Majaric v. Slovenia



AS TO THE ADMISSIBILITY OF

Application No. 28400/95

by Ljubo MAJARIC

against Slovenia

The European Commission of Human Rights (First Chamber) sitting

in private on 12 April 1996, the following members being present:

Mr. C.L. ROZAKIS, President

Mrs. J. LIDDY

MM. E. BUSUTTIL

A.S. GÖZÜBÜYÜK

A. WEITZEL

M.P. PELLONPÄÄ

B. MARXER

B. CONFORTI

N. BRATZA

I. BÉKÉS

E. KONSTANTINOV

G. RESS

A. PERENIC

C. BÎRSAN

Mrs. M.F. BUQUICCHIO, 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 13 December 1994

by Ljubo MAJARIC against Slovenia and registered on 1 September 1995

under file No. 28400/95;

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 applicant is a Slovenian national born in 1952. When he

introduced his application he was in detention in Nova Gorica.

The facts of the case, as they have been submitted by the

applicant, may be summarised as follows.

Particular circumstances of the case

On 6 December 1991 the applicant was charged with assault on a

minor and abduction (odvzem mladoletne osebe) under Article 103 para. 1

in conjunction with Article 96 paras. 2 and 3 of the Criminal Code.

On 14 December 1991 the judge at the Nova Gorica First Instance

Court (Temeljno sodisce) ordered the applicant's detention on remand

under Article 191 para. 2 sub-paras. 3 and 4 of the Code of Criminal

Procedure in view of the nature of the offence and danger of its

repetition.

On 10 January 1992 the First Instance Court ordered the

applicant's continued detention until 13 March 1992, considering the

reasons for the detention on remand were still valid.

On 12 March 1992 the Supreme Court prolonged the period of the

applicant's detention to 13 April 1992 in accordance with Article 191

para. 2 sub-para. 3 of the Code of Criminal Procedure. The Court

considered that the preliminary investigations had not been completed

and noted difficulties arising in the examination of witnesses.

On 25 March 1992 the Nova Gorica Prosecutor (Javni tozilec)

instituted criminal proceedings against the applicant for sexual

assault on a minor (spolni napad na osebo mlajso od 14 let), abduction

and maltreatment (zanemarjanje mladoletne osebe in surovo ravnanje) of

a minor, pursuant to Article 103 paras. 1, 2 and 4 and Articles 96

para. 2 and 94 para. 1 of the Criminal Code.

On 23 April 1992 the applicant applied to the First Instance

Court for release, challenging the grounds for justification of his

continued detention. The application was dismissed on 24 April 1992.

By decision dated 30 April 1992 of the First Instance Court, the

applicant was released.

On 16 June 1992 the judge at the First Instance Court ordered the

applicant's new detention on remand pursuant to Article 191 para. 2

sub-paras. 3 and 4 of the Code of Criminal Procedure.

In the meantime, on 5 June 1992, the applicant's trial opened

before the Nova Gorica First Instance Court but was adjourned the same

day.

On 28 August and 3 September 1992 the First Instance Court again

adjourned the applicant's trial. On 9 September 1992 the court ordered

the applicant's medical examination.

By decision dated 17 September 1992 of the First Instance Court,

the applicant was released from his second detention on remand.

COMPLAINTS

1 The applicant complains under Article 5 para. 1 of the Convention

that inadequate reasons were given for his detention.

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.

THE LAW

1 The applicant complains of the inadequacy of the reasons for his

detention on remand. He invokes Article 5 para. 1 (Art. 5-1) of the

Convention which, insofar as relevant, provides 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;"

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. The Commission recalls that the Convention

only governs, for each Contracting Party, facts subsequent to its entry

into force with respect to that Party. In the present case, the

applicant was released from his detention on remand on

17 September 1992, which was before 28 June 1994, the date of the entry

into force of the Convention with respect to the Republic of Slovenia.

It follows that this part of the application is outside the

competence ratione temporis of the Commission and therefore

incompatible with the provisions of the Convention within the meaning

of Article 27 para. 2 (Art. 27-2).

2 The applicant also complains that he did not have a fair trial

before an independent and impartial tribunal. He 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 hearing ... within a reasonable

time by an independent and impartial tribunal ..."

The Commission notes however that the criminal proceedings

against the applicant are still pending. The complaint, as regards the

impartiality and independence of the tribunals, is therefore premature.

It follows that in this respect the complaint is manifestly ill-founded

within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.

3 The applicant complains about the length of the criminal

proceedings. The Commission considers that it cannot, on the basis of

the applicant's submissions, determine the admissibility of this

complaint and that it is therefore necessary, in accordance with Rule

48 para. 2 (b) of the Rules of Procedure, to communicate this part of

the application to the respondent Government.

For these reasons, the Commission unanimously,

DECIDES TO ADJOURN its examination of the complaint concerning

the length of the applicant's criminal proceedings; and,

DECLARES INADMISSIBLE the remainder of the application.

Secretary to the First Chamber President of the First Chamber

(M.F. BUQUICCHIO) (C.L. ROZAKIS)