CASE OF ZUBOR v. SLOVAKIA
Preliminary objection joined to merits and dismissed (victim);Remainder inadmissible;Violation of Art. 5-1;Violation of Art. 5-4;Just satisfaction dismissed (out of time)
Alvina Gyulumyan;Corneliu Bîrsan;Egbert Myjer;Ján Šikuta;Josep Casadevall;Luis López Guerra;Mihai Poalelungi
5. The applicant was born in 1968 and lives in Veličná. 6. On 24 June 2003 the police arrested the applicant. He was accused of planning a robbery and remanded in custody on that date. 7. Several decisions extending the applicant’s detention were made. In particular, on 18 November 2004 the Žilina District Court extended his detention in the context of the preliminary proceedings until 24 January 2005. 8. On 21 January 2005 the public prosecutor indicted the applicant and several others before the Žilina Regional Court. 9. The applicant requested to be released, arguing that the Regional Court had not extended his detention after the expiry of the period indicated in the District Court’s decision of 18 November 2004. 10. On 20 April 2005 the Regional Court ordered the applicant’s release. Upon a complaint lodged by the public prosecutor the Supreme Court decided on 24 May 2005 that the applicant should remain remanded in custody. On 27 July 2005 the applicant complained to the Constitutional Court that his detention after 24 January 2005 was unlawful. 11. In the meantime, on 15 June 2005, the Supreme Court extended the applicant’s detention until 24 June 2006. On 23 August 2005 the applicant lodged a constitutional complaint alleging a violation of Article 5 § 1 of the Convention as a result of that decision. 12. On 31 March 2006 the applicant was released. 13. In judgment III. ÚS 271/06 of 8 March 2007 the Constitutional Court found that by the above decision of 24 May 2005 the Supreme Court had breached the applicant’s right under Article 5 § 1 of the Convention. The Constitutional Court referred to its judgments I. ÚS 6/02 and I. ÚS 204/05 (see paragraphs 25-30 below) and held that there existed no justification for the absence of any judicial decision extending the applicant’s detention after 24 January 2005. 14. The Constitutional Court ordered the Supreme Court to reimburse the applicant’s costs in the constitutional proceedings. It dismissed his claim for just satisfaction, holding that (i) the finding of a violation of Article 5 § 1 provided appropriate redress for the applicant and (ii) the Supreme Court’s decision of 24 May 2005 was based on that court’s practice, which, however, was not in accordance with practice under the Convention. 15. In a different judgment delivered on 6 June 2007 (IV. ÚS 10/07) the Constitutional Court found that by the above decision of 15 June 2005 the Supreme Court had violated the applicant’s right under Article 5 § 1 of the Convention. In particular, with reference to the reasons for its judgment of 8 March 2007 the Constitutional Court was of the view that the Supreme Court should have remedied the situation resulting from the applicant’s unlawful detention by ordering his release. 16. The Constitutional Court granted the equivalent of 1,470 euros (EUR) to the applicant as just satisfaction and ordered the Supreme Court to reimburse the applicant’s costs. 17. The following provisions of the Code of Criminal Procedure of 1961 (Law no. 141/1961 Coll., in force until 31 December 2005) are relevant in the present case. 18. Pursuant to Article 71 § 1, a person’s detention in the context of both pre-trial proceedings and during proceedings before a trial court can only last as long as necessary. Where detention in the context of pre-trial proceedings is to exceed six months, it can be extended at a public prosecutor’s request up to one year by a judge or to a maximum of two years by a court’s chamber. 19. Article 71 § 2 provides that a person’s detention in the context of both pre-trial proceedings and during a trial must not exceed two years. In justified cases the Supreme Court may extend its duration to a maximum of three years and in cases of particularly serious offences up to five years. Under paragraph 3 of Article 71 a proposal for extension of a person’s detention is to be submitted by a public prosecutor in the pre-trial proceedings and by the president of the court’s chamber during the trial. 20. Article 72 § 1 obliges investigators, prosecutors and judges to examine, at each stage of criminal proceedings, whether reasons for the accused person’s detention persist. In pre-trial proceedings a judge is obliged to do so only when deciding on a public prosecutor’s proposal to extend detention or to modify the reasons for it, or when deciding on an accused person’s application for release. Where a reason for an accused person’s detention no longer exists, the accused must be released immediately. 21. Article 72 § 2 entitles the accused to apply for release at any time. When the public prosecutor dismisses such an application in the course of pre-trial proceedings, he or she must submit it immediately to the court. The decision on an application for release must be taken without delay. If an application is dismissed, the accused may only renew it fourteen days after the decision has become final unless he or she gives other reasons to justify his or her release. 22. Pursuant to Article 192, where the court carries out a preliminary examination of the indictment of a person who is detained, it shall also decide whether that person is to remain in custody. 23. In accordance with the Supreme Court’s practice, the time-limits mentioned in Article 71 § 1 of the Code of Criminal Procedure of 1961 concerned exclusively situations where a decision on a public prosecutor’s proposal was to be made in the context of pre-trial proceedings. However, where an indictment had been filed within a shorter time than the two-year period mentioned in Article 71 § 1, the law did not require that a request for continued detention of the accused be made or that a separate decision should be made on their continued detention, with the exception of cases where the indictment had been filed less than ten days before the expiry of the two-year maximum period of detention. 