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FOURTH
SECTION
CASE OF ŠTETIAR AND
ŠUTEK v. SLOVAKIA
(Applications
nos. 20271/06 and 17517/07)
JUDGMENT
STRASBOURG
23
November 2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Štetiar and
Šutek v. Slovakia,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
David Thór Björgvinsson,
Ján
Šikuta,
Päivi Hirvelä,
Ledi
Bianku,
Mihai Poalelungi, judges,
and
Fatoş Aracı, Deputy
Section Registrar,
Having
deliberated in private on 2 November 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in two applications (nos. 20271/06 and 17517/07)
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 two Slovak nationals, Mr
Marián Štetiar (“the
first applicant”) and Mr Rastislav Šutek (“the
second applicant”), on 4 May 2006 and 13 April 2007,
respectively.
- The
applicants were represented by Mr R. Toman, a lawyer practising in
Bratislava. The Government of the Slovak Republic (“the
Government”) were represented by their Agent, Ms M. Pirošíková.
- The
applicants alleged that their detention had been unlawful and
unjustified, that the procedure in respect of it had fallen short of
the applicable requirements, that they had not had an effective
remedy and that they had been discriminated against.
- On
1 and 8 March 2010, respectively, the President of the Fourth Section
decided to give notice of the applications to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicants were both born in 1977. The first applicant lives in
RuZomberok while the second applicant lives
in Prievidza.
A. Arrest and criminal proceedings
- At
11.10 p.m. on 21 February 2005 the applicants were arrested
(zadrZaný) by the police and subsequently charged with
assaulting a public official (Article 155 § 1 (a) of the
Criminal Code (Law no. 140/1961 Coll., as applicable at the
relevant time) – “the CC”) and with breaching the
peace (Article 202 § 1 of the CC).
It
was suspected that, earlier that evening, the applicants had caused
damage to goods in a hypermarket, had behaved in an offensive manner
in public and had insulted, punched and grabbed by the uniform a
policeman who had been called to the scene.
- On
17 May 2005 the applicants were charged with a further count of
assaulting a public official (Article 156 § 1 (b) of the CC) and
with criminal damage (Article 251 § 1 of the CC).
It
was alleged that, while being escorted to the police station after
the incident of 21 February 2005 and while at the police station,
they had made death threats against the above-mentioned policeman and
another police officer, and that they had damaged their handcuffs, a
bench, a wall and a radiator in their cell.
- On
21 July 2005 the Prievidza District Public Prosecutor's Office
(Okresná prokuratúra) indicted the applicants to
stand trial on the above mentioned charges before the Prievidza
District Court (Okresný súd).
- On
18 January 2006 the District Court found the applicants guilty as
charged and sentenced each of them to two years' imprisonment. The
judgment was upheld on appeal by the Trenčín
Regional Court (Krajský súd) on 4 May 2006. It
thereby became final and binding.
- On
18 September 2006 the second applicant was released from prison on
parole. The first applicant was released on 21 February 2007
after having served his sentence.
B. Detention order and related constitutional complaint
- After
the arrest at 11.10 p.m. on 21 February 2005, the applicants were
taken to the police station and placed in a cell.
- At
2.21 p.m. on 23 February 2005, the District Public Prosecutor's
Office lodged a request with the District Court for the applicants
to be placed in detention pending trial. The request
relied, inter alia, on a video-recording by the
hypermarket's camera system.
- On
23 February 2005 both applicants were examined by a single judge of
the District Court in connection with the prosecutor's request. The
second applicant was brought before him at approximately 5.15 p.m..
The first applicant was brought before him at approximately
6 p.m.
Assisted
by a lawyer of their choosing, who then represented both applicants
throughout the proceedings, the applicants denied the charges
and argued that there was no admissible evidence against them
because all existing witness statements had been taken by officers of
the local police force, who had been directly involved in the
incident. Those officers were therefore biased by definition.
Moreover,
the applicants contended that they had not been brought before
a judge within twenty-four hours of their arrest, as required by
Article 8 of the Charter of Basic Rights and Freedoms
(Constitutional Law no. 23/1991 Coll.) (Listina základných
práv a slobôd – “the Charter”).
The
applicants asked to be released; they 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 they would live in accordance with the
law and, in the alternative, applied for bail, under Article 73a
of the CCP.
- At
approximately 7 p.m. on 23 February 2005 the District Court gave an
order (uznesenie) for the detention of the applicants,
rejecting their pledge and refusing bail.
- The
District Court observed that the suspicion against the applicants was
based on the statements of three witnesses and that nothing had been
submitted by them or their lawyer that could refute the charges
against them.
The
District Court held that the admissibility of the evidence would
be established in the further course of the proceedings.
- The
District Court observed that the first applicant had already stood
trial and faced charges in two other similar sets of proceedings.
The
second applicant had five previous convictions, including for violent
offences. In addition, he had stood trial and faced charges in two
other similar sets of proceedings also for violent offences. As the
second applicant had himself accepted, in the incident of 21 February
2005 he had been intoxicated and “might have eaten some
groceries” at the hypermarket.
The
District Court concluded that the applicants had a tendency to commit
violent offences of the same nature. This prompted fears that, if
released, they might complete a previously attempted offence,
continue to offend, or undertake new criminal activities within
the meaning of Article 67 § 1 (c) of the CCP.
It
was therefore necessary to keep the applicants detained and,
accordingly, neither their pledge nor bail application was
acceptable.
- As
to the applicants' objection concerning the alleged failure to bring
them before a judge within the applicable time-limit, the District
Court observed that the applicants had been arrested at 11.10 p.m.
on 21 February 2005 and that the application for the
detention order had been lodged with the court at 2.21 p.m. on 23
February 2005. The time limit applicable under the CCP was
forty-eight hours and had been observed.
The
District Court held, specifically, that “it [was] not up to a
judge of an ordinary court, whose task it [was] to decide on
detention, to examine compliance of the provisions of the [CCP] with
a constitutional law or an international treaty”. The written
version of the decision was served on the applicants' lawyer on 2
March 2005.
- When
the decision was pronounced on 23 February 2005, the applicants
orally lodged an interlocutory appeal (sťaZnosť)
against it. On 28 February 2005 they submitted their grounds of
appeal in writing.
The
applicants relied on Article 5 of the Convention and reiterated that,
under Article 8 of the Charter, their detention was unlawful on the
ground that after their arrest they had not been brought before a
judge within twenty four hours. It was true that the time-limit
for bringing an arrested person before a judge under Article 17
§ 3 of the Constitution (Constitutional Law no. 460/1992 Coll.),
as amended with effect from 1 July 2001 (Constitutional Law
no. 90/2001 Coll.), and under Articles 76 § 4 and
77 § 1 of the CCP, as amended with effect from 1 August
2001 (Law no. 253/2001 Coll.) was forty-eight hours.
However,
neither the Constitution nor any other legislation had expressly
repealed the Charter and an implicit repeal was not permissible. The
Charter guaranteed them broader legal protection and had to be
applied in their case.
The
applicants again challenged the evidence and requested release or, in
the alternative, bail, and offered a pledge under Article 73 § 1
(b) of the CCP.
