CEDH · CASELAW;DECISIONS;ADMISSIBILITYCOM;ENG — 16 avril 2024

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .s2EF17D91 { margin-top:0pt; margin-bottom:0pt; text-align:center; font-size:2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s339D85E6 { margin-top:0pt; margin-bottom:14pt; text-align:center; page-break-inside:avoid; page-break-after:avoid } .s5FFF0A77 { margin-top:0pt; margin-bottom:0pt; font-size:1pt } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .sB9D5CABB { width:28.35pt; display:inline-block } .sA36B60A1 { font-family:Arial; font-style:italic } .s3AAE10DF { margin-top:14pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s3CA22BA { font-family:Arial; text-transform:uppercase } .s2D9C6089 { margin-top:12pt; margin-bottom:12pt; text-indent:14.2pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s84651E4E { margin-top:14pt; margin-left:14.2pt; margin-bottom:3pt; text-align:justify } .s69DCC830 { margin-top:36pt; margin-bottom:0pt } .sC986E16F { font-family:Arial; color:#ffffff } .s68D1564D { width:34.89pt; display:inline-block } .sC6B6F7B3 { width:150.43pt; display:inline-block } .s100D1E5 { width:50.22pt; display:inline-block } .s2CF788F1 { width:132.09pt; display:inline-block }     FIRST SECTION DECISION Application no. 35015/20 Gejza FERENC against Slovakia   The European Court of Human Rights (First Section), sitting on 16   April   2024 as a Committee composed of:   Péter Paczolay , President ,   Alena Poláčková,   Gilberto Felici , judges , and Liv Tigerstedt, Deputy Section Registrar, Having regard to: the application (no.   35015/20) against the Slovak Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 6 August 2020 by a Slovak national, Mr Gejza Ferenc (“the applicant”), who was born in 1973, is detained in Ilava and was represented by Mr M. Mašan, a lawyer practising in Velky Slavkov; the decision to give notice of the complaints under Article 6 § 1 of the Convention concerning the applicant’s right to remain silent and not to incriminate himself, his right of access to a lawyer from the first questioning and to have adequate time for the preparation of his defence to the Slovak Government (“the Government”), represented by their Agent, Ms   B.   Bálintová of the Ministry of Justice, and to declare inadmissible the remainder of the application; the parties’ observations; Having deliberated, decides as follows: SUBJECT MATTER OF THE CASE 1.     The case concerns alleged violations of Article 6 § 1 of the Convention in criminal proceedings against the applicant. 2.     In 2014 the police investigated a suspected offence of aggravated fraud, which the applicant’s brother and a certain P.G. were alleged to have committed by having extorted money from several victims to finance fictitious business transactions. 3.     In connection with the investigation, the interception of telephone calls was ordered to and from the telephone numbers used by P.G., the applicant’s brother and one of four victims. The purpose of the interception was to identify the telephone number used by the person acting under the name of a certain R.B. 4.     On 15 April and 30 June 2015 the applicant was questioned in relation to the criminal case brought against his brother and P.G. He was questioned as a witness and, as such, was notified of his obligation to testify truthfully and his right not to incriminate himself. The applicant was not accompanied by a lawyer during the interviews. 5 .     Having been asked to explain why, according to his brother, he had acted as R.B. in telephone communications with the victims, he denied that he would have done so, not making any self-incriminatory statement. 6.     At the end of the applicant’s second questioning, the investigator asked him whether he would be willing to read out a text to be recorded on camera to provide a voice sample. The applicant read the text, and upon the investigator’s invitation, he read it again. 7 .     Subsequently, the voice identification analysis was carried out. All four victims identified the applicant’s voice as that of R.B., who had been in telephone contact with them. 8.     On 28 August 2015 the applicant was charged with an offence of aggravated fraud, which he had allegedly committed in complicity with his brother and P.G. 9.     On 20 September 2015 he appeared before a pre-trial judge in the presence of his defence counsel. He had no explanation for the victims’ identification of his voice as being the voice of R.B. Being asked why he had provided his voice sample, he replied “why not, since I am innocent”. 10.     On 24 March 2016 the applicant was indicted, along with his brother and P.G. 11.     The main hearing took place before the District Court on 31   May, 14   June and 8 November 2017. 12.     On 25 October 2017 the applicant’s defence counsel requested the court to postpone the hearing scheduled for 8 November 2017 due to his holiday abroad. On the same day, the court did not grant his request and appointed substitute defence counsel to represent the applicant. 13.     On 27 October 2017 the applicant’s defence counsel again requested to postpone the hearing, this time due to a concurrent court hearing in another case. The court did not grant the request, the applicant having already been appointed substitute counsel. 