Published on 28 August 2023

FIRST SECTION

Application no. 23112/22 Marián KUČERKA against Slovakia lodged on 4 May 2022 communicated on 10 July 2023

SUBJECT MATTER OF THE CASE

The application concerns the applicant’s detention in the framework of the criminal proceedings brought against him on the charges of aggravated bribery, on the grounds of risk of collusion and reoffending (Article 71 § 1 b) and c) of the Code of Criminal Procedure), ordered by the Specialised Criminal Court. The detention order was upheld by the Supreme Court. Upon a constitutional complaint filed by the applicant against both the detention order and the Supreme Court’s decision, the Constitutional Court (II. ÚS 300/2021) first limited the scope of its review to the latter decision, relying on the principle of subsidiarity. It subsequently quashed that decision as being in breach of Article 5 §§ 1 (c), 3 and 4 of the Convention on account of the lack of the impartiality of the Supreme Court, its presiding judge K. having failed to meet the required standard regarding the objective test. The Constitutional Court did not remit the case to the Supreme Court for a new decision, considering it unnecessary to address the applicant’s complaints challenging the lawfulness of and reasons for his detention on remand, as he had in the meantime been released.

The applicant, relying on Article 5 §§ 1 (c), 3 and 4 of the Convention, complains of the procedure concerning his pre-trial detention before the Specialised Criminal Court and the Supreme Court. He also submits that the grounds on which they based their decisions were not sufficient. Moreover, as a result of the procedural approach of the Constitutional Court, the decision of the Supreme Court was quashed, but the lawfulness of the applicant’s detention and the reasons for which he had been held in detention were not examined in terms of Article 5. He had therefore no effective domestic remedy for his complaints regarding his right to liberty and personal security as guaranteed by this provision.

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 pre-trial detention compatible with Article 5 § 1 (c) in terms of being justified and based on a reasonable suspicion, bearing in mind the description of the applicant’s criminal activities and the reasons given for his detention by the Specialised Criminal Court in its detention order of 6 December 2020?

2. Was the applicant’s pre-trial detention ordered “in accordance with the procedure prescribed by law”, for the purposes of Article 5 § 1 of the Convention?

3. Did the applicant have at his disposal an effective procedure by which he could challenge the lawfulness of his detention, as required by Article 5 § 4 of the Convention?

4. Did the applicant have at his disposal an effective domestic remedy for his Convention complaints, as required by Article 13 of the Convention? In particular, did the national authorities make a due assessment of the applicant’s claim about the lawfulness of and reasons for his pre-trial detention from the perspective of Article 5 of the Convention?

5. The parties are requested to submit copies of all documents relating to the institution of the criminal proceedings against the applicant and the proceedings concerning his pre-trial detention.