides that the statement of a witness given during
pre-trial proceedings may be read out at the trial if the witness
a) has
died or gone missing, is staying abroad and is thus unreachable, or
has become ill and is not, therefore, in a position to be heard, or
b) has
been questioned as an urgent or unrepeatable measure under Article
158a.
B. Criminal Code in force at the material time (Act no.
140/1961)
- Under
Article 204 § 1, a person who procured or seduced another for
the purpose of involving that person in prostitution, or who
exploited the prostitution of another person, had to be sentenced to
a term of imprisonment of up to three years.
- Article
246, in force until 22 October 2004, contained a crime of human
trafficking for the purpose of sexual intercourse:
“(1) Whoever lures, hires or transports a person
from or to a foreign country with the intent of using him or her for
sexual intercourse shall be sentenced to a term of imprisonment of
between one and five years.
(2) An offender shall be sentenced to a term of
imprisonment of between three and eight years if
...
(d) he or she commits such an act with the intent of
having another person used for prostitution.”
- With
effect from 23 October 2004, Article 246 was repealed and a new
Article 232a on Trade in Human Beings introduced:
“...
(2) [A term of imprisonment of between two and ten
years] shall be imposed on a person who
induces, procures, hires, lures, transports, hides, retains or
exposes another person by the use of violence, the threat of violence
or by deception or by taking advantage of another’s mistaken
belief, distress or dependence, with the purpose of using such a
person:
a) for sexual intercourse or other forms of sexual
harassment or abuse;
b) for slavery or servitude, or;
c) for forced labour or other forms of exploitation.
(3) An offender shall be sentenced to a term of
imprisonment of between five and twelve years if
...
(d) he or she commits [an act under paragraph 2] with
the intent of having another person used for prostitution.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 3 (d) OF THE
CONVENTION
- The
applicant complained that he had not been able to cross-examine
several witnesses against him as guaranteed under Article 6 § 3
(d) of the Convention. The relevant parts of Article 6 §§ 1
and 3 (d) provide as follows:
“1. In the determination of ... any
criminal charge against him, everyone is entitled to a fair ...
hearing ... by [a] ... tribunal...
...
3. Everyone charged with a criminal offence
has the following minimum rights:
...
(d) to examine or have examined witnesses
against him and to obtain the attendance and examination of witnesses
on his behalf under the same conditions as witnesses against him;
...”
- The
Government contested that argument.
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 (a) of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. Arguments of the parties
- The
applicant considered that his right to a fair trial had been breached
because he had been convicted solely on the testimony of the
witnesses whom he had had no opportunity to question at any stage of
the proceedings.
- The
Government admitted that the applicant could not have questioned
witnesses F.D., N.D., V.D., D.C.C. and A.T.V. at any stage of the
proceedings but maintained that his guilt had been proved by other
evidence. It could not therefore be said that his conviction had been
based solely or to a decisive extent on these witnesses’
statements. In that connection, they referred to the judgment of the
High Court that had cited a number of other pieces of evidence that
had been adduced and relied on, in particular the witness testimonies
which had corroborated the account given by the witnesses questioned
under Article 158a of the Code of Criminal Procedure as regards the
situation in the club. The Government also referred to the decision
of the Constitutional Court that had made reference to several other
witnesses who had testified that the applicant had run a brothel.
- The
Government further stated that the content of the testimonies of
F.D., N.D., V.D., D.C.C. and A.T.V. had been confirmed by the
statement of I.M. and later by S.M. Moreover, a number of other
witnesses had given their statements at the trial and the Regional
Court had read out the documents adduced before it.
- Lastly,
the Government maintained that in assessing whether the applicant’s
right to a fair trial had been observed it was also necessary to take
into account the public interest in penalising the very serious
offence with which he had been charged and the significant
interference with the victims’ human rights and fundamental
freedoms resulting from his criminal activity.
2. The Court’s assessment
- The
Court reiterates that as the guarantees of Article 6 § 3 (d) are
specific aspects of the right to a fair trial set forth in the first
paragraph of that Article, the complaint must be examined under the
two provisions taken together (see, among many other authorities,
Bonev v. Bulgaria, no. 60018/00, § 40, 8 June 2006).
- Under
the Court’s established case-law all the evidence must normally
be produced at a public hearing, in the presence of the accused, with
a view to adversarial argument. There are exceptions to this
principle, but they must not infringe the rights of the defence; as a
general rule, paragraphs 1 and 3 (d) of Article 6 require that the
defendant be given an adequate and proper opportunity to challenge
and question a witness against him, either when he makes his
statements or at a later stage. In particular, the rights of the
defence are restricted to an extent that is incompatible with the
requirements of Article 6 if the conviction is based solely, or in a
decisive manner, on the depositions of a witness whom the accused has
had no opportunity to examine or to have examined either during the
investigation or at trial (see A.M. v. Italy, no. 37019/97, §
25, ECHR 1999 IX).
