KUCERA v. SLOVAKIA

FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 48666/99
by Pavel KUČERA
against Slovakia

The European Court of Human Rights (Fourth Section), sitting on 4 November 2003 as a Chamber composed of

SirNicolas Bratza, President,
MrM. Pellonpää,
MrsV. Strážnická,
MrR. Maruste,
MrS. Pavlovschi,
MrL. Garlicki,
MrJ. Borrego Borrego, judges,
and Mr M. O’Boyle, Section Registrar,

Having regard to the above application lodged on 3 September 1998,

Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Pavel Kučera, is a Slovakian national, who was born in 1962 and lives in Považská Bystrica. He is represented before the Court by Mrs A. Kubovičová, a lawyer practising in Považská Bystrica. The respondent Government were represented by their Agent, Mr P. Vršanský, succeeded by Mr P. Kresák as from 1 April 2003.

A.  The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant was the director of the Police Department in the Považská Bystrica District.

According to the applicant, on 17 December 1997 at 6 a.m., several armed policemen in masks burst into his flat without the applicant’s consent. The policemen presented a police investigator’s decision to the applicant and his wife. It was dated 17 December 1997 and accused them, together with several other persons, of extortion. The investigator suspected the accused of having forced an individual, under threat of his liquidation, to transfer a limited liability company and his car to another person.

The Government maintain that the police entered the applicant’s apartment upon the applicant’s invitation and gave him the above decision of the investigator.

The applicant and his wife were subsequently brought to the Regional Office of Investigation in Žilina. They were questioned and then released.

On 19 December 1997 at 3.40 p.m. the applicant was apprehended by the police while walking on the street. His daughter, who was then five years old, witnessed the incident. The applicant’s wife was not informed of where the applicant had been taken.

On 20 December 1997 a judge of the Trenčín District Court remanded the applicant, together with several other persons, in custody as from the moment of his apprehension by the police on 19 December 1997. Reference was made to Article 67(1)(b) of the Code of Criminal Procedure. The judge found, after having examined the case file, that the alleged victim had described in detail the actions imputed to the accused persons including the threats that he would be liquidated, and found nothing to indicate that those statements were wholly unsubstantiated. The judge therefore considered the detention of the accused persons necessary with a view to preventing them from exercising further pressure on the alleged victim. The decision stated that it was taken upon a proposal of a public prosecutor filed on 19 December 1997, at 8.05 p.m.

During his transport from Žilina to Trenčín and, subsequently, to the prison in Leopoldov on 20 December 1997 the applicant was handcuffed and a hood was put on his head. No water was provided to him and the officers escorting him behaved in a rude and offensive manner.

On 27 January 1998 the Trenčín Regional Court dismissed the applicant’s complaint against the decision on his detention on remand of 20 December 1997. The Regional Court found that the actions imputed to the applicant and his co-accused had been described in detail by the alleged victim as well as several witnesses, and that both the serious character of those accusations and the need to take further evidence justified the conclusion that the accused could jeopardise the investigation. The decision stated that the proposal to remand the accused persons in custody and the judge’s decision on it had been in conformity with the relevant law.

In a letter dated 25 February 1998 the applicant requested that he should be released from detention on remand. He argued that the evidence which had been taken showed that the statements of the alleged victim, according to which the applicant had threatened him, were false. According to the Government, the request was filed with the Trenčín Regional Prosecutor’s Office on 5 March 1998. The public prosecutor refused to release the applicant and submitted his request to the Trenčín District Court on the same day.

On 12 March 1998 the Trenčín District Court dismissed the request on the ground that the evidence available did not indicate that the alleged victim’s statements were false. The judge therefore considered that the applicant’s detention was still necessary within the meaning of Article 67(1)(b) of the Code of Criminal Procedure. The decision was served on the applicant and his lawyer on 18 and 19 March 1998 respectively.

On 23 and 26 March 1998 the applicant filed a complaint. He alleged that the investigation had lasted a long time and that no direct evidence had been obtained in support of the allegations about him. The applicant also pointed out that he had been cross-examined in the presence of the alleged victim and that the latter had expressly stated that the applicant had exercised no pressure on him.

