CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 20 mai 1998

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                          AS TO THE ADMISSIBILITY OF                         Application No. 24530/94                       by Stefco VODENICAROV                       against the Slovak Republic        The European Commission of Human Rights (Second Chamber) sitting in private on 20 May 1998, the following members being present:              MM     J.-C. GEUS, President                  M.A. NOWICKI                  G. JÖRUNDSSON                  J.-C. SOYER                  H. DANELIUS            Mrs    G.H. THUNE            MM     F. MARTINEZ                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY                  P. LORENZEN                  E. BIELIUNAS                  E.A. ALKEMA                  A. ARABADJIEV              Ms     M.-T. SCHOEPFER, Secretary to the Chamber        Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;        Having regard to the application introduced on 27 September 1993 by Stefco VODENICAROV against the Slovak Republic and registered on 4 July 1994 under file No. 24530/94;        Having regard to:   -     the reports provided for in Rule 47 of the Rules of Procedure of      the Commission;   -     the observations submitted by the respondent Government on      22 March 1996 and the observations in reply submitted by the      applicant on 22 April and 12 August 1996;   -     the further observations submitted by the respondent Government      on 7 July 1997 and the observations in reply submitted by the      applicant on 27 August 1997;        Having deliberated;        Decides as follows:   THE FACTS        The applicant is a Bulgarian national born in 1946.   He is a driver and resides in Hlohovec (the Slovak Republic).        The facts of the case, as submitted by the parties, may be summarised as follows.   A.    The particular circumstances of the case        The applicant was involved in several conflicts with his colleagues and neighbours.   The police and the local authority refused to investigate the applicant's complaints, and the co-operative which owns the block of flats where the applicant lives refused to arrange for damages to be paid to him.   According to the applicant, on 16 February 1994 his wife was assaulted by Mrs D., a neighbour.   He pursued the neighbour but she managed to escape.   The applicant and his wife unsuccessfully tried to have criminal proceedings instituted against Mrs D.        On 24 May 1994 the Piestany Local Office (Obvodny úrad) found the applicant guilty of a minor offence against civic propriety in that on 16 February 1994 he had orally insulted Mrs D. in front of the block of flats.   On 14 July 1994 the Trnava District Office (Okresny úrad) upheld this decision.        In the meantime, in connection with the incident of 16 February 1994 the applicant had been heard, on 30 May 1994, at the police station where he presented his statement of facts.   On 30 June 1994 the applicant read statements of Mrs D., a statement of Mrs T. according to which on 16 February 1994 he had repeatedly hit Mrs D., a medical evidence about Mrs D.' injuries, and a petition signed by eleven neighbours confirming that on 7 April 1993 he had orally insulted Mrs D.        On 30 September 1994 the Trnava District Prosecutor (Okresny prokurátor) charged the applicant with assault causing bodily harm on the ground that on 16 February 1994 he had several times hit Mrs D. at the door of her flat.        On 12 October 1994 the Trnava District Court (Okresny súd) issued a sentence order (trestny rozkaz) by which the applicant was conditionally sentenced to five months' imprisonment.   On 31 October 1994 he was ordered to pay damages to Mrs D.   He challenged both orders. Subsequently, the sentence order was cancelled and a hearing was ordered.   Mrs D. joined the proceedings with a claim for damages.        On 5 December 1994 a main hearing was held at the Trnava District Court.   It was adjourned because of the applicant's misbehaviour. After the adjournment, the applicant had to be removed.        On 12 January 1995 the President of the Trnava District Court requested the transfer of the case to another court as it was probable that the applicant would be charged with contempt of court.   The Bratislava Regional Court (Krajsky súd) dismissed the request as the District Court should have proceeded pursuant to Sections 66 and 204 of the Code of Criminal Procedure.          A further main hearing was held on 21 February 1995 at the Trnava District Court.   Before it began the applicant had refused to enter the dock, using rude expressions.   The report of the hearing reads that:        "The accused has been warned by the judge that he would be      removed from the court room pursuant to Section 204 of the      Code of Criminal Procedure and that the hearing would be      held in his absence if he disturbs by inappropriate      behaviour the course of the hearing.        The accused declares that he will not sit on the bench of      the accused and that he will not respect the warnings of      the court ..."        Since the applicant did not respect the warnings, the judge ordered his removal from the court room pursuant to Section 204 of the Code of Civil Procedure.   As the applicant continued not to behave properly, the judge asked a court guard to remove the applicant from the court building. The hearing was held in the applicant's absence. The judge read out the applicant's statement from the preliminary proceedings and heard Mrs D. and two witnesses, Mrs T., according to which on 16 February 1994 the applicant had repeatedly hit Mrs D., and Mr H. who accompanied Mrs D. to the hospital.   The applicant was convicted of assault causing bodily harm and was conditionally sentenced to five months' imprisonment and ordered to pay damages to Mrs D.        On 2 March 1995 the applicant filed an appeal against this judgment with the Bratislava Regional Court.   He referred to the documents before the Trnava District Court and claimed that Mrs D.'s submissions as to when and how the accident had occurred were not consistent.   He pointed out, inter alia, that according to the prosecution he had attacked Mrs D. at the door of her flat which is situated above the applicant's first floor flat.   However, according to the Trnava District Court's judgment, the offence was committed at the main entrance of the house, i.e. on the ground floor.   The applicant argued that the District Court had ignored his request to hear other neighbours as witnesses.        On 30 March 1995 the Bratislava Regional Court dismissed the applicant's appeal. The Regional Court considered that the District Court had assessed all relevant evidence in order to establish the facts of the case and to clarify all circumstances necessary for giving the judgment, and had reached the right legal conclusions.        The hearing at the Bratislava Regional Court was held in the applicant's absence.   