European Court of Human Rights

 

 

 

FIRST SECTION

CASE OF ŠERIFI v. SLOVAKIA

(Application no. 50377/17)

 

 

 

 

 

JUDGMENT

 

 

 

 

STRASBOURG

15 April 2021

This judgment is final but it may be subject to editorial revision.

In the case of Šerifi v. Slovakia,

The European Court of Human Rights (First Section), sitting as a Committee composed of:

          Péter Paczolay, President,
          Alena Poláčková,
          Gilberto Felici, judges,
and Viktoriya Maradudina, Acting Deputy Section Registrar,

Having deliberated in private on 25 March 2021,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in an application against Slovakia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 8 July 2017.

2.  On 5 March 2020 the Slovak Government (“the Government”) were given notice of the application.

THE FACTS

3.  The applicant, Mr Šerif Šerifi, a Macedonian/citizen of the Republic of North Macedonia and a Slovak national at the same time, was born in 1966 and, at the time of lodging the application, was detained on remand in Leopoldov.

4.  By a decision of 23 October 2015, the Bratislava I District Court ordered the applicant’s detention pending criminal trial, which the latter challenged by an oral interlocutory appeal. On 12 January 2016 the Bratislava Regional Court quashed the District Court’s decision and ordered detention on different grounds. The decision was served on 2 February 2016.

5.  On 15 March 2016 the applicant lodged a request for release with the Bratislava Regional Prosecution Office. The case file was transmitted to the District Court seven days later. The hearing of 5 April 2016 did not take place since the presence of an interpreter had not been ensured. Two days later the applicant was formally indicted. On 9 May 2016 the District Court dismissed his request for release and the applicant lodged an oral interlocutory appeal. On 11 May 2016 the case file was transmitted to the Regional Court for determination of the appeal. He submitted written grounds of appeal within a week. The Regional Court dismissed the appeal on 18 May 2016 and its decision no. 1 Tos 45/2016 was served on 2 June 2016.

6.  On 2 August 2016 the applicant, represented by a lawyer, lodged a constitutional complaint against the ordinary courts in respect of both above mentioned proceedings. He complained about the alleged unlawfulness of his detention and the length of the judicial review. The summary of the complaint (petit) was directed against the Regional Court’s decision no. 1 Tos 45/2016 of 18 May 2016 and the conduct of the District Court in both proceedings.

7.  The Constitutional Court dismissed the complaint, in the relevant part, as manifestly ill-founded by decision no. III. ÚS 845/2016 of 13 December 2016, which was served on the applicant’s lawyer on 6 March 2017.

With regard to the District Court’s conduct in the proceedings on the detention order and the applicant’s related complaint about the lack of “speediness” of the judicial review, the Constitutional Court found that the impugned proceedings had been concluded by a decision of the Regional Court of 12 January 2016. At the time of lodging of the constitutional complaint the impugned proceedings were no longer pending before the District Court.

In respect of the request for release the Constitutional Court ruled that although the length of the judicial review before the District Court had not been in line with its well-established jurisprudence, it did not amount to a violation of the standard of “speediness” in the particular circumstances of the case. It observed that the delays had occurred due to the absence of an interpreter at the hearing of 5 April 2016 and the change of the assigned judge resulting from the applicant’s formal indictment of 7 April 2016.

Lastly, the Constitutional Court noted that in the summary of his constitutional complaint the applicant had not challenged the Regional Court’s conduct in the proceedings under case file no. 1 Tos 45/2016. In respect of the decision itself, it found the Regional Court’s conclusions duly reasoned.

THE LAW

I.       ALLEGED VIOLATION OF ARTICLE 5 § 4 of the Convention

8.  The applicant complained of the excessive length of judicial review of detention before the ordinary courts. He relied on Article 5 § 4 of the Convention, which reads as follows:

Article 5 § 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.     Detention order of 23 October 2015 and the ensuing proceedings

9.  The Government argued that the applicant had not exhausted domestic remedies because he had failed to lodge his complaint with the Constitutional Court within the statutory time-limit of two months running from the Regional Court’s final decision.

10.  The Court observes that the applicant’s constitutional complaint was lodged on 2 August 2016, i.e. six months after the Regional Court’s decision had been served. As a result, the applicant failed to comply with the applicable procedural requirements in his complaint to the Constitutional Court. Accordingly, the Government’s objection must be upheld.

