SAVIC v. THE SLOVAK REPUBLIC

EUROPEAN COMMISSION OF HUMAN RIGHTS

SECOND CHAMBER

Application No. 28409/95

Mileta Savić

against

the Slovak Republic

REPORT OF THE COMMISSION

(adopted on 20 May 1998)

28409/95- i -

TABLE OF CONTENTS

Page

I.INTRODUCTION

(paras. 1-16)1

A.The application

(paras. 2-4)1

B.The proceedings

(paras. 5-11)1

C.The present Report

(paras. 12-16)              2

II.ESTABLISHMENT OF THE FACTS

(paras. 17-75)              3

A.The particular circumstances of the case

(paras. 17-69)              3

B.Relevant domestic law

(paras. 70-75)              9

III.OPINION OF THE COMMISSION

(paras. 76-111)11

A.Complaints declared admissible

(para. 76)11

B.Points at issue

(para. 77)11

C.As regards Article 5 para. 3 of the Convention

(paras. 78-89)              11

CONCLUSION

(para. 90)13

D.As regards compliance of the procedure applied with the requirements of                                           Article 5 para. 4 of the Convention

(paras. 91-100)13

CONCLUSION

(para. 101)15

E.As regards the requirement of a speedy review set out in Article 5 para. 4 of the Convention

(paras. 102-107)15

CONCLUSION

(para. 108)16

F.Recapitulation

(paras. 109-111)16

APPENDIX:DECISION OF THE COMMISSION AS TO THE

        ADMISSIBILITY OF THE APPLICATION              17

I.INTRODUCTION

1.The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.

A.The application

2.The applicant is a citizen of the Federal Republic of Yugoslavia (Serbia and Montenegro), born in 1945 and resident in Vienna. 

3.The application is directed against the Slovak Republic.  The respondent Government were represented by their Agent, Mr R. Fico.

4.The case concerns the length of the applicant's detention on remand and the length and fairness of the proceedings relating to an application for release lodged by the applicant.  The applicant invokes Article 5 paras. 3 and 4 of the Convention.

B.The proceedings

5.The application was introduced on 28 September 1994 and registered on 1 September 1995.

6.On 11 April 1996 the Commission (Second Chamber) decided, pursuant to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits.

7.The Government's observations were submitted on 21 June 1996.  The applicant replied on 14 October 1996.  On 10 September 1996 the Commission granted the applicant legal aid for the representation of his case.

8.On 3 December 1997 the Commission declared admissible the applicant's complaints under Article 5 paras. 3 and 4 of the Convention.  It declared inadmissible the remainder of the application.

9.The text of the Commission's decision on admissibility was sent to the parties on 12 December 1997 and they were invited to submit such further information or observations on the merits as they wished.  The Government submitted observations on 30 January 1998 and requested that the application be declared inadmissible under Article 29 of the Convention.

10.On 20 May 1998 the Commission (Second Chamber) decided that there was no basis on which to apply Article 29 of the Convention.

11.After declaring the case admissible, the Commission, acting in accordance with Article 28 para. 1 (b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.  In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.

C.The present Report

12.The present Report has been drawn up by the Commission (Second Chamber) in pursuance of Article 31 of the Convention and after deliberations and votes, the following members being present:

MMJ.-C. GEUS, President

M.A. NOWICKI

G. JÖRUNDSSON

J.-C. SOYER

H. DANELIUS

MrsG.H. THUNE

MMF. MARTINEZ

I. CABRAL BARRETO

J. MUCHA

D. ŠVÁBY

P. LORENZEN

E. BIELIŪNAS

E.A. ALKEMA

13.The text of this Report was adopted on 20 May 1998 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with Article 31 para. 2 of the Convention.

14.The purpose of the Report, pursuant to Article 31 of the Convention, is:

(i)to establish the facts, and

(ii)to state an opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention.

15.The Commission's decision on the admissibility of the application is annexed hereto.

16.The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.

