CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 11 janvier 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. 24211/94                       by Ondrej KAJBA                       against the Czech Republic        The European Commission of Human Rights sitting in private on 11 January 1995, the following members being present:              Mr.    H. DANELIUS, President            Mrs.   G.H. THUNE            MM.    G. JÖRUNDSSON                  S. TRECHSEL                  J.-C. SOYER                  H.G. SCHERMERS                  F. MARTINEZ                  L. LOUCAIDES                  J.-C. GEUS                  M.A. NOWICKI                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY              Mr.    K. ROGGE, 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 24 August 1993 by Mr. Ondrej Kajba against the Czech Republic and registered on 27 May 1994 under file No. 24211/94;        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 facts of the case, as they have been submitted by the applicant, may be summarised as follows.        The applicant, born in 1955, is a Czech national.   When his application was introduced he was detained in prison in Ostrava-Poruba (the Czech Republic).   A.    Particular circumstances of the case        On 4 February 1992 the applicant was charged with assault on his girlfriend under Article 222 para. 1 in connection with Article 8 para. 1 of the Criminal Code.        On the same day the judge at the Ostrava District Court (Okresní soud) ordered the applicant's detention on remand under Articles 67 a) b) c) and 68 of the Code of Criminal Procedure.   The judge, having regard to the content of the file, the girlfriend's statement and the applicant's previous convictions, found a strong suspicion that the applicant had committed the offence, a risk of his absconding on the ground of the potentially severe sentence, and a danger of his influencing witnesses.        On 30 March and 29 May 1992 the judge at the Ostrava District Court ordered the applicant's continued detention on remand until 3 June and 15 July 1992, respectively.   The judge considered that the reasons for the detention on remand still applied, in view of the nature of the offence and the danger of repetition of offences of the same nature.        On 18 July 1992 the Ostrava Municipal Prosecutor instituted criminal proceedings against the applicant for rape, insulting a person in public office and physical assault, pursuant to Articles 241 para. 1, 156 paras. 1a), 3 and Article 222 para. 1 in connection with Article 8 para. 1 of the Criminal Code.        On 19 May, 1 July and 29 September 1992 the applicant applied to the judge at the Ostrava District Court to be released, challenging the grounds put forward to justify his continued detention.   He also submitted that his girlfriend had expressed the wish that they should continue to live together.   These applications were dismissed on 29 May, 22 July and 4 November 1992.   The judge, noting that the applicant had no stable work and having regard to the potentially severe sentence, found that there was a risk that the applicant would not appear at his trial.   These decisions were confirmed by the judge at the Ostrava Regional Court (Krajsky soud) on 16 June, 13 August and 23 November 1992.        In the meantime, on 4 November 1992, the Ostrava District Court adjourned the hearing of the applicant to allow further witnesses to be examined.        On 22 January 1993 the applicant's trial opened before the Ostrava District Court; it was adjourned when the applicant challenged the impartiality of the court.        On 11 March 1993 the applicant again filed an application for release with the judge at the Ostrava District Court.   However, on 8 June 1993 the judge rejected this application.   He relied on the reasoning in earlier decisions.   On 29 June 1993 the judge at the Regional Court confirmed the findings of the District Court as to a strong suspicion against the applicant, the risk of repetition of criminal offences and the danger of his absconding.        On 10 March 1993, the Ostrava District Court again adjourned the applicant's trial in view of his application to remove his case from that court.        On 22 July 1993, the Chamber of the Czech Supreme Court (Senát Nejvyssího soudu), at the request of the President of the Chamber of the Ostrava District Court, prolonged the period of the applicant's detention to 15 October 1993, in accordance with Article 71 paras. 4 and 5 of the Code of Criminal Procedure.   The Chamber considered that the preliminary investigations had not been completed and noted difficulties arising in the examination of witnesses and in view of the applicant's behaviour.   