AS TO THE ADMISSIBILITY OF

                      Application No. 28409/95

                      by Mileta SAVIC

                      against the Slovak Republic

     The European Commission of Human Rights (Second Chamber) sitting

in private on 3 December 1997, the following members being present:

           Mrs   G.H. THUNE, President

           MM    J.-C. GEUS

                 G. JÖRUNDSSON

                 A. GÖZÜBÜYÜK

                 J.-C. SOYER

                 H. DANELIUS

                 F. MARTINEZ

                 M.A. NOWICKI

                 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 28 September 1994

by Mileta SAVIC against the Slovak Republic and registered on

1 September 1995 under file No. 28409/95;

     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

     21 June 1996 and the observations in reply submitted by the

     applicant on 14 October 1996;

     Having deliberated;

     Decides as follows:

THE FACTS

     The applicant was born in 1945 in Yugoslavia and is of Serbian

origin.  He is serving a prison sentence in the Hrnciarovce nad Parnou

prison, Slovakia.  Before the Commission the applicant is represented

by Mr. P. Lelkes, a lawyer practising in Trnava.

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

summarised as follows.

A.   The particular circumstances of the case

     On 30 April 1993 the Banská Bystrica Regional Bureau of

Investigation (Krajsky úrad vysetrovania) accused the applicant and two

other persons of offences and attempted offences under Section 246

paras. 1 and 2 (b), (c) of the Criminal Code (see "The relevant

domestic law and practice" below).  Criminal proceedings were

instituted.  The applicant was suspected of having transported four

young women from Slovakia to Italy, of having benefited from their

prostitution and of several unsuccessful attempts to persuade other

women to come to Italy for the same purpose.

     In a letter of 5 June 1993 which he wrote in Zvornik (at present

Bosnia and Herzegovina) the applicant informed the investigator, with

reference to their prior telephone conversation, that he had brought

several women from Slovakia to Italy where they had carried out

prostitution.  The applicant further informed the investigator that he

was on the reserve list of a special military unit and that he could

not leave, because of the hostilities, the former Yugoslavia.

     On 15 June 1993 the Banská Bystrica Regional Court (Krajsky súd -

"the Regional Court") issued an international arrest warrant against

the applicant.  On 9 November 1993 the proceedings against the

applicant were suspended because of his absence.  The applicant was

arrested in Vienna on 16 December 1993.  On 21 January 1994 he was

handed over to the Slovak authorities.

     On the same day the investigator resumed the proceedings against

the applicant and the Regional Court remanded the applicant in custody

pursuant to Section 67 para. 1 (a) and (c) of the Code of Criminal

Procedure.  The court noted that the applicant, who had a permanent

address in Belgrade and another address in Vienna, had stayed at

unknown places.  Since the applicant had known about the accusations

brought against him, the court concluded that he had deliberately tried

to avoid the proceedings.  The detention was considered necessary also

in order to prevent the applicant from committing further offences.

Subsequently, the following events occurred and decisions were taken

in the applicant's case.

The criminal proceedings against the applicant

     On 21 March 1994 the Ziar nad Hronom District Prosecutor (Okresny

prokurátor - "the District Prosecutor") indicted the applicant for

offences under Section 246 paras 1, 2 (b),(c) and Section 204 of the

Criminal Code before the Ziar nad Hronom District Court (Okresny súd  -

"the District Court").  On 30 March 1994 the latter decided to return

the case to the District Prosecutor for additional investigation.  On

17 May 1994 the Regional Court upheld this decision.  The applicant's

file was returned to the District Prosecutor on 2 June 1994.

     On 26 September 1994 the applicant informed the investigator that

he no longer insisted that his cross-examination with several

witnesses, which he had originally requested and which could not be

carried out because of his health problems, should be carried out.  He

suggested that the investigation into his case should be terminated as

soon as possible.

     On 3 February 1995 the applicant informed the investigator that

he considered his cross-examination with a witness necessary.

     The District Prosecutor filed a new indictment before the

District Court on 25 April 1995.  In it, the applicant and another

person were charged with offences pursuant to Section 246 paras. 1 and

2 (c) and Section 204 para. 1 of the Criminal Code and with attempted

offences pursuant to Section 246 paras. 1, 2 (b) and (c) of the

Criminal Code.

     The main hearing before the District Court was scheduled for

7 August 1995.  It was postponed because the interpreter was ill and

several  witnesses had failed to appear.

     The second hearing was held on 4 September 1995.  The court heard

the applicant and several witnesses.  The proceedings were adjourned

because of the absence of four witnesses.

     On 18 October 1995 the District Court adjourned the hearing in

the applicant's case again.  It noted that several witnesses were not

present, that the interpreter was ill and that the applicant's co-

accused had requested that the court should appoint a lawyer to her.

     Another hearing was held on 15 November 1995.  Seven witnesses

failed to appear.  The District Prosecutor suggested that in view of

the change in the composition of the court's chamber the court should

repeat all procedural steps relating to the main hearing.  This

suggestion was supported by the lawyers of the accused and the District

Court adjourned the proceedings.

     On 13 December 1995 the District Court adjourned the proceedings

on the ground that three witness had not appeared and that the

interpreter was ill.

     On 4 January 1996 the District Court found that it lacked

jurisdiction to deal with the applicant's case at first instance and

transferred it to the Regional Court.

     The main hearing before the Regional Court was held on 10 and

12 April 1996.  On the latter date the Regional Court convicted the

applicant of trafficking in women pursuant to Section 246 paras. 1 and

2 (c) of the Criminal Code and of procuring pursuant to Section 204

para. 1 of the Criminal Code and sentenced him to four years'

imprisonment.  It also decided to expel the applicant from the Slovak

Republic.