- On
16 March 2005 the Regional Court, sitting in private (neverejné
zasadnutie), dismissed the applicants' appeal. It noted that the
time limit for bringing the applicants before a judge under the
Constitution and the CCP had been observed and that the victim and
witnesses had given their statements after duly receiving
instructions concerning their procedural rights and duties. The
Regional Court held that it was not up to courts in pre-trial
proceedings to deal with questions concerning the impartiality of
investigating authorities, and observed that “in the recent
period, the applicants ha[d] been accused of having intentionally
committed several criminal offences, while neither their previous
prosecution nor the bill of indictment of 20 April 2004 ha[d] had the
required effect on them”. The decision was served on the
applicants and their lawyer on 31 March 2005.
- On
18 May 2005 the applicants lodged a complaint under Article 127
of the Constitution with the Constitutional Court (Ústavný
súd). The complaint was amended on 23 May 2005.
Besides
the above-mentioned complaints, the applicants contended that the
decision of 16 March 2005 was arbitrary and not susceptible to review
because of a lack of relevant reasoning and that the proceedings in
respect of their appeal against the decision of 23 February 2005 had
lasted too long.
The
applicants relied on Article 5 §§ 1 (c), 3 and 4
of the Convention and on their constitutional counterparts.
- On
5 October 2005 the Constitutional Court, sitting in private, declared
the complaint inadmissible, essentially for being manifestly
ill founded.
As to
the time-limit for bringing the applicants before a judge after their
arrest, the Constitutional Court endorsed the position which it had
taken in previous decisions (on 9 June and 8 September 2004 in cases
nos. I. ÚS 100/04 and I. ÚS 141/04, respectively), to
the effect that, by virtue of Article 152 §§ 1 and 4 of the
Constitution, the Constitution took precedence over legislation
(including constitutional laws) which was in effect at the time of
the entry into force of the Constitution. Furthermore, the
forty eight hour time-limit under the Constitution also
took precedence over the twenty-four-hour time-limit under the
Charter in accordance with the maxim lex posterior derogat legi
priori.
As to
the admissibility of evidence in support of the case against the
applicants, the solidity of which was a prerequisite for their
detention, the Constitutional Court held, somewhat inconsistently,
that it was a matter to be examined by the ordinary courts and
that it was not the task of the ordinary courts dealing with
detention to examine the lawfulness and constitutionality of the
criminal proceedings as such.
Lastly,
the Constitutional Court found that the reasons given in the
decisions of 23 February and 16 March 2005 were adequate and
sufficient and that, although not optimal, the length of the
proceedings in respect of the applicants' appeal against their
detention was acceptable, the time between submitting their appeal
orally (23 February 2005) and in writing (28 February 2005)
being attributable to the applicants.
The
decision of the Constitutional Court was served on the applicants on
10 January 2007.
C. Request for release and related constitutional
complaint
- During
a hearing before the District Court on 21 September 2005, the
applicants again requested release or, in the alternative, bail and
offered a pledge under Article 73 § 1 (b) of the CCP. The
District Court dismissed the request immediately, in response to
which the applicants orally lodged an interlocutory appeal and
indicated that they would submit the reasons for the appeal in
writing once the written version of the decision had been served on
their lawyer.
- The
written version of the decision of 21 September 2005 was served on
the applicants on 30 September 2005. “Having regard to the
evidence examined hitherto” the District Court was of the
opinion that “the reasons for the applicants' detention
persisted”. In particular “in view of the applicants'
character, their previous conduct and the fact that they had been
convicted of a similar criminal offence by the District Court, which
conviction was [at that time] pending before the Regional Court on
appeal”, the District Court observed that, when shopping, the
applicants regularly behaved in the manner of which they stood
accused.
The
applicants had a tendency to behave, and would continue behaving,
this way despite a prosecution in court which had brought about no
change in their behaviour. Therefore, the applicants' request for
release on bail and their pledge were not acceptable, and those two
proposals could not be regarded as more than a mere formality.
Without
offering any details, the District Court declared that, “when
dealing with the applicants' request, [it] had examined the
applicants' remand in custody and the conduct of the prosecuting
authorities for compliance with the applicants' fundamental rights
and freedoms under the Constitution and international treaties, and
that [it] had established no such facts [on the basis of which it
could accept the complaint]”.
- On
10 October 2005 the applicants submitted written grounds in support
of their appeal of 21 September 2005. They referred to the arguments
in their appeal against the decision of 23 February 2005 and
reiterated that their detention had been unlawful ab initio
because the time-limit for bringing them before a judge after their
arrest had not been observed. They also submitted that their pledge
and bail requests were by no means a mere formality because they were
ready to pledge specifically not to behave in the manner for
which they had been indicted and, furthermore, the amount that they
were offering in bail was substantial.
Relying
on the principle of the presumption of innocence, the applicants also
submitted that the previous conviction that the District Court had
been referring to had been quashed on appeal by the Regional Court on
13 September 2005.
- On
16 November 2005 the Regional Court, sitting in private, dismissed
the appeal. In a two-page decision, after referring to the impugned
decision, the Regional Court considered that it was only necessary to
add that, although the applicants' previous conviction had been
quashed, the existing evidence indicated that they were in fact
guilty of assaulting a police officer in a manner similar to the
present case. The applicants' detention was justified on the grounds
of protecting the public from persons who, having been suspected of
committing criminal offences, might commit other such offences.
Therefore, neither the bail application nor the applicants' pledge
could be accepted. The decision was served on the applicants and
their lawyer on 2 and 5 December 2005 respectively. The latter of
these dates fell on a Monday.
- On
6 February 2006, which was also a Monday, the applicants lodged
a complaint with the Constitutional Court under Article 127 of
the Constitution. They argued that, as a matter of principle,
detention was not to be used as a sanction or a rehabilitative
tool. Keeping them in detention was not necessary or proportionate.
The purpose of their detention could be served by other
measures, such as acceptance of their pledge or bail. The decisions
of 21 September and 16 November 2005 were arbitrary and not
susceptible of review for lack of reasons. Finally, the time that the
District Court and the Regional Court had taken to rule on their
request for release of 21 September 2005 had been excessive.
- By
two separate decisions taken on 7 July and 23 August 2006 the
Constitutional Court declared the complaint inadmissible in so far as
it concerned the first applicant and the second applicant,
respectively.
In
both decisions the Constitutional Court observed that a complaint
under Article 127 of the Constitution was subject to a two month
time limit.
The
Constitutional Court found that in the applicants' case the
time limit had commenced with the service of the last of the
impugned decisions on the applicants, that is to say, on 2 December
2005. As the complaint had not been lodged before 6 February 2006, it
was out of time.
The
Constitutional Court's decisions were served on the applicants on
4 and 12 October 2006, respectively.
D. Second request for release
- On
20 February 2006, following their appeal against his first instance
conviction, the applicants again requested release.
- On
24 February 2006 the District Court dismissed the request finding,
inter alia, that the reasons for keeping the applicants
detained persisted.
- On
28 March 2006 the Regional Court dismissed the applicants'
interlocutory appeal of 9 March 2006 against the decision of 24
February 2006. From the official Internet site of the Constitutional
Court (http://www.concourt.sk) it appears that the applicants lodged
a constitutional complaint against the decision of 28 March 2006
and that it was declared inadmissible as being manifestly ill-founded
on 31 October 2006 and 21 March 2007 respectively.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Charter of Basic Rights and Freedoms (Listina
základných práv s slobôd)
- The
Charter was introduced into the legal order by way of
a constitutional law which was enacted by the Federal Assembly
of the Czech and Slovak Federal Republic on 9 January 1991 and which
entered into force on 8 February 1991. It is a valid law in Slovakia
today.
