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PAVLIK v. SLOVAKIA - 74827/01 [2007] ECHR 90 (30 January 2007)
URL: http://www.bailii.org/eu/cases/ECHR/2007/90.html
Cite as:
[2007] ECHR 90
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FOURTH
SECTION
CASE OF PAVLÍK v. SLOVAKIA
(Application
no. 74827/01)
JUDGMENT
STRASBOURG
30
January 2007
This
judgment will become final in the circumstances set out in
Article 44 § 2 of the Convention.
It may be subject to editorial revision.
In the case of Pavlík v. Slovakia,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Sir Nicolas Bratza, President,
Mr G.
Bonello,
Mr K. Traja,
Mr L. Garlicki,
Ms L.
Mijović,
Mr J. Šikuta,
Mrs P. Hirvelä,
judges,
and Mr T.L. Early, Section Registrar,
Having
deliberated in private on 9 January 2007,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 74827/01) against the Slovak
Republic lodged with the Court under Article 34 of the Convention for
the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Slovakian national, Mr Dušan Pavlík
(“the applicant”), on 26 October 2000.
The
applicant, who had been granted legal aid, was represented by Ms D.
Šamudovská, a lawyer practising in Banská
Bystrica. The Slovakian Government (“the Government”)
were represented by Mrs A. Poláčková, their Agent.
The
applicant alleged that his detention on remand had been unlawful and
arbitrary (Article 5 § 1 (c) of the Convention), that the
criminal proceedings against him had been unfair and their length
excessive (Article 6 § 1 of the Convention) and that he had been
dismissed from service in the police in violation of his right to be
presumed innocent (Article 6 § 2 of the Convention).
On
4 July 2005 the Court decided to communicate the complaints
concerning the detention and the length of the proceedings to the
Government. Under the provisions of Article 29 § 3 of the
Convention, it was decided to examine the merits of the application
at the same time as its admissibility.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1963 and lives in Zvolen. He was a member
of the Police Corps (Policajný zbor) of the Slovak
Republic.
1. Factual background
On
10 March 1999 the applicant was charged (obvinený) with
carrying out business activities without authorisation (Article 118 §
1 and 2 (a) of the Criminal Code (CC)), extortion (Article 235 §
1 of CC) and rape (Article 241 § 1 of CC). The charges were
based on the suspicion that the applicant who was disqualified from
carrying out business activities by law on account of his status as a
police officer had arranged for a third person, Ms P., to run
a restaurant on his behalf. He was further suspected of having
threatened P. with violence in order to make her give him an amount
of money and of having forced at gunpoint a waitress, Ms. M., to have
intercourse with him. The blackmail charge was later extended as the
applicant was also suspected of having made violent threats against
M. in order to force her to be his girlfriend.
The
applicant was detained, dismissed from the police and tried on the
above charges. The details are set out below.
2. Dismissal from police and related constitutional
complaint
On
12 April 1999 the Minister of the Interior issued an order
(personálny rozkaz) dismissing the applicant from
service in the police. The evidence available showed that the
applicant had committed the acts of which he was charged. Such
conduct grossly violated the service oath and, accordingly, was
incompatible with service in the police. The applicant’s
administrative appeal (rozklad) was dismissed on 14 June
1999.
The
applicant’s subsequent numerous requests that the Ministry of
the Interior review his dismissal in a special procedure outside the
framework of ordinary appellate proceedings (mimo odovlacieho
konania) and that the proceedings be reopened failed.
On
29 May 2002 the applicant challenged his dismissal by way of
an administrative-law action in the Supreme Court (Najvyšší
súd). It was declared inadmissible on 1 August 2002 on the
ground that it clearly had been filed outside the statutory two-month
time-limit, counted from the final administrative decision in the
case which was the decision of 14 June 1999.
On
3 September 2002 the applicant challenged the dismissal order of 12
April 1999 in the Constitutional Court (Ústavný súd)
under Article 127 of the Constitution. It was declared inadmissible
on 24 September 2002 as being belated. Moreover, and in any event,
the review of the dismissal order fell within the jurisdiction of the
Supreme Court. The Constitutional Court’s review was merely
subsidiary and did not apply to the dismissal order directly. As for
the decision of the Supreme Court, it could not be reviewed either
because the applicant’s constitutional complaint was not
directed against it.
3. Deprivation of liberty
(a) Remand in detention
On
11 March 1999, at 2.40 p.m., the police detained the applicant on the
above charges. He was assigned an ex officio lawyer.
On
12 March 1999 the applicant was brought before the judge of the
Zvolen District Court (Okresný súd).
