Published on 22 November 2021

FIRST SECTION

Applications nos. 615/21, 9427/21 and 36765/21 Denisa CVIKOVÁ against Slovakia lodged on 23 December 2020, 3 February 2021 and 12 July respectively communicated on 2 November 2021

SUBJECT MATTER OF THE CASE

The applications concern the home search and seizure of information ‑ technology equipment belonging to the applicant, a judge who at that time had not been charged with any criminal offence. They also concern her subsequent remand in custody and the dismissal of her request of 13 July 2020 to be released from detention pending trial on a charge of co-perpetration in accepting a bribe, brought against her in the meantime. The detention was to prevent her from interfering with the course of justice following a raid codenamed Storm ( Búrka ) in connection with a large-scale investigation aimed at alleged organised corruption in the judiciary. The applications involve complaints under Article 5 §§ 1 (c), 3 and 4 and Article 8 (private life) of the Convention.

QUESTIONS TO THE PARTIES

1. Was the applicant deprived of her liberty in breach of Article 5 §§ 1 (c) and 3 of the Convention?

In particular, was her detention strictly necessary and compatible with the purpose of Article 5 § 1 of the Convention, which is to prevent persons from being deprived of their liberty in an arbitrary fashion (see, for example, Ladent v. Poland , no. 11036/03, §§ 48 and 55, 18 March 2008; with further references) in view of all the circumstances, including but not limited to the following:

- any “justified concern” established by the courts “on the basis of the applicant’s behaviour or other specific facts” that the applicant herself would interfere with the course of justice within the meaning of Article 71 § 1 (b) of the Code of Criminal Procedure, taking into account the scope of the charge against the applicant, the length of the investigation prior to her remand and the fact that at that time she was suspended in her judicial office, as well as her claim that following the search of her home but prior to her remand she had ample time to interfere with the course of justice and that there was no indication that she had done so;

- the existence of any less stringent measures in lieu of remanding the applicant, taking into account (i) the fact that she had no criminal record, (ii) her claim that, although she had had an opportunity of doing so, she did not actually interfere with the course of justice, (iii) the fact that the applicant was in practice excluded from the judiciary since she was suspended in her judicial office; and (iv) her expressed readiness to pledge to respect any rules and limitations to be set;

- the reasoning behind the remand decision in so far as it pertained specifically to the applicant (see, for example, S., V. and A. v. Denmark [GC], nos. 35553/12 and 2 others, § 92, 22 October 2018; with further references); and

- in addition to the above the fact that at the time of the decision on her request for release of 13 July 2020 all of the co-accused and witnesses appear to have been interviewed by the authorities?

2. Was the procedure by which the applicant sought to challenge on 13 July 2020 the lawfulness of her pre-trial detention in conformity with Article 5 § 4 of the Convention?

In particular, was the court deciding on the interlocutory appeal by the prosecution service against the release order of 5 August 2020 impartial and were the principles of adversarial trial and equality of arms between the applicant and the prosecution respected in those proceedings, in view of the fact that the court deciding on that appeal appears to have allowed that appeal on the basis of other grounds than those advanced by the prosecution, on which there appears to have been no opportunity for the applicant to comment?

3. Has there been a violation of the applicant’s right to respect for her private life, contrary to Article 8 of the Convention?

In particular, was the house search and seizure of the information ‑ technology equipment in accordance with the law and necessary in a democratic society within the meaning of Article 8 § 2 of the Convention, in view of all the circumstances, including but not limited to the followings:

- the scope of the warrant which only defined the objects searched for in generic terms;

- any suspicion against the applicant at the time of the search and seizure, as defined in the respective warrant, taking into account that she was not facing any charges and that the definition of such suspicion and of the objects searched for appears inherently to have impacted on the applicant’s ability to deliver such objects voluntarily;

- the existence and validity of any individual reasoning in relation to the applicant as to why the search of her home was necessary and why its purpose could not have been served by less intrusive means;

- the fact that seizure of data-storage devices was authorised and carried out, which allegedly contained personal and privileged information unrelated to any investigated offence, while the matter in issue inherently seems to have been data rather than the storage devices;

- the existence of any regulation of the authorities’ handling of the seized data and of any safeguards in that respect?