BAILII is celebrating 24 years of free online access to the law! Would you
consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it
will have a significant impact on BAILII's ability to continue providing free
access to the law.
Thank you very much for your support!
[New search]
[Contents list]
[Printable RTF version]
[Help]
FOURTH
SECTION
CASE OF LEXA v. SLOVAKIA (no. 2)
(Application
no. 34761/03)
JUDGMENT
STRASBOURG
5
January 2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Lexa v. Slovakia
(no. 2),
The
European Court of Human Rights (Fourth Section), sitting as a Chamber
composed of:
Nicolas Bratza, President,
Lech
Garlicki,
Ljiljana Mijović,
David Thór
Björgvinsson,
Ján Šikuta,
Päivi
Hirvelä,
Mihai Poalelungi, judges,
and
Fatoş Aracı, Deputy
Section Registrar,
Having
deliberated in private on 1 December 2009,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 34761/03) against the Slovak
Republic lodged with the Court under Article 34 of the Convention for
the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Slovak national, Mr Ivan Lexa (“the
applicant”), on 23 October 2003.
- The
applicant was represented by Mr Ľ. Hlbočan and Mr J. Cuper,
lawyers practising in Bratislava. The Government of the Slovak
Republic (“the Government”) were represented by Mrs A.
Poláčková and
Mrs. M. Pirošíková,
their successive Agents.
- The
applicant alleged, in particular, that he had been remanded in
custody contrary to his rights under Article 5 §§ 1 and 4
of the Convention.
- On
9 May 2006 the Court decided to give notice of the application to the
Government. It also decided to examine the merits of the application
at the same time as its admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1961 and lives in Bratislava. Between 1995
and 1998 he was the Director of the Slovak Information Service
(Slovenská informačná
sluZba), the Slovakian intelligence service. In September
1998 he was elected as a member of the National Council of the Slovak
Republic (the Parliament) for a four-year term.
A. Criminal proceedings against the applicant and his
detention on remand
- The
applicant was summoned to give an explanation to a police
investigator on 5 December 2002. On that day the investigator
arrested the applicant and issued a decision in which he accused him
of incitement to commit murder, abuse of authority and the
mishandling of information classified as a State secret. The decision
stated that the applicant was suspected of having prevented the
proper investigation of the offence of abduction of the son of the
then President of Slovakia abroad (for further details concerning
that case see also Lexa v. Slovakia, no. 54334/00, §§
9-63, 23 September 2008).
- In
particular, the decision referred to an extensive investigation
including several statements of experts, documentary evidence
obtained from the Slovak Intelligence Service, the examination of 58
witnesses including 8 witnesses whose identity was not disclosed and
other evidence. The information thus obtained sufficiently justified
the conclusion that the applicant, in his capacity as Director of the
Slovak Intelligence Service, had taken the action described below
with a view to (i) preventing the offence of abduction of the
President's son in 1995 from being elucidated, (ii) threatening
F., a former member of the Slovak Intelligence Service, who had
confirmed the involvement of the secret service in that offence and
who had later been forced to hide abroad and (iii) preventing witness
R. from maintaining contact with F. and killing the former. The
applicant was accused of offering 2 million Slovak korunas (SKK) to
S. to kill R. In that context, the applicant was suspected of having
arranged for the monitoring of several persons and had transmitted
the information thus obtained to S. despite the fact that it had been
classified as “strictly secret”. S. had asked at least
five persons to kill R. After the first attempt had failed, the
perpetrators had activated, in April 1996, an explosive device which
had been attached to R.'s car. The car had caught fire and R. had
died inside. The investigator's decision referred to a different
set of proceedings brought against two persons accused of having
activated the device.
- The
applicant immediately filed a complaint against the decision which a
public prosecutor dismissed on the same day. The public prosecutor
requested that the applicant be remanded in custody pursuant to
Article 67 § 1 (a), (b) and Article 67 § 2 of the Code of
Criminal Procedure.