The
parties disagree as to the exact time when this took place. The
Government rely on the minutes of the applicant’s questioning
which bear his signature and indicate that he had appeared before the
judge at 2 p.m. The applicant now claims that he was presented to the
judge at 3.50 p.m., which is after the 24-hour statutory time-limit.
The
applicant pleaded not guilty. There is no indication that he
complained about infringement of the above time-limit. The
questioning was concluded at 4.47 p.m. with the District Court’s
decision to remand the applicant in detention (see the subsequent
paragraph).
On
12 March 1999 the District Court remanded the applicant under Article
67 § 1 (b) and (c) of the Code of Criminal Procedure (CCP) which
allowed for detention of persons charged with criminal offences where
there were reasonable grounds for believing that if released they
would interfere with the course of justice or continue to engage in
criminal activities. The court found it established that the
applicant’s liberty had been restricted on the previous day at
2 p.m. There was a strong suspicion against him which was based on
testimonies of P., M. and 7 witnesses. The applicant was suspected of
having threatened and used violence against P. and M. over an
extended period. Therefore it could be presumed that he would
continue doing so with a view to hampering the proceedings. This
presumption rendered his detention justified on the legal grounds
referred to above.
The
applicant’s appeal (sťaZnosť) against the
remand order was dismissed by the Banská Bystrica Regional
Court (Krajský súd) on 13 April 1999.
(b) Detention prior to 26 April 2000 (i.e.
more than six months before the introduction of the application)
In
the period prior to 26 April 2000 the applicant filed numerous
petitions for release. They were dismissed by the prosecution
service, the District Court and the Regional Court on various grounds
including that some of the petitions had been lodged earlier than 14
days from the final determination of the previous petition and, as
they contained no new relevant information, they had to be dismissed
under Article 72 § 2 of the CCP.
In
all cases the authorities found that the suspicion against the
applicant and the grounds for his detention, as established at the
time of his remand, still persisted. In decisions of 19 October 1999
and 28 February 2000 the District Court moreover observed that covert
messages from the applicant to his wife, P. and her family members
had been intercepted, which showed that he had actually attempted
to interfere with the course of justice and that he was likely
to act violently. The existence of such messages was established by
the prison administration and the prosecution service, which
confirmed it in their respective letters of 15 and 26 July 1999.
On
3 September 1999 the District Court authorised extension of the
applicant’s detention under Article 71 § 1 of the CCP
until 11 December 1999.
(c) Detention after 26 April 2000
On
31 March 2000, the District Court found the applicant guilty and
sentenced him (see below). At the same time it decided that for the
time being the applicant should be released from detention. The
release order was however not yet enforceable as it had been
challenged by the prosecution.
On
24 May 2000 the Regional Court allowed the prosecutor’s appeal
against the release order and ruled that the applicant should remain
in detention. With reference to the intercepted letters the Regional
Court found that the applicant had attempted to influence witnesses
and concluded that, if released, it was likely that he would exert
pressure on the victims with a view to having their statements
modified.
On
28 July 2000 the District Court dismissed the applicant’s
petition for release. The applicant appealed to the Regional Court
but on 7 August 2000 withdrew the appeal. The Regional
Court acknowledged the withdrawal on 23 August 2000.
On
16 August 2000 the applicant petitioned for release again. He
contested the charges and argued that there was no risk that he would
continue to offend as envisaged by Article 67 § 1 (c) of the
CCP.
In
a letter of 7 September 2000 the District Court informed the
applicant that under Article 72 § 2 of the CCP his petition of
16 August 2000 could not be dealt with because it had been
lodged prior to the final determination of his previous petition and
contained no new relevant information.
On
28 November 2000 the applicant lodged a fresh petition for release
and the District Court ordered his release on 7 December 2000.
On
17 January 2001 the Regional Court upheld the release order of
7 December 2000 on the prosecutor’s appeal. It referred to
the evidence taken in the course of the proceedings, the length of
the applicant’s detention and the fact that his criminal record
was clear. It concluded that the reasons for his detention had fallen
away.
The
applicant was released on the same day.
In
the course of the proceedings the applicant unsuccessfully attempted
to have criminal proceedings brought against the officials dealing
with his case. He complained, inter alia, that no decision had
been given to authorise the extension of his detention after 11
December 1999 (see paragraph 16 above).
4. Criminal trial
On
12 March 1999 the District Court issued a search warrant for two
flats and a cottage used by the applicant. The searches took place on
12 and 16 March 1999.
On
17 March 1999 the Zvolen District Prosecutor dismissed the
applicant’s appeal against his charges. His appeal against the
extended charge for extortion was dismissed later.
On
26 July 1999 the District Court assigned the applicant a new ex
officio lawyer at the applicant’s request.
On
10 December 1999 the applicant was indicted to stand trial in the
District Court on the above charges.