The case file was submitted to the Trenčín Regional Court on 2 April 1998. On 12 May 1998 the Trenčín Regional Court dismissed the applicant’s complaint with reference to the reasons set out in the District Court’s decision. The Regional Court further considered the applicant’s detention necessary on the ground that he had attempted, on 19 January 1998, to send secretly a letter to his wife from the prison. The decision was served on the applicant on 28 May 1998.

In a letter of 28 May 1998 the Inspection Department of the Ministry of the Interior dismissed the applicant’s complaint that the police had unlawfully entered his flat on 17 December 1997. The letter stated that nothing indicated that an offence had been committed.

On 8 June 1998 the judge to whom the case fell to be dealt with at the preliminary stage informed the president of the Trenčín District Court that she considered herself biased as she had earlier acted as the lawyer of the alleged victim and since she had had contacts with the applicant and his wife. She agreed to her being replaced by another judge pursuant to Article 30(4) of the Code of Criminal Procedure. On 18 June 1998 the judge concerned formally requested the Trenčín Regional Court that she be excluded from dealing with the case. The Regional Court granted the request on 7 July 1998.

In the meantime, on 13 June 1998, a different judge of the Trenčín District Court extended the detention of the applicant and of four other accused until 19 December 1998. As regards the applicant, the decision stated, in particular, that he had attempted to send a letter to his wife from the prison secretly and that his wife had consulted the file, on the premises of the Trenčín Regional Court, without prior consent of the public prosecutor or investigator and in the absence of the judge dealing with the case. The Regional Court concluded that a risk existed that the accused persons would influence the witnesses or their co-accused or otherwise hamper the investigation into the case.

The applicant complained that the judge who had taken the decision on 13 June 1998 had not been entitled to deal with the case as by that time no decision had been taken on the request for exclusion of the judge by whom the case fell to be examined.

On 22 September 1998 the General Prosecutor’s Office found that the decision on extension of the applicant’s detention of 13 June 1998 had been taken in accordance with Article 71(1) of the Code of Criminal Procedure. The letter stated, inter alia, that the president of the Trenčín District Court had found no reason for proceeding pursuant to Article 30(4) of the Code of Criminal Procedure and that the judge had therefore requested her exclusion on 18 June 1998. In the public prosecutor’s view, the decision on extension of the applicant’s detention on remand and the decision on exclusion of the judge concerned were independent of each other and did not affect the merits of the case.

On 26 July 1998 the Trenčín District Court dismissed the applicant’s request for release with reference to the reasons set out in the above District Court’s decisions of 20 December 1997 and 13 June 1998. The decision was taken in response to the applicant’s complaint about his detention dated 26 April 1998 and filed with the General Prosecutor’s Office. That complaint was considered as an application for release and it was submitted for a decision to the Trenčín District Court on 5 June 1998.

On 11 August 1998 the applicant filed another request for release. He claimed, with reference to the particular circumstances of the case and the statements of several witnesses, that there existed no evidence against him. In particular, the applicant pointed out that there was no indication that he had threatened the alleged victim. The applicant also submitted that the contents of the letter which he had attempted to send to his wife from the prison were exclusively personal and that it had no bearing on the case. Finally, the applicant argued that the consultation of the file by his wife had been in accordance with the relevant provisions of the Code of Criminal Procedure and that two employees of the Regional Court had been present.

The public prosecutor submitted the request to the Trenčín District Court on 28 August 1998. The District Court dismissed it on 10 September 1998. The decision was served on 21 September 1998. It stated that the case was complex and that the evidence available indicated that the alleged victim’s fear that the applicant could influence the witnesses in the event of his release was justified.

On 25 and 29 September 1998 the applicant filed a complaint. He alleged that the investigation into the facts of the case concerning him had been terminated, that the witnesses had been heard and that there was no indication that he had attempted to influence the witnesses or his co-accused.

