EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 24530/94

Stefčo Vodeničarov

against

the Slovak Republic

REPORT OF THE COMMISSION

(adopted on 23 April 1999)

TABLE OF CONTENTS

Page

I. INTRODUCTION

(paras. 1 ‑ 19) ........................................ 1

A. The application

(paras. 2 ‑ 4) .................................... 1

B. The proceedings

(paras. 5 ‑ 14) ................................... 1

C. The present Report

(paras. 15 ‑ 19) .................................. 3

II. ESTABLISHMENT OF THE FACTS

(paras. 20 ‑ 41) ....................................... 4

A. The particular circumstances of the case

(paras. 20 ‑ 33) .................................. 4

B. Relevant domestic law and practice

(paras. 34 ‑ 41) .................................. 5

III. OPINION OF THE COMMISSION

(paras. 42 ‑ 57) ....................................... 7

A. Complaint declared admissible

(para. 42) ............................................ 7

B. Point at issue

(para. 43) ............................................ 7

C. Article 5 para. 4 of the Convention

(paras. 44-57) ......................................... 7

CONCLUSION

(para. 57) ........................................... 10

APPENDIX I: PARTIAL DECISION OF THE COMMISSION AS

       TO THE ADMISSIBILITY OF THE APPLICATION ........ 11

APPENDIX II: FINAL DECISION OF THE COMMISSION AS

TO THE ADMISSIBILITY OF THE APPLICATION ........ 23

I. INTRODUCTION

1 . The following is an outline of the case as submitted to the European Commission of Human Rights, and of the procedure before the Commission.

A. The application

2 . The applicant is a Bulgarian national, born in 1946 and resident in Hlohovec.

3 . The application is directed against the Slovak Republic.  The respondent Government were represented by their Agent, Mr Robert Fico.

4 . The case concerns the review of the lawfulness of the applicant’s detention in a mental hospital by the Constitutional Court.  The applicant invokes Article 5 para. 4 of the Convention.

B. The proceedings

5 . The application was introduced on 27 September 1993 and registered on 4 July 1994.

6 . On 17 January 1996 the Commission (Second Chamber) decided, pursuant to Rule 48 para. 2(b) of its Rules of Procedure, to give notice of the application to the respondent Government and to invite the parties to submit written observations on its admissibility and merits.

7 . The Government's observations were submitted on 22 March 1996.  The applicant replied on 22 April 1996 and supplemented his submissions on 12 August 1996. On 16 April 1996 the Commission granted the applicant legal aid for the representation of his case. By letter of 30 August 1996 the applicant informed the Secretariat that he wished to present his case himself.

8 . On 21 May 1997 the Commission decided to adjourn the applicant’s complaints under Article 6 paras. 1 and 3(c) of the Convention that he could not defend himself in person in the criminal proceedings in which he was involved and his complaints under Article 5 para. 4 of the Convention that his detention for observation in the mental hospital had not been decided according to the correct procedure and that he had not been entitled to take proceedings by which the lawfulness of his detention in the mental hospital could be decided speedily by a court. The Commission invited, therefore, the respondent Government to submit further written observations on the admissibility and merits of these complaints. It declared the remainder of the application inadmissible.

9 . The Government’s further observations were submitted on 7 July 1997.  The applicant replied on 27 August 1997.

10 . On 20 May 1998 the Commission declared admissible the applicant's complaints under Article 5 para. 4 of the Convention.  It declared the remainder of the application inadmissible.

11 . The text of the Commission's final decision on admissibility was sent to the parties on 2 June 1998. On 17 July 1998 the Government submitted their observations on the merits of the case. They also requested the Commission to reject the admissible part of the application under former [1] Article 29 of the Convention. The applicant replied on 28 July 1998.

12. On 19 April 1999 the Commission decided that there was no basis on which to apply former Article 29 of the Convention.

13 . After declaring the case admissible, the Commission, acting in accordance with former Article 28 para. 1(b) of the Convention, also placed itself at the disposal of the parties with a view to securing a friendly settlement.  In the light of the parties' reaction, the Commission now finds that there is no basis on which such a settlement can be effected.

14. Pursuant to the entry into force of Protocol No. 11 to the Convention on 1 November 1998, the application was transferred to the Commission sitting in plenary.

