CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 6 septembre 1995

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                         Application No. 26962/95                       by Milan SULKO                       against the Slovak Republic         The European Commission of Human Rights (Second Chamber) sitting in private on 6 September 1995, the following members being present:              Mr.    H. DANELIUS, President            Mrs.   G.H. THUNE            MM.    G. JÖRUNDSSON                  J.-C. SOYER                  H.G. SCHERMERS                  F. MARTINEZ                  L. LOUCAIDES                  J.-C. GEUS                  M.A. NOWICKI                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY                  P. LORENZEN              Ms.    M.-T. SCHOEPFER, Secretary to the Chamber         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 11 July 1994 by Mr. Milan SULKO against the Slovak Republic and registered on 3 April 1995 under file No. 26962/95;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having deliberated;         Decides as follows:   THE FACTS         The applicant is a Slovak national born in 1953.   He is a bricklayer and is serving a prison sentence.         The facts of the case, as submitted by the applicant, may be summarised as follows.         The applicant was charged with an offence and detained from 5 April 1990 until 27 November 1991 when the charges were dropped.   On 24 April 1992 he requested compensation for the detention from the Ministry of Justice.   On 11 January 1994 the applicant received a sum which he considered inadequate.   On 4 July 1994 he lodged an action for damages before the Supreme Court (Najvyssí súd).         The action was transferred to the Banská Bystrica District Court (Okresny súd) which has jurisdiction in the case.   Upon the request of the court the applicant made further submissions on 25 October 1994. The applicant lodged a complaint before the Constitutional Court (Ústavny súd) in which he alleged that there were excessive delays in the proceedings concerning compensation for the detention.   On 15 November 1994 the Constitutional Court informed the applicant that he had failed to exhaust the available remedies, namely to lodge a complaint with a higher court and the Ministry of Justice.         On 8 November 1994 the Banská Bystrica Regional Court (Krajsky súd) found the applicant guilty of murder.   The court established that on 24 February 1994 the applicant had stabbed an acquaintance whom he had suspected of having stolen money and a tape from him.   At an early stage of the investigation the applicant admitted this fact (in the presence of his lawyer), however later he alleged that the victim had stumbled and fallen on the sabre which the applicant held.   There were no eye witnesses.         According to four witnesses heard by the court the applicant had alleged immediately after the incident that he wanted to stab his opponent but not to kill him, and that the latter deserved the punishment.   The experts concluded that the victim, who had been stabbed in the arm and in the heart, could not have wounded himself as alleged by the applicant.   It was established that blood stains on the sabre and on the applicant's clothes corresponded to the victim's blood group.         The court concluded from the way in which the victim had been wounded (the attack had been repeated and violent, it was directed at vital organs) that the applicant had intended to kill his opponent. Furthermore, the medical expert opinion proved that the wounds were the cause of the victim's death.   In its judgment the court noted, inter alia, that the motive for the act (punishment of a presumed thief) and the applicant's readiness to put financial issues before human life showed the serious nature of the offence.         The applicant was sentenced to twelve years' imprisonment.   In addition, he was ordered to pay damages, and the court confiscated the sabre with which the offence had been committed.         In the proceedings before the Banská Bystrica Regional Court the applicant was represented by a lawyer, he participated in the reconstruction of the incident and had the opportunity to challenge the evidence against him.         The applicant lodged an appeal with the Supreme Court.   He alleged that he had not intended to wound his opponent.   He claimed that by admitting, immediately after the incident, that he stabbed his opponent he had meant that he had merely held the sabre and the victim had fallen onto it.         In his appeal the applicant also referred to witnesses whom he had told that he had not intended to kill his opponent.   Finally, he complained that the evidence against him before the Regional Court had not been sufficient, the facts had not been established correctly, and the court had relied on expert evidence which was erroneous and superficial.         On 19 January 1995 the Supreme Court (after an oral hearing) upheld the prison sentence and the order to pay damages.   It quashed the decision to confiscate the sabre since it was not clear whether the applicant owned it.         The Supreme Court found that the Regional Court had examined the evidence before it, drawn the correct conclusions from the facts it had established and given detailed reasons for its decision.   In particular, the Supreme Court noted that the expert evidence (which corresponded to the applicant's first statements made after the incident) as well as the other evidence available were sufficient proof that the wounds had been caused by the applicant.         In the Supreme Court's view, the applicant must have had at least an indirect intention to murder his opponent since he had attacked him repeatedly with a weapon capable of causing death, the attack had been violent and had been directed at vital organs. The applicant must have been aware of the possible consequence of his acting.   Finally, the Supreme Court noted that the aforesaid conclusions were confirmed also by the witnesses who had been heard by the court.   COMPLAINTS         The applicant complains that from 5 April 1990 until 27 November 1991 he was unlawfully detained and that he did not receive compensation for this detention.   He alleges a violation of Article 5 para. 5 of the Convention.   