The Chamber considered that, given his previous convictions, the applicant posed a risk to the public.        On 27 July 1993 the applicant made another application for release, maintaining that the original grounds for detention were invalid.   His application was rejected on 6 August 1993 by the judge at the Ostrava District Court, who, referring to the earlier decisions, considered that the reasons for the applicant's detention were still pertinent.   This decision was confirmed on 24 August 1993 by the judge at the Ostrava Regional Court.        On 26 August 1993 the Ostrava District Court again adjourned the applicant's trial because he had challenged the court's impartiality.        On 3 September 1993 the Ostrava Regional Court dismissed the applicant's challenge and assigned the case to the Ostrava District Court.        On 20 October 1993 the Chamber of the Czech Supreme Court again ordered the applicant's continued detention on remand to 15 January 1994, having regard to the developments in the investigation.   The Court based its decision on the content of the file, the date on which the applicant was first remanded in custody and the original grounds for detention.        It appears that the proceedings are still pending before the Ostrava District Court.   B.    Relevant domestic law   Constitutional law No. 91/1991 on the Constitutional Court of the Czech and Slovak Federal Republic                                   Art. 6 [Translation]        "The Constitutional Court shall determine constitutional      complaints made against an act ... or decision or other      interference by a 'public organ' with the fundamental rights and      freedoms guaranteed by a constitutional law ... or an      international treaty ..."   [Original]        "Ústavní soud rozhoduje o ústavních stíznostech proti opatrením,      ... rozhodnutím nebo jinym zásahum orgánu verejné moci, jestlize      stezovatel tvrdí, ze jimi byly poruseny jeho základní práva a      svobody, zarucené ústavním zákonem Federálního shromázdení nebo      mezinárodními smlouvami ..."   Law No. 491/1991 on the Procedure before the Constitutional Court of the Czech and Slovak Federal Republic                                   Art. 54 [Translation]        "1.    A constitutional complaint may be made ... by any physical      person ... claiming to be the victim of a violation by an act,      ... or decision or other interference by a 'public organ' with      the rights and freedoms set out in a constitutional law ... or      an international treaty ..."   [Original]        "1.    Ústavní stíznost ... muze podat fyzická ... osoba, která      tvrdí, ze opatrením, ... rozhodnutím nebo jinym zásahem orgánu      verejné moci bylo poruseno její základní právo nebo svoboda,      zarucené ústavním zákonem Federálního shromázdení nebo      mezinárodními smlouvami ..."   Constitution of the Czech Republic                                   Art. 3 [Translation]        "The Charter of Fundamental Rights and Freedoms is part of the      constitutional order of the Czech Republic."   [Original]        "Listina základních práv a svobod je soucástí ústavního porádku      Ceské republiky."                                   Art. 87 [Translation]        "1.    The Constitutional Court shall determine:        ...      (d)    constitutional complaints made against ... decisions or      other interference by a 'public organ' with the fundamental      rights and freedoms guaranteed by a constitutional law ..."   [Original]        "1.    Ústavní soud rozhoduje        ...      d)     o ústavní stíznosti proti ... rozhodnutí a jinému zásahu      orgánu verejné moci do ústavne zarucenych základních práv a      svobod, ..."   Charter of Fundamental Rights and Freedoms                                   Art. 8 [Translation]        "1.    Personal liberty is guaranteed.        2.     No one shall be deprived of his or her liberty except on      grounds and in a manner prescribed by law ...        3.     Any person accused or suspected of having committed a      criminal offence may be detained only in accordance with the law.      Such detained person shall be informed without delay of the      reasons for the detention, questioned, and not more than twenty-      four hours later, be brought before a court.   Within twenty-four      hours of having been brought before a court, a judge shall      question such person and decide whether to place the person in      custody or to release him.        4.     A person accused of a criminal act may be arrested only on      the basis of a written warrant issued by a judge, which includes      the grounds for its issue.   The arrested person shall be brought      before a court within twenty-four hours.   