CEDH · CASELAW;COMMUNICATEDCASES;ENG — 12 juillet 2017

.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 12 July 2017   THIRD SECTION Application no. 45084/14 Branislav ADAMČO against Slovakia lodged on 11 June 2014 STATEMENT OF FACTS 1.     The applicant, Mr Branislav Adamčo, is a Slovak national who was born in 1978 and is detained in Leopoldov. The circumstances of the case 2.     The facts of the case, as submitted by the applicant, may be summarised as follows. 1.     The applicant’s trial and conviction 3.     In 2001 the applicant was charged and indicted to stand trial on the charge of being a co-perpetrator of a murder within the meaning of Articles   9 § 2 and 219 § 1 of the Criminal Code (Law no. 140/1961 Coll., as applicable at that time – “the CC”) on the suspicion that he had driven a hit man to and from the victim of an organised-crime-related contract killing. 4.     The indictment was examined in three rounds by the Banská Bystrica Regional Court as the trial court and by the Supreme Court as the court of appeal. 5.     The applicant was initially acquitted on 14 November 2003 and 21   June 2005, but both judgments were quashed – on 14 September 2004 and 11 July 2006 respectively – following appeals by the public prosecution service (“the prosecution service”). 6.     At a further hearing held before the trial court on 19 March 2007, a witness, M., confessed to having been the driver and identified the applicant as the hit man. This confession had been preceded by five other depositions in which he had denied having had anything to do with the affair and having any knowledge of it. 7.     Consequently, on 20 March 2007, the prosecution service modified the definition of the act for which the applicant stood indicted and reclassified the offence as aggravated murder. 8.     On 28 June 2007 the Regional Court found the applicant guilty of murder under Article 219 § 2 (h) of the Criminal Code (murder of a witness), having accepted that it had been motivated by retaliation for the evidence the victim had given in another organised-crime-related trial. Finding that statutory conditions for imposing an extraordinary penalty ( výnimočný trest ) above the ordinary penalty scale had been met, the Regional Court sentenced the applicant to twenty-four years’ imprisonment. 9.     Both the applicant and the prosecution service appealed ( odvolanie ), the applicant proclaiming his innocence and the prosecution service arguing that, in addition to having been committed against a witness, it should have been recognised that the applicant had committed the offence of murder repeatedly and that the murder in the present case had been committed by an organised group, within the meaning of Article 219 § 2 (c) and (h) of the CC. The appeals again fell to be examined by the Supreme Court, sitting as a court of appeal. 10.     On 29 May 2008 the Supreme Court invited the prosecution service to comment on the applicant’s appeal, which they did in a submission of 15   August 2008. 11.     On 11 November 2008 the Supreme Court determined the appeals, upholding the applicant’s conviction, but reducing his sentence to fifteen years’ imprisonment. It did so observing that the available evidence provided no basis for imposing an extraordinary penalty above the ordinary penalty scale, the fifteen-year prison term being its upper end. 12.     The Regional Court noted that, in his appeal, the applicant had argued that his conviction had been mainly based on the evidence from M. and that that evidence had been fallacious because M. had given it purely in order to buy impunity from the prosecution service in connection with another murder charge he was facing in a different trial. The Supreme Court dismissed the argument as unfounded observing that by changing his previous position in the present trial M. had merely incriminated himself, in addition to the applicant, but had obtained no advantage. 13.     On 1 February 2010 the applicant appealed on points of law ( dovolanie ), raising a number of objections. In so far as relevant, he contended, first, that there had been as many as seven disorderly modifications to the composition of the formations dealing with his case at the trial level and five at the appellate level. As some of them had not been explained, it was impossible to establish whether they had been in accordance with the applicable rules as to the form and justified as to the substance. In addition, the applicant complained that the submissions of the prosecution service of 15 August 2008 in reply to his appeal had not been communicated to him, and that neither they nor the Supreme Court’s request for those observations had even been included in the case-file, although – without mentioning them – the Supreme Court had drawn on them in is judgment. Moreover, as at the appellate stage, the applicant contested his conviction on the grounds that to a decisive degree it had been based on unreliable evidence from M. The appeal on points of law fell to be examined by the Supreme Court sitting as a cassation-instance court. 14.     As the applicant would learn later from the Supreme Court’s decision on his appeal on points of law, on 11 March 2010 the prosecution service filed observations in reply to it. 15.     On 6 May 2011 the applicant made a submission to the Supreme Court in support of his appeal on points of law, stating specifically that, inter alia , if any observations in reply to it had been filed, he had not received a copy of them. 16.     On 14 June 2011 the Supreme Court declared the applicant’s appeal on points of law inadmissible. It considered that his objections as to the composition of the formations dealing with his case were inadmissible because the applicant could have but had failed to raise them before the lower instances. Nevertheless, it held that “the chambers dealing with his case at the courts of lower instances [had been] set up in compliance with the applicable work schedules ( rozvrh práce ) and [had] proceeded in compliance with statutory rules”. Moreover, the Supreme Court observed that it was in accordance with the applicable rules to have the prosecution service asked for observations in reply to the applicant’s appeal. It dismissed as unfounded the applicants’ complaint that a copy of those observations had not been served on him, observing that it had been open to him and his lawyers at all times to inspect the case file and thereby to learn of any facts relevant for the examination of his case. The Supreme Court gave no specific answer to the applicant’s argument concerning the witness M. Nevertheless, it found that the lower courts had adequately established and properly assessed all the relevant facts and had sufficiently refuted the applicant’s defence. 