Ivan MARICAK v Slovakia - 26621/10 [2011] ECHR 1028 (7 June 2011)

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The European Court of Human Rights (Third Section), sitting on 7 June 2011 as a Chamber composed of:

Josep Casadevall, President,
Corneliu Bîrsan,
Alvina Gyulumyan,
Ján Šikuta,
Luis López Guerra,
Nona Tsotsoria,
Mihai Poalelungi, judges,
and Marialena Tsirli, Deputy Section Registrar,
Having regard to the above application lodged on 26 April 2010,

The applicant, Mr Ivan Maričák, is a Slovak national who was born in 1978. He is serving a prison term in Leopoldov Prison.

The facts of the case, as submitted by the applicant, may be summarised as follows.

On 16 July 2007 the Nové Mesto nad Váhom District Court convicted the applicant of the crime of robbery under Article 188 § 1 of the Criminal Code, together with the lesser crime of disorderly conduct. The court established that, on 2 December 2008, the applicant had grabbed a man from behind, had pressed his hand against the victim’s eyes and face, threatened him with injury and pulled a purse from the pocket of his trousers which contained some 189 euros. The victim had suffered haematomas on the eyelids and the mobility of his neck had been restricted. He had undergone a single medical examination; his capacity to work had remained unaffected.

The court further noted that the applicant had been convicted of robbery and sentenced to prison terms on that ground in 1999 and 2002. It therefore sentenced him to twenty-five years’ imprisonment, with reference to Article 47 § 2 of the Criminal Code.

The judgment stated that when imposing the sentence the court had been bound by the three-strike rule laid down in Article 47 § 2 of the Criminal Code. It considered that a strict application of that provision would have been particularly severe in the circumstances of the applicant’s case. With reference to Article 39 § 1 of the Criminal Code, it therefore considered it appropriate not to impose a life sentence on the applicant.

The applicant appealed. He alleged that the first-instance court had committed errors of fact and law and had imposed a disproportionately harsh punishment on him. He expressed the view that an expert should be heard on the facts of the case.

On 12 November 2009 the Trenčín Regional Court dismissed the applicant’s appeal. It held that the first-instance court had correctly established and assessed the relevant facts and did not consider it necessary to take further evidence.

On 17 December 2009 the applicant filed a constitutional complaint. Relying on Articles 5 § 1 and 6 § 1 of the Convention, he alleged that his right to a court established by law had been breached. In his view, the Trenčín District Court should have dealt with his case at first instance as the three-strike rule had been applied.

The applicant also requested that the enforcement of the sentence imposed should be suspended as the Constitutional Court, in a different set of proceedings (file PL. ÚS. 06/09), had declared admissible a petition challenging the conformity with the Constitution of Article 47 § 2 of the Criminal Code.

The Constitutional Court dismissed the applicant’s complaint on 9 February 2010 on the ground that he had not raised his argument about jurisdiction in the case in his appeal against the first-instance judgment. In any event, that complaint was manifestly ill-founded.

As to the three-strike rule laid down in Article 47 § 2 of the Criminal Code, it was to be presumed that it was in conformity with the Constitution until a different finding was made by the Constitutional Court.

1. The 2005 Criminal Code (Act no. 300/2005, enacted with effect from 1 January 2006)

Article 39 § 1 provides for the exceptional reduction of a sentence to below the minimum threshold. This is possible where, in view of the circumstances and the character of the perpetrator, the court considers that imposing the sentence provided for by law would be disproportionately harsh and where a reduced sentence suffices for the protection of society.

“1. A court can impose a life prison term for offences indicated in the special part of this Code provided that:

(a) the effective protection of society requires the imposition of such penalty, and

(b) it cannot be expected that a reforming effect will be achieved by imposing a twenty-five year prison term on the offender.”

