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MICHALKO v. SLOVAKIA - 35377/05 [2010] ECHR 2078 (21 December 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/2078.html
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[2010] ECHR 2078
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FOURTH
SECTION
CASE OF
MICHALKO v. SLOVAKIA
(Application
no. 35377/05)
JUDGMENT
STRASBOURG
21
December 2010
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 Michalko v.
Slovakia,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Ljiljana Mijović,
David Thór
Björgvinsson,
Ján Šikuta,
Päivi
Hirvelä,
Mihai Poalelungi, judges,
and
Lawrence Early, Section
Registrar,
Having
deliberated in private on 30 November 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 35377/05) 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 Slovak national, Mr Tibor Michalko (“the
applicant”), on 23 September 2005.
The
applicant was represented by Mr J. Havlát, a lawyer practising
in Bratislava. The Government of the Slovak Republic (“the
Government”) were represented by their Agent, Ms M. Pirošíková.
The
applicant alleged, in particular, that his pre-trial detention had
been unlawful and arbitrary and that the corresponding procedure had
fallen short of the applicable Convention requirements.
On
8 March 2010 the President of the Fourth Section decided to give
notice of the application to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1969 and lives in Bratislava.
A. Criminal proceedings
On
22 March 2004 the Bratislava regional police headquarters commenced a
criminal investigation into a suspicious claim for a contractual
fine, the mortgage taken out on real property to secure that claim,
the expert evaluation of the property and the attempt to sell the
property via public auction.
On
29 March 2004 the applicant and three other individuals were charged
with conspiracy and attempted fraud in connection with the
transaction referred to above. The applicant for his part was
suspected of having organised the public auction. The charges against
him fell within the category of serious offences specified in Article
62 § 1 of the 1961 Criminal Code (Law no. 140/1961 Coll., as
applicable at the relevant time – “the CC”) (see
paragraph 71 in “Relevant domestic law” below).
The
document setting out the charges refers, inter alia, to a
statement by the alleged victim, documentary evidence and the results
of a search of non residential premises.
The
applicant and the other suspects denied the charges and challenged
the decision by way of an interlocutory appeal (sťaZnosť).
On
31 March 2004 the Bratislava Regional Prosecutor's Office (Krajská
prokuratúra) dismissed the interlocutory appeal and upheld
the charges. The decision contains a detailed factual description of
the charges. A general reference was made to the materials in the
investigation file and the evidence previously obtained.
The
criminal proceedings against the applicant are still pending.
B. Detention order and related constitutional complaint
On
29 March 2004 at 12.40 p.m. the police detained the applicant as
a suspect (zadrZaný ako podozrivý)
immediately before the public auction mentioned above was due to
commence.
On
30 March 2004 at 10.10 p.m. the regional prosecutor lodged a request
with the Bratislava I District Court (Okresný súd)
for the applicant and the other suspects to be placed in detention
pending trial.
On
31 March 2004 the applicant was brought before a single judge of the
District Court in order to be examined in connection with the
prosecutor's request.
The
minutes of the hearing indicate that it commenced at 1 p.m. The
applicant denied any wrongdoing and submitted that he had no
intention of evading trial or interfering with the administration of
justice. He had no knowledge of any other criminal charges against
him.
In
response to a question put by the regional prosecutor, the
applicant acknowledged that the previous day he had been handed a
document containing a charge against him for bribery.
At
the conclusion of the hearing the District Court ordered the
applicant's detention pending trial and the applicant submitted an
oral interlocutory appeal.
A
written version of the detention order of 31 March 2004 was
served on the applicant's lawyer on 6 April 2004.
In a
two-page document, of which no more than half a page dealt with
questions of substance, the District Court observed that the accused,
including the applicant, were being prosecuted for extremely serious
offences and that the applicant was facing tax evasion charges in
Košice.
It
could therefore be said that the accused had a manifest inclination
to commit property offences, which gave rise to fears that the
persons concerned, including the applicant, would continue their
criminal activities within the meaning of Article 67 § 1 (c) of
the Code of Criminal Procedure (Law no. 141/1961 Coll., as applicable
at the relevant time – “the CCP”).
On
19 April 2004 the applicant submitted the grounds of his appeal,
which ran to eighteen pages. He relied on Article 5 of the
Convention, explained in detail the private-law aspects of the
impugned transaction and argued that there was no criminal case to
answer.
The
applicant further submitted that he had no knowledge of any tax
evasion charges against him and that the assertion of the prosecution
service to that effect had not been substantiated and should
therefore not be taken into account, in accordance with the principle
of adversarial proceedings.
The
applicant added that on 16 April 2004 he had returned his licence
to organise public auctions. There was therefore no risk that he
would continue criminal activities and he should be released.
In
the alternative, the applicant offered a detailed pledge under
Article 73 § 1 (b) of the CCP that he would live in
accordance with the law, would not interfere with the course of
justice and would make himself available for the purposes of his
prosecution.
On
6 May 2004, in a private session (neverejné zasadnutie),
the Bratislava Regional Court (Krajský súd)
dismissed the applicant's interlocutory appeal against his detention.
In a decision the written version of which ran to less than five
pages and concerned all four accused, the Regional Court referred to
the “evidence previously obtained” and quoted entire
passages from the request of the regional prosecutor of 30 March 2004
for the applicant and the other suspects to be placed in detention
pending trial. As the regional prosecutor had submitted, the
applicant was facing tax evasion charges in Košice and this
assertion had not been rebutted. Moreover, as the applicant himself
admitted when questioned on 31 March 2004, he had also been charged
with bribery and the document setting out the charge had been served
on him in person.
“Having
examined the materials in the case file”, the Regional Court
“concluded” that all the formal requirements had been met
for placing the applicant and the other suspects in detention pending
trial. It was not up to a court but to the prosecution service
at that stage of the proceedings to examine whether there was a
sufficient basis for the charges. The regional prosecutor had
reviewed and upheld the charges. The Regional Court held specifically
that the principle of adversarial proceedings had been invoked out of
context by the applicant in the pre-trial proceedings and that it
only applied to the trial on the merits.
The
Regional Court also observed that the applicant's pledge under
Article 73 § 1 (b) of the CCP was not sufficient at that stage
of the proceedings owing to the nature of the case, which took
priority over the applicant's exclusion from the application of that
provision under paragraph 3 of Article 73 (see paragraph 71
in “Relevant domestic law” below).
The
decision was served on the applicant on 10 June 2004.
On
9 July 2004 the applicant lodged a complaint with the Constitutional
Court (Ústavný súd) under Article 127
of the Constitution (Constitutional Law no. 460/1992 Coll., as
amended – “the Constitution”).
He
argued that his detention had been unlawful ab initio on the
ground that when it began he had not been brought before a judge
within the period of twenty-four hours required by Article 8 § 3
of the Charter of Fundamental Rights and Freedoms (Constitutional Law
no. 23/1991 Coll.) (Listina základných práv
a slobôd – “the Charter”). It was true
that the time-limit for bringing a detained person (zadrZaná
osoba) before a judge under Article 17 § 3 of the
Constitution, as amended with effect from 1 July 2001
(Constitutional Law no. 90/2001 Coll.), was forty-eight hours.
However, neither the Constitution nor any other legislation had
expressly repealed the Charter and an implicit repeal was not
permissible. The Charter guaranteed him broader legal protection and
had to be applied in his case.
The
applicant further contended that the courts had failed independently
to examine the existence of any “reasonable suspicion”
against him and, explaining the private-law dimension of the impugned
transaction, argued that there was no criminal case to answer.
The
applicant went on to argue that he had no knowledge of any tax
evasion charges against him, that there was no evidence of any such
charges having actually been raised against him and that, therefore,
an assertion to that effect was not a ground for detaining him.
The
applicant also claimed that the decisions of 31 March and 6 May
2004 had been one-sided in favour of the prosecution, that they
lacked adequate reasoning and were generally arbitrary and that he
had not had sufficient opportunity to take part in the proceedings as
they had been held in camera.
Lastly,
the applicant argued that the Regional Court had entirely omitted to
give a formal ruling on his offer of a pledge under Article 73
§ 1 (b) of the CCP, and that the proceedings on his appeal
against his detention had not been speedy.
On
9 February 2005 the Constitutional Court declared the complaint
inadmissible as being manifestly ill-founded. It held that all the
formal requirements had been met for remanding the applicant in
custody and that the Constitutional Court was not a court of appeal
and therefore had no power to review as such the assessment of the
facts and the interpretation and application of the law by the
ordinary courts.
As
to the discrepancy between the time-limits for bringing a detained
person before a judge under the Charter (twenty-four hours) and the
Constitution (forty-eight hours), the Constitutional Court held that,
pursuant to Article 152 § 4 of the Constitution, the
constitutional provision prevailed.
The
principles of adversarial proceedings and equality of arms did not
apply in proceedings concerning pre-trial detention and,
specifically, in remand proceedings. It had been open to the
applicant to substantiate his claim that he was not being prosecuted
on other charges and, as he had not done so, the claim could not be
accepted.
The
decisions of the District Court and the Regional Court were to be
understood in their entirety and any possible shortcomings in the
reasoning of the former had been repaired by the latter.
A
pledge under Article 73 § 1 (b) of the CCP did not
arise either under the Convention or under the CCP in cases of
detention under Article 67 § 1 (c) of the CCP such as that
of the applicant which, moreover, was expressly excluded by
Article 73 § 3 of the CCP, in conjunction with 62 §
1 of the CC.
Finally,
the Constitutional Court observed that it had taken seventy one
days (from 31 March to 10 June 2004) for the Regional Court to rule
on the applicant's interlocutory appeal against detention and to have
the decision served on him. However, the applicant had not submitted
the grounds of his appeal until 19 April 2004 and the Regional
Court had ruled on 6 May 2004, which was not an excessively long
time. The period between the making and serving of the decision was
not to be taken into account as the decision was not subject to
appeal and had become final and binding (právoplatnosť)
on the day it was made.
The
decision of the Constitutional Court was served on the applicant on
23 March 2005.
C. Request for release and related constitutional
complaint
On
4 August 2004 the applicant requested release. By law the request
fell to be determined first by the regional prosecutor, who dismissed
it and on 10 August 2004 forwarded it ex officio to the
District Court for judicial determination.
On
7 September 2004 a single judge of the District Court ordered the
applicant's release on the ground that his continued detention was no
longer justified.
