CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 16 avril 1998

.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. 32110/96                       by Peter POBOZNY                       against the Slovak Republic          The European Commission of Human Rights (Second Chamber) sitting in private on 16 April 1998, the following members being present:              MM     J.-C. GEUS, President                  M.A. NOWICKI                  G. JÖRUNDSSON                  A. GÖZÜBÜYÜK                  J.-C. SOYER                  H. DANELIUS            Mrs    G.H. THUNE            MM     F. MARTINEZ                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY                  P. LORENZEN                  E. BIELIUNAS                  E.A. ALKEMA                  A. ARABADJIEV              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 17 October 1995 by Peter POBOZNY against the Slovak Republic and registered on 2 July 1996 under file No. 32110/96;        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 1961.   He is serving a custodial sentence in the Banská Bystrica prison.        The facts of the case, as submitted by the applicant, may be summarised as follows.        On 19 May 1993 the Banská Bystrica police investigator accused the applicant and his father-in-law of theft.   As from that date both accused were remanded in custody pursuant to a decision of the Banská Bystrica Regional Court (Krajsky súd) of 20 May 1993.   On 8 June 1993 the Supreme Court (Najvyssí súd) dismissed the applicant's complaint against this decision.   On 15 July 1993 and on 11 January 1994 the Banská Bystrica Regional Court dismissed the applicant's requests for release.        On 19 May 1993 the applicant's father-in-law admitted to the police investigator, in the presence of his lawyer, that he and several other persons including the applicant had stolen cigarettes from a warehouse in which he worked as a watchman.   The applicant's father-in- law stated that the theft had been initiated by the applicant and that it had been caused by their financial problems.   He described in detail how he had permitted the other persons involved to commit the theft. On 20 May 1993 the applicant's father-in-law confirmed the aforesaid statement before a judge of the Banská Bystrica Regional Court.        At a later stage of the proceedings the applicant's father-in-law denied the truth of his statements of 19 and 20 May 1993 and alleged that he had been attacked by unknown persons who had threatened him with a pistol.   He explained that he had invented his earlier statements in revenge for the applicant's bad behaviour to his daughter.        On 16 December 1993 the Banská Bystrica Regional Prosecutor indicted the applicant and his father-in-law of theft.   Charges were also brought against three other persons.        On 19 August 1994 the Banská Bystrica Regional Court convicted the applicant of theft and sentenced him to eight years' imprisonment.        The Regional Court established that in the night of 15 May 1993 the applicant's father-in-law, while being on duty as a watchman, had permitted several unknown persons to enter a warehouse and to steal cigarettes in the value of 3,313,465 Slovak crowns from it.   The court further found that the perpetrators had tied the applicant's father-in- law with a view to faking a robbery.   Subsequently, the stolen cigarettes had been transported to a house in Turová   where the police had later found them.        At the main hearing before the Regional Court the driver of the truck in which the cigarettes had been transported confirmed that he had seen the applicant, for the first time, on 15 May 1993 at about 9 p.m. near a hotel in Banská Bystrica.   The applicant had been talking to a man by whom the driver had been hired for that night.   After the cigarettes had been loaded on the truck in the warehouse, the driver had been asked to drive to a parking.   He further stated that at about 11.25 p.m. the applicant had come to the parking and had shown him the way to a house in Turová where the cigarettes had been unloaded.   The applicant had then rewarded him for the transport.        Another witness stated that the applicant had been present in the yard of the house in Turová at the moment when the truck transporting the cigarettes had been unloaded.   Two other witnesses confirmed that at the relevant time the truck in question had moved on the road between the warehouse and Turová.        The court further established that the aforesaid house in Turová had been rented by an accused according to an agreement with the applicant.        At the main hearing the applicant's father-in-law decided not to give evidence.   The court read out his statements of 19 and 20 May 1993 in which he had described in detail the circumstances which had preceded the theft, and had admitted that he had instructed the applicant and another person how to enter the warehouse.   The court recalled that he had also admitted that on 16 May 1993 the applicant had informed him that the cigarettes had been at a safe place in a house outside Banská Bystrica.   Finally, the Regional Court noted that at the moment when the applicant's father-in-law had been found tied, he had indicated to a witness which warehouse had been broken into notwithstanding that the warehouse could not be seen from the place where he had been found.        The court also heard the applicant's wife and mother-in-law who stated that in the night of 15 May 1993 the applicant had not left his home after 10.45 p.m.   However, it considered their statements unreliable as the applicant had been seen both by the driver of the truck transporting the cigarettes and by another witness at the moment when the cigarettes had been unloaded in Turová.        