On 5 November 1998 the Trenčín Regional Court dismissed the applicant’s complaint against the District Court’s decision of 10 September 1998. The Regional Court held that the evidence taken did not weaken the suspicion that the applicant had committed the offence of which he was accused. The serious nature of the offence in question and the fact that it was likely to have been committed by an organised group justified the conclusion that the applicant’s continued detention was necessary within the meaning of Article 67(1)(b) of the Code of Criminal Procedure. The case file was returned to the District Court on 22 December 1998 and the Regional Court’s decision of 5 November 1998 was served on the applicant on 15 February 1999.

On 16 November 1998 the applicant requested the Regional Prosecutor’s Office in Trenčín that the charges against him and his wife be dealt with in a separate set of proceedings pursuant to Article 23(1) of the Code of Criminal Procedure. He explained that several other charges against the co-accused were being dealt with in the proceedings. The applicant argued that, as a result, there had been no progress in the investigation in respect of the accusation brought against him for several months. He expressed the view that there existed no further reason for his detention as the investigation into the relevant facts of the case against him had ended in October 1998.

On 4 December 1998 the Trenčín District Court dismissed the applicant’s request for release of 23 November 1998. After having examined the case file, the judge found that the reasons for the applicant’s detention on remand, as set out in the above decisions, were still relevant. The decision stated that the offences in question were serious and that there was a suspicion that they had been committed in the context of organised crime. It was served on 15 December 1998.

On 9 February 1999 the Trenčín Regional Court dismissed the applicant’s complaint against this decision which had been filed on 18 December 1998.

In the meantime, on 7 December 1998, the Trenčín District Court extended the detention of the applicant and of four other accused until 9 June 1999. The decision stated that the case was complex and that several of the persons involved had been accused of further offences. Furthermore, co-operation with German authorities was necessary with a view to establishing the relevant facts. In the court’s view, the risk still existed that the accused could influence the witnesses or otherwise hamper the investigation into the case. The decision contained no particular reasons as regards the need for further detention of the applicant.

On 16 February 1999 the applicant filed another request for release. The public prosecutor submitted it to the Trenčín District Court on 3 March 1999. The District Court dismissed the complaint on 16 March 1999.

On 15 April 1999 the applicant filed a new application for release. He argued that there was no indication in the case file that he had been involved in the offences in question.

The public prosecutor submitted the case file to the Trenčín District Court on 16 April 1999. On 20 April 1999 the District Court dismissed the request on the ground that the applicant’s further detention was necessary within the meaning of Article 67(1)(b) of the Code of Criminal Procedure.

On 26 April 1999 the applicant filed a complaint. He argued that the investigation into the case had been terminated. The case file was submitted to the Trenčín Regional Court on 20 May 1999. The Regional Court dismissed the applicant’s complaint on 10 June 1999.

In March and on 5 May 1999 the applicant was able to consult the contents of the case file. He noted that the public prosecutor’s proposal to remand him and several other accused in custody of 19 December 1997 was not included in it. Following the applicant’s complaint the prosecutor’s proposal was added to the case file on 10 May 1999.

On 9 June 1999 the public prosecutor indicted the applicant, his wife and seven other persons before the Banská Bystrica Regional Court.

The applicant was released from detention on remand on 19 December 1999. In the course of his detention, the applicant was not allowed to meet his wife until 29 January 1999.

On 28 January 2000 the Banská Bystrica Regional Court acquitted the applicant and his wife, pursuant to Article 226(c) of the Code of Criminal Procedure, on the ground that it had not been shown that they had committed extortion. The court further convicted seven other accused.

On 7 February 2001 the Supreme Court quashed the relevant part of the Banská Bystrica Regional Court’s judgment of 28 January 2000 and acquitted the applicant and his wife, pursuant to Article 226(b) of the Code of  Criminal Procedure, on the grounds that their action did not constitute an offence.

B.  Relevant domestic law and practice

1. The Code of Criminal Procedure

Article 23(1) provides that, with a view to accelerating the proceedings or for other important reasons, proceedings concerning a particular offence or one of the accused persons may be conducted separately.

Under Article 30(4), where a judge whose impartiality is in question agrees to be replaced, the president of the court concerned can replace him or her by a different judge.

