PAVLETIC v. SLOVAKIA

FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 39359/98
by Nenad PAVLETIĆ
against Slovakia

The European Court of Human Rights (Fourth Section), sitting on 13 May 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 with the European Commission of Human Rights on 25 July 1997,

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 Nenad Pavletić, is a Croatian national, who was born in 1962 and has permanent address in Split (Croatia). The respondent Government were represented by Mr P. Vršanský, their Agent.

A.  The circumstances of the case

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

On 26 January 1995 at 10 a.m. the applicant was brought to a police station in Banská Bystrica (Slovakia). He was heard by the police and subsequently he was brought before a police investigator. The latter decided to apprehend the applicant at 6 p.m. on the same day on the ground that he was accused, together with another person, of trafficking in women. On the same day the applicant chose a lawyer to assist him.

The applicant’s detention on remand

On 27 January 1995 at 9.45 a.m. the Banská Bystrica District Prosecutor requested the Banská Bystrica District Court that the applicant and his co‑accused be detained on remand. The applicant was subsequently brought before a judge who remanded him in custody at 1 p.m. on 27 January 1995 with effect from 10 a.m. of 26 January 1995. The other accused was also remanded in custody. The decision stated that the applicant had brought two women from Slovakia to Spain and that he had forced one of them to carry out prostitution under the threat of shooting her. The judge considered the detention necessary with a view to preventing the accused persons from absconding and from committing further offences within the meaning of Article 67 § 1 (a) and (c) of the Code of Criminal Procedure (see “Relevant domestic law” below).

On 31 January 1995 the applicant challenged this decision through his lawyer. He alleged, inter alia, that he had not been brought before a judge within twenty-four hours after his arrest as required by Article 77 § 1 of the Code of Criminal Procedure.

On 15 February 1995 the Banská Bystrica Regional Court quashed the District Court’s decision of 27 January 1995 on the ground that the reasons for it were not sufficient. The Regional Court noted that the applicant is a foreign national without a permanent address in Slovakia. It therefore considered his detention necessary within the meaning of Article 67 § 1 (a) of the Code of Criminal Procedure and remanded him in custody as from 26 January 1995 10 a.m.

The Regional Court released the other accused, a Slovakian national, noting that he had a permanent address in Banská Bystrica where he lived together with his family.

Finally, the Regional Court found that by submitting his proposal to remand the accused persons in custody to the District Court on 27 January 1995 at 9.45 a.m. the public prosecutor had complied with the time-limit laid down in Article 77 § 1 of the Code of Criminal Procedure. As from that moment the accused persons had been at the disposal of the District Court. The Regional Court considered irrelevant that the judge heard them more than twenty-four hours after their arrest.

The applicant was provided with a translation of the aforesaid two decisions on 16 May 1995.

On 21 July 1995 a judge of the Banská Bystrica District Court extended the applicant’s detention on remand until 26 August 1995 on the ground that the public prosecutor had decided to re-examine a witness who was staying abroad. The court considered that there was a risk of the applicant’s absconding in case of his release.

On 11 August 1995 the Banská Bystrica District Court extended, at the public prosecutor’s request, the applicant’s detention on remand until 26 December 1995. The decision stated that a witness staying abroad could not be re-examined and that it was also necessary to establish whether the accused persons had tried to benefit from the prostitution of other persons. The court considered the applicant’s detention necessary within the meaning of Article 67 § 1 (a) of the Code of Criminal Procedure. Reference was made to the fact that the applicant was a foreign national and that he did not have permanent residence in Slovakia.

On 15 December 1995 the Banská Bystrica District Court extended the applicant’s detention on remand until 25 January 1996. The decision stated that the lawyer appointed to represent the applicant on 20 November 1995 needed more time to study the case file. Furthermore, the lawyer was ill and because of her absence the applicant had refused, on 6 December 1995, to be acquainted with the outcome of the investigation.

On 19 April 1996 the applicant lodged a constitutional petition. He alleged that his detention was unlawful as he had not been transferred before a judge within the time-limit laid down in Article 77 § 1 of the Code of Criminal Procedure. He further alleged that he was discriminated against as the Regional Court had refused to release him with reference to his nationality and to the fact that he had no permanent residence in Slovakia.

On 22 January 1997 the Supreme Court refused to grant a further extension of the applicant’s detention on remand. It found that the requirements laid down in Article 71 § 2 of the Code of Criminal Procedure were not met. In particular, the Supreme Court noted that the case was not complex and that the period of almost one year during which the case had been pending at the preliminary stage was excessive given the scope of evidence that had to be taken. Furthermore, the first instance court had scheduled the main hearing for 30 September 1996, that is more than eight months after the case had been submitted to it on 22 January 1996. The Supreme Court found no relevant reasons for such delays. The decision stated that the applicant’s two stays in hospital had not been of long duration and that they had not prevented the main hearing from being carried out. The Supreme Court’s decision was transmitted to the Regional Court on 7 February 1997.

