THIRD SECTION

Application no. 27112/11 Volodymyr YEGOROV against Slovakia lodged on 25 March 2011

STATEMENT OF FACTS

1 . The applicant, Mr Volodymyr Yegorov, is a Ukrainian national, who was born in 1962 and is at present detained on remand in Slovakia .

He is represented before the Court by Kubicová, Benkóczki, Baláž ‑ advokáti, s.r.o., a law firm with its registered office in Bratislava .

A. The circumstances of the case

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

1. Background

2 . The applicant has been charged and tried in Slovakia on a great deal of counts consecutively as well as in parallel and he has been detained pending trial on them. According to him, he has been deprived of liberty in various procedural regimes since 25 June 2002.

3 . The present application has two parts. Its first part concerns the applicant ’ s remand in detention pending trial for murder, for which he was indicted on 11 August 2009 (Bratislava I District Court ( Okresn ý súd ) file number 4 T 106/09).

4 . The second part of the application concerns the applicant ’ s remand in detention pending trial on other charges after he had been acquitted of that murder charge.

5 . At the time of his indictment for the murder, the applicant was already detained pending trial on yet a further charge of attempt at legalising proceeds of a criminal activity.

6 . In the context of the proceedings on the murder charge, following admission of the indictment for examination on the merits, a public session ( verejn é zasadnutie ) was listed to take place before the District Court on 23 July 2010 with a view to examining questions concerning detention of the applicant.

7 . However, as meanwhile the applicant had been released from detention in the trial for the attempt at legalising proceeds of a criminal activity and a decision had been taken and was awaiting enforcement to expel him form Slovakia, on 15 July 2010 the public session was cancelled and the applicant was summoned for questioning on 16 July 2010.

2. Detention in the murder trial

(a) Events immediately preceding detention

8 . Meanwhile, on 6 June 2010, an investigator informed the public prosecution service (“PPS”) that if the applicant ’ s conviction and sentence for the attempt at legalising proceeds of a criminal activity were to be upheld on appeal, which was about to be heard, the applicant would be up for release because the four-year term of his sentence would soon be fully covered by the term of his detention. It was therefore advisable to consider filing a motion that the applicant be detained pending trial on the murder charge, which the PPS subsequently did.

9 . O n 13 July 2010 the applicant was released from detention pending trial for the attempt at legalising proceeds of a criminal activity.

10 . Later on 13 July 2010, immediately on his release, the applicant was taken to the Border and Foreigners Police Department in Bratislava where a decision was taken on his administrative expulsion , a ban from re-entering Slovakia for five years, and detention pending the enforcement of the expulsion order ( zaistenie ).

The applicant was then taken to the de tention c enter for foreigners ( z áchytný tábor ) in Medveďov .

11 . On the morning of 16 July 2010 the applicant was captured and handcuffed in the detention centre in Medveďov by police officers who then brought him to the District Court for questioning.

According to the applicant, he was only presented summons to appear but no warrant for bringing him to that questioning or for arresting him.

(b) Remand in detention

12 . Later on 16 July 2010 the applicant was brought before a Chamber of the District Court for the questioning ordered. It was attended by the applicant, his lawyer and the PPS. Among other things, the applicant objected that his capturing, handcuffing and forcible bringing before the District Court had been without any lawful title. However, this objection has not been given any answer.

13 . Immediately following the questioning of 16 July 2010, the District Court ordered a private session ( neverejn é zasadnutie ) with a view to deciding on the applicant ’ s detention. It was again attended by the applicant, his lawyer and the PPS.

14 . Following the private session of 16 July 2010, on the same day, the District Court remanded the applicant in detention pending trial on the murder charge.

15 . In the remand decision, the District Court acknowledged that the public session of 23 July 2010 had been cancelled and that the applicant ’ s questioning of 16 July 2010 had been ordered in view of the imminent enforcement of the expulsion order.