Article 31(1) provides, inter alia, that until the competent authority decides on a request for his or her exclusion, the person concerned can only take such action in the case as cannot be delayed. Under paragraph 2 of Article 31, a panel of judges of the superior court decides whether a judge is biased.

Pursuant to Article 67(1)(b), an accused can only be remanded in custody when there are concrete grounds to believe that he or she will influence the witnesses or the co-accused or otherwise hamper the investigation into the relevant facts of the case.

Article 71(1) provides that a single judge can, upon the proposal of a public prosecutor, extend the detention on remand of an accused person for a period of up to one year in a case when the pre-trial detention will exceed six months and the release of the accused would jeopardise the purpose of the criminal proceedings.

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 shall submit it immediately to the court. The decision on an application for release shall be taken without delay. When the application is dismissed, the accused may only renew it fourteen days after the decision became final unless he or she invokes other reasons for release.

2. The Criminal Code

Article 238(1) and (3) provides that a person who, without justification, enters the domestic premises of another person commits the offence of breach of respect for one’s home. A person who does so with the use of force and of a weapon or acts at least with two other persons, is liable to be punished by a prison sentence of one to five years.

3. The Civil Code and the domestic courts’ practice

The right to protection of a person’s dignity, honour, reputation and good name is guaranteed by Article 11 et seq. of the Civil Code.

According to Article 11, any natural person has the right to protection of his or her personality, in particular of his or her life and health, civil and human dignity, privacy, name and personal characteristics.

Pursuant to Article 13(1), any natural person has the right to request that an unjustified infringement of his or her personal rights should be stopped and the consequences of such infringement eliminated, and to obtain appropriate satisfaction.

Article 13(2) provides that in cases when the satisfaction obtained under Article 13(1) is insufficient, in particular because a person’s dignity and position in society has been considerably diminished, the injured person is entitled to compensation for non-pecuniary damage.

Under the relevant case-law, Article 11 of the Civil Code has been interpreted as protecting exclusively those personal rights of citizens which influence the development of their personality and are closely linked thereto. This criterion is decisive when determining which rights fall under Article 11.

4. The Constitution and the Constitutional Court’s practice

Article 21(1) of the Constitution provides that no one may enter a person’s home without the consent of that person.

Paragraph 2 of Article 21 specifies conditions under which the search of a person’s home can be authorised.

Under paragraph 3 of Article 21, other interferences with the right to respect for one’s home are permissible only where it is necessary in a democratic society for the protection of life, health or property of persons, for the protection of rights and freedoms of others or for the protection of public safety.

In its findings no. I ÚS 13/00-85 and no. I. ÚS 4/02-51 delivered respectively on 10 July 2001 and on 9 July 2003 the Constitutional Court found a violation of the plaintiffs’ constitutional right to respect for their home. It did not require that the plaintiffs should file an action for protection of their personal rights under Article 11 et seq. of the Civil Code with a view to exhausting the other remedies available prior to initiating proceedings before it.

5. The Detention on Remand Act of 1993

Section 10 of the Detention on Remand Act of 1993 (Zákon o výkone väzby), as in force at the relevant time, provides, inter alia, that a person remanded in custody for reasons set out in Article 67(1)(b) of the Code of Criminal Procedure may receive visits only with prior written consent of the authority dealing with the case.

6. The State Liability Act of 1969

Section 1(1) of Act No. 58/1969 on the liability of the State for damage caused by a State organ’s decision or by its erroneous official action (Zákon o zodpovednosti za škodu spôsobenú rozhodnutím orgánu štátu alebo jeho nesprávnym úradným postupom - “the State Liability Act”) provides that the State is liable for damage caused by unlawful decisions delivered by a public authority in the context of, inter alia, civil proceedings.

Section 18(1) renders the State liable for damage caused in the context of carrying out functions vested in public authorities which results from erroneous official actions of persons entrusted with the exercise of these functions. A claim for compensation can be granted when the plaintiff shows that he or she suffered damage as a result of an erroneous action of a public authority, quantifies its amount, and shows that there is a causal link between the damage and the erroneous action in question.

