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FOURTH
SECTION
CASE OF
GÁL v. SLOVAKIA
(Application
no. 45426/06)
JUDGMENT
STRASBOURG
30
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 Gál v.
Slovakia,
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Ljiljana Mijović,
David Thór
Björgvinsson,
Ján Šikuta,
Päivi
Hirvelä,
Mihai Poalelungi, judges,
and
Lawrence Early, Section
Registrar,
Having
deliberated in private on 9 November 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 45426/06) against the Slovak
Republic lodged with the Court under Article 34 of the Convention for
the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Slovak national, Mr Lukáš
Gál (“the applicant”), on 26 October 2006.
- The
applicant was 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
applicant alleged, in particular, that his detention pending trial
had been unlawful and that the procedure in respect of it had fallen
short of the applicable requirements.
- On
1 March 2010 the President of the Fourth Section decided to give
notice of the application to the Government.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1980 and normally lives in Sereď.
A. Detention on the charge of 4 April 2006
- At
3.30 p.m. and 7.55 p.m. respectively on 3 April 2006 the applicant
was taken to a police station (predvedený) and detained
(zadrZaný) on suspicion of illegal production,
possession and trade in dangerous drugs. Official charges to that
effect were brought against him the following day.
- At
3.03 p.m. on 5 April 2006 the Galanta District Office of Public
Prosecution (Okresná prokuratúra, “the
District Prosecutor”) lodged a request with the Galanta
District Court (Okresný súd) for the applicant
to be remanded in custody pending trial.
- At
11.05 a.m. on 6 April 2006 the applicant was brought before a single
judge of the District Court to be heard in connection with the
request for a detention order against him.
The
applicant complained that he had not been brought before a judge
within twenty-four hours of his arrest, as required by Article 8
§ 3 of the Charter of Basic Rights and Freedoms
(Constitutional Law no. 23/1991 Coll.) (Listina základných
práv a slobôd – “the Charter”),
requested release and offered a pledge under Article 80 § 1 (b)
of the Code of Criminal Procedure (Law no. 301/2005 Coll., as
applicable at the relevant time) (“the CCP”) that he
would live in accordance with the law.
It
was true that the time-limit for bringing a detained person (zadrZaná
osoba) 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.)
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 him broader legal protection and had to be applied
in his case.
- Following
the hearing, on the same day, the District Court remanded the
applicant in custody pending trial and rejected his pledge under
Article 80 § 1 (b) of the CCP. It found that there were
fears that if released the applicant might commit a previously
attempted offence, continue to offend, or carry out new criminal
activities within the meaning of Article 71 § 1 (c) of the
CCP. The applicant submitted an oral interlocutory appeal (sťaZnosť)
and stated that he would lodge his reasons for the appeal within
three days.
- A
written version of the detention order of 6 April 2006 was
served on the applicant at an unspecified later point. The District
Court summarised the charge against the applicant and the submissions
of the District Prosecutor and those made orally by the applicant. It
referred to the conclusions of an expert analysis concerning the
substance found on the applicant and observed that illegal drugs had
been found on him for the second time. The applicant's explanation
that he had found and had been going to dump the drug so that it
would not be found by anyone else was implausible because the
applicant had had the opportunity to report the find to the police
and had not done so.
- On
7 April 2006, which was a Friday, the applicant's lawyer requested
that he be allowed to inspect the case file. Arrangements were made
for the inspection to take place on 10 April 2006, which was
a Monday.
- The
applicant subsequently sent the grounds of his appeal in writing to
the District Court, where they arrived on 13 April 2006. The
applicant developed the twenty-four-hour time-limit argument in
detail and sought release.
- On
25 April 2006, sitting in private (neverejné zasadnutie),
the Trnava Regional Court (Krajský súd)
dismissed the applicant's interlocutory appeal. In a
one-and-a-half-page decision, the Regional Court summarised the
impugned decision and the applicant's appeal. Referring in general to
“the contents of the case file”, the Regional Court found
that all formal and substantive requirements for remanding the
applicant in custody pending trial had been fulfilled. In particular,
a formal charge had been brought against the applicant, there was a
well-founded suspicion against him in the present case and in the
other case mentioned below (see paragraphs 17 to 19 below)
and the applicant was unemployed. This provided good grounds to fear
that, if at liberty, the applicant would carry on making his living
from similar criminal activities. The Regional Court did not
specifically address the applicant's argument under the Charter. The
decision was served on the applicant and his lawyer on 23 May
2006.
