FOURTH SECTION

PARTIAL DECISION

AS TO THE ADMISSIBILITY OF

Application no. 62219/00 by Tobi áš LOYKA against Slovakia

The European Court of Human Rights (Fourth Section), sitting on 4 January 2005 as a Chamber composed of:

Sir Nicolas Bratza , President , Mr J. Casadevall , Mr M. Pellonpää , Mr R. Maruste , Mr S. Pavlovschi , Mr J. Borrego Borrego , Mr J. Šikuta, judges , and Mrs F . Elen s -Passos , Deputy Section Registrar ,

Having regard to the above application lodged on 31 July 2000 ,

Having deliberated, decides as follows:

THE FACTS

The applicant, Mr Tobi áš Loyka, is a Slovakian national, who was born in 1947 and lives in Bratislava .

A. The circumstances of the case

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

The applicant has a share in a commercial company (“the company”) and is engaged in its management. The company had originally the legal form of a limited liability company and had its registered seat in Bratislava . It was then transformed into a joint stock company , changed its business name and moved its seat to Banská Bystrica and than back to Bratislava . The company ' s business includes extraction , processing and distribution of peat.

The company ' s title to its peat extraction site is in dispute and the company is involved in several litigations concerning its operations.

1. The applicant ' s criminal proceedings

On 22 November 1999 the applicant was arrested and charged with extortion ( Article 235 §§ 1 and 2 of the Criminal Code ) and making violent threats (Article 197a of the Criminal Code) it being alleged that on 20 November1999 he had used a shotgun to force a guard to remove a barrier from an access road to the company ' s premises in Suchá Hora.

On 24 November 1999 a judge of the Dolný Kubín District Court ( Okresný súd ) Mrs S. remanded the applicant in custody finding that there was a danger that he would continue or complete his criminal activity within the meaning of Article 67 § 1 (c) of the Code of Criminal Procedure. The judge arrived at this conclusion observing t hat there were two witnesses against the applicant , ha nd grenades, cartridges and a self- explosive device had been found in the company ' s premises , t he applicant had several previous convict ions for offences of a violent nature and he was currently standing trial on charges of slander and assault on a public official.

On 25 November 1999 the applicant represented by a lawyer challenged th e decision of 24 November 1999 by a complaint ( sťažnosť ) . He argued i n particular that the decision failed to specify with the requisite clar it y the danger o f hi s continuing or complet ing his criminal activity. According to him no such risk existed and he should accordingly be release d .

On 14 December 1999 the Žilina Regional Court ( Krajský súd ) dismissed the applicant ' s complaint of 25 November 1999 as unfounded . It held that the applicant ' s 14 previous convictions and the circumstance of the case justified his detention under Article 67 § 1 (c) of the Code of Criminal Procedure . The Regional Court decided in a private session ( neverejné zasadnutie ) and a copy of its decision was served on the applicant on 3 January 2000 .

In the meantime, on 16 December 1999 , the applicant ' s lawyer filed a request for the applicant ' s release on bail with the District Court. On 20 December 1999 the request was transmitted to the Dolný Kubín District Prosecutor ( Okresný prokurátor ) who was competent to de termine it at first instance . As the District Prosecutor rejected i t, he became obliged by virtue of Article 72 § 2 of the Code of Criminal Procedure t o refer the request to the District Court. He did so on 22 December 1999 .

On 28 December 1999 the applicant filed another request for release with the District Prosecutor .

On 29 December 1999 further charges were brought against the applicant , namely a charge of illegal possession of arms (Article 185 § 2 (a) of the Criminal Code ) and another count of extortion (Article 235 §§ 1 and 2 (b) of the Criminal Code ) .

On 30 December 1999 the applicant made a written submission to the Prosecutor General. He expressed the view that his prosecution was illegal, abusive and arbitrary and i nvited the Prosecutor General “to enter into the proceedings” and review the way in which his case was being handled .

On 30 December 1999 the District Court judge Mrs S. dismissed the request of 16 December 1999 . The judge considered that the applicant ' s nature, the strong suspicion against him and the circumstances of the case still justified his detention . The decision was made in private and a copy of it was served on the applicant on 3 January 2000 .

On 4 January 2000 the applicant ' s lawyer challenged the decision of 30 December 1999 by a complaint .

