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AYDEMIR v. SLOVAKIA - 44153/06 [2011] ECHR 224 (8 February 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/224.html
Cite as:
[2011] ECHR 224
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FOURTH
SECTION
CASE OF
AYDEMIR v. SLOVAKIA
(Application
no. 44153/06)
JUDGMENT
STRASBOURG
8
February 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 Aydemir v.
Slovakia,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Ljiljana Mijović,
Ján
Šikuta,
Mihai Poalelungi,
Nebojša
Vučinić,
Vincent A. de Gaetano, judges,
and
Lawrence Early, Section
Registrar,
Having
deliberated in private on 18 January 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 44153/06) 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 Turkish national, Mr Halis Aydemir (“the
applicant”), on 20 October 2006.
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 he had been remanded in
detention arbitrarily, that the proceedings in respect of his appeal
against detention had fallen short of the applicable requirements and
that he had been denied an enforceable right to compensation in that
respect.
On
15 March 2010 the President of the Fourth Section decided
to communicate the above-mentioned and other related complaints
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 1955 and lives in Sontheim an der Brenz
(Germany).
A. Criminal proceedings
On
25 November 2003 the applicant was charged in Slovakia with blackmail
within the meaning of Article 235 of the Criminal Code (Law no.
140/1961 Coll., as applicable at the relevant time).
The
charge was based on the suspicion that the applicant had sent
a number of text messages from a German mobile telephone number
to A. in Slovakia which contained serious threats that he would harm
and kill her and their child.
On
10 March 2004 the applicant was handed over to the Slovakian
authorities to be prosecuted in Slovakia. He was subsequently
detained in Slovakia pending trial there (see below).
On
22 November 2004 the Levice District Court (Okresný súd)
found the applicant guilty as charged and sentenced him to two years'
imprisonment, suspended for thirty months. The applicant waived his
right of appeal and, on the same day, the judgment became final and
binding and the applicant was released.
B. Detention order and related constitutional complaint
In
so far as can be established from the applicant's submissions and the
content of the documents in the case file, on 11 March 2004 a single
judge of the District Court gave an order (uznesenie) for the
applicant to be detained pending trial. The order was
upheld following an interlocutory appeal (sťaZnosť)
by the applicant examined by the Nitra Regional Court (Krajský
súd) on 20 May 2004. The decision on the appeal was
served on the applicant's lawyer on 5 August 2004.
On
5 October 2004 the applicant lodged a complaint with the
Constitutional Court (Ústavný súd) under
Article 127 of the Constitution.
The
applicant relied on Article 5 of the Convention and contended that
his detention was unlawful and arbitrary since there was neither any
“reasonable suspicion” with a basis in admissible
evidence against him nor sufficient reasons to detain him. The
applicant also argued that the impugned decisions lacked adequate
reasoning and that the proceedings on his interlocutory appeal had
not been speedy. He sought, inter alia, that the decision of
20 May 2004 be quashed, that he be released and that the Regional
Court be ordered to determine his interlocutory appeal anew.
On
22 June 2005 the Constitutional Court declared the complaint
admissible.
In
a written submission of 31 August 2005 the applicant, inter alia,
requested for comment a copy of any observations that the District
Court and the Regional Court, as the defendants in the proceedings
before the Constitutional Court, might have submitted in reply to his
complaint.
On
15 February 2006 the Constitutional Court gave a judgment (nález)
in which it found that the Regional Court had violated the
applicant's rights under Article 5 § 4 of the Convention in that
it had failed to provide adequate reasoning for its decision of 20
May 2004 and in that the proceedings on the applicant's interlocutory
appeal had not been speedy.
The
Constitutional Court quashed the decision of 20 May 2004. It observed
that the applicant had meanwhile been released. The part of his
constitutional complaint, which was aimed at his release and at a
fresh examination of his interlocutory appeal, had therefore become
moot. Nevertheless, while accepting that the applicant had sustained
non-pecuniary damage, the Constitutional Court did not award him any
just satisfaction on the ground that the finding of a violation of
the applicant's rights was sufficient redress for him. However, the
Constitutional Court allowed a part of the applicant's claim for
legal costs
The
Constitutional Court took into account observations made in reply to
the applicant's complaint by the District Court and the Regional
Court but made no mention of the part of the applicant's complaint
which concerned the substantive aspects of his detention.
The
judgment of the Constitutional Court was served on the applicant
through the intermediary of his lawyer on 6 July 2006. No appeal lay
against it.