- On
7 December 2002 the applicant, in the presence of two lawyers, was
heard by a judge of the Bratislava I District Court. The applicant
stated that he knew neither R. nor the persons allegedly involved in
his killing. His deprivation of liberty was arbitrary. The
evidence on which the investigator relied had not been obtained in
accordance with the relevant provisions of the criminal law and, as
such, it could not be used in proceedings before a court. The
applicant also complained that the investigator had not allowed him
or his lawyers to consult the file without relying on any relevant
reason. The judge informed the applicant that he would not put the
file at his disposal as, at that stage of proceedings, such action
was within the power of the investigator.
- On
the same day the judge remanded the applicant in custody with effect
from 5 December 2002. The judge did not accept that there was a risk
of the applicant's absconding or influencing witnesses within the
meaning of Article 67 § 1 (a) and (b) of the Code of Criminal
Procedure. However, the decision stated, with reference to Article 67
§ 2 of the Code of Criminal Procedure, that the applicant was
charged with an offence carrying a minimum prison sentence of twelve
years. The court's decision also stated that the investigator had
violated the applicant's right to be presumed innocent by holding
that his actions had met the constituent elements of the offences in
issue.
- The
applicant filed a complaint which he supplemented several times. He
alleged that the District Court judge had not allowed him or his
counsel to consult the case file and that the evidence available had
not been obtained in accordance with the procedural requirements and
did not justify his being accused of the offences in issue. The
applicant also submitted that the relevant events had occurred in
1996 and that, subsequently, public authorities had influenced public
opinion, indicating that the applicant was responsible for the events
in question. Furthermore, the first-instance court had disregarded
the applicant's own position, namely that the prosecuting authorities
were biased and had striven to remand him in custody by all means.
The applicant relied on the Court's case-law under Article 5 §§
1 and 4 of the Convention.
- On
7 January 2003 the applicant's counsel requested permission to
consult the file. The Bratislava Regional Court permitted them to do
so from 9 to 12 a.m. on 14 January 2003.
- The
Bratislava Regional Court dismissed the applicant's complaint against
the decision on his detention on remand at a meeting held on
14 January 2003, apparently shortly after the applicant's
counsel had consulted the file. The court met in camera; the relevant
law excluded both the applicant and the public prosecutor from
attending.
- The
decision stated that the applicant had been remanded in custody in
accordance with the applicable procedural rules and that his
detention was justified under Article 67 § 2 of the Code of
Criminal Procedure. As to the applicant's argument that he had been
accused of the offences in issue arbitrarily, the decision stated
that the Regional Court had thoroughly examined the evidence included
in the file. It noted that the criminal proceedings against the
applicant were at the initial stage only and concluded that the
evidence available at that time justified the suspicion that the
offences in issue had been committed. The applicant's detention was
not arbitrary. As to the applicant's objections to the conduct of the
criminal proceedings, the Regional Court pointed out that they fell
within the competence of the public prosecutor in charge of the case.
- On
14 February 2003 the Bratislava I District Court dismissed the
applicant's request for release.
- On
2 June 2003 a judge of the Bratislava I District Court refused to
extend the applicant's detention. The decision stated, inter alia,
that there had been relevant reasons for the applicant's detention on
remand when the Bratislava I District Court had delivered the above
decisions of 7 December 2002 and 14 February 2003. The file
contained evidence both against the applicant and in his favour. The
former type of evidence had been taken in 2000 in the context of
criminal proceedings against two other persons. As such it could
not be used in the context of the criminal proceedings against the
applicant. It was not clear why the investigator had not re-examined
the witnesses concerned in the context of the criminal proceedings
against the applicant. The reliability of certain statements could be
cast into doubt as they had been made by persons linked to organised
crime.
- The
judge further held that in the period after 5 December 2002 no
evidence had been obtained in support of the accusation against the
applicant. Thus during the six months the applicant was detained the
investigator and the prosecutor had failed to gather sufficient
evidence capable of strengthening the suspicion that the applicant
had committed the offence imputed to him. On the contrary, the
evidence obtained in the course of the last four months was in favour
of the applicant. The ground for his detention had therefore ceased
to exist.