C. The present Report

15 . The present Report has been drawn up by the Commission in pursuance of former Article 31 of the Convention and after deliberations and votes, the following members being present:

MM S. TRECHSEL, President

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H. DANELIUS

Mrs G.H. THUNE

Mr F. MARTINEZ

Mrs J. LIDDY

MM J.-C. GEUS

B. MARXER

M.A. NOWICKI

I. CABRAL BARRETO

D. ŠVÁBY

A. PERENIĆ

P. LORENZEN

K. HERNDL

E. BIELIŪNAS

E.A. ALKEMA

M. VILA AMIGÓ

Mrs M. HION

MM R. NICOLINI

A. ARABADJIEV

16 . The text of this Report was adopted on 23 April 1999 by the Commission and is now transmitted to the Committee of Ministers of the Council of Europe, in accordance with former Article 31 para. 2 of the Convention.

17 . The purpose of the Report, pursuant to former Article 31 of the Convention, is:

(i) to establish the facts, and

(ii) to state an opinion as to whether the facts found disclose a breach by the State concerned of its obligations under the Convention.

18 . The Commission's decisions on the admissibility of the application are attached hereto as Appendices I and II.

19 . The full text of the parties' submissions, together with the documents lodged as exhibits, are held in the archives of the Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

20. The applicant was involved in several conflicts with his colleagues and neighbours. According to him, on 16 February 1994 his wife was assaulted by a neighbour, Mrs D. The applicant and his wife unsuccessfully tried to have criminal proceedings instituted against Mrs D.

21. On 30 September 1994 the Trnava District Prosecutor (okresný prokurátor) charged the applicant with assault causing bodily harm on the ground that on 16 February 1994 he had hit Mrs D. several times.  On 12 October 1994 the Trnava District Court (okresný súd) issued a “sentence order” (trestný rozkaz) by which the applicant was conditionally sentenced to five months' imprisonment.  On 31 October 1994 he was ordered to pay damages to Mrs D. He challenged both orders. Subsequently, the sentence order was cancelled and a hearing was ordered. Mrs D. joined the proceedings, claiming damages.

22. On 5 December 1994 a main hearing was held at the Trnava District Court.  It was adjourned because of the applicant's misbehaviour.  A further main hearing was held on 21 February 1995.  As the applicant did not behave properly, the judge ordered him to be removed from the court building, and the hearing was held in his absence. The applicant was convicted of assault causing  bodily harm and was conditionally sentenced to five months' imprisonment and ordered to pay damages to Mrs D.

23. On 30 March 1995 the Bratislava Regional Court (krajský súd) dismissed the applicant’s appeal against the District Court judgment made in his absence. It considered that the District Court had assessed all the relevant evidence in order to establish the facts of the case and to clarify all the circumstances necessary for giving the judgment, and had reached the right legal conclusions.

24. On 12 May 1995 the Trnava District Office for Investigations (okresný úrad vyšetrovania) charged the applicant with contempt of court, which he was alleged to have committed on 5 December 1994 during the first hearing in the Trnava District Court.

25. On 16 May 1995 the Trnava District Court ordered a psychiatric examination of the applicant.  The applicant submitted a certificate from a Bulgarian doctor dated 16 June 1995 and refused to be examined as an out-patient by the experts appointed by the court.

26. On 5 June and 7 July 1995 the applicant sought redress from the Constitutional Court (Ústavný súd) alleging that the criminal proceedings were unfair, including the order for his psychiatric examination. By letter of the Constitutional Court of 17 July 1995 he was informed that the Court is not superior to the police, prosecutor or ordinary courts and that it is not an appellate body in the ordinary court system. He was further informed that the Constitutional Court has no jurisdiction to change or quash the decisions of ordinary courts or to interfere with their jurisdiction and that judicial decisions can be remedied by the means and according to the procedures prescribed by law.  The applicant was also told that the Constitutional Court could not examine whether the charges laid by the prosecution were lawful.

27. In the meantime, on 11 July 1995, the Trnava District Court had ordered the applicant to be detained for observation in a mental hospital pursuant to Section 116(2) of the Code of Criminal Procedure.  On 12 July 1995 the Trnava Investigation District Office appointed two experts.  The applicant received both decisions on 14 July 1995, and on 15 July 1995 he challenged them.  On 17 July 1995 the mental hospital summoned him to be admitted on 20 July 1995.

28. On 19 July 1995 the applicant was handcuffed and escorted by the police to the mental hospital.  No warrant was presented.  The applicant stayed in the mental hospital until 18 August 1995.  From 11 to 13 August 1995 he was granted leave.

29. On 27 July 1995 the Trnava District Prosecutor rejected the applicant's complaint against the Trnava Investigation District Office's decision of 12 July 1995.