II.ESTABLISHMENT OF THE FACTS

A.The particular circumstances of the case

17.On 30 April 1993 the Banská Bystrica Regional Bureau of Investigation (Krajský úrad vyšetrovania) accused the applicant and two other persons pursuant to Section 246 paras. 1 and 2 (b) and (c) of the Criminal Code (see "The relevant domestic law" below) of trafficking in women.  Criminal proceedings were instituted.  The applicant was suspected of having transported four young women from Slovakia to Italy, of having benefited from their prostitution and of having made several unsuccessful attempts to persuade other women to come to Italy for the same purpose.

18.In a letter of 5 June 1993 which he wrote in Zvornik (at present Bosnia and Herzegovina) the applicant informed the investigator that he had brought several women from Slovakia to Italy where they had carried out prostitution.  The applicant further informed the investigator that he  could not leave the former Yugoslavia.

19.On 15 June 1993 the Banská Bystrica Regional Court (Krajský súd -"the Regional Court") issued an international arrest warrant against the applicant.  On 9 November 1993 the proceedings against the applicant were suspended because of his absence.  The applicant was arrested in Vienna on 16 December 1993.  On 21 January 1994 he was handed over to the Slovak authorities.               

20.On the same day the investigator resumed the proceedings against the applicant and the Regional Court remanded the applicant in custody pursuant to Section 67 para. 1 (a) and (c) of the Code of Criminal Procedure.  The court noted that the applicant, who had a permanent address in Belgrade and another address in Vienna, had stayed at unknown places.  Since the applicant had known about the accusations brought against him, the court concluded that he had deliberately tried to avoid the proceedings.  The detention was also considered necessary in order to prevent the applicant from committing further offences.  Subsequently, the following relevant events occurred and the following decisions were taken in the applicant's case.

The criminal proceedings against the applicant

21.On 21 March 1994 the Žiar nad Hronom District Prosecutor (Okresný prokurátor - "the District Prosecutor") indicted the applicant  pursuant to Section 246 paras. 1 and 2 (b) and (c) and Section 204 of the Criminal Code before the Žiar nad Hronom District Court (Okresný súd  -"the District Court").  On 30 March 1994 the District Court decided to return the case to the District Prosecutor for additional investigations.  On 17 May 1994 the Regional Court upheld this decision.  The applicant's file was returned to the District Prosecutor on 2 June 1994.

22.On 22 June 1994 the District Prosecutor ordered that further investigations be carried out into the case.  On 4 July 1994 the applicant's case was joined with that of another accused in the same matter.

23.On 3, 16, 24 and 25 August 1994 the investigator heard witnesses.

24.On 6 September 1994 the District Court ordered that the applicant's mental health should be examined, pursuant to Section 105 and Section 116 para. 2 of the Code of Criminal Procedure, in the prison hospital in Trenčín.  The court noted that the applicant had complained of headaches and of problems with his back and breathing.  These problems had always occurred when the applicant was to be escorted for examination.  The court therefore ordered a general check-up including the examination of the applicant's mental health. 

25.On 20 September 1994 the investigating officer appointed three experts with a view to having the applicant's mental health examined.  On 5 October 1994 the public prosecutor dismissed the applicant's complaint against this decision.

26.On 26 September 1994 the applicant informed the investigator that he no longer insisted that his cross-examination with several witnesses, which he had originally requested and which could not take place because of his health problems, should be carried out.  He suggested that the investigation into his case should be terminated as soon as possible.

27.On 4 October 1994 the applicant was brought to the prison hospital in Trenčín in order to have his mental health examined.  He refused to co-operate with the experts. 

28.On 2 December 1994 the District Court extended the examination of the applicant's mental health until 4 January 1995 pursuant to Section 117 of the Code of Criminal Procedure.  The court noted that the experts could not submit their opinion as the applicant had refused to co-operate with them. 

29.On 20 December 1994 the Regional Court dismissed the applicant's complaint against the decision to extend the examination of his mental health.  The Regional Court recalled that the applicant had never specified his health problems which had always appeared when he was to be examined in the context of the criminal proceedings against him. 

30.The examination of the applicant's mental health ended on 3 January 1995.  On 13 January 1995 the experts submitted their opinions in which they concluded that the applicant was not suffering from any mental disorder.

31.On 3 February 1995 the applicant was heard by the investigator.  He stated that he considered his cross-examination together with a witness necessary.