- Pursuant
to Article 1 § 1 of that constitutional law, constitutional
legislation (ústavné zákony), other Acts
of Parliament (zákony) and legal regulations (ďalšie
právne predpisy), and their interpretation and
implementation, must be compliant with the Charter.
- Under
Article 8 § 3 of the Charter, a person arrested as a suspect or
on the basis of a charge against him or her (zadrZaná
osoba) must be brought before a judge within twenty-four hours.
The judge must examine the arrested person and decide whether he or
she should be remanded in custody or released, within twenty-four
hours of his or her presentation.
B. The Constitution (Ústava)
- The
Constitution was adopted by the National Council of the Slovak
Republic on 1 September 1992 and its relevant part entered into force
on 1 January 1993. It has the status of constitutional
legislation in Slovakia.
- Pursuant
to Article 17 § 3, as in force until 30 June 2001, a person
arrested as a suspect or on the basis of a charge against him or her
(zadrZaná osoba)
had to be brought before a judge within twenty-four hours of the
arrest. The judge had to examine the person and order detention
pending trial or release within twenty-four hours of presentation.
- Some
provisions of the Constitution were amended with effect from 1 July
2001. Since then, pursuant to Article 17 § 3, a person arrested
as a suspect or on the basis of a charge against him or her
(zadrZaná osoba)
has had to be brought before a judge within forty-eight hours of
arrest. The judge has to examine the detained person and order his or
her detention pending trial or release within twenty-four hours and,
in the case of particularly serious offences, within seventy-two
hours of presentation.
- Under
Article 152, which has not been affected by any amendments,
constitutional legislation, other Acts of Parliament and other
generally binding legal regulations remain in force in the Slovak
Republic, provided that they are not contrary to the Constitution (§
1). Their interpretation and application must be compliant with the
Constitution (§ 4).
C. The Constitutional Court Act (Law no. 38/1993 Coll.,
as amended)
- Section
53(3) provides that a complaint to the Constitutional Court can be
lodged within two months of the date on which the decision in
question has become final and binding or on which a measure has been
notified or notice of other interference with the complainant's
interests has been given. As regards measures and other types of
interference, this period commences when the complainant has a
practical possibility of becoming aware of them.
- Under
section 31a, except where otherwise provided or where the nature of
the matter at hand precludes their application, the provisions of the
Code of Civil Procedure and the CCP are to be applied accordingly in
proceedings before the Constitutional Court.
D. Practice of the Constitutional Court in respect of
Article 8 of the Charter
- In
decisions of 9 June and 8 September 2004 and 13 January 2005, in
cases nos. I. ÚS 100/04, I. ÚS 141/04 and I. ÚS
2/05 respectively, the First Chamber of the Constitutional Court held
that, by virtue of Article 152 §§ 1 and 4 of the
Constitution, the time-limit of forty-eight hours under the
Constitution took precedence over the time-limit of twenty-four hours
under the Charter. The same position was taken by the Second, Third
and Fourth Chambers of the Constitutional Court in decisions of
6 February 2005, 22 November 2006, 30 June 2004 and 9 March
2005 in cases nos. II. ÚS 38/05, II. ÚS 369/06, III. ÚS
220/04 and IV. ÚS 64/05, and appears to have been taken by the
First Chamber and the Fourth Chamber of the Constitutional Court in
their decisions of 16 December and 25 August 2004 in cases nos.
I. ÚS 239/04 and IV. ÚS 235/04.
E. Practice of the Constitutional Court in respect of
section 53(3) of the Constitutional Court Act
- In
a decision of 23 August 2006 in case no. II. ÚS 246/06, the
Second Chamber of the Constitutional Court took the view that, in
respect of final decisions under the CCP which were served on both
the complainant and his or her lawyer, the decisive date for the
start of the two-month time-limit was the date when the decision was
served on the complainant. The same position was taken by the Third
Chamber of the Constitutional Court in decisions of 26 March and
21 August 2003 and 3 November 2004 (cases nos. III. ÚS
90/03, III. ÚS 188/03 and III. ÚS 332/04).
The conclusion of the Constitutional Court in all these decisions in
respect of the two-month time-limit is supported by analysis.
The
same line of interpretation was followed by the Constitutional Court
in subsequent decisions, including those of 20 June and 14 September
2006, 17 April 2008, 12 February, 24 June and 8 September 2009 and 21
January 2010 in cases nos. II. ÚS 166/06, II. ÚS
288/06, IV. ÚS 131/08, IV. ÚS 37/09, I. ÚS
177/99, III. ÚS 281/09 and IV. ÚS 9/2010.
- On
13 January 2005, in case no. I. ÚS 2/05, the First
Chamber of the Constitutional Court declared admissible part of
a complaint under Article 127 of the Constitution which was
lodged with the Constitutional Court on 7 December 2004, concerning a
decision that had been served on the complainant on 6 October 2004,
while he was in detention, and on his lawyer on 7 October 2004. The
decision contains no analysis in respect of the two month
time limit.
- In
decisions of 25 November 2004 and 1 June 2005 under respective file
numbers IV. ÚS 372/04 and IV. ÚS 157/05, the
Constitutional Court took as decisive for the commencement of the
two-month time-limit the date when an interlocutory appeal was
determined, irrespective of when the decision was served on the
detained complainants and their lawyers.
F. The Code of Criminal Procedure
- At
the relevant time and until 31 December 2005, criminal procedure in
Slovakia was governed by the 1961 Code of Criminal Procedure. This
Code has been amended numerous times.
- The
time-limit for delivering a detained person to a court was laid down
in Articles 76 § 4 and 77 § 1.
Until
31 July 2001 a person arrested as a suspect or on the basis of
a charge against him or her (zadrZaná osoba) had
to be released or brought before a judge with a request for a
detention order within twenty four hours of arrest.
On
1 August 2001 an amendment took effect, pursuant to which a
person arrested as a suspect or on the basis of a charge against him
or her had to be released or brought before a judge with a request
for a detention order within forty-eight hours of arrest.
- Under
Article 143 § 1, which remained unchanged throughout
the relevant period, interlocutory appeals were to be lodged within
three days of service of the decision appealed against. If the
decision was served on both the accused and his or her lawyer, the
time-limit started to run on the later date of service.
G. Practice of the ordinary courts in respect of
Article 8 of the Charter
- In
a decision of 16 February 2006 the Trnava Regional Court
overturned a detention order issued by the Galanta District Court on
3 February 2006 and ordered the release of the detainee. The
Regional Court did so having “examined the written
interlocutory appeal of the person charged as submitted by his
defence counsel ... and [having] identified itself with the
objections raised therein”.
The
objections in question included a claim that the authorities had
failed to observe the twenty-four-hour time-limit under the
Charter for bringing the person charged before a judge. Nevertheless,
the Regional Court made no specific reference to that argument and
offered no reasons other than those mentioned above.
H. Rules on making legislation
- The
rules on making legislation were approved by the National Council of
the Slovak Republic by way of a resolution passed on 18 December
1996 and published in the Collection of Laws under the number
19/1997.
- The
rules apply to constitutional legislation and other Acts of
Parliament (Article 1 § 1) and provide, inter alia, that
amendments to legislation are to be made by means of a direct and
explicit amendment and that indirect or implicit amendments are
impermissible (Article 11 § 1).