30. On 28 July 1995 the applicant's wife informed the Prosecutor General (Generálny prokurátor) that on 19 July 1995 the applicant had been confined in the mental hospital although he had appealed against the Trnava District Court's order of 11 July 1995 as well as the Trnava Investigation District Office's order of 12 July 1995.  She claimed that her husband's detention in the mental hospital was illegal.

31. On 17 August 1995 the Bratislava Regional Court dismissed the applicant's complaint against the Trnava District Court's order of 11 July 1995.  The decision was notified to the Trnava District Court on 28 September 1995. It was not served on the applicant.

32. By letter of 30 August 1995, served on the applicant's wife on 10 September 1995, the Prosecutor General informed her that her complaint had been referred, for reasons of competence, to the Bratislava Regional Prosecutor (krajský prokurátor).   The same day, the prosecution for contempt of court was stayed in the light of the experts' conclusion that the applicant suffered from a permanent personality disorder which had prevented him from controlling his behaviour before the Trnava District Court during the hearing of 5 December 1994.

33. On 21 September 1995 the Bratislava Regional Prosecutor informed the applicant's wife that her complaint had been sent, for reasons of competence, to the Trnava District Prosecutor.

B. Relevant domestic law and practice

34. Section 116(1) of the Code of Criminal Procedure provides for the appointment, upon a written order by the court, of two psychiatric experts when there is a need to examine the mental health of the accused.  Pursuant to Section 116(2), if the mental health of the accused cannot be examined in any other way, the court can order detention for observation in an institution.  Such an order can be issued in preliminary proceedings by the judge upon the proposal of the public prosecutor.  The order can be challenged by a complaint which has suspensive effect. According to Section 36(1)(a), the accused shall be represented by a lawyer if, inter alia , he is being observed in an institution pursuant to Section 116(2).

35. According to Section 167 of the Code of Criminal Procedure, the accused has a right, at any time in the course of the investigation, to request the rectification of defects in the investigator's procedure.  Such request, to which no statute of limitation applies, must be submitted immediately to the public prosecutor who is required to deal with it without delay, and to inform the accused about the finding of the review.

36. Section 117 of the Code of Criminal Procedure provides that detention for observation of mental health should not last longer than two months; within that time a medical report must be submitted.  If justified by the finding of an expert, this period can be extended by the court, or, during pre-trial proceedings, by the prosecutor or the investigator with the prosecutor's consent, for a maximum period of one month.  Such extension can be challenged by a complaint.

37. According to Article 11 of the Constitution, international instruments on human rights and freedoms ratified by the Slovak Republic  and promulgated under statutory requirements shall take precedence over national laws provided that the international treaties and agreements guarantee wider constitutional rights and freedoms.

38. By virtue of Article 130(3) of the Constitution, the Constitutional Court may commence proceedings upon a “podnet” presented by an individual or a corporation claiming that their rights have been violated.

39. Article 17(1) and (2) of the Constitution provide that "personal liberty of every individual shall be guaranteed and no one shall be prosecuted or deprived of liberty unless for reasons and by methods set by law".  According to Article 17(6), "a person may be committed to or held in a health-care institution without his consent only in cases specified by law.  Such cases shall be reported to a court within 24 hours and the court shall decide within five days". According to Article 17(7), "a psychological examination of a person charged with an offence is permissible only on a written court order".

40. According to Section 26 of the Constitutional Court Act No. 38/1993, the Court is not obliged to deal with "podnets" in the order in which they were submitted, where the matter involved in the "podnet" is considered urgent.

41. In the judgment of the Constitutional Court No. I ÚS 79/93 of 15 September 1993 the Court ordered the release of a patient confined in a mental establishment without his consent. In this case, the patient had been detained for more than two months without any authorisation by a competent ordinary court.

III. OPINION OF THE COMMISSION

A. Complaint declared admissible

42. The Commission declared admissible the applicant’s complaint that the procedure to review the lawfulness of his detention in the mental hospital by the Constitutional Court did not comply with the requirements of Article 5 para. 4 of the Convention.

B. Point at issue

43. Accordingly, the issue to be determined is whether there has been a violation of Article 5 para. 4 of the Convention.

C. Article 5 para. 4 of the Convention

44. Article 5 para. 4 of the Convention provides as follows:

“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

45. The applicant states that the proceedings for the review of his detention for observation in the mental hospital did not satisfy the requirements of Article 5 para. 4 of the Convention.