     The Regional Court heard the two accused, three of the four women

whom the accused had brought to Italy, four witnesses, two experts and

took also further evidence.  It established that in June 1992 the

applicant and another person had met four Slovak women and agreed to

bring them to Italy for the purpose of carrying out prostitution.  The

accused had brought the aforesaid four women to Padova at the beginning

of July 1992 and had benefited from their prostitution until September

1992.     The court relied on the statements of the women concerned and of

the applicant's co-accused, which were supported by other evidence

before it.  The statements of the aforesaid persons confirmed that the

applicant and the other accused had brought the four women to Italy

with a view to benefiting from their prostitution there.

     The court did not accept the applicant's argument according to

which he had taken the four women to Italy upon the request of his co-

accused and that the latter had explained to him that those women

intended to find a job during the cucumbers harvest.  The Regional

Court further noted that in his letter to the police investigator of

5 June 1993 the applicant had expressly admitted the facts imputed to

him.  The court did not accept the applicant's explanation according

to which he had admitted the acting in question with a view to

protecting his co-accused.

     At the hearing before the Regional Court the applicant was

assisted by his lawyer.

     The applicant appealed against the Regional Court's judgment.

He challenged the statements of his co-accused and of the three women

concerned.  He denied the statements which he had addressed to the

police investigator on 5 June 1993.  The applicant complained about the

lack of impartiality of the District Prosecutor and of the District

Court's judges.  He alleged that the Regional Court's judges and

assessors had also been biased because, in his view, their decision was

arbitrary.

     On 21 August 1996 the Supreme Court (Najvyssí súd) quashed the

Regional Court's judgment of 12 April 1996.  It found that the Regional

Court had correctly established the facts but had committed an error

in their legal qualification.  The Supreme Court convicted the

applicant and the other accused of trafficking in women pursuant to

Section 246 paras. 1 and 2 (c) of the Criminal Code.  The applicant was

sentenced to four years' imprisonment and to expulsion from the Slovak

Republic.

     The Supreme Court noted that in the judgment of 12 April 1996 the

Regional Court had stated clearly and in detail which facts it had held

for established, on which evidence its findings had been based, had set

out its considerations when assessing the evidence before it and had

expressed its standpoint as to the arguments of the accused.

     In particular, the Supreme Court noted that the facts imputed to

the applicant had been confirmed by the other accused and three of the

four women concerned.  Furthermore, the applicant had originally

admitted those facts in his letters addressed to the police

investigator and to one of the women concerned, and the contents of

those letters corresponded in full with the statements of his co-

accused and of the three women concerned.

     The Supreme Court considered irrelevant the applicant's

alternative argument according to which the women concerned had decided

to go with him to Italy voluntarily.  The Supreme Court also noted that

the evidence taken before the District Court had been considered

neither by it nor by the Regional Court as the District Court had

lacked jurisdiction to deal with the applicant's case.

     In the appeal proceedings the applicant was assisted by a lawyer.

At the hearing before the Supreme Court the applicant's earlier

statements were read out but the applicant was not allowed to defend

his case in person.

Decisions concerning extension of the applicant's detention on remand

     On 1 July 1994 the District Prosecutor requested an extension of

the applicant's detention by two months on the ground that the

investigator expected that he would not be able to carry out the

additional investigation ordered by the District Court within one

month.

     On the same day the District Court extended the applicant's

detention by two months pursuant to Section 71 para. 1 of the Code of

Criminal Procedure.  The court held that the applicant's release might

obstruct the proceedings and that the reasons for his detention

mentioned in the decision of the Regional Court of 21 January 1994 were

still relevant.  The District Court's decision was served on

26 July 1994.

      On 12 July 1994 the applicant complained to the Supreme Court

that the one month time-limit laid down in Section 191 of the Code of

Criminal Procedure had expired and that he was detained unlawfully.

The complaint was transmitted to the District Prosecutor.

     On 13 July 1994 the District Prosecutor informed the applicant,

in reply to a request for release lodged by the applicant's lawyer,

that he had received the file on 2 June 1994.  The prosecutor held,

with reference to Section 71 paras. 1 and 6 of the Code of Criminal

Procedure, that as from that date the applicant could be detained for

two months and that during that period no extension of his detention

by a court was necessary.  The applicant's request for release was

submitted to the District Court pursuant to Section 72 para. 2 of the

Code of Criminal Procedure (see "Applications for release lodged by the

applicant" below).

     On 18 July 1994 the applicant's lawyer replied, with reference

to a letter of interpretation by the Office of the General Prosecutor

of the former Czech and Slovak Federal Republic of 8 July 1992, that

after a court had sent a case back to the public prosecutor for

additional investigation, the detention of an accused in pre-trial

proceedings could last only one month unless it was extended by a

court.

     On 21 July 1994 the District Prosecutor informed the applicant

that his detention, for two months after the receipt of the file, was

in conformity with Section 71 paras. 1 and 6 of the Code of Criminal

Procedure.

     By a letter of 30 August 1994 the District Prosecutor requested

the District Court to extend the applicant's detention by two months.

The request was substantiated by the fact that on 24 August 1994 it had

not been possible to cross-examine the applicant and a witness as the

former alleged that he had health problems, and that the applicant had

been transferred to a prison hospital (see "The examination of the

applicant's mental health" below).

     The aforesaid request was registered by the District Court on

2 September 1994 and on the same day a single judge decided to extend

the applicant's detention until 2 October 1994.  The judge held that

the applicant's detention was still necessary for the purposes of

Section 67 para. 1 (a) and (c) of the Code of Criminal Procedure and

that the applicant's release might obstruct the conduct of the

proceedings within the meaning of Section 71 para. 1 of the Code of

Criminal Procedure.

     The decision stated that although the District Prosecutor had

requested a two months' extension, his request had been filed on

2 September 1994, i.e. on the day when the previous decision on the

applicant's detention was to expire.  For this reason the court could

not decide on the District Prosecutor's request in a chamber as

required by Section 71 para. 1 of the Code of Criminal Procedure.

     On 21 September 1994 the District Prosecutor requested a further

extension of the applicant's detention on the ground that the

examination of the applicant's mental health, which had been ordered

on 6 September 1994, would not be terminated before 2 October 1994.