On 23 January 1997 the Supreme Court ordered the prison administration to release the applicant. The applicant was released on 26 January 1997.

On 26 March 1997 the Constitutional Court declared manifestly ill‑founded the applicant’s petition of 19 April 1996. The decision stated, with reference to the criminal file, that the public prosecutor had respected the time-limit laid down in Article 71 (1) of the Code of Criminal Procedure in that he had submitted the proposal that the applicant be remanded to the judge on 27 January 1995 at 9.45 a.m., that is less than twenty-four hours after the applicant’s apprehension. The Constitutional Court shared the Regional Court’s view according to which the applicant’s detention was necessary within the meaning of Article 67 (1) (a) of the Code of Criminal Procedure as there existed a risk that he would abscond in case of his release.

Applications for release lodged by the applicant

On 16 May 1995 the applicant lodged an application for release. It was dismissed by the Banská Bystrica District Court on 31 May 1995. The applicant filed a complaint. It was dismissed by the Banská Bystrica Regional Court on 12 July 1995. The minutes indicate that the Regional Court examined the applicant’s complaint in camera in the presence of J.M., a public prosecutor who proposed that the applicant’s complaint be dismissed. At a later stage of the proceedings J.M. presided over the Regional Court chamber which delivered the judgment of 13 June 1997 (see “The criminal proceedings against the applicant” below).

On 16 August 1995 the applicant lodged another application for release. He alleged that there had been undue delays in the proceedings and that the fear that he would abscond in case of his release was unsubstantiated. The applicant further complained that he was discriminated against on the ground of his nationality.

The Banská Bystrica District Court dismissed the request on 20 September 1995. The applicant filed a complaint which was dismissed by the Banská Bystrica Regional Court on 18 October 1995. The courts considered it probable that the applicant would leave Slovakia in case of his release. In this respect the applicant’s position was different from that of his co-accused who was a Slovakian national.

On 10 January 1996 the applicant requested the public prosecutor to release him. In a letter of 19 January 1996 the Banská Bystrica Regional Prosecutor stated that he had dismissed the application for release and that he would transmit it to the Banská Bystrica Regional Court together with the indictment. The Regional Court did not decide on the applicant’s request.

The criminal proceedings against the applicant

On 25 April 1995 the police investigator accused the applicant of blackmail in addition to the charge of trafficking in women. The applicant, who was assisted by a lawyer, was provided with a translation of the supplementary accusation on 10 May 1995. On 15 May 1995 the Banská Bystrica District Prosecutor dismissed his complaint against the investigator’s decision.

On 12 October 1995 the police investigator dismissed the applicant’s request for further witnesses to be heard with a view to establishing, in particular, the relevant facts relating to the stay of the two Slovakian women in Spain. On 21 November 1995 the Banská Bystrica Regional Prosecutor dismissed the applicant’s complaint against this decision. Both authorities considered that the taking of further evidence was superflous.

On 18 October 1995 the applicant withdrew the authority of the lawyer who had represented him until then. At the same time he requested the court to appoint a lawyer ex officio. On 20 November 1995 the Banská Bystrica District Court appointed another lawyer to assist the applicant ex officio.

On 19 December 1995 and on 10 January 1996 the applicant was acquainted with the outcome of the investigation. On the latter date he requested that further evidence be included in the case file. The police investigator dismissed the request on 11 January 1996.

On 17 January 1996 the applicant requested that the authority of the lawyer appointed on 20 November 1995 be withdrawn. He further asked for a time-limit to be set during which he could appoint a lawyer of his own choice. The applicant received no reply.

On 22 January 1996 the Banská Bystrica Regional Prosecutor indicted the applicant for trafficking in women and blackmail before the Banská Bystrica Regional Court.

After this date the applicant was twice treated as in-patient in a hospital for prisoners in Trenčín.

On 2 February 1996 the Banská Bystrica Regional Prosecutor informed the Regional Court that the applicant had challenged the interpreter. The letter further stated that the interpreter concerned considered herself biased as the applicant’s submissions in her respect were insulting.

The first hearing before the Regional Court was held on 30 September 1996. The applicant challenged the presiding judge I.B. He stated that the judge discriminated against foreigners and that he had not allowed that a part of the applicant’s statement be recorded in Croatian. The case was adjourned.

