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KOVACIK v. SLOVAKIA - 50903/06 [2011] ECHR 1982 (29 November 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/1982.html
Cite as:
[2011] ECHR 1982
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THIRD
SECTION
CASE OF KOVÁČIK v. SLOVAKIA
(Application
no. 50903/06)
JUDGMENT
STRASBOURG
29
November 2011
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 Kováčik
v. Slovakia,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep Casadevall,
President,
Corneliu Bîrsan,
Alvina
Gyulumyan,
Egbert Myjer,
Ján
Šikuta,
Luis López Guerra,
Mihai
Poalelungi, judges,
and Santiago Quesada,
Section Registrar,
Having
deliberated in private on 8 November 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 50903/06)
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 Peter Kováčik
(“the applicant”), on 13 December 2006.
2. The
Government of the Slovak Republic (“the Government) were
represented by their Agent, Mrs M. Pirošíková.
3. The
applicant alleged, in particular, that his detention had been
unlawful.
On
12 January 2010 the Court
decided to give notice of the application to the Government.
It was also decided to rule on the admissibility and merits of the
application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1974 and lives in Dolný
Kubín.
On
24 June 2003 the police arrested the applicant. He was accused of
robbery and remanded in custody from that date.
Several
decisions extending the applicant’s detention were made. In
particular, on 18 November 2004 the Zilina
District Court extended his detention in the context of the
preliminary proceedings until 24 January 2005.
On
21 January 2005 the public prosecutor indicted the applicant and
several other persons before the Zilina Regional
Court.
The
applicant requested to be released, arguing that the Regional Court
had not extended his detention after the expiry of the period
indicated in the District Court’s decision of 18 November 2004.
On
20 April 2005 the Regional Court ordered the applicant’s
release. Upon a complaint lodged by the public prosecutor the Supreme
Court decided on 24 May 2005 that the applicant should remain
remanded in custody.
On
25 July 2005 the applicant complained to the Constitutional Court
that his detention in the period after 24 January 2005 and the
Supreme Court’s refusal to release him were both unlawful.
On
30 March 2006 the applicant was released.
On
14 June 2006 the Constitutional Court found that the applicant’s
right under Article 5 § 1 had been violated in that there had
been no judicial decision extending his detention after 24 January
2005 (judgment I. ÚS 217/05). There
existed no justification for that situation. Reference was made to
the Constitutional Court’s judgments I. ÚS
6/02 and I. ÚS 204/05 (see
paragraphs 23-28 below).
The
Constitutional Court ordered the Supreme Court to reimburse the
applicant’s costs in the constitutional proceedings. It
dismissed his claim for just satisfaction, holding that (i) its
finding as such provided appropriate redress to the applicant and
(ii) the Supreme Court’s decision of 24 May 2005 was
based on that court’s practice, which, however, was not in
accordance with practice under the Convention.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Code of Criminal Procedure of 1961
The
following provisions of the Code of Criminal Procedure of 1961 (Law
no. 141/1961 Coll., in force until 31 December 2005) are relevant in
the present case.
Pursuant
to Article 71 § 1, a person’s detention in the context of
both pre-trial proceedings and during proceedings before a trial
court can only last as long as necessary. Where detention in the
context of pre-trial proceedings is to exceed six months, it can be
extended at a public prosecutor’s request up to one year by a
judge or to a maximum of two years by a court’s chamber.
Article
71 § 2 provides that a person’s detention in the context
of both pre-trial proceedings and during a trial must not exceed two
years. In justified cases the Supreme Court may extend its duration
to a maximum of three years and, in cases of particularly serious
offences, up to five years. Under paragraph 3 of Article 71, a
proposal for extension of a person’s detention is to be
submitted by a public prosecutor in the pre-trial proceedings and by
the president of the court’s chamber during the trial.
Article
72 § 1 obliges investigators, prosecutors and judges to examine,
at each stage of criminal proceedings, whether reasons for the
accused person’s detention persist. In pre-trial proceedings a
judge is obliged to do so only when deciding on a public prosecutor’s
proposal to extend detention or to modify the reasons for it or when
deciding on the accused person’s application for release. Where
a reason for an accused person’s detention no longer exists,
the accused must be released immediately.
