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THIRD
SECTION
CASE OF ZÚBOR v. SLOVAKIA
(Application
no. 7711/06)
JUDGMENT
STRASBOURG
6 December
2011
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 Zúbor v.
Slovakia,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep Casadevall,
President,
Corneliu Bîrsan,
Alvina
Gyulumyan,
Egbert Myjer,
Ján
Šikuta,
Luis López Guerra,
Mihai
Poalelungi, judges,
and Santiago Quesada,
Section Registrar,
Having
deliberated in private on 8 November 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 7711/06)
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 Róbert
Zúbor (“the applicant”), on 14 February 2006.
2. The
Government of the Slovak Republic (“the Government”) were
represented by their Agent, Mrs M. Pirošíková.
3. The
applicant alleged, in particular, that his detention had been
unlawful and that the Constitutional Court had not displayed due
diligence when dealing with his complaint in connection with his
application for release.
- On
12 January 2010 the Court decided to give notice of the application
to the Government. It was also decided to rule on the admissibility
and merits of the application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1968 and lives in Veličná.
- On
24 June 2003 the police arrested the applicant. He was accused of
planning a robbery and remanded in custody on that date.
- Several
decisions extending the applicant’s detention were made. In
particular, on 18 November 2004 the Zilina
District Court extended his detention in the context of the
preliminary proceedings until 24 January 2005.
- On
21 January 2005 the public prosecutor indicted the applicant and
several others before the Zilina Regional Court.
- The
applicant requested to be released, arguing that the Regional Court
had not extended his detention after the expiry of the period
indicated in the District Court’s decision of 18 November 2004.
- On
20 April 2005 the Regional Court ordered the applicant’s
release. Upon a complaint lodged by the public prosecutor the Supreme
Court decided on 24 May 2005 that the applicant should remain
remanded in custody. On 27 July 2005 the applicant complained to
the Constitutional Court that his detention after 24 January 2005 was
unlawful.
- In
the meantime, on 15 June 2005, the Supreme Court extended the
applicant’s detention until 24 June 2006. On 23 August 2005 the
applicant lodged a constitutional complaint alleging a violation of
Article 5 § 1 of the Convention as a result of that decision.
- On
31 March 2006 the applicant was released.
- In
judgment III. ÚS 271/06 of 8 March
2007 the Constitutional Court found that by the above decision of 24
May 2005 the Supreme Court had breached the applicant’s right
under Article 5 § 1 of the Convention. The Constitutional Court
referred to its judgments I. ÚS 6/02 and I. ÚS
204/05 (see paragraphs 25-30 below) and held that there
existed no justification for the absence of any judicial decision
extending the applicant’s detention after 24 January 2005.
- The
Constitutional Court ordered the Supreme Court to reimburse the
applicant’s costs in the constitutional proceedings. It
dismissed his claim for just satisfaction, holding that (i) the
finding of a violation of Article 5 § 1 provided
appropriate redress for the applicant and (ii) the Supreme Court’s
decision of 24 May 2005 was based on that court’s practice,
which, however, was not in accordance with practice under the
Convention.
- In
a different judgment delivered on 6 June 2007 (IV. ÚS
10/07) the Constitutional Court found that by the above
decision of 15 June 2005 the Supreme Court had violated the
applicant’s right under Article 5 § 1 of the Convention.
In particular, with reference to the reasons for its judgment of
8 March 2007 the Constitutional Court was of the view that the
Supreme Court should have remedied the situation resulting from the
applicant’s unlawful detention by ordering his release.
- The
Constitutional Court granted the equivalent of 1,470 euros (EUR) to
the applicant as just satisfaction and ordered the Supreme Court to
reimburse the applicant’s costs.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Code of Criminal Procedure of 1961
- The
following provisions of the Code of Criminal Procedure of 1961 (Law
no. 141/1961 Coll., in force until 31 December 2005) are relevant in
the present case.
- Pursuant
to Article 71 § 1, a person’s detention in the context of
both pre-trial proceedings and during proceedings before a trial
court can only last as long as necessary. Where detention in the
context of pre-trial proceedings is to exceed six months, it can be
extended at a public prosecutor’s request up to one year by a
judge or to a maximum of two years by a court’s chamber.
- Article
71 § 2 provides that a person’s detention in the context
of both pre-trial proceedings and during a trial must not exceed two
years. In justified cases the Supreme Court may extend its duration
to a maximum of three years and in cases of particularly serious
offences up to five years. Under paragraph 3 of Article 71 a proposal
for extension of a person’s detention is to be submitted by a
public prosecutor in the pre-trial proceedings and by the president
of the court’s chamber during the trial.
- Article
72 § 1 obliges investigators, prosecutors and judges to examine,
at each stage of criminal proceedings, whether reasons for the
accused person’s detention persist. In pre-trial proceedings a
judge is obliged to do so only when deciding on a public prosecutor’s
proposal to extend detention or to modify the reasons for it, or when
deciding on an accused person’s application for release. Where
a reason for an accused person’s detention no longer exists,
the accused must be released immediately.
- Article
72 § 2 entitles the accused to apply for release at any time.