- Identical
rules were adopted by the Government in the form of a resolution
passed on 8 April 1997 under the number 241 and published in the
Collection of Laws under the number 372/2000.
- Under
section 2 of the Collection of Laws Act (Law no. 1/1993),
anything that has been published in the Collection of Laws is
presumed to have become known to all those concerned on the day of
publication. This presumption is non rebuttable.
I. State Liability Act of 2003 (Law no. 514/2003 Coll.,
as amended)
- Under
the Act the State's liability is engaged for damage caused by public
authorities, inter alia, through unlawful arrest, detention
(zadrZanie) or other deprivation of personal liberty (section
3(1)(b)); decisions concerning detention on remand (väzba)
(section 3(1)(c)); and wrongful official action (section 3(1)(d)).
- The
right to compensation for damage caused by a decision on arrest, by
detention (zadrZanie) or by other deprivation of personal
liberty is vested in the person who was subjected to it provided that
the decision has been quashed for being unlawful or wrongful official
action has been taken in connection with it (section 7).
- The
right to compensation for damage caused by a decision concerning
detention on remand (väzba) is vested in the person who
was detained on remand provided that the criminal proceedings against
him or her have been dropped (section 8(5)(a)) or he or she has been
acquitted (section 8(5)(b)) or the matter has been referred to
another authority (section 8(5)(c)).
- However,
no such right arises when the person concerned himself or herself
gave cause for the detention on remand (section 8(6)(a)).
- The
State is also liable for damage caused by wrongful official action
which comprises, inter alia, a public authority's failure to
take an action within the time-limit set, inactivity or any
other unlawful interference with rights and legally recognised
interests of individuals and legal entities (section 9(1)).
- The
right to compensation for damage caused by wrongful official action
is vested in the person who suffered the damage (section 9(2)).
- Under
section 17 the compensation is to cover pecuniary damage, including
loss of profit, and, where appropriate and necessary, non-pecuniary
damage.
J. Judicial practice in respect of the State Liability
Act of 2003
- 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 of 2003 and ordered
the defendant to pay the costs of their defence in a criminal trial
that had ended with their acquittal.
On 22
November 2007 the Banská Bystrica Regional Court upheld the
judgment following the defendant's appeal.
- On
14 October 2009 the Bratislava Regional Court granted an appeal (case
no. 2Co 238/2008) in an action by an individual against the State
under the State Liability Act of 2003 for damages and awarded him
an amount of money in compensation for non-pecuniary damage
caused by detention on remand in the context of a criminal trial that
had ended with his acquittal.
- 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 of 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 extension 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. JOINDER OF THE APPLICATIONS
- The
Court notes that the two applications under examination concern the
same proceedings and decisions. It is therefore appropriate to join
them, in application of Rule 42 § 1 of the Rules of Court.
II. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
- The
applicants raised a number of generic complaints which can
be summarised as follows: (i) that no reasonable suspicion
against them had been established with a basis in admissible evidence
to justify their detention; (ii) that they had not been brought
before a judge within twenty four hours of their arrest as
required under the Charter of Basic Rights and Freedoms; (iii) that,
on account of the discrepancy in the applicable time-limits, the
relevant law lacked the required quality; (iv) that they had
arbitrarily been denied release pending trial; (v) that the decisions
in respect of their remand and first request for release had lacked
adequate reasoning and the procedure preceding them had fallen short
of the applicable requirements; and (vi) that the procedure in
respect of their appeal against detention and their request for
release had not been speedy.
The
applicants relied on Article 5 of the Convention, of which the
relevant part reads as follows:
“1. Everyone has the right to liberty
and security of person. No one shall be deprived of his liberty save
in the following cases and in accordance with a procedure prescribed
by law:
...
(c) the lawful arrest or detention of a
person effected for the purpose of bringing him before the competent
legal authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so;
...
3. Everyone arrested or detained in
accordance with the provisions of paragraph 1 (c) of this
Article shall be brought promptly before a judge ... and shall be
entitled to trial within a reasonable time or to release pending
trial. Release may be conditioned by guarantees to appear for trial.
4. Everyone who is deprived of his liberty by
arrest or detention shall be entitled to take proceedings by which
the lawfulness of his detention shall be decided speedily by a court
and his release ordered if the detention is not lawful.”
A. Admissibility
1. The Government's objection of non-exhaustion of
domestic remedies
- In
their further observations, following the applicants' observations in
reply, the Government argued that the applicants had failed to comply
with the requirement of Article 35 § 1 of the Convention to
exhaust domestic remedies in that they had failed to claim
compensation from the State under the State Liability Act of 2003 in
respect of “wrongful official action” (see paragraphs 52
to 58 above).
- The
Government referred to the relevant domestic practice (see paragraphs
59 to 61 above) and asserted that under the State Liability Act of
2003 the applicants could have obtained compensation in respect of
both pecuniary and non-pecuniary damage.
- The
Government also submitted that it was not a prerequisite for
a damages claim in respect of wrongful official action to obtain
a prior finding by the Constitutional Court of a violation of the
claimant's fundamental rights.
- The
applicants, in reply, considered that none of the existing domestic
judicial decisions concerned a case comparable to theirs.
According
to the applicants, it was not fair to make them bear the consequences
of the non-existent domestic practice invoked to support the
Government's claim, which they considered to be speculative.
- As
to the exhaustion of domestic remedies in the particular
circumstances of the present case, the Court will first examine the
position in respect of the applicants' complaint concerning the
alleged lack of “speediness” of the proceedings on the
applicants' interlocutory appeal against detention.
- The
Court reiterates that where there is a choice of remedies, the
exhaustion requirement must be applied to reflect the practical
realities of the applicant's position, so as to ensure the effective
protection of the rights and freedoms guaranteed by the Convention.
Moreover, an applicant who has used a remedy which is apparently
effective and sufficient cannot be required also to have tried
others that were also available but probably no more likely to be
successful (see Adamski v. Poland (dec.), no. 6973/04,
27 January 2009, with further references).
- In
the present case the applicants had sought protection of their
fundamental rights before the Constitutional Court under Article 127
of the Convention.
- The
Constitutional Court, as the supreme authority for the protection of
human rights and fundamental freedoms in Slovakia, had jurisdiction
to examine the applicants' complaint and to afford them 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 further notes that the course of action chosen by the
applicants is normally considered to be effective for the purposes of
the domestic-remedies rule under Article 35 § 1 of the
Convention. Moreover, the Constitutional Court entertained the
applicants' complaints without requiring them first to exhaust the
remedy now relied on by the Government.
In
these circumstances the Court cannot but find that the applicants'
course of action was reasonable and appropriate.
- Moreover,
the Court notes that, in its decision of 5 October 2005, the
Constitutional Court found the applicants' complaint about the
alleged lack of “speediness” of the proceedings in issue
manifestly ill founded (see paragraph 21 above).
- The
Court considers that the dismissal of the applicants' complaint by
the Constitutional Court distinguishes the present case from the
above-mentioned case (see paragraph 61 above) where, after having
obtained from the Constitutional Court a finding of a violation of
his rights under Article 5 §§ 3 and 4 of the
Convention, the victim of such violation was successful in claiming
damages under the State Liability Act of 2003.