- On
5 June 2003 the public prosecutor ordered the applicant's release.
- On
21 September 2006 the Special Prosecution Service at the General
Prosecutor's Office discontinued the criminal proceedings on the
ground that the facts underlying the proceedings had not occurred.
The decision stated, inter alia, that the file contained no
relevant evidence indicating that the applicant had committed the
offence imputed to him. There was no proof that the accused persons
in the other set of proceedings had committed the offence which,
according to the accusation, the applicant had allegedly incited them
to commit.
B. Press coverage of the applicant's case and
statements of public officials
- On
5 December 2002 an extraordinary briefing was held at which the
Minister of the Interior provided details concerning the arrest of
the applicant. The Minister read out extracts from the decision by
which the applicant had been accused.
- On
6 December 2002 the daily Sme with nationwide distribution
published an article about the case. It reported on the Minister's
statements at the above briefing. Reference was also made to a
statement by a public prosecutor who had pointed out that the
decision on the applicant's guilt or innocence lay with a court and
had expressed the view that the existing evidence was sufficient.
- On
10 December 2002 Sme published an interview with the
investigator who had accused the applicant of the above offences. The
investigator stated that the police had had sufficient evidence,
comprising both witness statements and documents, to bring criminal
proceedings against the applicant.
- On
14 December 2002 Sme reported on statements made by the public
prosecutor in charge of the applicant's case. According to those
statements, one witness had confirmed that the applicant had offered
him SKK 2 million for the killing of the person concerned.
- Finally,
on 16 December 2002 Sme published an article about the judge
of the Bratislava I District Court who had remanded the applicant in
custody. The article indicated that the judge had been aware that the
applicant had been summoned to appear before a police investigator on
5 December 2002. At that time the judge had been on duty and he
had had a premonition that “something would happen”. The
judge expressed the view that the case had fallen to be dealt with by
him by pure chance. The judge had had only one day to study the file,
which comprised several hundred pages. The hearing of the applicant
prior to his detention on remand had lasted 4 hours. The judge
confirmed that, according to documents included in the file, one
witness had confirmed that the applicant had asked him to eliminate a
witness against him for SKK 2 million.
C. Constitutional proceedings
- On
13 March 2003 the applicant filed a complaint with the Constitutional
Court. He alleged a violation of his rights under Article 5 §§
1, 3 and 4 and under Article 6 §§ 1, 2 and 3 of the
Convention. He also relied on several constitutional provisions.
- As
regards the proceedings leading to the Bratislava I District Court's
decision to remand him in custody, the applicant complained that the
judge had not allowed him and his counsel to consult the case file,
indicating that such a decision was within the competence of the
investigator. The applicant thus could not show that his accusation
had been based on evidence which had been obtained by unlawful means
and which, for that reason, could not be used in proceedings before a
court. The judge had not examined whether relevant reasons for the
applicant's detention had existed.
- The
applicant further complained that the judge of the Bratislava I
District Court had subsequently given an interview in which he had
made comments on the applicant's deprivation of liberty and disclosed
details from the case file. The applicant affirmed that those
statements had been made in the context of a campaign launched
against him. His rights to a fair hearing and to be presumed innocent
had thereby been violated.
- As
regards the decision given by the Bratislava Regional Court on
14 January 2003, the applicant complained that the principle of
equality of arms had been breached as he had not had sufficient time,
after his counsel had consulted the file, to supplement his complaint
against the decision on his detention on remand. He had been accused
on the strength of evidence obtained contrary to the relevant
provisions of the Code of Criminal Procedure in that it had been
taken previously within the framework of another set of proceedings.
That had been a deliberate attempt to diminish his ability to defend
himself. That evidence could not be used in proceedings before
courts, including proceedings concerning his detention on remand.