On
12 October 2004 the Regional Court quashed the decision of
7 September 2004 following an interlocutory appeal by the
prosecutor, and ruled that the applicant should remain in detention.
The decision was served on the applicant and his lawyer on 19 and
23 November 2004 respectively.
On
21 January 2005 the applicant lodged a complaint with the
Constitutional Court under Article 127 of the Constitution. He
contended mainly that there had been no hearing and that he had been
deprived of an opportunity to reply to the prosecutor's appeal.
The applicant also complained that the decision of 12 October
2004 had been arbitrary and that the proceedings on his request for
release had not been speedy.
On
14 September 2006 the Constitutional Court declared the complaint
inadmissible as out of time. With reference to its previous decisions
in cases nos. III. ÚS 90/03, III. ÚS 188/03, III. ÚS
332/04 and II. ÚS 246/06, the Constitutional Court observed
that when a decision under the CCP which was final was served on
a complainant and his or her lawyer, the applicable two-month
time-limit for challenging such decision by way of a constitutional
complaint started on the day when the decision was served on the
complainant. In the applicant's case, the time-limit started to run
on 19 November 2004 and ended on 19 January 2005, whereas
his complaint had not been lodged until 21 January 2005.
D. Extension of detention and related constitutional
complaint
On
17 September 2004 the regional prosecutor requested the District
Court to authorise an extension of the detention of the applicant and
all his co-defendants until 29 December 2004.
On
21 September 2004 a single judge of the District Court rejected the
request.
On
14 October 2004 the Regional Court quashed the decision of
21 September 2004 following an interlocutory appeal by the
prosecutor, and ruled that the applicant should remain in detention
until 29 December 2004. The decision was served on the applicant
on 29 October 2004 and on his lawyer on 2 November 2004.
The
applicant lodged a complaint with the Constitutional Court on 30
December 2004 under Article 127 of the Constitution. The complaint
arrived at the Constitutional Court on 2 January 2005.
The
applicant contended mainly that there had been no hearing on the
prosecutor's request for extension of his detention and on the
prosecutor's appeal and that he had been deprived of an opportunity
to reply to that appeal. He also complained that the decision of
14 October 2004 had been arbitrary and that the proceedings had
not been speedy.
On
1 June 2005 the Constitutional Court declared the complaint
inadmissible as having been lodged out of time. It observed that the
extension of the applicant's detention had become final and binding
(právoplatnosť) on the day when the Regional Court
quashed the decision of the District Court and resolved the matter
itself, irrespective of when a written copy of the Regional
Court's decision had been served on the parties.
The
Constitutional Court held that, therefore, the two-month time-limit
in the present case had commenced on 14 October 2004 and ended
on 14 December 2004, whereas the constitutional complaint had
not reached the Constitutional Court until 2 January 2005.
The
Constitutional Court also observed that, even if the two-month
time limit were to be counted from the date of service of the
impugned decision on the applicant, which was 29 October 2004,
the applicant's constitutional complaint was out of time.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Charter of Basic Rights and Freedoms (Listina
základných práv s slobôd)
The
Charter was introduced into the legal order by way of
a constitutional law which was enacted by the Federal Assembly
of the Czech and Slovak Federal Republic on 9 January 1991 and
which entered into force on 8 February 1991. It is a valid law in
Slovakia today.
Pursuant
to Article 1 § 1 of that constitutional law,
constitutional legislation (ústavné zákony),
other Acts of Parliament (zákony) and legal regulations
(ďalšie právne predpisy), and their
interpretation and implementation, must be compliant with the
Charter.
Under
Article 8 § 3 of the Charter, a person arrested as a
suspect or on the basis of a charge against him or her (zadrZaná
osoba) must be brought before a judge within twenty-four
hours. The judge must examine the arrested person and decide whether
he or she should be remanded in custody or released, within
twenty four hours of his or her presentation.
B. The Constitution (Ústava)
The
Constitution was adopted by the National Council of the Slovak
Republic on 1 September 1992 and its relevant part entered into force
on 1 January 1993. It has the status of constitutional
legislation in Slovakia.
Pursuant
to Article 17 § 3, as in force until 30 June 2001, a person
arrested as a suspect or on the basis of a charge against him or her
(zadrZaná osoba) had to be brought before a judge
within twenty-four hours of the arrest. The judge had to examine the
person and order detention pending trial or release within
twenty-four hours of presentation.
Some
provisions of the Constitution were amended with effect from 1 July
2001. Since then, pursuant to Article 17 § 3, a person
arrested as a suspect or on the basis of a charge against him or
her (zadrZaná osoba) has had to be brought before a
judge within forty-eight hours of arrest. The judge has to examine
the detained person and order his or her detention pending trial or
release within twenty-four hours and, in the case of particularly
serious offences, within seventy-two hours of presentation.
Under
Article 152, which has not been affected by any amendments,
constitutional legislation, other Acts of Parliament and other
generally binding legal regulations remain in force in the Slovak
Republic, provided that they are not contrary to the Constitution (§
1). Their interpretation and application must be compliant with the
Constitution (§ 4).
C. The Constitutional Court Act (Law no. 38/1993 Coll.,
as amended)
Section
53(3) provides that a complaint to the Constitutional Court may be
lodged within two months of the date on which the decision in
question has become final and binding or on which a measure has been
notified or notice of other interference with the complainant's
interests has been given. As regards measures and other types of
interference, this period commences when the complainant has a
practical possibility of becoming aware of them.
Under
section 31a, except where otherwise provided or where the nature of
the matter at hand precludes their application, the provisions of the
Code of Civil Procedure and the CCP are to be applied accordingly in
proceedings before the Constitutional Court.
D. The State Liability Act 1969 (Law no. 58/1969 Coll.)
and practice of the ordinary courts in its application
Until
30 June 2004 State liability for damage caused by decisions
concerning pre-trial detention was governed by Chapter (hlava) 2
of Part (časť) 1 of the Act on State Liability for
Damage Caused by a State Body's Decisions or Erroneous Official
Action (Zákon o zodpovednosti za škodu spôsobenú
rozhodnutím orgánu štátu alebo jeho
nesprávnym úradným postupom – “the
State Liability Act 1969”).
Persons
deprived of their liberty had a claim against the State for damages
when the criminal proceedings against them were dropped or they were
acquitted (section 5(1)).
However,
such compensation was excluded when the persons concerned were
responsible for their own detention, in particular when they had
tried to abscond or had otherwise given rise to the facts on which
the decision concerning their detention was based.
Section
18(1) rendered the State liable for damage caused in the context of
carrying out functions vested in public authorities resulting from
wrongful official action of persons entrusted with the exercise of
those functions. An award of compensation could be made when the
plaintiff showed that he or she had suffered damage as a result of
the wrongful official action of a public authority, quantified its
amount, and showed that there was a causal link between the
damage and the wrongful action in question.
The
State Liability Act 1969 was traditionally interpreted and applied as
not allowing for compensation to be awarded for non-pecuniary damage
unless it was related to the deterioration of a person's health (see,
for example, Pavletić v. Slovakia, no. 39359/98, §
55, 22 June 2004, and Havala v. Slovakia (dec.), no. 47804/99,
13 September 2001).
By
its judgment of 31 May 2007 in an appeal on points of law (no. 4
Cdo 177/2005) concerning an action for damages under the State
Liability Act 1969, the Supreme Court upheld the view that neither
that Act nor an action for protection of personal integrity
provided a legal basis for awarding compensation in respect of
non-pecuniary damage caused by unlawful detention.
The
State Liability Act 1969 was, however, to be interpreted in line with
Article 5 § 5 of the Convention which presupposed compensation
for non pecuniary damage and which, pursuant to Article 154c
§ 1 of the Constitution, prevailed over the statutory text.
This
line of reasoning was followed in judgments of the Banská
Bystrica Regional Court of 26 March 2009 and Nitra Regional
Court of 26 February 2010 when deciding on appeals nos. 12Co
5/2009 and 6Co 237/2009. As the decisive events had taken place
prior to 1 July 2004, the courts applied the State Liability Act 1969
and not the State Liability Act 2003.
E. State Liability Act 2003 (Law no. 514/2003 Coll.)
and practice of the ordinary courts in its application
In
June 2002 the Minister of Justice submitted to the Government a draft
bill providing for a new legislative framework for official
liability.
The
bill was accompanied by an introductory report (predkladacia
správa) in which the Minister observed, inter alia,
that the old State Liability Act had been on the statute book since
1969 and that, owing to subsequent changes to the social system and
the adoption of the Convention, there was a new understanding of the
concept of State liability for damage, which called for the
introduction of new legislation.
The
bill was later submitted to Parliament with an explanatory report,
the relevant part of which stated that it was necessary to extend the
current concept of the right to damages to incorporate just
satisfaction in respect of non-pecuniary damage as well as pecuniary
damage. The purpose of the proposed Act was, inter alia, to
render the mechanism of compensation for damage caused by public
authorities more effective and thereby reduce the number of cases in
which claimants were obliged to seek redress before the European
Court of Human Rights.
The
bill was adopted with effect from 1 July 2004 (Zákon o
zodpovednosti za škodu spôsobenú pri výkone
verejnej moci) and replaced the State Liability Act 1969.
The
right to compensation for damage caused by a decision concerning
detention on remand (väzba) is vested in the person who
was detained on remand provided that the criminal proceedings against
him or her have been dropped (section 8(5)(a)) or he or she has been
acquitted (section 8(5)(b)) or the matter has been referred to
another authority (section 8(5)(c)).
However,
no such right arises when the person concerned himself or herself
gave cause for the detention on remand (section 8(6)(a)).
The
State is also liable for damage caused by wrongful official action
which comprises, inter alia, a public authority's failure to
take an action within the time-limit set, inactivity or any
other unlawful interference with rights and legally recognised
interests of individuals and legal entities (section 9(1)).
The
right to compensation for damage caused by wrongful official action
is vested in the person who suffered the damage (section 9(2)).
Under
section 17 the compensation is to cover pecuniary damage, including
loss of profit, and, where appropriate and necessary, non pecuniary
damage.
The
Act applies only to damage caused by decisions and wrongful official
action occurring after it entered into force (section 27(1)).
Liability
for damage resulting from decisions and wrongful official action that
took place before the entry into force of the Act falls under the
State Liability Act 1969.
