CASE OF OSVÁTHOVÁ v. SLOVAKIA
Remainder inadmissible;Violation of Art. 5-4;Violation of Art. 5-5;Non-pecuniary damage - award
David Thór Björgvinsson;Ján Šikuta;Lech Garlicki;Mihai Poalelungi;Nicolas Bratza;Päivi Hirvelä
5. The applicant was born in 1949 and lives in Bratislava. 6. On 17 September 2001 the applicant as seller entered into a contract with A. as buyer concerning some real property essentially comprising arable land. 7. On an unspecified date A. lodged a criminal complaint against the applicant accusing her of having received the purchase price of some 8,600 euros (EUR) only to renege on the contract without returning the price. 8. On 27 May 2005 the applicant was charged with fraud on the basis of A.'s criminal complaint. The decision containing the charge was not served on the applicant until 3 February 2006, when she was questioned by a judge following her arrest (see below). 9. On 19 and 29 September 2005, respectively, a national search for the applicant was launched and the Dunajská Streda District Public Prosecutor's Office (Okresná prokuratúra) asked the Dunajská Streda District Court (Okresný súd) for a warrant for the applicant's arrest. It was argued that it was proving impossible to summon the applicant for questioning because she was not responding to summonses, was not living at her registered address (trvalé bydlisko) and her whereabouts were unknown. 10. On 3 December 2005 the District Court issued the arrest warrant. It indicated as the underlying reason for the warrant that “[the applicant] [was] not living at her registered address; her whereabouts [were] unknown”. 11. From 2 February to 14 March 2006 the applicant was held in pretrial detention (see below). 12. On 14 and 21 March 2006 the applicant challenged the charge by way of an interlocutory appeal (sťažnosť). 13. On 24 March and 12 April 2006, respectively, the investigator interviewed a notary who had drawn up the contract and, following her release from detention, also the applicant. 14. On 25 April 2006 the District Public Prosecutor's Office granted the applicant's interlocutory appeal and dismissed the charge against her on the grounds that the matter was of a civil-law nature and the applicant's actions did not constitute a criminal offence. 15. At 2 p.m. on 2 February 2006, on the basis of the warrant of 3 December 2005, the applicant was arrested by the police and taken into police custody. 16. At 10.30 a.m. on 3 February 2006 the applicant was brought before a single judge of the District Court for questioning. 17. A record of the questioning was made on a pre-printed form. In so far as the pre-printed section of the record was filled out, it indicates that the applicant was questioned as a person charged (obvinený) / suspect (podozrivý), that she was informed of the rights that pertain to a person in that procedural position and that she had been handed (doručené) / read out (prečítané) the decision containing the charge of fraud. 18. The verbatim section which follows the pre-printed section of the record indicates that the applicant acknowledged that she had neither a permanent nor a temporary registered place of residence (trvalé/prechodné bydlisko) and that she mainly stayed in monasteries and pastors' offices. She admitted having received and not returned the purchase price and expressed readiness to return it. She explained that she had health problems and that on 13 January 2006 she had fainted in the street. 19. The verbatim section of the record also indicates that, thereafter, the applicant was handed the decision containing the charge of 27 May 2005. According to the applicant, the decision containing the charges had been handed to her at around 11 a.m. 20. The verbatim section of the record further indicates that the District Court then immediately ordered the applicant to be detained under Article 71 § 1 (a) of the Code of Criminal Procedure (“the CCP” – Law no. 301/2005 Coll., as applicable at the relevant time). That provision allows for the detention of a person if his or her behaviour or other concrete facts give rise to a well-founded concern that he or she would flee or go into hiding in order to avoid prosecution, in particular when the person's identity cannot be immediately established, when the person does not have a fixed abode (stále bydlisko) or if the person faces the risk of a heavy penalty. 