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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> Peter LADUNA v Slovakia - 31827/02 [2010] ECHR 1801 (20 October 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/1801.html
Cite as: [2010] ECHR 1801
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FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no.
31827/02
by Peter LADUNA
against Slovakia
The European Court of Human Rights (Fourth Section), sitting on 20 October 2010 as a Chamber composed of:
Nicolas
Bratza,
President,
David
Thór Björgvinsson,
Ján
Šikuta,
Päivi
Hirvelä,
Ledi
Bianku,
Nebojša
Vučinić,
Vincent
Anthony de Gaetano,
judge,
and Lawrence
Early, Section
Registrar,
Having regard to the above application lodged on 10 August 2002,
Having regard to the decision to apply former Article 29 § 3 of the Convention and examine the admissibility and merits of the case together,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Peter Laduna, is a Slovakian national who was born in 1973. At present he is serving a life sentence in Leopoldov prison. The Slovakian Government (“the Government”) were represented by their Agent, Mrs M. Pirošíková.
A. The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1. The applicant's arrest and his detention during judicial proceedings
On 31 August 2001 the police began to suspect the applicant of having committed a murder.
On 1 September 2001 at 12.15 a.m. the applicant was stopped by the police while driving a car. He was escorted to a police station. The applicant's house was searched on the basis of a warrant issued by the Nitra District Court on 31 August 2001.
On 2 September 2001 another house search was carried out. The police had no warrant, but the applicant's father agreed to a search being conducted.
On 3 September 2001 the Nitra District Court remanded the applicant in custody pursuant to Article 67 § 1(b) of the Slovakian Code of Criminal Procedure. The court found that there was a risk that the applicant might attempt to influence witnesses and his co-accused. His detention was also necessary within the meaning of Article 67 § 2 of the Code of Criminal Procedure, as the applicant stood accused of an offence punishable by a minimum eight-year prison sentence. The decision stated that the applicant's detention during the judicial proceedings had started on 1 September 2001 at 12.15 a.m.
On 14 September 2001 the Nitra Regional Court dismissed the applicant's complaint against the above decision of 3 September 2001.
The applicant unsuccessfully filed numerous criminal complaints alleging, amongst other things, that the police had used excessive violence against him when he had been deprived of his liberty on 1 September 2001 and that they had misused their powers during the house searches and other investigatory activities.
After the applicant had been detained, several requests for release which he made were dismissed. His detention during judicial proceedings was repeatedly extended by court decisions. On the last occasion, the Supreme Court extended the applicant's detention until 31 March 2006.
On 9 February 2006, following his conviction for robbery (see point 3 (a) below), the applicant was transferred from detention during the judicial proceedings. He immediately started serving a nine-year prison term to which he had been sentenced for the robbery offences.
2. Conditions in which the applicant was detained
The applicant filed several complaints with the Directorate General of Prison Administration in which he complained about the conditions of his detention. He raised many issues such as restrictions on visitation rights (visits allowed only once a month for 30 minutes), the right to take a shower (once a week), the right to receive parcels (one 5 kg parcel every three months) and the right to buy food in prison (once a week with a limit on the sum that could be spent).
The applicant also complained about the overall conditions of his detention. His complaints concerned, amongst many other things, the quality and quantity of food, a lack of hot water in his cell, the amenities in his cell, the use of handcuffs, a lack of contact with other prisoners, and the fact that he had been placed in a cell with smokers for some time.
The applicant claimed that, as he had been accused of a serious offence, his rights in detention were restricted under the relevant law to a greater extent than those of people suspected of having committed less serious offences, and that the conditions of detention in Leopoldov prison were stricter than in other prisons. The applicant also alleged that convicted prisoners serving a sentence had more rights than he had had while he had been detained during the judicial proceedings.
Furthermore, the applicant was obliged to use half of the monies received from his family to reimburse debt which he owed to the State (this debt resulted from the statutory obligation to contribute to his maintenance in prison), failing which he was not allowed to buy supplementary food in the prison shop.
The Directorate General of Prison Administration sent replies to the applicant on more than ten occasions. The authority found all of the applicant's complaints to be ill-founded. It also held that the conditions in the prisons where the applicant was detained during the judicial proceedings had been in conformity with the relevant law.
On 16 January 2003 the applicant filed a complaint with the Prosecutor General submitting that his human rights had been violated. He complained, inter alia, about the manner in which the State had forced him to reimburse the debt resulting from the statutory obligation to contribute to his maintenance in prison.
On 30 January 2003 the Prosecutor General dismissed the complaint. No breach of the law had been found in the applicant's case.
Additionally, after he had been found guilty of robbery, the applicant submitted that the conditions in which he was serving his sentence were more severe than those of other convicted prisoners. In particular, certain restrictions applicable to the detention of a person during judicial proceedings had been imposed on him because criminal proceedings concerning charges of murder had been pending against him. The applicant claimed that he had been held in a part of the prison which was designated for serving out disciplinary punishment.
3. Criminal proceedings against the applicant
(a) Proceedings concerning the charges of robbery (Nitra Regional Court file no. 1 T 2/2005)
The present application concerns criminal proceedings against the applicant in respect of charges of robbery (Nitra Regional Court file no. 1 T 2/2005). These charges had been dealt with together with the charges of murder (file no. 1 T 1/2005) in one set of proceedings until 2005, when the proceedings were divided into two sets. At a later stage the applicant was convicted of three murders and sentenced to life imprisonment. On 21 January 2010 the Constitutional Court found a violation of Article 6 § 1 by the Supreme Court in the cassation proceedings and remitted the case to the Supreme Court. The cassation proceedings are still pending.
Initially, the applicant was charged with murder and illegal possession of weapons on 2 September 2001. On the same day Mr M., a lawyer practising in Nitra, was officially assigned to act as the applicant's defence counsel.
