EHRM, 19-06-2007, nr. 64054/00, nr. 64071/00

Between 19 November 1993 and 29 January 1996 the second applicant was the representative of the company ILaS Vranov, s.r.o. and he was entitled to act on the company's behalf in that capacity. On 30 January 1996 he was replaced by the first applicant who carried out that function until 2 September 1997. Prior to that, on 14 August 1995, the second applicant had authorised the first applicant, then director of company ILaS Vranov, s.r.o., to act on the company's behalf. From 3 September 1997 to 13 September 1998 Mr I. succeeded the first applicant as the above company's representative.

On 16 December 1998 Mr T., a police investigator of the Regional Office of Investigation in Prešov, accused Mr I. of unauthorised trading in foreign currency. I. was accused of having authorised, as a co-owner of the company ILaS Vranov, a sale of bills of exchange in Austria without the approval of the central bank. The transaction had been carried out in 1994. The investigation file had the number KÚV-80/20-98.

On 2 July 1999 investigator T. accused Mr I. of a different offence in the context of proceedings KÚV-80/20-98. I. was accused of fraud and money laundering on the ground that he had unlawfully obtained and used a sum of money while acting as the representative of companies Classinvest Slovakia o.c.p., a.s. and C.S.I. Slovenka Vranov, a.s. According to the accusation, I. had issued bills of exchange which had been uncovered and void. The transaction had allegedly been made in Vienna in 1997 and it had involved the same person as the above transaction of 1994.

The police investigator summoned the first applicant to an interview as a witness in the case against I. The first applicant appeared before the investigator and indicated that he wished to avail himself of the right under Article 100 § 2 of the Code of Criminal Procedure to remain silent with a view to avoiding any criminal proceedings against him. This fact is recorded in the minutes of the first applicant's interview of 5 October 1999.

On 23 November 1999 investigator T. issued a decision, under Article 66 § 1 of the Code of Criminal Procedure, in which he imposed a procedural fine of SKK 20,0001. on the first applicant. The decision stated that the applicant had refused, on 5 October 1999, to make a witness statement in the criminal case against I. concerning fraud. The decision also stated that the applicant had relied on Article 100 § 2 of the Code of Criminal Procedure and that the investigator had concluded, after having considered the position in the case, that the applicant's statement as a witness could not result in the initiation of criminal proceedings against him. The decision had the number KÚV-80/OVEK-98.

The second applicant, like the first applicant, was summoned to an interview by investigator T. in the context of criminal proceedings brought against Mr I. On 18 November 1999, prior to interviewing the second applicant, the investigator informed him that he could remain silent, pursuant to Article 100 § 2 of the Code of Criminal Procedure, if his statement could result in his or his close relatives' prosecution for a criminal offence. The second applicant used that right. According to the minutes, he had stated that he would not mention the reasons for his decision to remain silent.

In a decision of 23 November 1999 the investigator imposed a procedural fine of SKK 20,000 on the second applicant under Article 66 § 1 of the Code of Criminal Procedure. The decision stated that the applicant had refused, without justification, to make a witness statement in a criminal case and that he had been warned that he could be fined therefor. According to the decision, the applicant had not indicated any reason for his refusal and the investigator concluded, after having considered the evidence in the case, that his witness statement had not been susceptible of resulting in his prosecution.

On 22 February 2000 the police investigator accused the first applicant of conspiracy to defraud on the ground that he had been involved in the fraudulent elaboration of a contract with a view to obtaining a considerable sum of money from the State. The decision had the file number KÚV-4/OVEK-2000.

On 1 August 2000 investigator T. issued two decisions under investigation file number KÚV-83/20-98 accusing several persons of criminal offences.

In the first decision Mr I., the two applicants and five other persons were accused of conspiracy to defraud. The case concerned the transfer of securities of the joint stock company Transpetrol, a.s. The alleged offence had been committed in 1998. A public prosecutor at the Regional Prosecutor's Office in Prešov quashed the investigator's decision on 7 August 2000. No further criminal proceedings have been brought against the second applicant subsequently.