21. Immediately after she had been remanded in custody, the applicant orally lodged an interlocutory appeal (sťažnosť) and asked for her lawyer to be informed of her detention. The interview ended at 11.15 a.m. 22. In a two-page written version of the detention order of 3 February 2006 the District Court established, “on the basis of the case file and the applicant's interview”, that there were reasons for detaining her under Article 71 § 1 (a) of the CCP because, “if left at liberty, [the applicant] would seek to frustrate the prosecution by going into hiding”. This was so because the applicant “did not live at her registered permanent address, had no registered temporary address and it was not known where she was currently living”. 23. On 23 February 2006 the applicant submitted her written grounds of appeal. 24. On 7 March 2006 the District Court sent the case file to the Trnava Regional Court (Krajský súd) for determination of the appeal. It arrived there on 9 March 2006. 25. Meanwhile, on 8 March 2006, the investigator attempted to interview the applicant who, however, exercised her right to remain silent. 26. On 9 March 2006 the applicant appointed a new lawyer who inspected the case file on the following day. 27. On 13 March 2006 the applicant's new lawyer submitted in writing further grounds of appeal. He relied on Article 5 of the Convention and advanced four main arguments. First, before the questioning on 3 February 2006, the applicant had not been informed of her rights as a person facing charges. Second, the applicant was deprived of her right to oppose her detention effectively because she was informed of the charge against her only after the questioning of 3 February 2006. Third, the detention order was arbitrary and not susceptible of review owing to the absence of adequate reasoning. Fourth, the District Court had failed to examine whether there was any “reasonable” suspicion against the applicant which would justify her detention. 28. On 14 March 2006 the Regional Court, sitting in private (neverejné zasadnutie), quashed the detention order and ordered the applicant's immediate release. It found that the matter was of a contractual nature and that the applicant's actions could not be qualified as a criminal offence. Moreover, the applicant could not have been in hiding because she had no knowledge that she had been wanted on a criminal charge. The Regional Court concluded that there was no reason for detaining the applicant. 29. Following the decision of 14 March 2006, on the same day, the applicant was released. 30. A written version of the decision of the Regional Court was sent to the applicant's address but returned as she could not be found. It was then sent to her lawyer, who received it on 3 May 2006. 31. On 3 May 2006 the applicant lodged a complaint under Article 127 of the Constitution with the Constitutional Court (Ústavný súd). 32. Relying on Article 5 §§ 1 (c), 2, 3 and 4 of the Convention and on their constitutional counterparts, the applicant made four main complaints. First, after her arrest, the applicant had not been informed promptly of the reasons for it and of the charge against her. Second, in violation of the applicable procedural rules, the applicant had not been informed of her procedural rights as a person charged. Third, the decision of the Regional Court of 14 March 2006 lacked adequate reasoning, in particular, because it only dealt with two of the four arguments that she had put forward. Fourth, a decision regarding the lawfulness of the applicant's detention had not been reached speedily, which was imputable mainly to the District Court. Invoking Article 5 § 5 and Article 13 of the Convention, the applicant claimed the equivalent of some EUR 3,200 in just satisfaction for nonpecuniary damage and the reimbursement of her legal costs. 33. On 13 September 2006 a three-judge bench of the Constitutional Court declared the complaint inadmissible. It found that the Constitutional Court had been prevented from examining the first two arguments by the principle of subsidiarity. As to the third argument, the Constitutional Court acknowledged that the Regional Court had limited its review to two of the applicant's arguments. However, this did not constitute an infringement of the applicant's fundamental rights. 34. As to the remaining complaint, concerning the length of the proceedings to review the lawfulness of the applicant's detention, the Constitutional Court established that it had in total taken thirty-four days (from the detention order of 3 February to 9 March 2006) for the District Court to transmit the case file to the Regional Court for determination of the applicant's appeal. However, it should be taken into account that the applicant had submitted the grounds of her appeal in writing only on 23 February 2006. After that date, the District Court had transmitted the case file to the Regional Court within fourteen days (on 9 March 2006). Although the conduct of the District Court could not be described as “expeditious” (urýchlené), it did not amount to a violation of the applicant's rights under Article 5 § 4 of the Convention. It was true that, after the Regional Court's decision of 14 March 2006, it was not until 3 May 2006 that the written version of the decision was served on the applicant. Nevertheless, this was of no practical consequence because the applicant must have learned of the decision on 14 March 2006, when she was released, and the decision was subject to no further appeal. The bench concluded that, in those circumstances, the remaining complaint was manifestly ill-founded. 