- On
25 June 2006 the applicant lodged a complaint, under Article 127
of the Constitution, with the Constitutional Court (Ústavný
súd). Relying on Article 5 § 4 of the Convention, he
contended that the proceedings before the District Court and the
Regional Court in respect of his appeal against the detention order
of 6 April 2006 had not been “speedy”.
- On
31 October 2006 the Constitutional Court declared the applicant's
complaint admissible, in so far as it concerned the Regional Court.
In so far as it concerned the District Court, the complaint was
declared inadmissible as “manifestly ill-founded, on the ground
that, at the time of the introduction of the applicant's complaint,
the matter had no longer been pending before the District Court,
which is why the District Court could not have been committing a
violation of the applicant's said rights”.
- On
19 April 2007 the Constitutional Court ruled on the admissible part
of the applicant's complaint. It found that the Regional Court had
not violated the applicant's rights under Article 5 § 4
of the Convention. It observed that it had taken twenty-two days for
the Regional Court to rule on the applicant's appeal and to transmit
its decision to the District Court, whose task it was to have the
decision served on the parties. It noted that although the applicant
had lodged his appeal orally on 6 April 2006, he had submitted
the grounds of his appeal in writing on 13 April 2006. In view
of all the circumstances and the Constitutional Court's previous
practice, the conduct of the Regional Court had been constitutionally
acceptable.
B. Previous arrest and detention
- The
applicant had previously been remanded in custody on 3 February
2006 on another drug-related charge.
- The
applicant appealed against this detention on a number of grounds,
including that he had not been brought before a judge within
twenty-four hours as required under the Charter.
- On
16 February 2006 the Regional Court quashed the detention order of 3
February 2006 and ordered the applicant's immediate release, noting
that it had “examined the written interlocutory appeal of [the
applicant] as submitted by his defence counsel ... and [it had]
identified itself with the objections raised therein”.
Nevertheless,
the Regional Court made no specific reference to any of those
objections and offered no reasons other than as mentioned above. The
applicant was subsequently released.
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. 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, 5 October
2005 and 9 March 2005 in cases nos. II. ÚS 38/05, II. ÚS
369/06, III. ÚS 220/04, III. ÚS 273/05
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.
D. The Code of Criminal Procedure
- Until
31 December 2005 criminal procedure in Slovakia was governed by
the 1961 Code of Criminal Procedure (Law no. 141/1961 Coll.).
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.
- On
1 January 2006 a new Code of Criminal Procedure (Law no. 301/2005
Coll.) was enacted.
The
time-limit for delivering a detained person (zadrZaná
osoba) to a court is laid down in Article 87. A detained
person has to be released or delivered to a court with a request for
a detention order within twenty-four hours of the moment of detaining
him or her.
E. 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.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION
- The
applicant raised several generic complaints that can be summarised as
follows: (i) that his detention following his arrest on 3 April
2006 had been unlawful because he had not been brought before a judge
within twenty-four hours of the arrest as required under the Charter;
(ii) that the detention order of 6 April 2006 and the decision of
25 April 2006 lacked adequate reasoning; and (iii) that the
proceedings by which the lawfulness of his detention under the
detention order of 6 April 2006 was to be decided had not been
“speedy”.
The
applicant relied on Article 5 of the Convention, which – in so
far as relevant - 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;
...
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. “Speediness” (within the meaning of
Article 5 § 4 of the Convention) of the proceedings in
the applicant's interlocutory appeal against detention
- The
applicant complained that the proceedings on his interlocutory appeal
against the detention order of 6 April 2006 had not been decided
“speedily”. He pointed out that he had lodged the written
grounds of his appeal without delay after his lawyer had been allowed
to inspect the case file on 10 April 2006.
- The Government observed that the Constitutional Court
had been confronted with the issue of speediness of the proceedings
in the applicant's appeal in their entirety. It had nevertheless
examined the applicant's constitutional complaint by a method
different from that used by the Court in A.R., spol. s r.o. v
Slovakia, no. 13960/06, 9 February 2010.
The
Government acknowledged that the complaint raised serious questions
concerning interpretation and application of the Convention and left
them for the Court to answer and thereby to give guidance to the
Constitutional Court.
- The
Court notes that this complaint is not manifestly ill founded
within the meaning of Article 35 § 3 of the Convention. It
further notes that it is not inadmissible on any other grounds. It
must therefore be declared admissible.
2. “Lawfulness” (within the meaning of
Article 5 § 1 (c) of the Convention) of the applicant's arrest
- The
applicant complained that his detention had been unlawful on the
ground that he had not been brought before a judge within twenty four
hours of his arrest on 3 April 2006 as required under the Charter.