In
a judgment of 16 March 2007 (in case no. 4C 258/2006) the Brezno
District Court granted an action for damages by two individuals
against the State under the State Liability Act 2003 and ordered the
defendant to pay the costs of their defence in a criminal trial on
charges of 2005 that had ended with their acquittal with final and
binding effect in 2006.
On
22 November 2007 the Banská Bystrica Regional Court
upheld the judgment following the defendant's appeal.
On
14 October 2009 the Bratislava Regional Court granted an appeal (case
no. 2Co 238/2008) in an action by an individual against the
State under the State Liability Act 2003 for damages and awarded him
an amount of money in compensation for non-pecuniary damage
caused by detention on remand in 2005 in the context of a criminal
trial on charges of the same year that had ended with his acquittal
with final and binding effect in 2006.
In
a judgment of 17 August 2009 (in case no. 19C 47/2006) the
Bratislava District Court granted an action for damages by an
individual against the State under the State Liability Act 2003
and awarded the claimant an amount of money in compensation for
non-pecuniary damage caused by wrongful official action in connection
with his detention pending a criminal trial.
The
impugned wrongful official action concerned an extension by
a decision of 12 October 2004 until 28 April 2005 of
the claimant's detention pending trial.
The
action was preceded by a judgment of the Constitutional Court of
19 October 2005 (in case no. I. ÚS 65/05) in which
the Constitutional Court had found a violation of the claimant's
rights under Article 5 §§ 3 and 4 in connection
with the same facts.
However,
the Constitutional Court had been unable to award the claimant
damages as he had made no claim to that effect.
F. Practice of the Constitutional Court in respect of
Article 8 of the Charter
In
its decisions of 9 June and 8 September 2004 and 13 January
2005, in cases nos. I. ÚS 100/04, I. ÚS 141/04 and
I. ÚS 2/05 respectively, the First Chamber of the
Constitutional Court held that, by virtue of Article 152 §§ 1
and 4 of the Constitution, the time-limit of forty eight hours
under the Constitution took precedence over the time-limit of
twenty four hours under the Charter. The same position was taken
by the Second, Third and Fourth Chambers of the Constitutional Court
in decisions of 6 February 2005, 22 November 2006, 30 June
2004, 5 October 2005 and 9 March 2005 in cases nos. II. ÚS
38/05, II. ÚS 369/06, III. ÚS 220/04, III. ÚS
273/05 and IV. ÚS 64/05, and appears to have been taken by the
First Chamber and the Fourth Chamber of the Constitutional Court in
their decisions of 16 December and 25 August 2004 in cases
nos. I. ÚS 239/04 and IV. ÚS 235/04.
G. Practice of the Constitutional Court in respect of
section 53(3) of the Constitutional Court Act
In
a decision of 23 August 2006 in case no. II. ÚS
246/06, the Second Chamber of the Constitutional Court took the view
that, in respect of final decisions under the CCP which were served
on both the complainant and his or her lawyer, the decisive date for
the start of the two month time-limit was the date when the
decision was served on the complainant. The same position was taken
by the Third Chamber of the Constitutional Court in decisions of 26
March and 21 August 2003 and 3 November 2004 (cases
nos. III. ÚS 90/03, III. ÚS 188/03 and
III. ÚS 332/04). The conclusion of the
Constitutional Court in all these decisions in respect of the
two-month time-limit is supported by analysis.
The
same line of interpretation was followed by the Constitutional Court
in subsequent decisions, including those of 20 June and 14 September
2006, 17 April 2008, 12 February, 24 June and 8 September 2009
and 21 January 2010 in cases nos. II. ÚS 166/06, II. ÚS
288/06, IV. ÚS 131/08, IV. ÚS 37/09,
I. ÚS 177/99, III. ÚS 281/09 and IV. ÚS
9/2010.
On
13 January 2005, in case no. I. ÚS 2/05, the First Chamber of
the Constitutional Court declared admissible part of a complaint
under Article 127 of the Constitution which was lodged with the
Constitutional Court on 7 December 2004, concerning a decision that
had been served on the complainant on 6 October 2004, while he was in
detention, and on his lawyer on 7 October 2004. The decision contains
no analysis in respect of the two-month time-limit.
From
the case file concerning application no. 30011/05 it transpires
that the above-referred decision of the Constitutional Court of
13 January 2005 was notified in writing and was served on the
complainant on 9 February 2005.
In
decision of 25 November 2004 in case no. IV. ÚS 372/04
the Constitutional Court took as decisive for the commencement of the
two month time-limit the date when an interlocutory appeal was
determined, irrespective of when the decision was served on the
detained complainant and his lawyer.
H. The Code of Criminal Procedure
At
the relevant time and until 31 December 2005, criminal procedure in
Slovakia was governed by the 1961 Code of Criminal Procedure. This
Code has been amended numerous times.
Under
Article 73 a court or a single judge had the power to release pending
trial persons arrested in order to prevent them from absconding or
continuing their criminal activities within the meaning of Article 67
§ 1 (a) and (c), if a guarantee was provided on their
behalf or if they gave a pledge that they would live in accordance
with the law, cooperate with the authorities and make themselves
available for the purposes of the prosecution.
Under
Article 73a a court or a single judge had similar powers to
release the accused pending trial on payment of bail.
However,
persons charged with certain serious offences defined in Article 62
§ 1 of the CCP were excluded from the scope of these
provisions (Article 73 § 3 and 73a § 1).
The
time-limit for delivering a detained person to a court was laid down
in Articles 76 § 4 and 77 § 1.
Until
31 July 2001 a person arrested as a suspect or on the basis of
a charge against him or her (zadrZaná osoba) had
to be released or brought before a judge with a request for a
detention order within twenty-four hours of arrest.
On
1 August 2001 an amendment took effect, pursuant to which a person
arrested as a suspect or on the basis of a charge against him or her
had to be released or brought before a judge with a request for a
detention order within forty-eight hours of arrest.
Under
Article 143 § 1, which remained unchanged throughout the
relevant period, interlocutory appeals were to be lodged within three
days of service of the decision appealed against. If the decision was
served on both the accused and his or her lawyer, the time-limit
started to run on the later date of service.
I. Practice of the Constitutional Court in respect of
conditions for release
In
its decisions of 8 October 2004 and 26 October 2005, in cases
nos. I. ÚS 100/04 and I. ÚS 239/04, the
Constitutional Court found a violation of an individual's rights
under Article 5 § 3 of the Convention on account of
the ordinary courts' failure to examine on the substance and formally
to make a ruling on the complainant's pledge, given in the
context of his application for release from detention pending trial,
that he would live in accordance with the law.
The
Constitutional Court observed that the relevant provisions of the CCP
by operation of law did not allow for the replacement of the
complaint's detention by his pledge. These provisions were however
to be interpreted in line with Article 5 § 3 of
the Convention, which called for the possibility of a release on
conditions, and, pursuant to Article 154c § 1 of the
Constitution, prevailed over the statutory text.
J. Practice of the ordinary courts in respect of
Article 8 of the Charter
In
a decision of 16 February 2006 the Trnava Regional Court overturned a
detention order issued by the Galanta District Court on 3 February
2006 and ordered the release of the detainee. The Regional Court did
so having “examined the written interlocutory appeal of the
person charged as submitted by his defence counsel ... and [having]
appraised itself of the objections raised therein”.
The
objections in question included a claim that the authorities had
failed to observe the twenty four hour time limit
under the Charter for bringing the person charged before a judge.
Nevertheless, the Regional Court made no specific reference to that
argument and offered no reasons other than those mentioned above.
K. Rules on making legislation
The
rules on making legislation were approved by the National Council of
the Slovak Republic by way of a resolution passed on 18 December
1996 and published in the Collection of Laws under the
number 19/1997.
The
rules apply to constitutional legislation and other Acts of
Parliament (Article 1 § 1) and provide, inter alia, that
amendments to legislation are to be made by means of a direct and
explicit amendment and that indirect or implicit amendments are
impermissible (Article 11 § 1).
Identical
rules were adopted by the Government in the form of a resolution
passed on 8 April 1997 under the number 241 and published in the
Collection of Laws under the number 372/2000.
Under
section 2 of the Collection of Laws Act (Law no. 1/1993),
anything that has been published in the Collection of Laws is
presumed to have become known to all those concerned on the day
of publication. This presumption is non-rebuttable.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
The
applicant raised a number of generic complaints which can
be summarised as follows: (i) that he had not been brought
before a judge within twenty-four hours of his arrest as required
under the Charter; (ii) that there were no reasons for his continued
detention and that it was arbitrary; (iii) that the principles of
adversarial proceedings and equality of arms had not been complied
with in the remand proceedings and in the proceedings concerning the
prosecutor's request for extension of the applicant's detention and
the applicant's request for release; (iv) that in the remand
proceedings the courts had failed to deal adequately with his
arguments concerning the lack of a “reasonable suspicion”
against him and the lack of reasons for detaining him pending trial;
(v) that the decisions of 31 March, 6 May and 12 and
14 October 2004 had generally lacked adequate reasoning; (vi) that
the courts had failed to rule on his offer of a pledge under
Article 73 § 1 (b) of the CCP; (vii) that the proceedings in
respect of the applicant's interlocutory appeal against detention,
his request for release and the prosecution's interlocutory appeal
against the decision of 21 September 2004 had not been “speedy”;
and (viii) that the decisions of the Constitutional Court of
9 February and 1 June 2005 and 14 September 2006 had
infringed the applicant's right to compensation in respect of his
wrongful detention.
The
applicant relied on Article 5 §§ 1 (c), 3, 4 and 5 of the
Convention, which provide 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;
...
3. Everyone arrested or detained in
accordance with the provisions of paragraph 1 (c) of this
Article shall be brought promptly before a judge or other officer
authorised by law to exercise judicial power and shall be entitled to
trial within a reasonable time or to release pending trial. Release
may be conditioned by guarantees to appear for trial.
4. Everyone who is deprived of his liberty by
arrest or detention shall be entitled to take proceedings by which
the lawfulness of his detention shall be decided speedily by a court
and his release ordered if the detention is not lawful.
5. Everyone who has been the victim of arrest
or detention in contravention of the provisions of this Article shall
have an enforceable right to compensation.”