- Article
6 § 1 taken together with 6 § 3 also requires the
Contracting States to take positive steps to enable the accused to
examine or have examined witnesses against him (see Sadak and
Others v. Turkey, nos. 29900/96, 29901/96, 29902/96 and
29903/96, § 67, ECHR 2001 VIII). In the event that the
impossibility to examine the witnesses or have them examined is due
to the fact that they are missing, the authorities must make a
reasonable effort to secure their presence (see Bonev v. Bulgaria,
no. 60018/00, § 43, 8 June 2006).
- The
Court has also acknowledged that criminal proceedings concerning
sexual offences are often perceived as an ordeal by the victim, in
particular when the latter is unwillingly confronted with the
defendant. In the assessment of whether or not in such proceedings an
accused received a fair trial, account must be taken of the right to
respect for the private life of the alleged victim. Therefore, the
Court accepts that in criminal proceedings concerning sexual abuse,
certain measures may be taken for the purpose of protecting the
victim, provided that such measures can be reconciled with an
adequate and effective exercise of the rights of the defence. In
securing the rights of the defence, the judicial authorities may be
required to take measures which counterbalance the handicaps under
which the defence labours (see D. v. Finland, no. 30542/04, §
43, 7 July 2009).
- Turning
to the present case, the Court first notes that the applicant was
convicted of trafficking in human beings as regards F.D., N.D. and
V.D. This criminal offence was constituted by the following elements:
in the case of F.D. and N.D., their being lured from abroad for
prostitution and, in the case of V.D., forcing her into prostitution
by the use of violence, the threat of violence or by deception or by
taking advantage of her mistaken belief, distress or dependence. The
Regional Court found that these three victims had been lured from
Romania under the false pretext of work as bartenders in the Czech
Republic and that the applicant had subsequently forced them to
prostitute themselves by threatening violence against their families.
- The
Court further notes that the applicant was only sentenced for the
crime of trafficking in human beings because the crime of procuring
prostitution attracted a lower sentence that was subsumed by the
higher sentence for trafficking. The Court therefore limits its
analysis to the applicant’s conviction for trafficking. It must
first determine whether the domestic courts relied on any other
evidence, apart from the witness statements of the women who had been
interviewed under Article 158a of the Code of Criminal Procedure
before the applicant was charged and whom he was not able to have
cross-examined at any stage of the proceedings, in order to establish
the applicant’s guilt regarding this crime.
- The
Court observes that the Regional Court heard a number of witnesses
who described the situation in the club and testified that sexual
services had been offered there by women from Romania. With the
exception of S.M., none of them, however, expressed any opinion as to
whether the women had been forced into prostitution by threats or
lured from Romania under a false pretext, which were the constituent
elements of the criminal offence of trafficking found by the Regional
Court in the instant case.
- The
Court also notes that the Regional Court considered the applicant’s
request that certain witnesses be summoned from Romania to be
unnecessary and thus made no efforts in this regard. It confined
itself to pointing out that under the applicable domestic law their
testimonies could be read out at the trial. It did not, however,
consider whether the applicant’s right to a fair trial would be
violated as a consequence of the domestic law’s application.
- It
further notes that the High Court took the view that a number of
other pieces of evidence had been adduced, in particular the witness
testimonies to which the Regional Court had referred and which had
confirmed the situation in the club as described by the witnesses who
had not appeared at the trial. The Court observes, however, that the
High Court referred to the situation in the club, which might be
important for the crime of procuring prostitution but is insufficient
to prove all the elements of the criminal offence of trafficking in
human beings found by the Regional Court, in particular the threats
allegedly made by the applicant.
- As
for S.M., who appeared at the trial, the Court observes that his
testimony contained only information as to the possible trafficking
of his wife, I.M. However, the applicant was not found guilty of
trafficking I.M., and S.M. did not provide any specific information
regarding the trafficking of F.D., N.D. or V.D. as found by the
Regional Court. The Court is therefore of the opinion that it cannot
be said that S.M.’s testimony constituted the basis for the
applicant’s conviction for the trafficking of F.D., N.D. and
V.D.
- The
same conclusion applies to the testimony of I.M., who was questioned
at the pre-trial stage but in the presence of the applicant’s
lawyer. From the transcript of her interview, it is clear that she
provided no information about the trafficking of F.D., N.D. or V.D.
and explicitly said that she did not know whether other women in the
club had been threatened by the applicant.
