CASE OF PAVLIK v. SLOVAKIA
Violation of Art. 6-1;Remainder inadmissible;Non-pecuniary damage - financial award;Pecuniary damage - claim dismissed
Nicolas Bratza
5. The applicant was born in 1963 and lives in Zvolen. He was a member of the Police Corps (Policajný zbor) of the Slovak Republic. 6. On 10 March 1999 the applicant was charged (obvinený) with carrying out business activities without authorisation (Article 118 § 1 and 2 (a) of the Criminal Code (CC)), extortion (Article 235 § 1 of CC) and rape (Article 241 § 1 of CC). The charges were based on the suspicion that the applicant who was disqualified from carrying out business activities by law on account of his status as a police officer had arranged for a third person, Ms P., to run a restaurant on his behalf. He was further suspected of having threatened P. with violence in order to make her give him an amount of money and of having forced at gunpoint a waitress, Ms. M., to have intercourse with him. The blackmail charge was later extended as the applicant was also suspected of having made violent threats against M. in order to force her to be his girlfriend. The applicant was detained, dismissed from the police and tried on the above charges. The details are set out below. 7. On 12 April 1999 the Minister of the Interior issued an order (personálny rozkaz) dismissing the applicant from service in the police. The evidence available showed that the applicant had committed the acts of which he was charged. Such conduct grossly violated the service oath and, accordingly, was incompatible with service in the police. The applicant’s administrative appeal (rozklad) was dismissed on 14 June 1999. 8. The applicant’s subsequent numerous requests that the Ministry of the Interior review his dismissal in a special procedure outside the framework of ordinary appellate proceedings (mimo odovlacieho konania) and that the proceedings be reopened failed. 9. On 29 May 2002 the applicant challenged his dismissal by way of an administrative-law action in the Supreme Court (Najvyšší súd). It was declared inadmissible on 1 August 2002 on the ground that it clearly had been filed outside the statutory two-month time-limit, counted from the final administrative decision in the case which was the decision of 14 June 1999. 10. On 3 September 2002 the applicant challenged the dismissal order of 12 April 1999 in the Constitutional Court (Ústavný súd) under Article 127 of the Constitution. It was declared inadmissible on 24 September 2002 as being belated. Moreover, and in any event, the review of the dismissal order fell within the jurisdiction of the Supreme Court. The Constitutional Court’s review was merely subsidiary and did not apply to the dismissal order directly. As for the decision of the Supreme Court, it could not be reviewed either because the applicant’s constitutional complaint was not directed against it. 11. On 11 March 1999, at 2.40 p.m., the police detained the applicant on the above charges. He was assigned an ex officio lawyer. 12. On 12 March 1999 the applicant was brought before the judge of the Zvolen District Court (Okresný súd). The parties disagree as to the exact time when this took place. The Government rely on the minutes of the applicant’s questioning which bear his signature and indicate that he had appeared before the judge at 2 p.m. The applicant now claims that he was presented to the judge at 3.50 p.m., which is after the 24-hour statutory time-limit. The applicant pleaded not guilty. There is no indication that he complained about infringement of the above time-limit. The questioning was concluded at 4.47 p.m. with the District Court’s decision to remand the applicant in detention (see the subsequent paragraph). 13. On 12 March 1999 the District Court remanded the applicant under Article 67 § 1 (b) and (c) of the Code of Criminal Procedure (CCP) which allowed for detention of persons charged with criminal offences where there were reasonable grounds for believing that if released they would interfere with the course of justice or continue to engage in criminal activities. The court found it established that the applicant’s liberty had been restricted on the previous day at 2 p.m. There was a strong suspicion against him which was based on testimonies of P., M. and 7 witnesses. The applicant was suspected of having threatened and used violence against P. and M. over an extended period. Therefore it could be presumed that he would continue doing so with a view to hampering the proceedings. This presumption rendered his detention justified on the legal grounds referred to above. 14. The applicant’s appeal (sťažnosť) against the remand order was dismissed by the Banská Bystrica Regional Court (Krajský súd) on 13 April 1999. 15. In the period prior to 26 April 2000 the applicant filed numerous petitions for release. They were dismissed by the prosecution service, the District Court and the Regional Court on various grounds including that some of the petitions had been lodged earlier than 14 days from the final determination of the previous petition and, as they contained no new relevant information, they had to be dismissed under Article 72 § 2 of the CCP. In all cases the authorities found that the suspicion against the applicant and the grounds for his detention, as established at the time of his remand, still persisted. In decisions of 19 October 1999 and 28 February 2000 the District Court moreover observed that covert messages from the applicant to his wife, P. and her family members had been intercepted, which showed that he had actually attempted to interfere with the course of justice and that he was likely to act violently. The existence of such messages was established by the prison administration and the prosecution service, which confirmed it in their respective letters of 15 and 26 July 1999. 