14.     On 2 November 2017 the substitute defence counsel consulted the case file, and on 6 November 2017 he unsuccessfully requested to postpone the hearing because the applicant insisted on being represented by his original defence counsel. 15.     On 8 November 2017 the District Court convicted the applicant as charged and sentenced him to fifteen years’ imprisonment. The court held that all the evidence relating to the applicant had been taken lawfully, his defence counsel having been present in all procedural acts undertaken in the preparatory proceedings. The applicant’s guilt was based on the testimony of P.G., the interception of the telephone communications, the witness statements from the preparatory proceedings, and on the voice analysis and opinion of an expert, who had identified the applicant’s voice with a high degree of probability as the voice of R.B. 16.     On 13 March 2018 the Žilina Regional Court reduced the applicant’s prison sentence to twelve years. It held, in particular, that the results of the voice analysis constituted the basis for the applicant’s prosecution, as it had not been possible, until that moment, to reach a sufficiently substantiated conclusion that he had been involved in the criminal activity in question. The court, having thoroughly examined the applicant’s objections to the lawfulness of the voice sampling and voice identification analysis, found that both procedural acts had been performed lawfully. Moreover, the recording of the telecommunication traffic between the persons involved, aimed to identify the telephone number used by the person acting as R.B., had been lawfully obtained. The Regional Court finally considered that the District Court had not erred in having appointed substitute counsel to the applicant. 17.     On 9 January 2019 the Supreme Court rejected the applicant’s appeal on points of law. 18.     On 17 December 2019 the Constitutional Court dismissed the applicant’s constitutional complaint as manifestly ill-founded, holding that the Regional Court had addressed the applicant’s objections, especially regarding the use of his voice sample as the evidence against him and the alleged interference with his defence rights. In particular, the court admitted that the applicant had not been legally represented when the voice sample had been taken. However, the applicant had not been accused at that time and had produced the voice sample voluntarily, which he had later confirmed before the pre-trial judge. The Constitutional Court further held that the substitute defence counsel had been given sufficient time for the preparation of the case. 19.     The applicant complained under Article 6 § 1 of the Convention that his right to a fair trial had been violated. In particular, his voice sample had unlawfully been taken and used as evidence against him, he had not had access to a lawyer from his first questioning, and the substitute defence counsel had not had sufficient time to prepare his defence. THE COURT’S ASSESSMENT 20.     The Government submitted that as the applicant was questioned as a witness, the legal representation was not required. In any event, he had been represented by defence counsel throughout the criminal proceedings, including by a substitute defence counsel who had been appointed due to the circumstantial procedural situation. 21.     The Government further submitted that the applicant had provided his voice sample voluntarily as he had later confirmed before the pre-trial judge. In any event, the investigator could have obtained it from an audio recording without his consent. They also argued that the voice samples could be regarded as akin to blood, hair or other physical or objective specimens used in forensic analysis and to which privilege against self-incrimination does not apply, referring to P.G. and J.H. v.   the United Kingdom (no. 44787/98, § 80, 25   September 2001). 22.     The applicant maintained his claims. 23.     The general principles with regard to access to a lawyer, the right to remain silent, the privilege against self-incrimination and the relationship of those rights to the overall fairness of the proceedings under the criminal limb of Article 6 of the Convention can be found in Beuze v. Belgium ([GC], no.   71409/10, §§ 119‑50, 9 November 2018). 24.     When addressing the issue whether the applicant should have had access to a lawyer during his questioning before he was formally charged, the Court recalls that a person acquires the status of a suspect, calling for the application of the Article 6 safeguards, not when it is formally assigned to him or her, but when the domestic authorities have plausible reasons for suspecting that person’s involvement in a criminal offence. The suspect may therefore enjoy the privileges under Article 6 of the Convention even if he or she is formally interrogated in a position of a witness (see Wanner v. Germany (dec.), no. 26892/12, § 26, 23 October 2018, with further references). 25.     