The Regional Court also noted that two other witnesses for the defence had confirmed that they had been with the applicant in the centre of Banská Bystrica at approximately the same time when the driver of the truck had seen him for the first time near a hotel. However, the court found that both places were close to each other and held that the applicant's presence in the centre of Banská Bystrica did not exclude his being, a few minutes later, at the place where he had been seen by the truck driver.        At the main hearing the applicant requested that he should be cross-examined together with his father-in-law, but his request was not granted.        The applicant appealed.   He claimed that the Regional Court had erroneously relied on the statements made by his father-in-law on 19 and 20 May 1993.   He complained that the first instance court had not taken into account that his father-in-law had revoked these statements and that it had disregarded the evidence in his favour.   The applicant considered that the evidence on which the Regional Court had based its decision was not sufficient to conclude that he had committed the offence in question.        On 12 April 1995 the Supreme Court quashed the first instance judgment as in the operative part of its judgment the Regional Court had committed an error when specifying the stolen goods.   The Supreme Court then convicted the applicant of theft and sentenced him to eight years' imprisonment.        The Supreme Court held that the Regional Court had taken all necessary evidence and assessed it correctly after having considered all relevant facts.   In the Supreme Court's view, the Regional Court had clearly stated which facts it had considered to be established, on what basis it had considered them to be established, and what had been its considerations when assessing the evidence before it and specifying why it had not relied on the arguments of the defence.        In particular, the Supreme Court recalled that in his statements of 19 and 20 May 1993 the applicant's father-in-law had admitted that the applicant had informed him, on 16 May 1993, that the stolen cigarettes had been stored in a house outside Banská Bystrica notwithstanding that this fact had not been known at the moment when the statement had been made.   It therefore considered that the subsequent denial of this statement by the applicant's father-in-law was tendentious and unreliable.        The Supreme Court further noted that in the course of the relevant night the applicant had shown the way to the driver of the truck transporting the stolen cigarettes and had rewarded him for the transport, and that another witness had seen the applicant in the yard of the house where the truck had been unloaded.   The Supreme Court held that the aforesaid witnesses were independent of each other and considered that their evidence was sufficiently reliable to exclude the possibility of an error.   It therefore found it established that the applicant had been involved in the theft.        At the main hearing before the Supreme Court the applicant complained that the first instance court had not granted his request for his cross-examination together with his father-in-law.   COMPLAINTS        Under Article 5 of the Convention the applicant complains that both his complaint against the decision to remand him in custody and his requests for release from detention on remand were rejected.        The applicant further complains that his conviction was based on the statements of his father-in-law made in the course of pre-trial proceedings notwithstanding that the latter had denied the truth of these statements.   The applicant also complains that he did not have an opportunity to have his father-in-law cross-examined and that the courts disregarded the evidence in his favour, relied on false evidence and decided arbitrarily.   He invokes Article 8 of the Convention.   THE LAW   1.    The applicant complains that both his complaint against the decision to remand him in custody and his requests for release from detention on remand were rejected.   He alleges a violation of Article 5 (Art. 5) of the Convention.        The Commission notes that the applicant was remanded in custody pursuant to a decision of the Banská Bystrica Regional Court of 20 May 1993, and that the Supreme Court rejected the applicant's complaint against this decision on 8 June 1993.   Since the application was introduced on 17 October 1995, this part of it must be rejected for the applicant's failure to respect the six months' time-limit laid down in Article 26 (Art. 26) of the Convention.        The Commission further notes that it does not appear from the documents submitted that the applicant lodged a complaint against the decisions by which the Banská Bystrica Regional Court had dismissed his requests for release from the detention on remand.   In this respect, the applicant has 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.   2.    The applicant further complains under Article 8 (Art. 8) of the Convention that the judicial proceedings in his case were not fair and that his conviction was arbitrary.   The Commission finds that in substance these complaints fall under Article 6 (Art. 6) of the Convention and will examine them under this head.        Article 6 (Art. 6) of the Convention, in so far as relevant, provides as follows:        "1.    In the determination of ... any criminal charge against      him, everyone is entitled to a fair and public hearing ... by an      independent and impartial tribunal established by law.      ...        3.     Everyone charged with a criminal offence has the following      minimum rights:      ...              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;"      ...   a)    The applicant complains that his conviction was based on the statements of his father-in-law of 19 and 20 May 1993 notwithstanding that the latter had denied the truth of these statements.   He further complains that he did not have an opportunity to have his father-in-law cross-examined.        The Commission has examined this complaint under paras. 