AS TO THE ADMISSIBILITY OF

                      Application No. 24530/94

                      by Stefco VODENICAROV

                      against the Slovak Republic

     The European Commission of Human Rights (Second Chamber) sitting

in private on 20 May 1998, the following members being present:

           MM    J.-C. GEUS, President

                 M.A. NOWICKI

                 G. JÖRUNDSSON

                 J.-C. SOYER

                 H. DANELIUS

           Mrs   G.H. THUNE

           MM    F. MARTINEZ

                 I. CABRAL BARRETO

                 J. MUCHA

                 D. SVÁBY

                 P. LORENZEN

                 E. BIELIUNAS

                 E.A. ALKEMA

                 A. ARABADJIEV

           Ms    M.-T. SCHOEPFER, Secretary to the Chamber

     Having regard to Article 25 of the Convention for the Protection

of Human Rights and Fundamental Freedoms;

     Having regard to the application introduced on 27 September 1993

by Stefco VODENICAROV against the Slovak Republic and registered on

4 July 1994 under file No. 24530/94;

     Having regard to:

-    the reports provided for in Rule 47 of the Rules of Procedure of

     the Commission;

-    the observations submitted by the respondent Government on

     22 March 1996 and the observations in reply submitted by the

     applicant on 22 April and 12 August 1996;

-    the further observations submitted by the respondent Government

     on 7 July 1997 and the observations in reply submitted by the

     applicant on 27 August 1997;

     Having deliberated;

     Decides as follows:

THE FACTS

     The applicant is a Bulgarian national born in 1946.  He is a

driver and resides in Hlohovec (the Slovak Republic).

     The facts of the case, as submitted by the parties, may be

summarised as follows.

A.   The particular circumstances of the case

     The applicant was involved in several conflicts with his

colleagues and neighbours.  The police and the local authority refused

to investigate the applicant's complaints, and the co-operative which

owns the block of flats where the applicant lives refused to arrange

for damages to be paid to him.  According to the applicant, on

16 February 1994 his wife was assaulted by Mrs D., a neighbour.  He

pursued the neighbour but she managed to escape.  The applicant and his

wife unsuccessfully tried to have criminal proceedings instituted

against Mrs D.

     On 24 May 1994 the Piestany Local Office (Obvodny úrad) found the

applicant guilty of a minor offence against civic propriety in that on

16 February 1994 he had orally insulted Mrs D. in front of the block

of flats.  On 14 July 1994 the Trnava District Office (Okresny úrad)

upheld this decision.

     In the meantime, in connection with the incident of

16 February 1994 the applicant had been heard, on 30 May 1994, at the

police station where he presented his statement of facts.  On

30 June 1994 the applicant read statements of Mrs D., a statement of

Mrs T. according to which on 16 February 1994 he had repeatedly hit

Mrs D., a medical evidence about Mrs D.' injuries, and a petition

signed by eleven neighbours confirming that on 7 April 1993 he had

orally insulted Mrs D.

     On 30 September 1994 the Trnava District Prosecutor (Okresny

prokurátor) charged the applicant with assault causing bodily harm on

the ground that on 16 February 1994 he had several times hit Mrs D. at

the door of her flat.

     On 12 October 1994 the Trnava District Court (Okresny súd) issued

a sentence order (trestny 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 with a claim for damages.

     On 5 December 1994 a main hearing was held at the Trnava District

Court.  It was adjourned because of the applicant's misbehaviour.

After the adjournment, the applicant had to be removed.

     On 12 January 1995 the President of the Trnava District Court

requested the transfer of the case to another court as it was probable

that the applicant would be charged with contempt of court.  The

Bratislava Regional Court (Krajsky súd) dismissed the request as the

District Court should have proceeded pursuant to Sections 66 and 204

of the Code of Criminal Procedure.

     A further main hearing was held on 21 February 1995 at the Trnava

District Court.  Before it began the applicant had refused to enter the

dock, using rude expressions.  The report of the hearing reads that:

     "The accused has been warned by the judge that he would be

     removed from the court room pursuant to Section 204 of the

     Code of Criminal Procedure and that the hearing would be

     held in his absence if he disturbs by inappropriate

     behaviour the course of the hearing.

     The accused declares that he will not sit on the bench of

     the accused and that he will not respect the warnings of

     the court ..."

