FOURTH SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 42472/98
by Ondrej TKÁČIK
against Slovakia
The European Court of Human Rights (Fourth Section), sitting on 8 October 2002 as a Chamber composed of
SirNicolas Bratza, President,
MrsE. Palm,
MrsV. Strážnická,
MrM. Fischbach,
MrJ. Casadevall,
MrR. Maruste,
MrL. Garlicki, judges,
and Mr M. O’Boyle, Section Registrar,
Having regard to the above application lodged with the European Commission of Human Rights on 22 February 1998,
Having regard to Article 5 § 2 of Protocol No. 11 to the Convention, by which the competence to examine the application was transferred to the Court,
Having deliberated, decides as follows:
THE FACTS
The applicant, Mr Ondrej Tkáčik, is a Slovakian national born in 1954. In March 1999 he abandoned his business in Slovakia and left the country on account of the facts described below. He currently lives in Spain. The respondent Government were represented by Mr P. Vršanský, their Agent. The facts of the case, as submitted by the parties, may be summarised as follows.
A. The circumstances of the case
1. Examination of the applicant’s mental health in 1996
In the morning of 30 November 1996 the applicant’s wife warned the police by telephone that the applicant intended to drive his car after having drunk alcoholic beverages, that he carried a weapon, that his behaviour was strange and that it was possible that he could cause injury to other persons. Upon this information the police stopped the car driven by the applicant. As the applicant actively resisted his search, the police handcuffed him. A sword was taken away from him. The analysis of his breath indicated that the applicant had alcohol in his blood. The applicant maintains that the analysis was forged.
The police brought the applicant to a police station, where they withdrew his driving licence. Subsequently he was brought to a psychiatrist. After a short examination the applicant was released. Later on the same day the doctor issued a certificate, at the request of the applicant’s wife, in which the police were requested for assistance in transporting the applicant to a mental hospital.
A police record of 30 November 1996 indicates, with reference to the above facts, that the applicant was apprehended pursuant to Section 19 (1) (a) of the Police Corps Act of 1993.
In the afternoon of 30 November 1996 the applicant returned to his home but he could not unlock the door. He asked the police for assistance. Upon the arrival of the police the applicant’s wife opened the door and asked that the applicant be taken away. He was brought to a mental hospital in an ambulance. After he had refused to undergo an examination, the applicant was brought against his will to another hospital. Medicaments were administered to him during three days and he had to undergo psychiatric tests.
In two reports established on 15 August 1997 and on 16 November 1998 respectively the Control Department of the Ministry of the Interior dismissed the applicant’s complaints about his apprehension on 30 November 1996 as being unsubstantiated. Reference was made to a statement by his wife according to which his behaviour, as from 28 November 1996, had disclosed signs of a mental disorder. In particular, the applicant’s wife alleged that he had feared that unknown persons wanted to kill him and his family and that he had carried a sword and a knife.
On 2 December 1996 the administration of the hospital to which the applicant had been brought on 30 November 1996 informed the Košice II District Court (Okresný súd) about the applicant’s detention on account of the suspicion that he suffered from a mental disease.
On 6 December 1996 the Košice II District Court delivered a decision by which it started proceedings, with reference to Sections 191a (1) and 191b (1) of the Code of Civil Procedure, with a view to determining whether the applicant’s placement in a mental hospital was justified. By another decision delivered on 6 December 1996 the District Court appointed a guardian to defend the applicant’s rights in the proceedings.
On 9 December 1996 a record concerning the applicant’s detention in the mental hospital was drawn up in the presence of the applicant, the Košice II District Court judge dealing with the case and the doctor who treated the applicant. Reference was made to statements of the wife according to which the applicant’s behaviour had changed following his return from Venezuela where he had been on business for one year. She affirmed that he had alleged hearing strange voices and that his flat was monitored from outside by means of a fax machine. He had had altercations with his colleagues and had started carrying weapons. According to the wife, she feared that the applicant wanted to drown her in the bath and he had not allowed their children to go to school. The applicant denied such allegations and explained that there had been disagreements between him and his wife. He affirmed that he was not ill and refused examination by psychologists. The record further stated that the applicant was being treated with neuroleptical medicaments and that his brother suffered from paranoid schizophrenia. It concluded that a professor would decide on 10 December 1996 whether further treatment was necessary.
In a decision delivered on 9 December 1996 the Košice II District Court found that the applicant’s detention in the mental hospital was lawful. Reference was made to doctors’ presumption that the applicant suffered from a mental disorder and to the fact that he was treated with medicaments.
On 10 December 1996 the applicant was released.
On 13 August 1997 an expert in psychiatry concluded, in an opinion established at the applicant’s request, that there was no anomaly in the applicant’s mental health.
On 30 April 1998 the president of the Košice II District Court apologised to the applicant for the delay in serving the above decision of 9 December 1996.