On
20 December 1999 the case was assigned to a different judge of the
District Court, V.Š., because the previous judge knew the
applicant and felt personally biased.
The
District Court held hearings on 10, 13 and 31 March 2000 at which it
heard the applicant, the victims and several witnesses.
Following
the hearing of 31 March 2000, on the same day, the District Court
found the applicant guilty as charged and sentenced him to two years’
imprisonment. Both the applicant and the prosecution appealed.
On
21 June 2000 the Regional Court quashed the District Court’s
judgment and remitted the case to the latter for the taking of
further evidence and re-examination. The Regional Court held that it
was necessary to re hear the case as in the course of the
proceedings there had been a change in the District Court’s
chamber dealing with it.
On
26 July 2000 the District Court assigned the applicant a new ex
officio lawyer at the request of the previous lawyer who felt
that the applicant had no confidence in him.
On
20 September 2000 the Regional Court exempted Judge V.Š. from
dealing with the applicant’s case at her own request because
she felt partial because of the applicant’s persistent use of
invectives against her.
The
case was assigned to a new judge, M.Š., who also requested his
exclusion. He submitted that he knew the applicant and that he felt
concerned by his invectives directed against the previous judge.
On
8 November 2000 the Regional Court ruled that M.Š. would not
be excluded from dealing with the applicant’s case.
On
20 March 2001 M.Š. again requested his exclusion from the case
as he felt biased after the applicant had filed an unsuccessful
criminal complaint against him.
On
12 April 2001 the Regional Court found that M.Š. was not
disqualified from dealing with the case as, being a professional
judge, he had to be prepared to accept a certain level of criticism
without losing his impartiality.
On
1 October 2001 the District Court ordered an expert examination of
the applicant’s mental health. On 7 November 2001 the Regional
Court quashed this order on the applicant’s appeal for reasons
of formality.
Between
7 February and 29 November 2002 the District Court held 5 hearings
and made three attempts at establishing the whereabouts of P. who was
believed to be staying in Italy.
On
10 January 2003 the District Court held another hearing following
which, on the same day, it found the applicant guilty as charged and
sentenced him to four and a half years’ imprisonment and a
fine. In reaching that conclusion the District Court took into
account the testimonies of numerous witnesses, reports from several
experts and complex documentary evidence. The applicant appealed.
On
4 June 2003 the Regional Court quashed the judgment of 10 January
2003 and found the applicant guilty of having run a business without
authorisation and of extortion. It acquitted him of the remaining
charges and sentenced him to 22-months’ imprisonment and a
fine.
The
Prosecutor General challenged the judgment of 4 June 2003 by means of
a complaint in the interest of law (sťaZnosť pre
porušenie zákona) filed with the Supreme Court.
On
10 February 2004 the Supreme Court quashed the judgment of 4 June
2003 and ordered the Regional Court to re-examine the applicant’s
appeal against the judgment of 10 January 2003.
The
Regional Court called hearings for 16 June and 18 August 2004.
They had to be adjourned as the applicant did not appear.
The
Regional Court requested that the applicant be brought by the police
and eventually issued a warrant for his arrest.
The
applicant then appeared before the Regional Court of his own accord
and the arrest warrant was quashed.
On
6 October 2004 the Regional Court held a hearing following which, on
the same day, it upheld the District Court’s judgment of
10 January 2003 as regards the conviction and increased the
penalty which had been imposed in the judgment of 4 June 2003 to two
years’ imprisonment.
The
Minister of Justice challenged the judgment of 6 October 2004 by
means of a complaint in the interest of law. He contested mainly the
imposed sentence considering that the Regional Court had failed to
take due account of the seriousness of the offences and the context
in which they had been committed.
On
1 June 2005 the Supreme Court quashed the judgment of 6 October
2004 finding that the sentence imposed was too lenient. The Regional
Court was accordingly instructed to re-examine the applicant’s
appeal against the judgment of 10 January 2003.
On
20 September 2005 the Regional Court held a hearing following which,
on the same day, it increased the sentence imposed in the judgment of
10 January 2003 to 3 years’ imprisonment. No further
appeal was available. The applicant then unsuccessfully sought to
challenge his conviction in the Constitutional Court.
5. Constitutional complaint
On
26 February 2003 the applicant lodged a complaint under Article 127
of the Constitution asserting violations of his constitutional rights
in the criminal proceedings against him. He complained inter alia
about the length of the proceedings, directing this part of his
complaint exclusively against the District Court.
On
14 April 2004 the Constitutional Court declared the complaint about
the length of the criminal proceedings before the District Court
admissible and the remaining complaints inadmissible.
On
30 September 2004 the Constitutional Court found that the District
Court had violated the applicant’s right to a hearing “without
unjustified delay” (Article 48 § 2 of the Constitution).