     Since the applicant did not respect the warnings, the judge

ordered his removal from the court room pursuant to Section 204 of the

Code of Civil Procedure.  As the applicant continued not to behave

properly, the judge asked a court guard to remove the applicant from

the court building. The hearing was held in the applicant's absence.

The judge read out the applicant's statement from the preliminary

proceedings and heard Mrs D. and two witnesses, Mrs T., according to

which on 16 February 1994 the applicant had repeatedly hit Mrs D., and

Mr H. who accompanied Mrs D. to the hospital.  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.

     On 2 March 1995 the applicant filed an appeal against this

judgment with the Bratislava Regional Court.  He referred to the

documents before the Trnava District Court and claimed that Mrs D.'s

submissions as to when and how the accident had occurred were not

consistent.  He pointed out, inter alia, that according to the

prosecution he had attacked Mrs D. at the door of her flat which is

situated above the applicant's first floor flat.  However, according

to the Trnava District Court's judgment, the offence was committed at

the main entrance of the house, i.e. on the ground floor.  The

applicant argued that the District Court had ignored his request to

hear other neighbours as witnesses.

     On 30 March 1995 the Bratislava Regional Court dismissed the

applicant's appeal. The Regional Court considered that the District

Court had assessed all relevant evidence in order to establish the

facts of the case and to clarify all circumstances necessary for giving

the judgment, and had reached the right legal conclusions.

     The hearing at the Bratislava Regional Court was held in the

applicant's absence.  The Court ordered the applicant's removal

pursuant to Section 204 of the Code of Criminal Procedure as he refused

to enter the dock objecting, without having been given the floor, to

his position of an accused and ignoring the instructions of the

presiding judge (Predseda senátu).  The applicant's wife attended the

hearing but was not allowed to address the Court.

     On 12 May 1995 the Trnava Investigation District Office (Okresny

úrad vysetrovania) charged the applicant with contempt of court which

he was alleged to have committed on 5 December 1994 during the first

hearing at the Trnava District Court.

     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

by appointed experts in an out-patient department.

     On 5 June and 7 July 1995 the applicant sought redress with the

Constitutional Court (Ústavny súd) alleging that the criminal

proceedings were unfair.  On 17 July 1995 he was informed that the

Constitutional Court lacks jurisdiction to change or quash the

decisions of general courts or to interfere with their jurisdiction.

He was further informed that the Constitutional Court cannot examine

whether the counts of the prosecution were lawful.

     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 for 20 July 1995.

     On 19 July 1995 the applicant was handcuffed and escorted by the

police to the mental hospital.  No warrant was presented.  The

applicant was confined in the mental hospital until 18 August 1995.

From 11 to 13 August he was granted leave.

     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.

     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.

     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 not served on the applicant.

     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 (Krajsky prokurátor).

     The same day, the prosecution for contempt of court was stayed

with reference to 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.  On 5 September 1995 the applicant lodged

a complaint against the decision to stay the proceedings.  He

challenged the experts' conclusion and claimed damages.

     By letter of 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

     Pursuant to Section 66(1) of the Code of Criminal Procedure ("the

Code") a fine of up to 50,000 crowns can be imposed on persons who

disturb proceedings provided that they have been warned, or who offend

the court or who disobey orders issued under the Code of Criminal

Procedure without having offered a sufficient apology.

     According to Section 204 of the Code, the removal from the court

room of persons who disturb order in court can be ordered.  The removal

of an accused can be ordered only for such period as is absolutely

necessary and after prior warning.  After the accused has been allowed

to re-enter the court room, he shall be informed of the substance of

the proceedings held in his absence so that he can make a comment.

     According to Section 33(3) of the Code, any authority involved

in criminal prosecution, that is the police, prosecutor or court, is

required to instruct the accused of his rights and provide for a full

exercise of these rights at any time.

     Section 37(1) of the Code provides that "where the right to

choose his counsel is not exercised by the accused, or where his legal

representative fails to choose counsel for his defence, counsel may be

chosen by relatives of the first degree.  Where the accused has been

legally incapacitated or where his legal capacity has been lawfully

restricted, such persons can choose a counsel also against his will".

Section 33(2) of the Code provides that "an accused who has not

sufficient means to cover the costs of his defence, shall be entitled

to free counsel or to legal assistance at reduced cost".

     Section 116(1) of the Code 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) of the Code, 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 90(2) of the Code, the accused can be

brought also without a prior summons, if it is necessary for the

purposes of criminal proceedings, in particular, where the accused is

in hiding or has no permanent address.

