FIRST SECTION

DECISION

Application no. 45645/21 Vladimír PČOLINSKÝ against Slovakia

The European Court of Human Rights (First Section), sitting on 6 December 2022 as a Committee composed of:

Péter Paczolay , President , Alena Poláčková, Gilberto Felici , judges , and Liv Tigerstedt, Deputy Section Registrar,

Having regard to:

the application (no. 45645/21) against the Slovak Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 8 September 2021 by a Slovak national, Mr Vladimír Pčolinský, who was born in 1978 and lives in Bratislava (“the applicant”), and who was represented by Mr O. Urban , a lawyer practising in Bratislava;

the decision to give notice of the complaints characterised under Article 5 §§ 1 (c) and 4 of the Convention and concerning the applicant’s claim that in the determination of his case no or inadequate regard was had to a part of the case-file to the Government of the Slovak Republic (“the Government”), represented by their Agent, Mrs M. Bálintová, and to declare inadmissible the remainder of the application;

the parties’ observations;

Having deliberated, decides as follows:

SUBJECT MATTER OF THE CASE

1. The application concerns the lawfulness of the detention pending trial on corruption charges of the applicant, a former Director of the Slovak Intelligence Service (“the SIS”).

2. The charges in question concerned the applicant’s alleged exercise of his influence with a view to having the tapping of a phone used by a known businessman terminated.

3. The applicant’s detention was upheld by all levels of domestic courts. They noted that charges had been brought against the applicant and found that the suspicion against him was of the requisite intensity having regard to the pre-trial stage of the proceedings. To a significant degree, that suspicion was based on incriminating evidence given by two former members of the SIS who themselves had admitted having been involved in the corruption in question and who were cooperating with the investigation in return of benefits.

4. The ordinary courts reached their conclusion even having regard to the contents of a confidential enclosure to the case file (“the confidential enclosure”) which is understood as containing internal documentation of the SIS concerning the phone tapping and which the applicant considers exculpatory for him.

5. The final decision was rendered by the Constitutional Court on 29 March 2021.

6. On 31 August 2021 the Prosecutor General, exercising his extraordinary powers under Article 363 of the Code of Criminal Procedure, quashed the decision to bring charges against the applicant as being unlawful and arbitrary. He noted that evidence coming from collaborating perpetrators was to be scrutinised with particular attention. The incriminating evidence given by such witnesses in the applicants’ case was vitiated by inconsistencies. As it was not supported by any other evidence, it was insufficient for the applicant’s charges. The charges were accordingly quashed, and the applicant was released on the same day.

7. Before the Court, the applicant complained that in dismissing his constitutional complaint, the Constitutional Court had taken no account of the confidential enclosure.

THE COURT’S ASSESSMENT

8. The Court notes that it is uncontested that the ordinary courts had at their disposal the confidential enclosure. In their decisions, which the applicant then challenged before the Constitutional Court, they referred to it.

9. In its decision, the Constitutional Court noted that in his complaint the applicant had invoked among other elements the confidential enclosure, in support of his argument that it was excluded for him to have committed the offence for which he had been charged. As observed by the court of appeal, it was necessary to examine further the facts relied on by the applicant in his defence. However, at the pre-trial stage of the proceedings, the charges against the applicant had sufficient basis in evidence. Even though it did not give a specific answer to the applicant’s argument concerning the confidential enclosure, the Constitutional Court found that the court of appeal had adequately addressed all relevant aspects of the applicant’s detention.

10. In these circumstances, the Court finds that the essence of the applicant’s complaint is in fact his discontent with the domestic courts’ assessment of the justification and lawfulness of his detention, as a matter of substantive law, with any procedural aspects being encompassed in that complaint. The complaint should therefore be examined under Article 5 §§ 1 (c) and 4 of the Convention. In that context, the Government’s objection of non-exhaustion of domestic remedies under Article 35 § 1 of the Convention must be resolved.

11. The peculiarity of the applicant’s situation lies in the fact that the courts and the Prosecutor General reached opposite conclusions as to whether the charges against the applicant had sufficient basis in evidence. Leaving aside questions such as the standard of review applied by the courts and the Prosecutor General and of the relationship of their respective jurisdictions, it is a fact that in two subsequent decisions given on 28 June 2022 concerning the applicant’s later requests for release (case nos. IV. US 336/22 and IV. US 337/22), the Constitutional Court found that his situation fell within the ambit of the State Liability Act. In particular, the decision of the Prosecutor General annulling the applicant’s charges meant that his prosecution lost its basis and so did, by implication, his detention pending trial on those charges. His detention had accordingly been unlawful, and the applicant was eligible to claim compensation in respect of any pecuniary and non-pecuniary damage under section 6 § 1 of the State Liability Act.

12. The legal basis for a compensation claim in similar circumstances had previously been established by the Banská Bystrica Regional Court when ruling on an appeal no. 17Co/123/2019 in an unrelated case.

13. As the aforesaid decisions of Constitutional Court of 28 June 2022 specifically relate to the applicant’s individual circumstances, the existence of a compensation claim on his part is not undermined by certain distinctions between his case and that concerned in the appeal no. 17Co/123/2019.

14. In addition, it is noted that the present application was introduced on 8 September 2021, that is after the Prosecutor General’s decision of 31 August 2021 and that the compensation claim for which it provided basis may be filed within three years of the service of the annulling decision on the claimant (section 19 of the State Liability Act). Despite the Government’s objection to that effect, there has been no indication that the applicant has pursued any such a claim.

15. In these circumstances, the application 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.

Done in English and notified in writing on 12 January 2023.

Liv Tigerstedt Péter Paczolay Deputy Registrar President