CASE OF PAVLETIC v. SLOVAKIA
Preliminary objections dismissed (victim, non-exhaustion of domestic remedies);Violation of Art. 5-3;Violation of Art. 5-4;Violation of Art. 5-5;No separate issue under Art. 13;No violation of Art. 6-1;Pecuniary damage - claim dismissed;Non-pecuniary damage - finding of violation sufficient;Costs and expenses partial award
Nicolas Bratza
8. The applicant was born in 1962 and lives in Marčana (Croatia). 9. On 26 January 1995 a police investigator in Banská Bystrica (Slovakia) apprehended the applicant on the ground that he had been accused, together with another person, of trafficking in women. Subsequently the following relevant facts occurred and decisions were taken. 10. On 27 January 1995 the Banská Bystrica District Court remanded the applicant in custody with effect from 26 January 1995. The decision stated that the applicant had brought two women from Slovakia to Spain and that he had forced one of them to carry out prostitution under the threat of shooting her. The judge considered the detention necessary with a view to preventing the accused from absconding and from committing further offences within the meaning of Article 67(1)(a) and (c) of the Code of Criminal Procedure. On 31 January 1995 the applicant challenged this decision through his lawyer. 11. On 15 February 1995 the Banská Bystrica Regional Court quashed the District Court’s decision of 27 January 1995 on the ground that the reasons for it were not sufficient. The Regional Court noted that the applicant was a foreign national without a permanent address in Slovakia. It therefore considered his detention necessary, within the meaning of Article 67(1)(a) of the Code of Criminal Procedure, and remanded him in custody as from 26 January 1995. 12. On 21 July 1995 a judge of the Banská Bystrica District Court extended the applicant’s detention on remand until 26 August 1995 on the ground that the public prosecutor had decided to re-examine a witness who was staying abroad. The court considered that there was a risk of the applicant’s absconding in case of his release. 13. On 11 August 1995 the Banská Bystrica District Court extended, at the public prosecutor’s request, the applicant’s detention on remand until 26 December 1995. The decision stated that a witness staying abroad could not be re-examined and that it was also necessary to establish whether the accused persons had tried to benefit from the prostitution of other persons. The court considered the applicant’s detention necessary within the meaning of Article 67(1)(a) of the Code of Criminal Procedure. Reference was made to the fact that the applicant was a foreign national and that he did not have permanent residence in Slovakia. 14. On 15 December 1995 the Banská Bystrica District Court extended the applicant’s detention on remand until 25 January 1996. The decision stated that the lawyer appointed to represent the applicant on 20 November 1995 needed more time to study the case file. Furthermore, the lawyer was ill and because of her absence the applicant had refused, on 6 December 1995, to acquaint himself with the outcome of the investigation. 15. On 19 April 1996 the applicant lodged a constitutional petition. He alleged, inter alia, that he was discriminated against as the Regional Court had refused to release him, referring to his nationality and to the fact that he had no permanent residence in Slovakia. 16. On 22 January 1997 the Supreme Court refused to grant a further extension of the applicant’s detention on remand. It found that the requirements laid down in Article 71(2) of the Code of Criminal Procedure were not met. In particular, the Supreme Court noted that the case was not complex and that the period of almost one year during which the case had been pending at the preliminary stage was excessive given the scope of evidence that had to be taken. Furthermore, the first instance court had scheduled the main hearing for 30 September 1996, that is more than eight months after the case had been submitted to it on 22 January 1996. The Supreme Court found no relevant reasons for such delays. The decision stated that the applicant’s two stays in hospital had not been of long duration and that they had not prevented the main hearing from being held. The Supreme Court’s decision was transmitted to the Regional Court on 7 February 1997. 17. On 23 January 1997 the Supreme Court ordered the prison administration to release the applicant. The applicant was released on 26 January 1997. 18. On 26 March 1997 the Constitutional Court declared manifestly illfounded the applicant’s petition of 19 April 1996. The decision stated, with reference to the criminal file, that the applicant’s detention had been necessary within the meaning of Article 67(1)(a) of the Code of Criminal Procedure as there had existed a risk that he would abscond in case of his release. 19. On 16 May 1995 the applicant lodged an application for release. It was dismissed by the Banská Bystrica District Court on 31 May 1995 on the ground that his detention was still necessary within the meaning of Article 67(1)(a) of the Code of Criminal Procedure. The applicant filed a complaint. He argued that the fact that he was a foreign national did not justify the fear that he might abscond. 20. The Banská Bystrica Regional Court dismissed the complaint on 12 July 1995. The decision stated that the fear that the applicant might abscond in case of his release was justified. The typed minutes, a copy of which the applicant received from the Regional Office of Investigation in Banská Bystrica on 29 November 1995, indicate that the Regional Court examined the applicant’s complaint in camera in the presence of J.M., a public prosecutor. According to those minutes, the public prosecutor “proposed to dismiss the applicant’s complaint”. At a later stage of the proceedings J.M. presided over the Regional Court chamber which delivered the judgment of 13 June 1997 (see below). The applicant submitted to the Court another copy of the same minutes, included in the criminal file, in which the name of another person is handwritten as the public prosecutor who had attended the deliberations. 