On 7 January 2000 the District Prosecutor dismissed the applicant ' s request of 28 December 1999 and referred it to the District Court.

On 29 February 2000 the Regional Court dismissed the complaint of 4 January 1999 having fully endors ed the reasons given by the District Court. The Regional Court ' s decision was made in private and a copy of it was served on the applicant on 15 March 2000 .

On 15 March 2000 the applicant ' s lawyer lodged another request for the applicant ' s release with the District Prosecutor. He argued that the factual background of the case was rather confused, that his client was innocent and was merely seeking to mount an effective defence and that there was no need to deprive him of liberty. The Prosecutor dismissed this request and , on 27 March 2000 , referred it to the District Court.

On 7 April 2000 the District Court judge Mrs S. dismissed the requests of 28 December 1999 and 15 March 2000 for the applicant ' s release. S he noted that further charges had been brought against the applicant and held that his continuous detention was justified. The decision was made in private and a copy of it was served on the applicant on 12 April 2000 .

The applicant and his lawyer challenged the decision of 7 April 2000 by a complaint . Th e y argued inter alia that the District Court judge Mrs S. was biased against the applicant as she had already been found biased against him in civil litigation concerning the company (see below).

On 18 April 2000 the Prosecutor General referred the applicant ' s request of 30 December 1999 that he “enter into the proceedings” to the District Court as he had i nterpreted it a s a request for the applicant ' s release and had found no reasons for acceding to i t.

On 26 April 2000 the applicant was indicted to stand trial before the District Court on the above charges.

On 30 May 2000 the Regional Court dismissed the complaint of the applicant and his lawyer against the decision of 7 April 2000 . Observing that the applicant had previously been convicted 14 times and that he was currently being prosecuted for several offences , t he Regional Court found that h is continued detention was still warranted . T he Regional Court further found n o reasons for disqualify ing the District Court judge Mrs S. from the case. The Regional Court decided in private and a copy of its decision was served on the applicant on 5 June 2000 .

On 5 June 2000 the District Court judge Mrs B. dismissed the applicant ' s request of 30 December 1999 for release which had originally been lodged with the Prosecutor General and later refe rred to the District Court. The judge found that the request was premature pursuant to Article 72 § 2 of the Code of Criminal Procedure . This provision did not allowed for a n unsuccessful request for release to be repeated without introducing new arguments or information earlier than 14 days after the unsuccessful request had been determined by a final decision. T he most recent decision in the present case was that of the Regional Court of 30 May 2000 . It was given less than 14 days ago and the applicant ' s request under examination contained no i nformation other than that which had already been considered in i t . The decision was made in private and a copy of it was served on the applicant on 8 June 2000 .

On 15 June 2000 the applicant challenged the District Court judge Mrs B. and the entire bench of the District Court as well as the entire bench of the Regional Court on grounds of bias . He argued inter alia that all judges of the District Court had already been found biased against him and were therefore disqualified from dealing with litigation concerning the company (see below).

On 16 August 2000 the Regional Court dismissed the applicant ' s challenge of 15 June 2000 and decided that the applicant ' s case would remain with the Dolný Kubín District Court as the court of first instance. Referring to a decision of the Supreme Court of 11 April 2000 the Regional Court found that it was called upon to determine the applicant ' s challenge despite the fact that it was partially directed against its own judges. The Regional Court noted that , in response to the challenge , the District Court judge Mrs B. had stated that she considered herself to be personally biased against the applicant due to his persistent personal invectives against her. She felt that she could not guarantee her objectiveness in dealing with the applicant ' s case and requested that she be removed from the case . The other judges of the District Court expressed similar positions. The Regional Court however found no good reasons for disqualify ing Mrs B. or any other judge of the District Court. The fact that the applicant had behaved abusively towards them could not be accepted as a ground for discharging them from their duty to ct objectively and to stay aloof. If they believed that the applicant ' s behaviour amounted to a criminal offence, they were free to seek protection by filing a criminal complaint against him on that account . The Regional Court finally found that the fact that the Dolný Kubín District Court had been disqualified from dealing with litigation concerning the company had no binding effect in the criminal proceedings against the applicant .