16. On 3 September 1999 the District Court authorised extension of the applicant’s detention under Article 71 § 1 of the CCP until 11 December 1999. 17. On 31 March 2000, the District Court found the applicant guilty and sentenced him (see below). At the same time it decided that for the time being the applicant should be released from detention. The release order was however not yet enforceable as it had been challenged by the prosecution. 18. On 24 May 2000 the Regional Court allowed the prosecutor’s appeal against the release order and ruled that the applicant should remain in detention. With reference to the intercepted letters the Regional Court found that the applicant had attempted to influence witnesses and concluded that, if released, it was likely that he would exert pressure on the victims with a view to having their statements modified. 19. On 28 July 2000 the District Court dismissed the applicant’s petition for release. The applicant appealed to the Regional Court but on 7 August 2000 withdrew the appeal. The Regional Court acknowledged the withdrawal on 23 August 2000. 20. On 16 August 2000 the applicant petitioned for release again. He contested the charges and argued that there was no risk that he would continue to offend as envisaged by Article 67 § 1 (c) of the CCP. 21. In a letter of 7 September 2000 the District Court informed the applicant that under Article 72 § 2 of the CCP his petition of 16 August 2000 could not be dealt with because it had been lodged prior to the final determination of his previous petition and contained no new relevant information. 22. On 28 November 2000 the applicant lodged a fresh petition for release and the District Court ordered his release on 7 December 2000. 23. On 17 January 2001 the Regional Court upheld the release order of 7 December 2000 on the prosecutor’s appeal. It referred to the evidence taken in the course of the proceedings, the length of the applicant’s detention and the fact that his criminal record was clear. It concluded that the reasons for his detention had fallen away. The applicant was released on the same day. 24. In the course of the proceedings the applicant unsuccessfully attempted to have criminal proceedings brought against the officials dealing with his case. He complained, inter alia, that no decision had been given to authorise the extension of his detention after 11 December 1999 (see paragraph 16 above). 25. On 12 March 1999 the District Court issued a search warrant for two flats and a cottage used by the applicant. The searches took place on 12 and 16 March 1999. 26. On 17 March 1999 the Zvolen District Prosecutor dismissed the applicant’s appeal against his charges. His appeal against the extended charge for extortion was dismissed later. 27. On 26 July 1999 the District Court assigned the applicant a new ex officio lawyer at the applicant’s request. 28. On 10 December 1999 the applicant was indicted to stand trial in the District Court on the above charges. 29. On 20 December 1999 the case was assigned to a different judge of the District Court, V.Š., because the previous judge knew the applicant and felt personally biased. 30. The District Court held hearings on 10, 13 and 31 March 2000 at which it heard the applicant, the victims and several witnesses. 31. Following the hearing of 31 March 2000, on the same day, the District Court found the applicant guilty as charged and sentenced him to two years’ imprisonment. Both the applicant and the prosecution appealed. 32. On 21 June 2000 the Regional Court quashed the District Court’s judgment and remitted the case to the latter for the taking of further evidence and re-examination. The Regional Court held that it was necessary to rehear the case as in the course of the proceedings there had been a change in the District Court’s chamber dealing with it. 33. On 26 July 2000 the District Court assigned the applicant a new ex officio lawyer at the request of the previous lawyer who felt that the applicant had no confidence in him. 34. On 20 September 2000 the Regional Court exempted Judge V.Š. from dealing with the applicant’s case at her own request because she felt partial because of the applicant’s persistent use of invectives against her. 35. The case was assigned to a new judge, M.Š., who also requested his exclusion. He submitted that he knew the applicant and that he felt concerned by his invectives directed against the previous judge. 36. On 8 November 2000 the Regional Court ruled that M.Š. would not be excluded from dealing with the applicant’s case. 37. On 20 March 2001 M.Š. again requested his exclusion from the case as he felt biased after the applicant had filed an unsuccessful criminal complaint against him. 38. On 12 April 2001 the Regional Court found that M.Š. was not disqualified from dealing with the case as, being a professional judge, he had to be prepared to accept a certain level of criticism without losing his impartiality. 39. On 1 October 2001 the District Court ordered an expert examination of the applicant’s mental health. On 7 November 2001 the Regional Court quashed this order on the applicant’s appeal for reasons of formality. 40. Between 7 February and 29 November 2002 the District Court held 5 hearings and made three attempts at establishing the whereabouts of P. who was believed to be staying in Italy. 