On 7 March 2005 the Nitra Regional Prosecutor indicted the applicant to stand trial on three charges of murder, a charge of illegal possession of weapons and three robbery charges.
On 27 April 2005 the Nitra Regional Court decided to deal with the charges of robbery in a separate set of proceedings. The court appointed Mr M. to also act as the applicant's officially assigned counsel in the proceedings concerning the charges of robbery.
On 10 October 2005 the Nitra Regional Court convicted the applicant of three counts of robbery, sentenced him to nine years' imprisonment and ordered him to pay damages. The court found that the applicant had stolen goods from two jewellery shops while threatening to use a firearm. He had committed a third robbery in a jewellery shop as an accomplice.
On 8 February 2006 the Supreme Court dismissed the applicant's appeal and upheld the Regional Court's findings. It held that the Regional Court had clearly and comprehensively explained why it had not taken all evidence proposed by the applicant. The first-instance judgment had not been arbitrary and the applicant's guilt had been proved by a variety of objective evidence.
The applicant attempted to challenge the final judgment by means of an appeal on points of law. On 12 December 2006 the Supreme Court informed the applicant that the appeal had not been filed through a lawyer, as required by law. The applicant was invited to remedy that shortcoming before 8 January 2007, failing which his appeal on points of law would be rejected.
The applicant unsuccessfully asked his defence counsel and the Bar Association for legal assistance.
The applicant replied to the Supreme Court and requested that the court appoint a lawyer to represent him in his appeal on points of law.
On 19 March 2007 the Supreme Court declared the appeal on points of law inadmissible as the applicant was not legally represented. The decision stated that the Supreme Court could appoint a lawyer only if the appeal on points of law was lodged by the Ministry of Justice or by the Prosecutor General, which had not been the case.
On 21 March 2007, before the Supreme Court's decision was served on the applicant, the applicant withdrew his request for a lawyer to be appointed. In his view, an appeal on points of law was an ineffective and irrelevant remedy. He explained that his main intention had been to challenge the factual and legal conclusions of the ordinary courts and that a cassation remedy was not available for such issues.
(b) Alleged impediments to the applicant's defence rights
(i) The applicant's complaints about his counsel
The applicant complained several times that his officially assigned defence counsel had failed to appear for many procedural decisions made in the proceedings and that he had failed to defend the applicant adequately. In response to the applicant's allegations, the courts found no reasons to appoint different counsel.
A new lawyer was assigned to the applicant on 14 November 2006. The Nitra Regional Court had not found any shortcomings in the first lawyer's conduct but stated that, as the applicant had lodged a criminal complaint against his counsel, that individual could not be asked to further represent the applicant.
The applicant subsequently asked his newly appointed counsel for legal assistance in various matters. On 19 December 2006 counsel explained in a letter that he had been appointed to defend the applicant in the criminal proceedings exclusively and that he would only assume his duties in that respect. He refused to provide legal assistance to the applicant on other matters because of his heavy workload. He advised the applicant to ask the Bar Association for help.
(ii) Access to laws and other legal documents and their copies in prison
According to the applicant, the prison library had not contained all of the legal texts which he needed to mount a proper defence. He claimed that, as a result, many of his submissions had been rejected by the courts. The applicant obtained some texts and legal literature through his counsel and family members.
The applicant asked several State bodies for copies of certain documents, claiming that he could not make copies in the prison. Some authorities complied with his requests but others asked him to pay for copies.
The prison director and the prosecution service informed him that the legal texts available in the library were regularly updated in accordance with the law, subject to the availability of funds. He was informed that it was not the prison administration's duty to provide him with facilities for the copying of documents. He had been told that he could ask his counsel for assistance.
4. Other facts relied upon by the applicant
(a) Disciplinary sanctions imposed on the applicant in prison
While in detention, the applicant was repeatedly punished for breaches of discipline and the prison rules (for example, rest outside the prescribed hours, unauthorised contact with other detainees, arrogant and vulgar behaviour, failure to observe the prison officers' orders). On five occasions the prison officers reprimanded the applicant. The applicant was punished twelve times with solitary confinement of varying severity (five, ten and the maximum penalty of fifteen days). The officers' decisions were upheld by the director of the prison upon the applicant appealing against them.
(b) Alleged ill-treatment by the prison officers and the police
The applicant unsuccessfully filed several criminal complaints alleging that prison officers had used physical violence against him.
(c) Applicant's attempts to bring civil proceedings
Since 2002 the applicant has attempted to bring numerous sets of civil proceedings before several district courts, seeking compensation for damage in respect of, inter alia, deprivation of his liberty and alleged ill treatment by police and prison officers. A number of sets of proceedings were terminated on the grounds that the applicant's submissions had not met the formal requirements for instituting proceedings, and that the applicant had not remedied those shortcomings within the given time-limits.
One set of proceedings was stayed in 2006 pending the outcome of the criminal proceedings concerning the charges of murder, and some other proceedings are still pending.
A number of sets of proceedings to which the applicant was or still is a party are or were the subject matter of different applications lodged with the Court.
(d) Health care fees
As of 1 June 2003 the Health Care Act was amended, in that fees became payable for certain health care services including, inter alia, the consultation of general practitioners (a fee of 0.50 euros (EUR) per visit). The applicant sent complaints to several authorities, pointing out that he had no income owing to his incarceration.
The Ministry of Justice and the Directorate General of Prison Administration informed the applicant that the prison administration was obliged to provide him with appropriate health care even if he was indigent. In such a case, the prison was required to pay the fees and the sums paid were to be registered as the applicant's debt.