A. Admissibility
1. The Government's objection of non-exhaustion of
domestic remedies
(a) The parties' arguments
The
Government argued in general that the applicant had failed to comply
with the requirement of Article 35 § 1 of the
Convention to exhaust domestic remedies in that he had failed to
claim compensation from the State under the State Liability Act 1969
and the State Liability Act 2003 in respect of “wrongful
official action” (see paragraphs 50 and 58 above).
The
Government referred to the current judicial practice (see
paragraphs 52 and 62 to 64 above) and asserted that both under
the State Liability Act 1969 and the State Liability Act 2003
the applicant could have obtained compensation in respect of both
pecuniary and non pecuniary damage.
The
applicant submitted, in reply, that the State Liability Act 2003
was inapplicable for two reasons.
First,
under section 8(5), compensation for damage caused by decisions
concerning detention could only be awarded if the proceedings
were dropped, the detained person was acquitted or the matter was
referred to another authority, none of which applied in his case as
his proceedings were still pending.
Second,
in accordance with section 27, only damage caused by decisions
and actions that took place after the entry into force of the Act
could be the subject of compensation under the State Liability
Act 2003.
(b) The Court's assessment in respect of
the complaints under Article 5 §§ 1, 3 and 4 of
the Convention
The
Court considers that in respect of the requirement to exhaust
domestic remedies a distinction has to be made between, on the one
hand, the applicant's complaints under Article 5 §§ 1, 3
and 4 of the Convention and, on the other hand, his complaint under
Article 5 § 5 of the Convention.
As
to the complaints under Article 5 §§ 1, 3 and 4 of the
Convention, which concern lawfulness and justification of the
applicant's deprivation of liberty and conformity of the relevant
procedure with the Convention requirements, the Court observes that
the remedies advanced by the Government are only compensatory in
nature.
In particular, the Court observes that these remedies
were not aimed at and capable of redressing the applicant's situation
in its essence, that is to say to bring about an end to his
continuing deprivation of liberty and rectification of the alleged
shortcomings in the proceedings (see Weeks v. the United
Kingdom, 2 March 1987, § 61, Series A no. 114;
Pavletić v. Slovakia, no. 39359/98,
§ 69, 22 June 2004 and, mutatis mutandis,
Smatana v. the Czech Republic, no. 18642/04, §
111, 27 September 2007).
These
remedies had to be examined by the civil courts and there is no
indication that such courts could in any way interfere with matters
concerning the applicant's continued detention on remand that fall
within the jurisdiction of the criminal courts (see Haris
v. Slovakia, no. 14893/02, § 38, 6 September
2007).
The
Court considers that for these reasons alone the Government's
objection cannot be sustained in so far as it concerns the complaints
under Article 5 §§ 1, 3 and 4 of the Convention.
(c) The Court's assessment in respect of
the complaint under Article 5 § 5 of the Convention,
in connection with the complaints under Article 5 § 3
of the Convention concerning the right to be released pending trial
and under Article 5 § 4 concerning procedural guarantees in the
remand proceedings
As
to the complaint under Article 5 § 5 of the
Convention, the Court will first examine the position in respect of
the applicant's complaints under Article 5 § 3 of the
Convention concerning his right to be released pending trial and
under Article 5 § 4 concerning procedural guarantees
in the remand proceedings.
The
Court observes that these complaints essentially relate to the
decisions of 31 March and 6 May 2004, the latter of which was served
on the applicant on 10 July 2004 and was not subject to appeal.
Pursuant
to its section 27, which has been so interpreted and applied by the
ordinary courts (see paragraphs 52 and 61 above), the State Liability
Act 2003 however only applies to events that took place after its
entry into force on 1 July 2004.
For
this reason alone, in so far as the Government rely on the State
Liability Act 2003 as regards the applicant's complaint under
Article 5 § 3 of the Convention in respect of his
right to be released pending trial and his complaints under Article 5
§ 4 in respect of procedural guarantees in the remand
proceedings, their objection cannot be sustained.
As
to the State Liability Act 1969, the Court reiterates first of all
that, at the relevant time, the State Liability Act 1969 was
interpreted and applied as not allowing for compensation to be
awarded for non-pecuniary damage unless it was related to the
deterioration of a person's health (see, for example, Pavletić
v. Slovakia, cited above, § 55 and Havala v.
Slovakia, cited above). In so far as the Government relied on
recent developments in the ordinary courts' practice (see paragraph
52 above), the Court observes that such developments took place in
2009 and 2010 and that the impugned decisions were taken in 2004.
The
Court further observes that, in its decision of 9 February 2005,
the Constitutional Court found that the applicant's complaints of
a violation of his right to be released pending trial and of the
procedural guarantees in the remand proceedings were manifestly
ill-founded (see paragraphs 22 and 24 to 27 above). It therefore
was not in a position to award him any compensation in that
respect.
The
Court also observes that, if entertaining jurisdiction in the present
case under the State Liability Act 1969 in respect of alleged
wrongful official action, an ordinary court would be confronted
with the same questions as the Constitutional Court when ruling on
the applicant's complaints as specified in the previous paragraph.
The
Court has not found any reason to conclude that there was any
realistic prospect that an ordinary court would have arrived at
conclusions contrary to those of the Constitutional Court.
Accordingly,
as to the complaint under Article 5 § 5 of the
Convention, in connection with the applicant's complaint under
Article 5 § 3 of the Convention concerning his right
to be released pending trial and his complaints under Article 5 §
4 concerning procedural guarantees in the remand proceedings, the
Government's objections to admissibility must be rejected.
(d) The Court's assessment in respect of
the remaining complaints under Article 5 § 5 of the Convention
The
Court considers that it is not called upon to rule separately on the
Government's objection in relation to the remaining complaints under
Article 5 § 5 of the Convention as they are, in any event,
inadmissible for the respective reasons given below.
2. Bringing of the applicant
before a judge within the time-limit under the Charter
The applicant complained that he
had not been brought before a judge within twenty-four hours of
his arrest as required under the Charter.
He reiterated his arguments from the domestic
proceedings (see paragraph 17 above), relied on the decision of the
Trnava Regional Court of 16 February 2006 in an unrelated case
(see paragraph 77 above) and pointed to the statutory rules on making
legislation, under which indirect or implicit amendments to
legislation had never been permissible (see paragraphs 78 to 81
above).
The Government maintained that
the time-limit rule under the Constitution and the CCP, as in force
at the relevant time, was legally authoritative, that this time-limit
was defined beyond dispute and that the provisions of the Charter
relied upon were inapplicable in the applicant's case.
As to the temporal application of the Charter,
the Government relied on Article 152 of the Constitution (see
paragraph 45 above) and pointed to the consistent practice of the
Constitutional Court in applying it (see paragraph 65 above).
In the Government's view, the legal relevance
of the decision of the Trnava Regional Court of 16 February 2006 was
limited in that it was vaguely worded and, in any event, unique and
without precedent or follow up.
The Court considers that the
complaint falls to be examined under Article 5 § 1 (c) of the
Convention.
The Court reiterates that the
expressions “lawful” and “in accordance with a
procedure prescribed by law” in Article 5 § 1
essentially refer back to national law and state the obligation to
conform to the substantive and procedural rules thereof. It is in the
first place for the national authorities, and notably the courts, to
interpret domestic law, and in particular, rules of a procedural
nature, and the Court will not substitute its own interpretation for
theirs in the absence of arbitrariness. However, since under Article
5 § 1 of the Convention failure to comply with domestic law
entails a breach of the Convention, it follows that the Court can and
should exercise a certain power to review whether this law has been
complied with (see, for example, Toshev
v. Bulgaria, no. 56308/00,
§ 58, 10 August 2006, and Öcalan
v. Turkey [GC], no. 46221/99,
§ 84, ECHR 2005-IV).
The Court must moreover
ascertain whether domestic law itself is in conformity with the
Convention, including the general principles expressed or implied
therein. On this last point, the Court has stressed that, where
deprivation of liberty is concerned, it is particularly important
that the general principle of legal certainty be satisfied. It is
therefore essential that the conditions for deprivation of liberty
under domestic law be clearly defined and that the law itself be
foreseeable in its application, so that it meets the standard of
“lawfulness” set by the Convention, a standard which
requires that all law be sufficiently precise to allow the person –
if need be, with appropriate advice – to foresee, to a degree
that is reasonable in the circumstances, the consequences which a
given action may entail (see, for example, Paladi
v. Moldova [GC], no. 39806/05,
§ 74, ECHR 2009-..., and Baranowski
v. Poland, no. 28358/95,
§§ 50 52, ECHR 2000 III).
Turning to the circumstances of
the present case, the Court observes that the legal rules concerning
the time-limit for bringing an individual before a judge are provided
for at the level of constitutional legislation and under other Acts
of Parliament.
The constitutional rules are embodied in the Charter and the
Constitution, while the other statutory rules are laid down in the
CCP.
From the early 1990s the applicable time-limit
was defined in all these sources of legislation as twenty-four hours,
calculated from the time when the restriction on the individual's
personal liberty began.
In 2001 the Parliament of the Slovak Republic enacted amendments to
the Constitution and the CCP which extended the relevant time-limit
to forty-eight hours. However, the provisions of the Charter were not
affected by these amendments and the legislative status quo has
persisted until the present day.
In these circumstances,
although it is aware that the doctrine of binding precedent is not as
such formally recognised in Slovakia, the Court finds judicial
practice to be of consequence.
In that connection, the Court
observes that the case-law of the Constitutional Court, both prior to
the events of the present application and subsequent to them, appears
to be quite extensive and unequivocally uniform in acknowledging the
precedence of the forty eight hour time limit under
the Constitution over the twenty-four-hour time-limit under the
Charter (see paragraph 65 above). In developing this position, the
Constitutional Court has relied on the legal maxim lex
posterior derogat legi priori and
the provisions of Article 152 of the Constitution. The latter appear
to provide a sound, albeit indirect, basis for favouring the
Constitution over any other legislation, including the Charter (see
paragraph 45 above).
The Court observes that a
divergent view was expressed by the Trnava Regional Court in its
decision of 16 February 2006 (see paragraph 77 above).
However, the Regional Court did not explain its position in express
terms and, in any event, its decision does not appear to have been
followed.