Moreover,
and in any event, Court finds that any persuasive value of that
judgment is relative in view of the fact that it appears to be a
single occurrence of such a finding, originating from a lower court,
and there is no indication whether, and if so with what result, it
has been tested on appeal.
- Furthermore,
if entertaining jurisdiction in the present case under the State
Liability Act of 2003 in respect of alleged wrongful official action,
in relation to the applicants' complaint that the proceedings in
question were not “speedy”, an ordinary court would be
confronted with the same question as the Constitutional Court when
ruling on the applicants' constitutional complaint.
The
Court has not found any reason to conclude that there was any
realistic prospect that an ordinary court would have arrived at
conclusions contrary to those of the Constitutional Court.
- Accordingly,
in respect of the applicants' complaint concerning the alleged lack
of “speediness” of the proceedings on their interlocutory
appeal against detention, the applicants were not required to have
recourse to the remedy relied upon by the Government. The
Government's objections to the admissibility of that complaint must
therefore be rejected.
- . The
Court considers that, subject to the complaint dealt with under point
8 below, it is not called upon to rule separately on the Government's
objection in relation to the remainder of the application as the
complaints are, in any event, inadmissible for the respective reasons
given below.
2. “Speediness” (within the meaning of
Article 5 § 4 of the Convention) of the proceedings on
the applicants' interlocutory appeal against detention
- The
Court notes that the 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.
3. “Lawfulness” (within the meaning of
Article 5 § 1 (c) of the Convention) of the
applicants' arrest and the quality of the applicable law
- The
applicants complained that their detention had been unlawful on the
grounds that they had not been brought before a judge within
twenty four hours of their arrest as required under the Charter
and that the law concerning the applicable time-limit lacked the
required quality on account of inconsistency.
- The
applicants reiterated their arguments from the domestic proceedings
(see paragraphs 13, 18, 20 and 24 above), relied on the decision of
the Trnava Regional Court of 16 February 2006 in an unrelated case
(see paragraph 47 above) and pointed out the statutory rules on
making legislation, pursuant to which indirect or implicit amendments
to legislation had never been permissible (see paragraphs 48 to
51 above).
- The
Government maintained that the time-limit rule under the Constitution
and the CCP, as in force at the relevant time, was legally
authoritative, that this time-limit was established beyond dispute
and that it had undoubtedly been met in the applicants' case.
As to
the temporal application of the Charter, the Government relied on
Article 152 of the Constitution (see paragraph 37 above) and pointed
to the consistent practice of the Constitutional Court in applying it
(see paragraph 40 above).
In
the Government's view, the legal relevance of the decision of the
Trnava Regional Court of 16 February 2006 was limited in that it was
vaguely worded and, in any event, peculiar and without precedent or
follow up.
- The
Court reiterates that the expressions “lawful” and “in
accordance with a procedure prescribed by law” in Article 5 §
1 essentially refer back to national law and state the obligation to
conform to the substantive and procedural rules thereof. It is in the
first place for the national authorities, and notably the courts, to
interpret domestic law, and in particular, rules of a procedural
nature, and the Court will not substitute its own interpretation for
theirs in the absence of arbitrariness. However, since under Article
5 § 1 of the Convention failure to comply with domestic law
entails a breach of the Convention, it follows that the Court can and
should exercise a certain power to review whether this law has been
complied with (see, for example, Toshev v. Bulgaria,
no. 56308/00, § 58, 10 August 2006, and Öcalan
v. Turkey [GC], no. 46221/99, § 84, ECHR
2005 IV).
- The
Court must moreover ascertain whether domestic law itself is in
conformity with the Convention, including the general principles
expressed or implied therein. On this last point, the Court has
stressed that, where deprivation of liberty is concerned, it is
particularly important that the general principle of legal certainty
be satisfied. It is therefore essential that the conditions for
deprivation of liberty under domestic law be clearly defined and that
the law itself be foreseeable in its application, so that it meets
the standard of “lawfulness” set by the Convention, a
standard which requires that all law be sufficiently precise to allow
the person – if need be, with appropriate advice – to
foresee, to a degree that is reasonable in the circumstances, the
consequences which a given action may entail (see, for example,
Paladi v. Moldova [GC], no. 39806/05, § 74,
ECHR 2009-..., and Baranowski v. Poland,
no. 28358/95, §§ 50-52, ECHR 2000-III).
- Turning
to the circumstances of the present case, the Court observes that the
legal rules concerning the time-limit for bringing an individual
before a judge are provided for at the level of constitutional
legislation and under other Acts of Parliament.
The
constitutional rules are embodied in the Charter and the
Constitution, while the other statutory rules are laid down in the
CCP.
From
the early 1990s the applicable time-limit was defined in all these
sources of legislation as twenty-four hours, calculated from the time
when the restriction on the individual's personal liberty began.
In
2001 the Parliament of the Slovak Republic enacted amendments to the
Constitution and the CCP which extended the relevant time limit
to forty eight hours. However, the provisions of the Charter
were not affected by these amendments and the legislative status quo
has persisted until the present day.
- In
these circumstances, although it is aware that the doctrine of
binding precedent is not as such formally recognised in Slovakia, the
Court finds judicial practice to be of consequence.
- In
that connection, the Court observes that the case-law of the
Constitutional Court, both prior to the events of the present
application and subsequent to them, appears to be quite extensive and
unequivocally uniform in acknowledging the precedence of the
forty-eight-hour time limit under the Constitution over the
twenty-four-hour time-limit under the Charter (see paragraph 40
above). In developing this position, the Constitutional Court has
relied on the legal maxim lex posterior derogat legi priori
and the provisions of Article 152 of the Constitution. The latter
appear to provide a sound, albeit indirect, basis for favouring the
Constitution over any other legislation, including the Charter (see
paragraph 37 above).
- The
Court observes that a divergent view was expressed by the Trnava
Regional Court in its decision of 16 February 2006 (see
paragraph 47 above). However, the Regional Court did not explain its
position in express terms and, in any event, its decision does not
appear to have been followed.
- As
to the rules on making legislation relied on by the applicants, the
Court would observe that they were adopted by resolutions of the
Parliament and the Government and that they were published in the
Collection of Laws. However, they do not have the legal status of an
Act of Parliament and their legally binding nature and effect are
somewhat unclear, especially in the face of the uniform case-law and
convincing reasoning of the Constitutional Court.
- In
the light of the above considerations the Court finds no reason
relating to the principle of legal certainty and no other grounds to
reach a conclusion other than that the applicable law was in
conformity with the Convention and that the legal time-limit for
bringing the applicants before a judge was the time-limit under
Article 17 § 3 of the Constitution and Articles 76 §
4 and 77 § 1 of the CCP, as in force at the relevant time, that
is to say forty eight hours.
- The
Court notes that there has been no dispute about the observance in
the present case of the time-limit mentioned in the preceding
paragraph.
- It
follows that the relevant part of the application is manifestly
ill founded and must be rejected in accordance with Article 35
§§ 3 and 4 of the Convention.
4. “Reasonable suspicion” (within the
meaning of Article 5 § 1 (c) of the Convention) for the
purposes of the applicants' arrest
- As
before the domestic courts (see paragraphs 13, 18 and 20 above), the
applicants contended that witness evidence taken by officers of the
local police force had been inadmissible. It had been legally
irrelevant and could not serve as a basis for establishing a
reasonable suspicion against the applicants, which was a Convention
prerequisite for taking them into custody.