(e) Alleged imposition of Christian views upon the applicant
The applicant sent letters to several Ministries complaining that the State, by its policy, allowed the indoctrination of Christian beliefs (financial support of the churches by the State, Christian holidays accepted as State holidays, placement of crosses on public places such as squares and State buildings, etc.). He further complained that the State compelled the applicant to manifest his religion publicly by obliging him to opt either for religious education or education on ethics for his child. The Ministry of Finance and the Ministry of Culture sent replies to the applicant explaining the relations between the State and the churches.
5. The applicant's submissions to the Constitutional Court
(a) Various matters raised by the applicant on several occasions
Between 2002 and 2006 the applicant attempted to seek redress before the Constitutional Court several times, raising most of the complaints which give rise to the present application.
On a few occasions, a Constitutional Court judge informed the applicant that his submissions could not be dealt with as they fell short of the formal requirements for proceedings to be brought before the Constitutional Court. He also informed the applicant of the formal requirements and sent him the relevant statutory provisions.
On several occasions the Constitutional Court adopted a decision by which it declared the applicants' complaints inadmissible (inter alia, for failure to exhaust available remedies).
In 2003 the applicant asked the Constitutional Court that a lawyer be appointed to represent him before the Constitutional Court on the grounds that he did not have any money. Subsequently he asked the Constitutional Court to terminate the proceedings, claiming that he himself would appoint a lawyer after his release from prison. As a result, no formal decision on his complaint, including the request for a lawyer, was adopted.
(b) Proceedings leading to the Constitutional Court's decision of 2 March 2005
At the end of 2004 the applicant sent several letters to the Constitutional Court raising various issues. On 11 January 2005 a judge of the Constitutional Court informed the applicant, amongst other things, that he had to be represented by a lawyer. The letter stated that the applicant already had defence counsel and that he could ask that lawyer to represent him before the Constitutional Court. According to the Bar Association Act, a lawyer would be liable if he refused to provide a person with legal assistance without any acceptable reasons. However, if counsel refused his request, the applicant would be entitled to ask the Bar Association to select a lawyer who would represent him. The selected lawyer would then be obliged to provide the applicant with legal assistance under the conditions set by the Bar Association. The applicant was asked to rectify shortcomings in his submission within thirty days, failing which his complaint might be rejected.
On 15 January 2005 the applicant sent a letter to the Bar Association, asking that a lawyer be appointed to represent him before the Constitutional Court.
On 17 January 2005, the applicant sent a letter to his defence counsel, asking the lawyer to represent him before the Constitutional Court.
On 9 February 2005 the applicant informed the Constitutional Court about the above-mentioned letters to the Bar Association and his counsel. He requested that the Constitutional Court appoint a lawyer to represent him in the constitutional proceedings. He argued that he had not received replies from his lawyer and from the Bar Association. Relying on Articles 5 and 6 of the Convention he specified that his complaint concerned three main issues, namely: (i) that he had been unlawfully deprived of his liberty on 1 September 2001; (ii) that the length of his detention had been excessive; (iii) that his defence counsel had not fulfilled his duties and that the applicant had been unable to defend himself, as he had not had access to the relevant documents. He also complained about the length of the criminal proceedings.
The applicant challenged the alleged bias of a Constitutional Court judge, doing so on an unclear basis. The Constitutional Court dismissed the challenge of bias as unsubstantiated on 16 February 2005.
In a decision of 2 March 2005 the Constitutional Court dismissed the applicant's submissions, as they had not met several formal requirements. Besides legal representation being compulsory, the applicant had not set out a summary of his complaint and had not shown that he had complied with the statutory two-month time-limit. The court noted that the applicant had not followed the specific instructions of the Constitutional Court judge set out in the letter of 11 January 2005. The decision stated, inter alia, that: (i) the applicant had not submitted any evidence that counsel had explicitly refused his request for legal assistance in the constitutional proceedings; and (ii) in the letter addressed to the Bar Association on 15 January 2005, he had not specified that his defence counsel had turned down such a request.
(c) Applicant's attempt to obtain redress in respect of his conviction for robbery
After the applicant had been convicted for robbery, he attempted to obtain redress as regards the alleged unfairness of the trial, relying on Article 6 §§ 1 and 3 (b), (c) and (d) of the Convention. On 7 March 2006 a judge of the Constitutional Court informed the applicant that his submissions fell short of the relevant formal requirements. The Constitutional Court lacked jurisdiction to act as a court of appeal against judgments given by ordinary courts. The applicant was informed that he had the possibility of seeking the protection of his rights by means of an appeal on points of law.
B. Relevant domestic law and practice
1. Constitutional Court Act 1993 and the Constitutional Court's practice
Pursuant to section 31(a) of the Constitutional Court Act 1993, in conjunction with Articles 30 and 138 § 1 of the Code of Civil Procedure, the Constitutional Court may appoint a lawyer to represent a natural or legal person, at that person's request, provided that it is justified by the claimant's situation and that the case is not clearly devoid of any prospect of success.
It has been the Constitutional Court's established practice to appoint, upon request, a legal aid lawyer to people whose personal and material situation so requires it, provided that such complaints fulfilled other admissibility requirements (see, for example, case nos. II. ÚS 55/98, I. ÚS 61/00, III. ÚS 48/00, ÚS 96/04 and I. ÚS 347/06).
On 18 March 2008 the Constitutional Court appointed, upon request, a legal aid lawyer to represent the present applicant in constitutional proceedings no. III. ÚS 82/08. Those proceedings concerned a complaint which was raised in another application before the Court. The applicant explicitly based his request on his lack of money.
The Constitutional Court has held in several cases that an examination of an individual human rights complaint could not entail a review of the constitutionality of legislation (for example proceedings nos. II. ÚS 40/00, II. ÚS 5/02, ÚS 238/03, III. ÚS 65/06 and IV. ÚS 124/07). Reaching the same conclusion it has additionally stated that, when examining individual human rights complaints under Article 127 of the Constitution, it is bound by the presumption of the accuracy of legislation (for example proceedings nos. III. ÚS 10/07-7 and IV. ÚS 253/08-16).