24. Pursuant to a 1975 Supreme Court ruling (Rt 5/75), Article 192 of the Code of Criminal Procedure requires a court to decide on further detention of an accused where it has carried out a preliminary examination of the indictment. Accordingly, where the presiding judge concludes on the basis of the file that a preliminary examination of the indictment is not required and considers the detention of the accused to be lawful, there is no need for a separate decision of the court on continued detention of the accused. However, where the accused applies for release, such application must be decided upon without delay in accordance with Article 72 § 2 of the Code of Criminal Procedure. 25. In judgment I. ÚS 6/02 the Constitutional Court noted that the Code of Criminal Procedure did not explicitly require that a decision on extension of an accused person’s detention be given in cases where an indictment had been filed and where the detention, both at the pre-trial stage and during the trial, had not exceeded two years. 26. It held, however, that the filing of an indictment alone did not as such justify a person’s continued detention. The court dealing with the case was required to decide explicitly on further detention of the accused prior to the expiry of the period for which the detention had been extended in the context of pre-trial proceedings. 27. In its judgment the Constitutional Court referred in particular to the guarantees laid down in Article 5 § 1 of the Convention and the Court’s judgment in Stašaitis v. Lithuania (no. 47679/99, 21 March 2002, §§ 5961). 28. In that case the Constitutional Court found no breach of Article 5 § 1 as the ordinary court involved, both in the context of a preliminary examination of the indictment and in reaction to the accused person’s request for release, decided that the reasons for the latter’s detention persisted. That decision had the same effect as a decision to extend the accused person’s detention. 29. In the above case, which concerned one of the present applicant’s co-accused, the detention in the context of pre-trial proceedings had been extended until 24 January 2005. Prior to its expiry, on 21 January 2005, the accused was indicted. In its judgment the Constitutional Court found that the Supreme Court had breached the plaintiff’s right under Article 5 § 1 of the Convention, in that there had been no judicial decision extending his detention after 24 January 2005 and there existed no justification for that situation. It was irrelevant that courts at two levels had dismissed the accused person’s application for release, as those decisions related to detention in the context of pre-trial proceedings, that is prior to the filing of an indictment. In those circumstances, any relevant decision on further detention of the accused could have been taken only by the criminal court before which the accused had been indicted. 30. With reference to its judgment I. ÚS 6/02 of 4 December 2002 the Constitutional Court held that for a detention to be lawful it must always rely on a court decision. 31. In the above two judgments given in the case of a different co-accused of the applicant, the Constitutional Court found a breach of Article 5 § 1, in that there had been no judicial decision extending the accused person’s detention after the filing of the indictment. In the latter judgment it held, in particular: “In the Constitutional Court’s view, the jurisdiction of the court involved at the pre-trial stage ended with the filing of the indictment on 21 January 2005. The indictment as such is not a ground for continued detention of a person, as it does not explicitly follow from the law, and it is inadmissible to extend the possibilities of restricting a person’s liberty by extensive interpretation of several provisions of the Code of Criminal Procedure. However, a court’s decision on detention of a person at the pre-trial stage can constitute a ground for such person’s detention during a short period following the indictment. Otherwise it would be practically impossible to ensure continued detention of a person after an indictment has been filed. In the circumstances, a ground for the plaintiff’s detention existed until 25 January 2005. The detention should have been extended by a decision not later than on 25 January 2005 if it was to last after that date. In the absence of any such decision, the restriction of the plaintiff’s liberty after 25 January 2005 was unlawful. The unlawfulness of the plaintiff’s deprivation of liberty after 25 January 2005 cannot be vindicated retrospectively, not even by a judicial decision. Subsequent judicial decisions could not have extended the plaintiff’s detention as it had ended on 25 January 2005. The only existing possibility was to remand the plaintiff in custody again. As this was not the case, his subsequent deprivation of liberty had no legal ground.” 32. In judgment I. ÚS 115/07 the Constitutional Court confirmed that the filing of an indictment alone does not suffice for continued detention of the accused to be lawful. The court dealing with the criminal case following the indictment is required to take a decision on the accused person’s detention prior to the expiry of the period for which the latter had been remanded in the context of pre-trial proceedings. The Constitutional Court found a breach of the accused person’s right under Article 5 § 1 of the Convention and ordered his immediate release. 33. The new Code of Criminal Procedure (Law no. 301/2005 Coll.) entered into force on 1 January 2006. 34. Article 76 § 5 provides, inter alia, that a court is obliged to decide on further detention of the accused within fifteen days of his or her indictment (or submission for approval of an agreement between the prosecution and the accused on guilt and punishment) unless it has already decided on detention of the accused under provisions which govern the examination of indictments. 35. The explanatory report to the draft Code of Criminal Procedure of 2005 indicates that the above provision accentuates the judicial control of a person’s detention following his or her indictment and that the amendment is also in reaction to the Constitutional Court’s judgment I. ÚS 6/02 of 4 December 2002.