The
Constitutional Court found that the subject matter of the
proceedings was not particularly complex and that no undue delays
could be attributed to the applicant. In contrast, the District Court
had been inactive without any justification between 12 April and 1
October 2001.
The
Constitutional Court concluded that the finding of a violation of the
applicant’s right was in itself sufficient just satisfaction
for him. In view of all the circumstances including the fact that
there had only been one relatively insignificant period of
unjustified delay, the Constitutional Court considered that financial
compensation for the applicant’s non pecuniary damage
would not be appropriate. It however awarded him reimbursement of his
legal costs.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Constitution (Constitutional Law no. 460/1992
Coll., as applicable at the relevant time) and the Constitutional
Court’s practice
Article
11 provides that international instruments on human rights and
freedoms ratified by the Slovak Republic and promulgated under
statutory requirements have precedence over national laws, provided
that they guarantee greater constitutional rights and freedoms.
Under
the Constitutional Court’s case-law (see, for example, the
decision of 22 March 2000, file no. I. ÚS 9/00) ordinary
courts are obliged in civil proceedings to interpret and apply the
relevant laws in accordance with the Constitution and with
international treaties. Accordingly, the ordinary courts have the
primary responsibility for upholding rights and fundamental freedoms
guaranteed by the Constitution or international treaties.
Pursuant
to Article 17 § 2 no one shall be prosecuted or deprived of
liberty except for reasons and in a manner provided for by law.
Article
48 § 2 provides, inter alia, that every person has the
right to have his or her case tried without unjustified delay.
Under
Article 50 § 2 any person against whom criminal proceedings are
conducted is to be presumed innocent until proved guilty by a final
judgment by a court of law.
B. Code of Criminal Procedure (Law no. 141/1961 Coll.,
as applicable at the relevant time)
Detention
on remand is governed by the provisions of Articles 67 et seq.
A person charged with a criminal offence (obvinený) can
be detained inter alia when there are reasonable grounds for
believing that he or she would influence the witnesses or the
co-accused or otherwise hamper the investigation (Article 67 § 1
(b)) or continue criminal activity, complete an attempted
offence or commit an offence which he or she prepared or threatened
to commit (Article 67 § 1 (c)).
Article
71 § 1 provides inter alia that where detention in the
pre-trial phase of proceedings exceeded six months and the release of
the detainee would jeopardise the purpose of the proceedings, a
single judge can extend the detention for a period of up to one year.
A motion for such an extension shall be lodged by the public
prosecution service. A further extension of detention in the
pre-trial phase of the proceedings beyond the one-year limit can be
authorised by a chamber of judges up to a maximum of two years.
Under
Article 71 § 2 detention on remand in the pre-trial phase of the
proceedings and in the proceedings before a court taken together
cannot exceed two years. An extension by another year can be
authorised by the Supreme Court.
Article
72 § 2 entitles the detainee to apply for release at any time.
When the public prosecutor dismisses such an application in the
pre trial phase of the proceedings, he or she shall submit it
immediately to the court. The court shall rule on such an application
without delay. If the application is dismissed, the accused may renew
it fourteen days after the decision has become final unless he or she
invokes different reasons.
C. Civil Code (Law no. 40/1964 Coll.)
Under
Article 11, natural persons have the right to protection of their
personality rights (personal integrity), in particular their life and
health, civil and human dignity, privacy, name and personal
characteristics.
Under
Article 13 § 1, natural persons have the right to request that
unjustified infringements of their personality rights be discontinued
and that the consequences of such infringements be eliminated. They
also have the right to appropriate just satisfaction.
Article
13 § 2 provides that, in cases where the satisfaction obtained
under Article 13 § 1 is insufficient, in particular because the
injured party’s dignity or social standing has been
considerably diminished, the injured party is also entitled to
financial compensation for non-pecuniary damage.
In
an action of 26 June 2002 a married couple asserted a claim against
the Ministry of Justice for financial compensation for non-pecuniary
damage caused to them by detention on remand and criminal proceedings
against them, which ended with their acquittal. The principal thrust
of the claim was that their prosecution and the whole trial had been
unlawful and arbitrary.
The
action was examined on appeal by the Banská Bystrica Regional
Court under file number 16Co 256/05. In its judgment of 7 July 2006
the court interpreted the claim as a claim for protection of personal
integrity under Article 11 of the Civil Code. It reviewed briefly the
course of the criminal proceedings against the plaintiffs and
concluded that they had failed to establish that there had been any
unlawfulness. Relying on the judgment of the Supreme Court of 20
October 2005 file number 5Cdo 150/03, the court held that criminal
proceedings which were conducted in compliance with the applicable
laws could not constitute an unjustified interference with personal
integrity even if they ended with an acquittal. The court also
addressed briefly the length of the plaintiffs’ detention and
concluded that it had not been excessive. The above claim was thus
not accepted, unlike other claims made in the same action
(compensation for lost profit, legal costs and infringement of the
presumption of innocence).
