THIRD SECTION

DECISION

Application no . 10212/11 Milan PODHRADSKÝ against Slovakia

The European Court of Human Rights ( Third Section ), sitting on 25 August 2015 as a Chamber composed of:

Josep Casadevall , President, Luis López Guerra , Ján Šikuta , Kristina Pardalos , Valeriu Griţco , Iulia Antoanella Motoc , Branko Lubarda , judges, and Marialena Tsirli , Deputy S ection R gistrar ,

Having regard to the above application lodged on 3 February 2011 ,

Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,

Having deliberated, decides as follows:

THE FACTS

1 . T he applicant, Mr Milan Podhradský , is a Slovak national, who was born in 1937 and lives in Šaľa . He was represent ed before the Court by Ms D. Matušková , a lawyer practising in Bratislava.

The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková.

A. The circumstances of the case

2 . The facts of the case, as submitted by the parties, may be summarised as follows.

3 . On 22 May 2001 the applicant was abducted by masked persons. Under the threat of killing him and his daughter they obliged the applicant to sign a document on transfer of his share in a business company. He was released on 23 May 2001.

1. Criminal proceedings

4 . After his release the applicant contacted the Regional Directorate of the Police Corps in Nitra. He was heard several times by that authority. Subsequently the case was transferred to the Šaľa District Office of Investigation which heard the applicant again. These interviews included those on 29 May and 11 October 2001. In both, the applicant submitted that, during the incident, amounts of money in various foreign currencies had been taken away from him. In addition, in the latter questioning, he submitted that, by the forced transfer of his business share, he had suffered damage worth the equivalent of some 72,000 euros (EUR) and that he wished to join the criminal proceedings as an aggrieved party under Article 43 §§ 1 and 2 of the 1961 Code of Criminal Procedure (Law 141/1961 Coll., as applicable at the relevant time – “the 1961 CCP” – see paragraphs 18 and 19 below).

5 . The interview of 11 October 2001 followed the opening by the Å ala District Office of Investigation of a criminal investigation earlier the same day into the suspicion that the offences of extortion and unlawful restriction of personal liberty might have been committed by one or more persons unknown.

6 . Between December 2001 and 2007 the police authority stayed the investigation and the Public Prosecution Service (“the PPS”) at several levels ordered that it be resume d on several occasions. In October 2007 the case was transferred to the Office for Comba ting Organised Crime (“the O C OC”).

7 . On 29 January 2008 two persons, A. and B., were charged with extortion and restricting the applicant ’ s personal liberty.

8 . On 18 April 2008 the applicant was questioned by the investigator. He submitted that, in terms of compensation, he claimed EUR 180,126 in respect of the business share and EUR 4,300 in respect of the foreign currency taken away from him.

9 . On 16 September 2008 the proceedings against B. were terminated as her prosecution had become statute barred.

10 . On 22 October 2008 the proceedings were split in two parts. The first set of proceedings concerned A. , who was suspected of having ordered and organised the applicant ’ s abduction. The second set aimed at identification of the persons who had abducted the applicant. Those proceedings were stayed on 17 August 2010 but then resumed following an order by the PPS of 8 November 2012. They are still pending before the O C OC.

11 . Meanwhile, in the first set of proceedings, on 19 March 2009 charges of extortion and restricting personal liberty had been brought against another individual , C.

12 . On 10 May 2010 A. and C. were indicted to stand trial in the Trnava District Court on the charges mentioned above.

13 . On 10 May 2012 the District Court discontinued the proceedings. It observed that the police and the investigative authorities had generated such delays at the pre-trial stage of the p roceedings that much of the evidence had lost validity. There had been repeated unlawful and arbitrary actions by these authorities such as, for example, the discontinuation of the proceedings against B. but not against the other defendants. As a result, there was no valid evidence showing that A. and C. had committed the offences of which they stood accused.

14 . On 8 January 2013 the Trnava Regional Court quashed the decision of 10 May 2012 and remitted the matter to the District Court for a new determination, following appeals by the applicant and the PPS.

15 . The proceedings are still pending.

2. Constitutional proceedings

16 . On 12 April 2010 the applicant lodged a complaint with the Constitutional Court. He alleged, inter alia , that the O C OC and several offices of the PPS involved in the above proceedings had breached his right to a fair hearing within a reasonable time.