C. Request for release and related constitutional
complaints
In
so far as can be established from the applicant's submissions and the
content of the documents in the case file, on 17 May 2004 the
applicant requested release, offered a pledge, under Article 73 §
1 (b) of the Code of Criminal Procedure (Law no. 141/1961 Coll., as
applicable at the relevant time) (“the CCP”), that he
would live in accordance with the law and, as an alternative,
applied for bail under Article 73a of the CCP.
By
law the request fell to be determined first by the regional
prosecutor, who dismissed it and on 3 June 2004 forwarded it ex
officio to the District Court for judicial determination.
The
request for release was then dismissed in turn by a three-judge bench
of the District Court on 26 July 2004 and, on an interlocutory appeal
by the applicant, by the Regional Court on 28 October 2004. The
decision on the appeal was served on the applicant on 20 December
2004.
The
applicant challenged the decisions and various aspects of the
procedure by way of two complaints under Article 127 of the
Constitution.
On
10 January 2006 the Constitutional Court declared inadmissible the
complaint by which the applicant had mainly challenged the length of
the proceedings in respect of his request for release, in so far as
these proceedings had taken place before the public prosecution
service and the District Court.
The
Constitutional Court found that any possible delays on the part of
the public prosecution service had been insignificant and that, in so
far as the District Court was concerned, the complaint was manifestly
ill-founded on the ground that, at the time of its introduction with
the Constitutional Court, the request for release was no longer
pending before the District Court, which was why the applicant was no
longer in need of protection by the Constitutional Court.
The
decision of the Constitutional Court was served on the applicant on
21 April 2006.
On
23 August 2006 the Constitutional Court declared inadmissible as
manifestly ill-founded a part of the applicant's outstanding
constitutional complaint, which concerned the fact that the decision
of 26 July 2004 had wrongfully been made by a bench whereas the body
authorised to make it was a single judge. The Constitutional Court
declared admissible the remainder of the complaint, as specified
below. The decision was served on the applicant on 30 October 2006.
In
a judgment of 21 June 2007 the Constitutional Court found that there
had been a violation of the applicant's rights under Article 5 §§
1, 3 and 4 of the Convention, in that the Regional Court had failed
to provide the applicant with a copy of the observations made by the
prosecution service in reply to the applicant's request for release,
combined with the fact that it had also failed to hear the applicant
in person, rule on all claims in the appeal and provide adequate
reasoning for its decision. Moreover, the proceedings before both the
District Court and the Regional Court had not been “speedy”.
In reaching this last conclusion the Constitutional Court observed
that, prior to the ordinary court's involvement in deciding on the
applicant's request for release, his request had been examined by the
public prosecution service. The Constitutional Court found no issue
in the length of the proceedings before the public prosecution
service.
The
Constitutional Court held that there was no point in quashing the
decision of the Regional Court in view of the fact that the applicant
had meanwhile been released.
The
applicant was awarded 100,000 Slovakian korunas (SKK) in just
satisfaction for non-pecuniary damage and the reimbursement of legal
costs.
The
judgment was served on the applicant's lawyer on 17 August 2007.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. 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. 4Cdo
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, 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 the Nitra Regional Court
of 26 February 2010 when deciding on appeals nos. 12Co 5/2009
and 6Co 237/2009.
B. 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 to 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 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)).
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 brought 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 the 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.
THE LAW
I. THE GOVERNMENT'S OBJECTION OF NON-EXHAUSTION OF
DOMESTIC REMEDIES
A. The submissions of the Government
At
a late stage of the proceedings, following the applicant's
observations in reply and the submission of his claims for just
satisfaction, the Government raised an argument, in general terms,
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
29 and 37 above).
The
Government referred to the current judicial practice (see paragraphs
31 and 41-43 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.
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 the 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 continued
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, cited above, § 69; 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
As
to the complaint under Article 5 § 5 of the Convention, which
concerns the alleged lack of an enforceable right to compensation in
respect of proceedings for review of the lawfulness of the
applicant's detention, the Court observes that, in its judgment of 15
February 2006, the Constitutional Court found that no compensation in
respect of the applicant's non pecuniary damage was warranted.
The
Court further observes that the Constitutional Court is the supreme
authority for the protection of human rights and fundamental freedoms
in Slovakia with jurisdiction to examine the applicant's complaints
and to afford him redress if appropriate (see, mutatis mutandis,
Lawyer Partners A.S. v. Slovakia, nos. 54252/07, 3274/08,
3377/08, 3505/08, 3526/08, 3741/08, 3786/08, 3807/08, 3824/08,
15055/08, 29548/08, 29551/08, 29552/08, 29555/08 and 29557/08, §
45, ECHR 2009-..., with further references).