     Section 36(1)(a) of the Code provides that the accused shall be

represented by a lawyer at the stage of preliminary proceedings if,

inter alia, he is being observed in an institution pursuant to Section

116(2) of the Code.

     According to Section 167 of the Code, 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.

     Section 117 of the Code 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 public prosecutor or the investigator with

the prosecutor's consent, for a maximum of one month.  Such extension

can be challenged by a complaint.

     According to Section 25(2) of the Public Prosecutions Act

No. 60/1965 as amended, a public prosecutor must immediately release

any person in unlawful detention.

     By virtue of Article 130 para. 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.

     Article 17 paras. 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 paragraph 6, "a person may be

committed to or held in a health care institution without his consent

only in cases stipulated by law.  Such cases shall be reported to a

court within 24 hours and the court shall decide within five days".

According to paragraph 7, "a psychological examination of the person

charged with an offence is permissible only on a written court order".

     According to Section 26 of the Constitutional Court Act

No. 39/1993, 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.

COMPLAINTS

     The applicant claims that the criminal proceedings leading to his

conviction for assault and his detention for observation in the mental

hospital were unlawful and violated his human rights.  In particular,

he claims that he was convicted in his absence.  He alleges, in

substance, a violation of Article 6 of the Convention.  He further

claims that his detention for observation in the mental hospital was

illegal and arbitrary.  In substance, he alleges a violation of

Article 5 paras. 1 and 4 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

     The application was introduced on 27 September 1993 and

registered on 4 July 1994.

     On 17 January 1996 the Commission decided to communicate the

application to the respondent Government, pursuant to Rule 48

para. 2(b) of the Rules of Procedure.

     On 16 April 1996 the Commission granted the applicant legal aid.

By letter of 30 August 1996 the applicant informed the Secretariat that

he wished to present his case himself.

     On 21 May 1997 the Commission decided to adjourn the applicant's

complaints under Article 6 paras. 1 and 3(c) of the Convention in that

he could not defend himself in person in the criminal proceedings in

which he was involved and under Article 5 para. 4 of the Convention in

that his detention for observation in the mental hospital had not been

decided in a 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.

     The respondent Government's further observations were submitted

on 7 July 1997.  The applicant replied on 27 August 1997.

THE LAW

1.   The applicant alleges that he was convicted in his absence.  In

substance, he alleges a violation of Article 6 (Art. 6) of the

Convention which, insofar as relevant, reads as follows:

     "1.   In the determination of ... any criminal charge against

     him, everyone is entitled to a fair and public hearing ... by an

     independent and impartial tribunal established by law. ...

     ...

     3.    Everyone charged with a criminal offence has the following

     minimum rights:

     ...

     c.    to defend himself in person or through legal assistance of

     his own choosing ...;

     ..."

     The Government submit that all requirements contained in

Article 6 (Art. 6) of the Convention have been complied with.

     They claim that the applicant could have defended his case in the

public hearing before the Trnava District Court as well as before the

Bratislava Regional Court.  He deprived himself of this right because

he disturbed the proceedings in an unacceptable manner, as a result of

which he was twice removed from the court room pursuant to Section 204

of the Code of Criminal Procedure (apart from his removal on

5 December 1994, after the first main hearing before the Trnava

District Court had been adjourned), despite previous warnings about

possible consequences given by the judge at the Trnava District Court

and the presiding judge at the Bratislava Regional Court.

     Moreover, the applicant, after his first removal from the court

room, had to be removed from the court building as he continued not to

behave properly.  The Government also submit that the applicant

deprived himself of his right to re-enter the court room of the Trnava

District Court because after he had been removed from the court

building, he left the court premises of his own will.  The applicant

behaved in the same manner before the Bratislava Regional Court: after

his removal from the court room, he left the court building of his own

will.  The Government stress that in these circumstances, it was not

possible to call the applicant back before the end of both hearings.

     As to whether before his removals the applicant was informed that

he would be removed for "an absolutely necessary period" as provided

for in Section 204 of the Code of Criminal Procedure, and would be

called back before the end of the hearings, the Government submit that

the court reports of both courts dealing with the case indicate that

the applicant's removals were ordered pursuant to this Section.  They

emphasise that the mere reference to the relevant provision

sufficiently establishes that the applicant was instructed that he was

removed for an "absolutely necessary" period and that he would re-enter

the court room as soon as he caused no more disturbance.  According to

the Government, the fact that the court reports do not contain the

wording of that instruction is due to the technical side of conducting

the proceedings.  In criminal proceedings, an accused is informed about

his rights by oral quotation of the relevant provision with the judge's

explanation thereof within the meaning of Section 33(3) of the Code of

Criminal Procedure.