17 . On 29 June 2010 the Constitutional Court declared the complaint inadmissible as being manifestly ill-founded.

With reference to Article 46 § 3 of the 2005 Code of Criminal Procedure (Law 30 1/ 2005 Coll., as a mended - “the 2005 CCP” - see paragraphs 20 et seq . below), it held that a person who considers to have suffered damage as a result of a criminal offence may claim to be a victim of a breach of his or her right to a hearing within a reasonable time only after charges of that offence have been brought against a specific person .

The Constitutional Court therefore had the power to examine only the proceedings subsequent to the bringing of charges against A. and B. on 29 January 2008. As the applicant ’ s complaint was only concerned with the pre-trial phase of the proceedings, the period under examination ended on 10 May 2010 when the case was transmitted to the District Court by way of the indictment. The period under consideration had therefore lasted two years and some three months which was not excessively long. In support of this conclusion, the Constitutional Court observed that except for one four ‑ month p eriod of inactivity the investigator had been acting expeditiously.

The decision was served on the applicant 6 September 2010.

B. Relevant domestic law and practice

1. The 1961 CCP and the relevant practice

18 . Article 43 §§ 1 and 2 provide, inter alia , that an aggrieved party in criminal proceedings may attach a third-party claim for damages to the proceedings and request that the court convicting the person charged with a criminal offence ( obvinený ) order the latter to pay compensation for the damage caused to the aggrieved party by the offence.

19. According to a summary of the relevant judicial practice published in the Collection of Judicial Decisions and Standpoints ( Zbierka súdnych rozhodnutí a stanovísk ) of the Supreme Court under no. 22/1979, a third ‑ party claim for damages is properly made if it specifies the defendant against whom it is made, the ground on which it is made, and its amount.

2. The 2005 CCP

20 . As from 1 January 2006, the 1961 CCP was entirely replaced by the 2005 Code. In so far as relevant, the 2005 Code contains provisions (Article 46 §§ 1 and 3) similar to those of the 1961 CCP.

21 . A third-party claim must specify the ground and scope of the claim and m a y only be attache d to the criminal proceedings if the matter of compensation has not already been decided upon in civil or other proceedings (Article 46 §§ 3 and 4).

22 . Pursuant to Article 287 § 1, where a court convicts a person charged with an offence which has caused damage to third persons within the meaning of Article 46 § 1, as a rule it orders him or her to compensate such damage, provided that the claim has been filed correctly and in due time.

3. Constitutional Court practice and report

23. The Constitutional Court held (see for example its judgments in cases nos. I. ÚS 157/02; III. ÚS 183/05; I. ÚS 18/06 and I. ÚS 67/2010) that a third party who joined criminal proceedings with a claim for damages has the right to a hearing “without unjustified delay” (Article 48 § 2 of the Constitution) as such a duly lodged claim excludes the possibility of having it decided upon in civil proceedings (Article 83 of the Code of Civil Procedure).

24. In a decision of 12 December 2013 in case no. II. US 660/2013, relying on its previous decisions nos. I. US 212/07, III. US 109/06, III. US 254/10, III. US 508/12 and IV. US 188/13, the Constitutional Court upheld the principle that, in accordance with the Court ’ s judgment in the case of Krumpel and Krumpelová v. Slovakia (no. 56195/00, 5 July 2005), an aggrieved party of a criminal offence, who had attach ed a third-party claim for damages to the criminal proceedings, was entitled to the guarantees of the civil limb of Article 6 of the Convention. However, the aggrieved party only benefited from the right to a hearing within a reasonable time under Article 6 after a charge had been brought against a specific person. Despite a direct argument by the complainant to that effect, the Constitutional Court gave no answer to the fact that in its judgment in the case of Bíro v. Slovakia (no. 2) (no. 57678/00, § 44, 27 June 2006), the Court had found that, as a matter for principle, civil-party claims for damages made in Slovakia jointly with or subsequently to the lodging of a criminal complaint enjoy the guarantees in question from the moment they were made.

25 . In connection with the present application, the Constitutional Court produced a report dated 11 June 2013 concerning the applicability of the right to a hearing within a reasonable time under Article 6 § 1 of the Convention and its constitutional equivalent to third-party claims for damages attach ed to criminal proceedings ( adhézne konanie ). The report may be summarised as follows.