2. Code of Criminal Procedure, in force as from 1 January 2006
Pursuant to Article 84 of the Code of Criminal Procedure, if a different set of criminal proceedings is pending against a person who is serving a prison sentence and if detention during judicial proceedings of such a person is justified, a court may decide that limitations are to be imposed on that person and may also determine their character and duration. The limitations must not be stricter than those which would be applicable during his or her detention during judicial proceedings.
3. Legal framework concerning detention during judicial proceedings
(a) Detention Act 1993, in force until 1 July 2006 (“the 1993 Act”)
Section 10 of the 1993 Act provides that an accused person detained during judicial proceedings is entitled to receive visitors, without physical contact, once a month for at least thirty minutes. Where justified, the prison director may permit more frequent visits or another form of contact.
Section 12a (10) of the 1993 Act states that an accused person is entitled to use his or her money to purchase groceries and other items, provided that he or she has fulfilled the relevant statutory requirements. These include: (i) the obligation to pay at least the same amount of his or her debt to the Prison Administration or to other entitled people as he or she wishes to withdraw from his or her account; (ii) the remaining balance on the accused's account cannot be lower than the estimated travel costs to the place of his permanent residence together with one per diem allowance, the amount of which is set by law; and (iii) the overall amount sought to be withdrawn during one calendar month cannot exceed the amount set by law as a minimum amount necessary for living.
Pursuant to section 27 of the 1993 Act, if an accused person has been found guilty by a judgment which has become no longer subject to appeal, he or she is obliged to reimburse to the State the costs of his maintenance while being detained during the judicial proceedings. The amount per day is fixed as 1/60 of the amount set by law as the minimum amount necessary for living (at the relevant time it was approximately EUR 150).
(b) Detention Act 2006, in force as from 1 July 2006 (“the 2006 Act”)
Under section 23 (3) and (4) of the 2006 Act, an accused person is entitled to use his or her money to purchase groceries and other items only if the amount in his or her possession is higher than the estimated travel costs to the place of his or her permanent residence together with one per diem allowance, the amount of which is set by law. If an accused person has not paid at least the same amount of his or her debt to the State in respect of prisoners' maintenance contributions and maintenance to other people ordered by the courts as the accused person wishes to withdraw, the accused person can use his or her money only for the purchase of basic sanitary items, objects necessary for correspondence, medicines (which cannot be provided for free), medical fees, and for the payment of debts, court and administrative fees.
Section 54 of the 2006 Act provides that where an accused person has been found guilty by a judgment which has become no longer subject to appeal, he or she is obliged to reimburse to the State the costs of his or her maintenance while being detained during judicial proceedings for the first 180 days of detention.
(c) Ministry of Justice Detention Regulations 1994, in force until 1 July 2006 (“the Detention Regulations”)
Section 26 of the Detention Regulations provides that men are entitled to take a shower at least once a week. In special cases, the intervals between taking showers can be determined by a physician.
4. Legal framework concerning the service of prison sentences
(a) Service of Prison Sentences Act 1965, in force until 1 January 2006 (“the 1965 Act”)
Section 12 (3) of the 1965 Act provides that a convict is entitled to receive visitors who are his or her close persons at a time determined by the prison director. The frequency of the visits depends on the type of security level to which a convict is subjected: visits are allowed at least once a fortnight for convicts at the lowest security level; once a month for convicts at the medium security level; and once in six weeks for those at the highest security level. Visits to a convict subjected to the medium or highest levels of security are held without physical contact. A prison director may exceptionally decide otherwise.
Pursuant to section 14a (11) of the 1965 Act, a convict may use his or her money to purchase groceries and other items, provided that he or she has fulfilled the relevant statutory requirements. These include: (i) the obligation to pay at least the same amount of his or her debt to the Prison Administration or to other entitled people as the prisoner wishes to withdraw; (ii) the remaining balance on his or her account cannot be lower than the estimated travel costs to the place of his or her permanent residence together with one per diem allowance, the amount of which is set by law; and (iii) the overall amount requested to be withdrawn during one calendar month cannot exceed the statutory minimum amount necessary for living.
(b) Service of Prison Sentences Act 2005, in force as from 1 January 2006 (“the 2005 Act”)
Pursuant to section 22 (2) of the 2005 Act, a convict is entitled to take a shower at least twice a week.
Section 24 (1) of the 2005 Act provides that a convict is entitled to receive visitors at least once a month for two hours.
Under section 28 (2) and (3) of the 2005 Act, a convict may not use his or her money to purchase groceries and other items if the amount in his possession is lower than the estimated travel costs to the place of his permanent residence together with one per diem allowance, the amount of which is set by law.
If a convict has not paid a part of his or her debt to the State in respect of prisoners' maintenance contributions and to other creditors registered with the prison authorities, a convict can use his or her money only for the purchase of basic sanitary items, objects necessary to conduct correspondence, medicines (which cannot be provided for free), medical fees, and for the payment of debts, court and administrative fees.
Pursuant to section 81 of the 2005 Act, a convict who continuously violates prison rules or endangers the security of prison officers or other prisoners may be placed into a separate, secure part of the prison (bezpečnostný oddiel).
A convict against whom a different set of criminal proceedings is in process may be placed in a separate, secure part of the prison, provided that a reason for detention during judicial proceedings is present and a court has decided to impose a reasonable level of limitations upon such a convict, in accordance with Article 84 of the Code of Criminal Procedure.
Placement of a convict in a separate, secure part of the prison is to be decided upon by the prison director. The justification for a convict's placement in that part of prison is to be examined by a prosecutor and the prison director at least once every six months.