On 13 September 2000 the applicant again requested that he be released. The request was dismissed by the District Court on 27 September 2000 and, on complaint, by the Regional Court o n 22 November 2000 . Both courts decided in private , finding that there was a strong suspicion against the applicant , that an indictment had already been filed against him , that he had had a long history of violent offences and that he was currently suspected of having committed several other offences . The applicant ' s continu ed detention was therefore still justified under Article 67 § 1 (c) of the Code of the Criminal Procedure .

On 10 November 2000 the applicant submitted another request for release and the District Court judge Mrs B. dismissed it on 10 January 2001 .

On 16 January 2001 the applicant again unsuccessfully demanded that he be released.

The District Court heard the case on 21 February, 23, 24 and 25 April, 2 8 , 29 , 30 and 31 May and 1, 28 and 29 June 2001.

At the hearing of 25 April 2001 the applicant requested that he be released and the District Court judge Mrs B. immediately dismissed the request.

At the hearing of 29 June 2001 the applicant again requested his release, the request was granted and he was released . The hearing was then adjourned sine die as new evidence had to be taken.

The next hearing was s cheduled f or 6 February 2002 but it had to be adjourned as the applicant ' s lawyer did not appear for health reasons .

On 26 August 2002 the District Court cancelled a hearing that had been listed for 9 September 2002 , the applicant claiming that he was unable to attend due to health problems.

On 30 January 2003 the District Court judge Mrs B. remanded the applicant in custody . Relying on Article 67 § 1 (a) of the Code of Criminal Procedure s he found that he was trying to frustrat e his prosecution by provid ing untrue information ab o ut his health and by not staying at his permanent address. On 17 March 2003 the Regional Court dismissed a complaint by the applicant against his detention.

On 29 April 2003 the applicant was release d .

On 3 June 2003 the applicant lodged a complaint with the Constitutional Court under Article 127 of the Constitution. He relied on Article 17 § 2 of the Constitution and c ontest ed the decisions of 30 January and 17 March 2003 and the procedure s leading to them. In particular he challenged the finding that he had been avoiding his prosecution as wrongful.

On 19 September 2003 the Constitutional Court declared the applicant ' s complaint inadmissible as manifestly ill ‑ founded. It found that the District Court and the Regional Court had adequately established the relevant facts and supported their decisions with appropriate reasoning. Their decisions had an undisputed legal basis and were consistent with applicable constitutional principles and established judicial practice.

The criminal proceedings against the applicant are still pending.

2 . Other relevant criminal proceedings against the applicant and c ivil proceedings concerning the company

On 13 July 1999 the Žilina Regional Court decided that the entire bench of the Dolný Kubín District Court was disqualified from dealing with a civil action against the company concerning the validity of a legal act and ruled that the case was to be determined at first instance by the Čadca District Court. The Regional Court inter alia noted that a ll judges of the Dolný Kubín District Court had requested the ir disqualification and that judges S . and B. specifically considered themselves b ias ed due to insults by the applicant and the company.

On 12 October 1999 the Regional Court decided that the Dolný Kubín District Court was not excluded from determining an i ndictment against the applicant for slander and assault o n a public official. The Regional Court did so reject ing a claim of judge Mrs B. joined by a ll other judges of th e District Court that t hey considered themselves to be biased against the accused applicant due to his persist e n t insulting statements in civil cases concerning the company.

By two decisions of 29 October 1999 the Regional Court decided that the Dolný Kubín District Court was disqualified from dealing with, respectively, a civil action of the company in a property dispute and proceedings against the company for enforcement of a debt. Both matters were referred to the Čadca District Court. The Regional Court noted that in both cases all judges of the Dolný Kubín District Court including judges S. and B. considered themselves to be biased as a consequence of persist e n t personal invectives from the applicant.

By two decisions of 30 October 1999 the Regional Court decided that the Dolný Kubín District Court was disqualified from dealing with, respectively, a request of the company for an nterim measure and proceedings against the company for enforcement of a debt. Both matters were referred to the Čadca District Court. The Regional Court noted that in both cases all judges of the Dolný Kubín District Court including judges S. and B. considered themselves to be biased as a consequence of persist e n t invectives from the applicant.

On 30 September 2000 the Regional Court decided that the entire bench of the Dolný Kubín District Court including judges S. and B. were disqualified from dealing with a civil action of an individual against the company for protection of personal integrity. The Regional Court so decided on the request of the District Court judges who considered themselves to be biased due to insults from the applicant and another executive of the company. The action was referred to the Čadca District Court.