On 4 December 1996 the Supreme Court found that the presiding judge of the Regional Court was not biased. It held that the applicant had failed to substantiate his allegations and that there was no information in the case file which would indicate that the Regional Court judge lacked impartiality.

On 26 May 1997 the applicant asked the Regional Court to hear, at the main hearing scheduled for 12 and 13 June 1997, two Spanish nationals about the circumstances of his stay in Spain during the relevant period.

On 13 June 1997 the Banská Bystrica Regional Court convicted the applicant of trafficking in women and sentenced him to three years’ imprisonment. It further ordered the applicant’s expulsion from Slovakia. The Regional Court did not uphold the public prosecutor’s view that the applicant had also committed blackmail.

The court established that, on 13 January 1995, the applicant had brought two women who were sisters from Slovakia to Spain under the false pretext of offering them a job as tourist guides. He threatened them with shooting, took away their passports and plane tickets and forced one of them to stay at night in a club where prostitution was carried out. On 17 January 1995 the applicant left Spain. On 25 January 1995 the women escaped and returned to Slovakia.

The court heard one of the women concerned. As the other woman was staying at an unknown address abroad, it read out the statements made by her at the preliminary stage. In the Regional Court’s view, the detailed statements of the two witnesses corresponded with each other. It therefore found unreliable written statements by two Spanish nationals submitted by the applicant according to which the two women had left the applicant upon their arrival in Spain. The Regional Court heard nine other witnesses with a view to establishing the circumstances under which the two women had left Slovakia for Spain and returned therefrom.

Both at the preliminary stage and in the proceedings before the Regional Court the applicant and his co-accused availed themselves of their right to remain silent. In its judgment the Regional Court noted, in particular, that the applicant did not challenge the relevant part of the statements of the two women and that at the main hearing he restricted himself to pointing out that he was under no duty to make any comments in that respect.

The court chamber was presided over by judge J.M. who had participated as a public prosecutor, on 12 July 1995, in the examination by the Banská Bystrica Regional Court of the applicant’s complaint against Banská Bystrica District Court’s decision of 31 May 1995 concerning the applicant’s request for release.

Upon the delivery of the Regional Court’s judgment the applicant orally appealed. Subsequently he left Slovakia. The Slovakian authorities were informed that the applicant had not stayed at his address in Croatia and that an international arrest warrant had been issued against him in Croatia on the ground that he was to serve a prison sentence which had been imposed in 1995.

As the applicant’s whereabouts were unknown the public prosecutor proposed, on 24 November 1997, that the case be proceeded with in his absence.

On 19 December 1997 the applicant’s lawyer filed an appeal with reasons. It stated, in particular, that the Regional Court had disregarded the applicant’s objection that the two women in question had changed their statements and that, accordingly, they were not reliable. In the appeal the applicant’s lawyer further complained that the Regional Court had failed to hear two witnesses from Spain and that it had not paid due attention to the written statements submitted by them. Finally, the applicant objected through his lawyer that the Regional Court had not heard one of the women concerned in person, and that her statement had only been read out at the hearing.

On 23 April 1998 the Supreme Court dismissed the appeal. It decided at a public hearing in the applicant’s absence as he was hiding at an unknown place.

The Supreme Court held that the Regional Court had established all relevant facts and had assessed them in accordance with the law while respecting the applicant’s right of defence. In particular, the statements of the two women concerned were fully supported by statements of other witnesses and the other evidence taken by the Regional Court. As to the applicant’s objection that one of the women had not been heard at the main hearing before the Regional Court, the Supreme Court noted that she had been repeatedly heard in the course of the preliminary proceedings. The Regional Court had proceeded in accordance with Article 211 (2) (a) of the Code of Criminal Procedure as the witness concerned lived abroad at an unknown address. Furthermore, the statement of that witness was not the only piece of direct evidence against the applicant since her statement coincided in full with the statement of her sister who had been heard by the Regional Court.

The Supreme Court further noted that the above written statements by two Spanish nationals according to which the women concerned had left the applicant upon their arrival in Spain were contrary to the statements of the two women as well as to statements by the applicant’s co-accused and his former employee. For that reason, the evidence submitted by the Spanish nationals was not reliable and the refusal to hear those witnesses had not infringed the applicant’s rights.

B.  Relevant domestic law and practice

The Code of Criminal Procedure

The following provisions of the Code of Criminal Procedure are relevant in the present case.

Under Article 33 (1), an accused person has the right, inter alia, to choose a lawyer to defend him or her in the proceedings.