On 26 September 1994 the District Court (sitting in a chamber) granted

the extension until 2 November 1994.

     Upon the District Prosecutor's request of 24 October 1994 a

single judge of the District Court extended, on 25 October 1994, the

applicant's detention until 2 January 1995.  The judge examined the

applicant's file and found that the pre-trial investigation including

the examination of the applicant's mental health would not be

terminated before 2 November 1994.  The court held that the reasons for

the applicant's detention (i.e. the danger of his absconding,

committing further offences or obstructing the proceedings) were still

relevant.

     On 7 December 1994 the District Court (sitting in a chamber)

extended the applicant's detention until 2 February 1995.  It held that

the pre-trial investigation of the case regarding the applicant (whose

mental health was to be examined until 4 January 1995) had not been

terminated and that his detention was still necessary for the purposes

of Section 67 para. 1 (a) and (c) and Section 71 para. 1 of the Code

of Criminal Procedure.

     On 30 January 1995 the District Court granted the District

Prosecutor's request of 23 January 1995 and extended the applicant's

detention until 2 March 1995.  The District Court noted that several

procedural steps had to be taken before the investigation into the

applicant's case could be concluded.  It recalled that after the

applicant had committed the acts imputed to him he had tried to avoid

the criminal proceedings against him in that he had been staying at an

unknown place.  The court considered that further detention of the

applicant was also necessary in order to prevent him from committing

further offences.

     On 21 February 1995 the District Prosecutor requested a further

extension of the applicant's detention on remand.  On 27 February 1995

the District Court granted the request and extended the applicant's

detention until 2 April 1995.  The District Court noted that the

applicant had insisted that he should be cross-examined with two

witnesses.  However, the cross-examination could not be carried out as

one of the witnesses was hospitalised after delivery.  The District

Court held that the applicant's detention was necessary for the

purposes of Section 67 para. 1 (a) and (c) of the Code of Criminal

Procedure and pointed out that the preliminary proceedings lasted

unreasonably long.

      On 27 March 1995 the District Court, acting at a request lodged

by the District Prosecutor on 22 March 1995, extended the applicant's

detention until 2 May 1995.  The District Court noted that the cross-

examination of the applicant and two witnesses scheduled for

16 March 1995 could not be carried out as the applicant's lawyer had

failed to appear.

     On 25 April 1995 the District Prosecutor filed an indictment

against the applicant before the District Court.

     On 13 December 1995 the District Court requested the Supreme

Court to extend the applicant's detention by one year pursuant to

Section 71 para. 2 of the Code of Criminal Procedure.  The District

Court pointed out that the delays in the proceedings were due to the

repeated absence of the interpreter, health problems of a member of the

court's chamber, overload of the applicant's lawyer and also to the

witnesses' failure to appear before the court.

     On 21 December 1995 the Supreme Court extended the applicant's

detention until 21 July 1996.  It held that the detention had started

on 21 January 1994 (when the applicant had been remanded by the Slovak

authorities) and not, as alleged by the applicant, on 16 December 1993

(when the applicant had been arrested in Vienna).  For this reason, the

Supreme Court considered that the request for extension of the

detention had been lodged in time (i.e. more than ten days before the

expiry of the two years' time-limit laid down in Section 71 para. 2 of

the Code of Criminal Procedure).

     In its decision the Supreme Court pointed out that at first

instance the applicant's case was within the jurisdiction of the

Regional Court.

     On 26 June 1996 the Supreme Court extended the applicant's

detention until 31 October 1996.

Applications for release lodged by the applicant

     On 27 July 1994 the District Court dismissed the applicant's

application for release which had been transmitted to it by the

District Prosecutor pursuant to Section 72 para. 2 of the Code of

Criminal Procedure (see "Decisions on extension of the applicant's

detention on remand" above).

     The applicant lodged a complaint and claimed that the reasons for

his detention had fallen away.  He alleged, in particular, that his

detention could have lasted, without its further extension by a court,

until 2 July 1994 (i.e. one month after the file had been returned to

the District Prosecutor).  He expressed doubts as to whether the

decision of 1 July 1994, by which his detention had been extended until

2 September 1994, had really been taken on that day since it had been

served only on 26 July 1994 and in his letters of 13 and 21 July 1994

the District Prosecutor had not referred to the fact that a request for

extension of the applicant's detention had been lodged and that a

decision to that effect had been taken.

     On 30 August 1994 the Regional Court quashed the District Court's

decision of 27 July 1994 as the latter had not examined the whole file

concerning the applicant's case.

     On 8 September 1994 the District Court reexamined the application

and dismissed it on the ground that the reasons for the applicant's

detention under Section 67 para. 1 (a) and (c) of the Code of Criminal

Procedure still existed.  It also noted that on 17 August 1994 two

foreigners had been apprehended in the prison's security zone whilst

communicating with the applicant.

     On 14 September 1994 the applicant lodged a complaint against

this decision.  He claimed that the court had not dealt with his

objections, in particular, as regards the lawfulness of his detention

after 2 July 1994.

     On 8 November 1994 the Regional Court rejected the applicant's

complaint without examining its merits as it had been lodged belatedly.

     On 21 April 1995 the applicant requested that he should be

released and offered a pledge pursuant to Section 73 Section 1 (b) of

the Code of Criminal Procedure.  He claimed that it was not probable

that he would commit further offences.  He also undertook to stay with

his  friends in Slovakia and to comply with any restrictions the court

might order.

     The request was dismissed on 11 May 1995.  The District Court

held that the applicant, who was under the threat of a severe sentence,

could abscond and, possibly, also commit offences.

     On 7 August 1995 (at the main hearing before the District Court)

the applicant requested, through his lawyer, that he should be

released.  He pointed out that the investigation had been closed and

that he would not abscond.   The applicant alleges that he was

initially informed by the District Court that he was released and that

he left the court room without handcuffs.  However, after a short time

he was brought back and informed that his application for release was

dismissed.  The Government contest this allegation.

