Resolution CM/ ResDH (2012)53 [1]

Execution of the judgment of the European Court of Human Rights

Lexa against Slovak Republic

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”) [2] ,

Having regard to the judgment transmitted by the Court to the Committee once it became final;

Case name (App. No.)

Judgment of

Final on

Lexa (34761/03)

05/01/2010

05/04/2010

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded in the judgments, the adoption by the respondent State, where appropriate, of individual measures to put an end to the violations and as far as possible to remedy their consequences for the applicant and general measures to prevent new, similar violations;

Having invited the authorities of the respondent State to provide an action plan concerning the measures proposed to execute the judgment;

Having, in accordance with the Committee ’ s Rules for the application of Article 46, paragraph 2, of the Convention, examined the action report provided by the government (see action report, document DH ‑ DD(2011)1165E );

Having noted that the respondent State paid the a p plicant the just satisfaction, as provided in the judgment;

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

DECIDES to close the examination thereof.

ACTION REPORT

App. No. 34761/03

Lexa v. Slovakia (no. 2), judgment of 05/01/2010, final on 05/04/2010

Introductory case summary

This case concerns the violation of the applicant ’ s right adequately to challenge the grounds for his detention (violation of Article 5 § 4). The applicant, a former director of the Slovakian intelligence service, was arrested in December 2002 on charges of incitement to commit murder, abuse of authority and mishandling of classified state secrets. The applicant lodged a complaint against the Bratislava I District Courts decision to remand him in custody. On 7 January 2003 he requested that his counsel should be allowed to consult the file. The regional court allowed the counsel to examine the file from 9 to 12 a. m. on 14 January 2003. It dismissed the applicant ’ s complaint at a session held in camera on 14 January 2003, shortly after the applicant ’ s counsel had consulted the file. The applicant was released in June 2003 and the proceedings against him were discontinued in September 2006 for lack of proof.

The European Court considered that although the regional court allowed the applicant ’ s counsel to consult the file, neither he nor the applicant had had sufficient opportunity to take cognisance of the evidence; they had had no practical possibility of submitting arguments, written or oral, to challenge its reliability (§§ 72-73 of the judgment).

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Cost and expenses

Total

2 000 euros

5 000 euros

7 000 euros

Paid on 06/07/2010

b) Individual measures

The violation found appears to be of an isolated nature. No other individual measures seem to be necessary.

II. General measures

a) Legislation

Article 69§1 of the Code of Criminal Procedure (the Act no. 301/2005 Coll.), effective from 1 January 2006, gives the accused person the right to consult the file with certain restrictions enumerated therein. Article 69 § 2 provides that, at the pre-trial stage, the public prosecutor or the police authority can only refuse a person access to a file concerning him or her for exceptional reasons, mainly if no such measures preventing the frustration or substantial hindering in accomplishing the purpose of the criminal proceedings may be taken. The prosecutor shall be obliged to speedily review the gravity of the reasons upon which the law enforcement authority rejected such right upon the individual ’ s request affected by the rejection. If the right to consult the file and the remaining right in connection therewith listed in section 1 were rejected by the prosecutor upon grave reasons upon the individual ’ s request affected by the rejection, the superior prosecutor shall be obliged to speedily review the reasonability of such rejection.

With effect from 1 February 2009, under Article 69§6, the pre-trial judge shall have identical rights as the law enforcement authority has if dealing with the file within its competence during the proceedings. However, if the pre-trial judge in the proceedings on detention prior to taking the decision on it rejects the accused or the counsel the right to consult the entire file, concurrently with the rejection of such right it shall mark and grant access of such consultation to the accused or its counsel to those parts of the file containing facts or evidence considered in deciding on detention pursuant to Articles 71 to 87 and 339. The Code of Criminal Procedure (the Act no. 301/2005 Coll.) was not in force at the time of the violation in this case but that nonetheless, the applicant benefitted from a similar provision under Article 65 of the Code of Criminal Procedure (Act no. 141/1961 Coll.) then in force.

The law of the Slovak Republic then meets the requirements of the European Convention and the case does not require adoption of legislative measures.

b) Publication and dissemination

The judgment was published in the Judicial Revue ( Justičná Revue) No. 4/2010. The judgment was sent to the General Prosecutor, to the Constitutional Court , to the Criminal Chamber of the Supreme Court and was distributed to all regional and district courts.

III. Conclusions of the respondent state

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

In Bratislava , 13 December 2011

Marica Pirošiková

Agent of the Slovak Republic

before the European Court of Human Rights

[1] Adopted by the Committee of Ministers on 8 March 2012 at the 11 36 th Meeting of the Ministers’ Deputies .

[2] See also the Recommendations adopted by the Committee of Ministers in the context of the supervision of judgments of the European Court of Human Rights and in particular Recommendation Rec (2004)6 of the Committee of Ministers to member State s on the improvement of domestic remedies.