When the public prosecutor dismisses such an application in the
course of pre-trial proceedings, he or she must submit it immediately
to the court. The decision on an application for release must be
taken without delay. If an application is dismissed, the accused may
only renew it fourteen days after the decision has become final
unless he or she gives other reasons to justify his or her release.
- Pursuant
to Article 192, where the court carries out a preliminary examination
of the indictment of a person who is detained, it shall also decide
whether that person is to remain in custody.
B. Practice of the Supreme Court
- In
accordance with the Supreme Court’s practice, the time-limits
mentioned in Article 71 § 1 of the Code of Criminal Procedure of
1961 concerned exclusively situations where a decision on a public
prosecutor’s proposal was to be made in the context of
pre-trial proceedings. However, where an indictment had been filed
within a shorter time than the two-year period mentioned in Article
71 § 1, the law did not require that a request for continued
detention of the accused be made or that a separate decision should
be made on their continued detention, with the exception of cases
where the indictment had been filed less than ten days before the
expiry of the two-year maximum period of detention.
- Pursuant
to a 1975 Supreme Court ruling (Rt 5/75), Article 192 of the Code of
Criminal Procedure requires a court to decide on further detention of
an accused where it has carried out a preliminary examination of the
indictment. Accordingly, where the presiding judge concludes on the
basis of the file that a preliminary examination of the indictment is
not required and considers the detention of the accused to be lawful,
there is no need for a separate decision of the court on continued
detention of the accused. However, where the accused applies for
release, such application must be decided upon without delay in
accordance with Article 72 § 2 of the Code of Criminal
Procedure.
C. Practice of the Constitutional Court
1. Judgment I. ÚS 6/02 of 4
December 2002
- In
judgment I. ÚS 6/02 the
Constitutional Court noted that the Code of Criminal Procedure did
not explicitly require that a decision on extension of an accused
person’s detention be given in cases where an indictment had
been filed and where the detention, both at the pre-trial stage and
during the trial, had not exceeded two years.
- It
held, however, that the filing of an indictment alone did not as such
justify a person’s continued detention. The court dealing with
the case was required to decide explicitly on further detention of
the accused prior to the expiry of the period for which the detention
had been extended in the context of pre-trial proceedings.
- In
its judgment the Constitutional Court referred in particular to the
guarantees laid down in Article 5 § 1 of the Convention and the
Court’s judgment in Stašaitis v. Lithuania (no.
47679/99, 21 March 2002, §§ 59 61).
- In
that case the Constitutional Court found no breach of Article 5 §
1 as the ordinary court involved, both in the context of a
preliminary examination of the indictment and in reaction to the
accused person’s request for release, decided that the reasons
for the latter’s detention persisted. That decision had the
same effect as a decision to extend the accused person’s
detention.
2. Judgment I. ÚS 204/05
of 15 February 2006
- In
the above case, which concerned one of the present applicant’s
co-accused, the detention in the context of pre-trial proceedings had
been extended until 24 January 2005. Prior to its expiry, on 21
January 2005, the accused was indicted. In its judgment the
Constitutional Court found that the Supreme Court had breached the
plaintiff’s right under Article 5 § 1 of the Convention,
in that there had been no judicial decision extending his detention
after 24 January 2005 and there existed no justification for that
situation. It was irrelevant that courts at two levels had dismissed
the accused person’s application for release, as those
decisions related to detention in the context of pre-trial
proceedings, that is prior to the filing of an indictment. In those
circumstances, any relevant decision on further detention of the
accused could have been taken only by the criminal court before which
the accused had been indicted.
- With
reference to its judgment I. ÚS 6/02 of 4
December 2002 the Constitutional Court held that for a
detention to be lawful it must always rely on a court decision.
3. Judgments III. ÚS 322/05
of 10 May 2006 and III. ÚS 167/06 of 30 November 2006
- In
the above two judgments given in the case of a different co-accused
of the applicant, the Constitutional Court found a breach of Article
5 § 1, in that there had been no judicial decision extending the
accused person’s detention after the filing of the indictment.
In the latter judgment it held, in particular:
“In the Constitutional Court’s view, the
jurisdiction of the court involved at the pre-trial stage ended with
the filing of the indictment on 21 January 2005. The indictment as
such is not a ground for continued detention of a person, as it does
not explicitly follow from the law, and it is inadmissible to extend
the possibilities of restricting a person’s liberty by
extensive interpretation of several provisions of the Code of
Criminal Procedure.
However, a court’s decision on detention of a
person at the pre-trial stage can constitute a ground for such
person’s detention during a short period following the
indictment. Otherwise it would be practically impossible to ensure
continued detention of a person after an indictment has been filed.
In the circumstances, a ground for the plaintiff’s
detention existed until 25 January 2005. The detention should have
been extended by a decision not later than on 25 January 2005 if it
was to last after that date. In the absence of any such decision, the
restriction of the plaintiff’s liberty after 25 January 2005
was unlawful.