     According to the record of the hearing of 7 August 1995, the

Public Prosecutor proposed that the applicant's request be granted but

the District Court rejected it pursuant to Section 72 para. 2 of the

Code of Criminal Procedure.  The applicant's lawyer then informed the

court that the applicant lodged a complaint against that decision.

     The decision on dismissal of the aforesaid application for

release of 7 August was served on 4 September 1995 (at the second

hearing before the District Court).  The decision stated that it could

be challenged by a complaint within three days after it had been

served.  The applicant lodged a complaint with reasons against it on

6 September 1995.  The complaint was registered by the District Court

on 11 September 1995.

     The applicant claimed that in view of the lapse of time since the

moment of his arrest, it could no longer be reasonably expected that

he would commit further offences.  He alleged, inter alia, that his

detention had been unlawful as from 1 July 1994.  On 25 September the

applicant was informed that his complaint had been transmitted to the

Regional Court.

     On 12 October 1995 the Regional Court, sitting in camera,

dismissed the applicant's complaint.  It held that on 7 August the

applicant had informed the District Court that he would lodge a

complaint against its decision but had failed to substantiate such

acomplaint.  The Regional Court found no circumstances justifying the

applicant's release.  Its decision was served on the applicant on

18 October 1995.

Examination of the applicant's mental health

     On 19 August 1994 the administration of the Banská Bystrica

prison imposed a disciplinary penalty on the applicant on the ground

that on 17 August 1994 he had communicated from his cell with two

Yugoslav nationals who had approached the prison's security zone.  The

decision stated that the applicant was to be held in solitary

confinement for three days as from 24 August 1994, 5 p.m.  The decision

was stamped by the prison doctor and the applicant confirmed on it that

he did not wish to lodge a complaint against it.

     In the evening of 21 August 1994 the applicant fainted for some

20 seconds.  The following day he was taken to the prison infirmary.

For this reason he asked for a cross-examination scheduled for

24 August 1994 to be postponed.  His request was not accepted and on

24 August 1994 the applicant was escorted to Ziar nad Hronom.

     Upon his arrival the applicant informed the investigator that he

could not participate in the examination because of serious health

problems.  The medical service was summoned.  Its report indicates that

the applicant complained of overall weakness and thirst.  It further

states that the applicant was conscious, had dry mucous membranes and

that the doctor presumed the applicant to be tendentiously

bradypsychical.

     The provisional diagnosis stated that the applicant was in a

state of near collapse.  The doctor administered perfusion to the

applicant and decided that his hospitalisation was not necessary.  The

applicant's lawyer was also present and the cross-examination did not

take place.  The applicant was brought back to the Banská Bystrica

prison.

     Upon his return the applicant was placed in solitary confinement

for three days pursuant to the aforesaid decision of 19 August 1994.

Between 30 August and 13 September 1994 he was examined in the prison

hospital in Trencín.

     On 6 September 1994 the District Court ordered that the

applicant's mental health should be examined pursuant to Section 105

and Section 116 para. 2 of the Code of Criminal Procedure in the prison

hospital in Trencín.  The court noted that the applicant had complained

of headaches and of problems with his back and breathing.  These

problems had always occurred when the applicant was to be escorted for

examination.  The court therefore ordered a general check-up including

the examination of the applicant's mental health.

     The applicant alleges that he lodged a complaint against this

decision in time but received no reply.  The decision became final on

13 September 1994.

     On 20 September 1994 the investigating officer appointed three

experts.  They were requested to examine the applicant's mental health

and to submit an opinion, inter alia, on his personal characteristics,

his capacity to distinguish the dangerousness of his behaviour, whether

he showed recidivist tendencies and on the prospects of the applicant's

re-socialisation.  On 5 October 1994 the public prosecutor dismissed

the applicant's complaint against this decision.

     On 4 October 1994 the applicant was brought to the prison

hospital in Trencín in order to have his mental health examined.  He

refused to co-operate with the experts.

     On 2 December 1994 the District Court extended the examination

of the applicant's mental health until 4 January 1995 pursuant to

Section 117 of the Code of Criminal Procedure.  The court noted that

the experts could not submit their opinion as the applicant had refused

to co-operate with them.

     On 20 December 1994 the Regional Court dismissed the applicant's

complaint against the decision to extend the examination of his mental

health.  The Regional Court recalled that the applicant had never

specified his health problems which had always appeared when he was to

be examined in the context of the criminal proceedings against him.

The court held it for possible that the applicant had tried to avoid

the criminal proceedings against him and considered it necessary to

extend the time-limit for examination of his mental health.

     The examination of the applicant's mental health ended on

3 January 1995.  On 13 January 1995 the experts submitted their

opinions in which they concluded that the applicant was not suffering

from any mental disorder.

Other relevant facts relating to the applicant's case

     In a letter of 29 September 1994 the applicant complained to the

Constitutional Court (Ústavny súd) that the decisions concerning his

detention had not been taken in conformity with Slovak law, that on

24 August 1994 he had been escorted to Ziar nad Hronom notwithstanding

that he had had health problems, that subsequently he had been detained

in solitary confinement and that an examination of his mental health

had been ordered.  He requested that the Constitutional Court study his

file and redress the violations of his rights.

     On 13 October 1994 a judge of the Constitutional Court informed

the applicant that the Constitutional Court lacked jurisdiction to

interfere with criminal proceedings before the general courts.  The

letter further stated that the Constitutional Court could only start

proceedings pursuant to Article 130 para. 3 of the Constitution if a

person alleged a violation of his of her fundamental rights and

provided that such a person had exhausted other available remedies.

     The applicant complained about several procedural shortcomings

in his case to the Office of the General Prosecutor.  On 2 January 1995

he was informed, inter alia, that the fact that the District Court's

decision of 1 July 1994 (by which his detention had been extended) had

been served after the expiry of the time-limit laid down in Section 71

para. 2 of the Code of Criminal Procedure did not render the

applicant's detention unlawful.