46. The Government submit that the applicant could have filed a "podnet" with the Constitutional Court under Article 130(3) of the Constitution, claiming that his constitutional right was being breached as he was deprived of his personal liberty guaranteed by Article 17(1) and (7) of the Constitution and Article 5 para. 1 of the Convention, and asking for an urgent review of the lawfulness of his deprivation of liberty, invoking Article 5 para. 4 of the Convention. A favourable decision of the Court would have resulted in the applicant’s release from the mental hospital and have given rise to a right to recover damages.  In this regard, the Government refer to the Constitutional Court's judgment on a "podnet" filed by a patient confined in a mental establishment without his consent who alleged a violation of Article 17(6) of the Constitution and sought a decision of the Court ordering his release.  The Constitutional Court, having considered the matter in the light of Article 5 para. 4 of the Convention, ordered the petitioner's release (cf. No. I ÚS 79/93, judgment of 15 September 1993).  The Government consider that this case-law of the Constitutional Court is applicable, mutatis mutandis, in the present case.

47. The Government submit that in such a situation the Constitutional Court deals with the "podnet" outside the usual order of cases within the meaning of Section 26 of Constitutional Court Act No. 38/1993 inviting the parties to submit, within three days, their written observations.  They refer to the above-mentioned judgment of the Court where it applied this procedure and gave a decision only fifteen days after its preliminary discussion on the case.

48. In their observations on the merits, the Government describe the “podnet” procedure in the Constitutional Court and conclude that it complies with the requirements of Article 5 para. 4 of the Convention. They submit that the “podnet” is an effective and available domestic remedy, that the Constitutional Court has the character of an independent and impartial tribunal within the meaning of Article 5 para. 4, that it is able to order the release of a person who has been unlawfully deprived of liberty, that the procedure before it is adversarial in nature, providing adequate guarantees appropriate to the type of deprivation of liberty under challenge, and that the Court can decide on the lawfulness of detention “promptly”.

49. The Commission recalls that the Convention requires that every deprivation of liberty should be “lawful”. Lawfulness implies conformity with the substantive and procedural rules of domestic law and also with the purpose of Article 5, namely to protect an individual from arbitrariness (see Eur. Cour HR, Kemmache v. France (3) judgment of 24 November 1994, Series A no. 296-C, p. 88, para. 42).

50. The purpose of Article 5 para. 4 of the Convention is to ensure to persons who are arrested and detained the right to a judicial supervision of the lawfulness of the measure to which they are thereby subjected. The review required by Article 5 para. 4 of the Convention is incorporated in the decision depriving a person of his liberty when that decision is made by a court at the close of judicial proceedings (see Eur. Court HR, Iribarne Pérez v. France judgment of 24 October 1995, Series A no. 325-C, p. 63, para. 30). However, Article 5 para. 4 of the Convention sometimes requires the possibility of subsequent review of the lawfulness of detention by a court ( ibidem ). Moreover, in order to determine whether proceedings provide adequate guarantees, regard must be had to the particular nature of the circumstances in which such proceedings take place (see Eur. Court HR, Winterwerp v. the Netherlands judgment of 24 October 1979, Series A no. 33, p. 23, para. 57 with reference to De Wilde, Ooms and Versyp v. Belgium judgment, pp. 41-42, paras. 76 in fine and 78; Wassink v. Netherlands judgment of 27 September 1990, Series A no. 185-A, p. 13, para. 30 with further reference).

51. In the present case, the Commission observes that the applicant was confined in the mental hospital for observation upon the Trnava District Court’s order of 11 July 1995, which had not yet become effective as the Bratislava Regional Court had still not determined the applicant’s complaint challenging this order.  The Commission considers therefore that Slovak law provided for a review of the lawfulness of the applicant’s deprivation of liberty as required by Article 5 para. 4 of the Convention. However, this review procedure set in motion by the applicant (you can’t bring a “procedure”) was overlooked by the national authorities when they kept him in the mental hospital. The Commission further considers that, having regard to the fact that the applicant lodged the complaint against the order of the Trnava District Court on 15 July 1995 (see para. 27 above) and that the Bratislava Regional Court decided on 17 August 1995, i.e. one day before the applicant’s release from the hospital (see para. 31 above), it cannot be said that the review carried out by the Bratislava Regional Court satisfied the requirement of a speedy review under Article 5 para. 4 of the Convention (see Navarra v. France judgment of 27 October 1993, Series A no. 273-B, p. 28, para. 28 and E. v. Norway judgment of 29 August 1990, Series A no. 181-A, pp. 27-28, para. 64).

52. The Government maintain that the applicant had the possibility of lodging a “podnet” with the Constitutional Court” under Article 130(3) of the Constitution which, according to them, complies with the requirements of Article 5 para. 4 of the Convention.