Article
72 § 2 entitles the accused to apply for release at any time.
When the public prosecutor dismisses such an application in the
course of pre-trial proceedings, he or she must submit it immediately
to the court. The decision on an application for release must be
taken without delay. If an application is dismissed, the accused may
only renew it fourteen days after the decision has become final,
unless he or she gives other reasons justifying his or her release.
Pursuant
to Article 192, where the court carries out a preliminary examination
of the indictment of a person who is detained, it shall also decide
whether that person is to remain in custody.
B. Practice of the Supreme Court
In
accordance with the Supreme Court’s practice, the time-limits
mentioned in Article 71 § 1 of the Code of Criminal Procedure of
1961 exclusively concerned situations where a decision on a public
prosecutor’s proposal was to be made in the context of
pre-trial proceedings. However, where an indictment had been filed
within a shorter time than the two-year period mentioned in Article
71 § 1, the law did not require that a request for continued
detention of the accused persons be made or that a separate decision
should be made on their continued detention, with the exception of
cases where the indictment had been filed less than ten days before
the expiry of the two-year maximum period of detention.
Pursuant
to a 1975 Supreme Court ruling (Rt 5/75), Article 192 of the Code of
Criminal Procedure requires a court to decide on further detention of
an accused where it has carried out a preliminary examination of the
indictment. Accordingly, where the presiding judge concludes, on the
basis of the file, that a preliminary examination of the indictment
is not required and considers the detention of the accused to be
lawful, there is no need for a separate decision of the court chamber
on continued detention of the accused. However, where the accused
applies for release, the application must be decided upon without
delay in accordance with Article 72 § 2 of the Code of Criminal
Procedure.
C. Practice of the Constitutional Court
1. Judgment I. ÚS 6/02 of 4
December 2002
In
judgment I. ÚS 6/02 the
Constitutional Court noted that the Code of Criminal Procedure did
not explicitly require that a decision on extension of an accused
person’s detention be given in cases where an indictment had
been filed and where the detention, both at the pre-trial stage and
during the trial, had not exceeded two years.
It
held, however, that the filing of an indictment alone did not as such
justify a person’s continued detention. The court dealing with
the case was required to decide explicitly on further detention of
the accused prior to the expiry of the period for which the detention
had been extended in the context of pre-trial proceedings.
In
its judgment the Constitutional Court referred in particular to the
guarantees laid down in Article 5 § 1 of the Convention and the
Court’s judgment in Stašaitis v. Lithuania (no.
47679/99, 21 March 2002, §§ 59-61).
In
that case the Constitutional Court found no breach of Article 5 §
1 as the ordinary court involved, both in the context of a
preliminary examination of the indictment and in reaction to the
accused person’s request for release, decided that the reasons
for the latter’s detention persisted. That decision had the
same effect as a decision to extend the accused person’s
detention.
2. Judgment I. ÚS 204/05
of 15 February 2006
In
the above case, which concerned one of the present applicant’s
co-accused, the detention in the context of pre-trial proceedings had
been extended until 24 January 2005. Prior to its expiry, on 21
January 2005, the accused was indicted. In its judgment the
Constitutional Court found that the Supreme Court had breached the
plaintiff’s right under Article 5 § 1 of the Convention,
in that there had been no judicial decision extending his detention
after 24 January 2005 and there existed no justification for that
situation. It was irrelevant that courts at two levels had dismissed
the accused person’s application for release as those decisions
related to detention in the context of pre-trial proceedings, that is
prior to the filing of an indictment. In those circumstances, any
relevant decision on further detention of the accused could have been
taken only by the criminal court before which the accused had been
indicted.
With
reference to its judgment I. ÚS 6/02 of 4
December 2002 the Constitutional Court held that for a
detention to be lawful, it must always rely on a court decision.
3. Judgments III. ÚS 322/05
of 10 May 2006 and III. ÚS 167/06 of 30 November 2006
In
the above two judgments given in the case of a different co-accused
of the applicant, the Constitutional Court found a breach of Article
5 § 1, in that there had been no judicial decision extending the
accused person’s detention after the filing of the indictment.
