PODHRADSKÝ v. SLOVAKIA
Inadmissible
Branko Lubarda;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Luis López Guerra
1. The applicant, Mr Milan Podhradský, is a Slovak national, who was born in 1937 and lives in Šaľa. He was represented before the Court by Ms D. Matušková, a lawyer practising in Bratislava. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková. 2. The facts of the case, as submitted by the parties, may be summarised as follows. 3. On 22 May 2001 the applicant was abducted by masked persons. Under the threat of killing him and his daughter they obliged the applicant to sign a document on transfer of his share in a business company. He was released on 23 May 2001. 4. After his release the applicant contacted the Regional Directorate of the Police Corps in Nitra. He was heard several times by that authority. Subsequently the case was transferred to the Šaľa District Office of Investigation which heard the applicant again. These interviews included those on 29 May and 11 October 2001. In both, the applicant submitted that, during the incident, amounts of money in various foreign currencies had been taken away from him. In addition, in the latter questioning, he submitted that, by the forced transfer of his business share, he had suffered damage worth the equivalent of some 72,000 euros (EUR) and that he wished to join the criminal proceedings as an aggrieved party under Article 43 §§ 1 and 2 of the 1961 Code of Criminal Procedure (Law 141/1961 Coll., as applicable at the relevant time – “the 1961 CCP” – see paragraphs 18 and 19 below). 5. The interview of 11 October 2001 followed the opening by the Šala District Office of Investigation of a criminal investigation earlier the same day into the suspicion that the offences of extortion and unlawful restriction of personal liberty might have been committed by one or more persons unknown. 6. Between December 2001 and 2007 the police authority stayed the investigation and the Public Prosecution Service (“the PPS”) at several levels ordered that it be resumed on several occasions. In October 2007 the case was transferred to the Office for Combating Organised Crime (“the OCOC”). 7. On 29 January 2008 two persons, A. and B., were charged with extortion and restricting the applicant’s personal liberty. 8. On 18 April 2008 the applicant was questioned by the investigator. He submitted that, in terms of compensation, he claimed EUR 180,126 in respect of the business share and EUR 4,300 in respect of the foreign currency taken away from him. 9. On 16 September 2008 the proceedings against B. were terminated as her prosecution had become statute barred. 10. On 22 October 2008 the proceedings were split in two parts. The first set of proceedings concerned A., who was suspected of having ordered and organised the applicant’s abduction. The second set aimed at identification of the persons who had abducted the applicant. Those proceedings were stayed on 17 August 2010 but then resumed following an order by the PPS of 8 November 2012. They are still pending before the OCOC. 11. Meanwhile, in the first set of proceedings, on 19 March 2009 charges of extortion and restricting personal liberty had been brought against another individual, C. 12. On 10 May 2010 A. and C. were indicted to stand trial in the Trnava District Court on the charges mentioned above. 13. On 10 May 2012 the District Court discontinued the proceedings. It observed that the police and the investigative authorities had generated such delays at the pre-trial stage of the proceedings that much of the evidence had lost validity. There had been repeated unlawful and arbitrary actions by these authorities such as, for example, the discontinuation of the proceedings against B. but not against the other defendants. As a result, there was no valid evidence showing that A. and C. had committed the offences of which they stood accused. 14. On 8 January 2013 the Trnava Regional Court quashed the decision of 10 May 2012 and remitted the matter to the District Court for a new determination, following appeals by the applicant and the PPS. 15. The proceedings are still pending. 16. On 12 April 2010 the applicant lodged a complaint with the Constitutional Court. He alleged, inter alia, that the OCOC and several offices of the PPS involved in the above proceedings had breached his right to a fair hearing within a reasonable time. 17. On 29 June 2010 the Constitutional Court declared the complaint inadmissible as being manifestly ill-founded. With reference to Article 46 § 3 of the 2005 Code of Criminal Procedure (Law 301/2005 Coll., as amended - “the 2005 CCP” - see paragraphs 20 et seq. below), it held that a person who considers to have suffered damage as a result of a criminal offence may claim to be a victim of a breach of his or her right to a hearing within a reasonable time only after charges of that offence have been brought against a specific person. The Constitutional Court therefore had the power to examine only the proceedings subsequent to the bringing of charges against A. and B. on 29 January 2008. As the applicant’s complaint was only concerned with the pre-trial phase of the proceedings, the period under examination ended on 10 May 2010 when the case was transmitted to the District Court by way of the indictment. The period under consideration had therefore lasted two years and some three months which was not excessively long. In support of this conclusion, the Constitutional Court observed that except for one fourmonth period of inactivity the investigator had been acting expeditiously. The decision was served on the applicant 6 September 2010. 