B. Relevant domestic law and practice

1. The Constitution

Article 11 as in force until 1 July 2001 provided as follows:

“International instruments on human rights and freedoms ratified by the Slovak Republic and promulgated under statutory requirements shall take precedence over national laws provided that the international treaties and agreements guarantee greater constitutional rights and freedoms.”

The relevant part of Article 17 § 2 provides that:

“No one shall be prosecuted or deprived of liberty except for reasons and in a manner provided for by law ... ”

The relevant part of Article 127 as in force from 1 January 2002 reads as follows:

“1. The Constitutional Court shall decide on complaints lodged by natural or legal persons alleging a violation of their fundamental rights or freedoms or of human rights and fundamental freedoms enshrined in international treaties ratified by the Slovak Republic ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court.

2. When the Constitutional Court finds that a complaint is justified, it shall deliver a decision stating that a person ' s rights or freedoms set out in paragraph 1 were violated as a result of a final decision, by a particular measure or by means of other interference. It shall quash such a decision, measure or other interference. When the violation found is the result of the failure to act, the Constitutional Court may order that [the authority] which violated such rights or freedoms should take the necessary action. At the same time the Constitutional Court may return the case to the authority concerned for further proceedings, order that such an authority abstain from violating fundamental rights and freedoms ... or, where appropriate, order that those who violated the rights or freedoms set out in paragraph 1 restore the situation existing prior to the violation.

3. In its decision on a complaint the Constitutional Court may grant adequate financial satisfaction to the person whose rights under paragraph 1 were violated.” ...

Article 130 as in force until 30 June 2001 provided that :

“The Constitutional Court may commence proceedings on a petition ( podnet ) presented by a corporation or an individual who claim a violation of their rights.”

2. Code of Criminal Procedure

Detention on remand is governed by the provisions of the first Section ( Oddiel ) of the fourth Chapter ( Hlava ).

Under Article 67 § 1 (a) an accused can be remanded in detention if there are reasonable grounds for believing that he or she would abscond or hide in order to avoid prosecution or punishment, especially when he or she has no permanent address.

Pursuant to Article 67 § 1 (c) an accused person can also be remanded in detention when there are reasonable grounds for believing that he or she would continue criminal activity, accomplish an attempted offence or commit an offence which he or she prepared or threatened.

As from 1 October 2002 Article 67 was amended by Act No. 422/2002 Coll. in that a third paragraph was added to it. It sets out the conditions under which an accused may be taken again in to detention in connection with the same matter after he or she ha s been released. Under its letter (a) an accused can be taken again into detention if he or she is on the run or in hiding in order to avoid prosecution or punishment or if he or she does not stay at the address that he or she gave to the authorities, refuses to accept official mail or does not observe orders from the authorities. Under letter (c) an accused person can also be taken again in to detention if he or she has been charged with a further intentional offence.

Under Article 72 § 2 an accused person who is detained on remand has the right to request release at any time. When the public prosecutor dismisses such a request at the pre ‑ trial stage of the proceedings, he or she shall submit the request immediately to the court. The court shall rule on such a request without delay. In the event that the request is dismissed, the accused may renew it fourteen days after the decision becomes final unless he or she invokes other reasons.

Private sessions ( neverejné zasadnutie ) of courts in criminal matters are governed by the provisions of Chapter 15. Article 240 stipulates that decisions are to be taken in private if the law does not envisage their being taken at a hearing ( hlavné pojednávanie ) or in a public session ( verejné zasadnutie ).

Under Article 242 a private session requires the permanent presence of all members of the court ' s chamber and of a minutes recorder (paragraph 1). Until 1 October 2002 , unless the law provided otherwise, the presence of the public prosecutor at a private session was possible but not obligatory (paragraph 2). As from 1 October 2002 this provision was abolished by virtue of Act No. 422/2002 Coll. The presence of any other person at a private hearing is excluded (former paragraph 3, now paragraph 2).

3. The Constitutional Court ' s practice

A ccording to its case ‑ law under the former Article 130 § 3 of the Constitution, the Constitutional Court lacked jurisdiction to draw legal consequences from a violation of a petitioner ' s constitutional rights. It could neither grant damages to the person concerned nor impose a sanction on the public authority liable for the violation found.