- On
16 April 2003 the Constitutional Court rejected the complaint. The
decision stated that the Constitutional Court lacked the power to
review the factual findings of ordinary courts in matters relating to
detention on remand. The Constitutional Court found that in the
context of the criminal proceedings brought against him the applicant
risked a minimum prison term of twelve years. The material condition
for his detention on remand under Article 67 § 2 of the Code of
Criminal Procedure had therefore been made out. Both courts had
examined the file and concluded that the evidence available justified
the suspicion that the applicant had been involved in the offences
concerned. However, a “reasonable suspicion” that a
person had committed an offence did not require the existence of
proof. In respect of this part of the applicant's complaint the
Constitutional Court concluded that it lacked the power to substitute
the decision-making of the ordinary courts on the applicant's
detention on remand.
- The
Constitutional Court further declared manifestly ill-founded the
complaints under Article 5 § 3 and Article 6 of the Convention.
It noted that the applicant had been assisted by two advocates during
his examination by the judge of the District Court. He had had an
adequate opportunity to defend his rights. As to the alleged
violation of Article 5 § 4 of the Convention, the Constitutional
Court held that it had been open to the applicant to bring
proceedings with a view to challenging the lawfulness of his
detention on remand. However, he had not availed himself of that
right. There was no causal link between the conduct of the ordinary
courts in the proceedings in issue and the applicant's right under
Article 5 § 4 of the Convention. As regards the principle of
equality of arms enshrined in Article 6 of the Convention, it was not
applicable to proceedings in which the courts deprive a person of
liberty for the purpose of his or her criminal prosecution.
- Finally,
the Constitutional Court noted that the applicant had filed his
complaints under Articles 6 §§ 1 and 2 of the Convention
about the statements made by the District Court judge more than two
months after he had learned about the article in issue. In that
respect, the statutory time-limit had not been respected.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Code of Criminal Procedure
- Article
65 § 1 gives the accused person the right to consult the file
with certain restrictions enumerated therein. Paragraph 2 provides
that, at the pre trial stage, the public prosecutor or the
police authority can only refuse a person access to a file concerning
him or her for exceptional reasons.
- Article
67 § 2 provides that an accused person can be remanded in
custody where he or she is prosecuted for an offence punishable with
a minimum prison sentence of eight years.
- Article
74 § 1 provides that a complaint is available against a decision
to remand a person in custody.
- Under
Article 163 § 1, where the facts established sufficiently
justify the conclusion that a criminal offence was committed by a
particular person, the investigator or police authority shall deliver
a decision, without delay, accusing that person of the offence in
issue. The accused is to be notified of the decision within three
days and not later than at the beginning of his or her first
examination.
B. Supreme Court's practice
- In
accordance with the Supreme Court's practice (Rt 95/1999), when
considering whether reasons for remanding a person in custody exist,
the authorities may have regard exclusively to circumstances and
findings which have their basis in the procedural steps aimed at the
establishment of evidence and which are relevant for the conclusion
that a statutory reason exists for detaining a person in custody.
- In
decision Tpj 3/95 of 23 October 1995 the Supreme Court held that the
detention on remand of a person under Article 67 § 2 of the Code
of Criminal Procedure is lawful where the accused person is
prosecuted for an offence punishable with a minimum prison term of
eight years provided that a justified suspicion exists that the
person concerned committed the offence imputed to him or her. The
above minimum prison term as such does not render an accused person's
detention mandatory in each case. Article 67 § 2 permits a
decision not to remand such an accused person in custody where it is
justified by the circumstances of the case or the situation of the
accused.
- In
decision NtvI-20/02 of 10 January 2003 the Supreme Court expressed
the view that the minimum prison term set out in Article 67 § 2
of the Code of Criminal Procedure could be the sole reason for a
person's detention only for a limited time, in particular at the
initial stage of criminal proceedings. If a person was detained for
longer, further relevant reasons were required.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
- The
applicant complained that his detention had been unlawful because
there were no grounds for reasonable suspicion that he had committed
an offence and because the evidence on which his accusation had been
based was inadmissible in the criminal proceedings against him. He
relied on Article 5 § 1 of the Convention, which reads as
follows:
“Everyone has the right to liberty and security of
person. No one shall be deprived of his liberty save in the following
cases and in accordance with a procedure prescribed by law: ...