On 13 May 1998 the applicant was allowed to consult the court’s case file. On this occasion he was served with the District Court’s decision of 9 December 1996 concerning the lawfulness of his examination in a mental hospital. On 18 May and on 12 August 1998 the applicant appealed against this decisions and also against the decision of 6 December 1996 on the appointment of a guardian. He alleged, in particular, that his arrest had been unjustified, that he had been heard by a judge on 9 December 1996, i.e. several days after his arrest, and that the court had taken more than five days to decide on the lawfulness of his detention contrary to the relevant law.
On 25 September 1998 the Košice Regional Court (Krajský súd) dismissed the appeal. It found that the applicant’s detention had been justified by his strange behaviour and by the doctors’ presumption that he had suffered from a mental disorder. The Regional Court considered irrelevant the applicant’s objection concerning the delay in deciding on his case at first instance and in serving the District Court’s decision of 9 December 1996.
2. Criminal proceedings against the applicant and examination of his mental health in this context
On 30 May 1997 the Košice I Office of Investigation accused the applicant of wounding on the ground that he had caused a concussion to his wife and had fractured her nose. Reference was made to a police report based on statements by the applicant’s wife and children as well as to a medical certificate.
On 5 June 1997 the Košice I District Court ordered, pursuant to Section 116 (1) of the Code of Criminal Procedure, that the applicant’s mental health be examined in the context of the criminal proceedings.
On 6 June 1997 the police investigator appointed two experts with a view to having his mental health examined. The decision stated that the examination was necessary due to the nature of the actions imputed to the applicant and also because the applicant had earlier been treated in a mental hospital.
On 9 June 1997 the applicant was examined by a police investigator. Prior to that he was searched as he had informed the police that he carried a knife. Subsequently the police brought the applicant to the experts appointed on 6 June 1997 for an out-patient examination of his mental health.
On 10 June 1997 the experts informed the police investigator that they had examined the applicant. They found that he suffered from a serious mental disease. They proposed that the applicant be examined as an in-patient with a view to making a detailed diagnosis. The experts also pointed out that both the applicant’s father and brother suffered from a mental disease.
On 13 June 1997 the applicant challenged the above decision of 30 May 1997. He maintained that his wife had fainted and had injured herself in that she had fallen to the ground. The complaint was dismissed by the Košice I District Prosecutor on 20 August 1997. The prosecutor found that the evidence available justified the suspicion that the applicant had committed an offence.
On 3 July 1997 the Košice I District Court granted the public prosecutor’s request that the applicant be examined in the mental hospital in Prešov. Reference was made to the experts’ proposal of 10 June 1997. The court referred to Section 116 (2) of the Code of Criminal Procedure.
On 7 July 1997 the applicant filed a complaint. He alleged that his request for exclusion of the experts had not been decided upon and proposed that he be examined as an out-patient. He alleged that the reasons for the District Court’s decision of 3 July 1997 were not sufficient.
On 6 August 1997 the Košice Regional Court dismissed the complaint. It noted that the decision had been taken in accordance with a doctor’s opinion, that the evidence indicated that the applicant had behaved in an aggressive manner and that he had allegedly attempted to rape his daughter.
On 20 August 1997 the Košice I District Prosecutor dismissed the applicant’s complaint against the decision on the appointment of experts.
On 28 August 1997 the applicant submitted an expert opinion of 13 August 1997 concluding that he did not suffer from any mental disorder. He requested the Košice I District Court to review the decision on his examination in a mental hospital. The District Court dismissed the request on 9 September 1997 as such a remedy was not available.
Between 11 and 18 November 1997 the applicant underwent an examination in the mental hospital in Prešov.
The expert opinion submitted on 26 December 1997 concluded that the applicant suffered from a disorder of paranoid nature, but that he was not mentally ill.
On 12 March 1998 the Košice I District Prosecutor found that the actions imputed to the applicant did not constitute a criminal offence. The case was transferred to the Košice I District Office (Okresný úrad) for determination whether the acts imputed to the applicant constituted a minor offence falling under the Minor Offences Act. The decision stated, inter alia, that the injuries which the applicant’s wife had suffered were not serious and that doctors had found that she suffered from a histronic personality disorder as a result of which her capacity to make correct statements was reduced. The public prosecutor further noted in his decision that the applicant and his wife had conflicts and that the former lived at a different place. Reference was made to a statement by the applicant’s employer according to which the applicant was explosive and had difficulties in controlling his behaviour, and that he had had conflicts with his colleagues.
On 8 June 1998 the applicant challenged this decision and alleged that he had not committed the actions imputed to him.
On 10 July 1998 the Košice Regional Prosecutor quashed the District Prosecutor’s decision of 12 March 1998 and discontinued the proceedings. The decision stated that any minor offence the applicant might have committed was covered by the general amnesty which had been granted by the Government on 3 March 1998.
3. Proceedings concerning the applicant’s legal capacity
On 18 June 1996 the applicant’s wife requested that her husband’s legal capacity be restricted on the ground that he suffered from a mental disorder.