32.On 28 March 1995 the applicant was cross-examined with two witnesses, and on 31 March 1995 a witness was heard.

33.On 6 April 1995 the applicant's lawyer was acquainted with the outcome of the investigation.

34.On 20 and 21 April 1995 respectively the injured parties and the applicant's co-accused were acquainted with the outcome of the investigation.

35.On 25 April 1995 the District Prosecutor filed a new indictment before the District Court.  In this indictment, the applicant and another person were charged with offences under Section 246 paras. 1 and 2 (c) and Section 204 para. 1 of the Criminal Code and with attempted offences pursuant to Section 246 paras. 1 and 2 (b) and (c) of the Criminal Code.

36.The main hearing before the District Court was scheduled for 7 August 1995.  It was postponed because the interpreter was ill and several witnesses had failed to appear. 

37.The second hearing was held on 4 September 1995.  The court heard the applicant and several witnesses.  The proceedings were adjourned because of the absence of four witnesses.

38.On 18 October 1995 the District Court adjourned the hearing in the applicant's case again.  It noted that several witnesses were not present, that the interpreter was ill and that the applicant's co-accused had requested that the court should appoint a lawyer to her.

39.Another hearing was held on 15 November 1995.  Seven witnesses failed to appear.  The District Prosecutor suggested that in view of the change in the composition of the court's chamber the court should repeat all procedural steps relating to the main hearing.  This suggestion was supported by the lawyers of the accused and the District Court adjourned the proceedings.

40.On 13 December 1995 the District Court adjourned the proceedings on the ground that three witnesses had not appeared and that the interpreter was ill.

41.On 4 January 1996 the District Court found, with reference to the opinion expressed by the Supreme Court (Najvyšší súd) on 21 December 1995 (see para. 55 below), that it lacked jurisdiction to deal with the applicant's case at first instance and transferred it to the Regional Court.

42.The main hearing before the Regional Court was held on 10 and 12 April 1996.  On the latter date the Regional Court convicted the applicant of trafficking in women pursuant to Section 246 paras. 1 and 2 (c) of the Criminal Code and of procuring pursuant to Section 204 para. 1 of the Criminal Code and sentenced him to four years' imprisonment.  It also decided to expel the applicant from the Slovak Republic. 

43.On 21 August 1996 the Supreme Court quashed the Regional Court's judgment of 12 April 1996.  It found that the Regional Court had correctly established the facts but had committed an error in their legal qualification.  The Supreme Court convicted the applicant and the other accused of trafficking in women pursuant to Section 246 paras. 1 and 2 (c) of the Criminal Code.  The applicant was sentenced to four years' imprisonment and to expulsion from the Slovak Republic.  In its judgment the Supreme Court noted that the evidence taken before the District Court had not been considered neither by it nor by the Regional Court as the District Court had lacked jurisdiction to deal with the applicant's case.

Decisions concerning extension of the applicant's detention on remand

44.On 1 July 1994 the District Court extended, at the District Prosecutor's request, the applicant's detention by two months.  The court held that, if released, the applicant might obstruct the proceedings and that the reasons for his detention mentioned in the decision of the Regional Court of 21 January 1994 were still relevant.  The District Court's decision was served on 26 July 1994.

45.On 13 July 1994 the District Prosecutor informed the applicant, in reply to a request for release lodged by the applicant's lawyer, that he had received the file on 2 June 1994.  The prosecutor held, with reference to Section 71 paras. 1 and 6 of the Code of Criminal Procedure, that as from that date the applicant could be detained for two months and that during that period no extension of his detention by a court was necessary.  The applicant's request for release was submitted to the District Court pursuant to Section 72 para. 2 of the Code of Criminal Procedure (see para. 56 below).

46.By a letter of 30 August 1994 the District Prosecutor requested the District Court to extend the applicant's detention by two months.  The request was substantiated by the fact that on 24 August 1994 it had not been possible to cross-examine the applicant and a witness as the former alleged that he had health problems, and that the applicant had been transferred to a prison hospital.