The unlawfulness of the plaintiff’s deprivation of
liberty after 25 January 2005 cannot be vindicated retrospectively,
not even by a judicial decision. Subsequent judicial decisions could
not have extended the plaintiff’s detention as it had ended on
25 January 2005. The only existing possibility was to remand the
plaintiff in custody again. As this was not the case, his subsequent
deprivation of liberty had no legal ground.”
4. Judgment I. ÚS 115/07 of
23 October 2007
- In
judgment I. ÚS 115/07 the Constitutional Court confirmed that
the filing of an indictment alone does not suffice for continued
detention of the accused to be lawful. The court dealing with the
criminal case following the indictment is required to take a decision
on the accused person’s detention prior to the expiry of the
period for which the latter had been remanded in the context of
pre-trial proceedings. The Constitutional Court found a breach of the
accused person’s right under Article 5 § 1 of the
Convention and ordered his immediate release.
D. The Code of Criminal Procedure of 2005
- The
new Code of Criminal Procedure (Law no. 301/2005 Coll.) entered into
force on 1 January 2006.
- Article
76 § 5 provides, inter alia, that a court is obliged to
decide on further detention of the accused within fifteen days of his
or her indictment (or submission for approval of an agreement between
the prosecution and the accused on guilt and punishment) unless it
has already decided on detention of the accused under provisions
which govern the examination of indictments.
- The
explanatory report to the draft Code of Criminal Procedure of 2005
indicates that the above provision accentuates the judicial control
of a person’s detention following his or her indictment
and that the amendment is also in reaction to the Constitutional
Court’s judgment I. ÚS 6/02 of
4 December 2002.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
- The
applicant complained that his detention after 24 January 2005 had
been unlawful and that he was unable to obtain appropriate redress in
that respect in the context of the proceedings before the
Constitutional Court. He relied on Article 5 § 1 of the
Convention, which reads as follows:
“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; (...)”
- The
Government contested that argument.
A. Admissibility
- The
Government argued that the application was manifestly ill-founded, as
the guarantees of Article 5 § 1 had been complied with. In any
event, given the redress which the applicant obtained in the
proceedings before the Constitutional Court, he could no longer be
considered a “victim” within the meaning of Article 34 of
the Convention.
- The
applicant disagreed with the arguments of the Government.
40. In
the present case, the Constitutional Court, in two separate judgments
which have to be considered in conjunction, found that there had been
a breach of the applicant’s right under Article 5 § 1 of
the Convention on the ground that there had been no judicial decision
extending his detention after 24 January 2005 (see paragraphs 13-16
above). Given that the Government disagreed with that
conclusion, the Court considers that their objection concerning the
applicant’s status as a victim is closely linked and should be
joined to the merits of that complaint.
- The
Court considers that the application raises serious questions of fact
and law which are of such complexity that their determination should
depend on an examination on the merits. It cannot, therefore, be
considered manifestly ill-founded within the meaning of Article 35 §
3 of the Convention, and no other ground for declaring it
inadmissible has been established. It must therefore be declared
admissible.
B. Merits
1. Arguments of the parties
- The
applicant maintained that his detention after 24
January 2005 had been contrary to Article 5 § 1 as indicated in
the Constitutional Court’s judgments.
- The
Government argued that the applicant’s detention after
24 January 2005 had been in accordance with the law. They relied
on Article 72 § 1 of the Code of Criminal Procedure of 1961
which obliged judges to examine, at each stage of criminal
proceedings, whether reasons for the accused person’s detention
persisted, and on existing practice of ordinary courts described
above. The maximum permissible duration of the applicant’s
detention was laid down in the Code of Criminal Procedure of 1961 and
had not been exceeded. His detention after 24 January 2005 had
therefore an appropriate legal basis and was neither arbitrary nor
otherwise contrary to Article 5 § 1.
- The
Government further argued that in Pavlík v. Slovakia
(no. 74827/01, judgment of 30 January 2007) the Court had
found no breach of Article 5 § 1, notwithstanding that the
applicant’s detention had not been covered by a judicial
decision for nearly one month.
- At
the relevant time there was no established practice of the
Constitutional Court as, prior to the facts of the present case, it
had addressed the point in issue in a single judgment, namely I. ÚS
6/02 of 4 December 2002. An actual change in its approach
had occurred only in the context of proceedings brought by the
applicant in the present case and his co-accused.
- The
new approach consisted of an interpretation of the guarantees under
Article 5 § 1 of the Convention which was broader than that
which the Court gave to that provision under its case-law. In
particular, the Government argued that while Article 5 § 1
required a legal basis in the domestic legal order for detention to
be lawful, it did not follow from the Court’s case-law that
lawful detention of a person should exclusively be based on an
explicit judicial order.
2. The Court’s assessment
(a) Recapitulation of the relevant
principles
- The
relevant principles are set out, for example, in Mooren v. Germany
[GC] (no. 11364/03, §§ 72-81, ECHR 2009 ...; with
further references). They can be summed up as follows.