7. Regulation No. 32/1965

Regulation No. 32/1965 governs compensation for damage caused to a person’s health. Section 2 provides for compensation for pain resulting from damage to a person’s health, subsequent medical treatment and the elimination of the effects of damage to health. The amount of the compensation is to be determined in accordance with the principles and rates attached to the regulation.

Under paragraph 2 of Section 2, compensation for pain is not payable in cases of simple psychic reactions affecting a person’s health which are of a passing character or for short-term changes in a person’s health which do not require medical treatment or which cannot be established in an objective manner.

8. Practice under the State Liability Act of 1969

Under the domestic courts’ practice, the State Liability Act of 1969 does not allow for compensation for non-pecuniary damage unless it is related to deterioration of a person’s health (for further details see Havala v. Slovakia (dec.), no. 47804/99, 13 September 2001, unreported). 

In proceedings no. 4C 109/97 before the Šaľa District Court the plaintiff claimed compensation for non-pecuniary damage from the Ministry of Justice on the ground that he was acquitted following the re-opening of proceedings leading to his conviction of an offence. In its judgment of 29 October 1998 the District Court established, on the basis of the plaintiff’s submissions, that his claim was based on Article 11 et seq. of the Civil Code which provides for protection of a person’s good name and reputation as well as of other personal rights. The District Court dismissed the action on the ground that the plaintiff should have claimed compensation under the State Liability Act of 1969.

In decision no. 8 Co 109/99 of 23 March 2000 the Nitra Regional Court quashed the above Šaľa District Court’s judgment. The appellate court found, inter alia, that the subject-matter of the proceedings and the legal basis for the plaintiff’s claim remained unclear. It instructed the first instance court to have the action completed by the plaintiff, to take any evidence which may be necessary and to deliver a new decision with reasons on the case.

COMPLAINTS

1. The applicant complained that his detention on remand had been unjustified, that it had lasted an unreasonably long time and that it had been unlawful as (i) the Trenčín District Court had remanded him in custody without having before it a proposal by a public prosecutor and (ii) the decision on its extension of 13 June 1998 had not been delivered by a judge to whom the case fell to be examined in accordance with the relevant regulations. The applicant also complained that his requests for release from detention on remand of 25 February 1998, of 11 August 1998 and of 23 November 1998 had not been decided upon speedily. He invoked Article 5 § 2 of the Convention.

2. The applicant complained that the criminal proceedings against him had been unfair and that their length was excessive. He relied on Article 6 §§ 1 and 3 (d) and on Article 13 of the Convention.

3. The applicant alleged a violation of Article 8 § 1 of the Convention in that the police had unlawfully entered his apartment on 17 December 1997.

4. Finally, the applicant alleged a violation of Article 3 in that he had been subjected to inhuman treatment during his apprehension by the police and transfer to the prison in Leopoldov, and that he had not been allowed to meet his wife during his detention on remand.

THE LAW

1. The applicant complained under Article 5 § 2 of the Convention that his detention on remand had been unlawful and unjustified and that it had lasted an unreasonably long time. The applicant also complained that his requests for release from detention on remand of 25 February 1998, of 11 August 1998 and of 23 November 1998 had not been decided upon speedily. The Court has examined these complaints under Article 5 §§ 1, 3 and 4 of the Convention which provide as follows:

“1.  Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ...

(c)  the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

3.  Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

4.  Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

a) The Government maintained that the applicant had failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention. In their view, the applicant could have obtained redress by means of an action for damages under Section 18 of the State Liability Act of 1969. The Government submitted, with reference to the judgment of the Šaľa District Court delivered in proceedings no. 4C 109/97 on 29 October 1998 and to decision no. 8 Co 109/99 delivered by the Nitra Regional Court on 23 March 2000 (see “Relevant domestic law and practice” above), that the applicant could have obtained compensation for non-pecuniary damage and thus appropriate redress under that Act. In addition, the applicant could have also obtained redress by means of an action for compensation under Article 11 et seq. of the Civil Code.

The applicant disagreed.