47.On 2 September 1994 a single judge of the District Court extended the applicant's detention until 2 October 1994.  The judge held that the applicant's detention was still necessary for the purposes of Section 67 para. 1 (a) and (c) of the Code of Criminal Procedure and that, if released, the applicant might obstruct the conduct of the proceedings.

48.On 21 September 1994 the District Prosecutor requested a further extension of the applicant's detention on the ground that the examination of the applicant's mental health, which had been ordered on 6 September 1994, would not be terminated before 2 October 1994.  On 26 September 1994 the District Court granted the extension until 2 November 1994. 

49.Upon the District Prosecutor's request of 24 October 1994 the District Court extended, on 25 October 1994, the applicant's detention until 2 January 1995.  The judge examined the applicant's file and found that the pre-trial investigation including the examination of the applicant's mental health would not be terminated before 2 November 1994.  The court held that the reasons for the applicant's detention, namely the danger of his absconding, committing further offences or obstructing the proceedings, were still relevant.

50.On 7 December 1994 the District Court extended the applicant's detention until 2 February 1995.  It noted that the pre-trial investigation of the case regarding the applicant, whose mental health was to be examined by 4 January 1995, had not been terminated.  The court held that the applicant's detention was still necessary for the purposes of Section 67 para. 1 (a) and (c) of the Code of Criminal Procedure and that he might obstruct the conduct of the proceedings if he was released.

51.On 30 January 1995 the District Court granted the District Prosecutor's request of 23 January 1995 and extended the applicant's detention until 2 March 1995.  The District Court noted that several procedural steps had to be taken before the investigation into the applicant's case could be concluded.  It recalled that after the applicant had committed the acts imputed to him he had tried to avoid the criminal proceedings against him in that he had been staying at an unknown place.  The court considered that the applicant's detention  was also necessary in order to prevent him from committing further offences.

52.On 21 February 1995 the District Prosecutor requested a further extension of the applicant's detention on remand.  On 27 February 1995 the District Court granted the request and extended the applicant's detention until 2 April 1995.  The District Court noted that the applicant had insisted that he should be cross-examined with two witnesses.  However, the cross-examination could not be carried out as one of the witnesses was hospitalised after delivery.  The District Court held that the applicant's detention was necessary for the purposes of Section 67 para. 1 (a) and (c) of the Code of Criminal Procedure and pointed out that the preliminary proceedings lasted unreasonably long.

53. On 27 March 1995 the District Court, acting at a request lodged by the District Prosecutor on 22 March 1995, extended the applicant's detention until 2 May 1995.  The District Court noted that the cross-examination of the applicant and two witnesses scheduled for 16 March 1995 could not be carried out as the applicant's lawyer had failed to appear.

54.On 13 December 1995 the District Court requested the Supreme Court to extend the applicant's detention by one year pursuant to Section 71 para. 2 of the Code of Criminal Procedure.  The District Court pointed out that the delays in the trial proceedings were due to the repeated absence of the interpreter, health problems of a member of the court's chamber, overload of the applicant's lawyer and also to the witnesses' failure to appear before the court.

55.On 21 December 1995 the Supreme Court extended the applicant's detention until 21 July 1996.  In its decision the Supreme Court pointed out, with reference to Section 17 of the Code of Criminal Procedure, that at first instance the applicant's case was within the jurisdiction of the Regional Court.

Applications for release lodged by the applicant

56.On 27 July 1994 the District Court dismissed the applicant's request for release which had been transmitted to it by the District Prosecutor pursuant to Section 72 para. 2 of the Code of Criminal Procedure (see para. 45 above).

57.The applicant lodged a complaint and claimed that the reasons for his detention had fallen away.

58.On 30 August 1994 the Regional Court quashed the District Court's decision of 27 July 1994 as the latter had not examined the whole file concerning the applicant's case.

59.On 8 September 1994 the District Court reexamined the application and dismissed it on the ground that the reasons for the applicant's detention under Section 67 para. 1 (a) and (c) of the Code of Criminal Procedure still existed.  It also noted that on 17 August 1994 two foreigners had been apprehended in the prison's security zone whilst communicating with the applicant.

60.On 14 September 1994 the applicant lodged a complaint against this decision in which he alleged that the District Court had not dealt with his objections concerning the lawfulness of his detention after 2 July 1994. 