- Where
the “lawfulness” of detention is in issue, including the
question whether “a procedure prescribed by law” has been
followed, the Convention refers essentially to national law and lays
down the obligation to conform to the substantive and procedural
rules thereof. Compliance with national law is not, however,
sufficient: Article 5 § 1 requires in addition that any
deprivation of liberty should be in keeping with the purpose of
protecting the individual from arbitrariness. The Court must further
ascertain in this connection whether domestic law itself is in
conformity with the Convention, including the general principles
expressed or implied therein, notably the principle of legal
certainty. Although it is in the first place for the national
authorities, notably the courts, to interpret and apply domestic law,
under Article 5 § 1 failure to comply with domestic law entails
a breach of the Convention.
- A
period of detention is, in principle, “lawful” if it is
based on a court order. However, the Court has considered the
absence of any grounds given by the judicial authorities in their
decisions authorising detention for a prolonged period of time to be
incompatible with the principle of protection from arbitrariness
enshrined in Article 5 § 1.
- It
has further acknowledged that the speed with which the domestic
courts replaced a detention order which had either expired or had
been found to be defective is a relevant element in assessing whether
a person’s detention must be considered arbitrary. Thus, in the
context of sub-paragraph (c) of Article 5 § 1 a period of more
than a year following a remittal from a court of appeal to a
court of a lower level, in which the applicant remained in a state of
uncertainty as to the grounds for his detention, combined with the
lack of a time-limit for the lower court to re-examine his detention,
was found to render the applicant’s detention arbitrary (see
Khudoyorov v. Russia, no. 6847/02, §§ 136-137, ECHR
2005 X (extracts)).
- In
the Jėčius v. Lithuania judgment (no. 34578/97, 31
July 2000, §§ 56-64, ECHR 2000-IX) the Court found
that the sole fact that the case had been transmitted to the court
did not constitute a “lawful” basis for detention within
the meaning of Article 5 § 1 of the Convention, and that it
could not extend or replace the valid detention order required by
domestic law.
- In
Stašaitis (cited above, §§ 68-69) the Court
held that uncertainty had been created by the judicial authorities’
merging of detention decisions with other procedural acts, resulting
in a lack of clarity regarding the lawfulness of the applicant’s
detention. In that case the Court of Appeal reinstated retroactively
a detention order issued more than a year before but gave no reasons
for its decision in that respect. In doing so it took no account of
the applicant’s current situation. The Court concluded that the
decision did not constitute a “lawful” basis for the
applicant’s continued remand in custody.
- In
the Zirovnický v. the Czech Republic judgment (no.
23661/03, §§ 58-62, 30 September
2010), the Court found a breach of Article 5 § 1 as no
detention warrant had been issued by a court or other judicial body
authorising the applicant’s continued remand in custody for a
period exceeding one month.
(b) Application of the relevant principles
to the present case
- In
the present case the Constitutional Court acknowledged a breach of
the applicant’s rights under Article 5 § 1 on two
occasions, but the Government expressed their disagreement with such
decisions. In view of such situation the Court is required to
take a stand on the point of issue.
- It
would be justified for the Court to reach a contrary conclusion to
that of the Constitutional Court only if it was satisfied that the
latter had misinterpreted or misapplied the Convention provision or
the Court’s jurisprudence under that provision or reached a
conclusion which was manifestly unreasonable (see, mutatis
mutandis, A. and Others v. the United Kingdom [GC],
no. 3455/05, § 174 in fine, ECHR 2009-..., and
Henryk Urban and Ryszard Urban v. Poland,
no. 23614/08, §§ 51-53,
30 November 2010).
- The
Constitutional Court found that there existed no justification for
the absence of any judicial decision extending the applicant’s
detention after 24 January 2005. That finding was based on its
judgments in different cases in which it considered inadmissible the
criminal courts’ practice extending the statutory possibilities
of restricting a person’s liberty by extensive interpretation
of several provisions of the Code of Criminal Procedure.
- The
Court concurs with the reasons put forward by the Constitutional
Court which it finds to be in line with its above case-law. It
considers that the purpose of Article 5, namely to protect
individuals from arbitrary deprivation of liberty, is served in an
appropriate manner where there is a mandatory formal judicial review
requiring a decision which gives reasons for a person’s
detention after his or her case has been submitted to the trial court
and, as the case may be, the detention order issued at the pre-trial
stage has expired.
- The
Court has noted that a judicial review of this kind was allowed for
in Article 76 § 5 of the Code of Criminal Procedure of
2005, also with reference to the above Constitutional Court’s
judgment I. ÚS 6/02. However, that development did not concern
the present case.
- The
foregoing considerations are sufficient to enable the Court to
conclude, in line with the Constitutional Court’s judgments,
that the applicant’s detention after the expiry of the
detention order given at pre-trial stage fell short of the
requirement of lawfulness within the meaning of Article 5 § 1.
(c) The victim status of the applicant
60. In
view of the above conclusion it remains to be examined whether the
applicant can still claim to be a “victim” within the
meaning of Article 34 of the Convention.
61. The
Court reiterates that a decision or measure favourable to the
applicant is not in principle sufficient to deprive the applicant of
his or her status as a “victim”, within the meaning of
Article 34 of the Convention, unless the national authorities have
acknowledged, either expressly or in substance, and then afforded
redress for, the breach of the Convention (see Rosselet-Christ v.
