ECtHR - Al Alo v. Slovakia, Application No. 32084/19, 10/02/2022

Facts:

The applicant, Alo, was arrested after police found him helping transport two migrants (C and D) illegally cross the border. He was charged with colluding to smuggle migrants and interviewed by the police. During his interview, he was made aware of Article 213 of the Code of Criminal Procedures (CCP), which outlined his rights to appoint a lawyer and be present for C and D’s witness statements. Alo chose not to exercise his rights under Article 213 CPP, but instead requested an interpreter to be present during his interview, as he did not understand the legal matters presented to him.

During C and D’s witness statements, they admitted that they were illegal migrants whom Alo was helping. As a result, Alo was placed in pre-trial detention and assigned a lawyer for his court hearing. The District Court used C and D’s statements to find Alo guilty of migrant smuggling. Notably, the District Court claimed that they could not summon C and D to the court for a live witness statement, as both C and D were ‘unreachable’.

Alo appealed to the Bratislava Regional Court stating that the District Court failed to effectively enquire into the whereabouts of C and D and that their use of pre-trial witness statements was unjust. Alo further argued that the authorities should have given him a lawyer as soon as he was detained, due to his language barriers. The Regional Court dismissed the appeal asserting that both C and D were expelled from Slovakia and it was for Alo to show that they would be allowed to enter Slovakia. Since Alo failed to do so, the use of pre-trial interviews was warranted. In addition, there was no reasonable doubt that Alo could not adequately understand the legal matters presented to him prior to his appointment of a lawyer, since Alo had been assisted by an interpreter and lived in Slovakia for around 10 years.

Alo’s further appeal to the Supreme Court was rejected and his complaint with the Constitutional Court alleging a violation of his rights under Article 6(1) and (3)(c) and (d) of the Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention) was found inadmissible.

Alo lodged a complaint with the European Court of Human Rights regarding his trial and conviction in Slovakia.

Decision & reasoning:

The admission of pre-trial evidence

As per the District Court, C and D were ‘unreachable’ for Alo’s trial as they were expelled from Slovakia and it was Alo’s responsibility to show that they would be allowed to re-enter the country. The ECtHR found that there is no indication in Slovakian statue or established practice that Alo had to prove their ability to return. Moreover, the ECtHR found that there was no evidence that C and D had been expelled from Slovakia at all [para 50.].

The ECtHR further noted that, even if C and D had been expelled, the District Court could have secured their appearance under the Convention of Mutual Assistance in Criminal Matters [para 51.].

As such, the ECtHR concluded that on the facts of the case, there were no good reasons for accepting pre-trail statements.

The reliance on pre-trial evidence

The ECtHR found that it is beyond reasonable argument that the pre-trial evidence carried a significant weight and severely handicapped Alo’s defence [para 55].

Article 213 CPP and Article 6(1) and (3) (d) of the Convention

The ECtHR found that, even though the domestic Courts made Alo aware of his rights under Article 213 of the CPP, they had not made him aware of the consequences of him waiving these rights, and therefore, were in breach of the Convention.

The ECtHR asserted that for a waiver to be compatible with the Convention, it must be shown that the applicant could reasonably have foreseen the consequences of his conduct, which was not the case here [para 59]. In fact, the ECtHR went as far as to conclude that the Slovakian authorities intentionally withheld explanations from Alo in order to benefit their case. For example, it is uncontested that Alo told the authorities that he had difficulties in understanding legal matters [paras 60 – 61]. It was in this context that the authorities provided him with no indication as to what consequences his actions had in relation to him choosing to not exercise his rights under Article 213 of the CPP.

For this reason, the ECtHR found that the proceedings against Alo were not fair and there had been a violation of Article 6 (1) and (3) (d) of the Conavention.

Article 6(3)(c) of The Convention

The ECtHR notes that the applicant’s complaints under Article 6(1) and (3)(c) and (d) are interlinked. In view of the findings, the ECtHR considers it unnecessary to examine separately the merits of the complaint lodged under article 6(3)(c) of the Convention [para 41].

Outcome:

Violation of Article 6(1) and (3) d of the Convention for the Protection of Human Rights and Fundamental Freedoms

It is not necessary to examine separately the alleged violation of Articles 6(3)(c) of the Convention.

Other sources:

Convention on Mutual Assistance in Criminal Matters between the Member States of the European Union (2000/C 197/01