MARTIKAN v. SLOVAKIA
Inadmissible
David Thór Björgvinsson;Giovanni Bonello;Ján Šikuta;Ledi Bianku;Nebojša Vučinić;Nicolas Bratza;Päivi Hirvelä
The applicant, Mr Ján Martikán, is a Slovakian national who was born in 1974 and lives in Snežnica. He was represented before the Court by Mr Š. Bucha, a lawyer practising in Žilina. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Mrs M. Pirošíková. The facts of the case, as submitted by the parties, may be summarised as follows. On 16 January and 22 March 2004, respectively, the applicant was charged with the illtreatment and rape of his wife (Articles 215 and 241 of the Criminal Code). On 12 July 2004 the applicant was indicted before the Žilina District Court to stand trial on the above charges. On 30 August 2005 the District Court found the applicant guilty of violence and rape (Articles 197a and 241 of the Criminal Code) and sentenced him to ten years and six months’ imprisonment. On 14 November 2005 the Žilina Regional Court quashed the judgment on appeal and remitted the case to the District Court for the taking of further evidence and reexamination. Following the entry into force on 1 January 2006 of the new Criminal Code, the offences of which the applicant was accused have been categorised as “crimes”. The Court has no information about the further course of the criminal proceedings. On 16 January 2004 the applicant was arrested on the above ill-treatment charge. On 19 January 2004 the District Court in Žilina remanded the applicant in detention on the grounds that there was a risk that he might collude and continue to engage in criminal activities within the meaning of Article 67 § 1 (b) and (c) of the Code of Criminal Procedure of 1961 (“the 1961 CCP”). Under that Code, the absolute maximum duration of detention, including both in the pre-trial phase of proceedings (prior to the filing of the bill of indictment) and during the trial (after the bill of indictment was lodged), was five years (Article 71 § 2). There was no separate time-limit for the duration of detention during the trial alone. On 17 March 2005 the District Court found that the ground for detaining the applicant under Article 67 § 1 (b) of the 1961 CCP (risk of collusion) no longer applied. On 12 January 2006 the Supreme Court authorised the extension of the applicant’s detention until 16 April 2006. It observed that on 1 January 2006 a new Code of Criminal Procedure (“the 2005 CCP”) had entered into force, which had entirely replaced the previous one. The new Code set new time-limits for the maximum duration of detention as a whole (Article 76 § 6), and also for detention during the trial (Article 76 § 7). However, criminal trials where the bill of indictment had been filed prior to 1 January 2006 and proceedings concerning detention in such trials were to continue to be governed by the 1961 CCP (Article 564 §§ 3, 4 and 5). The Supreme Court observed that in the applicant’s case the bill of indictment had been filed on 12 July 2004 and that, consequently, the 1961 CCP applied. It held that the offence of which the applicant had been accused fell within the category of “extremely serious crimes”. Detention in connection with such offences could potentially last as long as four years. The applicant’s detention during trial could last up to one-half of this period, that is to say until 12 July 2006. On 12 April 2006 a different bench of the Supreme Court again authorised the extension of the applicant’s detention, until 31 August 2006. Relying on Article 564 § 5 of the 2005 CCP, the court held that the applicant’s case was to be examined under the rules of the 1961 CCP and found that the conditions for extending his detention under Article 71 of that Code were met. On 11 August 2006 the District Court informed the applicant of the presiding judge’s request that his detention be prolonged. The applicant was invited to comment on the request within three working days. In a letter of 14 August 2006, delivered on 16 August, the applicant asked for leave to consult the file prior to submitting his comments. In his letter of 16 August 2006, delivered on 18 August, the applicant quoted the relevant constitutional and international legal provisions and objected that he had been detained after indictment for longer than the time permitted under Article 76 §§ 6 and 7 of the 2005 CCP and that, consequently, his continued detention was discriminatory, unlawful and unconstitutional. He also stated that he would submit further comments after he had consulted the file. On 16 August 2006 the District Court sent the Supreme Court a request for a further extension of the applicant’s detention. It transmitted to the Supreme Court the above-mentioned letters from the applicant on 25 August 2006. In the meantime, on 23 August 2006, the Supreme Court had authorised the extension of the applicant’s detention until 16 January 2007. Referring to Article 564 §§ 3 and 5 of the 2005 CCP, it determined the matter under the 1961 CCP and found that the conditions in Article 71 of that Code for extending detention were met. Lastly, the Supreme Court pointed out that on 16 January 2007 the applicant would have been detained for three years and that criminal matters involving detention should be dealt with as fast as possible. On 11 January 2007 the Supreme Court