Slovakia, no. 25329/05, § 49, 26 October
2010, with further references).
- Since
the Constitutional Court explicitly acknowledged a breach of the
applicant’s right under Article 5 § 1, the only issue
which arises in that respect in the present case is whether the
redress afforded to him can be considered as appropriate.
63. When
determining such issue the Court will have regard to its own practice
in similar cases. This does not imply that in situation where
domestic authorities awarded a sum to the applicant with a view to
redressing the breach found, such sum must correspond to the Court’s
award. The issue must be determined in light of all relevant
circumstances including the nature of the breach and the way and
speediness in which it was established by domestic authorities for
which it is in the first place to ensure respect for rights and
freedoms guaranteed by the Convention. The level of just satisfaction
granted at national level must nevertheless not be manifestly
inadequate in the particular circumstances of the case (see also
Cocchiarella v. Italy
[GC], no. 64886/01, §§ 65-107, ECHR 2006-V; Scordino
v. Italy (no. 1) [GC], no. 36813/97, §§
178-213, ECHR 2006-V; or Becová
v. Slovakia (dec.), no. 23788/06, 18
September 2007).
64. In
its second judgment, delivered on 6 June 2007, the
Constitutional Court granted the applicant the equivalent of EUR
1,470 as just satisfaction, noting that the Supreme Court had
not remedied the situation resulting from the applicant’s
unlawful detention (see paragraphs 15 and 16
above). At the time of the Constitutional Court judgments the
applicant had been released.
65. The
Court considers that the sum awarded as just satisfaction in the
second judgment, albeit not negligible as such, is not sufficient to
provide the applicant with appropriate redress in the circumstances.
When reaching this conclusion the Court had regard, in particular, to
the importance of the right to liberty and security as enshrined in
Article 5 § 1, the duration of the applicant’s detention
which the Constitutional Court had found to be unlawful, and other
criteria which it has applied for the determinantion of
just-satisfaction awards under Article 41 of the Convention (among
most recent judgments see, mutatis
mutandis, Al-Jedda v.
the United Kingdom [GC], no. 27021/08, §
114, 7 July 2011; HadZić and Suljić v.
Bosnia and Herzegovina, nos. 39446/06 and 33849/08,
§ 49, 7 June 2011, with further references; or Ganea
v. Moldova, no. 2474/06, §
35, 17 May 2011).
66. The
applicant can thus still claim to be a “victim” of a
breach of his rights within the meaning of Article 34 of the
Convention, and the Government’s objection in this respect must
be dismissed.
- There
has accordingly been a violation of Article 5 § 1 of the
Convention.
II. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE
CONVENTION
- The
applicant complained that the Constitutional Court had not displayed
due diligence when dealing with his complaint of 27 July 2005. He
relied on Article 5 § 4 of the Convention which provides:
“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. Arguments of the parties
- The
Government maintained that the guarantees of Article 5 § 4 do
not extend to proceedings before the Constitutional Court. Those
proceedings were governed by different legal provisions from those
governing proceedings before criminal courts. They were separate from
and independent of proceedings before criminal courts and of a
specific nature, as they concerned an alleged breach of the
applicant’s fundamental rights and freedoms. A complaint to the
Constitutional Court could not be regarded as an ordinary remedy
against criminal courts’ decisions related to the applicant’s
detention. In any event, the Government considered this
complaint to be manifestly ill-founded.
- The
applicant disagreed.
2. Applicability of Article 5 § 4 to proceedings
before the Constitutional Court and the scope of its guarantees
- The
Court held Article 5 § 4 applicable to proceedings before the
Constitutional Court of the Czech Republic (see Smatana v. the
Czech Republic, no. 18642/04, §§ 46 and 122-123, 27
September 2007; Fešar v. the Czech Republic (no.
76576/01, §§ 57-60 and 69, 13 November 2008). In Knebl
v. the Czech Republic (no. 20157/05, §
102, 28 October 2010) the Court held that in respect of complaints of
unlawfulness or excessive length of detention the guarantee of a
“speedy review” had to be respected in proceedings before
the Constitutional Court.
72. In
Stephens v. Malta (no. 2), (no. 33740/06, §§
83 and 85-90, 21 April 2009), the Court held that the
intervention of the Constitutional Court, which had to be regarded in
the particular circumstances of that case, fulfilled the requirements
of Article 5 § 4.
- In
several applications against Croatia the Court reiterated that while
Article 5 § 4 does not compel the Contracting States to set up a
second level of jurisdiction for the examination of applications for
release from detention, a State which institutes such a system must
in principle accord detainees the same guarantees on appeal as at
first instance. The Court held that the same applies in a system
which provides for a constitutional complaint against decisions
ordering and extending detention. It found a breach of Article 5
§ 4 due to the Croatian Constitutional Court’s failure to
review the lawfulness of the applicants’ detention (see
Getoš-Magdić v. Croatia, no. 56305/08,
§§ 100-106, 2 December 2010; Hađi v.
Croatia, no. 42998/08, §§ 43-47, 1 July 2010; or Peša
v. Croatia, no. 40523/08, §§ 122-126, 8 April
2010).