The District Court observed that from the applicant ’ s oral submissions it was clear that he was aware that there was a number of criminal charges pending against him in Slovakia and that he nevertheless was supportive of his expulsion from Slovakia. It also noted that, in his submission, the applicant stated that he was prepared to attend his trials via his lawyer or in person, if he was granted a permit for staying in Slovakia.

Without any detail, the District Court observed that the evidence taken until then supported the suspicion against the applicant and that further witnesses and documentary evidence had to be taken.

The applicant was facing the risk of a heavy penalty in the present trial, as well as in another murder trial, which could even amount to a life term.

The District Court concluded that the applicant was striving to be expelled, which indicated that he was trying to avoid his prosecution in Slovakia, and there were no sufficient guarantees that, if he had left the Slovak territory, the applicant would attend his trial there.

The applicant ’ s detention was therefore found necessary under Article 71 § 1 (a) of the Code of Criminal Procedure (Law no. 301/2005 Coll., as amended – “the CCP”) with a view to prevent his fleeing.

(c) Review of detention

16 . Immediately on the pronouncement of the detention order, on 16 July 2010, which was a Friday, the applicant orally submitted an interlocutory appeal ( sťažnosť ) and specified that he would submit the reasons for his appeal upon receiving the written version of the detention order with reasons. The appeal and its reasons were to be submitted to the court of appeal via the first-instance court, that is to say the District Court.

17 . On 19 July 2010, which was a Monday, the applicant sent reasons for his appeal in writing in the Russian language specifying that he would submit further reasons upon the service of the written version of the remand decision on him. It appears that the applicant ’ s submission of 19 July 2010 was received at the District Court on 21 July 2010.

18 . On the date last mentioned, that is to say on 21 July 2010, the written version of the detention order was served on the applicant and, on the same day, the District Court transmitted the case-file to the Bratislava Regional Court ( Krajsk ý súd ) for a determination of the applicant ’ s appeal.

19 . On 26 July 2010, which again was a Monday, the applicant sent further written submission in the Russian language to add reasons to his appeal. Among other things, he in detail challenged the lawfulness of the manner how he had been brought before the District Court. It appears that this submission was received at the District Court on 28 July 2010.

20 . However, on that day, that is to say on 28 July 2010, the Regional Court determined the applicant ’ s interlocutory appeal by dismissing it as unfounded.

The Regional Court observed at the outset that neither orally nor in writing had the applicant submitted any reasons for his appeal.

The Regional Court endorsed the reasons behind the detention order and added that, in another trial, the applicant had already been found guilty of murder and sentenced for life. It was true that, on appeal, that conviction had been quashed (on 23 June 2010) and the matter had been remitted for re ‑ examination at first instance, but the evidence examined in that case until then was very decisively supporting the case by the PPS.

(d) Final domestic decision

21 . On 25 August 2010 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 ).

Relying inter alia on Articles 5 § 1 and 6 § 1 of the Convention, the applicant contended (i) that his arrest and bringing before the District Court had been unlawful; (ii) that the courts ’ conclusion concerning his striving to be expelled from Slovakia was arbitrary; (iii) that the Regional Court had overlooked the reasons for his interlocutory appeal submitted on 19 and 26 July 2010; that (iv) the decision to remand him was in general arbitrary; and (v) that it was not supported by relevant reasons.

In particular, the applicant submitted that it was unacceptable for being contrary to his presumption of innocence for the Regional Court to take into account his quashed conviction from another trial which was unrelated to the present trial. The courts ’ reasoning was no more than a quotation of the relevant laws and arbitrary conclusions with nothing to support them.

22 . On 7 December 2010 the Constitutional Court declared the applicant ’ s complaint inadmissible as being manifestly ill-founded.

The Constitutional Court observed first of all that the contested decision and proceedings had not involved a determination of any criminal charge against the applicant. Therefore, Article 6 of the Convention was of no application in the present case and the applicant ’ s procedural objections had to be examined with reference to the procedural guarantees inherent in Article 5 of the Convention.

The Constitutional Court acknowledged that the Regional Court ’ s decision of 28 July 2010 was brief but concluded that it nevertheless conformed to the applicant ’ s rights and freedoms invoked.