2.     Final decision 17.     On 3 October 2011 the applicant lodged a complaint under Article   127 of the Constitution with the Constitutional Court. Relying on various components of his right to a fair trial under Article 6 of the Convention and their constitutional equivalents, he advanced the same complaints as those mentioned above in relation to his appeal on points of law. In addition, he contended that he had never received a copy of the observations by the prosecution service in reply to his appeal on points of law and had thereby been deprived of a possibility to respond. 18.     On 23 January 2014 the Constitutional Court declared the complaint inadmissible. As to its relevant part, it cited extensively from the contested decisions finding no constitutionally relevant unlawfulness, arbitrariness or irregularity in them. In particular, it noted that objections in relation to the composition of the formations involved in the applicant’s case fell within the jurisdiction of the ordinary courts and pointed out that, in the Supreme Court’s assessment, by not raising his objections in that respect before the lower courts, the applicant had prevented the Supreme Court from entertaining them. The Constitutional Court concluded that, accordingly, it was prevented from dealing with them also. As to the observations of the prosecution service in reply to the applicant’s appeal, the Constitutional Court noted that both the appeal of the applicant and that of the prosecution service had been examined by the Supreme Court at a public conference ( verejné zasadnutie ) in the course of which the applicant and his two lawyers had abundantly used the opportunity to submit any arguments and objections they deemed appropriate. As regards the observations of the prosecution service in reply to the applicant’s appeal on points of law, the Constitutional Court found that they contained no important elements of fact or law new in relation to those already known to the applicant and the reliance on which by the prosecution service he could have anticipated. Accordingly, the Constitutional Court concluded that, in terms of substance, the non ‑ communication of those observations to the applicant could not have caused any prejudice to his rights. As the court of cassation, the Constitutional Court gave no specific answer to the applicant’s argument about the credibility of the evidence from M. The Constitutional Court’s decision was served on the applicant on 21   March 2014 and it was not amenable to appeal. 3.     Witness M. 19.     Prior to the change of his testimony in the applicant’s trial (see paragraph 6 above), in October 2005 M. was charged with murder on a different victim and detained pending trial on that charge. Nevertheless, he was eventually cleared of that charge and released. 20.     On the basis of his confession in the course of the applicant’s trial, M. was also charged with murder as having been the applicant’s accomplice. In addition, as prior to his confession he had repeatedly submitted other versions of events, on 30 June 2009 he was charged with perjury. 21.     However, on 17 September 2009 he was cleared of the perjury charge. In addition, 10 May 2010 the prosecution service terminated his prosecution for murder under Article 215 § 3 of the Code of Criminal Procedure on the grounds that he had significantly contributed to the detection of a serious crime committed by an organised group and to the prosecution and conviction of its perpetrators and that the interests of the society in detecting that crime prevailed over its interest in prosecuting M. COMPLAINTS 22.     The applicant complains under Article 6 § 1 of the Convention that he was denied a hearing by a tribunal established by law as a result of frequent and muddled changes in the composition of the formations deciding on his case at the trial level (at least eight changes) and appellate level (at least five changes). 23.     The applicant also complains that, in violation to his rights protected under Article 6 §§ 1 and 3 (b) of the Convention, the submissions of the prosecution service of 15 August 2008 in reply to his appeal and those of 11   March 2010 in reply to his appeal on points of law were not communicated to him and that, as a result, he was deprived of a possibly to react. 24.     Lastly, the applicant contends that his trial was contrary to Article 6 § 1 of the Convention in that his conviction was to a decisive extent based on evidence from a witness who – as a co-accused in the same matter and having made arrangements with the prosecution service – had an obvious motivation to testify pursuant to those arrangements rather than to tell the truth. QUESTIONS TO THE PARTIES 1.     In the determination of the criminal charge against him, did the applicant have a hearing by a tribunal “established by law”, as required by Article 6 § 1 of the Convention?   2.     Did he have a fair hearing, in accordance with Article 6 § 1 of the Convention? In particular:   a)     Was the principle of adversarial proceedings respected as regards the fact that the observations of the public prosecution service of 15   August 2008 in reply to the applicant’s appeal and of 11 March 2010 on his appeal on points of law were not transmitted to him and his argument that, as a result, he had no possibility of reacting to them (see, for example, Zahirović v. Croatia , no. 58590/11, §§ 44-50, 25 April 2013)? In that connection, was the applicant afforded adequate time and facilities to prepare his defence, as required by Article 6 § 3 (b) of the Convention?   b)     Did the reliance by the courts convicting the applicant on evidence given by M. pose particular problems for the fairness of the proceedings? Was the applicant’s conviction based solely or to a decisive degree on that evidence? Was it corroborated by objective elements? Were there sufficient counterbalancing elements, including adequate procedural safeguards, permitting a fair and proper assessment of the reliability of that evidence?