     The Government further submit that the right to defend oneself

cannot be absolute or unlimited and can be restricted.  Under

Article 13 para. 2 of the Constitution, "limitation of fundamental

rights and freedoms shall be imposed only under conditions set forth

in the Constitution and by law".  In the present case, Section 204 of

the Code of Criminal Procedure is the law which can limit the right of

the accused to defend himself by allowing the judge to remove him from

the court room, after a previous warning, if he disturbs the

proceedings.

     The Government add that the applicant as one of the persons

defined in Section 37(1) of the Code of Criminal Procedure failed to

exercise the right to choose a counsel.  Moreover, he failed to

exercise his right to have free counsel or legal assistance at reduced

cost as provided for in Section 33(2) of the Code of Criminal

Procedure.  A mandatory defence counsel was irrelevant in the instant

case because there were no sufficient legal grounds.  The Government

stress that the applicant was informed of all rights relating to his

defence.

     The Government submit that even though the hearings before the

courts at both levels were partially held in the absence of the

applicant, for which the latter was fully responsible, the criminal

proceedings brought against him otherwise complied with the

requirements of Article 6 para. 1 (Art. 6-1) of the Convention.  The

Government emphasise that the Trnava District Court and the Bratislava

Regional Court were bound to consider any circumstances in the

applicant's favour.  After the applicant's first removal, however, his

statement of 30 May 1994 was read, all his relevant comments were

presented, and the witnesses and Mrs D. were heard.  At the hearing

before the Bratislava Regional Court, all the applicant's allegations

contained in his appeal were dealt with.  The Government confirm that

the applicant's wife and a member of the Bulgarian embassy were present

at the hearing before the Bratislava Regional Court, but state that the

identity of the latter could not be proved as he said that he was only

present as a member of the public.

     The applicant contests the Government's observations.  He first

submits that because he did not trust Slovak lawyers, he decided to

defend himself in person during the proceedings.  He also submits that

on 5 December 1994, at the first main hearing before the Trnava

District Court, he refused to accept the indictment.  The hearing was

then adjourned and the applicant left the court room.  On

21 February 1995, at the second main hearing before this court, he

refused to enter the dock as his request to have the witnesses called

had not been accepted.  He says that after an intense discussion with

the judge, the latter called a police officer and ordered him to remove

the applicant from the court building.  The applicant claims that he

was not informed that, after the hearing was over, he would be called

back.

     The applicant confirms that on 30 March 1995, at the Bratislava

Regional Court hearing, he refused to enter the court room as an

accused.  Shortly afterwards he was called again, but the word

"accused" was not used.  When asked to enter the dock, he refused and

asked the presiding judge why the witnesses were not present.  The

presiding judge, the applicant states, shouted at him and asked him

again to step forward.  The applicant said that he was not prepared to

be humiliated and enter the dock as an accused, especially if he did

not have the right to defend himself, and he insisted that the

witnesses be called.  The presiding judge ordered police officers to

remove the applicant out of the court building.  The applicant submits

that he was not warned about the consequences of his misconduct and was

not told that he would be called back and informed about the content

of the hearing in order to give his comments on the proceedings held

in his absence.  He submits that he was waiting outside the court

building until the end of the hearing.  When the hearing was over, no

one called him back.  When his wife and the Bulgarian consul came out,

they left together.  The applicant adds that the Court refused to give

his wife the floor, although she asked for it twice.

     The Commission recalls that the guarantees contained in

paragraph 3 of Article 6 (Art. 6-3) of the Convention constitute

elements, amongst others, of the general notion of a fair trial (see

Goddi v. Italy judgment of 9 April 1984, Series A no. 76, p. 11, para.

28).  In the circumstances of the present case, the Commission, whilst

also having regard to those guarantees, considers that it should

examine the applicant's complaint under paragraph 1 of Article 6

(Art. 6-1) of the Convention which provides that everyone is entitled

to a fair hearing.

     The basic question which arises in the present case is whether

the right thus guaranteed was respected in a case where an accused, who

had attended the proceedings without legal representation, was removed

from the court room because of his misbehaviour and the proceedings

then continued in his absence.