Section 90 of the 2005 Act provides that a convict is obliged to reimburse the costs of his maintenance in prison. He is exempted from that obligation during the period in which he or she does not work or when he or she participates in educational activities and, at the same time, has not refused to work.
(c) Ministry of Justice Service of Prison Sentences Regulations 1994, in force until 1 January 2006 (“the 1994 Regulations”)
Pursuant to section 37 of the 1994 Regulations, a convict is entitled to take a shower at least once a week.
5. Bar Association Act 2003 (“the 2003 Act”)
Section 20 (3) of the 2003 Act provides that a person whose request for legal assistance under the 2003 Act has been turned down by a lawyer may ask the Bar Association to appoint a lawyer to represent him or her. Unless there are reasons for refusal in accordance with section 21 of the 2003 Act, the lawyer is obliged to provide that person with legal assistance under the conditions set by the Bar Association.
Under section 21 of the 2003 Act a lawyer is obliged to refuse legal assistance in certain specified circumstances – for example, in the event of a conflict of interests, or if he or she cannot duly protect the rights of a client due to his or her workload or a long-term absence.
C. Recommendation Rec(2006)2 of the Committee of Ministers to member states on the European Prison Rules, adopted on 11 January 2006 (“the European Prison Rules”)
The relevant extracts from the Recommendation read as follows:
“13. These rules shall be applied impartially, without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
19.4. Adequate facilities shall be provided so that every prisoner may have a bath or shower, at a temperature suitable to the climate, if possible daily but at least twice a week (or more frequently if necessary) in the interest of general hygiene.
24.10. Prisoners shall be allowed to keep themselves informed regularly of public affairs by subscribing to and reading newspapers, periodicals and other publications and by listening to radio or television transmissions unless there is a specific prohibition for a specified period by a judicial authority in an individual case.
31.5. Prisoners shall, subject to the requirements of hygiene, good order and security, be entitled to purchase or otherwise obtain goods, including food and drink for their personal use at prices that are not abnormally higher than those in free society.
95.1. The regime for untried prisoners may not be influenced by the possibility that they may be convicted of a criminal offence in the future.
95.3. In dealing with untried prisoners prison authorities shall be guided by the rules that apply to all prisoners and allow untried prisoners to participate in various activities for which these rules provide.
99. Unless there is a specific prohibition for a specified period by a judicial authority in an individual case, untried prisoners:
a. shall receive visits and be allowed to communicate with family and other persons in the same way as convicted prisoners;
b. may receive additional visits and have additional access to other forms of communication; and
c. shall have access to books, newspapers and other news media.”
COMPLAINTS
(i) his deprivation of liberty since 1 September 2001 had been unlawful;
(ii) as he had not had access to updated legislation or relevant legal documents and as he could not make copies of documents, he had been unable to defend himself in the criminal proceedings or to lodge his civil actions in accordance with formal requirements;
(iii) the Constitutional Court had refused to examine his complaints;
(iv) State organs dealing with his criminal case had been biased, as they had considered him to be guilty before he had been convicted of a crime;
(v) his defence counsel had not protected the applicant's interests;
(vi) his guilt in the proceedings concerning the charges of robbery had been established on the basis of evidence unlawfully obtained, the principles of equality of arms and in dubio pro reo had not been observed, the court had refused to hear defence witnesses, the judgment had not been sufficiently reasoned and his defence had been thwarted by the refusal to appoint different counsel to assist him;
(vii) the period of his detention during judicial proceedings had not been deducted from the nine-year prison sentence imposed on him;
(viii) the prison authorities, which had imposed disciplinary punishments of solitary confinement on the applicant, could not have been regarded as an independent and impartial tribunal and that, as his conditional release would depend on the record of his good behaviour, his disciplinary sanctions had prevented him from being conditionally released in the future;
(ix) the obligation to pay fees for several services related to his health care had been unfair;
(x) the civil proceedings which he initiated had lasted too long and had been unfair;
(xi) there had been unreasonable delays in the criminal proceedings concerning the charges of robbery; and
(xii) he had not had, in reality, the possibility of claiming damages from prison officers who had inflicted injuries on him, as the competent authorities had refused to institute criminal proceedings against them.
(i) the house search and other investigatory activities had been unlawful;
(ii) the conditions in which he had been detained during the judicial proceedings had been incompatible with his right to respect for his private and family life;
(iii) additional restrictions had been imposed on him in the prison where he had served his sentence on the grounds that a different set of criminal proceedings had still been pending against him;
(iv) the State had compelled him to manifest his religion publicly by obliging him to opt either for religious education or education on ethics for his children; and
(v) he had been obliged to pay fees for services related to his health care.
(i) when receiving a sum of money from his family, he had had to use half of that amount to pay a part of his debt to the State. If he had not reimbursed a part of his debt to the State every month, he had been prevented from buying groceries and other items in the prison shop;
(ii) the State organs had caused material damage to him during their investigatory activities;
(iii) the obligation to pay fees for services had impacted on his health care.
THE LAW
A. Complaint under Articles 8 and 14 of the Convention concerning the restrictions on the applicant's rights in detention
The applicant complained that his rights had been restricted to a greater extent than the rights of people serving prison terms. He also stated that, after he had started serving his sentence, additional restrictions had been imposed on him in prison. He relied on Articles 8 and 14 of the Convention which read as follows:
Article 8
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Article 14
“The enjoyment of the rights and freedoms set forth in [the] Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”
The Government firstly argued that the applicant had not exhausted available domestic remedies, because he had not sought the protection of his rights before the Constitutional Court in a complaint under Article 127 of the Slovak Constitution, lodged in accordance with the applicable procedural requirements.