On 22 August 1997 the Košice I District Court appointed an expert with reference to Section 127 (1) of the Code of Civil Procedure. The latter informed the court that the applicant had refused to be examined by him and that the applicant was being examined in the mental hospital in Prešov in the context of the criminal proceedings. He proposed that an expert from the above hospital be appointed with a view to accelerating the proceedings.
On 12 November 1997 the Košice I District Court appointed an expert from the mental hospital in Prešov who examined the applicant in parallel with the expert appointed in the context of the above criminal proceedings.
The expert opinion was submitted on 30 December 1997. The expert diagnosed a deviation in the applicant’s character, but concluded that he did not suffer from a mental disease.
On 30 June 1998 the case was adjourned as the expert had failed to appear. On 20 October 1998 the case was again adjourned as the judge was ill.
On 15 December 1998 the Košice I District Court dismissed the action with reference to the expert’s conclusion.
On 22 January 1999 the applicant’s former wife appealed against the decision concerning the expert’s fees. On 3 February 1999 the applicant also filed an appeal. He challenged the amount of the costs and expenses which the first instance court had granted to him.
On 30 May 2000 the Košice Regional Court upheld the first instance judgment. It noted that the applicant’s appeal had been lodged out of time.
The appellate court’s judgment could not be served on the applicant as his whereabout were unknown. The District Court therefore served it on a guardian appointed to represent the applicant for that purpose.
4. Divorce proceedings
On 25 April 1997 the applicant claimed a divorce from his wife before the Košice I District Court.
On 1 August 1997 the applicant’s wife requested that the applicant’s claim be dismissed. On 15 August 1997 the Košice I District Office submitted information about the applicant’s children to the District Court.
On 18 August 1997 the District Court requested the applicant to submit documents concerning his health.
On 4 November 1997 the applicant challenged the judge. He withdrew his objection on 19 January 1998.
The case file was returned to the Košice I District Court on 2 March 1998. On 20 April 1998 the applicant and his wife were divorced. The District Court gave custody of their two minor children to the mother and ordered the applicant to contribute to their maintenance.
The applicant’s wife appealed on 18 May 1998. The applicant submitted his memorial on 6 August 1998. On 25 August 1998 the applicant’s wife was invited to pay the court fees. She challenged the decision on 10 September 1998. The District Court exempted her from the obligation to pay the court fees and submitted the case file to the Košice Regional Court on 26 November 1998.
On 10 May 1999 the Košice Regional Court quashed the District Court’s decision on maintenance of the children. It further upheld the remainder of the first instance judgment.
As the applicant’s whereabouts were unknown, the District Court asked his lawyer, on 24 February 2000, to ensure that the applicant attend the hearing. Both the lawyer and the applicant’s former employer were requested to submit information about the applicant’s income. On 6 March 2000 the lawyer replied that he no longer represented the applicant.
On 29 March 2000 a hearing was held in the applicant’s absence.
Subsequently the District Court appointed a guardian to the applicant. On 31 January 2001 it delivered a judgment in which it decided on the maintenance of the applicant’s children. The judgment became final on 23 March 2001.
5. Proceedings concerning the division of marital property
On 15 May 1997 the applicant’s wife claimed the division of her and the applicant’s marital property before the Košice I District Court. The applicant submitted his observations on 1 August 1997.
The applicant failed to appear at a hearing scheduled for 2 October 1997.
On 6 October 1997 the District Court made an inquiry about the applicant’s health.
As the applicant refused to receive the letters sent by the court, the latter asked the police for assistance in delivering the mail.
On 5 December 1997 the applicant challenged the District Court judges. On 26 February 1998 the Košice Regional Court excluded several District Court judges from dealing with the case. The case file was returned to the District Court on 5 May 1998.
On 15 January 1999 the Košice I District Court divided the marital property of the applicant and his wife. The judgment became final on 17 February 1999.
6. Defamation proceedings brought by the applicant
On 10 August 1998 the applicant filed an action against his wife alleging that she had interfered with his personality rights.
On 19 August 1998 the Trebišov District Court informed the applicant that the case had been transferred to the Košice II District Court for reasons of jurisdiction.
On 27 August 1998 the applicant challenged the above decision as he considered it erroneous.
On 30 October 1998 the Košice Regional Court decided that the case fell within the jurisdiction of the Trebišov District Court.
On 15 January 1999 the Trebišov District Court invited the applicant to pay the court fees.
On 29 January 1999 the applicant requested that he be exempted from the obligation to pay the fees. On 6 April 1999 he submitted documents in support of his request.
A hearing was held on 9 September 1999. The defendant failed to appear.
On 26 September 1999 the applicant complained to the General Prosecutor’s Office that the Trebišov District Court was not proceeding with his case.
Upon a request by the Trebišov District Court of 7 February 2000 the Košice II District Court heard the defendant on 7 March 2000.
