Resolution CM/ResDH(2013)86

Michalak against Slovak Republic

Execution of the judgment of the European Court of Human Rights

(Application No. 30157/03, judgment of 8 February 2011, final on 8 May 2011)

(Adopted by the Committee of Ministers on 7 May 2013 at the 1170th meeting of the Ministers ’ Deputies)

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 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 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 its 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)298E );

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.30157/03 Michalak v. Slovak Republic

judgment of 08/02/2011, final on 08/05/2011

Introductory case summary

This case concerns a violation of Article 5 § 4 of the Convention on account of the lack of an effective procedure by which the lawfulness of the applicant ’ s remand in custody could be decided; a violation of Article 5 § 4 of the Convention on account of the lack of a speedy determination of the lawfulness of the applicant ’ s remand in custody and of his detention; and a violation of Article 5 § 5 of the Convention on account of the lack of an enforceable right to compensation in relation to the violations of Article 5 § 4 of the Convention found. All of the relevant events took place between 2002 and 2004.

The case also concerns a violation of Article 13, in conjunction with Article 8 of the Convention, on account of the lack of an effective remedy in 2005 in respect of the monitoring of the applicant ’ s telephone communications which took place prior to 2004.

I. Payment of just satisfaction and individual measures

a. Just satisfaction

Case

Application No.

Date of judgment

Just satisfaction (EUR)

Paid on

Michalak

30157/03

08/02/2011

10 000

23/06/2011

b. Individual measures

The Court awarded the applicant EUR 8 000 for non-pecuniary damage. The applicant has received the sum awarded by the Court and was already released from detention on remand.

The Court noted that the procedural dimension of the monitoring of the applicant ’ s telephone communications had to be distinguished from the protection of his private life and correspondence available to him under Articles 8 and 13 of the Convention. It concluded that although the applicant could arguably seek redress in the criminal courts in respect of potential infringements of his right to a fair trial, this had no direct connection with the applicant ’ s rights protected independently under Articles 8 and 13 of the Convention. Accordingly, the Court did not call into question the monitoring of the conversations in the context of the criminal trial. However, should the applicant now wish to seek the destruction of the records of his monitored telephone conversations, it would now be open to him to lodge a constitutional complaint under Article 127 of the Constitution (see below under General measures).

No other individual measures seem to be necessary.

II. General measures

a. With respect to the violation of Articles 5 § 4 and 5 § 5 of the Convention

With respect to the first violation of Article 5 § 4 (lack of an effective procedure by which the lawfulness of the applicant ’ s remand in custody could be decided), this case resembles the case Lexa v. Slovakia (No. 2), Application No. 34761/03. The supervision of the execution of the judgment in the case Lexa v. Slovakia (No. 2) was closed by the Committee of Ministers ’ final Resolution No. CM/ResDH(2012)53.

Concerning the second violation of Article 5 § 4 (lack of a speedy determination of the lawfulness of the applicant ’ s remand in custody and of his detention) this case resembles the case Kucera v. Slovakia (Application No. 48666/99). The supervision of the execution of the judgment in the case of Kucera v. Slovakia was closed by the Committee of Ministers ’ final Resolution No. CM/ResDH(2011)158.

Regarding violation of Article 5 § 5, the case resembles the case Pavletic v. Slovakia (Application No. 39359/98).The supervision of the execution of the judgment in the case of Pavletic v Slovakia was closed by the Committee of Ministers ’ final Resolution No. CM/ResDH(2011)34.

b. With respect to the violation of Article 13, in conjunction with Article 8 of the Convention

Since 2005, when the Constitutional Court dismissed the applicant ’ s complaint regarding the monitoring of his telephone calls, there has been a change in practice at the Constitutional Court such that it now examines such complaints under Article 127 of the Constitution.

Indeed, in paragraphs 97 and 98 of the judgment, the European Court noted that in cases No. I. US 774/05 (on 14 July 2006), I. US 117/07 (on 4 February 2009), and Ill. US 80/08 (27 May 2008), the Constitutional Court had found a violation of the complainants ’ rights and freedoms under Article 22 of the Constitution and under Articles 6 § 1 and 8 of the Convention on account of the monitoring of their telephone communications and had awarded them compensation in respect of non-pecuniary damage.

Thus, the law of the Slovak Republic and the relevant judicial practice now provide an effective remedy with regard to complaints about the monitoring of private communications in accordance with Article 13, taken in conjunction with Article 8 of the Convention.

This case does not require the adoption of any further general measures other than publication and dissemination.

c. Publication and dissemination

The judgment in the case was published in Justi č n á Revue No. 6-7/2011. By letter from the Minister of Justice of the Slovak Republic of 28 October 2011, the judgment was sent to the President of the Constitutional Court of the Slovak Republic with the request to give notice to all constitutional judges about it, to the General Prosecutor with the request to give notice to all prosecutors about it and to the President of the Criminal Chamber of the Supreme Court of the Slovak Republic with the request to give notice to all judges of that chamber about it. By letter of the same date, it was also distributed to Presidents of all regional courts with the request to give notice thereon to all judges of regional and district courts.

The judgment was given attention during the meeting of the Agent of the Slovak Republic before the European Court of Human Rights with judges and advisers of the Constitutional Court of the Slovak Republic, held on 23 June 2011, which was attended also by Mr Å ikuta, the judge of the European Court of Human Rights. The judgment was also part of a case study presented by the Agent of the Government of the Slovak Republic within the cyclic education of judges and prosecutors a serial of regional events, which was held in 2012 under the title “Newest case law of ECHR and its impacts on the decision making practice of domestic courts”. All events were organised in particular for civil and separately for criminal judges and prosecutors. In total, 12 one day events were held (31 January 2012 in Pezinok, 6 February 2012 in Bansk á Bystica, 7 February 2012 in Bansk á Bystrica, 8 March 2012 in Pezinok, 15 March 2012 in Kosice, 16 March 2012 in Kosice, 13 September 2012 in Kosice, 1 October 2012 in Bansk á Bystrica, 2 October 2012 in Bansk á Bystrica, 18 October 2012 in Kosice, 25 October 2012 in Pezinok. 6 November 2012 in Pezinok).

As for the education of prosecutors, on 7 to 9 October 2012, a seminar under the title of “Protection of Human Rights during preliminary proceedings” devoted to prosecutors, was held. Lecturers were besides representatives of Slovak and Czech prosecution also judges of the Constitutional Court of the Slovak Republic, agent of the Government of the Slovak Republic before the European Court of Human Rights and agent of the governmental delegate for representation of the Czech Republic before the European Court of Human Rights. The participants were among others informed about the contents of the ECHR judgments (including the present case) and particular attention was devoted to the rights of the aggrieved in criminal proceedings. All contributions were published in the Information reporter special of the General Prosecution of the Slovak Republic, which was distributed to all prosecutions.

Ill. 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, 28 February 2013

Marica Piro ší kov á

Agent of the Slovak Republic

before the European Court of Human Rights