Resolution CM/ ResDH (2013) 126

Masar against the Slovak Republic

Execution of the judgment of the European Court of Human Rights

(Adopted by the Committee of Ministers on 19 June 2013 at the 1174th meeting of the Ministers ’ Deputies)

(Application No. 66882/09, judgment of 3 May 2012)

The Committee of Ministers, under the terms of Article 46, paragraph 2, of the Convention for the Protection of Human Rights and Fundamental Freedoms, which provides that the Committee supervises the execution of final judgments of the European Court of Human Rights (hereinafter “the Convention” and “the Court”),

Having regard to the final judgment transmitted by the Court to the Committee in the above case and to the violation established;

Recalling that the respondent State ’ s obligation under Article 46, paragraph 1, of the Convention to abide by all final judgments in cases to which it is a party and that this obligation entails, over and above the payment of any sums awarded by the Court, the adoption by the authorities of the respondent State, where required:

- of individual measures to put an end to violations established and erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- of general measures preventing similar violations;

Having invited the government of the respondent State to inform the Committee of the measures taken to comply with the above-mentioned obligation;

Having examined the action report provided by the government indicating the measures adopted in order to give effect to the judgment, including the information provided regarding the payment of the just satisfaction awarded by the Court (see document DH-DD(2013)504);

Having satisfied itself that all the measures required by Article 46, paragraph 1, have been adopted,

DECLARES that it has exercised its functions under Article 46, paragraph 2, of the Convention in this case and

DECIDES to close the examination thereof.

ACTION REPORT

Application No. 66882/09 Masár against Slovakia

Judgment of 03/05/2012, final on 03/05/2012

I. Introductory case summary

In the present case the applicant complained that the length of the criminal proceedings against him, lodged in December 2005 but not discontinued until June 2010, had been incompatible with the “reasonable time” requirement, laid down in Article 6 § 1 of the Convention. On 25 November 2009 the Constitutional Court dismissed the applicant ’ s complaint about the length of the proceedings. It held that their duration was due to difficulties of an objective nature in obtaining relevant expert evidence.

In its judgment , the Court observed that the national authorities ’ handling of the case had not facilitated and had unjustifiably prolonged its timely completion in particular having regard to the length of time that it had taken to obtain a second expert opinion (§ 24). It considered that the length of the proceedings complained of was excessive and had failed to meet the “reasonable time” requirement (violation of Article 6 § 1) .

I. Payment of just satisfaction and other individual measures

Case

Application No.

Date of judgment

Just satisfaction (EUR)

Paid on

Masár

66882/09

03/05/2012

3 250

28/06/2012

The impugned criminal proceedings were discontinued on 2 June 2010 because the facts in issue did not constitute a criminal offence.

No other individual measures seem to be necessary.

II. General measures

a) Publication and dissemination

The judgment was published in the Judicial Review ( Justičná Revue) No. 6-7/2012. On 31 January 2013 the judgment was sent by the letter of the Minister of Justice to the General Prosecutor of the Slovak R epublic to acquaint public prosecutors of the General Prosecutor´s Office with the judgment, with a request to acquaint all public prosecutors of the Regional and the District Prosecutor´s Offices with the judgment (Annex No. 1).

As far as the practice of the Constitutional Court is concerned, the government submits as an example the judgment of the Constitutional Court (No. I. ÚS 52/2012) concerning a violation of Article 6 § 1 in the context of the length of pre-trial criminal proceedings. A summary of the Constitutional Court ’ s judgment is set out in the Annex attached to this action report.

b) Legislation

With respect to general measures taken to address excessive length of criminal proceedings, this case resembles Krumpel and Krumpelová v. Slovakia (Application No. 56195/00). The supervision of the execution of the judgment in the case Krumpel and Krumpelova was closed by the Committee of Ministers ’ F inal R esolution CM/ Re sDH (2007)10.

In addition, Article 30 § 1 of the Code of Criminal Procedure (Law No. 301/2005 Coll.), which entered into force on 1 January 2006, provides that a Prosecutor ’ s Office shall direct pre-trial proceedings and ensure the legality and efficiency thereof and represent public prosecution in court.

Article 167 of the Code of Criminal Procedure provides for the possibility of having an investigator ’ s actions reviewed, in the following terms: “The person facing charges and the victim shall have the right at any time in the course of the investigation to demand that a prosecutor [ensure] that delays in the investigation or shortcomings on the part of the investigator be eliminated. The right to make such a demand shall not be restricted by any time-limit. This demand, which must be submitted to the prosecutor at once, must be dealt with by the prosecutor without delay. The outcome of the review must be notified to the person making the demand.”

