Resolution CM/ ResDH (2011)158 [1]

Execution of the judgments of the European Court of Human Rights

Kučera and Haris against the Slovak Republic

(Application No. 48666/99, judgment of 17 July 2007, final on 17 October 2007

Application No. 14893/02, judgment of 6 September 2007, final on 6 December 2007)

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 judgments transmitted by the Court to the Committee once they had become final;

Recalling that the violations of the Convention found by the Court in these cases concern delay in proceedings concerning the applicants ’ requests for release from detention on remand (violations of Article 5, paragraph 4); and also in the Kučera case : the length of his detention on remand (violation of Article 5, paragraph 3); the length of the criminal proceedings (violation of Article 6, paragraph 1), the right to respect for his home due to the disproportionate entry of armed police, and the right to respect for his private and family life due to refusal to allow the applicant to meet his wife during his detention on remand (violations of Article 8) (see details in Appendix);

Having invited the government of the respondent state to inform the Committee of the mea s ures taken to comply with its obligation under Article 46, paragraph 1, of the Conve n tion to abide by the judgments;

Having examined the information provided by the government in accordance with the Committee ’ s Rules for the application of Article 46, paragraph 2, of the Convention;

Having satisfied itself that, within the time-limit set, the respondent state paid the a p plicant the just satisfaction provided in the Kučera judgment (see details in Appendix),

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 erase their consequences so as to achieve as far as possible restitutio in integrum ; and

- general measures preventing similar violations;

DECLARES, having examined the measures taken by the respondent state (see Appendix), that it has exe r cised its functions under Article 46, paragraph 2, of the Convention in these cases and

DECIDES to close the examination of these cases.

Appendix to Resolution CM/ ResDH (2011)158

Information on the measures taken to comply with the judgments in the cases of

Kučera and Haris against the Slovak Republic

Introductory case summary

These cases concern the failure to examine promptly the applicants ’ requests for release from detention on remand, lodged in 2001 in the Haris case and in 1998 in the Kučera case (violations of Article 5§4).

The Kučera case also concerns the excessive length of the applicant ’ s detention on remand, between 1997 and 1999 (violation of Article 5§3).

Moreover, the Kučera case concerns a disproportionate interference in the applicant ’ s right to respect for his home due to the forcible entry of four armed and masked policemen into his apartment on 17/12/1997 in order to serve the applicant and his wife with a notice of indictment for extortion and to escort them to the police investigator (violation of Article 8).

The Kučera case also concerns a violation of the applicant ’ s right to respect for his private and family life due to the refusal to allow the applicant to meet with his wife over a period of thirteen months during his detention on remand, found not “necessary in a democratic society” (violation of Article 8).

I. Payments of just satisfaction and individual measures

a) Details of just satisfaction

Name and application number

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

Kučera (48666/99)

-

6 000 EUR

300 EUR

6 300 EUR

Paid on 17/01/2008

b) Individual measures

In the Haris case, the applicant was released and made no claim for just satisfaction before the European Court . In the Kučera case, the applicant was released, the European Court awarded just satisfaction in respect of non-pecuniary damage. Consequently, no other measure was considered necessary by the Committee of Ministers.

II. General measures

1) Violations of Article 5§4 due to the lack of prompt examination : The European Court noted that the delays in examining the applicants ’ requests for release were due, among other things, to the domestic courts ’ failure to secure service of their decisions promptly; procedural flaws which resulted in decisions ’ being quashed by higher courts; the unjustified length of time spent in examining complaints and the failure to pronounce decisions publicly.

Since the time of the facts in these cases, new legislation has come into force which addresses this. Section 2(6) of the Code of Criminal Procedure (301/2005) provides that the authorities are obliged to give priority to detention cases and deal with them promptly. Under Section 79(3) of the Code of Criminal Procedure, a detainee is entitled to apply for release at any time. Where the public prosecutor dismisses such an application, he shall immediately submit it to a competent judge, who shall rule on the application without delay. There is now case-law from the Slovak Constitutional Court interpreting obligations under the Code of Criminal Procedure and the Constitution in the light of the Convention case-law.

Furthermore, since the violations occurred, a remedy under Article 127 of the Constitution became available on 01/01/2002, enabling individuals to lodge a constitutional complaint that their rights made under the Convention have been violated. Under Article 127, the Constitutional Court has the power to award financial compensation and to order an authority to take necessary action (see § 41 of the Haris judgment). There is case-law of the Constitutional Court from 2003 onwards finding that domestic courts to have violated rights under the Convention and Constitution, on account of their failure to deal promptly with requests for release from detention (see inter alia , IV US 216/07 of 17/06/2008).