Article 37 (2) provides that the accused person can appoint a lawyer of his or her own choice to represent him or her instead of the lawyer who was appointed ex officio. In accordance with the domestic practice, in such a case the authority of the lawyer appointed to represent the accused ex officio shall be terminated.

Pursuant to Article 38 § 1, in cases when the representation of an accused person by a lawyer is compulsory, the court shall set a time-limit for the appointment of a lawyer by the accused person. When the latter fails to choose a lawyer within the time-limit, the court shall appoint a lawyer ex officio without delay.

In accordance with Article 67 § 1 (a), an accused can only be remanded in custody when there are reasonable grounds for believing that he or she would abscond or hide in order to avoid prosecution or punishment, especially when he or she has no permanent address.

Article 67 § 1 (c) provides for detention on remand of an accused person when there are reasonable grounds for believing that he or she would commit further offences or accomplish an attempted offence.

Under Article 71 § 2, the maximum length of a person’s detention on remand should not exceed two years. The Supreme Court may extend it by another year when the criminal proceedings could not be concluded, because of the complexity of the case or for other serious reason, within the two years’ period provided that the release of the accused person would jeopardise the 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 court shall rule on such an application without delay. In the event that the application is dismissed, the accused may renew it fourteen days after the decision became final unless he or she invokes other reasons.

Article 77 § 1 provides that, when the release of an arrested person was not ordered, the public prosecutor shall hand over such a person to a court within twenty-four hours from his or her arrest together with the proposal that he or she be remanded in custody. Under paragraph 2 of Article 77, the judge shall hear the arrested person and, within twenty-four hours from the receipt of the public prosecutor’s proposal, either release the person or remand him or her in custody.

Pursuant to Article 211 (2) (a), the statement of a witness shall be read out at the main hearing before a court when, inter alia, such a person stays permanently abroad and cannot be reached.

Under Article 254 (1), unless there are formal shortcomings in an appeal, the appellate court shall review the lawfulness and justification of all conclusions of the first instance court which may be appealed against as well as compliance with the procedural requirements in the proceedings leading to the first instance judgment. In doing so the appellate court shall also have regard to any shortcomings which have not been complained of in the appeal.

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 civil, administrative or criminal proceedings with the exception of decisions which concern deprivation of liberty and imposition of a penalty.

Section 5 (1) provides that a person who is deprived of liberty is entitled to compensation when the criminal proceedings against him or her are dropped or when he or she is acquitted. However, under paragraph 2 (a) of Section 5, such compensation is excluded when the person concerned is responsible for his or her detention in that, in particular, he or she tried to abscond or otherwise gave rise to facts on which the decision concerning the detention was based.

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.

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.

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 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. According to paragraph 3 of Article 13, when determining the amount of such compensation the courts have to take into account the seriousness of the prejudice suffered by the person concerned and also the circumstances under which the violation of that person’s rights occurred.

COMPLAINTS

1.  The applicant complained under Article 5 § 1 (c) of the Convention that his detention had been unlawful in that he had been brought before the District Court judge more than twenty-four hours after his arrest contrary to Article 77 § 1 of the Code of Criminal Procedure.

2.  The applicant complained under Article 5 § 2 of the Convention that he had not been informed promptly in a language which he understands of the reasons for his detention set out in the decisions of 27 January 1995 and 15 February 1995 respectively.

3.  Under Article 5 § 3 of the Convention the applicant complained that his detention on remand had lasted unreasonably long and that there had been no relevant reasons for it.

4.  The applicant alleged a violation of Article 5 § 4 of the Convention, both taken alone and in conjunction with Article 13 of the Convention, in the proceedings concerning his applications for release.

5.  The applicant alleged a violation of Article 5 § 5 of the Convention, both taken alone and in conjunction with Article 13 of the Convention, in that under Slovakian law he had no enforceable right to compensation for the alleged violations of his rights under Article 5 §§ 1-4 of the Convention.

6.  The applicant complained that he had not  been provided promptly with a translation of the supplementary accusation filed against him on 25 April 1995.

7.  Under Article 6 § 1 of the Convention the applicant complained that the presiding judge of the Regional Court lacked impartiality as he had earlier acted as a public prosecutor in the case.

8.  The applicant alleged a violation of Article 6 § 3 (c) of the Convention in that (i) before appointing a lawyer ex officio to him on 20 November 1995 the District Court had not allowed him time for appointing a lawyer as required by Article 38 § 1 of the Code of Criminal Procedure and that (ii) the Regional Court had failed to decide on his request for the termination of the authority of the lawyer appointed ex officio and for allowing him to appoint a lawyer of his own choice filed on 17 January 1996.