- Similarly,
the Court considers that the documents read out at the trial
contained only information relevant to the situation in the club and
whether prostitution was carried out there but not about the
particular elements of trafficking found by the Regional Court.
- The
Court thus concludes that the domestic courts based the applicant’s
conviction for trafficking only on the testimony of the witnesses who
did not appear at the trial and whom neither the applicant nor his
lawyer had the opportunity of questioning at any other stage of the
proceedings.
- Admittedly,
both the Government and the Constitutional Court stressed the serious
nature of the applicant’s crimes which seriously interfered
with the victims’ human rights. They referred, in this
connection, to the positive obligation of States to combat
trafficking in human beings, recently confirmed by the Court in its
judgment in the case of Rantsev v. Cyprus and Russia (no.
25965/04, § 285, ECHR 2010 ...). The Court notes, however,
that the Rantsev judgment did not indicate that the positive
obligation of States to prosecute traffickers go as far as infringing
the defence rights of persons charged with trafficking.
- The
Court is mindful of the vulnerability of the victims of trafficking
and does not wish to underestimate their plight. It is understandable
that the victims in the present case wanted to return home to Romania
as soon as possible. On the other hand, the domestic courts made no
effort at all to secure their presence at the trial or to interview
them in their home country (see, a contrario, Scheper v.
the Netherlands (dec.), no. 39209/02, 5 April 2005, and Berisha
v. the Netherlands (dec.), no. 42965/98, 4 May 2000, where
victims of trafficking were questioned in their home country in the
presence of the applicant’s lawyer). The Court therefore does
not consider that the domestic authorities fulfilled their obligation
to take positive steps to enable the accused to examine or have
examined the witnesses against him. Moreover, no measures were taken
by the domestic authorities to counterbalance the handicaps under
which the defence laboured (see, a contrario, S.N. v.
Sweden, no. 34209/96, § 50, ECHR 2002 V, where the
applicant’s lawyer was able to put questions, at least
indirectly, to a child victim of sexual abuse).
- The
Court concludes that the applicant’s conviction for trafficking
in human beings was based solely on the testimony of the witnesses
who did not appear at trial and whom he had no opportunity to
question at any time during the proceedings and that this procedural
failure cannot be justified by the particular context of the present
case, which is a serious crime of sexual exploitation. This is all
the more true since the domestic courts made no effort to secure the
attendance of the witnesses concerned at the trial or to
counterbalance the handicaps under which the defence laboured.
- The
foregoing considerations are sufficient to enable the Court to
conclude that there has been a violation of Article 6 §§ 1
and 3 (d) of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 3 (c) OF THE
CONVENTION
- The
applicant complained that he had to pay the fees of the
State-appointed lawyer, that he had not been informed about his right
to have a lawyer of his own choosing and that his appointed lawyer
had no knowledge of either Romanian law or international law. He
relied on Article 6 § 3 (c) of the Convention, which
provides, in its relevant part, as follows:
“1. In the determination of ... any
criminal charge against him, everyone is entitled to a fair ...
hearing ... by [a] ... tribunal...
...
3. Everyone charged with a criminal offence
has the following minimum rights:
...
(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; ...”
- The
Court reiterates that Article 6 § 3 (c) guarantees that
proceedings against an accused will not take place without adequate
representation for the defence, but does not give the accused the
right to decide himself in what manner his defence should be assured.
The decision as to which of the two alternatives mentioned in the
provision should be chosen, namely the applicant’s right to
defend himself in person or to be represented by a lawyer of his own
choosing, or in certain circumstances one appointed by the court,
depends upon the applicable legislation or rules of court.
Notwithstanding, the importance of a relationship of confidence
between lawyer and client, the right to choose one’s own
counsel cannot be considered to be absolute. It is necessarily
subject to certain limitations where free legal aid is concerned and
also where it is for the courts to decide whether the interests of
justice require that the accused be defended by counsel appointed by
them. When appointing defence counsel the national courts must
certainly have regard to the defendant’s wishes. However, they
can override those wishes when there are relevant and sufficient
grounds for holding that this is necessary in the interests of
justice (see Mayzit v. Russia, no. 63378/00, § 65-66, 20
January 2005).
- The
Court observes that the applicant was legally represented throughout
all the domestic proceedings from the moment when he was charged. It
notes that he did not at any point complain of the performance of his
lawyer. The Court does not see why the applicant would need a lawyer
with knowledge of Romanian law when he was tried exclusively under
Czech criminal law. As regards international law, the Court observes
that the applicant’s lawyers submitted qualified arguments
concerning the alleged violations of his rights to a fair trial under
the Convention including references to the Court’s case-law.