- As
to the present case, the Court has held that a complaint under
Article 127 of the Constitution of the Slovak Republic is a remedy
which applicants, including those who complain about a breach of
their rights under Article 5, are normally required to use for the
purpose of Article 35 § 1 of the Convention prior to
lodging an application under the Convention (see, for example,
Osváthová v. Slovakia, no. 15684/05,
§§ 57-59, 21 December 2010, and Štetiar
and Šutek v. Slovakia, nos. 20271/06 and 17517/07,
§§ 71-72, 23 November 2010).
- Lawfulness
is a pre-requisite for a person’s detention to be considered
compatible with Article 5 § 1 of the Convention and its
constitutional equivalent. When examining complaints alleging a
breach of Article 5 § 1 of the Convention or its constitutional
equivalent, the Constitutional Court has to assure itself as to
whether the statutory requirements were complied with. When finding
that a person’s detention is unlawful, it concludes that that
there has been a breach of the plaintiff’s fundamental rights
and freedoms. In such cases the Constitutional Court has
jurisdiction, inter alia, to quash the decisions of ordinary
courts and, if appropriate order the release of the detained person.
- The
requirement under Article 5 § 4 of a speedy review of the
lawfulness of one’s detention is similar to the guarantee of a
hearing with a reasonable time incorporated in Article 6 §
1 of the Convention. The latter procedural guarantee was found to
extend to constitutional proceedings the purpose of which was to
determine whether there had been a breach of the plaintiffs’
fundamental rights in the course of prior proceedings before ordinary
courts where such proceedings concerned determination of one’s
civil rights or obligations or of a criminal charge (see, for
example, Süßmann v. Germany, 16 September 1996, §§
45-46, Reports of Judgments and Decisions 1996 IV, and
Keszeli v. Slovakia (no. 2), no. 34200/06,
§ 21-23, 21 December 2010).
- In
view of the above, the Court sees no reason why the former guarantee,
that is the right to a speedy review of the lawfulness of one’s
detention included in Article 5 § 4, should not extend also to
proceedings before the Constitutional Court.
- The
Court further reiterates that the purpose of Article 5 § 4 is to
assure to persons who are arrested and detained the right to judicial
supervision of the lawfulness of the measure to which they are
thereby subjected (see, mutatis mutandis, De Wilde, Ooms
and Versyp v. Belgium, 18 June 1971, § 76, Series A no.
12; and Ismoilov and Others v. Russia, no. 2947/06, §
145, 24 April 2008). A remedy must be made available during a
person’s detention to allow that person to obtain speedy
judicial review of the lawfulness of the detention, capable of
leading, where appropriate, to his or her release (see, among other
references, Getoš-Magdić v. Croatia, cited above,
§ 100; or Stephens v. Malta (no. 2), cited above, §
83).
79. In
Stephens v. Malta (no. 1) (no. 11956/07, §§
15, 23, 24 and 102, 21 April 2009) the Court held that the right
guaranteed in Article 5 § 4 was only applicable to persons
deprived of their liberty, and had no application for the purposes of
obtaining, after release, a declaration that a previous detention or
arrest was unlawful. In that case the applicant lodged the
constitutional remedy on 12 November 2004 and the Constitutional
Court determined the issue on 23 November 2004. Prior to that, on 22
November 2004 the applicant had been released on bail. Paragraph 103
of the judgment reads:
“The Court observes that the applicant made his
application for release while he was in detention. However, a
decision was given by the Constitutional Court only on 24 November
2004, by which time he had been released on bail... Thus, although at
the time of his application to the domestic courts the applicant was
entitled to a review in accordance with Article 5 § 4, this
provision no longer applied at the time of the Constitutional Court’s
judgment. Consequently, it is not necessary for the Court to examine
whether the proceedings concerning the applicant’s detention
satisfied the safeguards of Article 5 § 4 of the Convention.”
- In
S.T.S. v. the Netherlands (no. 277/05, §§
43-50 and 58-62, 7 June 2011) the Court found a breach of
Article 5 § 4 as, inter alia,
the lawfulness of the applicant’s detention had not been
decided speedily. That breach related to proceedings in which the
Supreme Court concluded, 294 days after the applicant had lodged his
appeal on points of law, that its determination had become devoid of
interest. It held, in particular, that the detention authorisation in
issue had lapsed in the meantime. In the judgments against Croatia
referred to in pargraph 73 above the
domestic courts involved refused to review the lawfulness of the
applicants’ detention because a fresh decision extending their
detention had meanwhile been adopted. Such way of proceeding raised
also an issue as to the effectiveness of the review both in
S.T.S. and the applications against Croatia in issue.
- In
particular, in S.T.S.
(§ 61) the Court concluded that by declaring the
applicant’s appeal on points of law as having been devoid of
interest the Supreme Court had deprived that remedy of whatever
further effect it might have had. It pointed out that a former
detainee may well have a legal interest in the determination of his
or her detention even after having been liberated
as an issue can arise, for example, in giving effect to the
“enforceable right to compensation” guaranteed by Article
5 § 5 of the Convention.