(c) the lawful arrest or detention of a
person effected for the purpose of bringing him before the competent
legal authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so; ...”
- The
Government initially contested that argument but in their subsequent
submissions they admitted that the complaint raised serious issues
from the point of view of the Convention.
A. Admissibility
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The parties' submissions
- The applicant maintained that he had been remanded in
custody for strictly formal reasons, namely, because he risked a
heavy penalty within the meaning of Article 67 § 2 of the Code
of Criminal Procedure. The file contained no relevant evidence on the
basis of which the applicant could be reasonably suspected of having
committed the offences imputed to him. The courts had failed to
examine to what extent the accusation against the applicant was
justified and his detention necessary, in particular with due regard
to the circumstances of the case and the applicant as an individual.
- The
possibility of remanding a person in custody for reasons set out in
Article 67 § 2 of the Code of Criminal Procedure entailed the
risk of abuse and arbitrariness. In the applicant's view, his
deprivation of liberty was a case in point. In this respect the
applicant pointed out that at the relevant time he had been a
representative of a political party and that he had been remanded in
custody at a time when local elections were to be held.
- In
their observations submitted in September 2006 the Government argued
that the applicant had been detained in accordance with the
requirements of Article 5 § 1 (c) of the Convention. He had been
remanded in custody pursuant to Article 67 § 2 of the Code
Criminal Procedure and there had been a reasonable suspicion that he
had committed the offences in issue. The fact that the evidence on
which the authorities relied could not formally be used in the
criminal proceedings against the applicant did not affect the
position.
- In
their subsequent submission of January 2007 the Government referred
to the prosecutor's decision to discontinue the criminal proceedings
given on 21 September 2006 and also to the Bratislava I District
Court's decision dismissing the request for an extension of the
applicant's detention. On the basis of those decisions the Government
expressed certain doubts as to whether there had been a reasonable
suspicion that a criminal offence imputable to the applicant had been
committed justifying his detention on remand. They left the
determination of that issue to the Court.
2. The Court's assessment
(a) Recapitulation of the relevant principles
- The
relevant practice of the Court is set out, for example, in Baranowski
v. Poland, no. 28358/95, §§ 50-51, ECHR 2000 III;
K.-F. v. Germany, 27 November 1997, §§ 50-54,
Reports of Judgments and Decisions 1997 VII; and O'Hara
v. the United Kingdom, no. 37555/97, §§ 34 and 36, ECHR
2001 X, all with further references. It can be summarised as
follows.
- The
expressions “lawful” and “in accordance with a
procedure prescribed by law” in Article 5 § 1 essentially
refer back to national law and state the obligation to conform to the
substantive and procedural rules thereof. However, the
“lawfulness” of detention under domestic law is the
primary but not always a decisive element. The Court must in addition
be satisfied that detention during the period under consideration was
compatible with the purpose of Article 5 § 1, which is to
prevent persons from being deprived of their liberty in an arbitrary
fashion.
- It
is also a requirement under Article 5 § 1 that the arrest and
detention be effected for the purpose of bringing the person
concerned before the competent legal authority, inter alia, on
reasonable suspicion of having committed an offence.
- The
“reasonableness” of the suspicion on which an arrest must
be based forms an essential part of the safeguard against arbitrary
arrest and detention. This requires the existence of some facts or
information which would satisfy an objective observer that the person
concerned may have committed the offence, though what may be regarded
as reasonable will depend on all the circumstances of the case.
- The
standard imposed by Article 5 § 1 (c) does not
presuppose that the police have sufficient evidence to bring charges
at the time of arrest. The object of questioning during detention
under sub-paragraph (c) of Article 5 § 1 is to further
the criminal investigation by way of confirming or dispelling the
concrete suspicion grounding the arrest. Thus facts which raise a
suspicion need not be of the same level as those necessary to justify
a conviction, or even the bringing of a charge which comes at the
next stage of the process of criminal investigation.