In the second decision dated 1 August 2000 investigator T. accused the first applicant, together with Mr I. and another person, of preparatory acts relating to money laundering. It was imputed to the first applicant that, as representative of the company Brilant, a.s., he had participated in the fraudulent elaboration of a contract in 1996, and that he had transferred securities of the company Transpetrol, a.s. to his company.

On 2 August 2000 the police investigator joined to a single set of proceedings the above cases against Mr I. and, inter alios, the first applicant registered under file numbers KÚV-80/20-98, KÚV-83/20-98 and KÚV-4/OVEK-2000. On 2 July 2001 the investigator discontinued the proceedings against Mr I. (file number KÚV-80/20-98) brought on 16 December 1998 as no offence had been committed.

On 10 December 2001 the public prosecutor indicted the first applicant, Mr I. and six other persons before the Regional Court in Prešov in the context of transfer of securities of Transpetrol, a.s. The first applicant was charged with two offences.

Firstly, the applicant was accused of fraud, together with Mr I. and two other persons, on the ground that they had fraudulently elaborated a pre-dated contract, in 1996, after a tax authority had issued a warrant with a view to securing a possible debt of company ILaS Vranov, s.r.o. As the warrant had prevented the company ILaS Vranov, s.r.o. from complying with its obligations under the above contract, the State had later been ordered to pay SKK 43,265,591 as compensation for the fine foreseen under that contract. The State's alleged debt had subsequently been enforced by means of a transfer of securities of the company Transpetrol, a.s. The public prosecutor concluded that, as a result, the Ministry of Economy had suffered a financial loss totalling SKK 2,184,00 million.

Secondly, the first applicant was accused of having engaged in preparatory acts relating to money laundering in that he had acquired, as representative of the company Brilant, a.s., 98 shares in the company Transpetrol a.s. which had been obtained by means of the above transasction and that he had intended to sell those securities abroad through his co-accused Mr I.

On 3 August 2004 the Regional Court in Žilina returned the case to the public prosecutor for further investigation.

On 25 May 2006 the Supreme Court quashed the Regional Court's decision of 3 August 2004 and ordered the first-instance court to proceed with the case. In its decision the Supreme Court referred to the fact that the second applicant had refused to make statements as a witness at interviews on 11 February 2000, 10 May 2000 and 20 March 2001 with reference to Article 100 § 2 of the Code of Criminal Procedure. Further questioning of the second applicant would in such situation amount to undue pressure with a view to forcing him to make a statement which he had refused to make in accordance with the relevant provisions of the Code of Criminal Procedure. The Supreme Court concluded that any evidence obtained in those circumstances could not be used in subsequent proceedings.

The criminal proceedings are pending.

Article 47 § 1 reads as follows:

Under Article 66 § 1, a person who, despite previous warnings, disturbs proceedings or behaves in an offensive manner in relation to a court, a public prosecutor, an investigator or a police authority or, without sufficient excuse, does not obey an order or does not comply with an instruction addressed to him or her under the Code of Criminal Procedure, can be punished with a procedural fine of up to SKK 50,000.

Pursuant to Article 97, everybody is obliged to appear before a prosecuting authority upon summons and to make a statement as a witness about facts which he or she knows about an offence, its perpetrator or issues which are considered important for the purpose of criminal proceedings.

Article 100 § 2 reads as follows:

The domestic authorities have held that a person who wishes to remain silent pursuant to Article 100 § 2 of the Code of Criminal Procedure must state the reason for his or her refusal to make a statement. The decision whether or not such a person's recourse to Article 100 § 2 is justified lies with the authority by whom the witness is to be heard. Where the authority concerned does not accept the reasons invoked, the witness is obliged to make a statement.

Where the refusal of a witness to make a statement is justified, an investigator cannot circumvent the witness's right to remain silent by inquiring into the reasons for such a refusal and facts related to the subject-matter of the envisaged interrogation, and by mentioning those facts subsequently in the minutes of the interrogation. The information contained in such an unlawfully obtained statement cannot be used as evidence in criminal proceedings.