A judge shall question      the arrested person within twenty-four hours and decide whether      to place the person in custody or to release him.        5.     Nobody may be placed in custody except in accordance with      the law and on the basis of a judicial decision ..."   [Original]        "1.    Osobní svoboda je zarucena.        2.     Nikdo nesmí byt stíhán nebo zbaven svobody jinak nez z      duvodu a zpusobem, ktery stanoví zákon ...        3.     Obvineného nebo podezrelého z trestného cinu je mozno      zadrzet jen v prípadech stanovenych v zákone. Zadrzená osoba musí      byt ihned seznámena s duvody zadrzení, vyslechnuta a nejpozdeji      do 24 hodin propustena na svobodu nebo odevzdána soudu. Soudce      musí zadrzenou osobu do 24 hodin od prevzetí vyslechnout a      rozhodnout o vazbe, nebo ji propustit na svobodu.        4.     Zatknout obvineného je mozno jen na písemny oduvodneny      príkaz soudce. Zatcená osoba musí byt do 24 hodin odevzdána      soudu. Soudce musí zatcenou osobu do 24 hodin od prevzetí      vyslechnout a rozhodnout o vazbe nebo ji propustit na svobodu.        5.     Nikdo nesmí byt vzat do vazby, lec s duvodu a na dobu      stanovenou zákonem a na základe rozhodnutí soudu ..."   Law No. 182/1993 on the Constitutional Court of the Czech Republic                                   Art. 72 [Translation]        "1.    A constitutional complaint may be made by:        (a)    any physical person ... claiming to be the victim of      a violation by ... a decision or an act of a 'public organ'      of the rights or liberties set forth in a constitutional      law or an international treaty ..."   [Original]        "1.    Ústavní stíznost jsou oprávneni podat        a)     fyzická osoba ..., jestlize tvrdí, ze ... opatrením nebo      jinym zásahem orgánu verejné moci bylo poruseno její základní      právo nebo svoboda zarucené ústavním zákonem nebo mezinárodní      smlouvou ..."   COMPLAINTS   1.    The applicant complains under Article 5 paras. 1 and 3 of the Convention that inadequate reasons were given for the detention and that the length of the detention is excessive.   2.    He also complains under Article 6 para. 1 of the Convention that he did not have a fair trial before an independent and impartial tribunal within a reasonable period of time.   3.    The applicant complains under Article 8 of the Convention of a violation of his right to respect for his private and family life by virtue of the length of his detention on remand.   THE LAW   1.    The applicant complains of the reasons for and the length of his detention on remand.   He relies on Article 5 paras. 1 and 3 (Art. 5-1, 5-3) of the Convention.   These 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;      ...      3.     Everyone arrested or detained in accordance with the      provisions of paragraph 1.c of this Article ... 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 Commission is not, however, called upon to decide whether the facts alleged by the applicant disclose any appearance of a violation of the above provisions.   Under Article 26 (Art. 26) of the Convention, "the Commission may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law".        Insofar as the applicant complains about the reasons for his detention on remand, the Commission notes that the applicant has not shown that he filed an appeal against the decision of the judge at the Ostrava District Court, taken on 4 February 1992, ordering his detention on remand. It is true that against the subsequent decisions of the District Court of 29 May, 22 July and 4 November 1992 by which his release was refused he appealed to the Ostrava Regional Court, which rejected the appeals. He also appealed against the subsequent decisions of the Ostrava District Court dated 8 June and 6 August 1993 by which his release had been refused, but these appeals were again rejected by the Regional Court. However, he did not pursue any of these proceedings by lodging a constitutional appeal with the Constitutional Court of the Czech and Slovak Republic or the Constitutional Court of the Czech Republic. Nor did he lodge constitutional appeals against the decisions of the Supreme Court of 22 July and 20 October 1993 which prolonged his detention on remand.        The Commission notes in this respect that the applicant was able, under Article 54 para. 1 of Law No. 491/1991 on the Procedure before the Constitutional Court of the Czech and Slovak Federal Republic, to introduce a constitutional appeal before the Constitutional Court against the decisions of the judge at the Ostrava Regional Court dated 16 June, 13 August and 23 November 1992 which confirmed the refusals by the judge at Ostrava District Court to release the applicant.   