- The
Court observes that, in this connection, the applicants' arguments
revolve around admissibility of evidence, which is essentially
a domestic-law matter (see, for example, mutatis mutandis,
Ramanauskas v. Lithuania [GC], no. 74420/01, § 52,
ECHR 2008-...; Doorson v. the Netherlands, 26 March
1996, § 67, Reports of Judgments and Decisions
1996-II, and Van Mechelen and Others v. the Netherlands,
23 April 1997, § 50, Reports 1997-III).
The
Court, however, finds it appropriate to make a clear distinction
between, on the one hand, the national-law rules on evidence and, on
the other, the legal protection available to the applicants under
Article 5 of the Convention.
- As
to the latter, the Court reiterates that the “reasonableness”
of the suspicion on which an arrest must be based forms an essential
part of the safeguard against arbitrary arrest and detention which is
laid down in Article 5 § 1 (c).
Having
a reasonable suspicion presupposes the existence of facts or
information which would satisfy an objective observer that the person
concerned may have committed the offence (see Labita v. Italy
[GC], no. 26775/95, § 155, ECHR 2000-IV).
- The
Court further reiterates that, in order for an arrest on reasonable
suspicion to be justified under Article 5 § 1 (c), it is not
necessary for the police to have obtained sufficient evidence to
bring charges, either at the point of arrest or while the applicant
is in custody (see, for example, Gusinskiy v. Russia,
no. 70276/01, § 53, ECHR 2004-IV, and Brogan and
Others v. the United Kingdom, 29 November 1988, § 53,
Series A no. 145 B).
Neither
is it necessary that the person detained should ultimately have been
charged or brought before a court. The object of detention for
questioning is to further a criminal investigation by confirming or
dispelling the suspicions grounding the arrest (see Murray v. the
United Kingdom, 28 October 1994, § 55, Series A no.
300-A, and Lexa v. Slovakia (no. 2), no. 34761/03,
§§ 46-50, 5 January 2010).
- In
the present case, the applicants were apprehended in a hypermarket
following an incident involving the damaging of goods and a skirmish
with a police officer. In their request for a detention order for the
applicants, the public prosecution service argued that the incident
had been recorded by the shop's camera system (see paragraph 12
above). On the day of the arrest, the applicants were charged with
assaulting a public official and breaching the peace (see paragraph 6
above). Two days later, the applicants were remanded in custody by
the District Court, citing statements of three witnesses as the basis
for the suspicion against them (see paragraph 15 above).
The
Court considers that such evidence is sufficient to have created
a “reasonable suspicion” against the applicants
within the meaning of the case-law cited above.
It
follows that the relevant part of the application is manifestly
ill founded and must be rejected in accordance with Article 35
§§ 3 and 4 of the Convention.
5. Bringing of the applicants “promptly”
before a judge for the purposes of Article 5 § 3 of the
Convention
- In
so far as the applicants can be understood as wishing to rely on
Article 5 § 3 of the Convention in connection with
their complaint that they had not been brought before a judge within
the applicable time limit, and to the extent that such complaint
raises any issue different from those addressed above under Article 5
§ 1 (c) of the Convention (see paragraphs 79–91
above), the Court observes that Article 5 § 3 requires that an
arrested individual be brought promptly before a judge or judicial
officer, the purpose of this guarantee being prevention of
ill treatment and unjustified interference with individual
liberty.
While
promptness has to be assessed in each case according to its special
features (see, among others, Aquilina v. Malta, [GC],
no. 25642/94, § 48, ECHR 1999-III), the strict time
constraint imposed by this requirement of Article 5 § 3 leaves
little flexibility in interpretation, otherwise there would be a
serious weakening of a procedural guarantee to the detriment of the
individual and the risk of impairing the very essence of the right
protected by this provision (see, for example, Medvedyev and
Others v. France [GC], no. 3394/03, § 121, ECHR
2010-..., and McKay v. the United Kingdom [GC],
no. 543/03, § 33, ECHR 2006-X).
- In
its case-law, the Court has found that even in the context of
terrorism a period of four days and six hours between the arrest and
the presentation of the arrested person before a judge is excessive
and violates Article 5 § 3 (see Brogan and Others v. the
United Kingdom, cited above, § 62, and Günay
and Others v. Turkey, no. 31850/96, §§ 20 23,
27 September 2001).
- In
the present case the applicants were arrested on 21 February 2005 at
11.10 p.m. and brought before a judge on 23 February 2005 at 5.15
p.m. and 6 p.m., respectively. That is to say they were brought
before a judge after forty-two hours and five minutes and forty-two
hours and fifty minutes, respectively.
- The
Court finds that the material in its possession does not disclose any
appearance of a violation of the applicants' right under Article 5 §
3 of the Convention to be brought promptly before a judge.
It
follows that the relevant part of the application is manifestly
ill founded and must be rejected in accordance with Article 35
§§ 3 and 4 of the Convention.
6. Necessity of the applicants' detention in terms of
Article 5 § 1 (c) of the Convention and trial within a
“reasonable time” or “release pending trial”
pursuant to Article 5 § 3 of the Convention
- The
applicants complained that they had been arbitrarily remanded in
custody and, upon their first request for release, had not been
released pending trial. They submitted in particular that detention
was an unnecessarily stringent measure as its purpose could have
been served by less severe means such as, for example, acceptance of
a pledge under Article 73 § 1 (b) of the CCP or bail.
- The
Government argued, first of all, that the applicants had failed
to exhaust domestic remedies as required by Article 35 § 1
of the Convention, in that they had failed to assert their rights
under Article 5 § 3 of the Convention to a trial within a
“reasonable time” or “release pending trial”,
by bringing proceedings before the Constitutional Court under
Article 127 of the Constitution. To that end, they pointed out
that in their submissions to the ordinary courts and the
Constitutional Court (see paragraphs 13, 18 and 20 and 27 above)
the applicants had solely complained of what they considered to
amount to non-compliance with the applicable time-limit for bringing
them before a judge. As to the substance, the Government relied on
the conclusions of the domestic courts (see paragraphs 16 and 19
above) and considered that the complaint was manifestly ill-founded.
- The
Court finds that the complaint falls to be examined under paragraph 1
(c) (initial remand in custody) in conjunction with paragraph 3
(continued detention) of Article 5. It holds that it is not necessary
to examine separately the issue of exhaustion of domestic
remedies in relation to this complaint because, for the following
reasons, it is in any event manifestly ill-founded.
- The
applicants were deprived of their liberty on 21 February 2005 and
their detention for the purposes of Article 5 § 3 of the
Convention ended on 18 January 2006 when they were convicted at
first instance (see, among other authorities, Wemhoff v. Germany,
27 June 1968, pp. 23 24, § 9, Series A no. 7, and
Černák v. Slovakia
(dec.), no. 67431/01, 1 March 2005). It therefore lasted ten
months and twenty-six days, in which period two sets of criminal
charges (see paragraphs 6 and 7 above) were investigated and
adjudicated at one level of jurisdiction.
- As
regards the reasons underlying the applicants' detention, the
domestic courts mainly cited their previous prosecution for two
similar incidents. In the case of the second applicant, the courts
also referred to his five previous convictions. The courts concluded
that, in the circumstances, it was necessary to protect the
public from similar offences that the applicants were likely
to continue committing. Accordingly, neither the applicants'
pledge that they would live in accordance with the law, nor the
possibility of bail, were considered acceptable.