As regards the compensatory remedy under the State Liability Act of 1969, the Court has earlier not found it established that the possibility of obtaining appropriate redress in respect of the alleged breaches of Article 5 §§ 1 and 4 of the Convention by means of that remedy was sufficiently certain in practice or offered reasonable prospects of success as required by the relevant case-law. It noted, in particular, that compensation for damage of a non-pecuniary nature is excluded except in cases where damage to a person’s health was caused (see Tám v. Slovakia (dec.), no. 50213/99, 1 July 2003 with further references). The domestic courts’ practice on which the Government relied in their observations on the present case does not permit a different conclusion to be reached and does not support their submission that a claim for damages under the State Liability Act of 1969 was an effective remedy which the applicant was required to exhaust in respect of his complaints under Article 5 §§ 1 and 4 of the Convention.

The Court further recalls that the right to be tried within a reasonable time or released during the proceedings is not the same as the right to receive compensation for detention. Paragraph 3 of Article 5 of the Convention covers the former and paragraph 5 of Article 5 the latter (see Yağcı and Sargin v. Turkey, judgment of 8 June 1995, Series A no. 319-A, § 44; Tomasi v. France, judgment of 28 July 1992, Series A no. 241-A, § 79 and Leperlier v. France, No. 13091/87, Commission decision of 1 October 1990, with further reference).

Finally, the Court finds that an action under Article 11 et seq. of the Civil Code for protection of the applicant’s personal rights also did not constitute a remedy capable of directly redressing the impugned state of affairs as required by the Court’s case-law. Accordingly, the Government’s objection relating to non-exhaustion of domestic remedies must be dismissed.

b) The applicant complained that the judge who had remanded him in custody had done so without a proposal of a public prosecutor.

The Government maintained that the decision to remand the applicant in custody had been delivered upon a proposal filed by a public prosecutor as required by the Code of Criminal Procedure. The proposal was omitted from the case file by mistake. That shortcoming, which could not affect the lawfulness of the applicant’s detention was remedied on 10 May 1999.

The applicant disagreed and alleged that the document which had been included in the file on 10 May 1999 had been forged.

The Court notes that the District Court’s decision of 20 December 1997 explicitly indicates that it was taken upon a proposal of a public prosecutor which had been filed with the judge on 19 December 1997 at 8.05 p.m. This decision was subsequently reviewed by the Trenčín Regional Court which found that the proposal to remand the accused persons in custody and the judge’s decision on it had been in conformity with the relevant law.

In these circumstances, and since the applicant failed to substantiate his allegation that the public prosecutor’s proposal of 19 December 1997 had been forged, the Court accepts the Government’s argument that the failure to include the proposal in the case-file was an administrative omission which did not affect the lawfulness of his detention on remand.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

c) The applicant complained that his detention had been unlawful as the decision on its extension of 13 June 1998 had been taken by a judge who had not been entitled to deal with the case at that time.

The Government contended that the judge appointed to deal with the case had informed the president of the District Court, on 8 June 1998, that she considered herself biased as she had had close personal contacts with the applicant and his wife. The judge further agreed that the case be assigned to a different judge. In the Government’s view, the judge who delivered the decision of 13 June 1998 had become entitled to deal with the case as from 8 June 1998. It was irrelevant that the Regional Court only formally decided on the exclusion of the judge originally appointed to deal with the case on 7 July 1998.

In support of their argument the Government pointed out that the judge who had requested her exclusion for bias had, on 18 June 1998, dismissed an application for release filed by another accused. On 7 July 1998 the Trenčín Regional Court found that the judge was biased and therefore quashed the decision delivered by her on 18 June 1998.

In any event, the shortcoming referred to by the applicant could not affect the lawfulness of his detention as the decision in question was delivered by a court which had jurisdiction to decide on the issue and the judge who took that decision had been assigned to that court and was authorised to deal with similar issues.  

The applicant argued, with reference to Article 31(1) of the Code of Criminal Procedure, that the judge who had considered herself biased should not have decided on the extension of his detention on 13 June 1998 as (i) the president of the District Court had not accepted to replace her by another judge pursuant to Article 30(4) of the Code of Criminal Procedure and (ii) at that time no formal decision had been taken on her request for exclusion. The applicant further pointed out that the same judge had nevertheless decided on the detention of another accused on 15 June 1998.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

d) To the extent that the applicant alleged, in substance, that his right under Article 5 § 3 of the Convention had been violated the Government argued that the length of the applicant’s detention on remand was not excessive. The case was complex as it concerned particularly serious offences, involved several accused persons and required the co-operation of foreign authorities. The domestic courts duly examined whether the applicant’s detention was necessary and the reasons for their decisions were sufficient and relevant.