COMPLAINTS

1. The applicant complains under Article 5 § 3 of the Convention that the judge s before whom he was brought after his arrests did not possess the impartiality inherent in the status of a “judge or other officer authorised by law to exercise judicial power” and that, therefore, the conditions of that A rticle cannot be conside red as having been fulfilled .

2. The applicant further raises several complain t s under Article 5 § 4 of the Convention.

In particular he complains that the District Court judges S. and B. who decided on the requests for his release were not impartial and that his objections to them on grounds of bias have not been examined adequately.

The applicant also complains that the decisions in respect of his complaints against his detention (14 December 1999 and 17 March 2003) and the decisions in respect of his request s for release ( 30 December 1999, 29 February , 7 April, 30 May, 5 June, 27 September and 22 November 2000 and 10 January 2001) were taken in private and without his or his lawyer ' s participation.

The applicant further complains that the procedure on the requests for his release w as not adversarial in that the courts decided upon the requests after the request s had initially been rejected by prosecutors and the applicant had no chance to submit his comments in respect of the prosecutors ' decisions.

Finally the applicant complains that the requests for his release were not handled “speedily”.

3. Relying on Article 6 § 1 of the Convention the applicant also complains that his indictment is being determined by judges who lack impartiality.

4. The applicant lastly complains under Article 13 of the Convention that he had no effective remedy at his disposal in respect of his complaints and that the proceedings concerning his complaints against his detention and his request for release lacked a public, oral and adversarial character and were not “speedy”.

THE LAW

1. The applicant complains that , after h aving been arrest ed, he was not brought before “a judge or other officer authorised by law to exercise judicial power” as required by Article 5 § 3 of the Convention which pr o v i de 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.”

a) As to the procedure following the applicant ' s arrest on 22 November 1999 , the Court notes that t he applicant was brought before a District Court judge who remanded him in custody on 24 November 1999, that the Regional Court dismissed the applicant ' s complaint of the alleged unlawfulness of his detention on 14 December 1999 and that a copy of the Regional Court ' s decision was served on the applicant on 3 January 2000 . The application was however submitted to the Court on 31 July 2000 .

It follows that this part of the complaint was introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

b) As regards t he applicant ' s arrest in January 2003 , the Court notes that the applicant was brought before a District Court judge who remanded him in detention on 30 January 2003 and that the Regional Court dismissed the applicant ' s complaint against his detention on 17 March 2003 . The applicant then unsuccessfully turned to the Constitutional Court under Article 127 of the Constitution as in force from 1 January 2002 . In his constitutional complaint he object ed that h is detention was arbitrary and unjustified in violation of Article 17 § 2 of the Constitution . The applicant has however failed to show that he raised before the Constitutional Court the complaint that he is no w making before the Court in respect of the alleged lack of impartiality of the judge before whom he was brought after t h e arrest .

It follows that th is part of the application must also be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.

2. The applicant also complains that he had no access to proceedings by which the lawfulness of his detention would be decided speedily as required by Article 5 § 4 of the Convention under which:

“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.”

a) Insofar as th is part of the application concerns the applicant ' s complaint of 25 November 1999 against the decision of 24 November 1999 to remand him in detention , the Court has noted above that this complaint was determined by the Regional Court on 14 December 1999 and that a copy of the Regional Court ' s decision was served on the applicant on 3 January 2000. The application was however submitted to the Court on 31 July 2000 .

It follows that this part of the complaint wa s introduced out of time and must be rejected in accordance with Article 35 §§ 1 and 4 of the Convention.

b) As to the complaint that the District Court judges S. and B who determined the requests for the applicant ' s release did not satisfy the requirement of impartiality inherent in the guarantees of Article 5 § 4 of the Convention and that the applicant ' s objections to that effect were not examined adequately , the Court recalls that it is not always necessary that the procedure under Article 5 § 4 be attended by the same guarantees as those required under Article 6 § 1 of the Convention for criminal or civil litigation (see Megyeri v. Germany , judgment of 12 May 1992, Se ries A no. 237-A, p. 11, § 22). The procedure applied must however have a judicial character and provide guarantees appropriate to the kind of deprivation of liberty in question (see Schiesser v. Switzerland , judgment of 4 December 1979 , Series A no. 34, p. 13, § 30).