A hearing before the Trebišov District Court was held on 2 May 2000. The applicant did not appear. On 17 May 2000 the Malé Ozorovce municipal office informed the District Court that the applicant had not lived at his place since 1999 and that his whereabouts were unknown.
On 6 June 2000 the Trebišov District Court dismissed the action. At the hearing the applicant was represented by a guardian appointed by the court as his whereabouts were unknown. The judgment became final on 19 August 2000.
7. Entering of the applicant’s week-end house by the police
On 12 November 1997 the applicant’s wife informed the police that there were two human bodies in their week-end house. On 13 November 1997 the police forcibly entered the cottage but found no evidence of a crime. A record established by the police on the same day indicates that the inspection of the premises was carried out in the presence of the applicant’s wife, who was the co-owner of the house, and the mayor of Malé Ozorovce. The applicant’s wife agreed that the door be opened by force as she did not have the keys. Subsequently the locks were changed and the applicant’s wife kept the keys.
In a letter of 2 December 1997 the director of the criminal police in Trebišov informed the applicant about the examination of his house and the reasons therefor.
On 16 January 1998 the supervision department of the Ministry of the Interior dismissed the applicant’s complaint as being unsubstantiated.
8. Criminal complaints filed by the applicant
The applicant filed numerous complaints relating to the above facts to the police, the Ministry of the Interior and to public prosecutors at three levels. He also unsuccessfully tried to have criminal proceedings brought against his wife, policemen, investigators, public prosecutors and experts involved.
B. Relevant domestic law
The Code of Civil Procedure
Section 127 (1) provides that courts shall appoint and hear an expert when their decision depends on the assessment of facts requiring special knowledge.
Section 191a (1) provides that medical institutions are obliged to notify the competent court within 24 hours about the detention, for the reasons set out in special rules, of any person without his or her written consent.
Under Section 191b (1), the court shall bring proceedings upon such a notification with a view to determining whether the interference was justified.
Pursuant to paragraph 2 of Section 191b, the court shall appoint a guardian to the person concerned unless he or she has a representative.
Paragraph 3 of Section 191b provides that the court shall take evidence with a view to determining whether the person was placed in a medical institution in accordance with the law. It shall hear both the person concerned and his or her doctor.
Pursuant to paragraph 4 of Section 191b, the court shall decide on the lawfulness of the interference within five days from the moment when the person concerned was brought to the hospital.
Section 191c (1) provides, inter alia, that a judicial decision under Section 191b (4) shall be served on the person concerned within 24 hours after it has been taken and not later than five days from the moment when his or her liberty was restricted unless the doctor indicates that such a person is not capable of understanding its contents.
Code of Criminal Procedure
Section 116 (1) provides that two experts in psychiatry shall be appointed upon a written order by a court when it is necessary to examine the mental health of an accused person.
Pursuant to Section 116 (2), a judge may order in the course of preliminary proceedings, on the proposal of a public prosecutor, that an accused be examined in a hospital when his or her mental health cannot be examined by other means.
The Police Corps Act of 1993
Section 19 (1) (a) entitles the police to apprehend a person who directly endangers his/her or other persons’ health, life or property.
Section 19 (3) provides that the police shall, where appropriate, hand over the apprehended person to prosecuting authorities or to other competent authorities.
Pursuant to Section 19 (4), when there is no need for such a person to be handed over to a different authority, he or she shall be immediately released. A person’s apprehension for reasons set out in Section 19 (1) shall not exceed 24 hours.
Pursuant to Section 29 (2), the police are authorised to open and enter a person’s dwelling and to take any action with a view to preventing a possible danger when there is a justified suspicion that a dead person is inside.
Paragraph 3 of Section 29 provides that, where possible, a third person shall attend.
Under paragraph 4 of Section 29, the owner of the premises shall be informed after the appropriate action has been taken. The premises shall be locked when the owner cannot do so.
Section 29 (6) requires that the police establish a record about their entering the premises and about the action taken.
Pursuant to Section 78 (5), the State is liable for damage caused by the police in the context of the exercise of their functions unless such damage is the consequence of an unlawful action of the person concerned or of a justified action of the police. Paragraph 6 of Section 78 provides that the damages are payable by the Ministry of the Interior. The latter’s decision on a claim for compensation can be reviewed by a court. Such proceedings are governed by the relevant provision of the State Liability Act of 1969 in respect of which Section 78 of the Police Corps Act is a lex specialis.
The State Liability Act of 1969
Section 18 (1) of Act No. 58/1969 on the liability of the State for damage caused by the decision of a State organ or by its erroneous official action (Zákon o zodpovednosti za škodu spôsobenú rozhodnutím orgánu štátu alebo jeho nesprávnym úradným postupom - “the State Liability Act”) 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 under this provision may 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.
A claim for damages is to be lodged with the competent central government authority. The latter’s decision on it can be challenged before a court.