In the present case, the Court observes that at the time of his two questionings in April and June 2015, the applicant was not formally arrested or interrogated in police custody. In particular, being subject to the questioning related to the criminal case brought against his brother and P.G., the applicant, after having been notified of his rights as a witness, was asked questions on the facts which could be relevant for the criminal case including questions in relation to his brother’s allegations that the applicant had acted as R.B. in telephone communications with the victims. 26. The Court acknowledges that, at the time of the applicant’s first questioning, there appears to have been no indication that the police had any evidence, other than the allegations made by the applicant’s brother, to incriminate the applicant to such extent that he should have been treated as an accused. 27.     Being summoned again in June 2015, the applicant was questioned further and, at the end of his questioning, he was asked to provide a sample of his voice. The recorded voice was subsequently identified as the voice of the person who had communicated with the victims. At trial, the comparative analysis of the voice and the relevant expert report were then central to the applicant’s conviction. These elements are sufficient for the Court to conclude that the applicant was at that time affected by actions taken by the authorities as a result of a suspicion against him, and that, therefore, a   “criminal charge” against him existed for the purposes of Article 6 of the Convention, which justified granting him the protection of the criminal limb of that provision, including the benefit of assistance by a lawyer (see Brusco v. France , no. 1466/07, §§ 49-50, 14 October 2010). 28.     At the same time, the Court observes that during his interrogation in June 2015, the applicant denied any involvement in the criminal activities that were the subject of the police investigation and did not make any statement that would incriminate him in these criminal activities. 29.     The Court further recalls that, as commonly understood in the legal systems of the Contracting Parties to the Convention and elsewhere, the privilege against self-incrimination, as interpreted in its well-established case-law (see Ibrahim and Others v. the United Kingdom [GC], no.   50541/08   and 3 others, §§ 266-69, 13 September 2016), does not extend to the use in criminal proceedings of material which may be obtained from the accused through the use of compulsory powers but which has an existence independent of the will of the suspect, such as, inter alia , documents acquired pursuant to a warrant, breath, blood, urine, hair or voice samples, and bodily tissue for the purpose of DNA testing (see El Khalloufi v. the Netherlands (dec.), no. 37164/17, §   38, 26 November 2019, with further references). 30.     The Court considers that the present case is like those cited in the preceding paragraph: the applicant provided a sample of his voice, to which the right not to incriminate oneself does not extend. 31.     The Court further observes that the applicant had provided his voice sample freely, and not as a result of any coercion or compulsion applied to him by the State authorities, what he later confirmed before the pre-trial judge in the presence of his defence counsel. The Court adds that, in accordance with the domestic legislation, a voice sample may also be taken from an audio recording of his questioning, independently of his will. 32.     The Court notes that while the result of the voice comparative analysis and the relevant expert opinion were central to the applicant’s conviction, they were not the sole evidence against the applicant. The District Court based the applicant’s guilt also on the testimony of P.G., the recording of the telephone communications and the witness statements from the preparatory proceedings. Moreover, the lawfulness and accuracy of the voice sampling and of the comparative voice analysis was thoroughly assessed by the domestic courts. 33.     Finally, in respect of the applicant’s complaint that the substitute defence counsel had not had sufficient time to prepare his defence, the Court refers to the Government’s observations, undisputed by the applicant, that he had been legally represented throughout the criminal proceedings. Admittedly, the substitute defence counsel, having been appointed on 25   October 2017, had only nine working days to prepare his pleadings for the hearing held on 8   November 2017. The Court notes, however, that this time frame complied with the requirements of the domestic legislation and that the substitute defence counsel, who had not complained of having insufficient time for his preparation, could consult the applicant’s original defence counsel. 34.     In view of all these considerations, the applicant failed to demonstrate that his defence rights were restricted to such an extent as to prejudice the overall fairness of the criminal proceedings against him. It follows that the application is manifestly ill-founded and must be rejected in accordance with Article   35 §§ 3 (a) and   4 of the Convention. For these reasons, the Court, unanimously, Declares the application inadmissible. Done in English and notified in writing on 23 May 2024.     Liv Tigerstedt   Péter Paczolay   Deputy Registrar   President