decided not to authorise the applicant’s detention any further on the ground that it was no longer justified. On 16 January 2007 the applicant was released. On 24 February and 8 March 2006 the applicant applied for release. The District Court dismissed the applications on 20 March 2006. On 23 March 2006 the applicant lodged a complaint against that decision. The District Court submitted the file to the Regional Court on 19 May 2006. On 30 May 2006 the Regional Court dismissed the applicant’s complaint. The file was returned to the District Court on 14 June 2006. The Regional Court’s decision was served on the applicant and his counsel on 16 and 20 June 2006 respectively. On 21 June 2006 the applicant complained to the Constitutional Court about delays in the proceedings concerning his applications for release of 24 February and 8 March 2006. He relied on Article 17 §§ 2 and 5 of the Constitution and Article 5 § 4 of the Convention. On 30 November 2006 the Constitutional Court declared admissible the complaint about delays in the proceedings before the District Court. It found no unjustified delays in the proceedings before the Regional Court. On 14 September 2006 the applicant complained under Article 17 § 2 of the Constitution and under Article 5 § 4 of the Convention that his procedural rights had been disregarded by the Žilina District Court and by the Supreme Court in the proceedings leading to the latter’s decision of 23 August 2006 to extend his detention. On 20 March 2007 the Constitutional Court declared admissible the complaint about the conduct of the Supreme Court. The decision stated that the latter was under an obligation to redress any shortcomings which might have occurred as a result of the District Court’s conduct. In a different decision of 20 March 2007 the Constitutional Court joined the proceedings concerning the applicant’s above two complaints as a single set. On 27 March 2007 the Constitutional Court delivered a judgment. It found that the Žilina District Court had violated the applicant’s rights under Article 17 §§ 2 and 5 of the Constitution and Article 5 § 4 of the Convention as a result of the protracted length of the proceedings concerning the applications for release filed on 24 February and 8 March 2006. The overall period of 51 days during which the District Court had dealt with the request for release was unacceptably long. The Constitutional Court awarded the applicant 30,000 Slovakian korunas (SKK) as just satisfaction. In the judgment the Constitutional Court further held that the Supreme Court had infringed Article 17 § 2 and Article 50 § 3 of the Constitution and Article 5 § 4 of the Convention in the proceedings leading to its decision of 23 August 2006. In particular, the applicant had been prevented from having his arguments examined and he had not been able to protect his rights in an appropriate manner before the decision to extend his detention had been taken. The Constitutional Court awarded the applicant SKK 20,000 as just satisfaction on that account. Pursuant to Article 7 § 5 of the Constitution, international treaties on human rights and fundamental freedoms which have been ratified and promulgated in the manner required by statute take precedence over law. All human beings are equal in dignity and rights (Article 12 § 1) regardless of sex, race, colour, language, faith, religion, political affiliation or conviction, national or social origin, nationality or ethnic origin, property, birth or any other status. No one can be discriminated against, favoured or disfavoured on any of these grounds (Article 12 § 2). Statutory restrictions on fundamental rights and freedoms must apply equally in all cases meeting given conditions (Article 13 § 3). Pursuant to Article 17 §§ 1 and 2, liberty of person is guaranteed and no one is to be prosecuted or deprived of liberty except for reasons and in a manner provided for by law. Paragraph 5 of Article 17 permits a person’s detention exclusively on grounds and for a period defined by law and on the basis of a court’s decision. Article 50 § 3 guarantees persons accused of an offence time and facilities to prepare their defence and the right to defend themselves either in person or through counsel. Under Article 50 § 6, criminal liability for an act is assessed and the sentence is imposed pursuant to the law in force at the time when the offence was committed. Law enacted subsequently is to be applied where it is more favourable to the perpetrator. In case no. III. ÚS 164/06 the Constitutional Court addressed a detained person’s complaint under, inter alia, Article 5 § 1 (c) of the Convention and Article 13 § 3 of the Constitution. The plaintiff challenged a Supreme Court decision of 5 April 2006 (case no. 1 Toš 25/2006), which had concluded that: (i) detained persons who had been indicted prior to the entry into force of the 2005 CCP were not entitled to have the duration of their detention as a whole or their detention during trial governed by the provisions of the 2005 CCP; and (ii) the detention during trial of such persons in the period subsequent to 1 January 2006 could not exceed the period for which the 2005 CCP provided in Article 76 § 6. The Supreme Court’s decision indicated, among other things, that the principle that the accused should benefit from more