For that matter, the Constitutional Court found that the reasons behind the conclusion concerning the applicant ’ s striving to be expelled had basis in the content of the case file and were not arbitrary. The reference to the applicant ’ s conviction in another trial, albeit quashed, was befitting in order to assess his character and profile.

Furthermore, while it was true that a tribunal ruling on matters concerning detention on remand was to examine carefully all submission by the person to be remanded, the applicant ’ s submissions of 19 and 26 July 2010 had not been available to the Regional Court when examining his interlocutory appeal. In addition, matters concerning detention on remand in general called for a swift determination and courts of appeal were to determine interlocutory appeals in such matters within 5 days from when the appeal was transmitted to them for determination. Furthermore, unlike in case no. II. ÚS 108/08 (see paragraph 35 below), the applicant had been heard at the first instance. And lastly, he had been represented by a lawyer, who however had taken no steps to ensure effective assertion of his rights.

Thus, in the circumstances, the decision to dismiss the applicant ’ s interlocutory appeal without examining the reasons for it could not be considered arbitrary.

Finally, the Constitutional Court observed that there had been no reasons for ordering the applicant ’ s arrest, that the District Court had duly ordered this bringing before it and that that order had properly been implemented.

The Constitutional Court ’ s decision was served on the applicant on 3 February 2011.

3. Detention in the trial for conceiving, setting up and supporting a criminal and terrorist group

23 . On 27 July 2011 the applicant was acquitted of the above-mentioned murder charge and, at the same time, an order was issued for his release.

24 . Later on 27 July 2011 the applicant was released but, immediately thereafter, at around 3.20 p.m., he was re-arrested without being told the reason.

25 . At 5 p.m. on 27 July 2011 the applicant was served with a document of 18 June 2003 charging him with the offence of conceiving, setting up and supporting a criminal and terrorist group. However, as submitted by the applicant, even at this occasion he was not informed of the reason for his arrest.

26 . On 28 July 2011 the PPS applied for an order for the applicant ’ s detention pending trial, referring to charges of 14 December 2001 for fraud; 8 June 2002 for legalising proceeds of criminal activities; 18 June 2003 for conceiving, setting up and supporting a criminal and terrorist group; and 3 July 2003 for another count of legalising proceeds of a criminal activity.

27 . On 29 July 2011 a pre-trial judge of the Specialised Criminal Court ( Špecializovaný trestný súd ) remanded the applicant following an interview at which the applicant had not been assisted by his lawyer.

The judge observed that the applicant was a non-national and that, prior to his initial arrest, for more than a year he had not been staying at his registered permanent residence, but rather at his girlfriend ’ s, where however he had not been registered as staying. Furthermore, the applicant had often been traveling abroad. Accordingly, in so far as he had submitted that, if left at liberty he would be staying at his friend ’ s, there was no guarantee that the applicant would actually do so.

A further relevant consideration was that in the various trials he was standing, the applicant was facing a hefty penalty including a life sentence.

The judge also observed that the charges brought against the applicant in the other trials concerned various offences allegedly committed at various times and that even these charges had not prevented him from the alleged murder of which he stood accused in one of those trials.

In addition, the applicant had already been convicted with final effect of the attempt at legalising proceeds of a criminal activity. Therefore, his declaration that he had sufficient means to get by was not a sufficient guarantee that he would not continue offending.

The judge concluded that there was the need for detaining the applicant under Article 71 § 1 (a) and (c) of the CCP with a view to prevent his fleeing and continuing in criminal activities.

28 . The applicant lodged an interlocutory appeal arguing that his arrest had been unlawful because he had not been informed of the reasons for it; contesting the charge; complaining that he had already been deprived of liberty for more than 9 years; and challenging the reasons for detaining him.

29 . On 8 August 2011 the Supreme Court dismissed the applicant ’ s interlocutory appeal.

On the one hand, as regards the potential penalty faced by applicant for murder in another trial, the Supreme Court held that it was impermissible for the first-instance judge to rely on it as a reason justifying the need for detaining the applicant in the present trial.