9.  Under Article 6 § 3 (d) of the Convention the applicant complained that the Regional Court had dismissed his request for the examination of two Spanish nationals and that it had failed to hear the woman whom he had allegedly forced to carry out prostitution.

10. Finally, the applicant complained that by referring, in the decision of 15 February 1995, to the fact that he is a foreigner without a permanent address in Slovakia the Banská Bystrica Regional Court had discriminated against him and had subjected him to degrading treatment. He invoked Articles 14 and 3 of the Convention.

THE LAW

1.  The applicant complained that his detention had been unlawful in that he had been brought before the District Court judge more than twenty-four hours after his arrest contrary to Article 77 § 1 of the Code of Criminal Procedure. He relied on Article 5 § 1 of the Convention which provides, so far as relevant, 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;”

The Court notes that in its decision of 15 February 1995 the Banská Bystrica Regional Court found that by submitting his proposal to remand the applicant and his co-accused in custody to the District Court on 27 January 1995 at 9.45 a.m. the public prosecutor had complied with the time-limit laid down in Article 77 § 1 of the Code of Criminal Procedure. As from that moment accused persons were put at the disposal of the District Court within the meaning of that provision. The fact that the applicant’s detention had been in accordance with the law was confirmed by the Constitutional Court in its decision of 26 March 1997.

The Court finds no indication that the above interpretation of Article 77 of the Code of Criminal Procedure is arbitrary or contrary to the existing practice. Thus the applicant’s complaint is based on the erroneous premise that Article 77 § 1 of the Code of Criminal Procedure requires the competent court to hear the arrested person within twenty-four hours following his or her deprivation of liberty.

The applicant was deprived of liberty on 26 January 1995 at 10 a.m. Since the public prosecutor submitted his proposal that the applicant be detained on remand to the District Court judge on 27 January 1995 at 9.45 a.m., and since the judge decided to remand the applicant in custody, after having heard him, at 1 p.m. on 27 January 1995, the time-limits laid down in Article 77 of the Code of Criminal Procedure were complied with. Accordingly, the applicant was deprived of liberty in accordance with a procedure prescribed by law.

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

2. The applicant complained that he had not been informed promptly in a language which he understands of the reasons for his detention set out in the decisions of 27 January 1995 and 15 February 1995 respectively. He relied on Article 5 § 2 of the Convention which provides:

“Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.”

The documents before the Court indicate that the applicant was provided with a translation of the above two decisions concerning his detention on remand on 16 May 1995. A translation of the supplementary accusation of 25 April 1995 was given to the applicant on 10 May 1955. Since the application was introduced on 25 July 1997, in respect of this complaint the applicant failed to comply with the six months’ time-limit laid down in Article 35 § 1              of the Convention.

It follows that this complaint is introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

3. The applicant complained that his detention on remand had lasted an unreasonably long time and that there had been no relevant reasons for it. He invoked Article 5 § 3 of the Convention which provides:

“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.”

The Government contended that the applicant failed to exhaust domestic remedies as he had not filed an action for damages under the State Liability Act of 1969 and, if need be, also an action for protection of his personal rights pursuant to Article 11 et seq. of the Civil Code. In their view, those remedies were capable of redressing the alleged violation of the applicant’s rights under Article 5 § 3.

The applicant disagreed.

The Court recalls that the right to secure the ending of a deprivation of liberty is to be distinguished from the right to receive compensation for such deprivation. Paragraph 3 of Article 5 of the Convention covers the former and paragraph 5 of Article 5 the latter (see also Yagci 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).

Furthermore, the State Liability Act of 1969 requires that a claimant show that he or she suffered damage as a result of an erroneous action of a public authority, quantify its amount, and show that there is a causal link between the damage and the erroneous action in question. The information available indicates that compensation for damage of non-pecuniary nature is excluded with the exception of cases where damage to a person’s health was caused. In the Court’s view, neither did an action under Article 11 et seq. of the Civil Code constitute a remedy capable of directly redressing the impugned state of affairs. Accordingly, the Government’s objection must be dismissed.

As to the merits, the Government maintained that the reasons for the applicant’s continued detention on remand were relevant as there existed a risk that he would abscond if released. In the Government’s view, no substantial delays in dealing with the case can be imputed to the domestic authorities. The case was complex and the proceedings were slowed down by numerous complaints which the applicant filed in respect of the interpreter, the police investigator and the public prosecutor dealing with the case. The applicant also ended the authority of his lawyer and challenged the judge dealing with the case. Furthermore, the applicant was twice treated in a hospital after the indictment had been filed and the court experienced difficulties in ensuring the attendance of a witness who stayed abroad.