The
Court also observes that, if entertaining jurisdiction in the present
case under the State Liability Act, in respect of alleged wrongful
official action, an ordinary court would be confronted with
essentially the same question as the Constitutional Court when ruling
on the applicant's claim for just satisfaction as specified in the
previous paragraph (see Michalko v. Slovakia, no. 35377/05, §
95, 21 December 2010).
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.
In
sum, for this reason alone, the Government's objection of
non exhaustion of domestic remedies in respect of the complaint
under Article 5 § 5 of the Convention has to be dismissed.
II. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE
CONVENTION IN THE REMAND PROCEEDINGS
A. The complaints
The
applicant complained that there had been no reasonable suspicion
against him with a basis in admissible evidence for the purposes of
his detention under the decisions of 11 March and 20 May 2004; that
his detention under those decisions had not been justified; and that
it had been disproportionate.
The
applicant also complained that the proceedings leading up to the
judgment of the Constitutional Court of 15 February 2006 had not been
adversarial; that the Constitutional Court had omitted to rule on the
substantive aspects of his detention; that its judgment had not been
supported by adequate reasoning and that there had not been an
effective remedy available in respect of that judgment.
B. The applicable provisions of the Convention
The
Court observes that the applicant has not submitted a copy of the
decisions of 11 March and 20 May 2004 and that his submissions are
directly or indirectly linked to the way in which the Constitutional
Court dealt with his complaint under Article 127 of the Convention.
The
Court considers that, in the circumstances, the matter raised by the
applicant most naturally falls to be examined under Article 5 §
4 of the Convention, which provides as follows:
“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.”
C. Admissibility
The
Government submitted first of all that the guarantees of Article 5
§ 4 of the Convention were inapplicable to proceedings under
Article 127 of the Constitution.
As
to the proceedings before the ordinary courts, the Government argued
that, in view of the redress that the applicant had obtained under
the judgment of the Constitutional Court of 15 February 2006, he
could no longer claim to be a victim of a violation of his rights.
In
particular, the Government pointed out that in that judgment the
Constitutional Court had found a violation of the applicant's rights
under Article 5 § 4 of the Convention and had quashed the
decision on the applicant's interlocutory appeal against detention.
The
Government also submitted that the time during which the applicant
had been detained pending trial had been offset against his prison
sentence. To that end, they relied on the Court's judgment in the
case of Pavletić v. Slovakia (cited above, § 110)
and argued that, in that case as well as in a number of others, the
Court had accepted that a finding of a violation of an individual's
Article 5 rights was in itself sufficient just satisfaction.
The
applicant pointed out that proceedings under Article 127 of the
Constitution could result in his release and therefore considered
that the guarantees of Article 5 § 4 of the Convention were
applicable to such proceedings.
The
applicant argued that the time he had spent in detention pending
trial had not been taken into account in determining his sentence and
objected that the Constitutional Court had only acknowledged some of
the violations of Article 5 § 4 of the Convention of which he
had complained. He submitted that the Constitutional Court's
dismissal of his claim for just satisfaction in respect of
non-pecuniary damage was inconsistent with the Constitutional Court's
own practice.
The
Court reiterates that Article 5 § 4 of the Convention guarantees
to everyone the right to take proceedings by which the lawfulness of
his or her detention shall be decided by a court with the power
to order release if detention is unlawful.
The
Court considers that in the present case its primary task is
to examine whether the applicant had the benefit of proceedings
compatible with the requirements of Article 5 § 4 of the
Convention.
In
carrying out this task the Court will have regard to all the relevant
facts obtained in all the proceedings following the remand of the
applicant in custody.
The
Court observes that in its judgment of 15 February 2006 the
Constitutional Court found a violation of the applicant's rights
under Article 5 § 4 of the Convention on account of the
Regional Court's failure to provide adequate reasoning for its
decision of 20 May 2004 and to deal with the applicant's
interlocutory appeal against detention speedily. The Constitutional
Court quashed the decision of 20 May 2004 and awarded the applicant
part of his legal costs. However, it did not deem it fit to award any
compensation in respect of non-pecuniary damage despite being aware
that the essence of the applicant's right under Article 5 §
4 of the Convention to proceedings for determination of the
lawfulness of his remand in detention had been frustrated by becoming
moot (see paragraph 15 above).
The
Court observes that, although this does not constitute a separate
Convention issue in the circumstances of the present case, by failing
to provide adequate reasoning for its decision, the Regional
Court made it impossible to verify whether or not the deprivation of
the applicant's liberty was as such justified. Exercise of judicial
power in such a manner is not reconcilable with the purpose of
Article 5, namely, to protect the individual from arbitrariness (see
Mooren v. Germany [GC], no. 11364/03, § 72, ECHR
2009-... and Michalko v. Slovakia, cited above, § 158).