Further
details concerning protection of personal integrity under the Civil
Code are summarised in Kontrová v. Slovakia ((dec.),
no. 7510/04, 13 June 2006).
D. Code of Civil Procedure (Law no. 99/1963 Coll.)
Article
8 defines the jurisdiction of the ordinary courts. Pursuant to its
first paragraph, unless jurisdiction is conferred by statute on other
authorities, the ordinary courts examine and decide upon matters
stemming from relations under civil law, labour law, family law, the
law of co operatives, and commercial law. Under paragraph 2,
other matters may be examined and decided upon by the ordinary courts
only if a statute so provides.
Under
the terms of Article 135 civil courts are bound, inter alia, by the
decisions of the competent authorities that a criminal offence has
been committed and by whom (paragraph 1). Other questions which
normally fall to be decided by other authorities can be decided by a
civil court. However, if the competent authorities decided upon such
a question, the civil court will adopt their decision (vychádza
z ich rozhodnutia).
E. State Liability Act of 1969 (Law no. 58/1969 Coll.)
The
Act lays down rules for State liability for damage caused by unlawful
decisions (Part (Časť) One) and wrongful official
conduct (Part Two).
The
general scope of State liability for damage caused by unlawful
decisions is defined in section 1 (1). Pursuant to this provision the
State is liable for damage caused by unlawful decisions by its bodies
and agencies inter alia in criminal proceedings. However, decisions
concerning detention and sentencing are excluded.
Special
rules concerning State liability for damage caused by decisions on
detention are embodied in sections 5 et seq. The State is
liable for damage caused by such decisions only in respect of persons
against whom the proceedings have been discontinued or who have been
acquitted (section 5 (1)).
Section
18 (1) renders the State liable for damage caused by wrongful
official conduct on the part of its bodies and authorities in
carrying out their functions.
A
claim for compensation may be allowed where the claimant shows that
he or she suffered damage as a result of a wrongful act of a public
authority, quantifies its amount, and shows that there is a causal
link between the damage and the wrongful act in question.
The
Act does not allow for compensation for non-pecuniary damage unless
it is related to a deterioration in a person’s health (for
further details, see Havala v. Slovakia (dec.), no. 47804/99,
13 September 2001).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
The
applicant complained (i) that he had not been brought before a judge
in less than 24 hours after his arrest; (ii) that his detention had
been arbitrary; and (iii) that its extension in the period after
11 December 1999 had lacked judicial authorisation. He relied on
Article 5 § 1 of the Convention, which reads 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;
...”
A. The Government’s objection as to exhaustion of
domestic remedies
The
Government objected that the applicant had failed to exhaust domestic
remedies in respect of all his complaints under Article 5 of the
Convention in that he had failed to seek damages under the State
Liability Act of 1969 and/or protection of his personal integrity
under Articles 11 et seq. of the Civil Code.
They
submitted that in determining such claims the courts would not only
be bound by the provisions of the State Liability Act of 1969 and the
Civil Code but would also be obliged to take due account of the
provisions of relevant international instruments. They would thus be
obliged to consider not only the pecuniary aspect of the damage
but to decide also on compensation for any possible non-pecuniary
damage.
In
that connection the Government contested the Court’s
conclusions as to the ineffectiveness of the said remedies in similar
cases against Slovakia (see Tám v. Slovakia, no.
50213/99, §§ 44-54, 22 June 2004, Pavletić v.
Slovakia, no. 39359/98, §§ 62-80, 22 June 2004,
Kučera v. Slovakia (dec.), no. 48666/99, 4 November
2003 and König v. Slovakia (dec.), no. 39753/98, 13 May
2003).
It
was true that there were no final domestic decisions proving that
these remedies offered good prospects of success in the circumstances
of the present case. This was however mainly due to the fact that the
present situation was rather exceptional and the remedies in question
had not yet been tested in this context. Nevertheless, there were no
domestic decisions showing that these remedies were a priori bound to
fail in the applicant’s case.
The
applicant disagreed.
The
Court recalls that it has previously addressed the question of the
effectiveness of the remedies referred to by the Government in
similar cases (see Tám, Kučera, König
and Pavletič, cited above). It did not find it
established that the possibility of obtaining appropriate redress by
making use of these remedies was sufficiently certain in practice and
offered reasonable prospects of success as required by the relevant
Convention case-law.
The
Court finds no reasons to depart from this conclusion. Moreover, and
in any event, the Court finds it appropriate to note the following.