The applicant disagreed and maintained that the length of his detention on remand was mainly due to the Slovakian authorities’ failure to proceed with the case in an appropriate manner. He argued that the investigation at the preliminary stage had proceeded at a low pace. In particular, he pointed out that the domestic authorities had taken more than one month to appoint a lawyer to him following his request of 18 October 1995, and that they had not availed themselves of all means available with a view to obtaining the relevant witness statements and proceeding with the case without undue delays.

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. The applicant further complained that his applications for release from detention on remand had not been decided upon speedily. 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) The Court notes that the final decisions on the applicant’s requests for release of 16 May 1995 and of 16 August 1995 were delivered by the Banská Bystrica Regional Court on 12 July 1995 and on 18 October 1995 respectively. Since the application was introduced on 25 July 1997, in respect of this part of the application the applicant failed to comply with the six months’ time-limit laid down in Article 35 § 1 of the Convention.

It follows that this part of the application is introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

b) To the extent that the applicant complained about the Regional Court’s failure to decide on his application for release of 10 January 1996, the Government first contended that the applicant had failed to respect the six months’ time-limit laid down in Article 35 § 1 of the Convention. They further argued that the applicant had not exhausted domestic remedies as he failed to file an action for damages under the State Liability Act of 1969 or an action for protection of his personality rights under Article 11 et seq. of the Civil Code.

The applicant maintained that the six months’ time-limit should be counted from 25 March 1997 when the Supreme Court’s decision of 22 January 1997 refusing a further extension of his detention on remand had been served on him.

The Court notes that the Banská Bystrica Regional Prosecutor informed the applicant that he would transmit his request for release of 10 January 1996 to the Banská Bystrica Regional Court. Under Article 72 (2) of the Code of Criminal Procedure, the latter was obliged to decide on the request without delay. However, the Regional Court did not deliver a decision on the applicant’s request. Thus, in respect of this part of the application there exists no final decision which would interrupt the running of the six months period laid down in Article 35 § 1 of the Convention. 

Even assuming that the running of the six months’ period started on 26 January 1997 when the applicant’s request of 10 January 1996 became devoid of purpose as a result of his release, the Court notes that the application was filed on 25 July 1997, that is within the time-limit laid down in Article 35 § 1 of the Convention. Accordingly, the Government’s objection according to which this part of the application was introduced out of time must be dismissed.

As to the Government’s objection concerning the applicant’s failure to exhaust domestic remedies, the Court finds that this question raises issues which are so closely related to the question of the existence of an effective remedy under Article 13 of the Convention that, to avoid prejudging the latter, both issues should be examined together. Accordingly, the Court considers that the final determination of the issue concerning the exhaustion of domestic remedies should be joined to the merits and reserved for later consideration.

The Court further considers, in the light of the parties’ submissions, that this complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes 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.

5. The applicant complained that under Slovakian law he had no enforceable right to compensation for the alleged violations of his rights under Article 5 §§ 1-4 of the Convention. He relied on Article 5 § 5 of the Convention which provides:

“Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.”

The Government argued, with reference to Sections 1 (1), 5 and 18 of the State Liability Act of 1969, that the applicant had an enforceable right to compensation as required by Article 5 § 5. They explained that under the relevant provisions of the State Liability Act of 1969 the applicant could have obtained compensation for costs incurred with a view to obtaining redress as regards any unlawful decision or erroneous official action, for possible deterioration of his health resulting from such a violation as well as compensation for lost income. In addition, the applicant could have also obtained compensation for any non-pecuniary damage which he may have sustained in connection with the alleged violation of his rights under Article 5 of the Convention by means of an action for protection of his personal rights pursuant to Article 11 et seq. of the Civil Code.

The applicant contended that the Government had failed to show that, in view of the existing practice, an action for compensation under the State Liability Act of 1969 had any prospect of success in the particular circumstances of his case.

a) The Court recalls that complaints based on Article 5 § 5 of the Convention may be examined directly by the Court only where the domestic authorities have found a violation of any of the provisions of paragraphs 1 to 4 of this Article. In the absence of such a finding, the Court itself must first establish the existence of such a violation (see Roatis v. Austria (dec.), no. 61903/00, 27 June 2002, with further references).

In the present case no violation of the applicant’s rights under Article 5 §§ 1, 2 and 4 (to the extent that the complaint under Article 5 § 4 concerned the applicant’s requests for release of 16 May 1995 and of 16 August 1995) has been established by either the domestic authorities or the Court. In the absence of such a finding, no issue arises under Article 5 § 5 of the Convention in respect of those complaints.