26 . A party aggrieved by a criminal offence may attach a third-party claim for damages to the criminal proceedings concerning that offence under Article 46 § 1 of the 2005 CCP (see paragraphs 2 0 et seq . above). Neither the statue nor the case-law of the Constitutional Court make this right dependant on whether or not the defendant has been charged with the offence in question. However, it is only once a charge is brought against a specific person that a concrete legal relationship is created between the aggrieved party and the person charged and it is only then that the aggrieved party becomes entitled to assert the third-party claim against the charged person in the criminal proceedings.

Whether or not a person has been charged with the offence concerned is not a criterion for the aggrieved party ’ s being able to make a third-party claim in the criminal proceedings but for that party ’ s being able to rely on the right to a hearing within a reasonable time in relation to that claim.

COMPLAINTS

27 . The applicant complained under Articles 6 § 1 and 13 of the Convention that his right to a fair hearing within a reasonable time was breached in the context of the criminal proceedings to which he had attached his third-party claim for damages and that he had had no effective remedy at his disposal in that respect.

THE LAW

A. Right to a hearing within a reasonable time and to an effective remedy in that respect

28 . Invoking Articles 6 § 1 and 13 of the Convention , t he applicant alleged a violation of his right to a hearing within a reasonable time and to an effective remedy in the third-party proceedings referred to above.

The relevant part of Article 6 § 1 reads:

“In the determination of his civil rights and obligations ... everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”

Article 13 provides:

“Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

1. The parties ’ arguments

29. The Government relied on the Constitutional Court ’ s decision in the present case, its practice, its report and other material and submitted that the right to a hearing within a reasonable time in relation to third-party claims for damage s attached to criminal proceedings in Slovakia was only applicable from the moment when a specific person was charged with the criminal offence in question. Therefore, on the facts of the present case, that right had only been applicable from 29 January 2008. As the applicant ’ s constitutional complaint had only been concerned with the alleged unjustified delay at the pre-trial stage of the proceedings, the period under the Constitutional Court ’ s examination had ended on 10 May 2010 when the case had moved to its trial phase. The Constitutional Court had properly examined this period and had concluded that the complaint was manifestly ill-founded, a conclusion that the Government considered to be correct. The Article 13 complaint in that respect was manifestly ill-founded as it lacked an arguable basis. As the trial phase of the criminal proceedings had not been contested before the Constitutional Court, domestic remedies had not been exhausted and the relevant part of the Article 13 complaint was manifestly ill-founded.

30. The applicant disagreed and emphasised that he had specified his third-party claim in terms of its amount as early as on 11 October 2001. In the subsequent period, he had been unable to pursue it effectively because the police and the investigative authorities had been unlawfully and arbitrarily obstructing the proceedings. Furthermore, he contended that the bringing of charges against a specific person was of no relevance as the legal relationship between the aggrieved party and the perpetrator was established when the damage was sustained and when the proceedings commenced. Moreover, his complaint was concerned with the overall length of the proceedings and not any separated part of them. As their trial phase was not vitiated by any particular delays, there was no need for him to complain of those proceedings before the Constitutional Court.

2. The Court ’ s assessment

31 . The Court observes that the applicability of the reasonable time guarantee of Article 6 § 1 of the Convention to third-party claims attached to criminal proceedings in Slovakia has not been disputed between the parties in principle. That principle was established by the Court as early as in its judgment in the case of Krumpel and Krumpelová (cited above, §§ 35-41) , and as such it appears to have been accepted by the domestic courts (see paragraphs 23 and 24 above).

32 . As to the applicability of this guarantee at the pre-trial stage of the proceedings in particular, the Court notes that it was not questioned before it in Krumpel and Krumpelová (cited above), Bíro (no. 2) (cited above) and Loveček and Others (cited above), has not been disputed between the parties in the present case, and the Court has establish nothing to doubt it (see, for example, Perez v. France [GC], no. 47287 /99, §§ 57, 61, 65 and 70, ECHR 2004 I; Gorou v. Greece (no. 2) [GC], no. 12686/03, §§ 24 and 25, 20 March 2009; Patrono , Cascini and Stefanelli v. Italy , no. 10180/04, §§ 30-33, 20 April 2006; and Sottani v. Italy ( dec. ), no. 26775/02, 24 Februar y 2005).