The applicant was able in the same way, pursuant to Article 72 para. 1 of Law No. 182/1993 on the Constitutional Court of the Czech Republic, to lodge a constitutional appeal with the Constitutional Court against the decisions of the judge at the Ostrava Regional Court taken on 29 June and 24 August 1993 which confirmed the refusal of the judge at the Ostrava District Court to release him from detention on remand, and against the decisions of the Supreme Court taken on 22 July and 20 October 1993, prolonging his detention on remand.   The Commission notes that the Constitutional Court of the Czech Republic is also competent to hear a constitutional appeal against an act of a 'public organ' which was committed after 1 January 1993 (cf. No. 22926/93, Dec. 7.4.94, D.R. 77-A p. 118).        It follows that in this respect the applicant did not exhaust the domestic remedies as required by Article 26 (Art. 26) of the Convention and that the   application is in this respect inadmissible according to Article 27 para. 3 (Art. 27-3) of the Convention.        As regards the applicant's complaint as to the length of his detention on remand, the Commission recalls that "if there is doubt as to whether a particular remedy may or may not offer a real chance of success, the point must be submitted to the domestic courts themselves before any appeal can be made to the international court" (No. 6861/75, Dec. 14.7.75, D.R. 3 p. 147; No. 10267/83, Dec. 10.12.87, D.R. 54 p. 5).   In Czechoslovak as well as in Czech law, the Constitutional Court [was] is the final instance before which an allegation of a violation by a 'public organ' of rights and fundamental freedoms set forth in a constitutional law or an international treaty [could] can be made.        The Commission notes that in respect of the length of the applicant's detention on remand, the applicant did not lodge a constitutional appeal against any of the court decisions by which his release was refused.        As part of such a constitutional appeal, the applicant could have complained about the length of his detention, invoking a violation of Article 8 of the Charter of Fundamental Rights and Freedoms which guarantees the right to personal freedom.        The Commission considers that such an appeal appears to be an adequate and effective domestic remedy available in Czech law which must therefore be exhausted.        Thus, the Commission finds that, as the applicant has not complied with the requirements under Article 26 (Art. 26) of the Convention as to the exhaustion of domestic remedies, this complaint must be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.   2.    The applicant also complains that he did not have a fair trial before an independent and impartial tribunal within a reasonable time and invokes Article 6 para. 1 (Art. 6-1) of the Convention, the relevant part of which reads:        "In the determination ... of any criminal charge against him,      everyone is entitled to a fair trial ... within a reasonable      period of time by an independent and impartial tribunal ..."        While the Commission notes that Article 6 (Art. 6) of the Convention is applicable to the criminal proceedings against the applicant, it is not called upon to decide whether the facts alleged by the applicant disclose any appearance of a violation of that provision. First, the criminal proceedings are still pending and the application is therefore, as regards the impartiality and independence of the tribunals, premature.   It follows that in this regard the complaint is manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.        Secondly, as regards the length of the criminal proceedings, the applicant has failed to lodge a constitutional appeal with the Constitutional Court under Article 72 para. 1 of Law No. 182/1993 on the Constitutional Court of the Czech Republic (cf. mutatis mutandis No. 23548/94, Dec. 29.6.94, not published).   In this regard, the applicant has not therefore complied with the requirement as to the exhaustion of domestic remedies and this complaint must be rejected under Article 27 para. 3 (Art. 27-3) of the Convention.   3.    With reference to length of his detention on remand, the applicant also complains, inter alia, of a violation of his right to respect for his private and family life within the meaning of Article 8 (Art. 8) of the Convention.        However, the Commission has found above that, with regard to the length of his detention, the applicant has failed to exhaust domestic remedies.        For these reasons, the Commission, unanimously        DECLARES THE APPLICATION INADMISSIBLE.   Secretary to the Second Chamber        President of the Second Chamber          (K. ROGGE)                                (H. DANELIUS)