- The
applicant reiterated his arguments from the domestic proceedings (see
paragraphs 8 and 12 above), relied on the decision of the Regional
Court of 16 February 2006 in relation to his previous detention (see
paragraph 19 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 31 to 34
above). He considered that, in respect of this complaint, he was not
required to seek redress from the Constitutional Court under Article
127 of the Constitution for the purposes of Article 35 §
1 of the Convention in view of the Constitutional Court's
decision-making practice (see paragraphs 27 above).
- The
Government objected first of all that the applicant had failed
to raise his Charter-based argument in the Constitutional Court.
As to
the substance, they 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 defined beyond
dispute and that the invoked provisions of the Charter were
inapplicable in the applicant's case.
As to
the temporal application of the Charter, the Government relied on
Article 152 of the Constitution (see paragraph 26 above) and
pointed out the consistent practice of the Constitutional Court in
applying it (see paragraph 27 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 general, no reference was made to any of the
applicant's arguments, the decision contained no reasoning and, in
any event, it was unique and without precedent or follow up.
- The
Court observes that the applicant's complaint raises questions which
are mainly of a substantive-law nature and considers that they fall
to be examined under Article 5 § 1 (c) of the Convention.
It is of the view that it is not necessary to rule separately on the
issue of exhaustion of domestic remedies as the complaint is in any
event inadmissible for the following reasons.
- 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 the applicant
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 27
above). It may be of some significance that, being well aware of this
case-law, the applicant himself opted not to resort to the
Constitutional Court under Article 127 of the Constitution (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 26 above).
- The
Court observes that a divergent view was expressed by the Trnava
Regional Court in its decision of 16 February 2006 (see
paragraph 19 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 applicant, 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 applicant before a judge was the time-limit under
Article 17 § 3 of the Constitution and Article 87
of the CCP, as in force at the relevant time, that is to say
forty eight hours.
- The
Court observes that the applicant's claim essentially rests on the
twenty-four-hour Charter-based argument. Neither before the Court nor
before the Constitutional Court has he made any complaint about
non-observance of the forty eight-hour time limit or about
generally not having been brought before a judge “promptly”
in terms of Article 5 § 3 of
the Convention.
- It
follows that, to the extent the relevant part of the application has
been substantiated and domestic remedies exhausted, it is manifestly
ill founded and must be rejected in accordance with Article 35
§§ 3 and 4 of the Convention.
3. Procedural guarantees under Article 5 § 4 of
the Convention, other than “speediness”, in the
applicant's interlocutory appeal against detention
- The
applicant complained that the remand in custody of 6 April 2006
and the decision on his interlocutory appeal against it lacked
adequate reasoning, in particular in respect of his twenty-four-hour
Charter-based argument, which he considered essential and deserving
of a specific judicial answer.
The
applicant considered that it would have been of no use for him
to raise the present complaint in the Constitutional Court, in
view of its decision-making practice (see paragraph 27 above).
- The
Government pointed out that the complaint was of a procedural nature,
namely the alleged lack of reasons for a decision, and objected that
the applicant had failed to exhaust domestic remedies by raising it
in the Constitutional Court under Article 127 of the Constitution.
Nevertheless and in any event, they considered that the complaint was
manifestly ill founded because the reasons given by the District
Court and the Regional Court were sufficient and relevant.
- The
Court observes that the applicant's complaint is essentially
procedural in nature and considers that it falls to be examined under
Article 5 § 4 of the Convention.
To
that end, the Court finds it appropriate to draw a distinction
between the substantive outcome of the domestic proceedings, which it
has dealt with above under Article 5 §
1 (c) of the Convention (see paragraphs 39 – 53 above),
and the procedural protection afforded to the applicant under Article
5 § 4 of the Convention in the form of
the right to take proceedings by which the lawfulness of his
detention would be decided by a court, of which the right to a
reasoned decision is one of the components. The purpose of the latter
right is to ensure transparency and to provide for scrutiny of the
exercise of judicial power as opposed to ensuring a specific
substantive outcome.
- The
Court reiterates that under Article 35 § 1 of the
Convention it may only deal with the matter after all domestic
remedies have been exhausted.
- The
Court observes that the complaint under Article 127 of the
Constitution is normally considered a remedy that an applicant is
required to make use of for the purposes of Article 35 § 1
of the Convention in respect of individual complaints under Article 5
§ 4. It has found no reasons for exempting the applicant
from this requirement.
- The
Court further observes that, in his constitutional complaint of
25 June 2006, the applicant asserted solely his right to
proceedings by which the lawfulness of his detention be decided
“speedily”.