61.On 8 November 1994 the Regional Court rejected the applicant's complaint without examining its merits as it had been lodged belatedly.

62.On 21 April 1995 the applicant requested that he should be released and offered a pledge pursuant to Section 73 Section 1 (b) of the Code of Criminal Procedure.  He claimed that it was not probable that he would commit further offences.  He also undertook to stay with his  friends in Slovakia and to comply with any restrictions the court might order.

63.The request was dismissed on 11 May 1995.  The District Court held that the applicant, who was under the threat of a severe sentence, could abscond and, possibly, also commit offences.

64.At the main hearing before the District Court on 7 August 1995 the applicant requested, through his lawyer, that he should be released.  He pointed out that the investigation had been closed and that he would not abscond.             

65.According to the record of the hearing of 7 August 1995, the Public Prosecutor proposed that the applicant's request be granted but the District Court rejected it pursuant to Section 72 para. 2 of the Code of Criminal Procedure.  The applicant's lawyer then informed the court that the applicant lodged a complaint against that decision.

66.The decision on dismissal of the aforesaid application for release was served at the second hearing before the District Court on 4 September 1995.  In this decision, the District Court held that the applicant's detention was necessary as he had stayed at unknown places in order to avoid the criminal proceedings instituted against him.  The District Court further noted that the applicant was suspected of several offences and held that in case of his release he could commit further offences.  It was indicated in the decision that it could be challenged by a complaint within three days after it had been served.  The applicant lodged a complaint with reasons against it on 6 September 1995.  The complaint was registered by the District Court on 11 September 1995. 

67.In his complaint the applicant claimed that in view of the lapse of time since the moment of his arrest, it could no longer be reasonably expected that he would commit further offences.  He also offered a pledge pursuant to Section 73 para. 1 (b) of the Code of Criminal Procedure.  The applicant further alleged that his detention was unlawful as the decision on extension of his detention of 1 July 1994 had not been taken in accordance with the law and had been served on him belatedly.  On 25 September 1995 the applicant was informed that his complaint had been transmitted to the Regional Court.

68.On 12 October 1995 the Regional Court, sitting in camera, dismissed the applicant's complaint.  It pointed out that on 7 August 1995 the applicant had informed the District Court that he lodged a complaint against the latter's decision but had failed to substantiate such a complaint. 

69.In its decision the Regional Court further noted that the applicant was reasonably suspected of the offences imputed to him.  It recalled that the applicant was a foreign national and had tried to avoid the proceedings in that he had stayed at unknown places.  The Regional Court held that there was a danger of his absconding and committing further offences in case of his release.  The Regional Court's decision was served on 18 October 1995.

B.Relevant domestic law

Criminal Code

70.Pursuant to Section 246 para. 1 of the Criminal Code a person who engages a woman, entices her into going abroad or transports her abroad with a view to her having sexual intercourse with another person shall be imprisoned for one to five years.  Under para. 2 (b) and (c) of the same Section such a person shall be imprisoned for three to eight years if the woman concerned is under eighteen or if the perpetrator intended to use the woman for prostitution.

71.Pursuant to Section 204 of the Criminal Code, as in force until 1 October 1994, a person who incites or entices another person to prostitution or benefits from another person's prostitution shall be punished with a prison sentence from one to five years.  Since 1 October 1994 this offence has been punishable, pursuant to Section 204 para. 1 of the Criminal Code, with a maximum term of imprisonment of three years.

Code of Criminal Procedure

72.Section 17 of the Code of Criminal Procedure in conjunction with Section 2 para. 2 (a) of Act No. 249/1994, in force as from 1 October 1994, provides that matters relating to offences under Section 246 of the Criminal Code shall be examined at first instance by regional courts.

73.In accordance with Section 67 para. 1 (a) and (c) of the Code of Criminal Procedure, an accused can only be remanded in custody when there are reasonable grounds for believing that he would abscond or hide in order to avoid prosecution or punishment, or that he would commit further offences or accomplish an attempted offence.

74.Section 72 para. 2 entitles the accused to apply for release at any time.  If 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.  If the application is dismissed, the accused may renew it fourteen days after the decision became final unless he invokes other reasons.