In the latter judgment it held, in particular:
“In the Constitutional Court’s view, the
jurisdiction of the court involved at the pre-trial stage ended with
the filing of the indictment on 21 January 2005. The indictment as
such is not a ground for continued detention of a person as it does
not explicitly follow from the law, and it is inadmissible to extend
the possibilities of restricting a person’s liberty by
extensive interpretation of several provisions of the Code of
Criminal Procedure.
However, a court’s decision on detention of a
person at the pre-trial stage can constitute a ground for that
person’s detention during a short period following the
indictment. Otherwise it would be practically impossible to ensure
continued detention of a person after an indictment has been filed.
In the circumstances, a ground for the plaintiff’s
detention existed until 25 January 2005. The detention should have
been extended by a decision not later than on 25 January 2005 if it
was to last after that date. In the absence of any such decision, the
restriction of the plaintiff’s liberty after 25 January 2005
was unlawful.
The unlawfulness of the plaintiff’s deprivation of
liberty after 25 January 2005 cannot be justified retrospectively,
not even by a judicial decision. Subsequent judicial decisions could
not have extended the plaintiff’s detention, as it had ended on
25 January 2005. The only existing possibility was to remand the
plaintiff in custody again. As this had not happened, his subsequent
deprivation of liberty had no legal ground.”
4. Judgment I. ÚS 115/07 of
23 October 2007
In
judgment I. ÚS 115/07 the Constitutional Court confirmed that
the filing of an indictment alone does not suffice for continued
detention of the accused to be lawful. It is required that the court
dealing with the criminal case following the indictment should take a
decision on the accused person’s detention prior to the expiry
of the period for which the latter had been remanded in the context
of pre-trial proceedings. The Constitutional Court found a breach of
the accused person’s right under Article 5 § 1 of the
Convention and ordered his immediate release.
D. The Code of Criminal Procedure of 2005
The
new Code of Criminal Procedure (Law no. 301/2005 Coll.) entered into
force on 1 January 2006.
Article
76 § 5 provides, inter alia, that a court is obliged to
decide on further detention of an accused within fifteen days of his
or her indictment (or submission for its approval of an agreement
between the prosecution and the accused on guilt and punishment)
unless it has already decided on detention of the accused under
provisions which govern the examination of indictments.
The
explanatory report to the draft Code of Criminal Procedure of 2005
indicates that the above provision accentuates the judicial control
of a person’s detention following his or her indictment
and that the amendment is also in reaction to the Constitutional
Court’s judgment I. ÚS 6/02 of
4 December 2002.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
The
applicant complained that his detention after
24 January 2005 had been unlawful and that he was unable to
obtain appropriate redress in that respect. He alleged a violation of
Article 5 § 1 of the Convention, the relevant part of which
reads as follows:
“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; (...)”
The
Government contested that argument.
A. Admissibility
The
Government argued that the application was manifestly ill-founded, as
the guarantees of Article 5 § 1 had been complied with. In any
event, given the redress which the applicant obtained in the
proceedings before the Constitutional Court, he could no longer be
considered a “victim” within the meaning of Article 34 of
the Convention.
The
applicant disagreed with the arguments of the Government.
The
Court reiterates that a decision or measure favourable to the
applicant is not in principle sufficient to deprive the applicant of
his or her status as a “victim”, within the meaning of
Article 34 of the Convention, unless the national authorities have
acknowledged, either expressly or in substance, and then afforded
redress for, the breach of the Convention (see Rosselet-Christ v.
Slovakia, no. 25329/05, § 49, 26 October
2010, with further references).
39. In
the present case, the Constitutional Court, on 14 June 2006,
found that the applicant’s right under Article 5 § 1 had
been violated in that there had been no judicial decision extending
his detention after 24 January 2005. It ordered the Supreme Court to
reimburse the applicant’s costs in the constitutional
proceedings and dismissed his claim for just satisfaction, holding
that (i) its finding as such provided appropriate redress for the
applicant and (ii) the Supreme Court decision of 24 May 2005 was
based on that court’s practice, which, however, was not in
accordance with practice under the Convention (see paragraphs 13-14
above). At the time of the judgment the applicant
had been released.
