CASE OF BIRO v. SLOVAKIA (No. 2)
Violation of Art. 6-1;Violation of Art. 13;Non-pecuniary damage - financial award;Costs and expenses partial award - domestic proceedings;Costs and expenses partial award - Convention proceedings
Nicolas Bratza
4. The applicant was born in 1951 and lives in Bratislava. 5. The applicant was employed with a private commercial company. The company was associated with Mr A. and his son, Mr B., who both held shares in it and were also involved in its management. The company took credits from a bank. 6. The applicant provided security for the repayment of the bank credits by pledging in favour of the bank his savings which he had in an account at the bank. In order to secure his potential claims against the company and to provide for his compensation, the applicant and the company concluded two contracts in January and February 1998, respectively. 7. Mr A. then sold his share in the company to a third individual. The company subsequently failed to meet its payment obligations towards the bank and became insolvent. The bank consequently seized the corresponding amounts from the applicant's account. The applicant has received no indemnification from the company. 8. On 22 February 1999 the applicant filed a criminal complaint with the public prosecution service accusing A. and B. of having committed criminal offences of fraud, fraudulent insolvency and usury in connection with the above transaction. At the same time, he requested that his claim for damages be secured under Article 47 of the Code of Criminal Procedure. 9. In a letter of 11 March 1999 the Trnava District Prosecutor informed the applicant inter alia that the possibility of securing an aggrieved party's claim for damages only existed at the stage of proceedings after a criminal charge had been raised. As by that time no charges had been raised in the present case, the applicant's claim could not be secured. 10. The applicant's criminal complaint was examined by the Trnava District Office of Investigation which dismissed it, on 25 June 1999, finding that there was no case to answer. The decision indicated in its reasoning that the applicant had been interviewed and that, in the course of the interview, he had specified the amount of the damage which he had sustained when standing as surety for the above bank credits. The applicant challenged this decision by a complaint (sťažnosť) which was determined by the District Prosecutor on 17 August 1999. The prosecutor's decision contained information about the specific amount of the damage which the applicant had allegedly sustained. The prosecutor quashed the challenged decision as being premature. 11. The applicant's criminal complaint was dismissed again on 19 September 1999 and, on his further complaints, on 9 March 2000 and 25 March 2002. All these decisions refer inter alia to the applicant's criminal complaint of 22 February 1999. 12. The applicant challenged the decision of 25 March 2002 by numerous further complaints addressed to all levels of the public prosecution service. He alleged in particular that if no charges were brought promptly, there was the risk that the prosecution would become statutebarred. 13. On 6 February 2003 the Prosecutor General transmitted the complaints that had been submitted to him to the Trnava Regional Prosecutor who, in turn, transmitted the respective complaints to the District Prosecutor. The latter was instructed to ensure the commencement of criminal proceedings in the matter because the previous examination of the factual and legal side of the case had not been adequate. 14. On 3 March 2003 the District Prosecutor issued an instruction to the investigator under Article 174 § 2 (a) of the Code of Criminal Procedure directing him to commence a criminal prosecution on the basis of a suspicion that a criminal offence of infringing creditors' rights within the meaning of Article 256 § 1 (a) and § 3 of the Criminal Code had been committed. The instruction referred to the applicant's criminal complaints and also indicated that criminal proceedings should be commenced in connection with certain other creditors. 15. On 20 March 2003 the District Office of Investigation formally commenced a criminal prosecution under Article 160 § 1 of the Code of Criminal Procedure against one or more unknown persons alleging that they had infringed the applicant's rights as a creditor. 16. On 28 April 2003 the investigator interviewed the applicant. In response to his enquiry the applicant stated expressly that he wished his claim for damages to be joined to the criminal proceedings pursuant to Article 43 of the Code of Criminal Procedure. 17. Between April and November 2003 the investigator interviewed 8 witnesses. Between September 2003 and January 2004 the investigator summoned A. and B. several times for an interview. As they ignored the summons, the investigator had B. brought to the interview by the police (predvedenie) and asked that a nationwide search (pátranie) be carried out for A. who eventually came of his own accord. 18. On 3 June 2004 A. and B. were charged with the offences of infringing the right of the applicant as a creditor pursuant to the above decision of 20 March 2003. They both appealed against this decision and their appeals were dismissed by the Regional Prosecutor on 20 August 2004. 