FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 35933/06			Application no. 48144/06
by Dušan POKRIVKA			by Rastislav ŠITTA
against Slovakia				against Slovakia
The European Court of Human Rights (Fourth Section), sitting on 28 September 2010 as a Chamber composed of:
	
and Lawrence EarlyRegistrar,
Having regard to the above applications lodged on 22 August 2006 and 21 November 2006,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
The applicants are two Slovak nationals. The first applicant, Mr Dušan Pokrivka, was born in 1977. He is serving a term of imprisonment in the Ilava prison. The second applicant, Mr Rastislav Šitta, was born in 1972 and is serving a sentence of imprisonment in the Leopoldov prison. They were represented before the Court by Mr J. Smetana, a lawyer practising in Banská Bystrica. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Mrs M. Pirošíková.
A.  The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
On 4 February 2002 a police investigator accused the applicants, together with seven other people, of founding and supporting an organised criminal group and of fraud. The accused were suspected of having organised a large-scale financial transaction scheme which resulted in a value-added tax fraud of approximately 148 million Slovak korunas. Six other people were accused of fraud in the same context.
The applicants were arrested on 7 February 2002. On 9 February 2002 a judge of the Banská Bystrica Regional Court remanded them in custody with effect from 7 February 2002. The judge considered that there was a risk of the applicants' absconding, hampering the investigation into the case and committing further offences within the meaning of Article 67 § 1 (a), (b) and (c) of the Code of Criminal Procedure of 1961 (“the 1961 Code”).
The applicants were subsequently accused of murder and several other offences.
On 27 October 2004 a public prosecutor indicted the applicants, together with twenty-eight other people, for a number of criminal offences before the Banská Bystrica Regional Court. The offences alleged included fraud, membership of an organised criminal group, murder and robbery.
On 21 July 2005 the case was transmitted to the Special Court in Pezinok. That court severed several charges against the applicants in order to conduct separate proceedings. The remaining part of the case was returned to the public prosecutor.
From 4 to 14 October 2005 the Special Court held the main hearing in the case. It decided to sever several more charges against the applicants and their co-accused into separate proceedings. The remaining part of the case was adjourned with a view to taking further evidence.
On 7 November 2005 the Supreme Court of Slovakia extended the applicants' detention until 7 July 2006. It accepted the Special Court's view that the case was complex and that it was necessary to obtain further evidence. The evidence available justified the suspicion that the applicants were involved in the killing of several people whose bodies had been subsequently dissolved in sulphuric acid. The risk of the applicants' absconding, influencing witnesses and committing further offences persisted. It could be seen that the case was complex as the file comprised fifty-six folders at that time, and the first-instance court had displayed due diligence when dealing with the case.
Hearings before the Special Court were held on 11 and 12 January, 15 February and 21 March 2006. The accused and a number of witnesses and experts were heard and documentary evidence was taken.
On 21 March 2006 the Special Court dismissed the applicants' request to be released. With reference to the particular circumstances of the case, it held that the reasons for the applicants' detention still existed within the meaning of Article 67 § 1 (a), (b) and (c) of the 1961 Code. In particular, the accused had been away from their place of residence prior to their arrest, several witnesses had made statements against them and, in view of the actions imputed to them, there was a real risk that they would commit offences in the event of their release.
The decision stated that the 1961 Code continued to apply to the applicants' case and, accordingly, the maximum permissible duration of their detention was five years. Following the entry into force of the Code of Criminal Procedure of 2005 (“the 2005 Code”) on 1 January 2006, their detention during trial could not exceed two years from that date, as in the case of people detained under the provisions of the 2005 Code.
On 5 April 2006 the Supreme Court dismissed the applicants' complaint against the above-mentioned decision, as it concurred with the Special Court's reasoning.
The Supreme Court held that people in the position of the applicants, who had been indicted prior to the entry into force of the 2005 Code, were not entitled to have the duration of their detention as a whole or the duration of their detention during trial governed by Article 76 §§ 6 and 7 of the 2005 Code. Article 564 § 5 of the 2005 Code clearly indicated that that had not been the intention of the legislature. The situation did not amount to unequal treatment, as the applicants had been remanded in custody under a different legal regime, namely that governed by the 1961 Code. However, both categories of detained persons – those whose detention was governed by the 1961 Code and those detained under the 2005 Code – should receive equal treatment as regards the duration of their detention during trial after the entry into force of the 2005 Code. In that respect, the applicants were treated equally to the other category of detainees. Thus the detention during trial of accused persons who had been remanded and indicted prior to 1 January 2006 for offences which the Criminal Code of 2005 qualified as extremely serious crimes was permissible for a maximum duration of two years as from 1 January 2006.