75.Section 73 para. 1 (b) entitles the court, or a single judge in pre-trial proceedings, to release an accused who is detained on remand under Section 67 para. 1 (a) or (c) if the latter makes a pledge in writing to abstain from any criminal activity and to comply with the obligations and restrictions imposed on him, provided that the pledge is considered as being sufficient in view of the personal characteristics of the accused. 

III.OPINION OF THE COMMISSION

A.Complaints declared admissible

76.The Commission has declared admissible the applicant's complaints concerning the length of his detention on remand and the length and fairness of the proceedings relating to his application for release which was dismissed by the Žiar nad Hronom District Court on 7 August 1995 and by the Banská Bystrica Regional Court on 12 October 1995.

B.Points at issue

77.The issues to be determined are the following:

-whether there has been a violation of Article 5 para. 3 of the Convention,

-whether there has been a violation of Article 5 para. 4 of the Convention as regards the procedure applied in order to examine the applicant's request for release of 7 August 1995, and

-whether there has been a violation of Article 5 para. 4 of the Convention as regards the speediness of the proceedings concerning the aforesaid request for release.

C.As regards Article 5 para. 3 of the Convention

78.Article 5 para. 3 of the Convention reads as follows:

"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."

79.The applicant submits that the reasons for his detention were not relevant and that his detention on remand lasted unreasonably long.

80.The Government contend that the reasons on the basis of which the courts considered the applicant's detention necessary are relevant and sufficient and that the Slovak authorities dealt with the applicant's case with due diligence.

81.The Government maintain that the applicant contributed to the length of the proceedings in that he pretended health problems and made thus his cross-examination together with a witness scheduled for 24 August 1994 impossible.  The Government also point out that a consequence of the applicant's behaviour was the examination of his mental health which had to be prolonged because of his refusal to co-operate with experts.

82.The Commission first notes that the period to be taken into consideration began on 21 January 1994, the date when the applicant was handed over to the Slovak authorities and remanded in custody, and ended on 12 April 1996 when the Regional Court's judgment was rendered.  Accordingly, it amounts to two years, two months and twenty-two days.

83.The Commission recalls that it falls, in the first place, to the national judicial authorities to ensure that, in a given case, the pre-trial detention of an accused person does not exceed a reasonable time.  To this end they must examine all the circumstances arguing for and against the existence of a genuine requirement of public interest justifying, with due regard to the principle of the presumption of innocence, a departure from the rule of respect for individual liberty and set them out in their relevant decisions.  It is essentially on the basis of the reasons given in these decisions and of the true facts mentioned by the detainee in his applications for release and his appeals that the Convention organs are called upon to decide whether or not there has been a violation of Article 5 para. 3.

84.The persistence of a reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the validity of the continued detention, but, after a certain lapse of time, it no longer suffices: the Convention organs must then establish whether the other grounds cited by the judicial authorities continued to justify the deprivation of liberty.  Where such grounds were "relevant" and "sufficient", the Convention organs must also ascertain whether the competent national authorities displayed "special diligence" in the conduct of the proceedings (see Eur. Court HR, Yağci and Sargin v. Turkey judgment of 8 June 1995, Series A no. 319-A, pp. 18-19, para. 50, with further references).

85.In the present case, the Slovak courts considered that the applicant's detention on remand was necessary as there was a danger of his absconding and of his committing further offences.  In particular, the courts noted that in a letter of 5 June 1993 the applicant had informed the investigator that he had brought several women from Slovakia to Italy where they had carried out prostitution.  The courts also noted that the applicant, who had a permanent address in Belgrade and another address in Vienna, had stayed at unknown places notwithstanding that he had known about the accusations brought against him, and that it had been necessary to arrest him by means of an international arrest warrant.  They also noted that the applicant risked a severe penalty.

86.In view of the above facts, the Commission considers that the applicant could reasonably be suspected of having committed the offence in question and the courts' reasoning that there existed a risk of his absconding can be considered as "sufficient" and "relevant".  In these circumstances, the Commission does not consider it necessary to examine whether the applicant's detention was also necessary in order to prevent him from committing further offences.