21. On 16 August 1995 the applicant lodged another application for release. He alleged that there had been undue delays in the proceedings and that the fear that he would abscond in case of his release was unsubstantiated. The applicant further complained that he was discriminated against on the ground of his nationality. 22. The Banská Bystrica District Court dismissed the request on 20 September 1995. The applicant filed a complaint which was dismissed by the Banská Bystrica Regional Court on 18 October 1995. The courts considered it probable that the applicant, a foreign national, would leave Slovakia in case of his release. 23. On 10 January 1996 the applicant requested the public prosecutor to release him. In a letter of 19 January 1996 the Banská Bystrica Regional Prosecutor stated that he had dismissed the application for release and that he would transmit it to the Banská Bystrica Regional Court together with the indictment. The Regional Court did not decide on the applicant’s request. 24. On 25 April 1995 the police investigator accused the applicant of blackmail in addition to the charge of trafficking in women. On 15 May 1995 the Banská Bystrica District Prosecutor dismissed the applicant’s complaint against the investigator’s decision. 25. On 12 October 1995 the police investigator dismissed the applicant’s request for further witnesses to be heard with a view to establishing, in particular, the relevant facts relating to the stay of the two Slovakian women in Spain. On 21 November 1995 the Banská Bystrica Regional Prosecutor dismissed the applicant’s complaint against this decision. Both authorities considered that the taking of further evidence was superfluous. 26. On 18 October 1995 the applicant withdrew the authority of the lawyer who had represented him until then. At the same time he requested the court to appoint a lawyer ex officio. On 20 November 1995 the Banská Bystrica District Court appointed another lawyer to assist the applicant ex officio. 27. On 19 December 1995 and on 10 January 1996 the applicant learned of the outcome of the investigation. On the latter date he requested that further evidence be included in the case file. The police investigator dismissed the request on 11 January 1996. 28. On 17 January 1996 the applicant requested that the authority of the lawyer appointed on 20 November 1995 be withdrawn. He further asked for a time-limit to be set during which he could appoint a lawyer of his own choice. The applicant received no reply. 29. On 22 January 1996 the Banská Bystrica Regional Prosecutor indicted the applicant for trafficking in women and blackmail before the Banská Bystrica Regional Court. 30. After this date the applicant was twice treated as an in-patient in a hospital for prisoners in Trenčín. 31. On 2 February 1996 the Banská Bystrica Regional Prosecutor informed the Regional Court that the applicant had challenged the interpreter. The letter further stated that the interpreter considered herself biased as the applicant’s submissions about her were insulting. 32. The first hearing before the Regional Court was held on 30 September 1996. The applicant challenged the presiding judge I.B. on the ground that he was xenophobic. The case was adjourned. On 4 December 1996 the Supreme Court found that the presiding judge of the Regional Court was not biased. 33. On 13 June 1997 the Banská Bystrica Regional Court convicted the applicant of trafficking in women and sentenced him to three years’ imprisonment. It further ordered the applicant’s expulsion from Slovakia. 34. The court established that, on 13 January 1995, the applicant had brought two women who were sisters from Slovakia to Spain on the false pretext of offering them a job as tourist guides. He threatened to shoot them, took away their passports and plane tickets and forced one of them to stay at night in a club where prostitution was carried out. On 17 January 1995 the applicant left Spain. On 25 January 1995 the women escaped and returned to Slovakia. 35. The court chamber was presided over by judge J.M. who had participated as a public prosecutor, on 12 July 1995, in the examination by the Banská Bystrica Regional Court of the applicant’s complaint against Banská Bystrica District Court’s decision of 31 May 1995 concerning the applicant’s request for release. 36. Upon the delivery of the Regional Court’s judgment the applicant indicated orally that he wished to appeal. Subsequently he left Slovakia. The Slovakian authorities were informed that the applicant had not stayed at his address in Croatia and that an international arrest warrant had been issued against him in Croatia on the ground that he was subject to a prison sentence which had been imposed in 1995. As the applicant’s whereabouts were unknown the public prosecutor proposed, on 24 November 1997, that the case be proceeded with in his absence. 37. On 23 April 1998 the Supreme Court dismissed the appeal. It decided following a public hearing in the applicant’s absence as he was in hiding. 38. The Supreme Court held that the Regional Court had established all relevant facts and had assessed them in accordance with the law while respecting the applicant’s right of defence. The Supreme Court addressed the arguments raised by the applicant in his appeal. The decision stated that the Supreme Court had examined all aspects of the case and had had regard also to possible shortcomings in the proceedings which had not been challenged by the applicant as required by Article 254(1) of the Code of Criminal Procedure. 