     On 25 September 1996 the Regional Court ordered the applicant to

pay the court fees of 1,800 Slovak crowns.  It also ordered that the

applicant should compensate the costs of his detention for the period

from 21 January 1994 to 21 August 1996.  The amount of the compensation

was to be determined by the prison administration.

     The applicant's complaint against this decision was dismissed by

the Supreme Court on 30 October 1996.  The Supreme Court held that the

applicant had to compensate the costs of his detention notwithstanding

that he was a foreign national and noted that a complaint against the

decision concerning the court fees was not available.

     On 22 October 1996 the Trnava District Court dismissed the

applicant's request for conditional release and on 11 December 1996 the

Bratislava Regional Court rejected the applicant's complaint against

this decision.

     On 19 December 1996 the Trnava District Court ordered the

enforcement of the Regional Court's decision that the applicant should

pay the court fees of 1,800 Slovak crowns.

     On 3 January 1997 the Director of the Hrnciarovce nad Parnou

prison decided, with reference to the Regional Court's decision of

25 September 1996, that the applicant should pay 47,200 Slovak crowns

as compensation for his detention from 21 January 1994 to

21 August 1996.

B.   The relevant domestic law and practice

Constitutional provisions and the Constitutional Court's practice

     Article 17 para. 1 of the Constitution guarantees to everyone the

right to liberty of person.  Paragraph 2 of Article 17 provides that

a person may be prosecuted or deprived of liberty only for reasons and

by means provided for by law.

     Article 46 et seq. of the Constitution guarantees to everyone the

right to judicial and other legal protection in accordance with the

law.

     Pursuant to Article 130 para. 3 of the Constitution, the

Constitutional Court may start proceedings upon a petition (podnet) of

legal persons or individuals claiming to have their rights violated.

     In its judgment No. I ÚS 79/93 of 15 September 1993 the

Constitutional Court, acting upon a petition lodged pursuant to

Article 130 para. 3 of the Constitution, found a violation of

constitutional rights in that a person's detention in a mental hospital

(on the ground that he suffered from a mental disorder) did not conform

to the relevant provisions of Slovak law.  At the same time the

Constitutional Court ordered the release of the petitioner upon the

service of its judgment.

Criminal Code

     Pursuant to Section 246 para. 1 of the Criminal Code a person who

engages a woman, entices her into going abroad or transports her abroad

with a view to having sexual intercourse with another person shall be

imprisoned for one to five years.  Under para. 2 (b) and (c) of the

same Section such a person shall be imprisoned for three to eight years

if the woman concerned is under eighteen or if the perpetrator intended

to use the woman for prostitution.

     Pursuant to Section 204 of the Criminal Code, as in force until

1 October 1994, a person who incites or entices another person to

prostitution or benefits from another person's prostitution shall be

punished with a prison sentence from one to five years.  Since

1 October 1994 this offence has been punishable, pursuant to

Section 204 para. 1 of the Criminal Code, with a maximum term of

imprisonment of three years.

Code of Criminal Procedure

     In accordance with Section 67 para. 1 (a) and (c) of the Code of

Criminal Procedure, an accused can only be remanded in custody when

there are reasonable grounds to believe that he would abscond or hide

in order to avoid prosecution or punishment, or that he would commit

further offences or accomplish an attempted offence.

     The length of a person's detention on remand is governed by

Section 71 of the Code of Criminal Procedure.  Until 1 October 1994 it

provided, so far as relevant, as follows:

     "1. The length of detention in pre-trial proceedings shall be

     limited to the period which is strictly necessary.  If the

     custody is to exceed two months and if the release of the accused

     could frustrate or obstruct the purpose of criminal proceedings,

     a single judge can extend the custody, upon a public prosecutor's

     request, up to six months.  A further extension can only be

     granted by a court sitting in a chamber...  The pre-trial

     detention may in no circumstances exceed one year...

     2.  The public prosecutor shall lodge the request to extend an

     accused person's detention pursuant to para. 1 not later than

     five days before the time-limit expires.  If the court does not

     decide on such a request before the expiry of the time-limit, the

     public prosecutor shall release the accused.  The decision by

     which the detention was extended shall be served on the accused

     within ten days..."

     Since 1 October 1994 the relevant provisions of Section 71 have

been amended as follows:

     "1. The length of detention in pre-trial and judicial proceedings

     shall be limited to the period which is strictly necessary.  If

     the custody in pre-trial proceedings is to exceed six months and

     if the release of the accused could frustrate or obstruct the

     purpose of criminal proceedings, a single judge can extend the

     custody, upon a public prosecutor's request, up to one year; a

     further extension, up to two years overall, can be granted by a

     court sitting in a chamber.  The decision by which the detention

     is extended shall be served on the accused within ten days.

     2.  Custody in judicial proceedings taken together with the pre-

     trial custody shall not exceed two years.  If, because of the

     complexity of the case or for other serious reasons, it is not

     possible to complete the prosecution by that time, and if the

     release of the accused could frustrate or obstruct the purpose

     of criminal proceedings, the Supreme Court can extend the custody

     by another year...

     4.  The request to extend the time-limit mentioned in paragraphs

     1 and 2 shall be lodged with the court not later than ten days

     before the expiry of the time-limit concerned.  If the request

     is not lodged as mentioned above, the president of the court's

     chamber, or the public prosecutor in pre-trial proceedings, shall

     release the accused not later than one day after the time-limit

     for the remand in custody has expired."

     Paragraph 6 of Section 71 provides, inter alia, that if a case

is returned to the public prosecutor for additional investigation, the

time-limit set out in para. 1 shall start to run on the day on which

the file was received by the public prosecutor.

     Pursuant to Section 191 para. 3, additional investigation is to

be carried out, as a rule, within one month from the day on which the

file was returned to the public prosecutor.

