Communicated on 19 May 2014

THIRD SECTION

Application no. 43096/12 Miloslav NIKOLOV against Slovakia lodged on 4 July 2012

STATEMENT OF FACTS

1 . The applicant, Mr Miloslav Nikolov , is a Slovak national, who was born in 1973 and lives in Bratislava. He is represented before the Court by Mr L. Štanglovič , a lawyer practising in Šaľa .

The circumstances of the case

2 . The facts of the case, as submitted by the applicant, may be summarised as follows.

1. Background

3 . On 3 September 2009 the applicant was charged with criminal damage and attempted murder and arrested on those charges.

4 . On 7 September 2009 the applicant was remanded in detention pending trial on those charges, his detention having been found necessary because there was the risk that, if left at liberty, he would continue in criminal activities within the meaning of Article 71 § 1 (c) of the Code of Criminal Procedure (Law no. 301/2005 Coll., as amended – “CCP”).

5 . On 3 March 2010 he was indicted to stand trial on the charges mentioned above. Subsequently, his detention was found still to be necessary, its term was extended, and his two requests for release were dismissed.

2. Request for release of April 2011

6 . On 26 April 2011 the applicant again submitted a request for release, with or without bail, and offered a pledge under Article 80 § 1 (b) of the CCP that, if released, he would live in accordance with the law. He considered that there were no concrete grounds justifying his detention, the courts having previously selectively concentrated on certain elements in the available evidence and having arbitrarily disregarded others.

7 . The request fell to be determined by the Bratislava I District Court ( Okresn ý súd ) where it was received on 29 April 2011.

8 . On 2 May 2011 the District Court ordered that the request be determined in the framework of a hearing ( hlavné pojednávanie ) scheduled for 25 May 2011. That hearing however did not take place due to long-term incapacity of the judge in charge of the case for work.

9 . Once the judge ’ s incapacity came to an end, it was decided that the applicant ’ s request be examined in the framework of a public session ( verejné zasadnutie ) scheduled for 1 August 2011. That session however did not take place because the applicant ’ s lawyers were not present.

According to the applicant, his lawyers ’ absence was due to the fact that the summons had only been send to them on 27 July 2011 and the lawyers received them only after the date of the scheduled session.

This version of events is however contradicted by that portrayed by the Bratislava Regional Court ( Krajsk ý súd ) in its observations in reply to the applicant ’ s later constitutional complaint (see paragraphs 18 et seq. below). According to those observations, one of the applicant ’ s lawyers had demonstrably received the summonses on 27 July 2011.

10 . The request was finally examined at public session on 31 August 2011, at which the applicant withdrew his offer of financial surety in lieu of his detention. At the conclusion of the session, the District Court dismissed his request for release as well as his offer of pledge of lawful conduct. Once the court ’ s decision was pronounced, the applicant used his right to state for the record that he wished to appeal, the grounds for appealing to be submitted later within the statutory period for appealing.

11 . The written version of the decision of 31 August 2011 was served on the applicant ’ s lawyer on 27 September 2011 and on the same day he submitted in writing the applicant ’ s grounds for appealing.

12 . However, already the previous d ay, that is to say 26 September 2011, sitting in chambers ( neverejné zasadnutie ), the Regional Court had dismissed what it referred to as the applicant ’ s interlocutory appeal against the decision of 31 August 2011.

3. Reasons for dismissing the applicant ’ s request and appeal

(a) District Court

13 . In the written version of its decision of 31 August 2011, in two sentences and without offering any more reasons, the District Court held that the ground for detaining the applicant under Article 71 § 1 (c) of the CCP still persisted as previously found by the courts and that, in view of the nature of the suspected offence and the applicant ’ s person, a pledge of lawful conduct was not an adequate substitute for detention.

(b) Regional Court

14 . In its decision of 26 September 2011, the Regional Court observed that the applicant had failed to provide any reasons for his orally declared appeal against the decision of 31 August 2011. It recapitulated the procedural history of the applicant ’ s trial and detention and cited the relevant statutory provisions, including that of Article 80 § 2 of the CCP, pursuant to which if a person was detained pending trial on a charge of what was considered at law to be a particularly serious offence, such as the applicant in the present case, a pledge of lawful conduct could only be accepted in lieu of that person ’ s detention if it was justified by exceptional circumstances.