It is
also noted that the “reasonable suspicion” that the
applicants had committed the offences of which they stood accused
persisted throughout the period of their detention and was endorsed
by the Regional Court on 4 May 2006 when it dismissed the
applicants' appeal against the first-instance judgment.
- Having
regard to all the elements in its possession, including the overall
length of the applicants' detention for the purposes of Article 5
§ 3 of the Convention, the Court has found no indication of
a violation of the applicants' right not to be detained arbitrarily
and to be tried within a reasonable time or released
pending trial pursuant to Article 5 § 1 (c) in
conjunction with Article 5 § 3 of the Convention.
It
follows that the relevant part of the application is in any event
manifestly ill founded and must be rejected in accordance with
Article 35 §§ 3 and 4 of the Convention.
7. Procedural guarantees under Article 5 § 4 of
the Convention, other than “speediness”, on the
applicants' interlocutory appeal against detention
- The
applicants contended that the procedure in respect of their
interlocutory appeal against detention had fallen short of the
applicable requirements and, in particular, that the decision on this
appeal had lacked adequate reasoning.
- The
Government considered that the proceedings in question had satisfied
all applicable procedural requirements. They submitted that the
District Court and the Regional Court (see paragraphs 15 to 17
and 19 above) had given adequate answers to all of the applicants'
arguments.
In so
far as the applicants had argued that evidence was inadmissible on
account of bias on the part of the police officers who had taken the
incriminating statements (see paragraphs 13 and 18 above), such
argument was to be raised in the proceedings on the merits. Moreover,
it had been open to the applicants to challenge the officers in
question for bias.
- The
applicants disagreed both with the findings of the domestic
authorities and with the Government.
- 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, for example, A. and
Others v. the United Kingdom [GC], no. 3455/05, § 202,
ECHR 2009-..., and Lexa v. Slovakia (no. 2), cited
above, §§ 66 and 67, with further references).
A
court examining an appeal against detention must provide guarantees
of a judicial procedure. The proceedings must be adversarial and must
always ensure “equality of arms” between the parties, the
prosecutor and the detained person (see, among many other
authorities, A. and Others, cited above, § 204, and
Sanchez-Reisse v. Switzerland, 21 October 1986, § 51,
Series A no. 107).
In
the case of a person whose detention falls within the ambit of
Article 5 § 1 (c), a hearing is required (see, among many
other authorities, Nikolova v. Bulgaria [GC], no.
31195/96, § 58, ECHR 1999-II, and Assenov and Others v.
Bulgaria, 28 October 1998, § 162, Reports
1998-VIII).
Although
it is not always necessary that the procedure under Article 5 § 4
be attended by the same guarantees as those required under Article 6
§ 1 of the Convention for criminal or civil litigation, it must
have a judicial character and provide guarantees appropriate to the
kind of deprivation of liberty in question (see, among many other
authorities, Reinprecht v. Austria, no. 67175/01, § 31,
ECHR 2005-XII).
In
order to determine whether proceedings provide adequate guarantees,
regard must be had to the particular nature of the circumstances in
which such proceedings take place (see Lexa v. Slovakia (no.
2), cited above, § 67).
- In
the present case the applicants were remanded in custody on
23 February 2005, under Article 5 § 1 (c) of the
Convention, following a remand hearing in which the applicants
took part in person and with the assistance of defence counsel of
their choosing. In its detention order of the same date the District
Court addressed at length the applicants' arguments, identified the
“reasonable suspicion” against them and gave reasons why
their detention was considered necessary.
- The
applicants, who were assisted by their lawyer throughout, had ample
opportunity to state their arguments, to challenge the submissions
made by the prosecution and to submit anything they considered
relevant to the outcome in the remand hearing and subsequently by way
of their interlocutory appeal and, thereafter, their constitutional
complaint. However, none of the courts involved found any substance
to their arguments.
- As
to the applicants' specific argument concerning the admissibility of
witness evidence, the domestic courts found that the victim and
witnesses had given their statements after being duly instructed on
their procedural rights and duties. They held that to rule on
procedural admissibility of evidence was not the purpose of the
remand proceedings but rather of the trial.
- Taking
the proceedings as a whole, the Court finds that the reasons put
forward by the domestic courts do not appear manifestly arbitrary,
irregular or otherwise wrong.
Bearing
in mind the level of procedural guarantees applicable in such
proceedings, as opposed to the trial, the Court has found nothing to
justify a conclusion that such guarantees were not afforded.
It
follows that the relevant part of the application is manifestly
ill founded and must be rejected in accordance with Article 35
§§ 3 and 4 of the Convention.
8. Procedural guarantees under Article 5 § 4 of
the Convention, including “speediness”, on the
applicants' first request for release
- The
applicants complained that the decisions in respect of their first
request for release had lacked adequate reasoning and that the
preceding procedure had fallen short of the applicable requirements
and had not been speedy.
- The
Government objected that the applicants had failed to exhaust
domestic remedies because they had not filed their constitutional
complaint in time.
They
submitted that the Constitutional Court's interpretation of the
relevant rules in respect of the statutory two-month time-limit was
settled and congruent with the interpretation given in the decisions
of 7 July and 23 August 2006 in the applicants' case.
The
decision of the Constitutional Court of 13 January 2005 in case
no. I. ÚS 2/05, which was relied upon by the
applicants, had no bearing on that contention as it had been no more
than a random and single occurrence.
- The
applicants disagreed and contested the Government's argument on the
principle of legal certainty. In that context, they pointed to the
differing decisions of the Constitutional Court (see paragraphs 42
and 43 above). Moreover, they submitted that, in any event, no
case-law of the Constitutional Court could be taken into account in
the assessment of their own situation if it post-dated their
constitutional complaint.
- The
Court reiterates that in order to exhaust domestic remedies as
required by Article 35 § 1 of the Convention, applicants should
use the remedies available in compliance with the formal requirements
and time limits laid down in domestic law, as interpreted and
applied by domestic courts (see Akdivar and Others v. Turkey,
16 September 1996, § 66, Reports 1996-IV).
- The
Court observes that a complaint under Article 127 of the Constitution
is normally considered to be one of the remedies that an applicant
is required to exhaust for the purposes of Article 35 § 1
of the Convention in respect of individual complaints under Article 5
§ 4. The Court further observes that such complaint is
subject to a two-month time limit and that, pursuant to
section 53(3) of the Constitutional Court Act, that time-limit
starts to run on the date when the decision in question has become
final and binding or when the measure in question has been notified
or notice of other interference with the complainant's interests has
been given (see paragraph 38 above).
- As
regards decisions concerning detention, a question arises as to
whether the decisive moment is the date of service of such decisions
on the detainee or on his or her lawyer. Whilst bearing in mind the
limitation noted above (see paragraph 85 above), in establishing
which law is applicable the Court will nevertheless scrutinise
existing judicial practice.
- To
that end, it appears that there had been at least three admissibility
decisions by the Constitutional Court, before the applicants lodged
their constitutional complaint on 6 February 2006, in which the
Constitutional Court had legally explained and congruently decided
that the decisive date was the date of service of the impugned
decision on the detainee (see paragraph 41 above).
- A
divergent decision favouring the applicants' interpretation of the
relevant law appears to have been taken only once (see paragraph 42
above) and has not been followed. Moreover, it contains no analysis
whatsoever in respect of the two-month time-limit.
