Resolution CM/ResDH(2009)136 [1]

Execution of the judgment of the European Court of Human Rights

Nešták against Slovakia

(Application No. 65559/01 , judgment of 27 February 2007 final on 27 May 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 judgment transmitted by the Court to the Committee once it had become final;

Recalling that the violations of the Convention found by the Court in this case concern the failure to respect the adversarial principle in proceedings concerning the lawfulness of the applicant ' s detention on remand; violation of the applicant ' s right to be presumed innocent until proved guilty according to law and the lack of impartiality of the court which convicted him (violations of Articles 5, paragraph 4, 6, paragraph 2 and 6, paragraph 1) (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 judgment;

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 judgment (see details in Appendix),

Recalling that a finding of violations by the Court requires, over and above the payment of just satisfaction awarded by the Court in its 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

- of 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 this case and

DECIDES to close the examination of this case.

Appendix to Resolution CM/ResDH(2009)136

Information about the measures to comply with the judgment in the case of

Nešták against Slovakia

Introductory case summary

This case concerns the failure to respect the adversarial principle in proceedings in which the applicant challenged the legality of his detention on remand (violation of Article 5§4). Between 2000 and 2001, decisions in the proceedings were taken at in camera hearings which neither the applicant nor his lawyer could attend, but which were attended by the public prosecutor.

The case also concerns a breach of the presumption of innocence (Article 6§2). In a decision extending his detention on remand the Regional Court stated, before the conclusion of the trial, that the applicant was guilty of the offence with which he had been charged.

Finally, the case concerns lack of impartiality of the court which convicted the applicant (violation of Article 6§1). The Regional Court Chamber which tried and convicted the applicant was composed of the same judges who had earlier decided on extending the applicant ' s detention, that included the statement that he was guilty.

I. Payment of just satisfaction and individual measures

a) Details of just satisfaction

Pecuniary damage

Non-pecuniary damage

Costs and expenses

Total

-

EUR 6000

EUR 1000

EUR 7000

Paid on 01/08/2007

b) Individual measures

On 25/03/2003 the applicant was released on parole.

The Slovak Code of Criminal Procedure provides the possibility of re-opening proceedings following a judgment of the European Court finding that the fundamental rights or freedoms of the accused were violated by a decision of a prosecutor or a court of the Slovak Republic, or in the proceedings which preceded it, provided that the negative effects of this decision cannot be otherwise redressed (Article 394§4).

The European Court awarded the applicant just satisfaction in respect of non-pecuniary damage sustained.

In these circumstances, n o further individual measure was considered to be needed .

II. General measures

Violation of Article 5§4 : Following changes in force from 01/01/2006, the Code of Criminal Procedure (Act No.301/2005) now includes a number of provisions designed to prevent this violation. Section 72(1) and (2) of the Code provide that “An accused person must be heard before issue of a decision to remand or not remand him/her in custody”. A decision varying the terms of detention cannot be taken in private where the accused has requested a public hearing or indicated his/her wish to be heard and that he/she would like to present relevant, new facts. Section 293(1-10) provides that where an accused person is detained, a public session must not be held in their absence where the law imposes imprisonment of more than five years.

Violations of Articles 6§2 and 6§1 : The judgment of the European Court was translated and published in Justičná Revue No 6-7/2007. On 21/12/2007, it 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 brought the judgment to the attention of all judges in the Supreme, regional and district courts.

The Slovak authorities insisted, furthermore, on the direct effect of the European Convention in Slovakia . This direct effect will, according to the authorities, ensure that in future, national judges will apply the European Courts ' ruling in similar cases.

III. Conclusions of the respondent state

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

[1] Adopted by the Committee of Ministers on 3 December 2009 at the 1072nd meeting of the Ministers’ Deputies