19. In September 2004 the investigator invited the Land Registry and all banks in Slovakia to disclose information concerning the real property and bank accounts of A. and B. A search in the registry of motor vehicles was subsequently carried out. 20. During the proceedings, the applicant submitted, on numerous occasions, new evidence and made other written submissions and suggestions as regards the course of the investigation. He further complained several times about the way in which the proceedings were being conducted and filed unsuccessful complaints and criminal complaints against the investigators, prosecutor and other persons involved in the case. 21. The criminal proceedings are still pending. 22. In February 2005 the applicant who was represented by a lawyer lodged a complaint under Article 127 of the Constitution with the Constitutional Court (Ústavný súd). He asserted a violation of his right to a hearing “without unjustified delay” under Article 48 § 2 of the Constitution and his right to a hearing “within a reasonable time” under Article 6 § 1 of the Convention in the proceedings before the District Office of Investigation in respect of his criminal complaint of 22 February 1999. He claimed 1,500,000 Slovakian korunas (SKK) by way of compensation in respect of nonpecuniary damage. 23. On 31 March 2005 the Constitutional Court declared the complaint inadmissible. It observed that the primary aim of criminal proceedings is to detect criminal offences and to punish the perpetrators and not to determine the aggrieved parties' claims for damages. Aggrieved parties' claims for damages were of a private law nature and were predominantly claims to be asserted in civil courts. The possibility of claiming damages in criminal proceedings was a privilege which did not make the determination of such claims the central issue of the proceedings and was limited by the above main aim of the proceedings. The Constitutional Court concluded that aggrieved parties in criminal proceedings did not enjoy the right to have their claims for damages determined without unjustified delay (Article 48 § 2 of the Constitution). In making this conclusion, the Constitutional Court relied on its previous decisions in cases file nos. IV. ÚS 4/02, IV. ÚS 166/03 and IV. ÚS 92/04. It later upheld this line of reasoning in the decision in the case file no. IV. ÚS 52/04. 24. In October 2005 the applicant turned to the Constitutional Court again. He argued that the Constitutional Court's decision of 31 March 2005 was erroneous and reiterated his complaint concerning the length of the proceedings in respect of his criminal complaint of 22 February 1999. 25. On 23 November 2005 the Constitutional Court declared the complaint inadmissible. It held that its decision of 31 March 2005 was final and subject to no appeal. The matter at hand thus had to be considered res iudicata and could not be reviewed again. 26. Article 48 § 2 provides, inter alia, that every person has the right to have his or her case tried without unjustified delay. 27. Standing as an aggrieved party (poškodený) in criminal proceedings is governed by the seventh Section (Oddiel) of the second Chapter (Hlava). 28. Article 43 §§ 1 and 2 provides, inter alia, that a person who has suffered pecuniary or nonpecuniary damage as a result of a criminal offence, may claim compensation from the accused and request the court, when convicting the accused, to order him or her to pay compensation for the damage. The aggrieved party further has the right to adduce evidence and to comment on it, to inspect the court file, to take part in the hearing and to make submissions. 29. Article 47 et seq. provide for the possibility of securing the claim of an aggrieved party for damages by impounding the charged person's property in situations when there is a well-founded suspicion that the payment of the claim would be hindered or frustrated. 30. Standing as an aggrieved party is governed by the eighth Section of the second Chapter. 31. Persons who have suffered health, property, moral, or other damage; or whose legally protected rights or freedoms have been violated or jeopardized as a result of a criminal offence are considered aggrieved parties. They have inter alia the right to claim compensation in respect of their damage; to adduce evidence and to comment on it; to inspect the court file; to take part in the hearing; to make submissions etc. (Article 46 § 1). 32. An aggrieved party, who has a lawful claim against the accused person (obvinený) for compensation in respect of a damage resulting from a criminal offence, has the right to propose that a guilty verdict should include an order for compensation. The proposal must be made at latest by the closure of the investigation and must indicate the ground and scope of the claim (Article 46 § 3). 33. Article 50 et seq. provide for the possibility of securing the claim of an aggrieved party for damages in situations when there is a well-founded suspicion that the payment of the claim would be hindered or frustrated. 34. Under Article 83 if proceedings commence in relation to a specific matter, the same matter cannot be made the subject of other judicial proceedings. If a claim for damages is duly lodged in criminal proceedings, it is considered a lis pendens from the point of view of Article 83 of the Code of Civil Procedure (Collection of Judicial Decisions and Standpoints (Zbierka súdnych rozhodnutí a stanovísk), No. 22/1979). 35. Under Article 112 if creditors make and duly pursue a claim in respect of their rights before a court or another authority, the statute of limitations is stayed from the day the claim is made. This includes the making of a civil-party claim for damages in criminal proceedings including in their pretrial stage (see, for example, Collection of Judicial Decisions and Standpoints Nos. III/1967, 131/1974 and 29/1985 and Selection of Decisions and Standpoints (Výber rozhodnutí a stanovísk) No. 27/1984).