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THIRD
SECTION
CASE OF BRUNCKO v. SLOVAKIA
(Application
no. 33937/06)
JUDGMENT
STRASBOURG
3 November
2011
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Bruncko v.
Slovakia,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep Casadevall,
President,
Corneliu Bîrsan,
Alvina
Gyulumyan,
Egbert Myjer,
Ján
Šikuta,
Luis López Guerra,
Mihai
Poalelungi, judges,
and Santiago
Quesada, Section
Registrar,
Having
deliberated in private on 11 October 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 33937/06)
against the Slovak Republic lodged with the Court under
Article 34 of the Convention for the Protection of Human
Rights and Fundamental Freedoms (“the Convention”) by a
Slovak national, Mr Ján
Bruncko (“the applicant”), on 5 August 2006.
2. The
applicant was represented by Ms M. Bobíková,
a lawyer practising in Dolný Kubín.
The Government of the Slovak Republic (“the
Government) were represented by their Agent, Mrs. M.
Pirošíková.
3. The
applicant alleged that he had been detained in custody in breach of
Article 5 § 1 of the Convention.
- On
12 January 2010 the Court decided to give notice
of the application to the Government. It was also
decided to rule on the admissibility and merits of the application at
the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1981 and lives in Dolný
Kubín.
- On
5 February 2004 the police arrested the applicant. He was accused of
robbery and remanded in custody from that date.
- Several
decisions extending the applicant’s detention were made. In
particular, on 18 November 2004 the Zilina
District Court extended his detention in the context of the
preliminary proceedings until 24 January 2005.
- On
21 January 2005 the public prosecutor indicted the applicant and
several other persons before the Zilina Regional
Court.
- 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.
- 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 in the period after 24 January 2005 was unlawful.
- On
5 February 2006 the applicant was released.
- On
15 February 2006 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
(judgment I.ÚS 204/05). There
had been no judicial decision extending the applicant’s
detention after 24 January 2005 and there existed no justification
for that situation.
- The
Constitutional Court ordered the Supreme Court to reimburse the
applicant’s costs in the constitutional proceedings. It
dismissed the applicant’s 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.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. The Code of Criminal Procedure of 1961
- 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.
- 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.
- 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.
- 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 the accused person’s application for release. Where
a reason for an accused person’s detention no longer exists,
the accused must be released immediately.
- Article
72 § 2 entitles an 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 justifying his or her release.
- 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.
B. Practice of the Supreme Court
- 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 a request for continued
detention of the accused persons to be made or a separate decision 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.
- 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 chamber
on continued detention of the accused. However, where the accused
applies for release, the application must be decided upon without
delay in accordance with Article 72 § 2 of the Code of Criminal
Procedure.`
C. Practice of the Constitutional Court
1. Judgment I. ÚS 6/02 of 4
December 2002
- 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.
- 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.
- 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, §§ 59 61).
- 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.
2. Judgments III. ÚS 322/05
of 10 May 2006 and III. ÚS 167/06 of 30 November 2006
- In
the above two judgments given in the case of one of the applicant’s
co-accused, 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 given at the pre-trial stage can constitute a ground for that
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 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 justified 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 done, his subsequent
deprivation of liberty had no legal ground.”
3. Judgment I. ÚS 115/07 of
23 October 2007
- 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. It is required that the court
dealing with the criminal case following the indictment should 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.
D. The Code of Criminal Procedure of 2005
- The
new Code of Criminal Procedure (Law no. 301/2005 Coll.) entered into
force on 1 January 2006.
- Article
76 § 5 provides, inter alia, that a court is obliged to
decide on further detention of an accused within fifteen days of his
or her indictment (or submission for its 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.
- The
explanatory report to the draft Code of Criminal Procedure of 2005
indicates that the above provision accentuates judicial supervision
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.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
- The
applicant complained that his detention after 24
January 2005 had been unlawful and that he was unable to obtain
appropriate redress in that respect. He alleged a violation of
Article 5 § 1 of the Convention, the relevant part of which
reads as follows:
“Everyone has the right to liberty and security of
person. No one shall be deprived of his liberty save in the following
cases and in accordance with a procedure prescribed by law: (...)
(c) the lawful arrest or detention of a
person effected for the purpose of bringing him before the competent
legal authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to prevent his
committing an offence or fleeing after having done so; (...)”
- The
Government contested that argument.
A. Admissibility
- The
Government argued that the application was manifestly ill-founded as
the guarantees of Article 5 § 1 had been complied with. In any
event, given the redress which the applicant had obtained in the
proceedings before the Constitutional Court, he could no longer be
considered a “victim” within the meaning of Article 34 of
the Convention.
- The
applicant disagreed with the arguments of the Government.