     The Commission recalls that the object and purpose of Article 6

para. 1 (Art. 6-1) of the Convention taken as a whole and the concept

of a fair trial make it clear that the accused must be entitled to take

part in the hearing of his case and that the Contracting States must

exercise diligence in order to ensure that the rights guaranteed by

this provision are enjoyed in an effective manner (see Eur. Court HR,

Colozza v. Italy judgment of 12 February 1985, Series A no. 89, p. 14,

paras. 27-28).  On the other hand, the accused who lawfully elects to

defend himself in person, having thus deliberately waived his right to

be assisted by a lawyer, is also under a duty to show diligence (see

Eur. Court HR, Melin v. France judgment of 22 June 1993, Series A

no. 261-A, p. 12, para. 25).

     In the present case, the applicant attended the first and second

instance proceedings but, as he disturbed them in an unacceptable

manner, he had to be removed from the court building and the court room

(not the court building as the applicant submits) respectively pursuant

to Section 204 of the Code of Criminal Procedure.

     The applicant does not contest his misbehaviour, claiming that

he acted against the conduct of the proceedings by the Slovak courts

that he considered unfair.  He argues that neither the judge at the

Trnava District Court nor the presiding judge at the Bratislava

Regional Court instructed him that after his removal he would be called

back to the court room.

     The Commission notes that the court record of the Trnava District

Court states that the judge warned the applicant that he could be

removed from the court room pursuant to Section 204 of the Code of

Criminal Procedure and that the main hearing could continue in his

absence.  The court record of the Bratislava Regional Court does not

contain such a warning, but the Commission considers that the applicant

must have been familiar with the consequences of his misbehaviour as

it was already his second removal under the same provision of the Code

of Criminal Procedure.

     The Commission further considers that even though the court

records of the Trnava District Court and the Bratislava Regional Court

do not contain the wording of the instruction that after having been

removed, the applicant would be called back to the court room before

the end of the hearing, the examination of the court records leaves no

doubt that the applicant's removals were ordered on the basis of

Section 204 of the Code of Criminal Procedure which clearly indicates

that the removal of the accused from the court room can be ordered only

for such period as is absolutely necessary and that after the accused

is allowed to re-enter the court room, he shall be informed of the

substance of the proceedings held in his absence in order to make his

comments.  The Commission considers that the applicant could,

therefore, foresee that the removals had a temporary character and that

he would be called to return to the court room.  However, the

Commission observes that the applicant deprived himself of his right

to re-enter the court room of the Trnava District Court because after

he had been removed from the court building, he left the court premises

of his own will.  He behaved in the same manner before the Bratislava

Regional Court when after his removal from the court room he

voluntarily left the court building.  The applicant's submission that

he was waiting after his removal from the hearing at the Bratislava

Regional Court before the court building until the end of the hearing,

has not been proved in any way.

     The Commission finally notes that notwithstanding the applicant's

absence from the hearings held before the national courts, it cannot

be said that the criminal proceedings brought against him did not

satisfy the requirements of Article 6 para. 1 (Art. 6-1) of the

Convention.  The Commission observes that from the judgments of both

courts dealing with the applicant's case it appears that the courts

assessed the evidence produced before them basing their judgments on

the applicant's statement in the preliminary proceedings, on the

evidence of Mrs D., on the statement of Mrs T., according to which on

16 February 1994 the applicant had repeatedly hit Mrs D., on that of

Mr H. who accompanied Mrs D. to the hospital, and on the medical

certificates about Mrs D.'s injuries from 16 February 1994.

     In these circumstances, the Commission considers that the fact

that after the applicant's removals from both courts the criminal

proceedings were held in his absence did not make the proceedings

unfair and did not violate the applicant's rights of defence within the

meaning of Article 6 (Art. 6) of the Convention.

     It follows that this part of the application must be declared

inadmissible as being manifestly ill-founded within the meaning of

Article 27 para. 2 (Art. 27-2) of the Convention.

2.   The applicant claims that his detention in the mental hospital

was illegal and arbitrary.  In substance, he alleges a violation of

Article 5 paras. 1 and 4 (Art. 5-1, 5-4) of the Convention which read

as follows:

     "1.   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:

     ...

     e.    the lawful detention of persons for the prevention of the

     spreading of infectious diseases, of persons of unsound mind,

     alcoholics or drug addicts or vagrants;

     ...

     4.    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."