82. In
the present case a similar issue does not arise as the Constitutional
Court found a breach of the applicant’s right under Article 5 §
1 of the Convention and, in the judgment of 6 June 2007, awarded him
just satisfaction notwithstanding that the applicant had been
released in the meantime. For the Court, it is this aspect which
makes the present case dissimilar from S.T.S.
or the Croatian cases referred to above.
83. The
primary purpose of Article 5 § 4 is to ensure to a person
deprived of liberty a speedy judicial review of the lawfulness
of the detention capable of leading, where appropriate, to his or her
release. The Court considers that the requirement of speediness is
therefore relevant, from that perspective, while that person’s
detention lasts (see, by analogy, Stephens v. Malta (no. 1) cited
above, § 103). While the guarantee of speediness is no longer
relevant for the primary purpose of Article 5 § 4 after the
person’s release, the guarantee of efficiency of the review
should continue to apply even thereafter since, as stated in S.T.S.,
a former detainee may well have a legitimate interest in the
determination of his or her detention even after having been
liberated.
- In
these circumstances, the Court considers that the reasoning in
Stephens v. Malta (no. 1) does not prevent it from
considering, subject to compliance with the other admissibility
requirements, the present applicant’s complaint of a lack of
speediness of the constitutional proceedings intervening between the
date his constitutional complaint was lodged and the date when he was
released. Otherwise, the applicant would have been deprived of
protection of his rights under Article 5 § 4 for a period
of more than eight months. In this respect, the Court reiterates that
the Convention is intended to guarantee rights that are “practical
and effective” (see Oluić v. Croatia, no.
61260/08, § 47, 20 May 2010).
-
The applicant lodged his constitutional complaint on 27 July 2005 and
his was released on 31 March 2006. His release put an end to the
alleged breach of Article 5 § 4 resulting from the failure by
the Constitutional Court to speedily examine his complaint about
unlawfulness of his detention (see also, mutatis mutandis,
Herz v. Germany, no. 44672/98, § 73, 12 June
2003; Filip v. Romania, no. 41124/02, § 80, 14 December
2006; and, to the contrary, Kołaczyk v. Poland (dec.),
no. 13794/02, 9 January 2007). The application was introduced on
14 February 2006, that is prior to the applicant’s
release.
- 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.
B. Merits
- The
applicant maintained that the requirement for a speedy review of the
lawfulness of his detention had not been respected in the proceedings
before the Constitutional Court.
- The
Government argued that in the case of the applicant and his
co-accused the Constitutional Court had set out a new approach to the
point at issue, which had resulted in a change of practice under the
relevant provisions of the Code of Criminal Procedure of 1961. The
matter was complex, and both the applicant and the Supreme Court had
intervened repeatedly. Furthermore, throughout the relevant period
the applicant remained free apply for release under Article 72 §
2 of the Code of Criminal Procedure of 1961.
- The
Court reiterates that Article 5 § 4 does not compel the
Contracting States to set up a second level of jurisdiction for the
examination of the lawfulness of detention. Nevertheless, where
domestic law provides for a system of appeal, the appellate body must
also comply with the requirements of Article 5 § 4, in
particular as concerns the speediness of the review by the appellate
body of a detention order imposed by the lower court. However, the
standard of “speediness” is less stringent when it comes
to proceedings before the court of appeal (see Starokadomskiy v.
Russia, no. 42239/02, § 80, 31 July 2008, with further
references). The above considerations are relevant, by analogy,
also in respect of complaints under Article 5 § 4 about
constitutional proceedings which, as the Government indicated, were
separate from proceedings before ordinary courts under the relevant
provisions of the Code of Criminal Procedure.
- In
the present case the period to be taken into consideration lasted
from 27 July 2005 to 31 March 2006, that is more than eight months.
Even though it has accepted above that the standard of “speediness”
was less stringent in the proceedings complained of, the Court does
not find the arguments submitted by the Government sufficiently
convincing to justify the period in issue. The requirement for a
speedy review of the lawfulness of the applicant’s detention
was thus not complied with in the proceedings before the
Constitutional Court which concerned the applicant’s complaint
of 27 July 2005.
- There
has therefore been a violation of Article 5 § 4 of the
Convention.
III. ALLEGED VIOLATION OF ARTICLE 13 OF THE CONVENTION
- Lastly,
the applicant complained that he did not have an effective remedy at
his disposal in respect of his above complaints under Article 5 §§ 1
and 4. He relied on Article 13 of the Convention, which provides:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
A. Alleged violation of Article 13 in conjunction with
Article 5 § 1
- The
Government maintained that the applicant did not have an arguable
complaint. In any event, the applicant had had an effective remedy,
namely a complaint to the Constitutional Court.
- The
applicant disagreed.
- The
Court notes that the Constitutional Court, in two separate
judgements, found that there had been a breach of the applicant’s
rights under Article 5 § 1. It ordered the reimbursement of the
applicant’s costs and, in the second judgment, granted EUR
1,470 as just satisfaction to the applicant. The Constitutional Court
had the power to order the applicant’s release, but the
applicant was no longer detained at the time of its judgments.