(b) Application of the relevant principles to the
present case
- In
the present case the applicant was accused of several offences on the
ground that he was suspected of having prevented the proper
investigation of the offence of abduction of the son of the then
President of Slovakia abroad. A judge of the Bratislava I District
Court remanded the applicant in custody. With reference to the
actions of which the applicant had been accused the judge held that
the applicant's detention was necessary within the meaning of Article
67 § 2 of the Code of Criminal Procedure. Subsequently the
Bratislava Regional Court upheld that decision. It held, with
reference to the documents included in the file, that the evidence
available at that time justified the suspicion that the offences in
issue had been committed.
- In
these circumstances the Court accepts that the applicant was remanded
in custody in accordance with the domestic law on the ground that he
was accused of a criminal offence and for the purpose of being
brought before the competent legal authority which was to determine
whether or not that suspicion was justified. His detention therefore
fell under Article 5 § 1 (c) of the Convention.
- The
parties' views differed as to whether the applicant could have been
reasonably suspected of having committed the offences imputed to him.
- The
domestic authorities referred to an extensive investigation including
statements of experts, documentary evidence obtained from the Slovak
Intelligence Service, the examination of 58 witnesses and other
evidence. They considered that the information thus obtained
sufficiently justified the conclusion that the applicant, in his
capacity as Director of the Slovak Intelligence Service, had taken
action with a view to (i) preventing the offence of abduction of the
President's son in 1995 from being elucidated, (ii) threatening a
former member of the Slovak Intelligence Service, and (iii) arranging
for the elimination of a witness.
- Thus
the accusation against the applicant was of a serious nature.
Specific and quite detailed reasons were given. There is no
indication that the relevant information had not actually been
obtained and documented. The Court can therefore accept that such
reasons would have been capable of satisfying an objective observer,
at the relevant time, that the applicant may have committed an
offence. The applicant has not substantiated his allegation that the
investigation was not conducted in good faith or that his arrest and
detention were effected for a purpose other than investigating the
allegations made against him.
- The
Court has had regard to the applicant's argument that the information
against him had been obtained in a different set of criminal
proceedings and that it could not, as such, be used before a court in
the context of his trial. It also noted that the applicant was
ultimately not tried by a court as the prosecution concluded, in
2006, that the offence in issue had not been committed.
- However,
those facts do not necessarily mean that the suspicion against the
applicant was unsubstantiated when he was remanded in custody or that
the purpose of his detention was otherwise not in accordance with
Article 5 § 1 (c). In particular, the existence of such a
purpose must be considered independently of its achievement and
sub-paragraph (c) of Article 5 § 1 does not presuppose that the
police should have obtained sufficient evidence to bring charges,
either at the point of arrest or while the applicant was in custody
(see, for example, Brogan and Others v. the United Kingdom, 29
November 1988, § 53, Series A no. 145 B). As stated above,
the object of questioning during detention under sub-paragraph (c) of
Article 5 § 1 is to further the criminal investigation by way of
confirming or dispelling the concrete suspicion grounding the arrest
or detention.
- In view of the above considerations, the Court accepts
that the applicant's detention on remand was compatible with Article
5 § 1 of the Convention.
Accordingly, there has been no violation of that provision.
II. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE
CONVENTION
- The applicant complained that in the proceedings in
which he had challenged the lawfulness of his detention on remand he
had been prevented from defending his rights in an appropriate
manner. He relied on Article 5 § 4 of the
Convention, which provides:
“Everyone who is deprived of his liberty by arrest
or detention shall be entitled to take proceedings by which the
lawfulness of his detention shall be decided speedily by a court and
his release ordered if the detention is not lawful.”
A. Admissibility
- In their observations submitted in 2006 the Government
contested the applicant's complaint. In their subsequent
observations, submitted in 2007, they admitted, with reference to the
Court's practice, that an issue arose as regards the fairness of the
proceedings in which the lawfulness of the applicant's detention had
been reviewed. As to the fact that the Bratislava Regional Court had
not heard the applicant prior to deciding on his complaint, the
Government maintained that the applicant had not raised it in his
complaint to the Constitutional Court.