- Furthermore,
it does not seem that the applicant was at any time denied his right
to choose his own lawyer and the applicant does not even make that
allegation. It rather seems, as stated by the Supreme Court, that he
did not choose his own lawyer and that the State, in securing his
adequate defence, provided him with a lawyer. In addition, the
applicant did not substantiate his claim that he lacked sufficient
means to pay for his lawyer.
- Accordingly,
in the light of all the material in its possession, and in so far as
the matters complained of are within its competence, the Court finds
that they do not disclose any appearance of a violation of the rights
and freedoms set out in the Convention or its Protocols. It follows
that this part of the application is manifestly ill-founded and must
be rejected in accordance with Article 35 §§ 3 (a) and 4 of
the Convention.
III. ALLEGED VIOLATION OF ARTICLE 8 OF THE CONVENTION
- The
applicant complained that the night club was searched without a
search warrant. He relied on Article 8 of the Convention, which
reads:
“1. Everyone has the right to respect for his
private and family life, his home and 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
Court observes that the search was conducted on the basis of the
search warrant issued by the judge at the District Court. Moreover,
it has no reason to doubt the legality of the search on any other
ground.
- It
follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3 (a)
and 4 of the Convention.
IV. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The
applicant, relying on Article 5 § 1 (a) of the Convention,
complained that his detention had been unlawful because the criminal
proceedings against him had been unlawful. Relying on Articles 3 and
6 § 2 of the Convention, he further complained about the
conditions of his detention. Lastly, relying on Article 6 § 3
(d) of the Convention, he complained that he had not been legally
represented at the hearing on his pre-trial detention on 17 October
2006.
- The
Court observes that the applicant failed to raise these issues before
the Constitutional Court, which thus did not review these complaints.
Consequently, the Court considers that these complaints must be
rejected under Article 35 §§ 1 and 4 of the Convention for
non-exhaustion of domestic remedies.
V. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 52,000 euros (EUR) in respect of pecuniary damage.
He based his claim on the loss of profits during his allegedly
illegal detention and the damage to his car that was seized for a
certain period by the police. He further claimed EUR 520,000 in
respect of non-pecuniary damage.
- The
Government argued that there was no causal link between a possible
violation of the applicant’s rights under Article 6 § 1
and 3 (d) of the Convention and the alleged pecuniary damage. As
regards non-pecuniary damage, they maintained that the finding of a
violation would constitute in itself sufficient just satisfaction.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim
(see Krasniki v. the Czech Republic, no. 51277/99, §
91-92, 28 February 2006).
- Regarding
non-pecuniary damage, the Court notes that in several cases where it
has found similar violations as in the present case it has held that
a finding of a violation constituted sufficient just satisfaction
because the applicants had the possibility of requesting the
reopening of the proceedings at the domestic level (see, for example,
Krasniki, cited above, § 93; Melich and Beck v.
the Czech Republic, no. 35450/04, § 59, 24 July 2008;
Rachdad v. France, no. 71846/01, § 29, 13 November 2003;
and Kaste and Mathisen v. Norway, nos. 18885/04; and
21166/04, § 61, ECHR 2006 XIII).
- The
Court notes that under the Constitutional Court Act, anyone who has
been involved in domestic criminal proceedings and is successful in
proceedings before an international judicial authority which finds
that his or her human rights or fundamental freedoms guaranteed by an
international treaty have been violated by a public authority, may
file a request for the reopening of the proceedings previously
brought in the Constitutional Court.
- Accordingly,
the Court considers that the finding of a violation constitutes in
itself sufficient just satisfaction for the non-pecuniary damage
sustained by the applicant.
B. Costs and expenses
- The
applicant also claimed EUR 4,200 for the costs and expenses incurred
before the Court.
- The
Government maintained that no award should be made under this head
because the applicant had not submitted any documents in support of
his claims.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. Given the absence of any supporting
documents, the Court does not award the applicant any amount under
this head (see Melich
and Beck, cited above).
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning Article 6 §§
1 and 3 (d) that he had not been able to cross-examine several
witnesses admissible and the remainder of the application
inadmissible;
- Holds that there has been a violation of Article
6 §§ 1 and 3 (d) of the Convention;
- Holds that the finding of a violation
constitutes in itself sufficient just satisfaction for the
non-pecuniary damage sustained by the applicant;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 21 July 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Claudia Westerdiek Dean Spielmann
Registrar President