lenient subsequent legislation applied, in accordance with Article 50 § 6 of the Constitution, exclusively in the sphere of substantive criminal law. The Constitutional Court dismissed the complaint on 17 May 2006. It found that the Supreme Court’s above interpretation and application of the relevant provisions of the two Codes of Criminal Procedure were in conformity with the Constitution and the Convention. Under the 1961 CCP, detention on remand was governed by the provisions of Articles 67 et seq. A person charged with a criminal offence could be detained, inter alia, where there were reasonable grounds for believing that he or she would influence the witnesses or the co-accused or otherwise hamper the investigation (Article 67 § 1 (b)) or continue criminal activities, complete an attempted offence or commit an offence which he or she had prepared or threatened to commit (Article 67 § 1 (c)). The duration of detention was regulated by the provisions of Articles 71 et seq. Detention on remand in the pre-trial phase of the proceedings and during the trial, taken together, could not exceed two years. An extension could be authorised by the Supreme Court if it had been impossible to complete the proceedings earlier because of the complexity of the matter or for other important reasons and the release of the detainee would jeopardise the purpose of the proceedings. The total duration of the detention could not, however, exceed three years or, in the case of offences qualified as extremely dangerous, five years (Article 71 § 2). The category of “extremely dangerous offences” was defined in Article 41 § 2 of the Criminal Code of 1961 (Law no. 140/1961 Coll., as amended) and included rape. The new Code of Criminal Procedure was enacted on 24 May 2005 and its text was published in the Collection of Laws on 2 July 2005. It entered into force on 1 January 2006. The duration of detention is regulated by Articles 76 et seq. The total duration of detention in the pre-trial phase of the proceedings and during the trial, taken together, cannot exceed twelve months where the case concerns a lesser crime (prečin), thirty-six months in the case of a crime (zločin), and forty-eight months in the case of an extremely serious crime (obzvlášť závažný zločin) (Article 76 § 6). Detention in the pre-trial phase of the proceedings and during the trial, taken separately, can last up to one-half of the above periods (Article 76 § 7). As regards detention during the trial, the period is to be counted from the moment when the bill of indictment is filed (Article 76 § 5). If the detainee faces charges for more offences, the one carrying the most severe potential penalty should be used as the basis for determining the maximum permissible duration of the detention (Article 76 § 8). The temporal application of the 2005 CCP is regulated by the provisions of Articles 564 et seq. As a general rule, proceedings where the bill of indictment was filed prior to the entry into force of the 2005 CCP should continue under the 1961 CCP (Article 564 §§ 3 and 4). This includes proceedings in which the duration of and grounds for detention are examined (Article 564 § 5). The provisions on the temporal application of the newly introduced 2005 CCP initially gave rise to different interpretations by the benches of the Supreme Court. The criminal law section (kolégium) of the Supreme Court therefore adopted a standpoint indicating how Article 76 § 6 and Article 564 § 5 of the 2005 CCP should be interpreted (case no. Tpj 14/06, standpoint adopted on 8 December 2006 and subsequently published in the Collection of standpoints of the Supreme Court and decisions of courts, no. 2/2007). With reference to Article 13 § 3, Article 17 § 5 and Article 152 § 4 of the Constitution, the criminal law section of the Supreme Court held that persons who had been indicted prior to the entry into force of the 2005 CCP were not entitled to have the duration of their detention as a whole or the duration of their detention during trial governed by Article 76 §§ 6 and 7 of the 2005 CCP. Article 564 § 5 of the 2005 CCP clearly indicated that that had not been the intention of the legislature. That situation did not amount to unequal treatment as the persons concerned had been remanded in detention under a different legal regime, namely that governed by the 1961 CCP. However, both categories of detained persons – those whose detention was governed by the 1961 CCP and those detained under the 2005 CCP – should receive equal treatment as regards the duration of their detention during trial after the entry into force of the 2005 CCP. In practical terms, the detention during trial of persons falling within the former category in the period after 1 January 2006 should not last longer than six, twelve or twenty-four months, depending on the nature of the offence in issue, as specified in Article 76 §§ 6 and 7 of the 2005 CCP. In that respect those persons were treated equally to the other category of detainees. For example, the detention during trial of persons who had been remanded and indicted, prior to 1 January 2006, for offences which the 2005 Criminal Code qualified as extremely serious crimes could not exceed two years as from 1 January 2006. Detention of such persons after 1 January 2008 was therefore not permissible.