     The Government object that the applicant did not exhaust all

domestic remedies.  He could, under Section 167 of the Code of Criminal

Procedure, have submitted a petition to a public prosecutor immediately

after his detention for observation in the mental hospital, seeking a

remedy for any wrong procedure that may have occurred.  The public

prosecutor would have applied the procedure laid down in Section 25(2)

of the Public Prosecutors Act No. 60/1965.  In the Government's view,

there is no doubt that the public prosecutor would have ordered the

release of the applicant from the mental hospital as the latter had

been placed there prior to an effective judicial decision.  Moreover,

such order would have entitled the applicant to recover damages.  The

Government note that the public prosecutor could consider this matter

even now.  Accordingly, the applicant still has a chance to lodge such

a petition which may have a significant impact on the recovery of

damages.

     The Government add that no order would have been issued for the

applicant's detention for observation, had he not failed to communicate

with the appointed medical experts and undergo an out-patient

examination.  Moreover, the medical findings on the applicant's mental

health resulted in the stay of his prosecution and, as soon as the

medical report had been presented, the applicant was released from the

mental hospital where he was allowed to move freely on the premises,

receive visitors, communicate with any agent participating in the

criminal proceedings and obtain a three-day leave to visit his family.

     The Government further submit that the applicant could, and still

can, file a "podnet" with the Constitutional Court under Article 130

para. 3 of the Constitution and claim that his constitutional right was

breached as he was deprived of personal liberty guaranteed by Article

17 paras. 1 and 7 of the Constitution and Article 5 para. 1 (Art. 5-1)

of the Convention, and ask for an urgent review of the lawfulness of

his deprivation of liberty invoking Article 5 para. 4 (Art. 5-4) of the

Convention.  A decision of the Constitutional Court that the

applicant's personal liberty has been violated would result in his

release from the mental hospital and would give rise to a right to

recover damages.  In this regard, the Government refer to the

Constitutional Court's judgment upon the "podnet" filed by a patient

confined in a mental establishment without his consent.  He challenged

a violation of Article 17 para. 6 of the Constitution seeking a

decision of the Constitutional Court ordering his release.  The

Constitutional Court, having considered the matter in the light of

Article 5 para. 4 (Art. 5-4) 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 mutatis mutandis applicable in the present

case.

     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. 39/1993

inviting the parties to submit, within three days, their written

observations.  They refer to the above-mentioned judgment of the

Constitutional Court where the Court applied these proceedings and

decided fifteen days after its preliminary discussion on the case.

     As regards the merits, the Government claim that the applicant's

detention for observation in the mental hospital was compatible with

Article 5 para. 1 (Art. 5-1) of the Convention.  They submit that the

examination of the applicant's mental health was required for the

purposes of the criminal proceedings.  On 19 July 1995 the applicant

was brought to the mental hospital by an investigator who, having

received the order of the Trnava District Court of 11 July 1995 which

had not yet become effective, ordered the applicant to be taken to the

mental hospital in view of his previous conduct which made it unlikely

that he would appear voluntarily.  In addition, the investigation

office believed that the applicant was insane at the time of the

commission of the offence, a circumstance constituting a ground for the

stay of the prosecution.

     The Government state that in bringing the applicant to the mental

hospital, the investigator acted under Section 90(2) of the Code of

Criminal Procedure. The summons was delivered to the applicant on

20 July 1995 by the head of the medical staff of the hospital, who was

in fact one of the two experts appointed to give evidence based on the

results of the examination of the applicant's mental health.  The

Government specify that a medical summons is not a decision made in

criminal proceedings, but a routine doctor-patient communication.  They

contend therefore that the difference in time between the actual

escorting of the applicant to the hospital, i.e. 19 July 1995, and the

medical summons issued by the head of medical staff, i.e. 20 July 1995,

is irrelevant.

     The Government, referring to the case of De Wilde, Ooms and

Versyp v. Belgium (Eur. Court HR, judgment of 10 March 1972, Series A

no. 12), note that the decision on detention for observation of the

applicant in the mental hospital was ordered by the court in conformity

with the requirements under Article 5 para. 4 (Art. 5-4) of the

Convention.  They point out that the detention for observation is, in

any event, limited to two months according to Section 117 of the Code

of Criminal Procedure.  Moreover, the applicant could, during this

period, have requested the public prosecutor to protect his rights, if

he believed that these rights had not been respected.  However, he did

not make such a request.