36. The
Court reiterates that a decision or measure favourable to the
applicant is not in principle sufficient to deprive the applicant of
his or her status as a “victim”, within the meaning of
Article 34 of the Convention, unless the national authorities have
acknowledged, either expressly or in substance, and then afforded
redress for, the breach of the Convention (see Rosselet-Christ v.
Slovakia, no. 25329/05, § 49, 26 October
2010, with further references).
37. In
the present case, the Constitutional Court, on 15 February
2006, found that the applicant’s right under Article 5 § 1
had been violated in that there had been no judicial decision
extending his detention after 24 January 2005. It ordered the Supreme
Court to reimburse the applicant’s costs in the constitutional
proceedings and dismissed his claim for just satisfaction, holding
that (i) its finding as such provided appropriate redress for the
applicant and (ii) the Supreme Court decision of 24 May 2005 was
based on that court’s practice, which, however, was not in
accordance with practice under the Convention (see paragraphs 13-14
above). At the time of the judgment the applicant
had been released.
38. Thus
the Constitutional Court explicitly acknowledged a breach of the
applicant’s right under the Convention on which he relies in
the present application. However, the Court considers that, in the
absence of any just satisfaction award, its judgment did not provide
the applicant with appropriate redress, in view of the importance of
the right to liberty and security as enshrined in Article 5 § 1
and the duration of the applicant’s detention, which the
Constitutional Court had found to be unlawful.
39. In
these circumstances, the applicant can still claim to be a “victim”
of a breach of his rights within the meaning of Article 34 of the
Convention, and the Government’s objection in this respect must
therefore be dismissed.
- The
Court notes that this complaint is not manifestly ill-founded within
the meaning of Article 35 § 3 of the Convention. It further
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. Arguments of the parties
- The
applicant maintained that his detention after 24
January 2005 had been contrary to Article 5 § 1 as indicated in
the Constitutional Court’s judgment.
- The
Government argued that the applicant’s detention after
24 January 2005 had been in accordance with the law. They relied
on Article 72 § 1 of the Code of Criminal Procedure of 1961
which obliged judges to examine, at each stage of criminal
proceedings, whether reasons for the accused person’s detention
persisted, as well as the existing practice of ordinary courts, as
described above. The maximum permissible duration of the applicant’s
detention was laid down in the Code of Criminal Procedure of 1961 and
had not been exceeded. His detention after 24 January 2005
therefore had an appropriate legal basis and was neither arbitrary
nor otherwise contrary to Article 5 § 1.
- The
Government further argued that in Pavlík v. Slovakia
(no. 74827/01, judgment of 30 January 2007) the Court had
found no breach of Article 5 § 1 despite the fact that the
applicant’s detention had not been covered by a judicial
decision for nearly one month.
- At
the relevant time there was no established practice of the
Constitutional Court as, prior to the facts of the present case, it
had addressed the point in issue in a single judgment, namely I. ÚS
6/02 of 4 December 2002. The actual change in its
approach had occurred in the context of proceedings brought by the
applicant in the present case and his co-accused.
- The
new approach consisted of an interpretation of the guarantees under
Article 5 § 1 of the Convention which was broader than that
which the Court gave to that provision under its case-law. In
particular, the Government argued that while Article 5 § 1
required a legal basis in the domestic legal order for detention to
be lawful, it did not follow from the Court’s case-law that
lawful detention of a person should exclusively be based on an
explicit judicial order.
2. The Court’s assessment
(a) Recapitulation of the relevant
principles
- The
relevant principles are set out, for example, in Mooren v. Germany
[GC] (no. 11364/03, §§ 72-81, ECHR 2009 ...; with
further references). They can be summed up as follows.
- Where
the “lawfulness” of detention is in issue, including the
question whether “a procedure prescribed by law” has been
followed, the Convention refers essentially to national law and lays
down an obligation to conform to the substantive and procedural rules
thereof. Compliance with national law is not, however, sufficient:
Article 5 § 1 requires in addition that any deprivation of
liberty should be in keeping with the purpose of protecting the
individual from arbitrariness. The Court must further ascertain in
this connection whether domestic law itself is in conformity with the
Convention, including the general principles expressed or implied
therein, notably the principle of legal certainty. Although it
is in the first place for the national authorities, notably the
courts, to interpret and apply domestic law, under Article 5 § 1
failure to comply with domestic law entails a breach of the
Convention.
- A
period of detention is, in principle, “lawful” if it is
based on a court order. However, the Court has considered the absence
of any grounds given by the judicial authorities in their decisions
authorising detention for a prolonged period of time to be
incompatible with the principle of the protection from arbitrariness
enshrined in Article 5 § 1.