87.As to the conduct of the proceedings, the Commission finds no particular delays attributable to the Slovak authorities between the applicant's arrest on 21 January 1994 and the filing of the indictment on 25 April 1995.  The Commission notes that the applicant contributed to the length of the pre-trial proceedings in that he withdrew and subsequently renewed his requests for examination of witnesses and  refused to co-operate with experts appointed to examine his mental health.

88. As regards the proceedings at first instance, i.e. after the filing of the indictment on 25 April 1995, the Commission notes that the District Court held five hearings between 7 August and 13 December 1995.  It partly proceeded with the case but on 4 January 1996, after the Supreme Court had pointed out that the case was within the jurisdiction of the Regional Court, the case was transferred to the latter.  The Regional Court's judgment was delivered on 12 April 1996.  Neither the Regional Court nor the Supreme Court, when it subsequently examined the applicant's appeal, could consider the evidence taken before the District Court as the latter had lacked jurisdiction to deal with the case.  

89.Thus, in the course of the proceedings at first instance there was a period of more than eight months which was lost as a result of the District Court dealing with the applicant's case despite the fact that it lacked jurisdiction to do so.  In view of this delay and of the importance attached to the right to liberty, the Commission is of the opinion that the Slovak authorities did not display "special diligence" in the conduct of the proceedings as required by Article 5 para. 3 of the Convention.

CONCLUSION

90.The Commission concludes, unanimously, that in the present case there has been a violation of Article 5 para. 3 of the Convention.

D.As regards compliance of the procedure applied with the requirements of Article 5 para. 4 of the Convention

91.Article 5 para. 4 of the Convention provides as follows:

"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." 

92.The applicant submits, in substance, that the proceedings concerning his application for release of 7 August 1995 and his complaint about the decision to dismiss it were not fair.

93.The Government contend that the District Court decided on the applicant's request for release in the course of the hearing of 7 August 1995 in the presence of both the applicant and his lawyer.  They consider the fact that the Regional Court examined the applicant's complaint against the aforesaid District Court's decision in camera as being compatible with the requirements of Article 5 para. 4. 

94.The Government further point out that the statement in the Regional Court's decision of 12 October 1995 according to which the applicant failed to substantiate his complaint to the Regional Court relates to the applicant's oral complaint lodged at the District Court's hearing held on 7 August 1995.

95.The Commission recalls that Article 5 para. 4 does not compel the Contracting States to set up a second level of jurisdiction for the examination of applications for release from detention.  Nevertheless, a State which institutes such a system must in principle afford to the detainees the same guarantees on appeal as at first instance (see Eur. Court HR, Toth v. Austria judgment of 12 December 1991, Series A no. 224, p. 23, para. 84, with further references).

96.The Commission further recalls that the judicial proceedings referred to in Article 5 para. 4 require certain guarantees.  In particular, the person concerned should have access to a court and the opportunity to be heard either in person or, where necessary, through some form of representation, failing which he will not have been afforded "the fundamental guarantees of procedure applied in matters of deprivation of liberty".  Furthermore, by virtue of the aforesaid provision, arrested or detained persons are entitled to a review bearing upon the procedural and substantive conditions which are essential for the "lawfulness", in the sense of the Convention, of their deprivation of liberty (see Eur. Court HR, Sanchez-Reisse v. Switzerland judgment of 21 October 1986, Series A no. 107, p. 19, para. 51; Winterwerp v. the Netherlands judgment of 24 October 1979, Series A no. 33, p. 24, para. 60; Brogan and Others v. the United Kingdom judgment of 29 November 1988, Series A no. 145-B, p. 34, para. 65).

97.In the present case, the applicant requested the District Court, in the course of the main hearing held on 7 August 1995, to order his release.  The District Court dismissed the request and the applicant's lawyer then informed the court, in the course of the same hearing, that the applicant lodged a complaint against the dismissal of his request.  Thus, the applicant had an opportunity to submit his arguments to the District Court either in person or through his lawyer and the Commission has before it no information that would indicate that the guarantees of Article 5 para. 4 were not respected in these proceedings.