On the other hand, however, the Supreme Court found that, none the less, all formal and substantive requirements for detaining the applicant had been met and all the applicable time-limits had been observed.

30 . On 19 September 2011 the applicant lodged a complaint with the Constitutional Court, relying mainly on Article 5 §§ 1 and 3 and Article 6 § 1 of the Convention and contenting, in particular, that the courts had ignored his argument concerning the unlawfulness of his arrest and that they had failed to appreciate that the contested remand concerned his trial on the charges, on which he had already been remanded in the past, since 27 June 2002 until 19 May 2005.

31 . On 18 October 2011 the Constitutional Court declared the complaint inadmissible. It held at the outset that it had no jurisdiction to examine any alleged violations in so far as they concerned the first-instance court because such jurisdiction was vested in the Court of Appeal.

Furthermore, the Constitutional Court observed that the contested proceedings and decisions concerned the applicant ’ s detention and did not involve a determination of any “criminal charge” against him. His complaints therefore had to be examined under Article 5 of the Convention.

As to the substance, the Constitutional Court found that the protocol concerning the applicant ’ s arrest contained references to the charges on which he had been arrested and it was signed by the applicant. There could therefore be no doubt as to his being informed of the reasons for his arrest.

Similarly, it transpired form the Supreme Court ’ s decision that it had taken note of the applicant ’ s arguments as regards the lawfulness of his arrest. The fact that the Supreme Court had not given a specific answer on that point was not contrary to the applicant ’ s rights because the Supreme Court had examined the arguments by implication when dealing with the overall lawfulness of the applicant ’ s detention.

As to the remainder of the applicant ’ s complaint, the Constitutional Court acknowledged that the applicant ’ s detention had by then in total lasted more than 9 years. However, in terms of the Constitutional Court ’ s decision, it was necessary to take into account that the contested decision was neither a decision to dismiss his request for release nor a decision to extend his detention. Having taken into account the character of the contested decision and the reasons behind it, and viewing the length of the applicant ’ s detention in concreto in the case at hand, that is to say only since 27 July 2011, the Constitutional Court came to a conclusion that, at the given time, the length of the applicant ’ s detention had not yet reached a point of being unconstitutional.

The decision was served on the applicant on 22 November 2011.

B. Relevant domestic law and practice

32 . Detention pending trial is primarily regulated by the CCP, Article 71 § 1 of which formulates the grounds on which a person may be remanded. As applicable at the relevant time, it provides as follows:

“The person charged may only be remanded in detention if the facts established thus far suggest that the action was committed, for which the criminal prosecution has started; this action has the elements of a criminal offence; there are reasons to believe that this action was committed by the person charged; and there is justified fear resulting from the actions of the person charged or from other concrete facts that

(a) the person charged would escape or go into hiding to avoid prosecution or punishment, in particular if his or her identity cannot be immediately established, if he or she has no permanent abode or if he or she faces a heavy penalty;

(b) he or she would interfere with witnesses, expert witnesses, co-accused, or would otherwise interfere with the investigation of the facts relevant for the criminal prosecution; or

(c) he or she would continue in criminal activity, accomplish the attempted criminal offence, or commit the criminal offence which he or she has prepared or has threatened to commit.”

33 . Article 71 § 2 provides for grounds on which a person may be re ‑ remanded in detention pending trial after having been released. It reads as follows:

“If the person charged has been released from detention on remand, he or she may be re-remanded in the same matter if

(a) he or she is on the run or in hiding to avoid criminal prosecution or punishment, does not stay at the address indicated to the authorities, refuses to accept mail or disrespects instructions by the authorities or otherwise consciously obstructs the carrying out of ordered actions;

(b) he or she interfere s with witnesses, expert witnesses, co-accused , or otherwise interfere s with the investigation of the facts relevant for the criminal prosecution;

(c) he or she continue s in criminal activity, accomplish es the attempted criminal offence , or commit s the criminal offence which he or she has prepared or has threate ned to commit;

(d) he or she was released from detention in order to commence the service of a prison sentence and there are concrete facts giving rise to some of the reasons for detention under paragraph 1 [of Article 71]; or

(e) he or she has been charged for another intentional criminal offence which he or she is to have committed after the release from detention.