The
scope of jurisdiction of the civil courts is defined in Article 8 of
the Code of Civil Procedure which is the lex generalis in the
matter. From this provision it follows that matters of criminal law
can be examined and decided upon by a civil court only if a statute
so provides. Under Article 135 § 1 of this Code if a
certain question has been determined by a criminal court, civil
courts would adopt the criminal court’s decision.
In
the present case the applicant’s liberty was restricted by
decisions of the criminal courts. The general rules do not seem to
provide any basis on which civil courts could reconsider their
decisions.
Damage
caused by decisions taken in criminal proceedings is regulated by the
provisions of Part One of the State Liability Act of 1969 which is
the lex specialis in the matter. Under its sections 5 et
seq. damage caused by decisions concerning detention can be
compensated only if the criminal proceedings were discontinued or
resulted in an acquittal, neither of which is the applicant’s
case.
The
Court finally observes that the case underlying the judgment of the
Banská Bystrica Regional Court of 7 July 2006 file no. 16Co
256/05 (see paragraph 65 in section “Relevant domestic law and
practice” above) was substantially different from the present
in that there the plaintiffs had been acquitted. It should also be
taken into account that the events of the present case occurred well
before the judgment of 7 July 2006, which appears unprecedented.
In
the light of the above the Court concludes that the Government’s
objection of non-exhaustion of domestic remedies must be dismissed.
B. Remand in detention
The
Government submitted that the complaint about the applicant’s
remand in detention was in any event belated and manifestly
ill-founded.
The
applicant disagreed and reiterated his complaint.
The
Court observes that the applicant was arrested on 11 March 1999,
his detention was ordered by the District Court on 12 March
1999, the remand order was upheld on appeal by the Regional Court on
13 April 1999, and no further appeal was available. The application
was introduced on 26 October 2000, that is to say more than six
months after the final decision was taken (see Mello
v. Slovakia (dec.), no. 67030/01, 21 June 2005).
It
follows that the complaint concerning the remand in detention has
been introduced out of time and must be rejected in accordance with
Article 35 §§ 1 and 4 of the Convention.
C. Detention prior to 26 April 2000
The Government objected that the complaint was in any
event manifestly ill-founded.
The applicant disagreed and reiterated his complaint.
The
observes that the applicant’s detention in the period prior to
26 April 2000 was reviewed and upheld on numerous occasions by
the prosecution service and by courts at two levels of jurisdiction.
They exercised supervision over the detention on the applicant’s
repeated requests for release and on one occasion also ex officio
in connection with authorising the extension of the detention beyond
the statutory six-month limit.
In so
far as these decisions were given prior to 26 April 2000, that is to
say more than six months before the date of introduction of the
present application, the Court is barred from examining them by
virtue of Article 35 §§ 1 and 4 of the Convention (see,
mutatis mutandis, Tariq v. the Czech Republic,
no. 75455/01, § 77, 18 April 2006).
It
follows that the complaint of the detention in the period prior to
26 April 2000 has been introduced out of time and must be
rejected in accordance with Article 35 §§ 1 and 4
of the Convention.
D. Detention after 26 April 2000
The
Government submitted that the complaint was in any event manifestly
ill-founded.
The
applicant disagreed and argued that his detention had been wholly and
entirely unjustified and that the grounds on which it had been
purportedly based were a malicious conspiracy. According to him he
had never sent any compromising messages from prison.
The
Court considers that the applicant was detained under Article 67
§ 1 (b) and (c) of the CCP on the suspicion of having committed
several offences and on the basis of a concern that, if at liberty,
he would interfere with the course of justice and continue to engage
in criminal activities.
The
applicant was detained on 11 March 1999. In the pre-trial phase of
the proceedings his detention was subject to a time-limit of six
months under Article 71 § 1 of the CCP, which was extended until
11 December 1999 by the District Court on 3 September 1999.
Before the expiry of this extended time limit, on 10 December
1999, the applicant was indicted to stand trial before the
District Court. By virtue of the indictment the proceedings entered
their stage before the court. In this stage of the proceedings the
applicant’s detention was subject to a new time-limit of two
years pursuant to Article 71 § 2 of the CCP. The applicant was
finally released from detention on 17 January 2001, well before the
expiry of the two-year limit.
In
so far as the complaint has been substantiated the Court has found no
indication of any substantive or procedural unlawfulness of the
applicant’s detention under the domestic law.
The
Court notes that the suspicion against the applicant was based on
testimonies of several witnesses and finds that the “reasonableness”
of the suspicion raises no issue under Article 5 of the Convention
(see, among many other authorities, Labita v. Italy [GC], no.
26772/95, § 155, ECHR 2000-IV).