- It
follows that the remainder of the application must be rejected under
Article 35 §§ 1 and 4 of the Convention for
non exhaustion of domestic remedies.
B. Merits
- The
parties made no separate submissions other than as mentioned above
(see paragraphs 36 and 37 above).
- 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 recapitulation of
the applicable principles, see Mooren v. Germany [GC],
no. 11364/03, § 106, ECHR 2009-...).
- In
the present case the applicant lodged his interlocutory appeal orally
immediately after the detention order had been pronounced on 6 April
2006. The appeal was decided on 25 April 2005. The decision was
however not pronounced publicly and the applicant only learned of it
when a written version of it was served on him and his lawyer on 23
May 2006 (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
forty-six days.
- The
Court observes that, in its examination of the “speediness”
of the proceedings in question, the Constitutional Court
distinguished in the context of the total duration of the proceedings
periods in which the case file had technically been with the District
Court and with the Regional Court and that it examined those
proceedings separately (see paragraphs 15 and 16 above).
In
particular, the Constitutional Court declared inadmissible the part
of the applicant's constitutional complaint that concerned the
District Court on the ground that at the time of the introduction of
the constitutional complaint the case file was no longer with that
court.
Similarly,
the Constitutional Court examined the part of the proceedings that
had technically taken place before the Regional Court in isolation
and had concluded that the complaint of their duration was manifestly
ill-founded.
- In
this context the Court considers that it is first of all for the
national authorities to devise means and methods of examining
individual complaints so as to render the protection of their
rights effective.
- The
Court reiterates that it is then its task to satisfy itself in each
individual case whether the protection of the applicant's rights
granted by the national authorities is comparable with that which the
Court can provide under the Convention. In cases concerning the
problem of length of proceedings such a requirement would generally
only be met where the domestic courts' decision is capable of
covering all stages of the proceedings complained of and thus, in the
same way as decisions given by the Court, of taking into account
their overall length (see Bako v. Slovakia (dec.),
no. 60227/00, 15March 2005).
This has however not been so in the present case. In fact, if the
practice used by the Constitutional Court in the present case were to
be accepted, the overall length of proceedings concerning detention
would never be examined if in the course of the proceedings the
case file moved from one court to another (for contrast and
comparison see A.R., spol. s r.o. v. Slovakia, cited
above, §§ 34 to 39).
- The
Court will accordingly examine the above-defined period (see
paragraph 62 above) in its totality. It observes that in this
period the applicant's interlocutory appeal was judicially examined
by a single court, the Regional Court.
- The
Court has found nothing to justify a conclusion that the applicant's
detention case was of any particular complexity.
As to
the conduct of the applicant, it is true that at least four days
passed between the date when he lodged his appeal orally, on 6 April
2006, and the date when he submitted the grounds of his appeal in
writing. However, it would appear natural that he could only do so
meaningfully after his lawyer had had an opportunity to consult
the case file on 10 April 2006.
As to
the conduct of the authorities, the Court notes in particular that it
took at least twelve days from 13 April 2006 to have the applicant's
appeal with written reasons decided on 25 April 2005 and a further
twenty-eight days to have the decision served on him on 23 May
2006.
- Regard
being had to the Court's case-law on the subject (see, for example,
Sanchez-Reisse v. Switzerland, 21 October 1986,
§§ 59-60, Series A no. 107; 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 applicant's remand in custody.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 5,000 euros (EUR) in respect of non pecuniary
damage.
- The
Government considered the claim overstated.
- The
Court considers that the applicant must have sustained non pecuniary
damage. Ruling on an equitable basis, it awards him EUR 1,200
under that head.
B. Costs and expenses
- The
applicant claimed EUR 2,723.64 for legal assistance, submitting
itemised invoices from his lawyer, and EUR 50 for administrative
expenses plus EUR 30 for postal expenses, incurred both at the
national level and before the Court.
- 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 claim in respect of legal fees was overstated. They also 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 69 above), the documents in its
possession and the above criteria, the Court considers it reasonable
to award the sum of EUR 900 to cover legal representation both
at the national level and before the Court.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaint concerning the alleged
lack of a speedy determination of the lawfulness of the applicant's
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;
- Holds
(a) that
the respondent State is to pay the applicant, within three months of
the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 1,200
(one thousand two hundred euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage, and EUR 900
(nine hundred euros), plus any tax that may be chargeable to the
applicant, in respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate
equal to the marginal lending rate of the European Central Bank
during the default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 30 November 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Lawrence Early Nicolas Bratza
Registrar President