As to the applicants' reliance on Article 564 § 7 of the 2005 Code, the Supreme Court held that the legislator was free to choose whether the periods of maximum detention under the 2005 Code would apply to proceedings which had arisen under the law previously in force. The only situations where the legislator had allowed detained persons to benefit from the newly introduced shorter maximum periods of detention were the cases mentioned in Article 564 § 7, where criminal proceedings were at the pre-trial stage.
The Supreme Court concluded that the applicants, who had been indicted prior to 1 January 2006, could in principle be detained until 7 February 2007 when the maximum permissible detention period of five years would expire.
On 19 April and 10 May 2006 the applicants complained separately to the Constitutional Court that their detention had exceeded the maximum permissible period of four years. They relied on Article 76 § 6 in conjunction with Article 564 § 7 of the 2005 Code and on Article 5 §§ 1 (c) and 3 of the Convention.
On 3 May 2006 the Special Court convicted the applicants of murder. It sentenced the second applicant to twenty-five years' and the first applicant to fourteen years' imprisonment. The applicants appealed.
On 17 May 2006 the Constitutional Court rejected the first applicant's complaint as being manifestly ill-founded. In particular, it held that the Supreme Court's interpretation and application, in its above decision of 5 April 2006, of the relevant provisions of the two Codes of Criminal Procedure were in conformity with the Constitution and the Convention.
On 28 June 2006 the Constitutional Court dismissed the second applicant's complaint for similar reasons. It held, with reference to Article 564 §§ 3, 4 and 5 of the 2005 Code, that the date of filing of the indictment was decisive in the determination of whether the 2005 Code or the 1961 Code would govern a criminal case including periods of detention. It therefore considered erroneous the interpretation which the Supreme Court had given to the relevant provisions in its decisions 2 Ntv 1/2006 of 17 January 2006 and 4 Ntv 2/2006 of 31 January 2006 and on which the second applicant had relied. The fact that in the second applicant's case the Supreme Court had decided differently from those two decisions did not run contrary to the principle of legal certainty. In particular, those two decisions had been given in January 2006, immediately after the entry into force of the 2005 Code. A difference in the interpretation of newly adopted legislation could not be avoided during a period preceding the elaboration of established practice on the issue.
On 6 July 2006 the Supreme Court extended the applicants' detention until 7 December 2006. As to the lawfulness of their detention, reference was made to the above Constitutional Court's decision of 17 May 2006 on the complaint of the first applicant.
B.  Relevant domestic law and practice
1.  Code of Criminal Procedure of 1961 (Law no. 141/1961 Coll., as applicable at the relevant time) (“the 1961 Code”)
Under the 1961 Code, detention during criminal proceedings was governed by the provisions of Articles 67 et seq. A person charged with a criminal offence could be detained, inter alia, where there were reasonable grounds for believing that he or she would abscond (Article 67 § 1 (a)), influence the witnesses or the co-accused or otherwise hamper the investigation (Article 67 § 1 (b)), or continue criminal activities, complete an attempted offence or commit an offence which he or she had been prepared or had threatened to commit (Article 67 § 1 (c)).
The duration of detention was regulated by the provisions of Articles 71 et seq. Detention in the pre‑trial phase of the proceedings and during the trial, taken together, could not exceed two years. An extension could be authorised by the Supreme Court if it had been impossible to complete the proceedings earlier because of the complexity of the matter or for other important reasons and the release of the detainee would jeopardise the purpose of the proceedings. The total duration of the detention could not, however, exceed three years or, in the case of offences qualified as extremely dangerous, five years (Article 71 § 2).
2.  Code of Criminal Procedure of 2005 (Law no. 301/2005 Coll., as amended) (“the 2005 Code”)
The new Code of Criminal Procedure was enacted on 24 May 2005 and its text was published in the Collection of Laws on 2 July 2005. It entered into force on 1 January 2006. The duration of detention is regulated by Articles 76 et seq.
The total duration of detention in the pre-trial phase of the proceedings and during the trial, taken together, cannot exceed twelve months where the case concerns a lesser crime (prečin), thirty-six months in the case of a crime (zločin), and forty-eight months in the case of an extremely serious crime (obzvlášť závažný zločin) (Article 76 § 6). Detention in the pre‑trial phase of the proceedings and during the trial, taken separately, can last up to one half of the above periods (Article 76 § 7). As regards detention during trial, the period is to be counted from the moment when the indictment is filed (Article 76 § 5). If the detainee faces multiple charges, the offence carrying the most severe potential penalty should be used as the basis for determining the maximum permissible duration of the detention (Article 76 § 8).