The
domestic authorities’ concern that the applicant would
interfere with the proceedings and continue to offend was based on
the violent nature of the applicant’s behaviour and the fact
that he had been threatening and using violence against P. and M. for
a long time.
In
the period after 26 April 2000 their concern was further supported by
his attempts to send secret messages from prison. The existence of
such messages had been established by the prison administration, the
prosecution service, the District Court and the Regional Court (see
paragraphs 15 and 18 above). In so far as the applicant now contests
their existence, he has not substantiated his claim.
In
the light of the above the Court has found no grounds for holding the
applicant’s detention to be “arbitrary” within the
meaning of Article 5 of the Convention (see, a contrario,
Ambruszkiewicz v. Poland, no. 38797/03, §§ 32 and
33, 4 May 2006).
It
follows that this complaint is manifestly ill-founded and must
be rejected in accordance with Article 35 §§ 3
and 4 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE
CONVENTION
The
applicant complained that his conviction had been arbitrary and that
the length of the proceedings had been excessive. He relied on
Article 6 § 1 of the Convention, the relevant part of which
reads as follows:
“In the determination of ... any criminal charge
against him, everyone is entitled to a fair ... hearing within a
reasonable time by [a] ... tribunal...”
A. Admissibility
1. Fairness of proceedings
The
Court observes that the applicant was convicted of conducting
a business without authorisation, extortion and rape. There is
no doubt that his conviction had a valid legal basis in the Criminal
Code.
The
applicant’s charges were examined several times by courts at
three levels of jurisdiction in proceedings which were adversarial in
their nature.
The
courts heard the applicant and numerous witnesses and examined
complex expert and other evidence. The applicant was represented by
a lawyer throughout the proceedings and he was provided with
ample opportunity to state his arguments, to challenge the
submissions made by the prosecution and to submit anything he
considered relevant to the outcome. The District Court and the
Regional Court supported their findings with reasons that do not
appear manifestly arbitrary or wrong.
In
the light of the above the Court has found no indication of any
procedural unfairness within the meaning of Article 6 § 1 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.
2. Length of proceedings before the Regional Court and
Supreme Court
The
Court observes that in his constitutional complaint of 26 February
2003 the applicant contested exclusively the length of the
proceedings before the District Court (see paragraph 50 above).
He
did not include the phases prior to the indictment and before the
Regional Court and the Supreme Court in his constitutional complaint.
The Constitutional Court was thus prevented from examining those
parts of the proceedings (see Obluk v. Slovakia, no. 69484/01,
§ 61, 20 June 2006) and the applicant cannot be considered as
having exhausted domestic remedies in respect of them (see Šidlová
v. Slovakia, no. 50224/99, § 53, 26 September 2006).
It
follows that this part of the length of proceedings complaint must
be rejected under Article 35 §§ 1 and 4 of the
Convention for non-exhaustion of domestic remedies.
3. Length of proceedings before the District Court
The
Government argued primarily that in view of the Constitutional
Court’s judgment (nález) of 30 September 2004 the
applicant had lost his status of a “victim” within the
meaning of Article 34 of the Convention in respect of the length of
this part of the proceedings.
They
submitted in the alternative that this part of the application was
manifestly ill-founded. In support of that contention they maintained
that the subject-matter of the proceedings had been of a certain
factual and procedural complexity. Although no unjustified delays
could be imputed to the applicant, it was an objective fact that
he had protracted the length of the proceedings by making numerous
submissions and petitions for which the State could not be held
responsible. As for the conduct of the authorities, there had been no
major delays apart from those in the period between 12 April and 1
October 2001.
The
applicant disagreed. He submitted that the whole proceedings had been
conducted in an arbitrary fashion and had been much too lengthy.
Having received no just satisfaction from the Constitutional Court,
the applicant claimed that he was still a victim.
The
Court reiterates that an applicant’s status as a “victim”
within the meaning of Article 34 of the Convention depends on the
fact whether the domestic authorities acknowledged, either expressly
or in substance, the alleged infringement of the Convention and, if
necessary, provided appropriate redress in relation thereto. Only
when these conditions are satisfied does the subsidiary nature of the
protective mechanism of the Convention preclude examination of an
application (see, among may other authorities, Cocchiarella v.
Italy [GC], no. 64886/01, § 71, ECHR 2006 ...).
There
is a strong but rebuttable presumption that excessively long
proceedings will occasion non-pecuniary damage. However, in some
cases, the non-pecuniary damage may be only minimal or none at all
(see Nardone v. Italy, no. 34368/98, 25 November 2004). The
domestic courts will then have to justify their decision by giving
sufficient reasons (see Scordino v. Italy (no. 1) [GC],
no. 36813/97, § 204, ECHR 2006 ...).