As to the rules on making
legislation relied on by the applicants, the Court would observe that
they were adopted by resolutions of the Parliament and the Government
and that they were published in the Collection of Laws. However, they
do not have the legal status of an Act of Parliament and their
legally binding nature and effect are somewhat unclear, especially in
the face of the uniform case-law and convincing reasoning of the
Constitutional Court.
In the light of the above
considerations the Court finds no reason relating to the principle of
legal certainty and no other grounds to reach a conclusion other
than that the applicable law was in conformity with the Convention
and that the legal time-limit for bringing the applicant before
a judge was the time-limit under Article 17 § 3
of the Constitution and Articles 76 § 4 and 77 § 1
of the CCP, as in force at the relevant time, that is to say
forty-eight hours.
The Court observes that the
applicant's claim essentially rests on the Charter-based argument.
Neither before the Court nor at the domestic level did he make any
complaint about non observance of the forty eight hour
time-limit or, generally, of not having been brought before a judge
“promptly” in terms of Article 5 § 3 of the
Convention.
It follows that, to the extent
that the relevant part of the application has been substantiated and
domestic remedies have been exhausted, it is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3
and 4 of the Convention. The same conclusion accordingly applies to
the relevant part of the applicant's complaint under Article 5
§ 5 of the Convention.
3. “Reasonable suspicion” for the purposes of the
applicant's arrest
As
before the domestic courts (see paragraphs 15 and 18 above), the
applicant contended that the courts had failed to establish the
existence of any “reasonable suspicion” against him for
the purpose of arresting and detaining him, because the impugned
transaction had been of a private law nature.
The
Court considers that this complaint falls to be examined under
Article 5 § 1 (c) of the Convention. It reiterates that the
“reasonableness” of the suspicion on which an arrest must
be based forms an essential part of the safeguard against arbitrary
arrest and detention which is laid down in that provision.
Having
a reasonable suspicion presupposes the existence of facts or
information which would satisfy an objective observer that the person
concerned may have committed the offence (see Labita v. Italy
[GC], no. 26775/95, § 155, ECHR 2000 IV).
The
Court also reiterates that, in order for an arrest on reasonable
suspicion to be justified under Article 5 § 1 (c), it is not
necessary for the police to have obtained sufficient evidence to
bring charges, either at the point of arrest or while the applicant
is in custody (see, for example, Gusinskiy v. Russia,
no. 70276/01, § 53, ECHR 2004 IV, and Brogan and
Others v. the United Kingdom, 29 November 1988, § 53,
Series A no. 145 B).
Nor
is it necessary that the person detained should ultimately have been
charged or brought before a court. The object of detention for
questioning is to further a criminal investigation by confirming or
dispelling suspicions which were the grounds for detention (see
Murray v. the United Kingdom, 28 October 1994, § 55,
Series A no. 300-A, and Lexa v. Slovakia (no. 2),
no. 34761/03, §§ 46-50, 5 January 2010).
In
the present case, the applicant was arrested on 29 March 2004 as
he and the three other suspects were about to effect a complex
transaction involving the forcible sale of real property at a public
auction. On the same day he and the other suspects were charged with
conspiracy and attempted fraud. The public prosecution service upheld
the charges on 31 March 2004, following the suspects'
interlocutory appeal.
In
these decisions the authorities relied, inter alia, on
statements by the victim, documentary evidence and the results of a
search of non-residential premises, and described in detail the
charges pursued (see paragraph 7 above).
As
regards the early stage of the criminal proceedings against him (see,
for example, McKay v. the United Kingdom [GC],
no. 543/03, § 45, ECHR 2006 X) and the
restriction of his liberty (by way of contrast, see paragraphs 128 to
141 below), the Court considers that the suspicion against the
applicant relied on by the domestic courts was reasonable within the
meaning of the previously cited case-law.
It
follows that the relevant part of the application is manifestly
ill founded and must be rejected in accordance with Article 35
§§ 3 and 4 of the Convention. The
same conclusion accordingly applies to the relevant part of the
applicant's complaint under Article 5 § 5 of the
Convention.
4. Right to be released pending trial
The
applicant contended that he had been arbitrarily denied release
pending trial as the courts had refused to consider his offer of a
pledge under Article 73 § 1 (b) of the CCP.
The
Government acknowledged that the complaint was not manifestly
ill-founded, in the light of the Court's judgment in Caballero
v. the United Kingdom ([GC], no. 32819/96, ECHR
2000 II).
The
Court considers that this complaint is to be examined under Article 5
§ 3 of the Convention and notes that it 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.
5. Procedural guarantees other than “speediness”
in the remand proceedings
The
applicant complained that in the remand proceedings the decisions had
been based on unsubstantiated assertions made by the prosecution
service, that the courts had failed to deal adequately with his
arguments as to a “reasonable suspicion” against him and
the reasons for detaining him, that the decisions generally lacked
adequate reasoning, that the courts had failed to rule on his offer
of a pledge under Article 73 § 1 (b) of the CCP and
that the decision of 6 May 2004 had been given in private without the
applicant being allowed to appear in person.
The
Government submitted that the applicant had been examined in person
by the remanding judge on 31 March 2004 and that there had been no
new facts requiring his re-examination at the Regional Court's
private session on 6 May 2004, in which the prosecution service
had not taken part either.
The
Government also submitted that the Regional Court had examined both
the substantive and procedural elements concerning the applicant's
detention and had adequately addressed, and had for that matter
rejected, his objections. In that connection the Government pointed
to the conclusions of the Constitutional Court in its decision of 9
February 2005 to the effect that the proceedings had been adversarial
and that the reasons given by the courts had been comprehensible and
had not contradicted each other.
The
Government concluded that the proceedings had been effective for the
purposes of Article 5 § 1 of the Convention.
In
addition to his above-mentioned contentions the applicant observed,
in reply, that in his interlocutory appeal he had offered a specific
detailed pledge under Article 73 § 1 (b) of the CCP and had
submitted a new material fact, namely that he had returned his
licence to organise public auctions; both these elements had called
for an examination in his presence.
The
Court considers that this part of the application is to be examined
under Article 5 § 4 of the Convention and notes that it 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.
6. “Speediness” of the remand proceedings
The
applicant complained that the proceedings in respect of his
interlocutory appeal of 31 March 2004 had not been speedy.
The
Government submitted that the period between 31 March 2004, when
the applicant had lodged his interlocutory appeal orally, and
19 April 2004, when he had submitted the grounds of his appeal
in writing, was imputable to the applicant. They relied on the
findings of the Constitutional Court in its decision of 9 February
2005 to the effect that the period after 6 May 2004, when the
Regional Court had decided on the applicant's interlocutory appeal,
was not to be taken into account because by that decision the
applicant's detention order had become final and the applicant had
been free to apply for release irrespective of when the decision had
been served on him.
The
applicant pointed out, in reply, that it had only been meaningful for
him to formulate the written grounds of his appeal after the written
version of his detention order had been served on him on 6 April
2004. He conceded that the period prior to 19 April 2004, when
he had lodged the written grounds of his appeal, was imputable to
him. However, the period under consideration had not ended until the
service of the Regional Court's decision on him on 10 June 2004. In
that connection the applicant objected that he had been in a position
to make an informed request for release only after the decision
to uphold his detention order had been communicated to him with
reasons, when a written version of it was served on him on 10 June
2004.
The
Court considers that this complaint falls to be examined under
Article 5 § 4 of the Convention and notes that it 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.
7. Enforceable right to compensation in respect of
alleged shortage of procedural guarantees in the remand proceedings
The
Court considers that this complaint is to be examined under Article 5
§ 5 of the Convention.
Recalling
its findings as to the exhaustion of domestic remedies (see
paragraphs 86 to 89 above), 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.
8. Request for release and request for extension of
detention
The
applicant contended that there had been no reasons for his continued
detention, that his continued detention had been arbitrary, that the
principles of adversarial proceedings and equality of arms had not
been complied with in the proceedings on his request for release and
in the prosecutor's request for extension of his detention, that the
decisions of 12 and 14 October 2004 had generally lacked
adequate reasoning, that the proceedings in respect of his request
for release and the prosecutor's request for extension of his
detention had not been “speedy” and that the decisions of
the Constitutional Court of 1 June 2004 and 14 September 2006
had breached his right to compensation in respect of wrongful
detention.
The
Government objected that the applicant had failed to exhaust domestic
remedies because he had not filed his constitutional complaints
against the decisions on his request for release and on the
prosecution's request for extension of his detention in time.
They
submitted that the Constitutional Court's interpretation of the
relevant rules in respect of the statutory two-month time-limit was
settled and congruent with the interpretation given in the decision
of 14 March 2006 in the applicant's case.
The
decision of the Constitutional Court of 13 January 2005 in case
no. I. ÚS 2/05, which was relied upon by the
applicant, had no bearing on that contention as it had been no more
than a random and single occurrence.
As
to the Constitutional Court's decision of 1 June 2005, the
Government conceded that a different time-limit-commencement date had
been taken into account. They pointed out, however, that the
Constitutional Court had also noted that even if the time-limit had
been counted from the day when the impugned decision had been served
on the applicant, that is to say 29 October 2004, his
constitutional complaint of 30 December 2004 would still have
been out of time.
The
applicant disagreed and contested the Government's argument
concerning the principle of legal certainty. In that context he
pointed to the differing decisions of the Constitutional Court (see
paragraphs 68 and 69 above).
He
further submitted that, in any event, no case-law of the
Constitutional Court that post-dated his constitutional complaint of
21 January 2005 could be taken into account in the assessment of
his own situation.
The
Court reiterates that in order to exhaust domestic remedies as
required by Article 35 § 1 of the Convention, applicants should
use the remedies available in compliance with the formal requirements
and time limits laid down in domestic law, as interpreted and
applied by the domestic courts (see Akdivar and Others v. Turkey,
16 September 1996, § 66, Reports of Judgments and
Decisions 1996-IV).
The
Court observes that a complaint under Article 127 of the
Constitution is normally considered to be one of the remedies that an
applicant is required to exhaust for the purposes of Article 35
§ 1 of the Convention in respect of individual complaints
under Article 5 § 4. The Court further observes that
such complaint is subject to a two month time limit and
that, pursuant to section 53(3) of the Constitutional Court Act,
that time-limit starts to run on the date when the decision in
question has become final and binding or when the measure in question
has been notified or notice of other interference with the
complainant's interests has been given (see paragraph 46 above).
