Published on 30 January 2023

FIRST SECTION

Application no. 22083/21 Judita Hana KONEČNÁ against Slovakia lodged on 19 April 2021 communicated on 13 January 2023

SUBJECT MATTER OF THE CASE

The application concerns the applicant’s continued detention on remand in connection with her prosecution for the murder a friend and classmate who died on 16 May 2019 of multiple cutting and stabbing wounds in a flat where the applicant, sixteen at that time, lived with her mother and where she and the victim were present at that moment, with no presence of any other person having been established. In this context, on 20 May 2019 the applicant was arrested and then remanded.

Issues of lawfulness and justification of the applicant’s detention were decided upon by courts on several consecutive occasions. The part of her detention which is at stake in the present application was based on the risk that she would continue offending and it was addressed by the Žilina Regional Court in a decision of 29 May 2020 and ultimately by the Constitutional Court in a decision of 21 April 2021 (file no. II. US 211/21).

In the former decision, the Regional Court referred to its previous decisions on this matter to the effect that the risk that the applicant would continue offending originated from the extent and brutality of the attack and the fact that there was no known motive or trigger for it. Even though an expert in psychiatry had found that keeping the applicant at liberty presented no danger, this was not binding upon the court, and it was contrasted with the findings of a psychologist to the effect that since the applicant stemmed from conflict-free environment, she had not developed mechanisms for processing stress. There was accordingly the risk that, if under pressure, she might again lose control and act in an unpredictable manner. By the nature of things this risk could not be mitigated by alternative measures such as probation supervision. Even though the Regional Court identified a period of seven months in which the trial court had proceeded with hearing the case on the merits less swiftly than what was appropriate in a case of a minor defendant in detention, the length of the applicant’s detention at that time could not have been considered as excessive.

In the applicant’s submission, while in detention, she was kept in a locked cell with not sufficient daylight twenty-three hours a day, mostly alone, except for four occasions when she had cellmates of adult age. There were no recreational activities, she was not allowed to continue her education and since the summer of 2020, in view of the COVID-19 pandemic, she was not allowed any in-person visits, her right to receive visits being limited to virtual visits of twenty minutes per month. When brought before a court, she would always be restrained by handcuffs attached to a belt and it was impossible for her to receive rehabilitation treatment for injuries to her hands that she had suffered in the incident of 16 May 2019. In addition, she was deprived of regular health check-ups and received no treatment for atopic rash.

On 27 November 2020 the applicant was found guilty and sentenced to twelve years and four months’ imprisonment. It appears that this conviction has meanwhile become final.

The application raises issues under Articles 3, 5 (§ 3) and 8 of the Convention.

QUESTIONS TO THE PARTIES

1. With regard to her complaints concerning the material conditions of her detention, the various alleged limitations of her rights and freedoms and the alleged lack of medical treatment, has the applicant complied with the requirement of exhaustion of effective domestic remedies under Article 35 § 1 of the Convention?

In particular, with regard to each of her specific complaints, were there effective remedies within the meaning of this provision and, if so, which (see Ananyev and Others v. Russia , nos. 42525/07 and 60800/08, §§ 93-98, 214 et seq. and 221 et seq., 10 January 2012)? What is the statutory basis and judicial practice in this matter?

2. In view of all the circumstances, including the amount of the applicant’s detention time spent in prison hospital, did the material conditions of her detention and the alleged lack of medical treatment amount to inhuman or degrading treatment within the meaning of Article 3 of the Convention (see, for example, Ananyev and Others , cited above, § 139 et seq. and McGlinchey and Others v. the United Kingdom , no. 50390/99, § 46, ECHR 2003-V)?

3. Alternatively, did the material conditions of the applicant’s detention, the various alleged limitations of her rights and freedoms and the alleged lack of medical treatment amount to an interference with her right to respect for her private and family life and correspondence and, if so, was it necessary in a democratic society as required by Article 8 § 2 of the Convention?

4. Was the applicant’s continued detention in conformity with Article 5 § 3 of the Convention?

In particular,

- in view of the reasons given by the courts in their decisions and the facts stated by the applicant in her appeals (see McKay v. the United Kingdom [GC], no. 543/03, § 43, ECHR 2006-X), was her continued detention supported by “relevant and sufficient” reasons (see Buzadji v. the Republic of Moldova [GC], no. 23755/07, § 92, 5 July 2016)?

- in the light of the circumstances of the case and in particular the applicant’s being a minor (see Nart v. Turkey , no. 20817/04, § 31, 6 May 2008 and Güveç v. Turkey , no. 70337/01, § 109, ECHR 2009 (extracts)) and her past history and personality, was the danger of her reoffending plausible and was her detention appropriate a measure of response (see, for example, Clooth v. Belgium , 12 December 1991, § 40, Series A no. 225 and Toth v. Austria , 12 December 1991, § 70, Series A no. 224)?

- was the duty complied with to consider alternative measures of ensuring the applicant’s appearance at trial (see Jabłoński v. Poland , no. 33492/96, § 83, 21 December 2000)?

- was the length of the applicant’s pre-trial detention in breach of the “reasonable time” requirement of Article 5 § 3 of the Convention?