The
Court considers that, in these circumstances, the redress provided to
the applicant at the domestic level cannot be considered adequate and
sufficient. It follows that the applicant did not lose his status as
a victim within the meaning of Article 34 of the Convention.
The
Court notes that this part of the application is not manifestly
ill founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other
grounds. It must therefore be declared admissible.
D. Merits
The
parties made no separate submissions other than as mentioned in
paragraphs 57 to 62 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),
no. 34761/03, §§ 66 and 67, 5 January 2010, 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 [GC], no.
3455/05, § 204, ECHR 2009 ..., and Sanchez-Reisse v.
Switzerland, 21 October 1986, § 51, Series A no. 107).
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).
The
Court observes that in the present case the applicant was remanded in
custody by order of the District Court of 11 March 2004. He then
challenged the lawfulness of his detention by way of an interlocutory
appeal which was dismissed by the Regional Court on 20 May 2004. In
its judgment of 15 February 2006, the Constitutional Court quashed
the decision of 20 May 2004 having established that the proceedings
before the Regional Court lacked the guarantees of Article 5 § 4
of the Convention. It observed that the issue of a fresh examination
of the applicant's interlocutory appeal against detention had become
moot in view of the fact that he had been released in the meantime.
The
Court also observes that there has been no allegation or indication
that, following the quashing of the decision of 20 May 2004 by the
Constitutional Court, the applicant's interlocutory appeal against
detention has been examined anew. The applicant's request for review
of the lawfulness of his detention has thus remained undetermined.
In
these circumstances, the Court concludes that the applicant did not
have the benefit of a procedure by which the lawfulness of his remand
in detention could be decided.
In
sum, there has been a violation of Article 5 § 4 of the
Convention.
III. ALLEGED VIOLATION OF ARTICLE 5 § 5 OF THE
CONVENTION
The
applicant also complained that he had been unable to obtain
compensation in respect of the lack of proceedings for review of the
lawfulness of his remand in detention, contrary to Article 5 § 5
of the Convention, which reads as follows:
“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
The
Government submitted that the redress, which the applicant had
obtained under the judgment of the Constitutional Court of
15 February 2006, was compatible with the guarantees of
Article 5 § 5 of the Convention and considered that,
consequently, the complaint was manifestly ill founded.
The
applicant disagreed.
Referring
to its conclusions in respect of exhaustion of domestic remedies (see
paragraphs 51 to 53 above) and the applicant's victim status as
regards his complaint under Article 5 § 4 of the Convention in
relation to the remand proceedings (see paragraphs 65 to 67 above)
the Court notes, for similar reasons, that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 (a)
of the Convention. It further notes that it is not inadmissible on
any other grounds. It must therefore be declared admissible.
B. Merits
The
parties made no separate submissions other than as mentioned in
paragraphs 76 and 77 above.
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 §
4 of the Convention (see paragraph 74 above).
It
must therefore establish whether or not the applicant had
an enforceable right to compensation for the breach of Article 5
of the Convention.
The
Court observes that the present case seems to raise no issue of
pecuniary damage (see paragraph 96 below). It also observes that,
after the decision on his interlocutory appeal against detention was
quashed by the Constitutional Court on 15 February 2006, that appeal
became moot and does not appear to have been determined anew due to
the applicant's intervening release (see paragraph 15 above) thus
defeating the essence of the applicant's rights under Article 5 §
4 of the Convention.
Despite
having been aware of these consequences and having acknowledged that
the applicant had sustained non-pecuniary damage, the Constitutional
Court dismissed the applicant's claim for compensation in that
respect with no more than a general statement as to the underlying
reasons (see paragraphs 15 above).
The
Court finds it also to be of relevance in this context that, by
intent or oversight, the Constitutional Court has taken no position
in respect of the applicant's complaints concerning the substantive
aspects of his detention despite having declared them admissible (see
paragraphs 12 and 16 above).
The
Court also observes that, as concluded above, the remedy advanced by
the Government had no reasonable prospects of producing more
favourable results for the applicant (see paragraphs 51 to 53 above)
(see, mutatis mutandis, Sakık and Others v. Turkey,
26 November 1997, § 59).
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 violation of his rights under Article 5 § 4
of the Convention as found above (see paragraph 74 above) (see Brogan
and Others v. the United Kingdom, 29
November 1988, § 67, Series A no. 145 B).
There
has accordingly also been a violation of Article 5 § 5 of the
Convention.