2. Where a court convicts an offender of having committed an offence of ... robbery pursuant to Article 188 ... and where such an offender has twice been punished by a prison term for ... offences [listed in this paragraph], including in the case of attempted offences, the court shall impose a life prison term on such a person even if the conditions set out in paragraph 1 of this Article are not met. Such an offender can be sentenced to twenty-five years’ imprisonment only where the conditions laid down in Article 39 §§ 1 or 2 are met.”

Pursuant to Article 67 § 1, a person convicted of a particularly serious offence may be released on parole only after he or she has served three quarters of the prison term imposed.

Pursuant to paragraph 2 of Article 67, a person who was sentenced to life imprisonment may be released on parole after having served at least twenty-five years of imprisonment.

Paragraph 3 of Article 67, as in force at the relevant time, prohibited the release on parole of a person on whom a life prison term was imposed either repeatedly or pursuant to Article 47 § 2 of the Criminal Code.

Pursuant to Article 188 § 1, a person who uses force or threatens to use force with the intention of taking possession of another person’s property is to be punished by a prison term of three to eight years.

On 3 November 2008 the Pezinok District Court initiated proceedings before the Constitutional Court in which it challenged, Articles 47 § 2 and 67 § 3 of the Criminal Code as being contrary to Article 3 of the Convention and its constitutional equivalent. The petition was filed in the context of criminal proceedings in which the accused, if convicted, would have to be sentenced to life imprisonment without any prospect of release on parole. On 27 May 2009 the Constitutional Court declared the petition admissible. The proceedings are pending.

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The Court reiterates that matters of appropriate sentencing largely fall outside the scope of Convention, it not being its role to decide, for example, what is the appropriate term of detention applicable to a particular offence (see Sawoniuk v. the United Kingdom (dec.), no. 63716/00, 29 May 2001).

Ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim. The Court has consistently stressed that the suffering and humiliation involved must in any event go beyond that inevitable element of suffering or humiliation connected with a given form of legitimate treatment or punishment. Measures depriving a person of his liberty may often involve such an element. In accordance with Article 3 of the Convention the State must ensure that a person is detained under conditions which are compatible with respect for his human dignity and that the manner and method of the execution of the measure do not subject him to distress or hardship exceeding the unavoidable level of suffering inherent in detention.

Imposing a life sentence on an adult offender is not, in itself, prohibited by Article 3 or any other provision of the Convention or incompatible therewith. The Court has nevertheless found that imposing an irreducible life sentence on an adult, depriving him of any hope of release, might raise an issue under Article 3 (see Kafkaris v. Cyprus [GC], no. 21906/04, §§ 95-97, ECHR 2008 ...; or Iorgov v. Bulgaria (no. 2), no. 36295/02, § 49, 2 September 2010, with further references).

In the present case the applicant alleges a breach of Article 3 on the ground that the sentence imposed on him has been disproportionately severe.

The Court notes that the criminal courts dealing with the applicant’s case were bound by the three-strike rule laid down in Article 47 § 2 of the Criminal Code. However, as they considered that a strict application of that provision and imposition of a life prison term on the applicant would have been particularly severe in the circumstances, they sentenced him to twenty-five years’ imprisonment with reference to Article 39 § 1 of the Criminal Code.

To the extent that the applicant relied on the fact that compatibility with Article 3 of the Convention of Articles 47 § 2 and 67 § 3 of the Criminal Code has been subject to proceedings pending before the Constitutional Court, the Court notes that those proceedings have no impact on the applicant’s conviction and, in any event, they bear on a situation which did not occur in the applicant’s case, namely imposition of irreducible life sentence without the possibility of release on parole.

In these circumstances, and with reference to the above case-law, the Court considers that the facts of the present do not give rise to an issue under Article 3 of the Convention.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

However, it does not appear from the documents submitted that the applicant raised this complaint in the proceedings before the Constitutional Court.

It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

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You are here: BAILII >> Databases >> European Court of Human Rights >> Ivan MARICAK v Slovakia - 26621/10 [2011] ECHR 1028 (7 June 2011) URL: http://www.bailii.org/eu/cases/ECHR/2011/1028.html Cite as: [2011] ECHR 1028