In the present case after the requests for the applicant ' s release had been examined at first instance by the District Court, the applicant had the opportunity to challenge its decisions by means of a complaint to the Regional Court , the impartiality of which the Court has found no prima facie reasons to doubt .

Moreover the applicant ' s challenges of bias were addressed by the Regional Court in its decision of 30 May and 16 August 2000 . I n the latter decision in particular the Regional Court examined the matter at length and found that there were no grounds for excluding any of the District Court ' s judges from dealing with th e applicant ' s case. The Regional Court supported its decision on this point by reasoning which does not appear manifestly arbitrary or unreasonable (see , mutatis mutandis , De Cubber v. Belgium , judgment of 26 October 1984 , Series A no. 86, p . 19, § 33) .

In light of these consid erations the Court finds that the present case discloses no appearance of a violation of Article 5 § 4 of the Convention on account of the alleged lack of impartiality of the District Court judges involved in determining the requests for the applicant ' s release.

It follows that th is part of the application is manifestly ill ‑ founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

c) The remaining complaints that the applicant raises under Article 5 § 4 of the Convention concern the lack of a public, oral and adversarial character and the lack of “speediness” of the proceedings which the applicant initiated in order to have the lawfulness of his detention decided.

In so far as this part of the application relates to the applicant ' s complaint of 3 February 2003 against the decision of 30 January 2003 to remand him in detention which was decided by the Regional Court on 17 March 2003 , the Court o bserve s that the applicant has not shown that he raised a complaint to this effect before the Constitutional Court under Article 127 of the Constitution as in effect from 1 January 2002.

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

In so far as th is part of the application relates to the proceedings in respect of the reque sts for the applicant ' s release , the Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

3. The applicant further complains that the judges involved in his criminal proceedings lack impartiality as required under Article 6 § 1 of the Convention which, insofar as relevant, provides that:

“In the determination of ... any criminal charge against him, everyone is entitled to a fair ... hearing ... by an independent and impartial tribunal established by law.”

The Court notes that the criminal proceedings against the applicant are still pending. It follows that this part of the application is premature and as such must be rejected under Article 35 §§ 1 and 4 of the Convention for non ‑ exhaustion of domestic remedies.

4. The applicant finally complains under Article 13 of the Convention in conjunction with Article 5 § 4 of the Convention that he had no effective remedy in respect of the private character of the decision-making process concerning his detention and the lack of a n adversarial and speedy process. Article 13 of the Convention 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.”

a) To the e xtent this part of the application relates to the proceedings on the applicant ' s complaint of 25 November 1999 against the decision of the previous day to remand him in detention, the Court has already noted above that this complain t was determined by th e Regional Court on 14 December 1999 and that a copy of the Regional Court ' s decision was served on the applicant on 3 January 2000. The application was however submitted to the Court on 31 July 2000 .

It follows that the complaint of alack of ineffective remedy in this respect wa s introduced out of time and must be rejected in accordance with Article 35 §§1 and4 of the Convention.

b) I n so far as this part of the application concerns the applicant ' s detention following his arrest in January 2003, the Court notes that the applicant had at his disposal the possibility of raising his complaints under Article 5 § 4 of the Convention before the Constitutional Court under Article 127 of the Constitution as in force from 1 January 2002. The Court has found no reasons for doubting the effectiveness of this remedy in the present case (see, mutatis mutandis , Andrášik and Others v. Slovakia (dec.), nos. 57984/00, 60237/00, 60242/00, 60679/00, 60680/00, 68563/01, 60226/00 , ECHR 2002-IX ).

It follows that the applicant ' s complaint of a lack of an effective remedy in this respect is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

c ) Insofar as this part of the application relates to the requests for the applicant ' s release, t he Court considers that it cannot, on the basis of the case file, determine the admissibility of this complaint and that it is therefore necessary, in accordance with Rule 54 § 2 (b) of the Rules of Court, to give notice of this part of the application to the respondent Government.

For these reasons, the Court unanimously

Decides to adjourn the examination of the applicant ' s complaint of a violation of Article 5 § 4 taken alone and in conjunction with Article 13 of the Convention on account of an alleged lack of public, oral, adversarial and “speedy” proceedings concerning the requests for the applicant ' s release and an alleged lack of an effective remedy in that respect ; and

Declares the remainder of the application inadmissible.

Françoise Elens-Passos Nicolas Bratza D eputy Registrar President