IV. ALLEGED VIOLATION OF ARTICLE 5 §§ 1, 3 AND 4
OF THE CONVENTION IN CONNECTION WITH THE REQUEST FOR RELEASE
The
applicant complained that his request for release pending trial had
been arbitrarily refused; that the lawfulness of his detention had
not been decided “speedily” and the decision of 26 July
2004 had been wrongfully taken by a bench of three judges instead of
a single judge. He relied on Article 5 § 1, 3 and 4 of the
Convention.
The
Government referred to the Constitutional Court's judgment of 21 June
2007 and argued that the applicant could no longer be considered
to be a victim of the alleged violations.
The
applicant disagreed and argued, in particular, that the
Constitutional Court had not examined the length of the proceedings
in respect of his request for release in their entirety in that,
unlike in other cases, the Constitutional Court had examined
separately and dismissed his complaint in so far as it related to the
period when his request for release had been under review by the
public prosecution service.
The
applicant also argued that the amount of just satisfaction awarded to
him by the Constitutional Court had not been adequate and sufficient
in view of his personal circumstances, in particular the fact that he
lives in Germany.
The
Court observes that in its judgment of 21 June 2007 the
Constitutional Court found a violation of the applicant's rights
under Article 5 § 1 (c), 3 and 4 of the Convention on
account of the Regional Court's failure to provide the applicant with
a copy of the observations made by the prosecution service in reply
to the applicant's request for release, combined with the fact that
it had not heard the applicant in person, and on account of its
failure to rule on all claims in the appeal and to provide adequate
reasoning for its decision. The Constitutional Court also found that
the District Court and the Regional Court had failed to decide on the
lawfulness of the applicant's detention speedily. It awarded the
applicant reimbursement of his legal costs and SKK 100,000 in respect
of non-pecuniary damage (see paragraphs 24 and 26 above).
As
to the complaint concerning the length of the proceedings in respect
of the applicant's request for release, the Court observes in
particular that although the operative part of its judgment only
concerns the District Court and the Regional Court, in examining the
applicant's complaint the Constitutional Court also took into account
the fact that the applicant's request for release had first been
examined by the public prosecution service (see paragraph 24 above).
In
view of the Constitutional Court's findings under Article 5 § 4
of the Convention, the Court has found no reasons for a separate
examination of the issue of the composition of the District Court's
bench determining the applicant's request for release at first
instance.
In
sum, the Court considers that the redress obtained by the applicant
under the Constitutional Court's judgment of 21 June 2007 is adequate
and sufficient in terms of the Court's case-law. In consequence, the
applicant can no longer claim to be a victim within the meaning
of Article 34 of the Convention of the violations asserted under
Article 5 §§ 1 (c), 3 and 4 of the Convention in connection
with his request for release.
It
follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3 (a)
and 4 of the Convention.
V. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
In
connection with the above-mentioned claims the applicant also relied
on Articles 6, 13 and 14 of the Convention.
However,
in the light of all the material in its possession, and in so far as
the matters complained of are within its competence, the Court finds
that they do not disclose any appearance of a violation of the
applicant's rights under those provisions.
It
follows that the remainder of the application is manifestly
ill-founded and must be rejected in accordance with Article 35 §§
3 (a) and 4 of the Convention.
VI. 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 stated that he was not claiming compensation in respect of
pecuniary damage. However, he claimed 10,000 euros (EUR) in respect
of non-pecuniary damage.
The
Government considered the claim overstated.
The
Court finds that the applicant must have sustained non pecuniary
damage. Ruling on an equitable basis, it awards the applicant EUR
3,500 under that head.
B. Costs and expenses
The
applicant claimed EUR 8,230.62 for legal assistance, submitting
itemised invoices from his lawyer, 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 in the case of Young, James and Webster v.
the United Kingdom ((former Article 50), 18 October 1982, §
15, Series A no. 55), the Government considered that the claim in
respect of legal fees was overstated. They objected that the claims
concerning 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 74 and 84 above), the documents in its possession and the
above criteria, the Court considers it reasonable to award the
applicant EUR 2,000 to cover legal representation both at the
national level and before 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 the complaints under Article
5 §§ 4 and 5 of the Convention in respect of the alleged
lack of proceedings by which the lawfulness of the applicant's remand
in detention could be decided and the alleged lack of an enforceable
right to compensation in that respect;
Declares inadmissible the remainder of the
application;
Holds that there has been a violation of Article
5 § 4 of the Convention;
Holds that there has been a violation of Article
5 § 5 of the Convention;
Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 3,500
(three thousand five hundred 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 8 February 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