COMPLAINTS
1. The applicant alleges a violation of Article 3 of the Convention in that he was apprehended on 30 November 1996, that he was examined in a mental hospital against his will several times and that the courts and other authorities considered him as a mentally-ill person.
2. Under Article 5 §§ 1, 2, 3 and 4 of the Convention the applicant complains about unlawfulness of (i) his deprivation of liberty on 30 November 1996, (ii) his examinations in a mental hospital between 30 November and 10 December 1996, on 9 June 1997 and also between 11 and 18 November 1997.
3. The applicant complains under Article 6 §§ 1 and 2 of the Convention that his right to a fair hearing and to be presumed innocent was violated in the criminal proceedings against him.
4. Under Article 6 § 1 of the Convention the applicant complains about the length of the proceedings concerning his legal capacity, the divorce proceedings, the proceedings concerning the separation of marital property and also of the defamation proceedings brought by him.
5. The applicant alleges a violation of Articles 8 and 10 of the Convention in that he was repeatedly examined in mental hospitals, that Slovakian authorities failed to provide him with effective protection against the allegations of his former wife that he suffered from a mental disease, and that the examination of his week-end house on 13 November 1997 was unlawful.
6. The applicant complains that the police and public prosecutors dismissed his criminal complaints and that he had to drop his business and leave Slovakia on account of the above facts. He invokes Article 17 of the Convention, Article 1 of Protocol No. 1 and Articles 2 and 3 of Protocol No. 7.
7. Finally, the applicant alleges a violation of Article 13 of the Convention in that he had no effective remedy at his disposal as regards the above alleged violations of his rights under the Convention and its protocols.
THE LAW
1. The applicant complains that he was subjected to inhuman and degrading treatment in that he was apprehended on 30 November 1996, that he was examined in a mental hospital against his will and that the courts and other authorities considered him as a mentally-ill person. He alleges a violation of Article 3 of the Convention which provides as follows:
“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”
Even assuming that domestic remedies were exhausted, the Court finds, on the basis of the documents before it, that the treatment complained of by the applicant did not attain a degree of gravity sufficient to conclude that his right under Article 3 was thereby infringed (see, mutatis mutandis, the Campbell and Cosans v. the United Kingdom judgment of 25 February 1982, Series A no. 48, §§ 27 and 28, with further reference).
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 complains about the unlawfulness of (i) his deprivation of liberty on 30 November 1996 and (ii) his examinations in a mental hospital between 30 November and 10 December 1996, on 9 June 1997 and also between 11 and 18 November 1997. He invokes Article 5 §§ 1, 2, 3 and 4 of the Convention the relevant parts of which read 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: ...
(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law; ...
(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;”
2. 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.
3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”
The Government first contend that the applicant failed to exhaust domestic remedies as regards his complaint under Article 5 § 1 of the Convention as he did not claim compensation for damage pursuant to the relevant provisions of the State Liability Act of 1969 and the Police Corps Act of 1993.
As to the merits of this part of the application, the Government maintain that the applicant’s deprivation of liberty fell under Article 5 § 1 (e) of the Convention and that it was in accordance with the relevant provisions of the Slovakian law. The examination of the applicant was made necessary by his strange behaviour which justified the suspicion that he suffered from a mental disorder.
The applicant maintains that he had no effective remedies at his disposal. He further contends that he was deprived of liberty unlawfully and that such interference had no justification. In the applicant’s view, the domestic authorities erroneously relied on allegations of his former wife according to which he was mentally ill. As regards his examination in a mental hospital between 30 November and 10 December 1996, the applicant maintains that the procedure laid down in Sections 191a, 191b and 191c of the Code of Civil Procedure was not respected.
a) The Court notes that the deprivations of liberty complained of by the applicant were of short duration, namely between ten days and several hours. In these circumstances, the purpose of the remedy invoked by the Government was exclusively to provide compensation to the applicant but it apparently could not put an end to the deprivation of liberty of which the applicant complains. Such a remedy cannot, therefore, be considered as effective for the purposes of Article 35 § 1 of the Convention in respect of the applicant’s complaint under Article 5 § 1 (see, mutatis mutandis, Drozd and Janousek v. France and Spain, no. 12747/87, Commission decision of 12 December 1989, Decisions and Reports (DR) 64, p. 97 and the Court’s judgment in the same case of 26 June 1992, Series A no. 240, § 103 as well as Zdebski and Others v. Poland (dec.), no. 27748/95, 6 April 2000).
Accordingly, the Government’s objection relating to the applicant’s failure to exhaust domestic remedies must be dismissed.
b) To the extent that the applicant complains under Article 5 § 1 about his apprehension by the police in the morning of 30 November 1996, the Court notes that the police had been warned earlier by the applicant’s wife that the applicant’s behaviour was strange, that he carried weapons and that he had drunk alcohol and intended to drive a car. This information was not unsubstantiated as the police actually found that the applicant carried a sword and that he had been drinking. The applicant’s apprehension was in accordance with the relevant law, namely Section 19 of the Police Corps Act of 1993 and there is no indication that it was arbitrary.