As
regards decisions concerning detention, a question arises as to
whether the decisive moment is the date of service of such decisions
on the detainee or on his or her lawyer. Whilst bearing in mind the
limitation noted above (see paragraph 104 above), in establishing
which law is applicable the Court will nevertheless scrutinise
existing judicial practice.
To
that end, it appears that there had been at least three admissibility
decisions by the Constitutional Court, before the applicant lodged
his constitutional complaints on 2 and 21 January 2005, in which
the Constitutional Court had legally explained and congruently
decided that the decisive date was the date of service of the
impugned decision on the detainee (see paragraph 66 above).
A
divergent decision favouring the applicant's interpretation of the
relevant law appears to have been taken only once (see paragraph 68
above) and has not been followed. Moreover, it contains no analysis
whatsoever in respect of the two-month time limit.
Nevertheless,
the Court observes that the Constitutional Court decision relied upon
by the applicant was taken on 13 January 2005 and notified in
writing on 9 February 2005 (see paragraph 68 above). The
applicant therefore could not have taken it into account when making
his constitutional complaints on 30 December 2004 and 21 January
2005 (see paragraphs 31 and 36 above).
Even
if he could have taken it into account, the Court considers that the
applicant, who was at all times represented by a lawyer, undoubtedly
could and should have known about the existing practice. Should there
have been any doubts as regards the decisive date in connection with
the decision of the Constitutional Court of 13 January 2005, the
Court considers that in the circumstances of the present case the
risk inherent in using the remedy at the time in question was for the
applicant to assume. In reaching this conclusion the Court has taken
into account inter alia the fact that the time limit for
lodging a complaint under Article 127 of the Constitution is as
long as two months, that there is no indication that the applicant
did not have ample opportunity to lodge his complaint earlier and
that, consequently, the essence of the remedy at issue was not
impaired.
In
so far as the applicant relied on the decision of the Constitutional
Court of 25 November 2004 in case no. IV. ÚS
372/04 (see paragraph 69 above), the Court observes that it
provides an even stricter interpretation of the relevant law and
accordingly does not favour the applicant's individual case.
It
follows that this part of the application must be rejected under
Article 35 §§ 1 and 4 of the Convention for
non-exhaustion of domestic remedies.
B. Merits
1. Right to be released pending trial
The parties made no separate submissions other than
as mentioned above (see paragraphs 116 and 117 above).
The Court reiterates that Article 5 § 3 is
structurally concerned with two separate matters: the early stages
following an arrest when an individual is taken into the power of the
authorities, and the period pending eventual trial before a criminal
court during which the suspect may be detained or released with or
without conditions. These two limbs confer distinct rights and are
not on their face logically or temporally linked (see T.W.
v. Malta [GC], no. 25644/94, § 49, 29 April
1999).
The Court observes that, within the meaning of the
distinction mentioned in the precedent paragraph, the facts of the
present case and the relevant part of the applicant's complaints are
not concerned with the initial stages following the applicant's
arrest but rather the period pending the applicant's trial.
In
that respect, the Court reiterates that the presumption is in favour
of release (see McKay v. the United Kingdom, cited above,
§ 41) and that the authorities, when deciding whether a
person should be released or detained, are obliged to consider
alternative measures of ensuring his or her appearance at trial.
Indeed, Article 5 § 3 of the Convention in its second
limb lays down not only the right to “trial within a reasonable
time or release pending trial” but also provides that “release
may be conditioned by guarantees to appear for trial” (see
Jablonski v. Poland, no. 33492/96, § 83,
21 December 2000) and judicial authorities cannot be said to
have a choice between these two components (see Neumeister
v. Austria, 27 June 1968, p. 37, § 4,
Series A no. 8.
The Court observes that in the present case the
Constitutional Court held on 9 February 2005 that the release of the
applicant in exchange for accepting his pledge that he would live in
accordance with the law was excluded by operation of the relevant
provisions of the CCP and the CC (see paragraph 26 above). This
conclusion however appears to run counter to the findings of the
Constitutional Court in judgments of 8 October 2004 and
26 October 2005 in an unrelated case (see paragraph 76
above).
The
Court considers that this worrying discrepancy in decision making
practice not only raises general questions related to the principle
of legal certainty but also a specific question as to the
compatibility of the legal regime governing the applicant's detention
and its application in the applicant's case, having regard to the
Article 5 § 3 right to release pending trial, with or
without conditions (see Caballero v. the United Kingdom, cited
above, §§ 21 and 24; S.B.C. v. the United
Kingdom, no. 39360/98, §§ 22-23, 19 June
2001, Boicenco v. Moldova, no. 41088/05, §§ 134-138,
11 July 2006 and Krejčíř v. the Czech
Republic, nos. 39298/04 and 8723/05, § 100, ECHR
2009 ...). As to these questions, however, the Court reiterates that
its task is not to rule on legislation in abstracto (see, for
example, Allen v. the United Kingdom, no. 18837/06,
§ 40, 30 March 2010).
The
Court will therefore not express a view as to the general
compatibility with the Convention of the applicable domestic legal
framework and the lack of possibilities for the applicant to be
released pending trial subject to conditions.
The
Court notes in particular the conclusions of the Regional Court, when
ruling on 6 May 2004 on the applicant's interlocutory appeal against
detention, that the applicant's pledge under Article 73 § 1
(b) of the CCP could not be accepted due to the nature of the case
and not because of the possible legal obstacle in Article 73 § 3
of the CCP (see paragraph 16 above).
The
Court will examine whether the decision to deny the applicant release
pending trial in these circumstances was in conformity with Article 5
§ 3 of the Convention.
In that respect, the Court reiterates that continued
detention can be justified in a given case only if there are specific
indications of a genuine requirement of public interest which,
notwithstanding the presumption of innocence, outweighs the rule of
respect for individual liberty laid down in Article 5 of the
Convention (see, among other authorities, Kudła v. Poland
[GC], no. 30210/96, §§ 110 et seq., ECHR
2000 XI).
The Court also reiterates that it is the task of the
national judicial authorities to examine all the facts arguing for or
against the existence of the above-mentioned demand of public
interest justifying a departure from the rule in Article 5 and must
set them out in their decisions on the applications for release. It
is essentially on the basis of the reasons given in these decisions
and of the established facts stated by the applicant in his appeals
that the Court is called upon to decide whether or not there has been
a violation of Article 5 § 3 (see McKay v. the
United Kingdom, cited above, § 43).
In the present case the decision to remand the four
accused, including the applicant, and the decision to dismiss
their interlocutory appeal against detention were based, in so far as
the applicant is concerned, on the following elements: the applicant
was being prosecuted for an extremely serious offence, he was facing
tax evasion charges in Košice and a further charge of bribery
and, therefore, the applicant had a tendency to commit property
offences. These elements were established with reference to
submissions by the prosecution service, “evidence previously
obtained” and “the materials in the case file”.
The applicant, for his part, appealed against his
detention on the following grounds: the impugned transaction was of a
private-law nature, the applicant had no knowledge of any tax evasion
charges against him, the assertion of the prosecution service to that
effect had not been substantiated and should therefore not be taken
into account, the applicant had returned his licence to organise
public auctions and there was accordingly no risk that he would
continue criminal activities.
The
Court observes that the applicant's argument concerning the alleged
tax evasion charges and the return of his licence have never received
a judicial answer and that the ordinary court's conclusions made in
reliance on “evidence previously obtained” and “the
materials in the case file” are abstract and stereotyped (see,
mutatis mutandis, Bakhmutskiy v. Russia,
no. 36932/02, § 141, 25 June 2009) and as such
not susceptible of review on account of lack of reference to concrete
facts and analysis.
Having
regard to all the elements, including the fact that the proceedings
in respect of the applicant's interlocutory appeal against detention
were short of the applicable guarantees (see paragraphs 156 to 165
below), the Court concludes that reasons given by the domestic courts
for denying him release cannot be considered “relevant”
and “sufficient” and thus compatible with the applicant's
right under Article 5 § 3 of the Convention to release
pending trial. There has therefore been a violation of that Article.
2. Procedural guarantees other than “speediness”
in the remand proceedings
The parties made no separate submissions other than
as mentioned above (see paragraphs 119 to 121 above).
The Court reiterates that, by virtue of Article 5
§ 4, arrested or detained persons are entitled to a review
bearing upon the procedural and substantive conditions which are
essential for the “lawfulness”, within the meaning of
Article 5 § 1, of their deprivation of liberty (see
Lexa v. Slovakia (no. 2), cited above, §§ 66
and 67, with further references).
A court examining an appeal against detention must provide guarantees
of a judicial procedure. The proceedings must be adversarial and must
always ensure “equality of arms” between the parties, the
prosecutor and the detained person (see, among many other
authorities, A. and Others v. the United Kingdom, cited
above, § 204, and Sanchez-Reisse v. Switzerland,
21 October 1986, § 51, Series A no. 107).
In the case of a person whose detention falls within the ambit of
Article 5 § 1 (c), a hearing is required (see, among
many other authorities, Nikolova v. Bulgaria [GC],
no. 31195/96, § 58, ECHR 1999 II, and Assenov
and Others v. Bulgaria, 28 October 1998, § 162,
Reports 1998-VIII). The possibility for a detainee to be heard
either in person or through some form of representation features
among the fundamental guarantees of procedure applied in matters of
deprivation of liberty (see Kampanis v. Greece, 13 July
1995, § 47, Series A no. 318-B).
Although it is not always necessary that the procedure under
Article 5 § 4 be attended by the same guarantees as
those required under Article 6 § 1 of the Convention
for criminal or civil litigation, it must have a judicial character
and provide guarantees appropriate to the kind of deprivation of
liberty in question (see, among many other authorities, Reinprecht
v. Austria, no. 67175/01, § 31, ECHR
2005-XII).
In order to determine whether proceedings provide adequate
guarantees, regard must be had to the particular nature of the
circumstances in which such proceedings take place (see Lexa
v. Slovakia (no. 2), cited above, § 67).
Although Article 5 § 4 of the Convention does not compel the
Contracting States to set up a second level of jurisdiction for the
examination of the lawfulness of detention, a State which institutes
such a system must in principle accord to the detainees the same
guarantees on appeal as at first instance (see, for example, Moisyev
v. Russia, no. 62936/00 § 160,
9 October 2008; Navarra v. France, 23 November
1993, § 28, Series A no. 273-B; and Toth
v. Austria, 12 December 1991, § 84, Series A
no. 224).