     Section 72 para. 2 entitles the accused to apply for release at

any time.  If the public prosecutor dismisses such an application in

the course of pre-trial proceedings, he or she shall submit it

immediately to the court.  The court shall rule on such an application

without delay.  If the application is dismissed, the accused may renew

it fourteen days after the decision became final unless he invokes

other reasons.

     Section 73 para. 1 (b) entitles the court, or a single judge in

pre-trial proceedings, to release an accused who is detained on remand

under Section 67 para. 1 (a) or (c) if the latter makes a pledge in

writing to abstain from any criminal activity and to comply with the

obligations and restrictions imposed on him, provided that the pledge

is considered as being sufficient in view of the personal

characteristics of the accused.

     Section 116 para. 1 provides for appointment, upon a written

order by the court, of two psychiatric experts when there is a need to

examine the mental health of an accused.

     Pursuant to para. 2 of the same Section, when the mental health

of an accused cannot be examined in another way, the court can order

that he or she should be observed in an institution.  Such an order can

be issued in pre-trial proceedings by the judge upon the proposal of

the public prosecutor.  The order can be challenged by a complaint

which has a suspensive effect.

     According to Section 117, the examination of a person's mental

health shall not exceed two months.  A single judge can extend it in

pre-trial proceedings by one month at the request of the public

prosecutor provided that the experts concerned have substantiated the

need for such an extension.  Such a decision can be challenged by means

of a complaint.

     Pursuant to Section 241, the president of a court's chamber shall

notify the public prosecutor, as a rule at least three days in advance,

of the court's meeting in camera.  Such a meeting shall be attended,

pursuant to Section 242, by all members of the chamber and the court

clerk.  The presence of the public prosecutor is not mandatory unless

otherwise provided by the law.  The attendance of a meeting in camera

by other persons is excluded.

     Section 259 para. 1 of the Code of Criminal Procedure provides

that in case the appellate court quashes a first instance judgment or

a part thereof and there is a need for a new decision, the appellate

court shall, as a rule, transmit the case back to the first instance

court for a new adjudication.

     Pursuant to Section 259 para. 3, the appellate court can deliver

a judgment on a case only if such a new decision can be made on the

basis of the facts which were correctly established in the first

instance judgment in question and, as the case may be, complemented by

evidence that was taken before the appellate court.  An appellate court

is not entitled, however, to modify the first instance judgment to the

detriment of the accused unless the public prosecutor lodged an appeal

to this effect.

COMPLAINTS

     Under Article 5 of the Convention the applicant complains that

his detention after 2 July 1994 and the examination of his mental

health were unlawful.  He further complains about the length of his

detention on remand and about both the length and fairness of the

proceedings concerning his application for release which was dismissed

by the Ziar nad Hronom District Court on 7 August 1995 and by the

Banská Bystrica Regional Court on 12 October 1995.

     The applicant further complains under Article 3 of the Convention

that on 24 August 1994 he was escorted to Ziar nad Hronom

notwithstanding that he had health problems, that he was subsequently

placed in solitary confinement and that his mental health was examined

in the prison hospital in Trencín for three months.

     The applicant complains that the officials dealing with his case

in pre-trial proceedings and at first instance were biased, that the

Supreme Court failed to hear him when it was deciding on his appeal

against the Regional Court's judgment of 12 April 1996, that the courts

convicted him arbitrarily and thereby violated his right to be presumed

innocent.

     Finally, the applicant complains about the decision to expel him

from the Slovak Republic, about the dismissal of his request for

conditional release and that he is under the obligation to pay the

court fees and the costs of his detention.

PROCEEDINGS BEFORE THE COMMISSION

     The application was introduced on 28 September 1994 and

registered on 1 September 1995.

     On 11 April 1996 the Commission decided to communicate the

application to the respondent Government.

     The Government's written observations were submitted on

21 June 1996.  The applicant replied on 14 October 1996.

     On 10 September 1996 the Commission granted the applicant legal

aid.

THE LAW

1.   The applicant complains that both his detention on remand after

2 July 1994 and the examination of his mental health were contrary to

the relevant provisions of Slovak law.  He alleges a violation of

Article 5 (Art. 5) of the Convention which provides, so far as

relevant, 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:

     ...

           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 contend that the applicant has not exhausted

domestic remedies in this respect as he did not, after the exhaustion

of other available remedies, lodge a petition pursuant to Article 130

para. 3 of the Constitution.  They consider that the applicant's

detention was in any event lawful within the meaning of Article 5

para. 1 (c) (Art. 5-1-c) of the Convention.

     The applicant maintains that he exhausted all available remedies

and that his detention was unlawful.

     The Commission notes that in a letter of 29 September 1994 the

applicant complained to the Constitutional Court of both his detention

on remand and the examination of his mental health.

     On 13 October 1994 a judge of the Constitutional Court informed

the applicant, inter alia, that the Constitutional Court could only

start proceedings pursuant to Article 130 para. 3 of the Constitution

if a person alleged a violation of his or her fundamental rights and

provided that such a person had exhausted other available remedies.

     The Commission further notes that in its judgment No. I ÚS 79/93

of 15 September 1993 the Constitutional Court, acting upon a petition

lodged pursuant to Article 130 para. 3 of the Constitution, found a

violation of the petitioner's constitutional rights in that his

detention in a mental hospital did not conform to the relevant

provisions of Slovak law.  The Constitutional Court ordered the

petitioner's release upon the service of its judgment.

     Having regard to the aforesaid judgment of the Constitutional

Court and also to the fact that in the proceedings before Slovak courts

the applicant was represented by a lawyer, the Commission considers

that a petition to the Constitutional Court pursuant to Article 130

para. 3 of the Constitution was a remedy which the applicant should

have tried before introducing this part of the application before the

Commission.