40. Thus
the Constitutional Court explicitly acknowledged a breach of the
applicant’s right under the Convention on which he relies in
the present application. However, the Court considers that, in the
absence of any just satisfaction award, its judgment did not provide
the applicant with appropriate redress, in view of the importance of
the right to liberty and security as enshrined in Article 5 § 1
and the duration of the applicant’s detention, which the
Constitutional Court had found to be unlawful.
41. In
these circumstances, the applicant can still claim to be a “victim”
of a breach of his rights within the meaning of Article 34 of the
Convention, and the Government’s objection in this respect must
therefore be dismissed.
The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. Arguments of the parties
The
applicant maintained that his detention after 24
January 2005 had been contrary to Article 5 § 1 as indicated in
the Constitutional Court’s judgment.
The
Government argued that the applicant’s detention after
24 January 2005 had been in accordance with the law. They relied
on Article 72 § 1 of the Code of Criminal Procedure of 1961
which obliged judges to examine, at each stage of criminal
proceedings, whether reasons for the accused person’s detention
persisted, as well as the existing practice of ordinary courts, as
described above. The maximum permissible duration of the applicant’s
detention was laid down in the Code of Criminal Procedure of 1961 and
had not been exceeded. His detention after 24 January 2005
therefore had an appropriate legal basis and was neither arbitrary
nor otherwise contrary to Article 5 § 1.
The
Government further argued that in Pavlík v. Slovakia
(no. 74827/01, judgment of 30 January 2007) the Court had
found no breach of Article 5 § 1, despite the fact that the
applicant’s detention had not been covered by a judicial
decision for nearly one month.
At
the relevant time there was no established practice of the
Constitutional Court as, prior to the facts of the present case, it
had addressed the point in issue in a single judgment, namely I. ÚS
6/02 of 4 December 2002. The only actual change in its
approach had occurred in the context of proceedings brought by the
applicant in the present case and his co-accused.
The
new approach consisted of an interpretation of the guarantees under
Article 5 § 1 of the Convention, which was broader than that
which the Court gave to that provision under its case-law. In
particular, the Government argued that while Article 5 § 1
required a legal basis in domestic legal order for detention to be
lawful, it did not follow from the Court’s case-law that lawful
detention of a person should exclusively be based on an explicit
judicial order.
2. The Court’s assessment
(a) Recapitulation of the relevant
principles
The
relevant principles are set out, for example, in Mooren v. Germany
[GC] (no. 11364/03, §§ 72-81, ECHR 2009 ...; with
further references). They can be summed up as follows.
Where
the “lawfulness” of detention is in issue, including the
question whether “a procedure prescribed by law” has been
followed, the Convention refers essentially to national law and lays
down the obligation to conform to the substantive and procedural
rules thereof. Compliance with national law is not, however,
sufficient: Article 5 § 1 requires in addition that any
deprivation of liberty should be in keeping with the purpose of
protecting the individual from arbitrariness. The Court must further
ascertain in this connection whether domestic law itself is in
conformity with the Convention, including the general principles
expressed or implied therein, notably the principle of legal
certainty. Although it is in the first place for the national
authorities, notably the courts, to interpret and apply domestic law,
under Article 5 § 1 failure to comply with domestic law entails
a breach of the Convention.
A
period of detention is, in principle, “lawful” if it is
based on a court order. However, the Court has considered the
absence of any grounds given by the judicial authorities in their
decisions authorising detention for a prolonged period of time to be
incompatible with the principle of the protection from arbitrariness
enshrined in Article 5 § 1.
It
has further acknowledged that the speed with which the domestic
courts replaced a detention order which had either expired or had
been found to be defective is a relevant element in assessing whether
a person’s detention must be considered arbitrary. Thus, in the
context of sub-paragraph (c) of Article 5 § 1 a period of more
than a year following a remittal from a court of appeal to a
court of a lower level, in which the applicant remained in a state of
uncertainty as to the grounds for his detention, combined with the
lack of a time-limit for the lower court to re-examine his detention,
was found to render the applicant’s detention arbitrary (see
Khudoyorov v. Russia, no. 6847/02, §§ 136-137, ECHR
2005 X (extracts)).
In
the Jėčius v. Lithuania judgment (no. 34578/97, 31
July 2000, §§ 56-64, ECHR 2000-IX) the Court found
that the sole fact that the case had been transmitted to the court
did not constitute a “lawful” basis for detention within
the meaning of Article 5 § 1 of the Convention, and that it
could not extend or replace the valid detention order required by
domestic law.