- Thus
the applicant had a remedy at his disposal at the national level to
enforce the substance of the right under Article 5 § 1. The fact
that the redress obtained at the domestic level was not sufficient
for the Convention purposes does not render the remedy under Article
127 of the Constitution in the circumstances of the present case
incompatible with Article 13 of the Convention (see also, mutatis
mutandis, Šidlová v. Slovakia, no. 50224/99,
§ 77, 26 September 2006, and Mošať v. Slovakia,
no. 27452/05, § 27, 21 September 2010).
- It
follows that this part of the application is manifestly ill-founded
and must be rejected in accordance with Article 35 §§ 3 and
4 of the Convention.
B. Alleged violation of Article 13 in conjunction with
Article 5 § 4
1. Admissibility
- The
Government maintained that the applicant had no arguable complaint
for the purpose of Article 13.
- The
applicant disagreed.
- The
Court found above that the complaint under Article 5 § 4 was
admissible and that there had been a breach of that provision. It
notes that the applicant’s complaint under Article 13 in
conjunction with that provision is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention and is not
inadmissible on any other grounds. It must therefore be declared
admissible.
2. Merits
- The
Court reiterates that the more specific guarantees of Article 5 are a
lex specialis in relation to Article 13 and absorb its
requirements (see Yuldashev v. Russia, no. 1248/09, §
114, 8 July 2010).
- In
these circumstances, and in view of its finding of a breach of
Article 5 § 4 of the Convention, the Court considers that no
separate issue arises in respect of Article 13 in connection with
Article 5 § 4.
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.”
- On
16 March 2010 the Court invited the applicant to submit his just
satisfaction claims by 26 April 2010. His attention was drawn to Rule
60 of the Rules of Court. In a letter dated 2 May 2010 which was
delivered to the Court on 12 May 2010 the applicant claimed EUR
200,000 in respect of non-pecuniary damage. He explained that he had
not been able to meet the time-limit as he worked abroad.
- The
Government argued, with reference to Rule 60 of the Rules of Court,
that no award under Article 41 should be made to the applicant.
- Noting
that no just satisfaction claims were submitted within the given
time-limit and no extension of time had been requested before the
expiry of that period, the Court makes no award under Article 41 of
the Convention (see also, A.R., spol. s r.o. v. Slovakia, no.
13960/06, §§ 63-65, 9 February 2010, with further
references; or Ryabykh v. Russia, no. 52854/99, §§
66-68, ECHR 2003-IX).
FOR THESE REASONS, THE COURT
- Joins to the merits the question whether the
applicant retained the victim status in respect of the complaint
under Article 5 § 1;
- Declares by a majority admissible
the complaint under Article 5 § 1 of the Convention
concerning the lawfulness of the applicant’s detention and the
complaints under Articles 5 § 4 and 13 of the Convention about
the lack of a speedy review by the Constitutional Court of the
applicant’s complaint of 27 July 2005;
3. Declares unanimously the remainder
of the application inadmissible;
- Holds by four votes to three that
there has been a violation of Article 5 § 1 of the
Convention and dismisses the Government’s objection as regards
the victim status of the applicant;
- Holds unanimously that
there has been a violation of Article 5 § 4 of the Convention;
- Holds unanimously that
there is no need to examine the alleged violation of Article 13 in
conjunction with Article 5 § 4 of the Convention;
- Dismisses unanimously the
applicant’s claim for just satisfaction.
Done in English, and notified in writing on 6 December 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep
Casadevall
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the separate opinion of Judges
Gyulumyan, Myjer and López Guerra is annexed to this judgment.
J.C.M.
S.Q.
JOINT DISSENTING OPINION OF JUDGES GYULUMYAN, MYJER AND
LÓPEZ GUERRA
Like
in the Kormoš v. Slovakia case (judgment of 8 November
2011), we voted in this case for a finding of no violation of
Article 5 § 1 of the Convention.
We
have no difficulty whatsoever with the line of reasoning as laid down
in paragraphs 47-53 (recapitulation of the relevant principles)
and 54-59 (application of the relevant principles to the present
case). However, we do not fully agree with paragraphs 60-67 as
regards the victim status of the applicant. Indeed, the
Constitutional Court explicitly acknowledged a breach of the
applicant’s right under Article 5 § 1 of the Convention.
It then awarded the applicant the equivalent of EUR 1,470 in
just satisfaction.
In
our opinion this level of just satisfaction was not manifestly
inadequate or unreasonable in the particular circumstances of the
case. That the acceptable amount at the national level may be lower
than the compensation usually awarded by the Court in similar cases
has to do with the fact that there is a clear difference between a
final resolution of the matter at the national level by the
appropriate authority – through the express acknowledgment that
a violation has taken place and the awarding of appropriate and
sufficient redress – and the situation in which it is the Court
which must decide on the issue in the absence of any acknowledgment
of a violation by the State (see also paragraph 139 of the Grand
Chamber judgment of 29 March 2006 in the case of Cocchiarella
v. Italy (no. 64886/01, ECHR 2006 V)).