In the present case the substantive part of the order
for the detention of the applicant mostly contained conclusions
without any link to specific facts or elements of analysis as a
starting-point. The decision of 6 May 2004 in respect of the
applicant's appeal against the detention order showed that the appeal
court did not make its own assessment of the reasons arguing for and
against the applicant's detention, but rather endorsed without more
the reasons advanced by the prosecutor. The Court will revert to this
matter below (see paragraph 162 below).
In
that respect the Court reiterates that one of the principal aims of
Article 5 is to ensure that no one should be dispossessed of his or
her liberty in an arbitrary fashion (see, mutatis mutandis,
Amuur v. France, 25 June 1996, § 42, Reports
1996-III). It considers that this aim is put at risk if the domestic
courts render decisions concerning detention without giving
individual factual and legal reasons that can be reviewed (see,
mutatis mutandis, McKay v. the United Kingdom,
cited above, § 43; Bakhmutskiy v. Russia, cited
above, § 141 Giorgi Nikolaishvili v. Georgia,
no. 37048/04, § 79, ECHR 2009 ... (extracts);
Suominen v. Finland, no. 37801/97, § 37,
1 July 2003; Nikolova v. Bulgaria, cited above,
§ 61; Smirnova v. Russia, nos. 46133/99
and 48183/99, § 63, ECHR 2003-IX (extracts); Aleksanyan
v. Russia, no. 46468/06, § 179, 22 December
2008).
The
Court also observes that, before being remanded in custody, the
applicant was examined by a single judge of the District Court.
Neither the applicant nor his representative was examined again on
the subject of the applicant's detention (by way of contrast and
comparison, see Mamedova v. Russia, no. 7064/05,
§ 90, 1 June 2006, and Jankauskas v. Lithuania
(dec.), no. 59304/00, 16 December 2003), despite the
applicant, in his interlocutory appeal against his detention, having
submitted new material facts and legal arguments. These comprised in
particular the submission that he had returned his licence to
organise public auctions, which was why there was no longer any risk
that he would continue his criminal activities, and also extensive
argumentation in support of the private law nature of the
impugned transaction.
Furthermore,
the Court finds it of relevance that in his interlocutory appeal
against his detention the applicant offered a detailed pledge under
Article 73 § 1 (b) of the CCP to live in accordance
with the law, which the Regional Court rejected principally for
reasons of substance (see paragraph 16 above), without questioning
the applicant in person and affording him an opportunity to
describe his personal situation (see, in particular, Mamedova
v. Russia, cited above, § 91).
The
Court considers that in view of all the circumstances, including
those mentioned in the subsequent paragraphs, and the particular
brevity of the reasons offered by the District Court for the
detention order against the applicant, Article 5 § 4 of the
Convention called for his interlocutory appeal to be heard orally.
The Court further observes with concern the
pronouncements made by the Regional Court and the Constitutional
Court in their respective decisions of 6 May 2004 and 9 February 2005
to the effect that it was not up to a court but solely to the
prosecution service at that stage of the proceedings to examine
whether there was a sufficient basis for the charge, that the
principle of adversarial proceedings had been taken out of context in
the pre-trial proceedings and that it only applied to the trial on
the merits, and that the principles of adversarial proceedings and
equality of arms did not apply in proceedings concerning pre-trial
detention and, specifically, in remand proceedings (see paragraphs 16
and 24 above). This position appears to run directly counter to the
object and purpose of the judicial guarantees inherent in Article 5
§ 4 of the Convention.
On the factual level, the Court notes that the
domestic courts held that it was for the applicant to bear the burden
of proving that he had not been previously charged, while the
prosecution's claim to the contrary appears to have been wholly
unsubstantiated (see paragraphs 16 and 24 above).
Leaving aside the general question of whether such a
negative burden of proof can be borne at all, the Court finds that
its distribution in the present case was not compatible with the
equality of arms principle.
The foregoing considerations, taken together, are
sufficient for the Court to conclude that the procedure for
review of the lawfulness of the applicant's remand in custody, viewed
as a whole, was not compatible with Article 5 § 4 of the
Convention. There has accordingly been a violation of that provision.
3. “Speediness” of the proceedings in the
applicant's interlocutory appeal against detention
The parties made no separate submissions other than
as mentioned above (see paragraphs 123 to 125 above).
The Court reiterates that Article 5 § 4,
in guaranteeing to detained persons a right to institute proceedings
to challenge the lawfulness of their deprivation of liberty, also
proclaims their right, following the institution of such proceedings,
to a speedy judicial decision concerning the lawfulness of detention
and ordering its termination if it proves unlawful. In order
to determine whether the requirement that a decision be given
“speedily” has been complied with, it is necessary to
effect an overall assessment where the proceedings were conducted at
more than one level of jurisdiction. The question whether the right
to a speedy decision has been respected must – as is the case
for the “reasonable time” stipulation in Articles 5
§ 3 and 6 § 1 of the Convention – be
determined in the light of the circumstances of each case, including
the complexity of the proceedings, their conduct by the domestic
authorities and by the applicant and what was at stake for the latter
(for recapitulation of the applicable principles, see Mooren
v. Germany [GC], no. 11364/03, § 106, ECHR
2009-...).
In the present case the applicant lodged his
interlocutory appeal orally immediately after the detention order had
been issued on 31 March 2004. A decision was given on the appeal
on 6 May 2004. The decision was, however, not delivered publicly
and the applicant only learned of it when a written version of it was
served on him on 10 June 2004 (see, for example, Cabala
v. Slovakia, no. 8607/02, § 68, 6 September
2007, and Singh v. the Czech Republic, no. 60538/00,
§ 74, 25 January 2005).
Although, admittedly, the applicant could have lodged a request for
release after the decision on his appeal had been taken and before it
was served on him, the Court accepts that effective exercise of the
right to request a review of his detention necessitated
knowledge of the decision and the underlying reasons (by way of
contrast and comparison, see Singh v. the Czech Republic,
cited above, §§ 74 and 76).
The proceedings under examination thus lasted seventy days.
The Court observes that in this period the
applicant's interlocutory appeal was judicially examined by a single
court, the Regional Court.
The Court has found nothing to justify finding that
the applicant's detention case was of any particular complexity.
As to the conduct of the applicant, it is true that he did not file
written reasons for his appeal until 19 April 2004. However, the
Court accepts that he could only do so meaningfully after the
detention order had been served on him on 6 April 2004. The period of
thirteen days between 6 and 19 April 2004 is therefore imputable
to the applicant.
As regards the conduct of the authorities, the Court notes in
particular that it took seventeen days, from 19 April 2004 until
6 May 2004, to give a decision on the applicant's appeal
with written reasons, and a further thirty five days, until 10
June 2004, to serve the decision on him.
Regard being had to the Court's case-law on the
subject (see, for example, Sanchez-Reisse v. Switzerland,
cited above, §§ 59-60; M.B. v. Switzerland,
no. 28256/95, § 31, 30 November 2000; G.B.
v. Switzerland, no. 27426/95, § 27,
30 November 2000; Rehbock v. Slovenia, no. 29462/95,
§ 85, ECHR 2000-XII; Sarban v. Moldova,
no. 3456/05, § 120, 4 October 2005; Kadem
v. Malta, no. 55263/00, §§ 44-45, 9 January
2003; Sakık and Others v. Turkey, 26 November
1997, § 51, Reports 1997-VII; and De Jong, Baljet
and Van den Brink v. the Netherlands, 22 May 1984, §§ 57 58,
Series A no. 77), the foregoing considerations are
sufficient to enable the Court to conclude that there has been a
violation of Article 5 § 4 of the Convention on
account of the lack of a speedy determination of the lawfulness of
the applicant's remand in custody.
4. Enforceable right to compensation in respect of
wrongful detention and the Constitutional Court decision of 9
February 2005
The Government submitted that the applicant had at
his disposal a complaint under Article 127 of the Constitution.
Other than that and as mentioned above (see paragraphs 83 to 85
above) the parties made no separate submissions.
The
Court reiterates that Article 5 § 5 of the Convention
is complied with where it is possible to apply for compensation in
respect of a deprivation of liberty effected in conditions
contrary to paragraphs 1, 2, 3 or 4. The right to compensation
set forth in paragraph 5 therefore presupposes that a violation of
one of the other paragraphs has been established, either by a
domestic authority or by the Convention institutions (see N.C.
v. Italy [GC], no. 24952/94, § 49, ECHR 2002-X,
and Pavletić v. Slovakia, cited above, § 95).
In
the present case the Court has found a violation of Article 5
§ 3 of the Convention (see paragraph 154 above) and
a compound violation of Article 5 § 4 of the
Convention (see paragraphs 165 and 171 above).
It
must therefore establish whether or not the applicant had or now has
an enforceable right to compensation for the breach of Article 5
§ 4 of the Convention.
The
Court observes first of all that the applicant's complaint under
Article 127 of the Constitution in that regard was unsuccessful on
the merits (see paragraphs 22 to 27 above) (see Boris Popov
v. Russia, no. 23284/04, § 84, 28 October
2010).
As
to the other remedies advanced by the Government, the State Liability
Act 1969 and the State Liability Act 2003, the Court observes that
the applicant was not required, for the purposes of Article 35
§ 1 of the Convention, to test them as at the relevant time
the former offered him no reasonable prospects of success and the
latter was inapplicable ratione temporis (see paragraphs 92
to 96 above) (see Sakık and Others v. Turkey, cited
above, § 59). At the same time, there is no support in the
text of either of these pieces of legislation and no domestic
jurisprudence has been shown to exist to the effect that a
compensation claim can be made in a domestic court based on the
findings made by the European Court.
The
foregoing considerations are sufficient to enable the Court
to conclude that neither before nor after the findings made by
the European Court has the applicant had an enforceable right to
compensation for the violations of his rights under Article 5 §§
3 and 4 of the Convention (see paragraphs 154, 165 and 171) (see
Brogan and Others v. the United Kingdom, cited above,
§ 67).
There
has accordingly also been a violation of Article 5 § 5
of the Convention.
II. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
Lastly,
the applicant claimed that the decisions of the Constitutional Court
of 1 June 2005 and 14 September 2006 had breached his rights under
Articles 13 and 14 of the Convention because they were based on
an inconsistent interpretation and application of the two-month
time-limit for bringing an individual complaint under Article 127 of
the Constitution.