     It is true that the applicant in the present case, unlike the

petitioner in the aforesaid case leading to the Constitutional Court's

judgment No. I ÚS 79/93, was deprived of liberty in the context of

criminal proceedings against him.  However, and even assuming that this

fact may give rise to doubts as to whether the Constitutional Court was

capable of redressing the alleged violation of the applicant's rights

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

recalls that where doubts exist as to the effectiveness of a domestic

remedy, that remedy must be tried (see No. 13669/88, Dec. 7.3.90, D.R.

65, p. 245).

     As the applicant failed to lodge a petition pursuant to

Article 130 para. 3 of the Constitution, he has not complied with the

requirement as to the exhaustion of domestic remedies laid down in

Article 26 (Art. 26) of the Convention.

     It follows that this part of the application must be rejected

pursuant to Article 27 para. 3 (Art. 27-3) of the Convention.

2.   The applicant further complains that his detention on remand

lasted unreasonably long.  He alleges, in substance, a violation of

Article 5 para. 3 (Art. 5-3) of the Convention which provides as

follows:

     "Everyone arrested or detained in accordance with the provisions

     of paragraph 1 (c) of this Article shall be brought promptly

     before a judge or other officer authorised by law to exercise

     judicial power and shall be entitled to trial within a reasonable

     time or to release pending trial.  Release may be conditioned by

     guarantees to appear for trial."

     The Government contend that the reasons for which the courts

considered the applicant's detention necessary are relevant and

sufficient and that the Slovak authorities dealt with the applicant's

case with due diligence.

     The Government submit that the applicant contributed to the

length of the proceedings in that he pretended health problems and made

thus his cross-examination with a witness scheduled for 24 August 1995

impossible.  The Government further point out that the applicant's

behaviour had as its consequence the examination of his mental health

which had to be prolonged because of his refusal to co-operate with

experts, and that the applicant kept denying categorically the

accusations against him.

     The applicant considers that the reasons for his detention were

not relevant and sufficient and that his detention on remand lasted

unreasonably long.

     The Commission notes that the Regional Court remanded the

applicant in custody on 21 January 1994 and that his detention falling

under Article 5 para. 1 (c) (Art. 5-1-c) of the Convention ended on 12

April 1996 by the delivery of the Regional Court's judgment.

     The Commission considers that this complaint raises serious

issues of fact and law under the Convention the determination of which

should depend on an examination of the merits.  It follows that this

part of the application cannot be dismissed as manifestly ill-founded

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

No other ground for declaring it inadmissible has been established.

3.   The applicant complains about the length and fairness of the

proceedings concerning his application for release which was dismissed

by the District Court on 7 August 1995 and by the Regional Court on

12 October 1995.  He invokes Article 5 para. 4 (Art. 5-4) of the

Convention which 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."

     The Government submit that the District Court decided on the

applicant's request for release in the course of the hearing of

7 August 1995 in the presence of both the applicant and his lawyer.

They consider the fact that the Regional Court examined the applicant's

complaint against the aforesaid District Court's decision in camera

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

     The Government further point out that the statement in the

Regional Court's decision of 12 October 1995 according to which the

applicant failed to substantiate his complaint relates to the

applicant's oral complaint lodged at the District Court's hearing of

7 August 1995.

     Finally, the Government consider that the courts decided on the

applicant's request for release of 7 August 1995 speedily.

     The applicant disagrees and submits that the proceedings in

question were unfair and lasted unreasonably long.

     The Commission considers that the applicant's above complaint

raises serious issues of fact and law under the Convention the

determination of which should depend on an examination of the merits.

It follows that this part of the application cannot be dismissed as

manifestly ill-founded within the meaning of Article 27 para. 2

(Art. 27-2) of the Convention.  No other ground for declaring it

inadmissible has been established.

4.   The applicant complains that on 24 August 1994 he was escorted

to Ziar nad Hronom notwithstanding that he had health problems, that

he was subsequently placed in solitary confinement and that his mental

health was examined in the prison hospital in Trencín for three months.

He alleges a violation of Article 3 (Art. 3) of the Convention which

provides as follows:

     "No one shall be subjected to torture or to inhuman or degrading

     treatment or punishment."

     The Commission does not consider it necessary to examine whether

the applicant has complied with the requirement as to the exhaustion

of domestic remedies as this part of the application is in any event

inadmissible for the following reasons.

     The Commission notes that on 21 August 1994 the applicant fainted

for some 20 seconds and the following day he was examined in the prison

infirmary.  For this reason he asked for a cross-examination of a

witness scheduled for 24 August 1994 to be postponed.

     His request was not accepted and upon his arrival in Ziar nad

Hronom, on 24 August 1994, the applicant informed the investigator that

he could not participate in the examination because of serious health

problems.  The doctor administered perfusion to the applicant and held

that his hospitalisation was not necessary.  The applicant's lawyer was

also present and the cross-examination did not take place.  The

applicant was brought back to the Banská Bystrica prison and upon his

return he was placed in solitary confinement pursuant to a decision of

19 August 1994 by which a disciplinary sanction had been imposed on

him.

     It does not appear from the documents submitted that the doctors

considered the applicant's transport for a cross-examination on

24 August 1994 inappropriate.  Furthermore, the Commission has before

it no information that would indicate that during his transport to and

from Ziar nad Hronom, his stay there or his subsequent placement in

solitary confinement the applicant was not provided with appropriate

medical care or that he was exposed to treatment incompatible with

Article 3 (Art. 3) of the Convention.

     The Commission further considers that the examination of the

applicant's mental health in a prison hospital pursuant to Section 105

and Section 116 para. 2 of the Code of Criminal Procedure does not

constitute, as such, treatment contrary to Article 3 (Art. 3) of the

Convention.

     It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

5.   The applicant complains that the officials dealing with his case

during the pre-trial proceedings and at first instance were biased,

that he was not heard in the proceedings before the Supreme Court and

that his conviction of procuring was arbitrary and violated his right

to be presumed innocent.

     The Commission has examined these complaints under Article 6

(Art. 6) of the Convention which provides, in so far as relevant, 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...