1 and 3 (d) of Article 6 (Art. 6-1, 6-3-d) of the Convention taken together (see Eur. Court HR, Isgrò v. Italy judgment of 19 February 1991, Series A no. 194-A, p. 12, para. 31).        The Commission notes that the applicant's father-in-law, who was a co-accused in the proceedings complained of, revoked his statements made to the police investigator and to a judge on 19 and 20 May 1993 respectively and availed himself of his right not to give evidence at the trial.   However, the aforesaid statements, as taken down in writing and then read out at the main hearing, were before the courts determining the criminal charge against the applicant, which took them into account.   The Commission therefore considers that the applicant's father-in-law should, for the purposes of Article 6 para. 3 (d) (Art. 6-3-d) of the Convention, be regarded as a witness (see Eur. Court HR, Artner v. Austria judgment of 28 August 1992, Series A no. 242-A, p. 10, para. 19).        The Commission recalls that the admissibility of evidence is primarily a matter for regulation by national law and, as a rule, it is for the national courts to assess the evidence before them.   The Convention organs' task is to ascertain whether the proceedings considered as a whole, including the way in which evidence was taken, were fair.        In particular, all the evidence must normally be produced in the presence of the accused at a public hearing with a view to adversarial argument.   This does not mean, however, that the statement of a witness must always be made in court and in public if it is to be admitted in evidence.   The use in this way of statements obtained at the pre-trial stage is not in itself inconsistent with paras. 3 (d) and 1 of Article 6 (Art. 6-1, 6-3-d) of the Convention, provided that the rights of the defence have been respected.   As a rule, these rights require that the defendant be given an adequate and proper opportunity to challenge and question a witness against him, either when he was making his statements or at a later stage of the proceedings (see Eur. Court HR, Asch v. Austria judgment of 26 April 1991, Series A no. 203, p. 10, paras. 26 and 27).        The Commission considers that the right on which the applicant's father-in-law relied in order to avoid giving evidence could not be allowed to block the prosecution.   Subject to the rights of the defence being respected, it was therefore open to the Slovak courts to have regard to his statements of 19 and 20 May 1993, in particular in view of the fact that they could consider these statements to be corroborated by other evidence before them (see Eur. Court HR, Asch v. Austria judgment cited above, pp. 10 and 11, para. 28; Artner v. Austria judgment cited above, p. 10, para. 22).        In this respect, the Commission notes that both the Regional Court and the Supreme Court, when deciding on the applicant's case, also had regard to the evidence given by the truck driver.   They noted that the latter had seen the applicant talking to the man who had hired him for the relevant night.   According to the driver's statement, the applicant had shown him, after the truck had been loaded with the cigarettes, the way to a house in Turová in which the cigarettes had been found later.   The driver also stated that the applicant had rewarded him for the transport.        The courts also relied on the evidence of another witness who had seen the applicant in the yard of the aforesaid house at the moment when the truck transporting the cigarettes had been unloaded.   They further noted that the house in question had been rented by another accused following an agreement with the applicant.        Accordingly, the statements made by the applicant's father-in-law on 19 and 20 May 1993 did not constitute the only item of evidence on which the domestic courts based their finding that the applicant had been involved in committing the offence in question.        In these circumstances, the Commission considers that the fact that it was impossible for the applicant to have his father-in-law cross-examined in the course of the judicial proceedings was not incompatible with the requirements of paras. 1 and 3 (d) of Article 6 (Art. 6-1, 6-3-d).   b)    To the extent that the applicant complains that the courts evaluated the evidence in his case erroneously and convicted him arbitrarily, the Commission recalls that, in accordance with Article 19 (Art. 19) of the Convention, its only task is to ensure the observance of the obligations undertaken by the Parties in the Convention.   In particular, it is not competent to deal with an application alleging that errors of law or fact have been committed by domestic courts, except   where it   considers   that such   errors might   have involved apossible violation of any of the rights and freedoms set out in the Convention.   The Commission refers, on this point, to its constant case-law (see, e.g., No. 25062/94, Dec. 18.10.95, D.R. 83, pp. 77, 86).        In the present case the Regional Court examined the evidence before it and came to the conclusion, for reasons expressly set out in its judgment, that the applicant had been actively involved in the theft of cigarettes committed in the night of 15 May 1993.   Its findings on both the facts and the law were shared by the Supreme Court which held that the first instance court had taken all necessary evidence and assessed it correctly after having considered all relevant facts.   The Commission considers that the reasons on which the courts based their above decisions are sufficient to exclude that the evaluation of the evidence in the applicant's case had been arbitrary.        In these circumstances, the Commission considers that the proceedings leading to the applicant's conviction 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.      M.-T. SCHOEPFER                               J.-C. GEUS       Secretary                                   President to the Second Chamber                       of the Second Chamber