41. On 10 January 2003 the District Court held another hearing following which, on the same day, it found the applicant guilty as charged and sentenced him to four and a half years’ imprisonment and a fine. In reaching that conclusion the District Court took into account the testimonies of numerous witnesses, reports from several experts and complex documentary evidence. The applicant appealed. 42. On 4 June 2003 the Regional Court quashed the judgment of 10 January 2003 and found the applicant guilty of having run a business without authorisation and of extortion. It acquitted him of the remaining charges and sentenced him to 22-months’ imprisonment and a fine. 43. The Prosecutor General challenged the judgment of 4 June 2003 by means of a complaint in the interest of law (sťažnosť pre porušenie zákona) filed with the Supreme Court. 44. On 10 February 2004 the Supreme Court quashed the judgment of 4 June 2003 and ordered the Regional Court to re-examine the applicant’s appeal against the judgment of 10 January 2003. 45. The Regional Court called hearings for 16 June and 18 August 2004. They had to be adjourned as the applicant did not appear. The Regional Court requested that the applicant be brought by the police and eventually issued a warrant for his arrest. The applicant then appeared before the Regional Court of his own accord and the arrest warrant was quashed. 46. On 6 October 2004 the Regional Court held a hearing following which, on the same day, it upheld the District Court’s judgment of 10 January 2003 as regards the conviction and increased the penalty which had been imposed in the judgment of 4 June 2003 to two years’ imprisonment. 47. The Minister of Justice challenged the judgment of 6 October 2004 by means of a complaint in the interest of law. He contested mainly the imposed sentence considering that the Regional Court had failed to take due account of the seriousness of the offences and the context in which they had been committed. 48. On 1 June 2005 the Supreme Court quashed the judgment of 6 October 2004 finding that the sentence imposed was too lenient. The Regional Court was accordingly instructed to re-examine the applicant’s appeal against the judgment of 10 January 2003. 49. On 20 September 2005 the Regional Court held a hearing following which, on the same day, it increased the sentence imposed in the judgment of 10 January 2003 to 3 years’ imprisonment. No further appeal was available. The applicant then unsuccessfully sought to challenge his conviction in the Constitutional Court. 50. On 26 February 2003 the applicant lodged a complaint under Article 127 of the Constitution asserting violations of his constitutional rights in the criminal proceedings against him. He complained inter alia about the length of the proceedings, directing this part of his complaint exclusively against the District Court. 51. On 14 April 2004 the Constitutional Court declared the complaint about the length of the criminal proceedings before the District Court admissible and the remaining complaints inadmissible. 52. On 30 September 2004 the Constitutional Court found that the District Court had violated the applicant’s right to a hearing “without unjustified delay” (Article 48 § 2 of the Constitution). The Constitutional Court found that the subjectmatter of the proceedings was not particularly complex and that no undue delays could be attributed to the applicant. In contrast, the District Court had been inactive without any justification between 12 April and 1 October 2001. The Constitutional Court concluded that the finding of a violation of the applicant’s right was in itself sufficient just satisfaction for him. In view of all the circumstances including the fact that there had only been one relatively insignificant period of unjustified delay, the Constitutional Court considered that financial compensation for the applicant’s nonpecuniary damage would not be appropriate. It however awarded him reimbursement of his legal costs. 53. Article 11 provides that international instruments on human rights and freedoms ratified by the Slovak Republic and promulgated under statutory requirements have precedence over national laws, provided that they guarantee greater constitutional rights and freedoms. 54. Under the Constitutional Court’s case-law (see, for example, the decision of 22 March 2000, file no. I. ÚS 9/00) ordinary courts are obliged in civil proceedings to interpret and apply the relevant laws in accordance with the Constitution and with international treaties. Accordingly, the ordinary courts have the primary responsibility for upholding rights and fundamental freedoms guaranteed by the Constitution or international treaties. 55. Pursuant to Article 17 § 2 no one shall be prosecuted or deprived of liberty except for reasons and in a manner provided for by law. 56. Article 48 § 2 provides, inter alia, that every person has the right to have his or her case tried without unjustified delay. 57. Under Article 50 § 2 any person against whom criminal proceedings are conducted is to be presumed innocent until proved guilty by a final judgment by a court of law. 58. Detention on remand is governed by the provisions of Articles 67 et seq. A person charged with a criminal offence (obvinený) can be detained inter alia when there are 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 activity, complete an attempted offence or commit an offence which he or she prepared or threatened to commit (Article 67 § 1 (c)). 