Against this background, the Court is satisfied that the applicant’s apprehension in the morning of 30 November 1996 was compatible with domestic law and “lawful” within the meaning of Article 5 § 1 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.
c) To the extent that the applicant complains under Article 5 § 1 about his placement in a mental hospital between 30 November and 10 December 1996 and the alleged shortcomings in the procedure relating to the review of its lawfulness, the Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
d) The Court further notes that, in the context of the criminal proceedings, the police first brought the applicant to experts for an examination as an out-patient on 9 June 1997. The examination had been previously ordered by the Košice I District Court on 5 June 1997. As the application was introduced by a letter of 22 February 1998 posted on 11 March 1998, in respect of this complaint the applicant did not respect the six months’ time-limit laid down in Article 35 § 1 of the Convention.
It follows that this complaint has been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
e) As regards the applicant’s complaint under Article 5 § 1 about his examination, as an in-patient, in the mental hospital in Prešov between 11 and 18 November 1997, the Court notes that it was carried out upon the order of the Košice I District Court of 3 July 1997 which was upheld by the Košice Regional Court on 6 August 1997. It accordingly pursued the aim of carrying out the judicial order to examine the applicant’s mental state in the context of criminal proceedings brought against him and falls under Article 5 § 1 (b) of the Convention.
The Court recalls that a period of detention is, in principle, lawful, if it is based on a court order (see Benham v. the United Kingdom judgment of 10 June 1996, Reports of Judgments and Decisions 1996-III, §§ 42-47).
In the present case the applicant’s examination was ordered by courts at two levels of jurisdiction with reference to Section 116 (2) of the Code of Criminal Procedure. It thus had a legal basis in Slovakian law, and the courts had regard to a proposal by two experts who had previously examined the applicant as an out-patient and who had concluded that an examination in a mental hospital was necessary with a view to establishing a detailed diagnosis of the applicant’s health.
The Court finds no indication that, in ordering the applicant’s examination, the domestic courts exceeded their jurisdiction or acted in an arbitrary manner.
Against this background, the Court is satisfied that the first applicant’s placement in the mental hospital between 11 and 18 November 1997 complied with “a procedure prescribed by law” and was “lawful” within the meaning of Article 5 § 1 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.
f) The Court notes that the aim of the applicant’s original complaint under Article 5 was to challenge the lawfulness of his deprivation of liberty in question, and that he originally alleged, in substance, a violation of Article 5 § 1 of the Convention.
The applicant expressly invoked his rights under Article 5 §§ 2, 3 and 4 of the Convention for the first time in his observations of 1 November 2001 submitted in reply to the observations of the respondent Government. In the Court’s view, the complaints under paragraphs 2, 3 and 4 of Article 5 represent new complaints which should be considered, for the purpose of Article 35 § 1 of the Convention, as having been introduced on 1 November 2001, that is more than six months before the final domestic decisions relating to the relevant facts.
It follows that these complaints have been introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.
3. The applicant complains that his right to a fair hearing and to be presumed innocent was violated in the criminal proceedings against him. He alleges a violation of Article 6 §§ 1 and 2 of the Convention which provide, so far as relevant, as follows:
“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair and public hearing ... by an independent and impartial tribunal...
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.”
The Court notes that the Košice Regional Prosecutor found, on 12 March 1998, that the applicant had not committed any criminal offence and that no further action was taken in respect of the accusation filed against the applicant. In these circumstances, the applicant can no longer be considered as a victim, within the meaning of Article 34 of the Convention, of a violation of his right to a fair trial guaranteed by Article 6 § 1.
To the extent that the applicant complains that his right under Article 6 § 2 to be presumed innocent was violated in the context of the criminal proceedings, and even assuming that he still can be considered a victim within the meaning of Article 34 of the Convention, the Court finds no indication in the documents before it that the authorities dealing with the case expressed the opinion that the applicant was guilty of an offence contrary to the requirements of Article 6 § 2 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.
4. The applicant complains about the length of the proceedings concerning his legal capacity, the divorce proceedings, the proceedings concerning the division of marital property and also of the defamation proceedings brought by him. He invokes Article 6 § 1 of the Convention which, so far as relevant, provides:
“In the determination of his civil rights and obligations ..., everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal...”
The Government object that the applicant failed to claim compensation for the delays in the proceedings complained of pursuant to the relevant provisions of the State Liability Act of 1969. They conclude that he did not exhaust domestic remedies as required by Article 35 § 1 of the Convention.
The applicant maintains that he had no effective remedy at his disposal.
The Court found earlier that the above remedy is not effective and need not be exhausted for the purposes of Article 35 § 1 of the Convention as, in particular, the relevant domestic practice indicates that it does cover claims for compensation for damage of non-pecuniary nature (see Havala v. Slovakia (dec.), no. 47804/99, 13 September 2001). It finds no reason for reaching a different decision in the present case. Accordingly, the applicant’s complaint cannot be declared inadmissible for non-exhaustion of domestic remedies.