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) The applicant also alleged a violation of Article 5 § 5 in that he had no enforceable right to compensation as regards the alleged violation of Article 5 §§ 3 and 4 resulting respectively from the protracted length of his detention on remand and from the Banská Bystrica Regional Court’s failure to decide on his application for release of 10 January 1996.

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

6. The applicant complained that he had no effective remedy at his disposal as regards the alleged violations of his rights under Article 5 §§ 4 and 5 of the Convention. He invoked Article 13 of the Convention which provides as follows:

“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.”

The Government argued that the applicant had effective remedies at his disposal, namely an action for compensation under the State Liability Act of 1969 and under Regulation No. 32/1965 as well an action for protection of his personal rights pursuant to Article 11 et seq. of the Civil Code.

The applicant disagreed.

a ) To the extent that the applicant complained about the absence of an effective remedy in respect of his complaints under (i) Article 5 § 4 concerning the failure to decide on his application for release of 10 January 1996 and (ii) Article 5 § 5 of the Convention (to the extent that the latter complaint relates to the protracted length of his detention on remand and the Regional Court’s failure to decide on his application for release of 10 January 1996), the Court considers, in the light of the parties’ submissions, that this part of the application 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.

b) The Court has found above that the applicant’s remaining complaints under Article 5 §§ 4 and 5 are inadmissible. For similar reasons, in this respect the applicant did not have an “arguable claim” and Article 13 is therefore inapplicable to this part of the application (see Boyle and Rice v. the United Kingdom, judgment of 27 April 1988, Series A No. 131, § 52).

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

7. The applicant complained that the presiding judge of the Regional Court lacked impartiality as he had earlier acted as a public prosecutor in the case. He relied on Article 6 § 1 of the Convention the relevant part of which provides:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”

The Court notes that on 9 November 2000 it decided to communicate this complaint and invited the parties to submit observations as to whether the applicant had exhausted domestic remedies.

In their observations the respondent Government made no comments concerning the applicant’s compliance with the requirement as to the exhaustion of domestic remedies laid down in Article 35 § 1 of the Convention in respect of the above complaint.  In these circumstances, the Court considers that this part of the application cannot be rejected for non-exhaustion of domestic remedies (see, e.g., Rehbock v. Slovenia, no. 29462/94, Commission decision of 20 May 1998).

As to the merits of this part of the application, the Government maintained that the applicant’s complaint about the lack of impartiality of the presiding judge of the Banská Bystrica Regional Court was unsubstantiated.

The applicant was of the opposite view.

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.

8. The applicant complained that he had not  been provided promptly with a translation of the supplementary accusation filed against him on 25 April 1995. The Court has examined this complaint under Article 6 § 3 (a) of the Convention which provides:

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

(a)  to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;”

The documents submitted indicate that a translation of the supplementary accusation in question was transmitted to the applicant on 10 May 1995. The applicant filed a complaint which was dismissed by the Banská Bystrica District Prosecutor on 15 May 1995. Since the application was introduced on 25 July 1997, in respect of this complaint the applicant failed to comply with the six months’ time-limit laid down in Article 35 § 1 of the Convention.

Furthermore, the Court notes that in the subsequent proceedings the applicant had sufficient time to prepare his defence in respect of this charge which was ultimately not upheld by the trial court.

It follows that this complaint must be rejected in accordance with Article 35 §§ 1, 3 and 4 of the Convention.

9.  The applicant complained that (i) before appointing a lawyer to him on 20 November 1995 the District Court had not allowed him time for appointing a lawyer of his own choice as required by Article 38 § 1 of the Code of Criminal Procedure and that (ii) the Regional Court had failed to decide on his request for the termination of the authority of the lawyer appointed to assist him and for fixing a time-limit allowing him to appoint a lawyer of his own choice filed on 17 January 1996. He relied on Article 6 § 3 (c) of the Convention which provides as follows:

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

(c)  to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;”

The Court notes that the applicant was free, throughout the criminal proceedings brought against him, to appoint a lawyer of his own choice to represent him in accordance with Articles 33 (1) and 37 (2) of the Code of Criminal Procedure. In accordance with the domestic practice, in such a case the authority of the lawyer appointed to represent the applicant ex officio would have to be terminated. In these circumstances, the applicant’s complaint about the domestic courts’ failure to fix a time-limit within which he could appoint a lawyer of his own choice does not disclose any appearance of a violation of his rights under Article 6 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.