     With regard to the absence of a representative for the applicant

during his detention for observation in the mental hospital, the

Government submit that under Section 36(1)(a) of the Code of Criminal

Procedure, any person who has been detained for observation has the

right to be represented from the moment of his placement in the mental

hospital regardless of whether that person agreed with the legal

representation or not.  The Government stress that no mandatory counsel

was appointed, but state that if the applicant had insisted, he could

have been represented by counsel of his choice.  With regard to his

assets, he was very likely to obtain free legal aid.  They add that the

applicant neither objected to the absence of mandatory counsel nor did

he request one of his choice.

     The absence of legal representation by counsel does not, in the

Government's view, constitute a violation of Article 5 para. 1

(Art. 5-1) of the Convention.  The Government presume that compliance

with the procedural and material requirements of an order of detention,

i.e. with the condition of "lawful" order of detention "in conformity

with the procedure set by law", refers only to the proceedings or

decision by which an individual will be deprived of his liberty.  The

Government consider that this provision refers to the restriction of

personal liberty and not to its enforcement.  The Government emphasise

that the duty to appoint counsel for the applicant arose at the moment

of his placement in the mental hospital.  Prior to that moment there

were no statutory grounds for a mandatory counsel.

     The Government add that the applicant could have had counsel

appointed.  He had been informed about his right to legal assistance

on 12 May 1995 when he was charged with contempt of court, but he did

not exercise this right until 19 July 1995 when he was detained for

observation in the mental hospital.

     The applicant first contests the Government's submission that his

complaint about the ruling of the Trnava District Court of 11 July 1995

was filed on 18 July 1995 and that he did not complain about his

detention for observation in the mental hospital at the domestic level.

In fact, on 17 July 1995 he lodged three complaints against the ruling:

with the Prosecutor General, the Bratislava Regional Court through the

Trnava District Court and the Trnava Investigation Office.

     The applicant also contests the Government's submission that if

the public prosecutor had been informed he would have immediately

arranged his release.  In fact, nine days after his abduction his wife

informed the Prosecutor General about the applicant's unlawful

detention for observation in the mental hospital.  The Prosecutor

General did not secure his release and on 30 August 1995, long after

the applicant's return home, he answered the applicant's wife that her

complaint had been referred to the Bratislava Regional Prosecutor.  On

21 September 1995 the Regional Prosecutor informed the applicant's wife

that her complaint had been handed over to the Trnava District

Prosecutor.

     The applicant further submits that the Slovak authorities had no

right whatsoever to order his examination on an out-patient basis or

any other examination and to take him by force from home, to "kidnap

him in handcuffs and to deliberately place him into the mental hospital

with the only objective - to cover up more effectively the genocides

against foreign nationals and minorities".  He claims that during his

detention for observation in the mental hospital no one advised him of

his right to have a lawyer, not even when he was taken away from his

home in handcuffs and brought to the hospital. He says that if he had

known about it, he would certainly have agreed in spite of his mistrust

of Slovak lawyers.  He denies that he could move about freely and

submits that his wife was not allowed to visit him until the fifth day

of his detention.

(i)  As to the applicant's complaints under Article 5 para. 1

(Art. 5-1) of the Convention, the Commission recalls that under Article

26 (Art. 26) of the Convention normal recourse should be had by an

applicant to remedies which are available and sufficient to afford

redress in respect of the breaches alleged.  Furthermore, it is

incumbent on the Government claiming non-exhaustion to show that the

remedy was an effective one available in theory and in practice at the

relevant time, that is to say, that it was accessible, was one which

was capable of providing redress in respect of the applicant's

complaints and offered reasonable prospects of success (see Eur. Court

HR, Akdivar and Others v. Turkey judgment of 16 September 1996, Reports

of Judgments and Decisions 1996-IV, p. 1211, paras; 66 and 68).

     In so far as the petition under Section 167 of the Code of

Criminal Procedure in compliance with Section 25(2) of Public

Prosecutors Act is concerned, the Commission observes that the

applicant pursued this remedy.  On 28 July 1995 his wife informed the

Prosecutor General that on 19 July 1995 her husband had been detained

in the mental hospital although he had appealed against the Trnava

District Court's order of 11 July 1995 to observe him in the mental

hospital.  On 30 August 1995 the Prosecutor General informed the

applicant's wife that her petition had been referred, for reasons of

competence, to the Bratislava Regional Prosecutor, who, on 21 September

1995, informed the applicant's wife that her petition had been sent,

again for reasons of competence, to the Trnava District Prosecutor.

