THIRD SECTION

DECISION

Application no . 7517/10 Peter ÄŽURAÄŒKA against Slovakia

The European Court of Human Rights ( Third Section ), sitting on 13 May 2014 as a Chamber composed of:

Josep Casadevall , President, Alvina Gyulumyan , Ján Šikuta , Dragoljub Popović , Kristina Pardalos , Johannes Silvis , Iulia Antoanella Motoc , judges, and Santiago Quesada , Section Registrar ,

Having regard to the above application lodged on 25 January 2010 ,

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. The applicant, Mr Peter Ďuračka , is a Slovak national, who was born in 1960 and lives in Bratislava . He was represented before the Court by Mr B. Jablonka , a lawyer practising in Bratislava .

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

A. The circumstances of the case

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

1. Criminal proceedings against the applicant and his deprivation of liberty

4. On 30 October 2008 the Supreme Court quashed a first-instance judgment convicting the applicant of an offence. In its judgment the Supreme Court convicted the applicant of fraud.

The Supreme Court also quashed a sentence which had been imposed in a different set of proceedings in 2007 and which the applicant had then been serving. It imposed a consolidated five-year prison term and a fine on the applicant. The applicant attended the hearing and the judgment became final upon its delivery on 30 October 2008.

5. On the same day the Supreme Court ordered that the applicant start serving his prison term immediately. On 3 November 2008 the order was received by the prison where the applicant was detained.

6. The Supreme Court ’ s judgment was served on the applicant twice. A receipt signed by the applicant indicates that the Supreme Court served the judgment on him on 10 December 2008; a second receipt indicates that the Bratislava Regional Court (which dealt with the case at first instance) served the Supreme Court ’ s judgment on the applicant on 12 December 2008. The Regional Court also served the judgment on the applicant ’ s lawyer on 10 December 2008.

7. On 10 February 2009 a senior judicial officer at the Bratislava Regional Court issued a decision to take into account, for the purpose of serving the consolidated prison term imposed by the Supreme Court, the period in which the applicant had been remanded in custody from 8 August 2004 to 27 January 2005 as well as the period from 21 May 2007 to 3 November 2008, when he had served a prison sentence imposed on him in a different set of criminal proceedings in 2007.

8. Following a complaint by the applicant, a judge rectified the above-mentioned decision on 23 March 2009. In particular, the judge noted that the applicant had started serving the sentence imposed by the Supreme Court on 30 November 2008. The period during which he had been serving a different sentence as from 21 May 2007 and which was to be taken into account as regards the term of the consolidated sentence had therefore ended on 30 November 2008. The Regional Court judge ’ s decision was served on the applicant on 30 March 2009.

9. On 27 February 2012 the applicant lodged an appeal on points of law against the Supreme Court ’ s judgment of 30 October 2008. The proceedings are pending.

2. Proceedings before the Constitutional Court

10. On 12 February 2009 the applicant posted a complaint to the Constitutional Court. With reference to the criminal proceedings that had led to his conviction and detention , he alleged that his rights had been breach ed by the police, the prosecuting authorities and the courts , as well as by the administration of the prison where he had been detained.

11. In particular, the applicant alleged that his rights under Article 6 § 1 of the Convention had been breached , on a number of grounds, in the criminal proceedings leading to his conviction . The Supreme Court had delivered its final judgment no. 4 To 2/2008 o n 30 October 2008. The applicant stated that that judgment had been served on him through the Bratislava Regional Court on 12 December 2008.

12. The applicant further alleged that Article 5 § 1 of the Convention had been breached in that he had been detained without any legal ground s from 30 October to 3 November 2008 , because the order imposing the service of the prison sentence which the Supreme Court had issued on the former date had been delivered to the prison on the latter. The applicant claimed that he had lodged a complaint in that respect immediately after he had established that fact in the file.

Lastly , the applicant asked the Constitutional Court to appoint a lawyer to assist him in the proceedings.

13. The Constitutional Court rejected the complaint on 27 May 2009 as having been lodged outside the statutory time-limit of two months. With reference to the case file , it held that the Supreme Court ’ s judgment with reasons had been served on the applicant in prison on 10 December 2008. The time-limit had thus started to run on 11 December 2008 and had expired on 11 February 2009. However, the applicant had posted his complaint on 12 February 2009, that is belatedly. That conclusion was also relevant in respect of the applicant ’ s allegation that his rights had been breached before the above -mentioned judgment of the Supreme Court.

14. The Constitutional Court ’ s decision stated that in those circumstances it was not necessary to decide on the applicant ’ s request for the appointment of a lawyer. The decision was served on the applicant on 8 October 2009.

B. Relevant domestic law and practice

15. Section 53(3) of the Constitutional Court Act 1993 provides that a complaint to the Constitutional Court can be lodged within a period of two months from the date on which the decision in question has become final and binding , or on which a measure has been notified , or on which notice of other interference has been given. As regards measures and other interferences, this period commences when the plaintiff could have become aware of them.

16. The Constitutional Court has held that in cases where a final decision in the context of criminal proceedings is to be served on the person concerned, the time-limit of two months under s ection 53(3) of the Constitutional Court Act 1993 starts to run on the date of its service on that person, regardless of the date of its service on his or her lawyer (for example, decision file number IV. ÚS 131/08 of 17 April 2008, with further references).

COMPLAINTS

17. The applicant complain ed, under Article 6 § § 1 and 3 (c) of the Convention , that his right to a fair hearing by a tribunal had been breached as a result of the Constitutional Court ’ s refusal to appoint a lawyer to represent him in the proceedings and to examine the merits of his complaint.