Alternatively, they claimed that the complaint raised by the applicant was manifestly ill-founded. All restrictions imposed on the applicant had been standard procedure and had exclusively served the maintenance of order and the proper functioning of prisons. They argued that individuals detained during judicial proceedings had to expect certain restrictions of their rights, and that all restrictions imposed on the applicant had been in accordance with the European Prison Rules (Recommendation Rec(2006)2 of the Committee of Ministers to member states on the European Prison Rules). In their view, the nature and extent of the limitations imposed by Slovakian legislation could not be considered disproportionate. On the contrary, the Government argued that those limitations had been adequate and necessary in a democratic society in the interests of public security and the prevention of disorder or crime. Lastly, the Government stated that the situations relied on by the applicant had not been relevantly similar. They reasoned that the aim of detention during judicial proceedings and that of a prison sentence were totally different. In order to achieve those aims, the regime of detention during judicial proceedings was different from that of the regime of prison sentences.
The applicant argued that he had been required to exhaust only remedies which could have afforded redress for the violation of his rights. He agreed with the Government's argument that detention during judicial proceedings and prison sentences were different. However, in his view the difference lay in the fact that individuals detained during judicial proceedings were to be considered innocent. Such persons had not been found guilty and they, therefore, could not be placed in a worse situation than convicted prisoners. The restrictions imposed on him concerned many issues that had been irrelevant for the proper conduct of the criminal proceedings and they had been imposed on him for the whole time he had been detained during the judicial proceedings.
The applicant stated that, while he had been detained during the judicial proceedings for several years, he had been able to receive visitors once a month for thirty minutes. In contrast, convicted prisoners had been entitled to receive visitors once a fortnight. Secondly, detainees had been entitled to take a shower once a week, but convicted prisoners had been able to do so twice a week. He also stated that convicted prisoners had been allowed to watch television every day but that he had not been able to watch television at all while being detained during the judicial proceedings. Furthermore, the convicted prisoners had been allowed to have a private radio receiver in their cell. Individuals detained during judicial proceedings had not had that right. They had only been able to listen to the radio programme which had been chosen and broadcast centrally by the prison authorities. The applicant also explained that, while being detained during the judicial proceedings, he had not had an electric plug in his cell and that the prison guards had brought hot water used to make coffee or tea only once a day. On the other hand, convicted prisoners had had an electric plug in their cells and had been entitled to have their own kettles. The applicant concluded that there had been no justification for such a long-lasting imposition of those types of restrictions on him as a person detained during judicial proceedings.
The Court observes that the essence of the present complaint is: (i) the allegedly unjustified difference in treatment between the applicant, as a person detained during judicial proceedings, and prisoners serving their prison sentences; and (ii) that such a difference in treatment is based on applicable laws. It notes that the Government themselves acknowledged that the limitations imposed on the applicant were stipulated by the relevant legislation. In view of the above and considering that the Constitutional Court has held on a number of occasions that an examination of an individual human rights complaint cannot entail a review of the constitutionality of legislation, it concludes that, in respect of the present complaints, the applicant was not required to lodge a complaint under Article 127 of the Slovak Constitution, as suggested by the Government (see Urbárska Obec Trenčianske Biskupice v. Slovakia, no. 74258/01, §§ 85-89, ECHR 2007 XIII (extracts), and Babylonová v. Slovakia, no. 69146/01, § 44, ECHR 2006-VIII). The Government's argument that this part of application is inadmissible for non-exhaustion of domestic remedies must therefore be dismissed.
The Court considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court therefore concludes that this complaint is not manifestly ill founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established. It must therefore be declared admissible.
B. Complaint under Article 1 of Protocol No. 1 concerning interference with the applicant's property rights in prison
The applicant complained that, when receiving a sum of money from his family, he had been required to use half of that amount to pay part of his debt to the State. Refusal to pay the amount would have led to the suspension of his right to buy groceries and other items in the prison shop. He relied on Article 1 of Protocol No. 1, which provides:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.”
The Government expressed the opinion that the applicant had not exhausted available domestic remedies, because he had not sought the protection of his rights before the Constitutional Court in a complaint under Article 127 of the Slovak Constitution, lodged in accordance with the applicable procedural requirements.
Alternatively, the Government claimed that the present complaint was manifestly ill-founded. In their view, the relevant legislation regulating the use of prisoners' money was compatible with the requirements of Article 1 of Protocol No. 1. They argued that that provision did not impair the right of States to adopt such laws as they deemed necessary to control the use of property in accordance with the general interest or to secure the payment of taxes and other contributions or penalties.
The purpose of the relevant legislation had been to ensure that prisoners pay their debts and always have sufficient means at their disposal for a journey home after their release. The Government explained that the applicant had been entitled to use his money only if he fulfilled the statutory requirements. More specifically, in the previous calendar month, he had been required to pay at least the same amount of his debt to the Prison Administration or other entitled people as he wished to withdraw; the remaining balance on his account could not be lower than the estimated travel costs to the place of his permanent residence together with one per diem allowance, the amount of which was set by law; and the overall amount sought to be withdrawn during one calendar month could not exceed the statutory minimum amount necessary for living, which was also set by law. If a person did not fulfil those requirements, the prison director was entitled to grant leave to that person to use his or her money to buy medicines, indispensable sanitary items or to pay taxes or fees.
Even though such regulation had interfered with the right of prisoners to freely dispose of their money, it was not a disproportionate interference because prisoners had been provided with food, clothing and other items. When using additional financial resources, the prisoners had secured above-standard conditions for themselves. The Government relied on the Commission's case-law in that respect (X. v. the Federal Republic of Germany, no. 4984/71, Commission decision of 5 October 1972, and Davis v. the United Kingdom, no. 27042/95, Commission decision of 17 January 1997).