33. The specific point in dispute in the present case concerns rather the specific starting point at the pre-trial stage of the proceedings from which the right to a hearing within a reasonable time applies to third-party proceedings in Slovakia. In particular, this controversy revolves around whether or not the application of such guarantees is dependent on and subsequent to the bringing of charges against a specific person.

34. The Court observes that the parties ’ argument essentially concentrates on a question of interpretation and application of national law, which it is not its primary role to deal with. The Court does not consider necessary to settle this argument because, under the Convention, the decisive factor for the determination of the starting point for the applicability of the said guarantees on the facts of the present case is different.

35 . In that regard, the Court observes that the third-party proceedings fall within the civil limb of Article 6 of the Convention. The guarantees of that limb apply to determination s of civil rights and obligations. These concepts have an autonomous Convention meaning. In establishing their content in a given case, the legislation of the State concerned is not without importance.

36 . The Court notes that the applicant asserts the right to a hearing within a reasonable time in relation to his th ird-party claim for damages. In the domestic law and practice, such claim is considered to be properly made if it specifies the defendant against whom it is made, the ground on which it is made, and its amount (see paragraph 19 above). On the basis of these elements the Court considers it reasonable to conclude that, in order to initiate a “dispute” over “ civil rights and obligations ” by means of a third-party claim for damages in Slovakia, the claim has to be specific inter alia in terms of its defendant.

37 . On the facts of the present case, the applicant submitted during his questioning on 29 May and 11 October 2001 that, as a result of the offences allegedly committed against him, he had sustained damage consisting of the foreign currency and the business share that had been forcibly taken away from him. He specified the amount of that damage and submitted that he wished to join the criminal proceedings as an aggrieved party under Article 43 §§ 1 and 2 of the 1961 CCP.

38 . The Court notes specifically that at the given time the proceedings were directed against one or more persons unknown, that the applicant specified no concrete defendant of his claim, and that there is no indication of any specific defendant of that claim having been identified in the proceedings until the bringing of charges against A. and B. on 29 January 2008.

39 . The Court finds that, in these circumstances, any actual determination of any civil right or obligation on the part of the applicant in the criminal proceedings in the present case could only have commenced on the date last mentioned. The Court will therefore consider the length of the proceedings as from that date.

40 . B efore the Constitutional Court, the applicant only challenged the length of the proceedings at their pre-trial phase. Before that court, h e complained neither of the trial phase of the proceedings as such, nor of the proceedings as a whole, including their trial and pre-trial phase s . The re fore, as regards the trial phase and as regards the proceedings as a whole , he cannot be considered as having complied with the requirement of exhaustion of domestic remedies under Article 35 § 1 of the Convention (see Obluk v. Slovakia , no. 69484/01, § 62, 20 June 2006).

41 . The period under the Constitutional Court ’ s consideration commenced on 29 January 2008 and ended on 10 May 2010. It thus lasted two years, three months and eleven days. The reasonableness of the length of this period must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicants and the relevant authorities and what was at stake for the applicants in the dispute (see, among many other authorities, Frydlender v. France [GC], no. 30979/96, § 43, ECHR 2000-VII).

42 . The Court notes that the Constitutional Court found one four-month period of inactivity attributable to the investigator and that the proceedings under its examination had otherwise been expeditious and not in breach of the reasonable time requirement.

43 . In view of the subsidiary nature of its review and to the extent that the relevant part of the application has been substantiated, the Court has found no reasons for disagreeing with the Constitutional Court ’ s assessment. The complaint under Article 6 § 1 of the Convention about the length of the third-party proceedings is therefore manifestly ill-founded. For similar reasons, it may not be considered arguable for the purposes of Article 13 of the Convention. The relevant part of the complaint under that provision is therefore also manifestly ill-founded (see Boyle and Rice v. the United Kingdom , 27 April 1988, § 52, Series A no. 131).

44 . It follows that the complaint of the length of the third-party proceedings and of the alleged lack of an effective remedy in that respect must be rejected under Article 35 §§ 1, 3 (a) and 4 of the Convention.

B. Remaining complaints

45 . The applicant also alleged a violation of his right to a fair hearing and to an effective remedy in the above third-party proceedings.

46 . However, in the light of all the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that these remaining allegations do not disclose any appearance of a violation of the rights and freedoms set out in the Convention or its Protocols.

It follows that the remainder of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 17 September 2015.

Marialena Tsirli Josep Casadevall              Deputy Registrar President