In
Stašaitis (cited above, §§ 68-69) the Court
held that uncertainty had been created by the judicial authorities’
merging of detention decisions with other procedural acts, resulting
in a lack of clarity regarding the lawfulness of the applicant’s
detention. In that case the Court of Appeal reinstated retroactively
a detention order issued more than a year before but gave no reasons
for its decision in that respect. In doing so it took no account of
the applicant’s current situation. The Court concluded that the
decision did not constitute a “lawful” basis for the
applicant’s continued remand in custody.
In
the Zirovnický v. the Czech Republic judgment (no.
23661/03, §§ 58-62, 30 September
2010), the Court found a breach of Article 5 § 1 as no
detention warrant had been issued by a court or other judicial body
authorising the applicant’s continued remand in custody for a
period exceeding one month.
(b) Application of the relevant principles
to the present case
In the present case the Constitutional Court acknowledged a breach of
the applicant’s rights under Article 5 § 1, but the
Government expressed their disagreement with that decision. In
view of such situation the Court is required to take a stand on the
point of issue.
It
would be justified for the Court to reach a contrary conclusion to
that of the Constitutional Court only if it was satisfied that the
latter had misinterpreted or misapplied the Convention provision or
the Court’s jurisprudence under that provision or reached a
conclusion which was manifestly unreasonable (see, mutatis
mutandis, A. and Others v. the United Kingdom [GC],
no. 3455/05, § 174 in fine, ECHR 2009-..., and Henryk
Urban and Ryszard Urban v. Poland, no. 23614/08,
§§ 51-53, 30 November 2010).
The
Constitutional Court found, with reference to its case-law, that the
domestic law did not list indictment as a ground for continued
detention of an accused. It considered inadmissible the practice of
extending the statutory possibilities of restricting a person’s
liberty by extensive interpretation of several provisions of the Code
of Criminal Procedure.
The
Court concurs with the reasons put forward by the Constitutional
Court which it finds to be in line with its above case-law. It
considers that the purpose of Article 5, namely to protect
individuals from arbitrary deprivation of liberty, is served in an
appropriate manner where there is a mandatory formal judicial review
requiring a decision which gives reasons for a person’s
detention after his or her case has been submitted to the trial court
and, as the case may be, the detention order issued at the pre-trial
stage has expired.
The
Court has noted that a judicial review of this kind was allowed for
in Article 76 § 5 of the Code of Criminal Procedure of
2005, also with reference to the above Constitutional Court’s
judgment I. ÚS 6/02. However, that development did not concern
the present case.
The
foregoing considerations and the fact that the applicant has not
obtained appropriate redress at domestic level are sufficient to
enable the Court to conclude, in line with the Constitutional Court’s
judgment, that the applicant’s detention after the expiry of
the detention order given at pre-trial stage fell short of the
requirement of lawfulness within the meaning of Article 5 § 1.
There
has therefore been a violation of Article 5 § 1 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE
CONVENTION
The
applicant complained that the Constitutional Court had not displayed
due diligence when dealing with his complaint of 25 July 2005. He
cited Article 5 § 4 of the Convention, which provides:
“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.”
A. The arguments of the parties
The
Government maintained that the guarantees of Article 5 § 4 do
not extend to proceedings before the Constitutional Court. Those
proceedings were governed by different legal provisions from the
proceedings before criminal courts. They were separate from and
independent of proceedings before criminal courts and were of a
specific nature, as they concerned alleged breaches of the
applicant’s fundamental rights and freedoms. A complaint to the
Constitutional Court could not be regarded as an ordinary remedy
against criminal courts’ decisions related to the applicant’s
detention. In any event, the Government considered this
complaint to be manifestly ill-founded.
The
applicant disagreed.