35. The presiding judge, however, did not share the majority view and gave a dissenting opinion. According to him, it was “highly debatable” whether the complaint concerning the lack of speediness in the proceedings regarding the applicant's appeal against her detention was manifestly illfounded. The presiding judge pointed out that it had taken thirty-four days for the District Court to transmit the case file to the Court of Appeal. Referring to previous practice and, in particular, to a decision in case file number III. ÚS 126/05, he concluded that the complaint should have been declared admissible. 36. The decision of the Constitutional Court was served on the applicant on 10 November 2006. 37. Under the Act the State bears liability for damage caused by public authorities inter alia by unlawful arrest, detention (zadržanie) or other deprivation of personal liberty (section 3(1)(b)), decisions concerning detention on remand (väzba) (section 3(1)(c)) and wrongful official actions (section 3(1)(d)). 38. The right to compensation for damage caused by a decision on arrest, by detention (zadržanie) or by other deprivation of personal liberty is vested in the person who was subjected to it, provided that the decision was quashed as being unlawful or a wrongful official action had taken place in connection with it (section 7). 39. The right to compensation for damage caused by a decision concerning detention on remand (väzba) is vested in the person who was detained on remand, provided that the criminal proceedings against him or her have been dropped (section 8(5)(a)) or he or she has been acquitted (section 8(5)(b)) or the matter has been referred to another authority (section 8(5)(c)). 40. However, no such right arises when the person concerned himself or herself gave cause for the detention on remand (section 8(6)(a)). 41. The State is also liable for damage caused by wrongful official action, which comprises, inter alia, a public authority's failure to take an action within the time-limit set, inactivity or any other unlawful interference with the rights and legally recognised interests of individuals and legal entities (section 9(1)). 42. The right to compensation for damage caused by wrongful official action is vested in the person who suffered the damage (section 9(2)). 43. Under section 17 the compensation is to cover pecuniary damage, including loss of profit, and, where appropriate and necessary, nonpecuniary damage. 44. In a judgment of 16 March 2007 (in case no. 4C 258/2006) the Brezno District Court granted an action for damages by two individuals against the State under the State Liability Act 2003 and ordered the defendant to pay the costs of their defence in a criminal trial that had ended with their acquittal. On 22 November 2007 the Banská Bystrica Regional Court upheld the judgment following the defendant's appeal. 45. On 14 October 2009 the Bratislava Regional Court granted an appeal (case no. 2Co 238/2008) in an action by an individual against the State under the State Liability Act 2003 for damages and awarded him an amount of money in compensation for non-pecuniary damage caused by detention on remand in the context of a criminal trial that had ended with his acquittal. 46. In a judgment of 17 August 2009 (case no. 19C 47/2006) the Bratislava District Court granted an action for damages by an individual against the State under the State Liability Act 2003 and awarded the claimant an amount of money in compensation for non-pecuniary damage caused by wrongful official action in connection with his detention pending a criminal trial. The impugned wrongful official action concerned extension of the claimant's detention pending trial. The action was preceded by a judgment of the Constitutional Court of 19 October 2005 (case no. I. ÚS 65/05) in which the Constitutional Court found a violation of the claimant's rights under Article 5 §§ 3 and 4 in connection with the same facts. However, the Constitutional Court was unable to award the claimant damages as he had made no claim for damages.