2) Violation of Article 5§3 in the case of Kučera : The European Court held that the reasons on which the domestic courts relied were neither relevant nor sufficient to justify the overall length of the applicant ’ s detention on remand.

Since the time of the facts in this case, new legislation came into force which addresses this violation. Section 76(1) of the Code of Criminal Procedure (301/2005) provides that detention in pre-trial proceedings can only last for “a necessary period of time”. Under Section 79(1), as soon as grounds for detention cease to apply, the detainee must be released. There is considerable case-law from the Slovak Constitutional Court from 2002 onwards which, referring to the European Court ’ s interpretation of the Convention, states that reasonable suspicion of the commission of a criminal offence may only be a temporary ground for detention in the initial stage of a case. Prolonged detention requires further, significant reasons for detention and the authorities must proceed with special diligence when dealing with detention issues (see inter alia, III. US 295/05, IV. US 253/05, III. US 199/05). This reasoning is also evident in the case-law of the Supreme Court, which cites judgments of the European Court in its decisions (see inter alia , decision no. Ntv I-20/02 of 10/01/2003).

In addition, in situations where domestic courts fail to provide relevant and sufficient reasoning for continued detention, the individual concerned may lodge a constitutional complaint under Article 127 of the Constitution (see above). There is case-law of the Constitutional Court from 2005 onward finding domestic courts to have failed to provide relevant and sufficient reasons for continued detention, ordering the release of the persons concerned and awarding them financial compensation (see inter alia , IV US 181/07 of 10/01/2008).

3) Violations of Article 8 in the case of Kučera : As regards the right of respect for one ’ s home, the European Court noted that the Police Corps Act of 1993 contains certain guarantees to avoid the abuse of authority in similar circumstances. However, these failed to prevent the violation in the present case (§122 of the judgment). With regard to the forced entry by police into the applicant ’ s home, the authorities note that this was an isolated incident. The police authorities have been notified of the judgment and requested to ensure that such an incident never happens again.

In relation to the refusal to allow the applicant to meet with his wife while in detention, the authorities also note that this was an isolated incident. Now, articles 19(1) and (2) of the Detention on Remand Act (221/2006) state that a person in custody is entitled to a visit of at least one hour every three weeks. More frequent visits may be permitted. The relevant authorities were familiarised with the judgment of the European Court . Under Article 59 of the Detention on Remand Act, a prosecutor supervises the observance of the relevant law and regulations in custodial institutions and in accordance with the Prosecution Act (153/2001) may, by written order, cancel or discontinue any contrary practice. Under section 31§1 of the Prosecution Act, a prosecutor may review the legality of procedures or decisions adopted by state authorities or domestic courts on the basis of a request, and is entitled to undertake steps to remedy any existing violation of domestic law, provided no other authority is specifically authorised to do so under legislation. If the above remedy fails to provide sufficient redress, the detained person may lodge a constitutional complaint under Article 127 of the Constitution (see above).

4) Publication, dissemination and training : The judgments in the Kucera and Haris cases were translated and published in Justičná Revue, No. 10/2007 and No. 12/2007 respectively. On 21/12/2007, the Haris judgment was sent out to all regional courts and to the Supreme Court by a circular letter from the Minister of Justice. The presidents of regional courts and the President of the Criminal Division of the Supreme Court have been asked to notify the judgment to all judges in regional and district courts, as well as those in the Supreme Court dealing with criminal cases. On 24/07/2008, the Kučera judgment was sent out to all regional courts and the Police Presidium by a letter from the Agent of the Slovak Republic before the European Court . The presidents of all the regional courts and the Police have been requested to notify the judgments to all courts within their jurisdiction and all district police officers.

In October 2009 the Office of the Agent of the Slovak Republic before the European Court of Human Rights, in co-operation with the General Prosecution Office, organised a seminar for public prosecutors on Article 5 of the Convention and the execution of European Court judgments against Slovakia .

III. Conclusions of the respondent state

The government considers that the measures adopted have fully remedied the consequences of the violations of the Convention found by the European Court in these cases, that these measures will prevent similar violations and that the Slovak Republic has thus complied with its obligations under Article 46 paragraph 1 of the Convention.

[1] Adopted by the Committee of Ministers on 14 September 2011 at the 1120th Meeting of the Ministers’ Deputies