The applicant disagreed and argued that he had been required to exhaust only remedies which could have afforded redress for the violation of his rights. He further stated that he had been in prison for several years and had not had any income. The only way in which he could have received money needed to pay for supplementary food, personal items, correspondence, medicaments and so forth, had been to ask his family members for help. However, he had been under the obligation to use half of the money received from his family to pay his debt to the State. If he had failed to reimburse a part of the debt on a monthly basis, he would have been prevented from buying groceries and other items in the prison shop. Overall, considering the amount of money he had received from his family and the obligation to use half of it to pay his debt, he claimed that he had been left with less than EUR 7 per month that he had been able to use in the prison shop. He also claimed that the quantity of the food provided in the prison had been poor and that the prisoners had therefore been forced to buy supplementary food. He finally argued that the restrictions set by law had not fulfilled the requirement of proportionality, in that a fair balance had not been struck between the general interest of society and his fundamental rights. As a result, the legislation had placed an unreasonable burden on him.
The Court finds that the alleged interference with the applicant's rights guaranteed under Article 1 of Protocol No. 1 stemmed from the legislation in force at the relevant time. It considers that the arguments raised by the parties in respect of the requirement of exhaustion of domestic remedies are similar to those examined above in the context of the alleged violation of the applicant's rights under Article 8 in conjunction with Article 14. As regards the present complaint, the Court equally finds that the applicant was not required to lodge a complaint under Article 127 of the Slovak Constitution before introducing the present complaint before the Court. The Government's argument in this respect must therefore be dismissed.
It considers, in the light of the parties' submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established. It must therefore be declared admissible.
C. Complaint under Article 5 of the Convention concerning the length of the applicant's detention during judicial proceedings
Relying on Article 5 the applicant complained about the length of his detention during judicial proceedings. The relevant part of that provision reads as follows:
“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be ... entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”
1. The Government's submissions
The Government argued that the applicant had not exhausted available domestic remedies. In particular, he had failed to raise this complaint before the Constitutional Court under Article 127 of the Slovak Constitution in accordance with applicable procedural requirements. The applicant's complaint had been rejected by the Constitutional Court on 2 March 2005 as it had not complied with the relevant formal requirements.
The Government relied on the Court's case-law, whereby the Court has held that although applicants in detention are in a more difficult situation with regard to the requirement of compulsory legal representation, such applicants have the possibility of requesting that the Bar Association appoint them a lawyer if they could not secure a lawyer on their own (Slezák v. the Czech Republic (dec.), no. 32487/6, 14 January 1998; Kröhnert v. the Czech Republic (dec.), no. 60224/00, 9 October 2001; and Manoussos v. the Czech Republic and Germany (dec.), no. 46468/99, 9 July 2002). They stated that, even though the applicant in the present case had requested legal assistance from the Bar Association, he had not done it in accordance with the relevant statutory requirements. More specifically, he had not indicated and shown to the Bar Association that his request for legal assistance had been turned down by a specific lawyer (mutatis mutandis, Beňačková v. Slovakia (dec.), no. 52572/99, 17 December 2002). The Government further stated that the possibility for the applicant to have contacted any lawyer in writing had not been limited in any way.
They pointed out that the Constitutional Court – on several occasions and beyond the scope of its duties – had informed the applicant of the statutory requirements for a constitutional complaint, had sent him copies of the relevant legal provisions and had advised him how to seek the protection of his rights before State organs. They also argued that the applicant's actions could not have been considered to be genuine. In this respect, they noted that in 2003 the applicant, after having asked the Constitutional Court to appoint him a lawyer, had withdrawn his request, claiming that he would appoint a lawyer himself after his release from prison. In the Government's view, the applicant had also acted in the same manner in 2006, when he had asked the Supreme Court to appoint a lawyer in the proceedings concerning his appeal on points of law and had subsequently withdrawn his request.
2. The applicant's submissions
The applicant disagreed and argued that he had raised the present complaint before the Constitutional Court. Although he had complied with the Constitutional Court judge's instructions set out in the letter of 11 January 2005, his constitutional complaint had been rejected. In the applicant's view, he had done everything he could be expected to do in respect of the requirement to lodge a complaint under Article 127 of the Slovak Constitution.
As regards his request for a lawyer which had been sent to the Bar Association, the applicant claimed that he had not known about the obligation to show the Bar Association that his request for legal assistance had been previously turned down by a lawyer. The applicant explained that, besides his lawyer, he had not contacted any other lawyer because he had not had any money and nobody would have provided him with legal assistance free of charge. In his view, the State had prevented him from exhausting the available remedies by not informing him sufficiently and by not providing him with effective legal assistance. The applicant further claimed that his situation had been different than those of the cases relied on by the Government.
3. The Court's assessment
The Court reiterates that on 1 January 2002 a new remedy under Article 127 of the Slovak Constitution became available for human rights complaints, and applicants are required to use it for Convention purposes (see, for example, Andrášik and Others v. Slovakia (dec.), nos. 57984/00, 60237/00, 60242/00, 60679/00, 60680/00, 68563/01 and 60226/00, ECHR 2002-IX; Loyka v. Slovakia (dec.), no. 62219/00, 4 January 2005; or Savka v. Slovakia (dec.), no. 77936/01, 30 May 2006).
As regards the applicant's submissions to the Constitutional Court, the Court observes that the domestic court informed the applicant on several occasions that legal representation was mandatory in constitutional proceedings. In a letter of 11 January 2005 the applicant was specifically instructed to ask his defence counsel for legal assistance. He was also informed that if his request was turned down, he had the possibility of asking the Bar Association to assign him a lawyer for the purposes of the constitutional proceedings, and that such a lawyer would be obliged to provide the applicant with legal assistance under the conditions set by the Bar Association.