39. On 28 May 1998 the Banská Bystrica Regional Court decided to include the period during which the applicant had been detained in the period of imprisonment to which he was sentenced. Reference was made to the relevant provisions of criminal law under which such a decision is to be taken in cases where a person sentenced to a prison term has previously been detained in the context of criminal proceedings against him or her. 40. Pursuant to Article 11, as in force at the relevant time, international instruments on human rights and fundamental freedoms ratified by the Slovak Republic and promulgated in accordance with the statutory requirements take precedence over national laws where such international instruments guarantee a broader scope of fundamental rights and freedoms. Article 144(1) provides that judges are independent and bound only by law. Under paragraph 2 of Article 144, judges are bound also by international instruments where the Constitution or law so provide. 41. Article 30(2) provides, inter alia, that a person who earlier acted in a criminal case as a public prosecutor is to be excluded from dealing with the same case as a judge. 42. In accordance with Article 67(1)(a), an accused can only be remanded in custody when there are reasonable grounds for believing that he or she would abscond or hide in order to avoid prosecution or punishment, especially when he or she has no permanent address. 43. Article 67(1)(c) provides for detention on remand of an accused person when there are reasonable grounds for believing that he or she would commit further offences or accomplish an attempted offence. 44. Under Article 71(2), the maximum length of a person’s detention on remand should not exceed two years. The Supreme Court may extend it by another year when the criminal proceedings cannot be concluded, because of the complexity of the case or for other serious reason, within the two years’ period provided that the release of the accused person would jeopardise the proceedings. 45. 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 shall submit it immediately to the court. The court shall rule on such an application without delay. In the event that the application is dismissed, the accused may renew it fourteen days after the decision becomes final unless he or she invokes other reasons. 46. Under Article 254(1), unless there are formal shortcomings in an appeal, the appellate court shall review the lawfulness and justification of all conclusions of the first instance court which may be appealed against as well as compliance with the procedural requirements in the proceedings leading to the first instance judgment. In doing so the appellate court shall also have regard to any shortcomings which have not been complained of in the appeal. 47. According to Article 11, any natural person has the right to protection of his or her personality, in particular of his or her life and health, civil and human dignity, privacy, name and personal characteristics. 48. Pursuant to Article 13(1), any natural person has the right to request that unjustified infringement of his or her personal rights should be stopped and the consequences of such infringement eliminated, and to obtain appropriate satisfaction. 49. Article 13(2) provides that in cases when the satisfaction obtained under Article 13(1) is insufficient, in particular because a person’s dignity and position in society has been considerably diminished, the injured person is entitled to compensation for non-pecuniary damage. According to paragraph 3 of Article 13, when determining the amount of such compensation the courts have to take into account the seriousness of the prejudice suffered by the person concerned and also the circumstances under which the violation of that person’s rights occurred. 50. Section 1(1) of Act No. 58/1969 on the liability of the State for damage caused by a State organ’s decision or by its erroneous official action (Zákon o zodpovednosti za škodu spôsobenú rozhodnutím orgánu štátu alebo jeho nesprávnym úradným postupom – “the State Liability Act”) provides that the State is liable for damage caused by unlawful decisions delivered by a public authority in the context of civil, administrative or criminal proceedings with the exception of decisions which concern deprivation of liberty and imposition of a penalty. 51. Section 5(1) provides that a person who is deprived of liberty is entitled to compensation when the criminal proceedings against him or her are dropped or when he or she is acquitted. However, under paragraph 2(a) of Section 5, such compensation is excluded when the person concerned is responsible for his or her detention in that, in particular, he or she tried to abscond or was otherwise responsible for the facts on which the decision concerning the detention was based. 52. Section 18(1) renders the State liable for damage caused in the context of carrying out functions vested in public authorities which results from the erroneous official actions of persons entrusted with the exercise of these functions. A claim for compensation can be granted when the plaintiff shows that he or she suffered damage as a result of an erroneous action of a public authority, quantifies its amount, and shows that there is a causal link between the damage and the erroneous action in question. 53. Regulation No. 32/1965 governs compensation for damage caused to a person’s health. Section 2 provides for compensation for pain resulting from damage to a person’s health, subsequent medical treatment and the elimination of the effects of damage to health. The amount of the compensation is to be determined in accordance with the principles and rates attached to the regulation. 54. Under paragraph 2 of Section 2, compensation for pain is not payable in cases of simple psychic reactions affecting a person’s health which are of a passing character or for short-term changes in a person’s health which do not require medical treatment or which cannot be established in an objective manner. 