53. The Commission observes, however, that it appears from the letter of the Constitutional Court of 17 July 1995 to the applicant that the Court is not superior to the police, prosecutor or ordinary courts, that it does not constitute an appellate body in the ordinary court system, that it has no jurisdiction to change or quash the decisions of ordinary courts or to interfere with their jurisdiction and that judicial decisions may be remedied only by the means and according to the procedures prescribed by law.  The Commission notes that the Trnava District Court’s order of 11 July 1995 for the applicant to be detained for observation constituted a court decision on the merits which was subject to an ordinary remedy, i.e. a complaint to the Bratislava Regional Court seeking a review of the procedural lawfulness and particular reasons justifying the applicant’s detention. This remedy was pursued by the applicant (see para. 27 above).  In these circumstances, the Commission considers that it is difficult to say that the Constitutional Court dealing with a “podnet” could have given the applicant the same safeguards as the Bratislava Regional Court deciding on the complaint at the same time. This is especially so as the Regional Court which was able to consider the applicant’s submissions, including those concerning his being unlawfully taken by the police to the mental hospital, in the light of the Convention, which is an integral part of Slovak law (see para. 37 above).  The mere fact that, as in the present case, the review carried out by the Bratislava Regional Court did not satisfy the principles required by Article 5 para. 4 of the Convention (see para. 51 above) cannot lead to a different conclusion.

54. The Commission notes that the Government refer to the Constitutional Court's judgment upon the "podnet" alleging a violation of Article 17(6) of the Constitution filed by a patient confined in a mental establishment without his consent, which led to his release being ordered (see para. 46 above). However, the Commission observes that this judgment reflects a different factual situation from that of the applicant: whereas in the first case, the patient was confined in the mental establishment for more than two months without any court decision (see para. 41 above), the applicant was detained for observation during the criminal procedure under a court decision which had not become effective at the time of the applicant’s arrival at the mental hospital because of the procedure on appeal which was pending. The Commission further notes that the Constitutional Court judgment referred to by the Government was given on 15 September 1993 and has remained its only decision in this area of law, so that it has never been confirmed or developed. Moreover, the Constitutional Court has already stated that it has no jurisdiction to change or quash the decisions of ordinary courts or to interfere with their jurisdiction.

55. It is true that the Commission accepted that the “podnet” was a remedy to be exhausted for the purpose of the applicant’s complaint that his original detention in the mental hospital was illegal under domestic law and arbitrary (see final decision on the admissibility of 20 May 1998, Appendix II). Nevertheless, the Commission recalls that Article 5 para. 4 entails specific requirements in the case of a person who has been detained pursuant to Article 5 para. 1(e) of the Convention, as it finds to have been the case. Where the grounds of detention are by their nature susceptible of change with the passage of time, an individual is entitled to apply to a court having jurisdiction to decide speedily and at reasonable intervals during the

course of the imprisonment whether the detention is lawful in the light not only of domestic law but also of the general principles embodied in the Convention and the aim of the restrictions permitted by Article 5 (see above-mentioned Winterwerp v. the Netherlands judgment, p. 24, para. 60; and Weeks v. the Netherlands judgment of 2 March 1987, Series A no. 114, pp. 28-29, paras. 57-59). The review should be wide enough to bear on those conditions which, according to the Convention, are essential for the lawful detention of a person subjected to the special kind of deprivation of liberty at issue (ibidem). In the light of the foregoing considerations at paragraphs 53 and 54 above, the Constitutional Court’s proceedings upon a “podnet” cannot be regarded as satisfying these requirements of Article 5 para. 4 of the Convention. Furthermore, the simultaneous use of the “podnet” with the Constitutional Court and the ordinary complaint with the appellate court would result in the ineffectiveness of the “podnet” proceedings: the Constitutional Court would have to postpone the procedure on the “podnet” until the appellate court had decided on the merits of the complaint.

56. In these circumstances, the Commission is of the opinion that it cannot be said that, at the material time, the “podnet” remedy existed with a sufficient degree of certainty to satisfy the requirements of Article 5 para. 4 of the Convention.

CONCLUSION

57. The Commission concludes, by 24 votes to 1, that in the present case there has been a violation of Article 5 para. 4 of the Convention.

M.-T. SCHOEPFER S. TRECHSEL

                 Secretary                            President

     to the Commission                                   of the Commission

[1] The term “former” refers to the text of the Convention before the entry into force of Protocol No. 11 on 1 November 1998.