CEDH · CASELAW;COMMUNICATEDCASES;ENG — 13 septembre 2016

.s800EAC49 { font-size:12pt } .sFE10DC93 { margin-top:0pt; margin-bottom:0pt; text-align:center } .sBB9EE52A { font-family:Arial } .sA6BC7FA7 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:right } .s9793A85B { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt } .s5E1364CA { margin-top:0pt; margin-bottom:12pt; text-align:center; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s68C46B95 { margin-top:36pt; margin-bottom:12pt; text-align:center } .s3F59B822 { font-family:Arial; font-weight:bold; text-transform:uppercase } .sA8776625 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .s72C8F48C { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .sD3B63DAD { margin-top:36pt; margin-bottom:12pt; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s32563E28 { margin-top:0pt; margin-bottom:0pt }   Communicated on 13 September 2016   THIRD SECTION Application no. 14630/12 Peter DOMINKA against Slovakia lodged on 7 March 2012 STATEMENT OF FACTS 1.     The applicant, Mr Peter Dominka, is a Slovak national who was born in 1988 and is currently serving a term of imprisonment in Leopoldov. He is represented before the Court by Mr P. Gračík, a lawyer practising in Nitra. The circumstances of the case 2.     The facts of the case, as submitted by the applicant, may be summarised as follows. 1.     Background 3.     On the evening of 21 February 2009, while walking home together from the centre of the city of Nitra, two individuals, A. and B., were assaulted by C. and another person. The assailants pepper-sprayed A. and B. and unsuccessfully attempted to rob them. 4.     On 12, 13 and 15 June 2009 C. was questioned about the incident by the police, an investigator and a remand judge. In the latter two questionings he was assisted by a lawyer and in all three questionings he confessed and identified the applicant as his accomplice. Neither the applicant nor anybody else on his behalf was present during those questionings. 5.     In a further questioning, on 25 June 2009, C. changed his account of events and denied any involvement in the incident by him or the applicant. He submitted that when he had been taken to the police station on 12 June 2009 he had been under the influence of drugs. Police officers had presented him with an account of the incident of 21 February 2009 that included his participation and had pressed him into a confession. In response, he had simply agreed to their version of events. The questioning of 25 June 2009 took place in the presence of C.’s lawyer and a lawyer for the applicant, who had been charged in connection with the attack in the meantime (see below). 2.     Charges against the applicant and trial 6.     On 12 June 2009 the applicant was charged with robbery in connection with the incident of 21 February 2009 and with another unrelated offence. However, the document containing the charges was not served on him until 22 June 2009. 7.     On 25 August 2009 the applicant was indicted to stand trial on the charges along with C., who faced a charge of robbery in the same proceedings. 8.     On 11 May 2010 the Nitra District Court found the applicant and C. guilty and imposed prison sentences on them. The applicant was jailed for ten years and four months. The court observed that the applicant had at all times denied any involvement in the robbery, while C. had denied his involvement from 25   June 2009 onwards. As for C., in particular, the court noted that he had maintained his allegations of police coercion into making his initial confession, that he had been intoxicated at the time, and that he had confirmed that confession as he had been concerned about changing his original statement. However, his participation in the robbery had been proven not only by his depositions of 12, 13 and 15 June 2009, but also by B., who had recognised him, and by another witness, D., who had testified that while consuming drugs C. had confessed to him that he had committed the robbery with the applicant. Moreover, the court found it established by the evidence of an expert that C. was a consumer of psychotropic substances, which did not, however diminish his criminal liability. As regards the applicant, the District Court noted that neither A. nor B. had identified him. However, he had been incriminated by the early depositions of C. and by D., as mentioned above. In addition, in so far as the applicant had claimed that at the relevant time he had been repairing cars with his friends, the District Court found that the evidence they had given did not show unequivocally that he had been with them. 9.     The applicant challenged the judgment of 11 May 2010 by way of an appeal to the Nitra Regional Court. He argued that his conviction had been based on C.’s initial depositions, that those statements were unlawful as evidence and that his conviction had accordingly been arbitrary. However, the District Court had completely ignored his arguments on that point. In particular, the applicant referred to a position taken by the criminal ‑ law bench of the Supreme Court (no. Tpj 63/2009 of 7 December 2009) that if witness evidence was the only or decisive incriminating evidence, the witness had to be heard or, as the case may be, re-heard after the accused had been charged in order to safeguard the accused’s rights of defence and to adversarial proceedings. He argued that, although formally speaking C. was his co-accused and not a witness, mutatis mutandis the precedent fully applied to his case. Accordingly, C’s initial depositions had not been admissible as evidence and the only admissible submissions he had made about the applicant had been those of 25 June 2009 and afterwards. Moreover, the applicant objected that the District Court’s conclusions about his defence had actually placed the burden to prove his innocence on him, which was contrary to the principle in dubio pro reo . 10.     The prosecution also appealed, alleging that the first-instance court had erred in the determination of the applicant’s sentence. 11.     On 31 August 2010 the Regional Court decided on the appeals by increasing the applicant’s sentence to eleven years and seven months. It considered that C.’s early depositions had not been the only evidence against the applicant, that he had also been incriminated by D. and by the fact that the general description of the incident by A. and B. had corresponded to that in the early depositions of C. As to the applicant’s witnesses, it held that their testimony “could not be seen as unequivocally proving that the applicant was in their home [at the time of the incident]”. 12.     An appeal by the applicant on points of law and a constitutional complaint raising similar arguments as above were dismissed on 29 June and 29 September 2011. In their respective decisions, the Supreme Court and the Constitutional Court referred to the reasoning behind the lower courts’ decisions, considered that the applicant had merely disagreed with their assessment of the evidence, and found no unlawfulness or arbitrariness in the decisions. COMPLAINT 13.     The applicant complains that his conviction on the basis of C.’s initial depositions was contrary to his right to defence. In that respect, he alleges a violation of his rights under Article 6 § 1 and, in substance, Article 6 §   3   (d) of the Convention.   QUESTIONS TO THE PARTIES Did the applicant have a fair hearing in the determination of the criminal charge of robbery against him?   In particular, have the requirements of a fair trial within the meaning of Article 6 §§ 1 and 3 (d) of the Convention been satisfied as regards the admission into evidence of the incriminating statements made by the applicant’s co-accused to the police which were then retracted at a later stages of the proceedings, (see, for instance, Erkapić v. Croatia , no.   51198/08, § 88, 25 April 2013; see also Lucà v. Italy , no. 33354/96, §§   40 and 44, ECHR 2001-II)?