55. Under the domestic courts’ practice, the State Liability Act of 1969 does not allow for compensation for non-pecuniary damage unless it is related to deterioration in a person’s health (for further details see Havala v. Slovakia (dec.), no. 47804/99, 13 September 2001). 56. In proceedings no. 4C 109/97 before the Šaľa District Court the plaintiff claimed, from the Ministry of Justice, compensation for non-pecuniary damage on the ground that he had been acquitted following the re-opening of proceedings leading to his conviction of an offence. In its judgment of 29 October 1998 the District Court established, on the basis of the plaintiff’s submissions, that his claim was based on Article 11 et seq. of the Civil Code which provides for protection of a person’s good name and reputation as well as of other personal rights. The District Court dismissed the action on the ground that the plaintiff should have claimed compensation under the State Liability Act of 1969. 57. In decision no. 8 Co 109/99 of 23 March 2000 the Nitra Regional Court quashed the above Šaľa District Court’s judgment. The appellate court found that the subject-matter of the proceedings and the legal basis for the plaintiff’s claim remained unclear. The decision stated, inter alia, that the first instance court had not explained why the plaintiff should have first sought redress under the State Liability Act. The first instance court was instructed to have the action completed by the plaintiff, to take any evidence which may be necessary and to deliver a new decision with reasons on the case. Reference was made also to Article 11 of the Constitution and to Article 3 of Protocol No. 7. 58. In decision no. 27 C 31/00-120 of 6 March 2002 the Bratislava III District Court partially granted an action where a judge claimed protection of his personal rights. The plaintiff argued, inter alia, that the Minister of Justice had obliged him to submit a declaration concerning his property without any justification and that he had been revoked from the post of President of a district court for his failure to submit such declaration. On 24 June 2003 the appellate court confirmed the conclusion that the plaintiff’s right to protection of his personal rights had been violated. 59. On 30 September 2003 the Banská Bystrica District Court delivered judgment no. 14C 112/02-229. The plaintiffs, a married couple, alleged to have suffered damage of both pecuniary and non-pecuniary nature in the context of criminal proceedings against them in which they had been discharged. One of the plaintiffs, who had been dismissed from the police and detained on remand in the context of the criminal proceedings, also claimed compensation for lost income. In the above judgment the District Court ordered the Ministry of Justice to compensate for the lost income of the plaintiff concerned and also to compensate for the expenses which the plaintiffs had incurred in the context of the criminal proceedings. The decision to grant compensation for pecuniary damage was based on the relevant provisions of the State Liability Act of 1969. The District Court further granted the plaintiffs, with reference to Article 11 et seq. of the Civil Code, 7 and 5 million Slovak korunas respectively in compensation for damage of non-pecuniary nature. The relevant part of its judgment reads as follows: “The right to protection of one’s personal rights is an individual right of any natural person. When granting protection to that right it is irrelevant whether an unjustified interference was the result of a fault and whether or not it was caused deliberately. It is not even required that an unjustified interference should produce any particular consequences. It suffices that an unjustified interference was capable of affecting or violating one’s personal rights. The fact that plaintiff A cannot exercise the profession and hold the job which he held prior to his accusation and that the clientele of plaintiff B [who is an advocate] shrank considerably during the criminal proceedings as well as the fact that the plaintiffs were forced to move to another apartment because of deteriorated relations with their neighbours clearly show that there has been such an interference [with their personal rights]. That interference is causally linked to prosecution of the plaintiffs and to the criminal proceedings held against them. There is no doubt that such interference is objectively capable of causing damage. As regards both plaintiffs, it affected their professional life, their position in the society, family life and their relations with neighbours... The interference with the plaintiffs’ [personal rights] is directly linked to the criminal proceedings [against them]... It follows from the above that there has been an interference with the plaintiffs’ personal rights which, in substance, still persists and that it is related to the criminal proceedings against the plaintiffs. The criminal proceedings were carried out by the Slovak Republic through its competent authorities. The defendant is therefore obliged to compensate for damage of a non-pecuniary nature. ... compensation for damage of a non-pecuniary nature has the character of satisfaction. The purpose of compensation granted in the form of a sum of money is to “purify” the affected person in the eyes of other persons in all spheres of life where harm was caused... The amount of compensation granted should therefore be adequate to the interference and its circumstances... It is beyond any doubt that the plaintiffs were publicly known in the district of Považská Bystrica (in view of their professional positions) and that their reputation was affected in all spheres of life. The case was taken up by the media whereby their esteem in professional life was diminished over the whole country. The amount of compensation must therefore not only be adequate to provide satisfaction to the plaintiffs, but its amount should also ensure that the plaintiffs regain their esteem and dignity in the eyes of the public.”