As to the merits, the Government submit that the length of the proceedings is mainly due to the applicant’s behaviour. They point out, in particular, that the applicant repeatedly challenged the officials dealing with his case and that he introduced several complaints concerning the conduct of the proceedings. The Government conclude that the reasonable time requirement was respected.
The applicant contends that the proceedings in question lasted an unreasonably long time.
The Court notes that the proceedings concerning the applicant’s legal capacity lasted from 18 June 1996 to 30 May 2000, that is three years, eleven months and twelve days. During this period the case was examined by courts at two levels of jurisdiction. The divorce proceedings were brought on 25 April 1997 and they ended on 31 January 2001, when the Košice I District Court delivered a judgment on the maintenance of the applicant’s children. These proceedings lasted three years, nine months and six days. During this time the claim concerning the divorce was examined by courts at two levels of jurisdiction and the District Court re-examined a second time the claim concerning the maintenance following the appellate court’s decision to quash the relevant part of its judgment delivered on 20 April 1998.
The proceedings concerning the division of marital property lasted from 15 May 1997 to 15 January 1999, that is one year and eight months. As to the defamation proceedings brought by the applicant, they lasted from 10 August 1998 to 6 June 2000, that is one year and more that nine months.
Making an overall assessment of the length of the above proceedings (see, mutatis mutandis, Olstowski v. Poland, no. 34052/95, 15 November 2001, § 86, with further references), they did not, in the Court’s view, go beyond what may be considered reasonable in the particular circumstances of the case. The applicant’s complaint does not, therefore, disclose any appearance of a violation of Article 6 § 1 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.
5. The applicant complains that he was repeatedly examined in mental hospitals, and that the inspection of his week-end house on 13 November 1997 was unlawful. He alleges a violation of Article 8 of the Convention which provides as follows:
“1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
The Government contend that the applicant failed to exhaust domestic remedies as he did not claim compensation for damage pursuant to the relevant provisions of the Police Corps Act of 1993 in conjunction with the State Liability Act of 1969.
The applicant maintains that in practice he could not obtain redress by means of the remedy invoked by the Government.
The Court notes that under the relevant domestic practice it has not been established that a claimant can obtain compensation for non-pecuniary damage by means of an action under the State Liability Act of 1969 (see point 4 above). Accordingly, this remedy was not capable of providing appropriate redress to the applicant in respect of the alleged violation of his rights under Article 8 of the Convention. The Government’s objection must therefore be dismissed.
As to the merits of this part of the application, the Government argue that the interference complained of was in accordance with the relevant law, that it pursued the legitimate aim of protecting the rights and freedoms of others and that it was not disproportionate to that aim.
The applicant disagrees and maintains, in particular, that the Slovakian authorities acted unlawfully and that there existed no relevant reasons for the interference in question.
a) The Court notes that it is not contested between the parties that the examination of the applicant’s week-end house amounted to an interference with his right to respect for his home and private life guaranteed by Article 8 § 1. Such interference constitutes a violation of this Article unless it was “in accordance with the law”, pursued an aim or aims that are legitimate under paragraph 2 of Article 8 and can be regarded as “necessary in a democratic society” to achieve the aim or aims concerned.
The interference complained of had a legal basis, namely Section 29 (2) of the Police Corps Act of 1993. It was carried out in the presence of a municipal official, the applicant was subsequently notified about the reasons therefor, and a record was drawn up as required by paragraphs 3, 4 and 6 of Section 29 of the Police Corps Act of 1969. Accordingly, the interference complained of was “in accordance with the law”.
The Court further notes that the search was carried out upon information submitted by the applicant’s wife, according to which she had seen bodies of dead persons in the house. The police were under an obligation to verify such an allegation and their entering the house can be therefore regarded as having been necessary for the prevention of crime within the meaning of Article 8 § 2 of the Convention. The fact that such an allegation turned out to be untrue cannot affect this position as, at the relevant time, there was apparently no indication to that effect.
The Court notes that the police entered the house with the agreement and in the presence of the applicant’s wife, who was its co-owner. The police apparently restricted their search to verifying whether her allegation was true. Subsequently they changed the locks and handed the keys over to the applicant’s wife. In a letter of 2 December 1997 the director of the criminal police in Trebišov informed the applicant about the intervention.
Taking into account that a certain margin of appreciation is left to the Contracting States in assessing the need for an interference with a person’s rights under Article 8 § 1 of the Convention, the Court finds that, in the particular circumstances of the case, the interference was not disproportionate to the legitimate aim pursued. Accordingly, it can be regarded as “necessary in a democratic society” within the meaning of Article 8 § 2.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
b) To the extent that the applicant complains about interference with his private life resulting from his examination in a mental hospital between 30 November and 10 December 1996, the Court considers, in the light of the parties’ submissions, that the complaint raises serious issues of fact and law under the Convention, the determination of which requires an examination of the merits. The Court concludes therefore that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. No other ground for declaring it inadmissible has been established.
c) As to the applicant’s complaint about his examination in a mental hospital between 11 and 18 November 1997, the Court notes that the interference complained of had a legal basis, namely Section 116 (2) of the Code of Criminal Procedure. There is no reason to doubt that it pursued the legitimate aim of protecting the rights and freedoms of others, as the applicant was suspected of having injured his wife, and also of the applicant’s own health and rights.