In
the present case the Constitutional Court expressly found that the
District Court had violated the applicant’s right to a hearing
“without unjustified delay”. However, apart from that
finding, it granted the applicant no just satisfaction. It considered
that an award of just satisfaction was not appropriate, given in
particular the fact that unjustified delay in the proceedings had
occurred only once and had been relatively insignificant.
The
Court cannot subscribe to that conclusion in view of the overall
length of the proceedings and the fact that during a part of them the
applicant had been deprived of his liberty.
The
applicant can accordingly still claim to be a “victim” of
a breach of the “reasonable time” requirement in this
part of the proceedings.
In
the specific circumstances of the present case the Court must examine
the part of the proceedings which took place before the District
Court. This period started with the filing of the bill of indictment
on 10 December 1999 and lasted until the District Court ruled on
the case on 31 March 2000 (i.e. more than 3 months). The period
under consideration then resumed on 21 June 2000 when the Regional
Court quashed the above judgment and lasted until 10 January 2003
when the District Court determined the case anew (i.e. more than 2
years and 6 months). The period to be considered thus lasted in total
more than 2 years and 9 months for a single level of jurisdiction.
Although
the pre-trial stage of the proceedings and the proceedings before the
Regional Court and the Supreme Court are not the subject-matter of
the admissible part of this application, they cannot be dissociated
completely from the proceedings before the District Court, which are
under examination, and they should be taken into consideration.
In
view of the above considerations as well as having regard to the
finding of 30 September 2004 by the Constitutional Court of a
violation of the applicant’s right to a hearing without
unjustified delay, the Court considers that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 of
the Convention. It further notes that it is not inadmissible on any
other grounds. It must therefore be declared admissible.
B. Merits
The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities (see, among
many other authorities, Pélissier and Sassi v. France
[GC], no. 25444/94, § 67, ECHR 1999-II). Where a person is kept
in detention on remand, the fact of his detention is a factor to be
considered in assessing whether the requirement of a decision on the
merits within a reasonable time has been met (see, for example,
Abdoella v. the Netherlands, judgment of 25 November 1992,
Series A no. 248 A, p.17, § 24).
The
Court has frequently found violations of Article 6 § 1 of the
Convention in cases raising issues similar to the one in the present
case (see Pélissier and Sassi, cited above).
Having
examined all the material submitted to it, the Court considers that
the Government have not put forward any fact or argument capable of
persuading it to reach a different conclusion in the present case.
Having regard to its case-law on the subject, the Court considers
that in the instant case the length of the proceedings before the
District Court was excessive and failed to meet the “reasonable
time” requirement.
There
has accordingly been a breach of Article 6 § 1.
III. ALLEGED VIOLATION OF ARTICLE 6 § 2 OF THE
CONVENTION
The
applicant alleged a violation of his right to be presumed innocent in
that he had been dismissed from the police before the completion of
the criminal proceedings against him. He relied on Article 6 § 2
of the Convention, which reads as follows:
“Everyone charged with a criminal offence shall be
presumed innocent until proved guilty according to law.”
The
Court observes that the applicant challenged his dismissal by way of
an administrative appeal and that this appeal was dismissed on
14 June 1999. Although the statutory period for challenging the
dismissal by way of an administrative-law action in the Supreme Court
was two months, the applicant waited until 29 May 2002 before filing
his action. The Supreme Court consequently declared his action
inadmissible as being belated.
In
these circumstances the applicant cannot be considered as having
exhausted domestic remedies within the meaning of Article 35 § 1
of the Convention (see Akdivar and Others v. Turkey, judgment
of 16 September 1996, Reports of Judgments and Decisions
1996-IV, p. 1210, § 66).
It
follows that this complaint must be rejected under Article 35
§§ 1 and 4 of the Convention for non-exhaustion
of domestic remedies.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The
applicant claimed 1,000,000 Slovakian korunas
(SKK) by way of just satisfaction for his damage. He made no claim in
respect of costs and expenses.
The
Government contested the claim.
The
Court does not discern any causal link between the violation found
and the alleged pecuniary damage. However, it considers that the
applicant must have suffered some damage of a non pecuniary
nature. Ruling on an equitable basis it awards him 2,400 euros under
that head.
B. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the complaint concerning the length of
the proceedings before the District Court admissible and the
remainder of the application inadmissible;
Holds that there has been a violation of Article
6 § 1 of the Convention;
Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 2,400 (two
thousand four hundred euros) in respect of non-pecuniary damage, the
above amount to be converted into the national currency of the
respondent State at the rate applicable at the date of settlement,
plus any tax that may be chargeable;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amount at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 30 January 2007, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
T.L. Early Nicolas Bratza
Registrar President