The temporal application of the 2005 Code is governed by the provisions of Articles 564 et seq. As a general rule, proceedings where the indictment was filed prior to the entry into force of the 2005 Code should continue under the 1961 Code (Article 564 §§ 3 and 4). This extends to proceedings in which the duration of and grounds for detention are examined including proceedings on a proposal for one's detention to be extended by the Supreme Court (Article 564 § 5).
Paragraph 7 of Article 564 provides that, in cases where a person's pre-trial detention started prior to the entry into force of the 2005 Code, the time-limits within which a decision is required on the extension of such detention at the pre-trial stage of the criminal proceedings start running at the date of entry into force of the 2005 Code. Paragraph 7 does not affect the provisions governing the permissible duration of detention, with the exception of cases, where, prior to the entry into force of the 2005 Code, a final decision had been given to extend a person's detention for a period exceeding the periods mentioned in Article 76 §§ 6 or 7. In such cases, a person's detention is to end three months after the entry into force of the 2005 Code at the latest.
3.  The domestic courts' practice
The provisions on the temporal application of the newly introduced 2005 Code initially gave rise to differing interpretations by the benches of the Supreme Court. Thus, contrary to the above-mentioned decision on the applicants' case of 5 April 2006, the Supreme Court also found that the maximum duration of detention of a person who had been indicted prior to 1 January 2006 should be governed by the newly enacted 2005 Code. The Supreme Court stated that any other interpretation of the relevant provisions would run contrary to the constitutional principle of equality of persons before the law (Supreme Court decision 2 Ntv 1/2006 of 17 January 2006). A similar view was expressed in Supreme Court decision 4 Ntv 2/2006 of 31 January 2006.
The criminal law section (kolégium) of the Supreme Court therefore adopted a practice direction indicating how Article 76 § 6 and Article 564 § 5 of the 2005 Code should be interpreted (no. Tpj 14/06, practice direction adopted on 8 December 2006 and subsequently published in the Collection of practice directions of the Supreme Court and decisions of courts, no. 2/2007).
With reference to relevant provisions of the Constitution, the criminal law section of the Supreme Court held that detained persons who had been indicted prior to the entry into force of the 2005 Code were not entitled to have the duration of their detention as a whole or the duration of their detention during trial governed by Article 76 §§ 6 and 7 of the 2005 Code. Article 564 § 5 of the 2005 Code clearly indicated that that had not been the intention of the legislature. The situation did not amount to unequal treatment as the individuals concerned had been remanded in detention under a different legal regime, namely that governed by the 1961 Code.
However, the Supreme Court also held that both categories of detained persons – those whose detention was governed by the 1961 Code and those detained under the 2005 Code – should receive equal treatment as regards the duration of their detention during trial after the entry into force of the 2005 Code. In practical terms, the detention during trial of individuals falling within the former category in the period after 1 January 2006 should not last longer than six, twelve or twenty-four months, depending on the nature of the offence in issue, as specified in Article 76 §§ 6 and 7 of the 2005 Code. In that respect, those individuals were treated equally to the other category of detainees. For example, the detention during trial of accused persons who had been remanded and indicted, prior to 1 January 2006, for offences which the 2005 Criminal Code qualified as extremely serious crimes, could not exceed two years from 1 January 2006. Detention of such persons after 1 January 2008 was therefore not permissible.
COMPLAINT	
The applicants complained that their detention during criminal proceedings had been unlawful, in that it had exceeded the maximum permissible period set out in the 2005 Code, and that in the proceedings leading to the Constitutional Court's decisions of 17 May and 28 June 2006 the courts had refused to order their release. They relied on Article 5 §§ 1 (c) and 3 of the Convention.
THE LAW
Given their similar factual and legal background and the point of law at issue, the Court considers it appropriate to join the applications.
The applicants complained that their detention during criminal proceedings had been unlawful, in that it had exceeded the maximum permissible period set out in the 2005 Code and that in the proceedings leading to the Constitutional Court's decisions of 17 May and 28 June 2006 the courts had refused to order their release. They relied on Article 5 §§ 1 (c) and 3 of the Convention which, as far as relevant, provide:
“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...”
The Government relied on the reasons set out in the above-mentioned Supreme Court decision of 5 April 2006 and the subsequent decisions of both the Supreme Court and the Constitutional Court. They argued that the interpretation and application of the relevant law in the applicants' cases was correct and compatible with their rights under Article 5 of the Convention.