- The applicant maintained that the guarantees of
Article 5 § 4 had not been complied with.
- The Court notes that, at the relevant time, the
domestic law did not provide for hearing an accused or a counsel when
examining the accused person's complaint against a judge's decision
to remand him or her in custody. The Constitutional Court held that
it lacked jurisdiction to examine complaints lodged by natural or
legal persons when the determination of the point in issue involved
the preliminary question of conflict of legal rules (see, for
example, Urbárska obec Trenčianske Biskupice v.
Slovakia, no. 74258/01, §§ 80 and 88, ECHR
2007 XIII (extracts)). The Government's objection must
therefore be dismissed.
- 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. It must therefore be declared
admissible.
B. Merits
1. The parties' submissions
- The applicant maintained that the proceedings in issue
had been unfair because, in particular, neither he nor his counsel
had had an adequate opportunity to submit arguments on the basis of
the information contained in the file and because the regional court
had not heard him.
- The Government referred to the case-law of the Court,
admitted that this complaint raised an issue under Article 5 § 4
and left the determination of the matter to the Court.
2. The Court's assessment
(a) Recapitulation of the relevant principles
- The relevant practice of the Court is set out, for
example, in Svipsta v. Latvia, no. 66820/01, § 129, ECHR
2006 III (extracts); Łaszkiewicz v. Poland, no.
28481/03, §§ 77-78, 15 January 2008; Mooren v. Germany
[GC], no. 11364/03, § 124, 9 July
2009; Lebedev v. Russia, no. 4493/04, §§ 70-77, 25
October 2007; and Lietzow v. Germany, no. 24479/94, §§
44 and 47, ECHR 2001 I, all with further references. It can be
summed up as follows.
- By virtue of Article 5 § 4, arrested or detained
persons are entitled to a review bearing upon the procedural and
substantive conditions which are essential for the “lawfulness”,
within the meaning of Article 5 § 1, of their deprivation of
liberty. The proceedings referred to in Article 5 § 4 need not
always be attended by the same guarantees as those required under
Article 6 § 1 for civil or criminal litigation.
However, they must have a judicial character and give to the
individual concerned guarantees appropriate to the kind of
deprivation of liberty in question. It is thereby not decisive
whether the review was prompted by an application for release lodged
by the defence or a request for detention introduced by the
prosecution. In order to determine whether proceedings provide
adequate guarantees, regard must be had to the particular nature of
the circumstances in which such proceedings take place.
- Although the Convention does not compel the
Contracting States to set up a second level of jurisdiction for the
examination of the lawfulness of detention, a State which institutes
such a system must in principle accord the detainees the same
guarantees on appeal as at first instance.
- The fundamental guarantees under Article 5 § 4
include, inter alia, the right to an effective hearing by the
judge examining an appeal against detention. Proceedings concerning
an appeal against detention must ensure equality of arms between the
parties. One of the most important implications of equality of arms
is the right of access to the investigation file; the opportunity of
effectively challenging the statements or views which the prosecution
bases on these documents presupposes in principle that the defence
has access to them. The appraisal of the need to remand an individual
in custody and the subsequent assessment of guilt are too closely
linked for access to documents to be refused in the former case when
the law requires it in the latter case.
(b) Application of the relevant principles to the
present case
- In the present case the applicant lodged a complaint
against the Bratislava I District Court's decision to remand him in
custody. On 7 January 2003 he requested that his counsel should
be allowed to consult the file, which they had not been able to
examine at the time when the applicant had been remanded in custody
and which contained extensive documents comprising several hundred
pages (see paragraphs 9, 12 and 24 above).
- The regional court allowed the counsel to examine the
file from 9 to 12 a.m. on 14 January 2003. It dismissed the
applicant's complaint against the decision on his detention on remand
at a session held on 14 January 2003, shortly after the applicant's
counsel had consulted the file. The court met in camera.