The Regional Court fully concurred with the District Court ’ s conclusions and found no error or deficiency in its reasoning and the underlying procedure.

In addition, the Regional Court held that the evidence in the case file still indicated that there was a justified suspicion against the applicant and that there was a risk that, if released, he would continue in the given criminal activity since he was a person inclining to criminal actives. It was true that the applicant had one previous conviction for a violent offence and that that conviction had been expunged from his criminal record. That conviction nevertheless impacted on the assessment of the applicant ’ s personality, in respect of which the Regional Court also referred to evidence from a sworn expert.

Moreover, the Regional Court observed that it was the purpose of the detention in the applicant ’ s case to ensure the applicant ’ s availability for the proceedings and to protect the society from the completion, repetition or continuation of his criminal deed.

As to the applicable time-frames, the Regional Court observed that some delays in deciding on the applicant ’ s request were due to incapacity for work on the part of the District Court judge and some on the part of the applicant ’ s lawyers. Any delays in determination of that request however had no impact on the lawfulness and justification of the applicant ’ s detention and did not warrant his release.

Finally, the Regional Court observed that all statutory time limits for the overall duration of the applicant ’ s detention had also been respected.

15 . The decision of the Regional Court of 26 September 2011 was served on the applicant on 25 October 2011.

4. Written grounds of the applicant ’ s interlocutory appeal

16 . In the written submission of 27 September 2011 by his lawyer, the applicant pointed out that it had taken the District Court more than four months to decide on his request for release and that it had taken the District Court almost another month to have the written version of its decision served on the applicant. He contended that until the written version of the decision of 31 August 2011 with reasons had been served on him, he had had no practical opportunity to formulate his grounds for contesting it.

The applicant also submitted that summoning him for the public session of 1 August 2011 on 27 July 2011 was clearly in breach of the applicable rules and possibly in bad faith because it had not even offered him the statutory five-day period for preparing. He referred to the detailed arguments in his request for release and pointed out that the District Court had not entertained any of them at all.

The applicant reminded that duration of detention should only be as long as strictly necessary, considered that, in his case, the review of the lawfulness of his detention had been neither speedy nor lawful, and requested that he be released.

17 . The written grounds of the applicant ’ s appeal against the decision of 31 August 2011 were not subject to the Regional Court ’ s examination in its decision of 26 September 2011 and it appears that no decision has ever been taken in respect of them.

5. Constitutional complaint

18 . On 2 November 2011 the applicant lodged a complaint under Article 127 of the Constitution (Constitutional law no. 460/1992 Coll., as amended) with the Constitutional Court ( Ústavný súd ).

Directing it against the District Court and the Regional Court and contesting their decisions of 31 August and 26 September 2011 and the underlying proceedings, the applicant alleged a violation of his rights under, inter alia , Article 5 §§ 1 (c), 3 and 4 of the Convention, as well as their constitutional equivalents.

In particular, the applicant contended that the Regional Court had upheld the District Court ’ s decision before the written version of it had at all been served on him. The Regional Court ’ s decision had thus been premature and curtailed his defence rights, in particular because the Regional Court had not enabled the applicant to familiarise himself with the written reasoning of the District Court and, with the knowledge of that reasoning, to challenge it properly.

In addition, the applicant submitted that the proceedings in respect of his request for release until the service of the Regional Court ’ s decision on him had lasted nearly six months. In that respect, the applicant reiterated his arguments mentioned above and added that, in so far as the Regional Court had sought to justify the length of the proceedings on his request for release by reference to incapacity for work on the part of the applicant ’ s lawyers, this had no basis in reality.

The applicant considered the way in which the courts had dealt with his request as well as their decisions unlawful and arbitrary.

19 . In terms of relief, the applicant requested that a violation of his above-specified rights be established, that the decisions of 31 August and 26 September 2011 be quashed and that he be awarded 10,000 euros (EUR) in respect of non-pecuniary damage and compensation in respect of his legal costs.