The Court recalls that, although not specifically mentioned in Article 6 of the Convention, the right to silence and the right not to incriminate oneself are generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6. Their rationale lies, inter alia, in the protection of the accused against improper compulsion by the authorities thereby contributing to the avoidance of miscarriages of justice and to the fulfilment of the aims of Article 6. The right not to incriminate oneself is primarily concerned with respecting the will of an accused person to remain silent. It presupposes that the prosecution in a criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused.

The Court's task has been to examine, in the light of all the circumstances of the case, whether the prosecution made use of the applicant's silence in such a way as to amount to an unjustifiable infringement of the right. In particular, it must be determined whether the applicant has been subject to compulsion to give evidence and whether the use made of the resulting testimony (or his silence, as the case may be) at his or her trial offended the basic principles of a fair procedure inherent in Article 6 § 1 of which the right not to incriminate oneself is a constituent element (for recapitulation of the relevant principles see, for example, Saunders v. the United Kingdom, judgment of 17 December 1996, Reports of Judgments and Decisions 1996-VI, §§ 68–69 and Condron v. the United Kingdom, no. 35718/97, § 56, ECHR 2000-V, both with further references).

In the decision on the admissibility of the present applications the Court concluded that the guarantees of Article 6 § 1 do not extend to the proceedings leading to the above imposition of fines on the applicants. It declared admissible the complaint concerning the privilege against self-incrimination. The sole issue to be determined in the present case is therefore whether the fact of the applicants' refusal to make a statement in respect of the proceedings against Mr I. had a bearing on the fairness of the applicants' trial.

The applicants were summoned to an interview as witnesses in the context of criminal proceedings against Mr I. registered under file number KÚV-80/20-98. Those proceedings concerned financial transactions in which I. had engaged in 1994 and 1997. There is no indication that the investigator anticipated the bringing of criminal proceedings against the applicants on the basis of the facts which underlay those transactions when he had summoned the applicants as witnesses. No criminal charges have been filed against them in that context subsequently.

The accusations which were later actually filed against the applicants concerned different facts, namely the alleged fraud and attempted money laundering in the context of transfer of securities of the company Transpetrol, a.s. The fact that, at a certain stage, the investigator joined the proceedings KÚV-80/20-98 in which the applicants had refused to make statements as witnesses and the proceedings KÚV-83/20-98 in which the first applicant was accused together with I. and several other persons of an offence unrelated to the offences investigated in proceedings KÚV-80/20-98 cannot affect the position.

The Court notes that the charges laid against the second applicant were dropped (see paragraph 17 above). Although this is not decisive, the Court has also noted that the domestic authorities differentiated between the situations in which the second applicant had availed himself of his right under Article 100 § 2 of the Code of Criminal Procedure. In particular, the Supreme Court's decision of 25 May 2006 indicates that the second applicant had refused to make statements as a witness at interviews on 11 February 2000, 10 May 2000 and 20 March 2001 in the context of criminal proceedings related to the transfer of securities of the company Transpetrol, a.s. (see paragraph 24 above). There is no indication that any compulsory measures were taken in respect of the second applicant in that context.

The Court's inquiry in the present case is therefore limited to the first applicant's trial. There is nothing to suggest that in the criminal proceedings pending against the first applicant the prosecuting authorities used the fact that he had refused to make a witness statement, in the course of the investigation into alleged offences committed by Mr I. in 1994 and 1997, in a manner which sought to incriminate the first applicant. Should such situation occur in the subsequent course of the criminal proceedings in issue, it will be open to the first applicant to seek redress before the competent domestic authorities and, ultimately, before the Court.

Thus it has not been established that the refusal of the first applicant to make a statement in respect of the proceedings against Mr. I. had any bearing on the fairness of his own trial.

In the applicants' case there has therefore been no violation of Article 6 § 1 of the Convention.