B. The Court’s assessment
1. Applicability of Article 5 § 4 to proceedings
before the Constitutional Court
The
Court held Article 5 § 4 applicable to proceedings before the
Constitutional Court of the Czech Republic (see Smatana v. the
Czech Republic, no. 18642/04, §§ 46 and 122-123, 27
September 2007; Fešar v. the Czech Republic (no.
76576/01, §§ 57-60 and 69, 13 November 2008). In Knebl
v. the Czech Republic (no. 20157/05, §
102, 28 October 2010) the Court held that in respect of complaints of
unlawfulness or excessive length of detention the guarantee of a
“speedy review” had to be respected in proceedings before
the Constitutional Court.
66. In
Stephens v. Malta (no. 2), (no. 33740/06, §§
83 and 85-90, 21 April 2009), the Court held that the
intervention of the Constitutional Court, which had to be regarded in
the particular circumstances of that case, fulfilled the requirements
of Article 5 § 4.
In
several applications against Croatia the Court reiterated that while
Article 5 § 4 does not compel the Contracting States to set up a
second level of jurisdiction for the examination of applications for
release from detention, a State which institutes such a system must
in principle accord detainees the same guarantees on appeal as at
first instance. The Court held that the same applies in a system
which provides for a constitutional complaint against decisions
ordering and extending detention. It found a breach of Article 5
§ 4 due to the Croatian Constitutional Court’s failure to
review the lawfulness of the applicants’ detention (see
Getoš-Magdić v. Croatia, no. 56305/08,
§§ 100-106, 2 December 2010; Hađi v.
Croatia, no. 42998/08, §§ 43-47, 1 July 2010; or Peša
v. Croatia, no. 40523/08, §§ 122-126, 8 April
2010).
As
to the present case, the Court has held that a complaint under
Article 127 of the Constitution of the Slovak Republic is a remedy
which applicants, including those who complain about a breach of
their rights under Article 5, are normally required to use for the
purpose of Article 35 § 1 of the Convention prior to
lodging an application under the Convention (see, for example,
Osváthová v. Slovakia, no. 15684/05,
§§ 57-59, 21 December 2010, and Štetiar
and Šutek v. Slovakia, nos. 20271/06 and 17517/07,
§§ 71-72, 23 November 2010).
Lawfulness
is a pre-requisite for a person’s detention to be considered
compatible with Article 5 § 1 of the Convention and its
constitutional equivalent. When examining complaints alleging a
breach of Article 5 § 1 of the Convention, the Constitutional
Court has to assure itself as to whether the statutory requirements
were complied with. When finding that a person’s detention is
unlawful, it concludes that that there has been a breach of the
plaintiff’s fundamental rights and freedoms. In such cases the
Constitutional Court has jurisdiction, inter alia, to quash
the decisions of ordinary courts and, if appropriate, order the
release of the detained person (see above, paragraph 30).
The
requirement under Article 5 § 4 for a speedy review of the
lawfulness of detention is similar to the guarantee of a hearing
within a reasonable time incorporated in Article 6 § 1 of
the Convention. The latter procedural guarantee was found to extend
to constitutional proceedings the purpose of which was to determine
whether there had been a breach of the plaintiffs’ fundamental
rights in the course of prior proceedings before ordinary courts
where such proceedings concerned determination of one’s civil
rights or obligations or of a criminal charge (see, for example,
Süßmann v. Germany, 16 September 1996, §§
45-46, Reports of Judgments and Decisions 1996 IV; and
Keszeli v. Slovakia (no. 2), no. 34200/06,
§ 21-23, 21 December 2010).
In
view of the above, the Court considers that the guarantees
incorporated in Article 5 § 4 of the Convention extend also to
proceedings before the Constitutional Court in Slovakia.
2. Scope of the guarantee of a speedy review
The
Court reiterates that the purpose of Article 5 § 4 is to assure
to persons who are arrested and detained the right to judicial
supervision of the lawfulness of the measure to which they are
thereby subjected (see, mutatis mutandis, De Wilde, Ooms
and Versyp v. Belgium, 18 June 1971, § 76, Series A no.