10.  The applicant complained that the Regional Court had dismissed his request for the examination of two Spanish nationals and that it had failed to hear the woman whom he had allegedly forced to carry out prostitution. He relied on Article 6 § 3 (d) of the Convention which reads as follows:

“ 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;

The Government pointed out that the applicant had availed himself of his right to remain silent throughout the criminal proceedings and concluded that his right under Article 6 § 3 (d) had not been violated.

The applicant maintained that his right of defence had been infringed as a result of the failure to hear one of the women concerned and the two Spanish nationals whose written statements he had submitted.

To the extent that the applicant complained that the Regional Court had failed to hear one of the women concerned, the Court recalls that the use in evidence of statements obtained at the preliminary stage of the proceedings is not in itself inconsistent with paragraphs 1 and 3 (d) of Article 6, provided that the rights of the defence have been respected. That is not the case when, for example, the conviction is based solely, or in a decisive manner, on the depositions of a witness whom the accused has had no opportunity to examine or to have examined either during the investigation or at trial (see the recapitulation of the relevant principles in A.M. v. Italy, no. 37017/97, § 25, ECHR 1999-IX, with further references).

The Court notes that in the proceedings complained of one of the women concerned could not be heard by the court as she was staying at an unknown address abroad. Her statements made in the course of preliminary proceedings were read out at the main hearing before the Regional Court. They were not the only piece of direct evidence against the applicant since they coincided in full with the statement of her sister who had been heard by the Regional Court in the applicant’s presence. In its judgment the Regional Court noted that the applicant did not challenge the relevant part of the statements of the two women and that at the main hearing he restricted himself to pointing out that he was under no duty to make any comments in that respect. Subsequently the Supreme Court found that the Regional Court had proceeded in accordance with Article 211 (2) (a) of the Code of Criminal Procedure as the witness concerned lived at an unknown address abroad.

The Court notes that the statement which was read out at the main hearing before the Regional Court corresponded with the statement of her sister who had attended the hearing and whose statements the applicant could have challenged directly in the course of the trial. In these circumstances, the use of the statement of a witness whose whereabouts could not be established was not inconsistent with the applicant’s rights under paragraphs 1 and 3 (d) of Article 6.

To the extent that the applicant complained that the Regional Court had refused to hear two Spanish nationals, the Court recalls that, as a general rule, it is for the national courts to assess the evidence before them, as well as the relevance of the evidence which the defendant seeks to adduce. More specifically, Article 6 § 3 (d), in principle, leaves to them the assessment whether it is appropriate to call witnesses, in the “autonomous” sense given to that word by the Convention. The Convention does not require the attendance and examination of every witness on the accused’s behalf (see the recapitulation of the relevant principles in Hannak v. Austria (dec.), no. 70883/01, 9 July 2002).

In the present case the domestic courts considered the written statements of two Spanish nationals submitted by the applicant according to which the two Slovakian women had left him upon their arrival in Spain. The courts found, however, that the statements were unreliable as they were contrary to the statements of the two women concerned as well as to statements by the applicant’s co-accused and his former employee. 

In view of the above case-law and the information before it, the Court considers that the domestic courts’ conclusion that there was no need for hearing the two witnesses in question was not incompatible with the applicant’s rights under Article 6 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.

11. Finally, the applicant complained that by referring, in the decision of 15 February 1995, to the fact that he is a foreigner without a permanent address in Slovakia the Banská Bystrica Regional Court had discriminated against him and had subjected him to degrading treatment. He invoked Articles 14 and 3 of the Convention.

The Court has examined these complaints but finds, to the extent that they have been substantiated and fall within its competence, that they do not disclose any appearance of a violation of the Convention or its Protocols.

It follows that these complaints are manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court unanimously

Joins to the merits the question relating to the exhaustion of domestic remedies in respect of the applicant’s complaint under (i) Article 5 § 4 (to the extent that it concerns the Banská Bystrica Regional Court’s failure to decide on the applicant’s request for release of 10 January 1996) and (ii) Article 5 § 5 of the Convention (to the extent that it relates to the complaints under Articles 5 §§ 3 and 4 concerning respectively the protracted length of the applicant’s detention on remand and the Banská Bystrica Regional Court’s failure to decide on the applicant’s request for release of 10 January 1996);

Declares admissible, without prejudging the merits, the applicant’s complaints under (i) Article 5 § 3 about the length of his detention on remand, (ii) Article 5 §§ 4 and 5 as specified in the preceding paragraph, both taken alone and in conjunction with Article 13 of the Convention and (iii) Article 6 § 1 of the Convention relating to the alleged bias of the presiding judge of the Banská Bystrica Regional Court;

Declares inadmissible the remainder of the application.

Michael O’BoyleNicolas Bratza
RegistrarPresident

Full & Egal Universal Law Academy