He also complains of the length of the proceedings concerning compensation for the detention.         The applicant further alleges a violation of his rights in the proceedings which led to his conviction for murder in that (i) the expert opinion was contradictory, erroneous and could not be considered as a sufficient proof of his guilt, (ii) he could not defend himself since the courts failed to establish the real facts of the case and convicted him without sufficient direct evidence against him, (iii) the reconstruction of the incident was not correct and did not correspond to the reality, (iv) the Regional Court wrongly concluded that he put financial issues before respect for human life although he had not been examined by a psychiatrist, (v) one of the witnesses gave different evidence in preliminary proceedings and later before the Regional Court, (vi) there could have been no blood stains on his clothes since the clothes sent for the analysis were different from those which he had had on during the incident.   The applicant expressly alleges a violation of Articles 3 and 17 of the Convention.   THE LAW   1.     The applicant alleges a violation of Article 5 para. 5 (Art. 5-5) of the Convention in that from 5 April 1990 until 27 November 1991 he was unlawfully detained.   The Commission notes that the facts complained of relate to a period prior to 18 March 1992, which is the date of the ratification of the Convention by the former Czech and Slovak Federal Republic, as well as to 1 January 1993, which is the date of the entry into force of the Convention with respect to the Slovak Republic.   However, the Convention only governs, for each Contracting Party, facts subsequent to its entry into force with respect to that Party.         It follows that this part of the application is incompatible ratione temporis with the Convention within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.     a) To the extent that the applicant complains that the Slovak authorities failed to pay compensation for the detention, and even assuming that an issue under the Convention arises in this respect, the Commission notes that the proceedings are still pending before the Banská Bystrica District Court.   This complaint is therefore premature.         b) As to the complaint of the length of the proceedings which concern compensation for the detention, and again assuming that issues arise under the Convention, the Commission recalls that the Constitutional Court refused to examine the applicant's petition since he had failed to exhaust other remedies available under Slovak law.         c) The applicant further alleges a violation of his rights in the proceedings relating to his charge with murder in that (i) the reconstruction of the incident was not correct and did not correspond to the reality, (ii) the Regional Court wrongly concluded that he put financial issues before respect for human life, (iii) one of the witnesses gave different evidence in preliminary proceedings and later before the Regional Court, (iv)   there could have been no blood stains on his clothes as alleged by the Regional Court.         However, it appears from the documents submitted that the applicant did not raise these issues in his appeal before the Supreme Court.   He therefore failed to comply with the requirement as to the exhaustion of domestic remedies laid down in Article 26 (Art. 26) of the Convention.         It follows that this part of the application must be rejected pursuant to Article 27 para. 3 (Art. 27-3) of the Convention.   3.     Finally, the applicant alleges a violation of his rights in the proceedings before the Banská Bystrica Regional Court and the Supreme Court in that (i) the expert evidence was contradictory, erroneous and could not be considered as sufficient proof of his guilt, (ii) the courts violated his right to defend himself since they failed to establish the real facts of the case and convicted him without sufficient direct evidence against him.   He alleges a violation of Articles 3 and 17 (Art. 3, 17) of the Convention.         The Commission finds that in substance these complaints fall under Article 6 (Art. 6) of the Convention and considers it appropriate to examine them under this head.         So far as relevant, Article 6 (Art. 6) of the Convention guarantees to everyone charged with a criminal offence a fair and public hearing by a tribunal, the right to defend himself in person or through legal assistance of his own choosing and to examine and have examined witnesses against him.         The applicant alleges that the courts failed to establish the facts properly and based their decision on erroneous evidence which could not be regarded as sufficient proof of his guilt.   The Commission recalls that its task is to determine whether the proceedings considered as a whole were fair (cf. Eur. Court H.R., Barberà, Messegué and Jabardo judgment of 6 December 1988, Series A no. 146, p. 31, para. 68, with further references).         In particular, the Commission has no general jurisdiction to consider whether domestic courts have appraised the evidence correctly or incorrectly; its task is to establish whether evidence produced for or against the accused was presented in such a way as to ensure a fair trial (cf. No. 9000/80, Dec. 11.3.82, D.R. 28 p. 127).         In the present case, the applicant was represented by a lawyer. He took part in the hearings on his case and it does not appear from his submissions that he was deprived of the opportunity to challenge the evidence against him in an adversarial procedure and to comment on the evidence in argument.   Furthermore, both the Banská Bystrica Regional Court and the Supreme Court gave detailed reasons for their decisions.         Under these circumstances the Commission considers that the proceedings which resulted in the conviction of the applicant were not contrary to the requirements laid down in Article 6 (Art. 6) of the Convention.         It follows that this part of the application is manifestly ill- founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.         For these reasons, the Commission, unanimously,         DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the Second Chamber        President of the Second Chamber        (M.-T. SCHOEPFER)                         (H. DANELIUS)