- Thus, although the regional court allowed the counsel
of the applicant to consult the file, neither they nor the applicant
had a practical possibility of submitting arguments, be it in writing
or orally, challenging the reliability of the evidence included in
the file.
- It is true that the accusation and the district
court's decision of 7 December 2002 gave some details about the
facts grounding the suspicion against the applicant. However the
information provided in this way was only an account of the facts as
construed by the investigator and the district court judge. It is
hardly possible for an accused to challenge the reliability of such
an account properly without being made aware of the evidence on which
it is based. This requires that the accused be given a sufficient
opportunity to take cognisance of statements and other pieces of
evidence underlying them, such as the results of police and other
investigations, irrespective of whether the accused is able to
provide any indication as to the relevance for his defence of the
pieces of evidence which he seeks to be given access to (see also
Garcia Alva v. Germany, no. 23541/94, § 41, 13 February
2001).
- Having regard to the foregoing, the Court considers
that the procedure before the Bratislava Regional Court which
reviewed the lawfulness of the applicant's detention on remand failed
to ensure equality of arms since the applicant could not adequately
challenge the grounds underlying his prosecution and detention in
that context. In these circumstances, there is no need to examine the
applicant's complaint that the regional court had not heard him.
- Accordingly, there has been a violation of Article 5 §
4 of the Convention.
III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION
- The applicant further complained that the facts of the
case also amounted to a breach of his rights under Article 5 §§
3 and 5, Article 6 §§ 1, 2, 3 (b) and (c) and under Article
18 of the Convention.
However, in the light of all the material in its possession, and in
so far as the matters complained of are within its competence and are
not covered by the above conclusions under Article 5 §§ 1
and 4 of the Convention, the Court finds that they do not disclose
any appearance of a violation of the rights and freedoms set out in
the Convention or its Protocols.
It follows that this part of the application is manifestly
ill-founded and must be rejected in accordance with Article 35 §§
3 and 4 of the Convention.
IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The applicant claimed compensation in respect of
non-pecuniary damage, the amount of which he left to the discretion
of the Court.
- The Government were of the view that a finding of a
violation of the applicant's rights under Article 5 would provide in
itself sufficient satisfaction to the applicant.
- The Court awards the applicant 2,000 euros (EUR) in
respect of non-pecuniary damage.
B. Costs and expenses
- The applicant also claimed EUR 9,430.46 for the costs
and expenses incurred before the Constitutional Court and the Court.
That sum comprised the fees of two advocates (EUR 2,726.97) and
translation costs (EUR 6,703.49).
- The Government objected to the amount claimed. They
asked the Court to award compensation only for the reasonably
incurred costs and expenses.
- According to the Court's case-law, an applicant is
entitled to the reimbursement of costs and expenses only in so far as
it has been shown that these have been actually and necessarily
incurred and are reasonable as to quantum. In the present case,
regard being had to the documents in its possession, the above
criteria and noting that the applicant was only partly successful in
his complaints, the Court considers it reasonable to award the sum of
EUR 5,000 covering costs under all heads.
C. Default interest
- The Court considers it appropriate that the default
interest should be based on the marginal lending rate of the European
Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaints under Article 5 §§
1 and 4 concerning the lawfulness of the applicant's detention and
the proceedings concerning its review admissible and the remainder of
the application inadmissible;
- Holds that there has been no violation of
Article 5 § 1 of the Convention;
3. Holds that there has been a violation of Article 5 § 4
of the Convention;
- Holds
(a) that the respondent State is to pay the applicant,
within three months from the date on which the judgment becomes final
in accordance with Article 44 § 2 of the
Convention, EUR 2,000 (two thousand euros), plus any tax that may be
chargeable, in respect of non-pecuniary damage and EUR 5,000 (five
thousand euros), plus any tax that may be chargeable to the
applicant, in respect of costs and expenses;
(b) that from the expiry of the above-mentioned three
months until settlement simple interest shall be payable on the above
amounts at a rate equal to the marginal lending rate of the European
Central Bank during the default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 5 January 2010, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Fatoş Aracı Nicolas Bratza
Deputy Registrar President
