European Court of Human Rights

Information Note on the Court’s case-law No. 169

December 2013

Černák v. Slovakia - 36997/08

Judgment 17.12.2013 [Section III]

Article 5

Article 5-4

Review of lawfulness of detention

Failure to guarantee adequate review of lawfulness of detention: violation

 

Facts - Between 2005 and 2007 the applicant was charged with seven counts of murder and conspiracy to murder which offences had allegedly taken place in the Czech Republic. In December 2006 and March 2007 two European arrest warrants (“EAWs”) were issued by a Slovak court in respect of the applicant. The Czech courts then consented to the applicant’s trial taking place in Slovakia pursuant to the EAWs. On 2 February 2007 the applicant was remanded in custody following a habeas corpus hearing. At the hearing both he and the prosecution orally stated that they wished to appeal against the decision. On 12 February 2007 the regional court dismissed the defence’s appeal without hearing the applicant or his counsel. The decision was taken prior to service of the detention order on the defence and, therefore, in the absence of the applicant’s grounds for appeal. In the same decision, the regional court partially allowed the prosecution’s appeal. On 10 July 2007, following a request by the prosecution to extend the applicant’s detention by six months, the district court allowed the request without hearing representations from the applicant. On 18 July 2007 the applicant lodged written submissions containing an interlocutory appeal against the decision of 10 July 2007 and subsequently requested to be heard in person. On 25 July 2007 the regional court dismissed the interlocutory appeal. The applicant then lodged a complaint with the Constitutional Court alleging, inter alia, that his pre-trial detention under the order issued on 2 February 2007 had been in breach of the rule of speciality under the European Convention on Extradition 1957 (“the ECE”), and that the decision to extend his detention had violated his rights under Article 5 § 4 of the Convention. However, his complaints were declared inadmissible.

Law - Article 5 § 4: The requirement of procedural fairness under Article 5 § 4 entailed that the procedure must have a judicial character and provide guarantees appropriate to the type of deprivation of liberty in question. In particular, the proceedings had to be adversarial to ensure “equality of arms” between the parties. As for the applicant’s case, the Government’s submission and the findings of the Constitutional Court appeared to be inconsistent as to what had prompted the detention order of 2 February 2007 and, assuming it to have been an application by the prosecution, whether a copy had been served on the applicant. But whatever the position, the time and facilities made available to the applicant’s lawyers for the preparation of his case had been limited.

Furthermore, the applicant’s written pledge to live in accordance with the law and make himself available for the purposes of his prosecution, had been disregarded by the domestic courts. While it appeared that the applicant’s submissions had not reached the district court before the regional court determined the appeals, in view of the personal nature of the submission, the complexity of the issues regarding the rule of speciality, and the fact that with the exception of the detention order of 2 February 2007 all the contested decisions had been taken without the presence of the applicant or his lawyer, the Court considered that it would have been advisable for the applicant’s subsequent interlocutory appeal against the order for the extension of his detention to have been heard orally. Although the detention order had been pronounced “together with the reasoning [behind it] and instructions as to an available remedy” during the remand hearing of 2 February 2007, the transcript of that hearing did not contain the reasoning. It was therefore only natural that the applicant should have awaited service of the written order in order to be able to contest it properly. As neither the order nor the prosecution’s written interlocutory appeal were served on the applicant before the determination of his orally announced appeal, any meaningful exercise of his right of appeal had thereby been practically reduced to a merely formal remedy. Furthermore, when dealing with the applicant’s challenges to the detention and extension orders none of the domestic courts had taken any stance on the crucial argument concerning the lawfulness of his detention under the speciality rule.

In light of the combination of the above mentioned elements, the Court concluded that in relation to his interlocutory appeals against the detention order of 2 February 2007 and the extension order of 10 July 2007, the applicant had been denied proceedings for the review of the lawfulness of his detention within the meaning of Article 5 § 4 of the Convention.

Conclusion: violation (five votes to two).

Article 41: Finding of a violation constituted sufficient just satisfaction in respect of any non-pecuniary damage.

(See also: Černák v. Slovakia (dec.), 67431/01, 1 March 2005; Michalko v. Slovakia, 35377/05, 21 December 2010; Lutsenko v. Ukraine, 6492/11, 3 July 2012, Information Note 154)

 

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