The
Court has found above that the applicant's objections in relation to
the Constitutional Court decisions of 1 June 2005 and
14 September 2006 were devoid of merit (see paragraphs 128 to
141 above). It does not discern any arguable issue under Articles 13
and 14 of the Convention.
It
follows that the applicant's complaints under those Articles are
manifestly ill founded and must be rejected in accordance with
Article 35 §§ 3 and 4 of the Convention.
III. 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 50,000 euros (EUR) in respect of non pecuniary
damage, emphasising the repercussions that his detention had had on
his private, family and social life.
The
Government considered the claim overstated.
The
Court considers that the applicant must have sustained non pecuniary
damage. Ruling on an equitable basis, it awards him EUR 7,000
under that head.
B. Costs and expenses
The
applicant claimed EUR 8,085 for legal costs and
expenses, submitting itemised invoices from his lawyer.
The
invoices concerning the proceedings before the Constitutional Court
and the Court totalled EUR 3,079.13 and were issued in the name
of the applicant. The remaining invoices were issued in the name of
another person with the same surname.
The
applicant also claimed EUR 150 for administrative expenses and
EUR 50 for postal expenses incurred both at the national level
and before the Court.
Relying
on the Court's judgment of 18 October 1982 in the case of Young,
James and Webster v. the United Kingdom ((former Article 50)
Series A no. 55, § 15), the Government considered that
the claim in respect of legal fees before the Constitutional Court
and the Court was overstated.
The
Government pointed out that the invoices concerning the remaining
legal fees had been issued in the name of a different person than the
applicant and objected that the claims concerning the administrative
and postal expenses were not supported by evidence.
According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum.
In
the present case, regard being had to the violations found (see
paragraphs 154, 165, 171 and 177 above), the documents in its
possession and the above criteria, the Court considers it reasonable
to award the sum of EUR 2,000 to cover legal representation
before the Constitutional Court and the Court.
C. 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 admissible (i) the complaint under
Article 5 § 3 of the Convention; (ii) the complaint
under Article 5 § 4 of the Convention concerning the
alleged lack of an effective procedure by which the applicant could
challenge the lawfulness of his remand in custody; (iii) the
complaint under Article 5 § 4 of the Convention
concerning the alleged lack of a speedy determination of the
lawfulness of the applicant's remand in custody; and (iv) the
complaint under Article 5 § 5 of the Convention
concerning the alleged lack of an enforceable right to
compensation in relation to the alleged violations of Article 5
§ 3 of the Convention and Article 5 § 4 of
the Convention in the remand proceedings;
Declares inadmissible the remainder of the
application;
Holds that there has been a violation of
Article 5 § 3 of the Convention;
Holds that there has been a violation of
Article 5 § 4 of the Convention on account of the lack
of an effective procedure by which the lawfulness of the applicant's
remand in custody could be decided;
Holds there has been a violation of Article 5
§ 4 of the Convention on account of the lack of a speedy
review of the lawfulness of the applicant's remand in custody;
Holds that there has been a violation of Article
5 § 5 of the Convention on account of the lack of an enforceable
right to compensation in relation to the violation of the applicant's
rights under Article 5 §§ 3 and 4 of the
Convention;
Holds
(a) that
the respondent State is to pay the applicant, within three months of
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 7,000
(seven thousand euros), plus any tax that may be chargeable, in
respect of non-pecuniary damage, and EUR 2,000 (two thousand
euros), plus any tax that may be chargeable to the applicant, in
respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts 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 21 December 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
In
accordance with Article 45 § 2 of the Convention and Rule 74 §
2 of the Rules of Court, the separate opinion of Judge L. Garlicki is
annexed to this judgment.
N.B.
T.L.E.
CONCURRING OPINION OF JUDGE GARLICKI
I
agree that there has been a violation of Article 5 § 5 in this
case. However, in my opinion, some issues concerning the
interpretation of that provision deserve additional comment. Article
5 § 5 requires that everyone who has been the victim of arrest
or detention in contravention of the provisions of Article 5 §§
1-4 must have an enforceable right to compensation. It seems to me
that the text of Article 5 § 5 suggests three conclusions.
Firstly,
in respect of the holder of the duty: the duty to provide
compensation lies with the domestic authorities. In other words, any
situation in which someone becomes a victim of arrest or detention in
violation of Article 5 must create a right to compensation on the
part of the victim and that right must be enforceable at the domestic
level.
Secondly,
in respect of the substance: the right to compensation arises only if
a violation of one of the preceding paragraphs of Article 5 has been
established, either by a domestic authority or by the Court. In other
words, the finding of a “substantive” violation of
Article 5 §§ 1-4 constitutes a prerequisite for the
creation of the right provided for in Article 5 § 5 (see
paragraph 173 of the judgment).
Finally,
in respect of the timing: as long as there is no – domestic or
European – finding that there has been a violation of any of
the provisions of Article 5 §§ 1-4 (or of any provisions of
domestic law which are identical in substance), no right to
compensation can arise. In other words, the right to compensation
does not have any autonomous existence; it comes into being only when
a “substantive” violation has been established.
Three
different scenarios may be distinguished here:
– the
domestic authorities establish a violation of Article 5 §§ 1 4
(or a provision of domestic law which is identical in substance)
but – under domestic law – this does not give rise to any
right to compensation;
– at
first the domestic authorities consider the detention or arrest
to be “lawful”, but the European Court later
decides otherwise and establishes a violation of Article 5 §§
1-4; this finding by the European Court does not, however, trigger
any right to compensation at the domestic level;
– at
first the domestic authorities consider the detention or arrest
to be “lawful”, but the European Court later
decides otherwise and establishes a violation of Article 5
§§ 1-4; this finding confers on the victim an
enforceable right to compensation at the domestic level.
The
first scenario was addressed by the Court in Houtman and Meeus
v. Belgium (no. 22945/07, §§ 45-47,
17 March 2009). The Court found a violation
of Article 5 § 5 and observed that “[l]a
conclusion de la cour d'appel quant à la violation de la
procédure légale s'analyse alors en une reconnaissance
que la requérante a subi une privation de liberté
contraire à l'article 5 § 1 de la Convention
[...] En refusant d'indemniser les requérants, les
juridictions nationales n'ont pas interprété et
appliqué le droit interne dans l'esprit de l'article 5
§ 1” (§ 46).
The
second scenario was addressed by the Court in Brogan and Others
v. the United Kingdom (29 November 1988, Series A
no. 145 B). The Court found a violation of Article 5 §
5 and observed that “[a] claim for compensation for unlawful
deprivation of liberty may be made in the United Kingdom in respect
of a breach of domestic law (see paragraph 41 above on false
imprisonment). As Article 5 is not considered part of the domestic
law of the United Kingdom, no claim for compensation lies for a
breach of any provision of Article 5 which does not at the same time
constitute a breach of United Kingdom law; the applicants were
arrested and detained lawfully under domestic law but in breach of
paragraph 3 of Article 5. This violation could not give
rise, either before or after the findings made by the European Court
in the present judgment, to an enforceable claim for compensation by
the victims before the domestic courts” (§§ 66 67).
The
Brogan formula is still regarded as the core precedent. It
seems, however, that it governs directly only the second of the
above-mentioned scenarios. In Brogan, the Court attached
decisive weight to the fact that UK law (as it stood at the material
time) excluded any possibility of compensation following the judgment
of the European Court. This was more or less the same situation as
the one we have now in Michalko. Before the European Court
adopted its judgment, the detention had been assessed as “lawful”
by the domestic authorities and therefore no compensation claim could
be recognised. After the European Court judgment, the substantive
characterisation of the detention changed and the detention was
characterised as defective, but still no compensation claim was
recognised under domestic law.
The third scenario has not been adequately addressed by the Court as
yet. It is clear that, once the European Court has overruled the
domestic findings as to the compatibility of an arrest or detention
with Article 5 §§ 1 4, a right of
compensation must arise. In assessing whether there has been a
violation of Article 5 §§ 5, the Court should examine how
domestic law responds to the new situation, that is, the situation
created by its judgment.
I do
not think that it is reasonable to find an immediate violation of
Article 5 § 5 if two conditions are met:
– the
domestic law accepts a claim of compensation based exclusively on a
violation of the Convention as found in a judgment of the European
Court;
– this
compensatory remedy has already been confirmed in the practice of the
domestic courts.
In
such a situation, the “winner” in the Strasbourg
proceedings would have a possibility of obtaining compensation at the
domestic level. Thus, it would be premature to find a violation of
Article 5 § 5 in addition to the finding of a
“substantive” violation of Article 5.
The
right to compensation must come after the finding of “unlawfulness”
as a necessary consequence of such unlawfulness (at domestic and/or
European level). It would be illogical to reverse that order and to
assume that the right to compensation can arise before the
“unlawfulness” of the arrest or detention has been
established.
I
am inclined to think that the Court has not always followed that
logic. For example, in Boris Popov v. Russia
(no. 23284/04, 28 October 2010), it was observed that
“the national courts at two levels of jurisdiction examined the
claims on the merits but found that the applicant's arrest and
detention had been lawful as a matter of Russian law and, as noted by
the appeal court, under Article 5 § 1 (c) of the
Convention” (§ 84). The Court rejected that
assessment and decided that there had been a violation of Article 5 §
1 (c). At the same time, the Court noted that “the national
authorities, including courts, are expected to interpret and apply
national law in the light of the Convention, as interpreted by the
Court. By failing to apply the above standards, the national
courts did not enforce the applicant's right to compensation”
(§§ 85-86).
The
Court's position in Popov seems to be based on two principal
considerations. First, the Court ruled that although the domestic
courts had found the detention to be lawful they had erred in their
judgments and should have applied the Convention in the correct
manner. This is hard to contest.
But
the Court then went one step further and based the violation of
Article 5 § 5 on the finding that the domestic courts should
have arrived at a different conclusion as to the lawfulness of
the detention. Thus, compensation claims were recognised
retroactively as being enforceable from the moment when the original
violation took place, but well before that violation had been validly
established. This is hard to accept because, under Article 5 §
5, a compensation claim must be preceded by a final finding of a
violation of any of the remaining paragraphs of Article 5. As
long as no such finding has been made, there is no legal basis for
any compensatory action under domestic law.