III. Conclusions of the respondent State

The government considers that the Slovak Republic has thus complied with their obligations under Article 46 § 1 of the Convention.

In Bratislava, 30 April 2013

Marica Pirošíková ,

Agent of the Slovak Republic

before the European Court of Human Rights

Appendix to the action report on Masár against Slovakia, No. 66882/09

In its judgment on case No. I. ÚS 52/2012, the Constitutional Court stated that:

“According to Article 6 § 1 of the Convention, in the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. When interpreting the right to a hearing without undue delays guaranteed in Article 48 § 2 of the Constitution, the Constitutional Court adopted the case law of the European Court of Human Rights to Article 6 § 1 of the Convention, concerning the right to a hearing within a reasonable time, thus no significant difference may be noticed between the contents of these rights.

In the view of the Constitutional Court, the purpose of the fundamental right to a hearing without undue delays in criminal pre-trial proceedings contrary to the judicial criminal proceedings shall be the removal of the state of legal uncertainty in which the prosecuted person might find itself upon the decision on brought charges against it. Legal uncertainty concerns the fact whether the authority acting during the pre-trial proceedings (generally the investigator) proposes the indictment to be brought, or other means of final decision, such as the suspending of the criminal prosecution, depending on the outcome of the evidence taking in the pre-trial proceedings. The Criminal Code supposes that the pre-trial proceedings may be marked also by delays, stating therefore during the proceedings on the applicant´s criminal matter, that the accused and the aggrieved shall at any time during the investigation have the right to request the prosecutor to remove the delays in the investigation or the shortcomings in the conduct of the investigator or the police authority. The request is not bound to time limit. Such a request, which must immediately be submitted to the prosecutor, must be handled without delay by the latter. The requesting party must be notified of the outcome of the examination. Therefore, legal uncertainty during pre-trial proceedings is removed only by a decision terminating such proceedings without pursuing the criminal proceedings, or a decision is delivered, upon which the criminal pre-trial proceedings finally terminate without bringing indictment of the criminally prosecuted person.

The Constitutional Court reviewed the issue of the existence of undue delays in the criminal pre-trial proceedings and the violation of the fundamental right according to Article 48 § 2 of the Constitution (and also the right according to Article 6 § 1 of the Convention), doing so with regard to the concrete circumstances of the case regarding in particular the factual and legal complexity of the matter (1), the applicant´s behavior (2), and the conduct of the Bratislava II District Directorate of the Police Corps and the District Prosecution (3). The Constitutional Court first off concluded that from the point of view of assessing the nature of the matter, it relied o n the general principle recognis ed also in the case law of the European Court of Human Rights, according to which the reasonable time for proceedings in criminal matters in consequence of an extraordinarily sensitive intervention with the sphere of personal rights and freedoms, connected to the course of the criminal proceedings, must be assessed more strictly. It may not be doubted that also the nature of the presently assessed serious criminal offences requires specific diligence by the law enforcement authorities and the general court to fulfill the purpose of the criminal proceedings, which means among others, that the law enforcement authorities and the general cour t have the obligation to organis e their procedural conduct in a way so as the matter is handled at soonest and terminated, so that the state of legal uncertainty of the parties, including the aggrieved parties is removed at the soonest.

Under the circumstances of the matter, where 12 years elapsed since the charges were brought against the applicant, moreover the Constitutional Court has already concluded in its judgment that the marked rights of the applicant in these proceedings were violated, the district prosecution failed to take into account the fact that due to the slow conduct of this state authority the applicant was finding himself in a state of legal uncertainty during the entire criminal proceedings. Apart from the listed assessment of the matter upon the three basic criteria, the Constitutional Court considered also the subject matter of the dispute (the nature of the matter) and its significance for the applicant. From the point of view of assessment of the nature of the matter, the Constitutional Court relied o n the general principle recognis ed also in the European Court ’ s case law, according to which the reasonable time for the proceedings in criminal matters in consequence of the extraordinarily sensitive intervention with the personal rights and freedoms, regularly connected to the course of the criminal proceedings, must be assessed more strictly.

Emerging from the above mentioned, the Constitutional Court concluded that the proceedings were marked by undue delays due to the actual conduct of the district prosecution in the present proceedings during the period after the delivery of the judgment of the Constitutional Court of 11 November 2010 and thus also the fundamental right of the applicant under Article 48 § 2 of the Constitution was violated and accordingly his right under Article 6 § 1 of the Convention.”