The applicant maintained that the reasons for his protracted detention had been neither relevant nor sufficient, in particular as regards its second half when the investigation into the offence of which he was accused had ended.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

e) The applicant further complained that his applications for release of 25 February 1998, of 11 August 1998 and of 23 November 1998 had not been decided upon speedily.

The Government maintained that the length of examination of the applicant’s requests for release was not contrary to Article 5 § 4 of the Convention. They submitted that the case was complex and that the courts dealing with the applicant’s requests had to examine the whole case file on each occasion.

The applicant pointed out that there had been unjustified delays in deciding, in particular, on his complaints against the District Court’s decisions to dismiss his applications for release and in the service of the relevant decisions.

The Court notes that the applicant’s request for release of 25 February 1998 was decided upon by the Trenčín District Court on 12 March 1998. The decision was served on the applicant and his lawyer on 18 and 19 March 1998 respectively. On 23 and 26 March 1998 the applicant filed a complaint on which the Trenčín Regional Court decided on 12 May 1998. The decision was served on the applicant on 28 May 1998.

As to the applicant’s request for release of 11 August 1998, it was dismissed by the Trenčín District Court on 10 September 1998. The decision was served on 21 September 1998, and the applicant filed a complaint against it on 25 and 29 September 1998. The second instance court dismissed the complaint on 5 November 1998. The decision was served on the applicant on 15 February 1999.

The applicant’s request for release of 23 November 1998 was dismissed by the Trenčín District Court on 4 December 1998. The decision was served on 15 December 1998 and the applicant challenged it on 18 December 1998. The Trenčín Regional Court dismissed the applicant’s complaint against the first instance decision on 9 February 1999.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

2. The applicant complained that the criminal proceedings against him had been unfair and that their length was excessive. He relied on Article 6 §§ 1 and 3 (d) and on Article 13 of the Convention which, in so far as relevant, provide as follows:

Article 6

“1.  In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal ...

3.  Everyone charged with a criminal offence has the following minimum rights: ...

(d)  to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him; ...”

Article 13

“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) To the extent that the applicant complained that the criminal proceedings against him had been unfair, the Court notes that the Supreme Court, in its decision of 7 February 2001, acquitted the applicant and expressly stated that he had committed no offence.

In these circumstances, the Court considers that the applicant can no longer claim to be a victim of a violation of his right to a fair trial under Article 6 §§ 1 and 3 (d) of the Convention.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

b) The applicant further complained that the length of the proceedings was excessive.

The period to be taken into consideration lasted from 17 December 1997 to 7 February 2001, that is three years and more than one month. During this period the case was dealt with by investigating and prosecuting authorities and, after the indictment had been filed, by courts at two levels of jurisdiction.

Making an overall assessment in the light of the relevant criteria (the complexity of the case, the applicant’s conduct and that of the competent authorities), the Court considers that the length of the proceedings complained of was not excessive.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

c) The applicant complained that he had no effective remedy at his disposal in respect of the above complaints under Article 6.

According to the Court’s case-law, Article 13 applies only where an individual has an “arguable claim” to be the victim of a violation of a Convention right (see the Boyle and Rice v. the United Kingdom judgment of 27 April 1988, Series A no. 131, § 52).

The Court has above found that the applicant’s complaints under Articles 6 are inadmissible as being manifestly ill-founded. For similar reasons, the applicant does not have an “arguable claim” in this respect and Article 13 is therefore inapplicable to his case.

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

3. The applicant complained that the police had unlawfully entered his apartment on 17 December 1997 and that he had not been able to meet his wife during thirteen months while he was detained on remand. The Court examined both complaints under Article 8 § 1 of the Convention which provides as follows:

“1.  Everyone has the right to respect for his private and family life, his home and his correspondence.