In this regard, the Commission finds that the Government's objection

is unfounded in fact.  The question of effectiveness of this remedy can

therefore remain open.

     As regards the "podnet", the Commission notes that, according to

the Government, this remedy could give rise to a declaration of

unlawfulness of the applicant's detention, could have led to his

release from the mental hospital and could lead to an award of damages

in respect of a violation of Article 17 of the Constitution, which

guarantees the personal liberty, or Article 5 para. 1(e) (Art. 5-1-e)

of the Convention, which is directly applicable in Slovak law.  The

Commission further notes that the Constitutional Court's case-law

referred to by the Government (No. I ÚS 79/93, judgment of 15 September

1993) shows that the Constitutional Court has the competence to order

the release of a patient confined in a mental establishment without his

consent.

     In the present case, the applicant was detained in the mental

hospital for observation of his mental health.  It is true that during

his stay in the hospital, a mandatory counsel was not appointed to him

notwithstanding that this was required by the Code of Criminal

Procedure.   However, the Commission observes that the applicant's wife

accompanied him throughout the criminal proceedings and acted on his

behalf after he had been detained in the mental hospital.  The

Commission considers that she could have appealed to the Constitutional

Court and that this appeal could have led to the applicant's release.

     The Commission notes that the Government did not specify the

period of time within which the Constitutional Court would deal with

the applicant's potential "podnet".  However, having regard to the

Government's submission that in urgent situations, as in the above-

mentioned judgment where the Constitutional Court decided fifteen days

after its preliminary discussion of the case, the Court deals with the

"podnet" outside the usual order of cases, and to the fact that the

applicant has not pursued this remedy in order to clarify the position,

the Commission considers that it cannot be considered that the

Constitutional Court would not have provided the applicant with a

decision within a reasonable time.

     The Commission concludes, therefore, that the applicant has not

exhausted the remedies available to him under Slovak law in this

regard.  Moreover, the examination of the case does not disclose the

existence of any special circumstance which might have absolved the

applicant, according to the generally recognised rules of international

law, from exhausting the domestic remedies at his disposal.

     It follows that the applicant has not exhausted the remedies

available to him under Slovak law and that this part of the application

must be rejected under Article 27 para. 3 (Art. 27-3) of the

Convention.

(ii) In so far as Article 5 para. 4 (Art. 5-4) of the Convention is

concerned, the Commission recalls that in matters of deprivation of

liberty this provision requires a control procedure which has "a

judicial character and gives to the individual concerned guarantees

appropriate to the kind of deprivation of liberty in question; in order

to determine whether a proceeding provides 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 above-mentioned 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).

     In the present case the question arises as to whether the

proceedings before the public prosecutor upon a petition under Section

167 of the Code of Criminal Procedure in compliance with Section 25(2)

of the Public Prosecutors Act No. 60/1965, and the proceedings before

the Constitutional Court upon a "podnet" under Article 130 para. 3 of

the Constitution satisfied the requirements of Article 5 para. 4

(Art. 5-4) of the Convention.

     As regards the petition to the public prosecutor, the Commission

considers that this remedy does not constitute a remedy within the

meaning of Article 5 para. 4 (Art. 5-4) of the Convention, because the

public prosecutor is not an authority having "judicial character" (see

above-mentioned Winterwerp v. the Netherlands judgment, p. 40, paras.

63-64).

     As regards the "podnet" to the Constitutional Court, the

Commission considers, in the light of the parties' submissions, that

this part of the case raises complex issues of law and facts under the

Convention, the determination of which should depend on an examination

of the merits.  The Commission concludes, therefore, that this part of

the application is not manifestly ill-founded, within the meaning of

Article 27 para. 2 (Art. 27-2) of the Convention.  No other grounds for

declaring it inadmissible have been established.

     For these reasons, the Commission,

     by a majority,

     DECLARES ADMISSIBLE, without prejudging the merits of the case,

     the applicant's complaint under Article 5 para. 4 of the

     Convention regarding the review of the lawfulness of the

     applicant's detention in the mental hospital by the

     Constitutional Court;

     unanimously,

     DECLARES INADMISSIBLE the remainder of the application.

   M.-T. SCHOEPFER                              J.-C. GEUS

      Secretary                                  President

to the Second Chamber                      of the Second Chamber