12; and Ismoilov and Others v. Russia, no. 2947/06, §
145, 24 April 2008). A remedy must be made available during a
person’s detention to allow that person to obtain speedy
judicial review of the lawfulness of the detention, capable of
leading, where appropriate, to his or her release (see, among other
references, Getoš-Magdić v. Croatia, cited above,
§ 100; or Stephens v. Malta (no. 2), cited above, §
83).
73. In
Stephens v. Malta (no. 1) (no. 11956/07, §§
15, 23, 24 and 102, 21 April 2009) the Court held that the right
guaranteed in Article 5 § 4 was only applicable to persons
deprived of their liberty, and had no application for the purposes of
obtaining, after release, a declaration that a previous detention or
arrest was unlawful. In that case the applicant lodged the
constitutional remedy on 12 November 2004 and the Constitutional
Court determined the issue on 23 November 2004. Prior to that, on
22 November 2004 the applicant had been released on bail.
Paragraph 103 of the judgment reads:
“The Court observes that the applicant made his
application for release while he was in detention. However, a
decision was given by the Constitutional Court only on 24 November
2004, by which time he had been released on bail... Thus, although at
the time of his application to the domestic courts the applicant was
entitled to a review in accordance with Article 5 § 4, this
provision no longer applied at the time of the Constitutional Court’s
judgment. Consequently, it is not necessary for the Court to examine
whether the proceedings concerning the applicant’s detention
satisfied the safeguards of Article 5 § 4 of the Convention.”
In
S.T.S. v. the Netherlands (no. 277/05, §§
43-50 and 58-62, 7 June 2011) the Court found a breach of
Article 5 § 4 as, inter alia,
the lawfulness of the applicant’s detention had not been
decided speedily. That breach related to proceedings in which the
Supreme Court concluded, 294 days after the applicant had lodged his
appeal on points of law, that its determination had become devoid of
interest. It held, in particular, that the detention authorisation in
issue had lapsed in the meantime. In the judgments against Croatia
referred to in pargraph 67 above the
domestic courts involved refused to review the lawfulness of the
applicants’ detention because a fresh decision extending their
detention had meanwhile been adopted. Such way of proceeding raised
also an issue as to the effectiveness of the review both in
S.T.S. and the applications against Croatia in issue.
In
particular, in S.T.S.
(paragraph 61) the Court concluded that by declaring the
applicant’s appeal on points of law as having been devoid of
interest the Supreme Court had deprived that remedy of whatever
further effect it might have had. It pointed out that a former
detainee may well have a legal interest in the determination of his
or her detention even after having been liberated
as an issue can arise, for example, in giving effect to the
“enforceable right to compensation” guaranteed by Article
5 § 5 of the Convention.
76. In
the present case a similar issue does not arise as the Constitutional
Court found a breach of the applicant’s right under Article 5 §
1 of the Convention. It also ordered reimbursement of the applicant’s
costs and held that there was no call to make a just satisfaction
award in the circumstances. For the Court, it is this aspect which
makes the present case dissimilar from S.T.S.
or the Croatian cases referred to above.
77. The
primary purpose of Article 5 § 4 is to ensure to a person
deprived of liberty a speedy judicial review of the lawfulness
of the detention capable of leading, where appropriate, to his or her
release. The Court considers that the requirement of speediness is
therefore relevant, from that perspective, while that person’s
detention lasts (see, by analogy, Stephens v. Malta (no. 1)
cited above, § 103). While the guarantee of speediness is no
longer relevant for the primary purpose of Article 5 § 4 after
the person’s release, the guarantee of efficiency of the review
should continue to apply even thereafter since, as stated in S.T.S.,
a former detainee may well have a legitimate interest in the
determination of his or her detention even after having been
liberated.
In
these circumstances, the Court considers that the reasoning in
Stephens v. Malta (no. 1) does not prevent it from
considering, subject to compliance with the other admissibility
requirements, the present applicant’s complaint of a lack of
speediness of the constitutional proceedings intervening between the
date his constitutional complaint was lodged and the date he was
released. Otherwise, the applicant would have been deprived of
protection of his rights under Article 5 § 4 for a period of
more than six months. In this respect, the Court reiterates that the
Convention is intended to guarantee rights that are “practical
and effective” (see Oluić v. Croatia, no.
61260/08, § 47, 20 May 2010).