The Court notes that the examination in question was ordered in the context of criminal proceedings against the applicant. The courts relied on the conclusion of two experts that the applicant apparently suffered from a mental disease and that an in-patient examination was required with a view to establishing a more specific diagnosis. Furthermore, the Košice Regional Court pointed out, in its decision of 6 August 1997, that the evidence available indicated that the applicant had behaved in an aggressive manner and that he had allegedly attempted to rape his daughter.
The task of the Court is not to take the role of the domestic authorities which are in a better position to assess the relevant facts of the case. It is rather its role to review under the Convention the decisions taken by them in the exercise of their powers (see, mutatis mutandis, the Bronda v. Italy judgment of 9 June 1998, Reports of Judgments and Decisions 1998-IV, p. 1491, § 59).
Having regard to the case as a whole, the Court finds that the reasons invoked by the domestic courts were relevant and sufficient and that the interference complained of was not disproportionate to the legitimate aim pursued. The fact that the experts concluded, after having examined the applicant as an in-patient, that he suffered from a disorder which did not amount to a mental disease cannot affect this position.
It follows that this complaint is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.
6. The applicant complains that the Slovakian authorities failed to provide him with effective protection against the allegations of his former wife that he suffered from a mental disease. He invokes Article 10 of the Convention which reads as follows:
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
The Government contend that the applicant failed to exhaust domestic remedies as he did not claim compensation for damage pursuant to the relevant provisions of the State Liability Act of 1969.
The applicant disagrees.
The Court notes that the applicant sought redress before the competent court by means of an action for protection of his good name and reputation. The action was dismissed by the Trebišov District Court on 6 June 2000. The applicant did not file an appeal and it became final on 19 August 2000. In these circumstances, the applicant failed to exhaust domestic remedies as required by Article 35 § 1 of the Convention. The Court considers irrelevant that the judgment was not served on the applicant in person as he neither appointed a representative in the proceedings nor did he inform the court of his address.
It follows that this complaint must be rejected under Article 35 §§ 1 et 4 of the Convention for non-exhaustion of domestic remedies.
7. The applicant complains that the police and public prosecutors dismissed his criminal complaints and that he had to abandon his business and leave Slovakia on account of the above facts. He invokes Article 17 of the Convention, Article 1 of Protocol No. 1 and Articles 2 and 3 of Protocol No. 7.
a) To the extent that the applicant complains about the dismissal of his criminal complaints, the Court recalls that there is no right under the Convention to have criminal proceedings brought against third persons. Furthermore, the Court finds no appearance of a violation of the applicant’s Convention rights in this context.
b) The Court has also examined the applicant’s complaints under Article 17 of the Convention, Article 1 of Protocol No. 1 and under Articles 2 and 3 of Protocol No. 7 but finds, to the extent that these complaints 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.
8. Finally, the applicant complains that he had no effective remedies at his disposal as regards the above alleged violations of his rights under the Convention and its protocols. He alleges a violation of 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.”
a) The Court recalls that the remedy within the meaning of Article 13 does not mean a remedy which is bound to succeed, but simply an accessible remedy before an authority competent to examine the merits of the complaint (see Beller v. Poland (dec.), no. 51837/00, 23 October 2001).
To the extent that the applicant complains that he had no effective remedy at his disposal as regards his examination in a mental hospital between 30 November and 10 December 1996, the Court notes that it was open to the applicant to file a complaint against the Košice II District Court’s decision of 9 December 1996. He filed such a complaint and the lawfulness of his deprivation of liberty was reviewed by the Košice Regional Court. Accordingly, in this respect the applicant had a remedy at his disposal as required by Article 13.
b) As to the alleged lack of remedies in respect of the remaining complaints, the Court recalls that Article 13 only requires a remedy in domestic law in respect of grievances which can be regarded as “arguable” in the terms of the Convention (see, for example, the Powell and Rayner v. the United Kingdom judgment of 21 February 1990, Series A no. 172, § 33).
Since the Court has rejected the other complaints as being inadmissible, they cannot be regarded as being “arguable” for the purposes of Article 13 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.
For these reasons, the Court unanimously
Declares admissible, without prejudging the merits, the applicant’s complaints under Articles 5 § 1 and 8 of the Convention concerning his examination in a mental hospital between 30 November and 10 December 1996;
Declares inadmissible the remainder of the application.
Michael O’BoyleNicolas Bratza
RegistrarPresident
Full & Egal Universal Law Academy