2.  There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

a) The Government objected that the applicant had failed to exhaust domestic remedies as he had not sought redress by means of an action under Article 11 et seq. of the Civil Code.

The applicant argued that he had exhausted all available remedies.

The Court notes that under Section 10 of the Detention on Remand Act of 1993 persons detained on remand pursuant to Article 67(1)(b) of the Code of Criminal Procedure can receive visits only with the prior written consent of the authority dealing with the case. It is not persuaded that a civil court, proceeding under Article 11 et seq. of the Civil Code, was in a position to review and assess actions taken, in the context of criminal proceedings, by the prosecuting authorities in the exercise of their discretionary power under the relevant law. Furthermore, an action under Article 11 et seq. of the Code of Civil Procedure could not directly redress the state of affairs complained of, namely the refusal to allow the applicant to meet his wife.

As to the alleged violation of the applicant’s right to respect for his home as a result of the entry by several armed policemen on 17 December 1997, the Government have not shown and the information available does not permit the conclusion that the protection provided for in Article 11 et seq. of the Civil Code extends to cases of trespass on domestic premises affecting the applicant’s home as such, rather than any of his personal rights within the meaning of that provision. In this respect the Court also notes that, in cases in which it found a violation of the constitutional right to respect for one’s home, the Constitutional Court did not require that the plaintiffs should first have had recourse to the remedy invoked by the Government. The Court notes in this context that at the relevant time a petition to the Constitutional Court was not capable of providing adequate redress to successful plaintiffs as its findings on petitions under Article 130(3) of the Constitution were of a purely declaratory nature (for further details see, for example, Chovančík v. Slovakia, no. 54996/00, § 14, 17 June 2003). Finally, the acts of trespass are proscribed in the domestic law of the respondent State, and offenders are exposed to criminal sanctions. The applicant filed a criminal complaint about the action of the police which the Inspection Department dismissed as being unsubstantiated. In these circumstances, the Government’s objection relating to non-exhaustion of domestic remedies must be dismissed.

b) As regards the alleged violation of the applicant’s right to respect for his home, the Government argued that the applicant had voluntarily let the policemen enter his flat. They concluded that this complaint was manifestly ill-founded.

The applicant refuted the Government’s submissions and maintained that the policemen who had entered his flat without his consent had worn masks and had aimed submachine guns at his head.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

c) As regards the applicant’s complaint that he had been prevented from meeting his wife during his detention on remand, the Government argued, with reference to Section 10 of the Detention on Remand Act of 1993, that the interference had been lawful. It aimed at preventing the applicant from hampering the investigation. The interference was necessary in a democratic society as both the applicant and his wife had been accused of a particularly serious offence in the context of organised crime and since the applicant had tried to secretly send a letter to his wife from prison.

The applicant contended that the refusal to allow him to meet his wife for thirteen months had no justification.

The Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.

4. Finally, the applicant complained that he had been subjected to inhuman treatment during his apprehension by the police and transfer to the prison in Leopoldov, and that he had not been allowed to meet his wife for more than a year while being detained on remand. He alleged a violation of Article 3 which provides:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

The Court does not consider it necessary to examine whether the applicant exhausted domestic remedies in respect of these complaints as, in any event, the documents submitted do not indicate that the treatment complained of attained a degree of gravity sufficient to conclude that the applicant’s right under Article 3 was thereby infringed. 

It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Declares admissible, without prejudging the merits, the applicant’s complaints (i) under Article 5 § 1 that the judge who extended his detention on remand on 13 June 1998 lacked power to do so; (ii) under Article 5 § 3 of the Convention concerning the length of his detention on remand; (iii) under Article 5 § 4 of the Convention concerning the speediness of the review of his applications for release filed on 25 February 1998, on 11 August 1998 and on 23 November 1998, and (iv) under Article 8 of the Convention concerning both the alleged unlawful entry of the applicant’s apartment by the police and the refusal to allow him to meet his wife during his detention on remand;

Declares the remainder of the application inadmissible.

Michael O’BoyleNicolas Bratza
RegistrarPresident

Full & Egal Universal Law Academy