- The
Court considers that the applicants, who were at all times
represented by a lawyer, no doubt could and should have known about
the existing practice. Should there have been any doubts as regards
the decisive date in connection with the decision of the
Constitutional Court of 13 January 2005 under case file no. I.
ÚS 2/05, the Court considers that in the circumstances of the
present case the risk inherent in using the remedy at the time in
question was for the applicants to assume. In reaching this
conclusion the Court has taken into account inter alia the
fact that the time limit for lodging a complaint under
Article 127 of the Constitution is as long as two months, that
there is no indication that the applicants did not have ample
opportunity to lodge their complaint earlier and that, consequently,
the essence of the remedy at issue was not impaired.
- It
follows that the remainder of the applicants' complaints under
Article 5 § 4 of the Convention must be rejected under
Article 35 §§ 1 and 4 of the Convention for
non-exhaustion of domestic remedies.
- For
the sake of completeness, in so far as the applicants relied on the
decisions of the Constitutional Court of 24 November 2004 and 1 June
2005 in cases nos. IV. ÚS 372/04 and IV. ÚS
157/05 (see paragraph 43 above), the Court observes that they
provide an even stricter interpretation of the relevant law and
accordingly do not favour the applicants' individual case.
B. Merits
- The
Government relied on the Constitutional Court's finding in its
decision of 5 October 2005 that the length of the proceedings in
respect of the applicants' interlocutory appeal against the detention
order was acceptable. They submitted that the time between
23 February 2005 when the applicants had lodged their
interlocutory appeal orally and 28 February 2005 when they had
submitted the grounds of their appeal in writing was imputable to the
applicants. They also submitted that it was to be taken into account
that, following the applicants' interlocutory appeal, the case file
had to be transmitted to the Regional Court, which had to study it,
come to a decision, deliver the decision in writing and have it
served on the parties through the first-instance court.
- The
applicants disagreed.
- The
Court reiterates that Article 5 § 4, in guaranteeing to detained
persons a right to institute proceedings to challenge the lawfulness
of their deprivation of liberty, also proclaims their right,
following the institution of such proceedings, to a speedy judicial
decision concerning the lawfulness of detention and ordering its
termination if it proves unlawful. In order to determine whether the
requirement that a decision be given “speedily” has been
complied with, it is necessary to effect an overall assessment where
the proceedings were conducted at more than one level of
jurisdiction. The question whether the right to a speedy decision has
been respected must – as is the case for the “reasonable
time” stipulation in Articles 5 § 3 and 6 § 1
of the Convention – be determined in the light of the
circumstances of each case, including the complexity of the
proceedings, their conduct by the domestic authorities and by the
applicant and what was at stake for the latter (for a recapitulation
of the applicable principles, see Mooren v. Germany [GC],
no. 11364/03, § 106, ECHR 2009-...).
- In
the present case the applicants lodged their interlocutory appeal
orally immediately after the detention order had been issued on
23 February 2005. Following the submission by the applicants of
the grounds of their appeal on 28 February 2005, the appeal was
decided on 16 March 2005. The decision was, however, not
delivered publicly and the applicants only learned of it when a
written version of it was served on them on 31 March 2005 (see,
for example, Cabala v. Slovakia, no. 8607/02, § 68,
6 September 2007, and Singh v. the Czech Republic,
no. 60538/00, § 74, 25 January 2005). The
proceedings under examination thus lasted thirty-six days, in which
period the applicants' appeal was judicially examined by a single
court.
- The
Court has found nothing to justify finding that the applicants'
detention case was of any particular complexity.
As to
the conduct of the applicants, it is true that five days passed
between the date when they lodged their interlocutory appeal orally
and the date when they submitted the grounds of their appeal in
writing.
As
regards the conduct of the authorities, the Court notes in particular
that it took 16 days from 28 February 2005 to have the applicants'
appeal with written grounds decided on 16 March 2005 and a
further 15 days to have the decision served on them on
31 March 2005.
- Regard
being had to the Court's case-law on the subject (see Sanchez-Reisse
v. Switzerland, cited above, §§ 59-60; M.B.
v. Switzerland, no. 28256/95, § 31,
30 November 2000; G.B. v. Switzerland, no. 27426/95,
§ 27, 30 November 2000; Rehbock v. Slovenia,
no. 29462/95, § 85, ECHR 2000-XII; Sarban v.
Moldova, no. 3456/05, § 120, 4 October 2005; Kadem
v. Malta, no. 55263/00, §§ 44-45, 9 January
2003; Sakık and Others v. Turkey, 26 November 1997,
§ 51, Reports 1997-VII; and De Jong, Baljet and Van
den Brink v. the Netherlands, 22 May 1984, §§ 57-58,
Series A no. 77), the foregoing considerations are sufficient to
enable the Court to conclude that there has been a violation of
Article 5 § 4 of the Convention on account of the lack
of a speedy determination of the lawfulness of the applicants' remand
in custody.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- Lastly,
the applicants claimed that the decisions of the Constitutional Court
of 7 July and 23 August 2006 had violated their rights under Articles
13 and 14 of the Convention because they were based on
an inconsistent interpretation and application of the two-month
time-limit for bringing an individual complaint under Article 127 of
the Constitution.
- The
Court has found above that the applicants' objections in relation to
the Constitutional Court's decision of 7 July and 23 August 2006 were
devoid of merit (see paragraphs 118–125 above). It does not
discern any separate issue under Articles 13 and 14 of the
Convention. It follows that the applicants' complaints under those
Articles are likewise 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.”
A. Damage
- The
applicants each claimed 10,000 euros (EUR) in respect of
non pecuniary damage.
- The
Government considered the claim overstated.
- The
Court finds that the applicants must have sustained non pecuniary
damage. Ruling on an equitable basis, it awards each of them
EUR 1,000 under that head.
B. Costs and expenses
- The
applicants claimed EUR 2,782.90 and EUR 2,723.64,
respectively, for legal assistance, submitting itemised invoices from
their lawyer, and EUR 150 for administrative expenses plus EUR 50 for
postal expenses, incurred both at the national level and before the
Court.
The
applicants each also claimed EUR 345.55 for translations,
submitting an invoice from a translation service.
- Relying
on the Court's judgment of 18 October 1982 in the case of Young,
James and Webster v. the United Kingdom ((former
Article 50) Series A no. 55, § 15), the
Government considered that the claims in respect of legal fees were
overstated. They accepted the claims in respect of translation costs
and 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 violation found (see
paragraph 131 above), the documents in its possession and the
above criteria, the Court considers it reasonable to award each of
the applicants the sum of EUR 850 to cover legal
representation both at the national level and before the Court and
translation costs.
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
- Decides to join the applications;
- Declares the applicants' complaints under
Article 5 § 4 of the Convention concerning the alleged lack of a
speedy determination of the lawfulness of their remand in custody
admissible and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
5 § 4 of the Convention in respect of each of the applicants;
- Holds
(a) that
the respondent State is to pay each of the applicants, within three
months of the date on which the judgment becomes final in accordance
with Article 44 § 2 of the Convention, EUR 1,000 (one
thousand euros), plus any tax that may be chargeable, in respect of
non pecuniary damage, and EUR 850 (eight hundred and
fifty euros), plus any tax that may be chargeable to the
applicants, 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 applicants' claim
for just satisfaction.
Done in English, and notified in writing on 23 November 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy
Registrar President