- It
has further acknowledged that the speed with which the domestic
courts replaced a detention order which had either expired or had
been found to be defective is a relevant element in assessing whether
a person’s detention must be considered arbitrary. Thus, in the
context of sub-paragraph (c) of Article 5 § 1, a period of more
than a year following a remittal from a court of appeal to a
lower-level court, in which the applicant remained in a state of
uncertainty as to the grounds for his detention, combined with the
lack of a time-limit for the lower court to re-examine his detention,
was found to render the applicant’s detention arbitrary (see
Khudoyorov v. Russia, no. 6847/02, §§ 136-137, ECHR
2005 X (extracts)).
- In
the Jėčius v. Lithuania judgment (no. 34578/97, 31
July 2000, §§ 56-64, ECHR 2000-IX) the Court found
that the sole fact that the case had been transmitted to the court
did not constitute a “lawful” basis for detention within
the meaning of Article 5 § 1 of the Convention, and that it
could not extend or replace the valid detention order required by
domestic law.
- In
Stašaitis, (cited above, §§ 68-69) the Court
held that uncertainty had been created by the judicial authorities’
merging of detention decisions with other procedural acts, resulting
in a lack of clarity regarding the lawfulness of the applicant’s
detention. In that case the Court of Appeal retroactively reinstated
a detention order issued more than a year before, but gave no reasons
for its decision in that respect. In doing so it took no account of
the applicant’s current situation. The Court concluded that the
decision did not constitute a “lawful” basis for the
applicant’s continued remand in custody.
- In
the Zirovnický v. the Czech Republic judgment (no.
23661/03, §§ 58-62, 30 September
2010), the Court found a breach of Article 5 § 1 as no
detention warrant had been issued by a court or other judicial body
authorising the applicant’s continued remand in custody for a
period exceeding one month.
(b) Application of the relevant principles
to the present case
- In
the present case the Constitutional Court acknowledged a breach of
the applicant’s rights under Article 5 § 1, but the
Government expressed their disagreement with that decision. In view
of such situation the Court is required to take a stand on the point
of issue.
- It
would be justified for the Court to reach a contrary conclusion to
that of the Constitutional Court only if it was satisfied that the
latter had misinterpreted or misapplied the Convention provision or
the Court’s jurisprudence under that provision or reached a
conclusion which was manifestly unreasonable (see, mutatis
mutandis, A. and Others v. the United Kingdom
[GC], no. 3455/05, § 174 in fine, ECHR 2009-..., and
Henryk Urban and Ryszard Urban v. Poland, no. 23614/08,
§§ 51-53, 30 November 2010).
- The
Constitutional Court found, with reference to its judgment
I. ÚS 6/02, that the
domestic law did not list indictment as a ground for continued
detention of an accused. It considered inadmissible the practice of
extending the statutory possibilities of restricting a person’s
liberty by extensive interpretation of several provisions of the Code
of Criminal Procedure.
- The
Court concurs with the reasons put forward by the Constitutional
Court which it finds to be in line with its above case-law. It
considers that the purpose of Article 5, namely to protect
individuals from arbitrary deprivation of liberty, is served in an
appropriate manner where there is a mandatory formal judicial review
requiring a decision which gives reasons for a person’s
detention after his or her case has been submitted to the trial court
and, as the case may be, the detention order issued at the pre-trial
stage has expired.
- The
Court has noted that a judicial review of this kind was allowed for
in Article 76 § 5 of the Code of Criminal Procedure of 2005,
also with reference to the above Constitutional Court’s
judgment I. ÚS 6/02. However, that development did not concern
the present case.
- The
foregoing considerations and the fact that the applicant has not
obtained appropriate redress at domestic level enable the Court to
conclude, in line with the Constitutional Court’s judgment,
that the applicant’s detention after the expiry of the
detention order given at pre-trial stage fell short of the
requirement of lawfulness within the meaning of Article 5 § 1.
- There
has therefore been a violation of Article 5 § 1 of the
Convention.
II. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed 33,193.92 euros (EUR) in
respect of non-pecuniary damage.
- The
Government considered the sum claimed to be excessively high.
- The
Court awards the applicant EUR 15,000 in respect
of non-pecuniary damage.
B. Costs and expenses
- The
applicant also claimed EUR 452.14 for costs and
expenses incurred before the Court.
- The
Government had no objection to an award corresponding to the sum
which the applicant had demonstrably incurred with a view to
redressing the alleged breach of his right under Article 5 § 1
of the Convention.
- According
to the Court’s case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being
had to the documents in its possession and the above
criteria, the Court considers it reasonable to award the sum
of EUR 452 for the proceedings before the Court.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the application
admissible;
- Holds that there has been a violation of Article
5 § 1 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant,
within three months of the date on which the judgment
becomes final in accordance with Article 44 § 2 of the
Convention, the following sums:
(i) EUR
15,000 (fifteen thousand euros), plus any tax that may be chargeable,
in respect of non-pecuniary damage, and
(ii) EUR
452 (four hundred and fifty-two euros), plus any tax that may be
chargeable to the applicant, in respect of costs and expenses;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period, plus three percentage points;
- Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 3 November 2011, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep
Casadevall
Registrar President