34 . The rules concerning t he maximum duration of detention pending trial are summarised in the Court ’ s decision in the case of Martikán v. Slovakia (no. 50184/06 , 17 March 2009 ).

35 . In a judgment of 16 October 2008 in an unrelated case no. II. ÚS 108/08, the Constitutional Court found a violation of Article 5 § 4 of the Convention on account of a decision to dismiss the complainant ’ s interlocutory appeal against a decision to extend his pre-trial detention without taking into account the complainant ’ s reasons for appealing, which had been submitted in time but had been delivered to the Court of Appeal only after the taking of its decision.

The situation under the Constitutional Court ’ s scrutiny was aggravated by a number of factors including that the first ‑ instance court had effectively prevented the complainant from submitting observations on the motion by the public prosecution service to extend his detention; that the courts had ignored such observations submitted by the complainant ’ s lawyer, that the courts had failed to provide the complainant with interpretation and translations into a language he understood; and that the complainant had not been heard.

COMPLAINTS

36 . Relying on Article 5 §§ 1, 3 and 4 of the Convention , the applicant raises a number of complaints, in particular:

(i) that his bringing before the District Court on 16 July 2010 was unlawful (a) because it had not been authorised by an appropriate warrant and (b) because it had been prompted by an arbitrary decision of the District Court, taken with a view to avert the carrying out of an order of another public authority, to cancel the public session of 23 July 2010 and to hear the applicant 16 July 2010 instead ;

(ii) that applicant ’ s arrest on 27 July 2011 was unlawful because he had not been informed of the reasons for it;

(iii) that his remand on 16 July 2010 was arbitrary (a) because it was based on a self-serving premise that that he was striving to be expelled, which made effectively him liable for actions of another public authority, on which he had no influence; (b) because circumstances had been taken into account concerning another set of proceedings in an unrelated matter; and (c) because his remand lacked justification on any other concrete ground;

(iv) that his remand on 29 July 2011 was unlawful and arbitrary (a) because the courts have failed to appreciate that he was being re ‑ remanded in the same matter; (b) because consequently there has been a breach of the statutory limit on maximal duration of detention pending trial; (c) because this re-remand was short of the statutory requirements under Article 71 § 2 of the CCP; and (d) because his remanded lacked justification on any other concrete ground;

(v) that in both instances he was remanded following a pattern of releases and arbitrary immediate re-remanding which amounted to his deprivation of liberty by means of detention for more than 9 years; and

( v i ) that the Court of Appeal had failed to entertain the reasons for his interlocutory appeal against the remand of 16 July 2010.

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QUESTIONS TO THE PARTIES

1. Was the applicant deprived of his liberty in breach of Article 5 § 1 of the Convention?

In particular,

- Was his bringing before the Bratislava I District Court on 16 July 2010 and his arrest on 27 July 2011 lawful?

- In view of the provisions of Article 71 § 2 of the Code of Criminal Procedure, was the applicant ’ s remand on 29 July 2011 lawful?

- In view of the whole period of his deprivation of liberty, was his detention under the orders of 16 July 2010 and 29 July 2011 compatible with the statutory limit on maximal duration of detention on remand?

2. In view of the alleged practice of consecutive remanding and re ‑ remanding of the applicant in detention after being released and in view of the entire length of the applicant ’ s deprivation of liberty, was his detention under the orders of 16 July 2010 and 29 July 2011 justified, free from arbitrariness, and otherwise compatible with the requirements of Article 5 §§ 1 (c) and 3 of the Convention?

3. In view of the fact that the Bratislava Regional Court dismissed the applicant ’ s interlocutory appeal against the detention order of 16 July 2010 without considering the reasons for it, w as the procedure by which the applicant sought to challenge the lawfulness of hi s detention under that order in conformity with Article 5 § 4 of the Convention?