20 . The admissibility of the complaint and the merits of its admissible part were determined by the Constitutional Court in its decision of 8 December 2011 and judgment ( n ález ) of 14 March 2012.

21 . All complaints other than that about the lack of speedy review of the lawfulness of the applicant ’ s detention upon h is request for release of April 2011 were declared inadmissible as being manifestly ill-founded.

22 . As to the inadmissible complaints, in so far as they concerned the District Court, the Constitutional Court held that it had no jurisdiction to entertain them because they fell within the jurisdiction of the Regional Court. As to the Regional Court, the Constitutional Court cited extensively from its decision and found that it had supported its decision with reasons in a manner compatible with the constitutional requirements, with reference to the applicable legal provisions and any other elements relevant for the assessment of the case.

23 . As to the remainder of the complaint, which the Constitutional Court declared admissible, it found a violation of the applicant ’ s right under Article 5 § 4 of the Convention to a speedy review of the lawfulness of his detention, awarded him EUR 1,500 in respect of non-pecuniary damage, payable by the District Court, and granted him compensation in respect of his legal costs.

On the general plane, the Constitutional Court observed, inter alia , that if proceedings for the review of the lawfulness of detention took place before several levels of jurisdiction, the entire duration of the proceedings was to be taken into account, that was from the moment a request was lodged until it was resolved with final effect.

As to the case at hand, in view of the duration of the proceedings and all the relevant facts, the applicant ’ s right under Article 5 § 4 of the Convention had been violated both by the District Court and the Regional Court.

The gravity of that violation however was not such as to warrant the award of the full amount claimed in respect of non-pecuniary damage, and the amount finally awarded was considered appropriate.

24 . The Constitutional Court ’ s decision and judgment were served on the applicant on 31 January and 16 April 2012, respectively.

6. Subsequent developments

25 . On 17 December 2012 the Regional Court ordered immediate release of the applicant. It did so following the applicant ’ s interlocutory appeal against a previous decision of the District Court to dismiss his request for release on bail offered by his mother. It concluded that, in dealing with that request, the District Court had again and despite the above-mentioned constitutional judgment acted with unacceptable delays in breach of the applicant ’ s constitutional rights. The applicant was therefore to be released, which he was, on that very day.

26 . The criminal proceedings against the applicant are still pending.

COMPLAINTS

27 . The applicant complains under Article 5 § 4 of the Convention that he has been deprived of his right to an ( i ) effective and (ii) speedy procedure by which he could challenge the lawfulness of his detention in that his “appeal” against the decision of 31 August 2011 had been dismissed before he was given an opportunity to substantiate it and in that the length of the proceedings in his request for release of April 2011 was excessive.

28 . The applicant also complains under Article 5 § 5 of the Convention that, in the absence of any other relief, the amount which the Constitutional Court awarded him in respect of non-pecuniary damage was insufficient.

QUESTIONS TO THE PARTIES

1. In view of the Constitutional Court ’ s judgment of 14 March 2012 and, in particular, the amount of the just satisfaction awarded, m ay the applicant still claim to be a victim, within the meaning of Article 34 of the Convention, of the violation of his right under Article 5 § 4 of the Convention to a speedy review of the lawfulness of his detention (see, for example, Horváth v. Slovakia , no. 5515/09 , §§ 90-96, 27 November 2012, with further references ) ?

2. Was the procedure by which the applicant sought to challenge the lawfulness of his detention in conformity with Article 5 § 4 of the Convention?

In particular, in view of the fact that the Regional Court appears to have dismissed the applicant ’ s “appeal” against the decision of 31 August 2011 before the applicant was served the written version of that decision and given an opportunity to contest it properly, as well as the fact that the Constitutional Court appears not have taken any stance in that respect at all, was the procedure effective for the purposes of Article 5 § 4 of the Convention?

Moreover, did the length of the proceedings in the present case, by which the applicant sought to challenge the lawfulness of his detention, comply with the “speed” requirement of Article 5 § 4 of the Convention?

3. Did the applicant have an effective and enforceable right to compensation for his detention in contravention of the “speed” requirement under Article 5 § 4, as required by Article 5 § 5 of the Convention?