59. Article 71 § 1 provides inter alia that where detention in the pre-trial phase of proceedings exceeded six months and the release of the detainee would jeopardise the purpose of the proceedings, a single judge can extend the detention for a period of up to one year. A motion for such an extension shall be lodged by the public prosecution service. A further extension of detention in the pre-trial phase of the proceedings beyond the one-year limit can be authorised by a chamber of judges up to a maximum of two years. 60. Under Article 71 § 2 detention on remand in the pre-trial phase of the proceedings and in the proceedings before a court taken together cannot exceed two years. An extension by another year can be authorised by the Supreme Court. 61. Article 72 § 2 entitles the detainee to apply for release at any time. When the public prosecutor dismisses such an application in the pretrial phase of the proceedings, he or she shall submit it immediately to the court. The court shall rule on such an application without delay. If the application is dismissed, the accused may renew it fourteen days after the decision has become final unless he or she invokes different reasons. 62. Under Article 11, natural persons have the right to protection of their personality rights (personal integrity), in particular their life and health, civil and human dignity, privacy, name and personal characteristics. 63. Under Article 13 § 1, natural persons have the right to request that unjustified infringements of their personality rights be discontinued and that the consequences of such infringements be eliminated. They also have the right to appropriate just satisfaction. 64. Article 13 § 2 provides that, in cases where the satisfaction obtained under Article 13 § 1 is insufficient, in particular because the injured party’s dignity or social standing has been considerably diminished, the injured party is also entitled to financial compensation for non-pecuniary damage. 65. In an action of 26 June 2002 a married couple asserted a claim against the Ministry of Justice for financial compensation for non-pecuniary damage caused to them by detention on remand and criminal proceedings against them, which ended with their acquittal. The principal thrust of the claim was that their prosecution and the whole trial had been unlawful and arbitrary. The action was examined on appeal by the Banská Bystrica Regional Court under file number 16Co 256/05. In its judgment of 7 July 2006 the court interpreted the claim as a claim for protection of personal integrity under Article 11 of the Civil Code. It reviewed briefly the course of the criminal proceedings against the plaintiffs and concluded that they had failed to establish that there had been any unlawfulness. Relying on the judgment of the Supreme Court of 20 October 2005 file number 5Cdo 150/03, the court held that criminal proceedings which were conducted in compliance with the applicable laws could not constitute an unjustified interference with personal integrity even if they ended with an acquittal. The court also addressed briefly the length of the plaintiffs’ detention and concluded that it had not been excessive. The above claim was thus not accepted, unlike other claims made in the same action (compensation for lost profit, legal costs and infringement of the presumption of innocence). 66. Further details concerning protection of personal integrity under the Civil Code are summarised in Kontrová v. Slovakia ((dec.), no. 7510/04, 13 June 2006). 67. Article 8 defines the jurisdiction of the ordinary courts. Pursuant to its first paragraph, unless jurisdiction is conferred by statute on other authorities, the ordinary courts examine and decide upon matters stemming from relations under civil law, labour law, family law, the law of cooperatives, and commercial law. Under paragraph 2, other matters may be examined and decided upon by the ordinary courts only if a statute so provides. 68. Under the terms of Article 135 civil courts are bound, inter alia, by the decisions of the competent authorities that a criminal offence has been committed and by whom (paragraph 1). Other questions which normally fall to be decided by other authorities can be decided by a civil court. However, if the competent authorities decided upon such a question, the civil court will adopt their decision (vychádza z ich rozhodnutia). 69. The Act lays down rules for State liability for damage caused by unlawful decisions (Part (Časť) One) and wrongful official conduct (Part Two). 70. The general scope of State liability for damage caused by unlawful decisions is defined in section 1 (1). Pursuant to this provision the State is liable for damage caused by unlawful decisions by its bodies and agencies inter alia in criminal proceedings. However, decisions concerning detention and sentencing are excluded. 71. Special rules concerning State liability for damage caused by decisions on detention are embodied in sections 5 et seq. The State is liable for damage caused by such decisions only in respect of persons against whom the proceedings have been discontinued or who have been acquitted (section 5 (1)). 72. Section 18 (1) renders the State liable for damage caused by wrongful official conduct on the part of its bodies and authorities in carrying out their functions. 73. A claim for compensation may be allowed where the claimant shows that he or she suffered damage as a result of a wrongful act of a public authority, quantifies its amount, and shows that there is a causal link between the damage and the wrongful act in question. The Act does not allow for compensation for non-pecuniary damage unless it is related to a deterioration in a person’s health (for further details, see Havala v. Slovakia (dec.), no. 47804/99, 13 September 2001).