11.  It follows that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

2.     Request for release of 15 March 2016 and the ensuing proceedings

12.  The Government asserted that the applicant had not directed his constitutional complaint (in its summary) against either the conduct of the prosecution or the Regional Court’s conduct in respect of his complaint about the length of the judicial review of detention. They relied on the Constitutional Court’s decision in the present case, as well as on the Court’s judgment in Schram v. Slovakia ([Committee], no. 8555/17, § 18, 23 October 2018), arguing that the period during which the applicant’s request for release had been pending before those two authorities could thus not be considered and that this part of the complaint should be declared inadmissible for non-exhaustion. With regard to the remaining period before the District Court, the Government fully endorsed the reasoning given by the Constitutional Court and proposed to declare this part of the complaint manifestly ill-founded.

13.  The Court notes that the constitutional complaint was not at all directed against the prosecution’s conduct (see paragraph 6 above). Hence, the relevant period is outside the scope of examination by the Court due to the failure of the applicant to exhaust domestic remedies (see Schram, cited above, § 18; Alojz v. Slovakia (dec.), no. 63800/10, § 22, 21 January 2014). It follows that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

14.  However, the same conclusion cannot be reached with sufficient clarity in respect of the Regional Court, which the applicant identified in his constitutional complaint as one of the organs responsible for the alleged violations of Article 5 of the Convention, although only in respect of its decision and not with regard to its conduct (see paragraphs 6 and 7 in fine).

15.  The Court thus finds that the Government’s non-exhaustion objection related to the length of the judicial review of the detention before the Regional Court is closely linked to and should be joined to the merits of the complaint and the issue falls to be examined below. It also notes that the complaint is not inadmissible on any other grounds. It must therefore be declared admissible.

B.    Merits

16.  The Court refers to the relevant principles described in the leading case of Osváthová v. Slovakia (no. 15684/05, §§ 69-77, 21 December 2010).

17.  The period under examination started on 22 March 2016 when the request for release was transmitted to the District Court. The latter only dismissed it on 9 May 2016. The total duration of the judicial review of detention by that one level of jurisdiction was thus forty-seven days.

18.  The Court has found no evidence in support of the argument that the applicant’s detention matter was of any particular complexity, or that he was responsible for any of the delays. On the contrary, the delays caused by the absence of an interpreter at the hearing of 5 April 2016 and the change of the assigned judge after the applicant’s formal indictment are attributable to the State.

19.  Having examined all the material submitted to it, the Court has not found any fact or argument capable of persuading it to reach a different conclusion. Having regard to its case-law on the subject (see, for example, Osváthová, cited above, § 38; Štetiar and Šutek v. Slovakia, nos. 20271/06 and 17517/07, § 129, 23 November 2010; Gál v. Slovakia, no. 45426/06, § 63, 30 November 2010; and Michalko v. Slovakia, no. 35377/05, § 168, 21 December 2010), the Court considers that the complaint about the excessive length of judicial review of detention upon the applicant’s request for release discloses a violation of Article 5 § 4 of the Convention.

20.  The Court does not consider it necessary to determine whether the applicant complied with the requirement of exhaustion of domestic remedies in respect of the period before the Regional Court because the length of the judicial review of detention before the District Court alone was excessive.

II.    APPLICATION OF ARTICLE 41 OF THE CONVENTION

21.  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.”

22.  Regard being had to the documents in its possession and to its case‑law (see, in particular, Osváthová v. Slovakia, cited above), the Court considers it reasonable to award the applicant 1,600 euros (EUR) in respect of non-pecuniary damage, plus any tax that may be chargeable to him.

23.  The Court considers it appropriate that the default interest rate 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,

1.      Joins to the merits the Government’s preliminary objection (non‑exhaustion) concerning the applicant’s alleged failure to direct his constitutional complaint against the Regional Court’s conduct contributing to the length of the judicial review of detention and holds that there is no need to examine it;

2.      Declares the complaint concerning the excessive length of judicial review of detention upon the applicant’s request for release admissible, and the remainder of the application inadmissible;

3.      Holds that this complaint discloses a breach of Article 5 § 4 of the Convention concerning the excessive length of judicial review of detention;

4.      Holds

(a)   that the respondent State is to pay the applicant, within three months, EUR 1,600 (one thousand and six hundred euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.

Done in English, and notified in writing on 15 April 2021, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

Viktoriya Maradudina                                                          Péter Paczolay

Acting Deputy Registrar                                                            President