98.As regards the proceedings before the Regional Court, the Commission notes that on 6 September 1995, after the service of the District Court's decision of 7 August 1995 in writing, the applicant lodged a written complaint against it, apparently within the time-limit set out in that decision.  He alleged, for reasons expressly set out in his complaint, that his detention was unlawful as there had been procedural irregularities when the decision on extension of his detention on remand had been delivered on 1 July 1994.

99.On 12 October 1995 the Regional Court, sitting in camera, dismissed the applicant's complaint.  In its decision the Regional Court noted that on 7 August the applicant had informed the District Court that he lodged a complaint against the dismissal of his request for release but that he had failed to substantiate such a complaint.  The Regional Court neither referred to the applicant's written complaint of 6 September 1995, nor did it address the arguments set out in it.

100.The Commission notes that it has not been contested by the respondent Government that the applicant lodged his written complaint in time and in due form.  The complaint concerned compliance with the procedural requirements set out in Slovak law which were essential for the "lawfulness" of his deprivation of liberty.  In the absence of any information before it indicating that the Regional Court examined this substantial aspect of the applicant's complaint, the Commission finds that the applicant did not have an effective "opportunity to be heard either in person or ... through some form of representation" as required by Article 5 para. 4 of the Convention.

CONCLUSION

101.The Commission concludes, unanimously, that in the present case there has been a violation of Article 5 para. 4 of the Convention as regards the procedure applied in order to examine the applicant's complaint about the dismissal of his request for release.

E.As regards the requirement of a speedy review set out in Article 5 para. 4 of the Convention

102.The applicant submits that the courts failed to decide speedily on his application for release which he had lodged on 7 August 1995.

103.The Government consider that the requirement of a speedy review was respected in the present case.

104.The Commission recalls that where an application for release is examined at several levels of jurisdiction, it is necessary to effect an overall assessment when examining whether there has been compliance with the requirement that a decision be given "speedily".  Furthermore, when determining the aforesaid issue, the Convention organs must have regard to the circumstances of each case (see Eur. Court HR, Navarra v. France judgment of 27 October 1993, Series A no. 273-B, p. 28, para. 28, with further references;  E. v. Norway judgment of 29 August 1990, Series A no. 181-A, pp. 27-28, para. 64, with further reference).

105.In the present case, the applicant lodged a request for release with the District Court on 7 August 1995, in the course of a hearing.  The District Court dismissed it in the course of the same hearing and the applicant then immediately informed the court that he lodged a complaint against its decision.  Thus, the District Court decided on the applicant's request for release "speedily". 

106.However, the applicant was only able to substantiate his complaint after 4 September 1995, the date when the District Court's decision of 7 August was served on him in writing.  He did so on  6 September 1995.  His complaint with reasons was registered by the District Court on 11 September 1995.  The Regional Court dismissed the complaint on 12 October 1995, and its decision was served on  18 October 1995.

107.Thus, two months and five days elapsed between the date when the applicant orally informed the District Court that he lodged a complaint against its decision to dismiss his request for release and the date when the Regional Court decided on that complaint.  The Commission is of the opinion that this period is difficult to reconcile with the requirement of a speedy decision set out in Article 5 para. 4.  Furthermore, the Commission finds no special circumstances that would justify the length of the proceedings in question.

CONCLUSION

108.The Commission concludes, unanimously, that in the present case there has been a violation of Article 5 para. 4 of the Convention as regards the speediness of the proceedings concerning the applicant's complaint about the dismissal of his request for release.

F.Recapitulation

109.The Commission concludes, unanimously,  that in the present case there has been a violation of Article 5 para. 3 of the Convention (para. 90).

110.The Commission concludes, unanimously, that in the present case there has been a violation of Article 5 para. 4 of the Convention as regards the procedure applied in order to examine the applicant's complaint about the dismissal of his request for release (para. 101).

111.The Commission concludes, unanimously, that in the present case there has been a violation of Article 5 para. 4 of the Convention as regards the speediness of the proceedings concerning the applicant's complaint about the dismissal of his request for release (para. 108).

   M.-T. SCHOEPFER                                                       J.-C. GEUS

      Secretary                                                                        President

to the Second Chamber                                          of the Second Chamber

 

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