     2.    Everyone charged with a criminal offence shall be presumed

     innocent until proved guilty according to 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 or, if he has not sufficient means

     to pay for legal assistance, to be given it free when the

     interests of justice so require;

     ..."

a)   As regards the applicant's complaint that the officials dealing

with his case during the pre-trial proceedings were biased, the

Commission recalls that the guarantee of independence and impartiality

enshrined in Article 6 para. 1 (Art. 6-1) of the Convention applies

only to proceedings before a "tribunal established by law", i.e. to the

proceedings before the Regional Court and the Supreme Court in the

applicant's case.

     The Commission further considers that the fact that the Regional

Court's judges and assessors decided against the applicant does not

mean that they were biased and the Commission has before it no

information that would indicate that the applicant had any legitimate

reason to fear a lack of impartiality of the aforesaid persons.  The

Commission also notes that applicant's case was subsequently examined

by the Supreme Court and the applicant does not allege that its judges

lacked impartiality.

b)   To the extent that the applicant complains that he was not

allowed to present his case before the Supreme Court in person, the

Commission first recalls that the question whether a trial is in

conformity with the requirements of Article 6 (Art. 6) must be

considered on the basis of an examination of the proceedings as a whole

and not one isolated aspect (see No. 11069/84, Dec. 7.9.89, D.R. 62,

p. 5).

     In particular, Article 6 (Art. 6) cannot be construed as

requiring in all criminal appeal cases a second, full hearing unless

the appeal court's powers and the issues before it make this necessary

to guarantee the fairness of the proceedings as a whole (see No.

9315/81, Dec. 15.7.83, D.R. 34, p. 96; No. 9728/82, Dec. 15.7.83, D.R.

36, p. 155).

     The Commission notes that in the proceedings before the Regional

Court the applicant was given full opportunity to present his case, to

invoke evidence in his defence and to challenge the evidence against

him.

     In the course of the appellate proceedings, the Supreme Court

found that the Regional Court had established the facts with sufficient

certainty.  Furthermore, the Supreme Court addressed the issues raised

by the applicant in his appeal but concluded, for reasons set out in

its judgment, that the applicant's appeal was manifestly ill-founded.

     Thus, the Supreme Court relied on the facts as they had been

established by the Regional Court and it does not appear from its

judgment that it took additional evidence which the applicant or his

lawyer did not have an opportunity to challenge.  In addition, the

Commission notes that the Supreme Court acted upon an appeal lodged by

the applicant and, in accordance with Section 259 para. 3 of the Code

of Criminal Procedure, it lacked jurisdiction to increase the severity

of the applicant's sentence.

     In these circumstances, the Commission considers that the fact

that the applicant could not present his case before the Supreme Court

in person does not interfere with his right to a fair hearing as

guaranteed by Article 6 (Art. 6) of the Convention.

c)   As regards the applicant's complaint that his conviction of

procuring was arbitrary and violated his right to be presumed innocent,

the Commission recalls that, in accordance with Article 19 (Art. 19)

of the Convention, its only task is to ensure the observance of the

obligations undertaken by the Parties in the Convention.  In

particular, it is not competent to deal with an application alleging

that errors of law or fact have been committed by domestic courts,

except where it considers that such errors might have involved a

possible violation of any of the rights and freedoms set out in the

Convention.  The Commission refers, on this point, to its constant

case-law (see, e.g., No. 25062/94, Dec. 18.10.95, D.R. 83, pp. 77, 86).

     The Commission has found above that the proceedings in the

applicant's case were not unfair and considers that the reasons on

which the courts based their above decisions are sufficient to exclude

that the evaluation of the evidence in the applicant's case was

arbitrary.

     In these circumstances, the finding of the applicant's guilt set

out in the judgments of the Regional Court and the Supreme Court cannot

infringe the applicant's right to be presumed innocent until proved

guilty according to the law as guaranteed by Article 6 para. 2

(Art. 6-2) of the Convention.

     It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

6.   To the extent that the applicant complains about the decision to

expel him from the Slovak Republic, the Commission recalls that the

Convention does not guarantee, as such, a right for an alien to reside

in a particular country or not to be expelled therefrom, and the

Commission has before it no information that would indicate that the

applicant's expulsion would adversely affect the enjoyment of any of

his rights under the Convention (see, mutatis mutandis, Eur. Court HR,

Soering v. the United Kingdom judgment of 7 July 1989, Series A

no. 161, p. 33, para. 85; No. 19066/91, Dec. 5.4.94, D.R. 74, p. 179),

     As regards the applicant's complaint about the dismissal of his

request for conditional release, the Commission recalls that the

Convention does not guarantee, as such, a right to conditional release,

either (see No. 16266/90, Dec. 7.5.90, D.R. 65, p. 337).

     It follows that this part of the application is incompatible

ratione materiae with the Convention within the meaning of Article 27

para. 2 (Art. 27-2).

7.   Finally, the applicant complains  that he is under the obligation

to pay the fees relating to the proceedings before the Regional Court

and the costs of his detention.

     The Commission has examined these complaints but finds that in

so far as they have been substantiated and are within its competence,

they do not disclose any appearance of a violation of the rights and

freedoms set out in the Convention or in its Protocols.

     It follows that this part of the application is manifestly ill-

founded within the meaning of Article 27 para. 2 (Art. 27-2) of the

Convention.

     For these reasons, the Commission

     by a majority,

     DECLARES ADMISSIBLE, without prejudging the merits, the

     applicant's complaints concerning the length of his detention on

     remand and the length and fairness of the proceedings relating

     to his application for release which was dismissed by the Ziar

     nad Hronom District Court on 7 August 1995 and by the Banská

     Bystrica Regional Court on 12 October 1995;

     unanimously,

     DECLARES INADMISSIBLE the remainder of the application.

   M.-T. SCHOEPFER                              G.H. THUNE

      Secretary                                  President

to the Second Chamber                      of the Second Chamber