18. Article 43 §§ 1 and 2 provide, inter alia, that an aggrieved party in criminal proceedings may attach a third-party claim for damages to the proceedings and request that the court convicting the person charged with a criminal offence (obvinený) order the latter to pay compensation for the damage caused to the aggrieved party by the offence. 19. According to a summary of the relevant judicial practice published in the Collection of Judicial Decisions and Standpoints (Zbierka súdnych rozhodnutí a stanovísk) of the Supreme Court under no. 22/1979, a thirdparty claim for damages is properly made if it specifies the defendant against whom it is made, the ground on which it is made, and its amount. 20. As from 1 January 2006, the 1961 CCP was entirely replaced by the 2005 Code. In so far as relevant, the 2005 Code contains provisions (Article 46 §§ 1 and 3) similar to those of the 1961 CCP. 21. A third-party claim must specify the ground and scope of the claim and may only be attached to the criminal proceedings if the matter of compensation has not already been decided upon in civil or other proceedings (Article 46 §§ 3 and 4). 22. Pursuant to Article 287 § 1, where a court convicts a person charged with an offence which has caused damage to third persons within the meaning of Article 46 § 1, as a rule it orders him or her to compensate such damage, provided that the claim has been filed correctly and in due time. 23. The Constitutional Court held (see for example its judgments in cases nos. I. ÚS 157/02; III. ÚS 183/05; I. ÚS 18/06 and I. ÚS 67/2010) that a third party who joined criminal proceedings with a claim for damages has the right to a hearing “without unjustified delay” (Article 48 § 2 of the Constitution) as such a duly lodged claim excludes the possibility of having it decided upon in civil proceedings (Article 83 of the Code of Civil Procedure). 24. In a decision of 12 December 2013 in case no. II. US 660/2013, relying on its previous decisions nos. I. US 212/07, III. US 109/06, III. US 254/10, III. US 508/12 and IV. US 188/13, the Constitutional Court upheld the principle that, in accordance with the Court’s judgment in the case of Krumpel and Krumpelová v. Slovakia (no. 56195/00, 5 July 2005), an aggrieved party of a criminal offence, who had attached a third-party claim for damages to the criminal proceedings, was entitled to the guarantees of the civil limb of Article 6 of the Convention. However, the aggrieved party only benefited from the right to a hearing within a reasonable time under Article 6 after a charge had been brought against a specific person. Despite a direct argument by the complainant to that effect, the Constitutional Court gave no answer to the fact that in its judgment in the case of Bíro v. Slovakia (no. 2) (no. 57678/00, § 44, 27 June 2006), the Court had found that, as a matter for principle, civil-party claims for damages made in Slovakia jointly with or subsequently to the lodging of a criminal complaint enjoy the guarantees in question from the moment they were made. 25. In connection with the present application, the Constitutional Court produced a report dated 11 June 2013 concerning the applicability of the right to a hearing within a reasonable time under Article 6 § 1 of the Convention and its constitutional equivalent to third-party claims for damages attached to criminal proceedings (adhézne konanie). The report may be summarised as follows. 26. A party aggrieved by a criminal offence may attach a third-party claim for damages to the criminal proceedings concerning that offence under Article 46 § 1 of the 2005 CCP (see paragraphs 20 et seq. above). Neither the statue nor the case-law of the Constitutional Court make this right dependant on whether or not the defendant has been charged with the offence in question. However, it is only once a charge is brought against a specific person that a concrete legal relationship is created between the aggrieved party and the person charged and it is only then that the aggrieved party becomes entitled to assert the third-party claim against the charged person in the criminal proceedings. Whether or not a person has been charged with the offence concerned is not a criterion for the aggrieved party’s being able to make a third-party claim in the criminal proceedings but for that party’s being able to rely on the right to a hearing within a reasonable time in relation to that claim.