The applicants maintained that, by their respective decisions of 21 March 2006 and 5 April 2006, the Special Court and the Supreme Court had breached their rights under Article 5 §§ 1 and 3 of the Convention in that they had allowed an extension of their detention beyond the maximum permissible period set out in Article 76 § 6 in conjunction with Article 564 § 7 of the 2005 Code. They relied on the Supreme Court decision 4 Ntv/2006 of 31 January 2006 and argued that in their cases the domestic courts had given an erroneous interpretation to the relevant transitional provisions of the 2005 Code. In particular the Supreme Court had mistakenly considered Article 564 § 7 of the 2005 Code to extend exclusively to cases where an indictment had not been filed.
The Court firstly notes that the applicants' allegation of a breach of Article 5 §§ 1 and 3 of the Convention is solely based on the argument that the courts involved had incorrectly interpreted and applied the law, in that they had permitted an extension of the applicants' detention beyond the maximum four-year period permissible under Article 76 § 6 in conjunction with Article 564 § 7 of the 2005 Code. The applicants submitted, either in the proceedings before the Constitutional Court or in their observations in the context of the present proceedings, no separate arguments relating to the protracted duration of the detention and its justification. The Court therefore considers it appropriate to examine their complaint under Article 5 § 1 (c) of the Convention, as it concerns, in substance, the alleged unlawfulness of their detention.
Article 5 § 1 of the Convention essentially refers back to national law and states the obligation to conform to the substantive and procedural rules thereof, but it requires in addition that any deprivation of liberty should be consistent with the purpose of Article 5 of the Convention, namely to protect individuals from arbitrariness. It is in the first place for the national authorities, notably the courts, to interpret and apply domestic law. However, because under Article 5 § 1 of the Convention a 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, Kučera v. Slovakia, . 48666/99, § 86, ECHR 2007‑IX (extracts), with further references).
The Court further reiterates in this context that it is not its function to deal with errors of fact or law allegedly made by a national court, unless and insofar as they may have infringed rights and freedoms protected by the Convention. It is primarily for the national authorities, notably the courts, to resolve problems of interpretation of national legislation. This applies in particular to the interpretation by the courts of rules of a procedural nature. The Court's role is confined to ascertaining whether the effects of such an interpretation are compatible with the Convention in general and with the principle of legal certainty in particular (for recapitulation of the relevant case-law see, mutatis mutandis, Alkes v. Turkey (no. 2), no. 16047/04, § 19, 8 June 2010, with further references).
The Court addressed a complaint similar to that of the present applicants in Martikán v. Slovakia (dec.), no. 50184/06, 17 March 2009. In that case, it found the interpretation of the transitional provisions of the 2005 Code governing the use of the Codes of 1961 and 2005 in respect of cases in which an indictment had been filed prior to the entry into force of the 2005 Code to be neither arbitrary nor discriminatory. In Martikán v. Slovakia the Court noted that the Constitutional Court had found the relevant interpretation to conform to the Constitution and that the criminal law section of the Supreme Court had ultimately confirmed it as being appropriate in its practice direction of 8 December 2006 (no. 1 Tpj 14/06).
Such an interpretation of the transitional provisions of the 2005 Code coincides with the way in which the Supreme Court applied the relevant provisions in the case of the present applicants. The Court finds no specific circumstances justifying its reaching a different conclusion on that interpretation in the case under consideration. In particular, it does not attach particular importance to the fact that in January 2006, prior to deciding on the applicants' case, some benches of the Supreme Court had interpreted the relevant statutory provisions differently. As indicated above, the criminal law section of that court later issued a practice direction harmonising the way in which those provisions should be interpreted and applied, and which the Court has found acceptable.
On the basis of such interpretation of the relevant provisions of the 2005 Code, the Supreme Court concluded in its decision of 5 April 2006 that individuals such as the applicants, who had been indicted prior to the entry into force of the 2005 Code, were not entitled to have the duration of their detention as a whole or the duration of their detention during trial governed by Article 76 §§ 6 and 7 of the 2005 Code. The applicants' detention during the criminal proceedings could therefore, in principle, last until 7 February 2007, when the maximum detention period of five years permissible under the 1961 Code would expire.
The Special Court convicted the applicants of criminal offences on 3 May 2006. Their detention falling under Article 5 § 1 (c) of the Convention thus ended that day. It did not, therefore, exceed the maximum period indicated in the Supreme Court's decision of 5 April 2006.
In these circumstances, the Court finds no indication that the applicants' detention under consideration was arbitrary, unlawful or otherwise contrary to the requirements of Article 5 § 1 (c) of the Convention.
It follows that the applicants' complaint is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
For these reasons, the Court unanimously
Decides to join the applications;
Declares the applications inadmissible.
	Lawrence Early	Nicolas Bratza	
		President