The applicant was released on 30 March 2006, the alleged breach of
his right to a speedy review of the lawfulness of his detention by
the Constitutional Court therefore ended on that date. Since the
application was introduced on 13 December 2006, in that respect the
applicant did not comply with the six-month time-limit laid down in
Article 35 § 1 of the Convention (see also Krowiak v. Poland,
no. 12786/02, § 49, 16 October 2007; or Kołaczyk
v. Poland (dec.), no. 13794/02, 9 January 2007).
It
follows that this complaint has been introduced out of time and must
be rejected in accordance with Article 35 §§ 1
and 4 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
Lastly,
the applicant complained that he did not have an effective remedy at
his disposal in respect of his above complaints under Article 5 §§ 1
and 4. He cited Article 13 of the Convention, which provides:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
A. Alleged violation of Article 13 in conjunction with
Article 5 § 1
The
Government maintained that the applicant did not have an arguable
complaint. In any event, the applicant had had an effective remedy,
namely a complaint to the Constitutional Court.
The
applicant disagreed. He argued that he had not obtained appropriate
redress in proceedings before the Constitutional Court.
The
Court notes that the Constitutional Court found that there had been a
breach of the applicant’s rights under Article 5 § 1. It
ordered the reimbursement of the applicant’s costs but did not
consider it necessary to make a just satisfaction award. The
Constitutional Court had the power to order the applicant’s
release, but the applicant was no longer detained at the time of its
judgment.
Thus
the applicant had a remedy at his disposal at the national level to
enforce the substance of the right under Article 5 § 1. The fact
that the redress obtained at the domestic level was not sufficient
for Convention purposes does not render the remedy under Article 127
of the Constitution in the circumstances of the present case
incompatible with Article 13 of the Convention (see also, mutatis
mutandis, Šidlová v. Slovakia, no. 50224/99,
§ 77, 26 September 2006, and Mošať v. Slovakia,
no. 27452/05, § 27, 21 September 2010).
It
follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3 and
4 of the Convention.
B. Alleged violation of Article 13 in conjunction with
Article 5 § 4
The
Court reiterates that Article 13 applies only where an individual has
an “arguable claim” to be the victim of a violation of a
Convention right (see Boyle and Rice v. the United Kingdom,
judgment of 27 April 1988, Series A no. 131, § 52).
The
Court has found above that the applicant’s complaint under
Article 5 § 4 of the Convention was inadmissible. In these
circumstances, the applicant has no arguable claim for the purposes
of Article 13 of the Convention.
It
follows that this part of the application is also manifestly
ill-founded, and must be rejected in accordance with Article 35 §§
3 and 4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
On
15 March 2010 the Court invited the applicant to submit his just
satisfaction claims by 23 April 2010. His attention was drawn to Rule
60 of the Rules of Court. On 2 June 2010 the Court informed the
applicant that the above time-limit had expired and that no extension
of time had been requested. In a letter dated 22 July 2010 the
applicant explained that he had been living in different places
abroad for professional reasons and that the Court’s letter of
15 March 2010 had reached him only in July 2010. He claimed EUR
33,193.92 in compensation for non-pecuniary damage and asked the
Court to consider that claim in the circumstances.
The
Government argued, with reference to Rule 60 of the Rules of Court,
that no award under Article 41 should be made to the applicant.
The
Court notes that (i) no just satisfaction claims were submitted
within the given time-limit, (ii) no extension of time had been
requested before the expiry of that period, and (iii) upon
registration of the application the applicant was requested to inform
the Court of any change in his address. In these circumstances, the
Court makes no award under Article 41 of the Convention (see also,
A.R., spol. s r.o. v. Slovakia, no. 13960/06, §§ 63-65,
9 February 2010, with further references, or Ryabykh v. Russia,
no. 52854/99, §§ 66-68, ECHR 2003-IX).
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the complaint under Article 5 § 1
of the Convention concerning the lawfulness of the applicant’s
detention admissible and the remainder of the application
inadmissible;
Holds that there has been a violation of Article
5 § 1 of the Convention;
Dismisses the applicant’s claim for just
satisfaction.
Done in English, and notified in writing on 29 November 2011,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep
Casadevall
Registrar President