18. The a pplicant also allege d that Article 5 § 1 of the Convention had been breached in that he had been detained without any relevant legal ground s from 30 October to 3 November 2008.

THE LAW

A. Alleged violation of Article 6 §§ 1 and 3 (c) of the Convention

19. The applicant complained that his right to a fair hearing by a tribunal under Article 6 §§ 1 and 3(c) of the Convention had been breached as a result of the Constitutional Court ’ s refusal to appoint a lawyer to represent him and to examine the merits of his complaint. The relevant parts of Article 6 read as follows:

“1. In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by a[n] tribunal ...

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;”

20. The Government argued, among other things, that the Constitutional Court had correctly concluded that the applicant had failed to submit his complaint in time. As his complaint had had to be rejected as being inadmissible on that ground, the Constitutional Court ’ s refusal to appoint a lawyer to represent the applicant had not breached his rights under Article 6 of the Convention.

21. The applicant disagreed. He questioned the basis for and the effect of the service of the judgment directly by the Supreme Court, as it had been the task of the court which had decided at first instance to ensure the service of the final decision. The Bratislava Regional Court had actually served the Supreme Court ’ s judgment on the applicant on 12 December 2008 and he had, therefore, submitted his constitutional complaint within the statutory time-limit.

22. The Court first notes that following the introduction of the application, the applicant challenged certain shortcomings in the criminal proceedings leading to the Supreme Court ’ s judgment of 30 November 2008 by means of an appeal on points of law. The proceedings are pending.

Accordingly, to the extent that the alleged shortcomings in the criminal proceedings raised in the applicant ’ s constitutional complaint of 12 February 2009 coincide with the matters raised in the subsequent appeal on points of law, the applicant ’ s complaint about unfairness of the proceedings must be rejected under Article 35 §§ 1 and 4 of the Convention as being premature.

23. To the extent that the applicant ’ s constitutional complaint related to other aspects of the criminal proceedings in respect of which no appeal on points of law was available, the Court reiterates that t he rules on time-limits are undoubtedly designed to ensure the proper administration of justice and legal certainty. Those concerned must expect those rules to be applied. However, the rules in question, or the application of them, should not prevent litigants from making use of an available remedy. S ince the issue concerns the principle of legal certainty, it raises not only a problem of the interpretation of a legal provision in the usual way, but also a problem of the unreasonable construction of a procedural requirement that may prevent a claim from being examined on the merits, thereby entailing a breach of the right to effective protection of the courts (see Melnyk v. Ukraine , no. 23436/03, § 23 , 28 March 2006 , with further references).

24. In the present case the Constitutional Court established, with reference to a delivery receipt signed by the applicant, that the Supreme Court ’ s judgment of 30 November 2008 had been served on him on 10 December 2008. As the applicant had introduced his complaint on 12 February 2009, the Constitutional Court concluded that he had failed to respect the statutory time-limit of two months (see paragraph 13 above).

25. The Court finds no indication in the documents before it that, in coming to its conclusion on the applicant ’ s complaint, the Constitutional Court interpreted and applied section 53(3) of the Constitutional Court Act 1993 contrary to its usual practice.

26. Furthermore, and even assuming that there might have been doubts as regards the decisive date in connection with the time-limit for introducing the constitutional complaint, the Court considers that in the circumstances of the present case the risk inherent in using the remedy at the time in question was for the applicant to assume. In reaching this conclusion , the Court has taken into account , inter alia , the fact that the time - limit for lodging a complaint under Article 127 of the Constitution is as long as two months, that there is no indication that the applicant did not have ample opportunity to lodge his complaint earlier and that, consequently, the essence of the remedy at issue was not impaired (see, mutatis mutandis , Michalko v. Slovakia , no. 35377/05 , § 139 , 21 December 2010 ).

27. Accordingly, the applicant ’ s argument that by rejecting his complaint the Constitutional Court acted contrary to his right under Article 6 § 1 of the Convention cannot be upheld.

28. In view of the above conclusion, and since the Constitutional Court was prevented from examining the merits of the applicant ’ s complaint because he failed to comply with the formal requirements, the refusal to appoint a lawyer to represent the applicant before the Constitutional Court cannot be considered as contrary to his rights under Article 6 §§ 1 and 3 (c) of the Convention.

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

B. Alleged violation of Article 5 § 1 of the Convention

30. The applicant alleged that Article 5 § 1 of the Convention had been breached in that he had been detained without any relevant legal ground from 30 October to 3 November 2008.

31. The Government argued that the applicant had not exhausted domestic remedies as he had not filed his complaint to the Constitutional Court in accordance with the formal requirements. In any event, he had started serving his consolidated prison term as from 30 October 2008; his detention during the period at issue was therefore in compliance with Article 5 § 1 (a) of the Convention.

32. The Court notes that the legal qualification of the applicant ’ s deprivation of liberty during the period at issue was addressed in detail in the Bratislava Regional Court ’ s decisions of 10 February and 23 March 2009 (see paragraphs 7 and 8 above). In particular, on the latter date a judge held that under domestic law the applicant had started serving the sentence imposed by the Supreme Court on 30 November 2008.

33. It does not appear from the documents submitted that the applicant sought redress in respect of that finding before the Constitutional Court. He thus failed to use the remedies available in Slovakia.

It follows that this complaint must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

For these reasons, the Court, unanimously ,

Declares the application inadmissible.

Santiago Quesada Josep Casadevall Registrar President