The above instructions of the Constitutional Court judge do not appear arbitrary, wrong or impossible to fulfil by the applicant. The Court notes that the Constitutional Court is not obliged to appoint a lawyer to individuals who claim that their request for legal assistance has been turned down by a lawyer, as was the applicant's case. The applicant specifically based his request for a lawyer on the fact that his defence counsel had refused to represent him before the Constitutional Court. The Court observes that in those circumstances, contrary to situations where plaintiffs claim to be indigent, it is the obligation of the Bar Association, and not of the Constitutional Court, to provide individuals with legal assistance.
The Court finds that the applicant did not follow the instructions of the Constitutional Court judge. He sent a letter to the Bar Association on 15 January 2005 and only afterwards to his defence counsel on 17 January 2005. In the letter to the Bar Association he did not state that he had expressly asked his defence counsel or any other lawyer to represent him before the Constitutional Court and that his request had been turned down, or ignored, even though this was a statutory requirement for the appointment of a lawyer by the Bar Association. Although the applicant was in a more difficult situation when trying to address lawyers from prison, there is no indication that he was in fact prevented from forwarding any requests for legal assistance to lawyers or to the Bar Association in writing.
As the Constitutional Court judge specifically advised the applicant in a letter of 11 January 2005 how to address the Bar Association pursuant to the Bar Association Act, it follows that the applicant's argument that he did not know how to address the Bar Association cannot be upheld.
Moreover, the Court observes that the Slovak legislation does not specifically require the Constitutional Court to appoint a lawyer in the constitutional proceedings. However, it has been the Constitutional Court's established practice to do so, upon a specific request, in respect of people whose financial situation so requires and whose complaints are not clearly devoid of any prospect of success.
The Court notes that the applicant, on a different occasion, asked the Constitutional Court for a legal aid lawyer in 2003 and explicitly based his request on his financial situation. However, he later withdrew his request. It follows that even though the applicant knew that he could ask the Constitutional Court for a legal aid lawyer and support his request with details of his financial situation, he did not explicitly do so in his complaint of 2005. In the latter case, he expressly based his request on the fact that his lawyer had refused to provide him with legal assistance. As mentioned above, in such circumstances it is the role of the Bar Association, and not the responsibility of the Constitutional Court, to act.
Furthermore, the Court remarks that the applicant was provided with legal assistance free of charge by the Constitutional Court's decision in proceedings no. III. ÚS 82/08, after he had clearly based his request on his financial situation (see “Relevant domestic law and practice” above). Moreover, in constitutional proceedings no. II. ÚS 186/08, the applicant, at his own expense, appointed a lawyer to represent him before the Constitutional Court. Those two constitutional proceedings gave rise to another application lodged by the applicant with the Court.
It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
D. The applicant's other complaints raised under Articles 3, 5, 6, 8, 11, 14 and 34 of the Convention, Article 1 of Protocol No. 1 and Article 2 of Protocol No. 4
The applicant further raised a number of other complaints under Articles 3, 5, 6, 8, 11, 14 and 34 of the Convention, under Article 1 of Protocol No. 1 and Article 2 of Protocol No. 4 (see the section entitled “Complaints” above).
However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.
It follows that this part of the application is manifestly ill founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
E. Complaint under Article 13 of the Convention
Finally, the applicant complained that he had not had an effective remedy at his disposal, as required by Article 13 of the Convention, as regards his above complaints. Article 13 reads as follows:
“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”
The Government argued that Article 13 was inapplicable to the present complaints on the grounds that: (i) the applicant had had an effective remedy at his disposal, namely a complaint under Article 127 of the Slovak Constitution; and (ii) as his complaints were manifestly ill-founded, he had had no “arguable claim” to be the victim of a violation of his Convention rights.
The applicant reiterated his complaint.
1. As regards complaints under Articles 8 and 14 of the Convention and Article 1 of Protocol No. 1 (examined in points A and B above)
The Court has declared admissible the applicant's complaints under Articles 8 and 14 of the Convention concerning different treatment of the applicant in prison, as well as his complaint under Article 1 of Protocol No. 1 related to the use of his money in prison.
To the extent that the applicant alleged a violation of Article 13 of the Convention in respect of those complaints, the Court considers, in the light of the parties' submissions, that this part of the application raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits.
The Court therefore concludes that this complaint is not manifestly ill founded within the meaning of Article 35 § 3 of the Convention. No other grounds for declaring it inadmissible have been established. It must therefore be declared admissible.
2. As regards the remaining complaints (see points C and D above)
According to the Court's case-law, Article 13 applies only where an individual has an “arguable claim” to be the victim of a violation of a Convention right (see Boyle and Rice v. the United Kingdom, 27 April 1988, § 52, Series A no. 131).
The Court has found above that the applicant's remaining complaints under Articles 3, 5, 6, 8, 11, 14 and 34 of the Convention, Article 1 of Protocol No. 1 and Article 2 of Protocol No. 4 were inadmissible for non-exhaustion of domestic remedies or because they are manifestly ill founded. For similar reasons, the applicant did not have an “arguable claim” and Article 13 is therefore inapplicable to the respective part of his application.
It follows that this part of the application is manifestly ill founded within the meaning of Article 35 § 3 of the Convention and must be rejected pursuant to Article 35 § 4.
For these reasons, the Court unanimously
Decides to discontinue the application of Article 29 § 1 of the Convention;
Declares admissible, without prejudging the merits, the applicant's complaints under (i) Articles 8 and 14 concerning different treatment of the applicant in detention, (ii) Article 1 of Protocol No. 1 concerning the use of his money in prison and (iii) Article 13 concerning the lack of an effective remedy in this respect;
Declares inadmissible the remainder of the application.
Lawrence Early Nicolas Bratza
Registrar President