The Court ordered the applicant's removal pursuant to Section 204 of the Code of Criminal Procedure as he refused to enter the dock objecting, without having been given the floor, to his position of an accused and ignoring the instructions of the presiding judge (Predseda senátu).   The applicant's wife attended the hearing but was not allowed to address the Court.        On 12 May 1995 the Trnava Investigation District Office (Okresny úrad vysetrovania) charged the applicant with contempt of court which he was alleged to have committed on 5 December 1994 during the first hearing at the Trnava District Court.        On 16 May 1995 the Trnava District Court ordered a psychiatric examination of the applicant.   The applicant submitted a certificate from a Bulgarian doctor dated 16 June 1995 and refused to be examined by appointed experts in an out-patient department.        On 5 June and 7 July 1995 the applicant sought redress with the Constitutional Court (Ústavny súd) alleging that the criminal proceedings were unfair.   On 17 July 1995 he was informed that the Constitutional Court lacks jurisdiction to change or quash the decisions of general courts or to interfere with their jurisdiction. He was further informed that the Constitutional Court cannot examine whether the counts of the prosecution were lawful.        In the meantime, on 11 July 1995, the Trnava District Court had ordered the applicant to be detained for observation in a mental hospital pursuant to Section 116(2) of the Code of Criminal Procedure. On 12 July 1995 the Trnava Investigation District Office appointed two experts.   The applicant received both decisions on 14 July 1995, and on 15 July 1995 he challenged them.   On 17 July 1995 the mental hospital summoned him for 20 July 1995.        On 19 July 1995 the applicant was handcuffed and escorted by the police to the mental hospital.   No warrant was presented.   The applicant was confined in the mental hospital until 18 August 1995. From 11 to 13 August he was granted leave.        On 27 July 1995 the Trnava District Prosecutor rejected the applicant's complaint against the Trnava Investigation District Office's decision of 12 July 1995.        On 28 July 1995 the applicant's wife informed the Prosecutor General (Generálny prokurátor) that on 19 July 1995 the applicant had been confined in the mental hospital although he had appealed against the Trnava District Court's order of 11 July 1995 as well as the Trnava Investigation District Office's order of 12 July 1995.   She claimed that her husband's detention in the mental hospital was illegal.        On 17 August 1995 the Bratislava Regional Court dismissed the applicant's complaint against the Trnava District Court's order of 11 July 1995.   The decision was not served on the applicant.        By letter of 30 August 1995, served on the applicant's wife on 10 September 1995, the Prosecutor General informed her that her complaint had been referred, for reasons of competence, to the Bratislava Regional Prosecutor (Krajsky prokurátor).        The same day, the prosecution for contempt of court was stayed with reference to experts' conclusion that the applicant suffered from a permanent personality disorder which had prevented him from controlling his behaviour before the Trnava District Court during the hearing of 5 December 1994.   On 5 September 1995 the applicant lodged a complaint against the decision to stay the proceedings.   He challenged the experts' conclusion and claimed damages.        By letter of 21 September 1995 the Bratislava Regional Prosecutor informed the applicant's wife that her complaint had been sent, for reasons of competence, to the Trnava District Prosecutor.   B.    Relevant domestic law        Pursuant to Section 66(1) of the Code of Criminal Procedure ("the Code") a fine of up to 50,000 crowns can be imposed on persons who disturb proceedings provided that they have been warned, or who offend the court or who disobey orders issued under the Code of Criminal Procedure without having offered a sufficient apology.        According to Section 204 of the Code, the removal from the court room of persons who disturb order in court can be ordered.   The removal of an accused can be ordered only for such period as is absolutely necessary and after prior warning.   After the accused has been allowed to re-enter the court room, he shall be informed of the substance of the proceedings held in his absence so that he can make a comment.        According to Section 33(3) of the Code, any authority involved in criminal prosecution, that is the police, prosecutor or court, is required to instruct the accused of his rights and provide for a full exercise of these rights at any time.        Section 37(1) of the Code provides that "where the right to choose his counsel is not exercised by the accused, or where his legal representative fails to choose counsel for his defence, counsel may be chosen by relatives of the first degree.   Where the accused has been legally incapacitated or where his legal capacity has been lawfully restricted, such persons can choose a counsel also against his will". Section 33(2) of the Code provides that "an accused who has not sufficient means to cover the costs of his defence, shall be entitled to free counsel or to legal assistance at reduced cost".        Section 116(1) of the Code provides for the appointment, upon a written order by the court, of two psychiatric experts when there is a need to examine the mental health of the accused.   Pursuant to Section 116(2) of the Code, if the mental health of the accused cannot be examined in any other way, the court can order detention for observation in an institution.   Such an order can be issued in preliminary proceedings by the judge upon the proposal of the public prosecutor.   The order can be challenged by a complaint which has suspensive effect.        According to Section 90(2) of the Code, the accused can be brought also without a prior summons, if it is necessary for the purposes of criminal proceedings, in particular, where the accused is in hiding or has no permanent address.        Section 36(1)(a) of the Code provides that the accused shall be represented by a lawyer at the stage of preliminary proceedings if, inter alia, he is being observed in an institution pursuant to Section 116(2) of the Code.        According to Section 167 of the Code, the accused has a right, at any time in the course of the investigation, to request the rectification of defects in the investigator's procedure.   Such request, to which no statute of limitation applies, must be submitted immediately to the public prosecutor who is required to deal with it without delay, and to inform the accused about the finding of the review.        Section 117 of the Code provides that detention for observation of mental health should not last longer than two months; within that time a medical report must be submitted.   If justified by the finding of an expert, this period can be extended by the court, or, during pre- trial proceedings, by the public prosecutor or the investigator with the prosecutor's consent, for a maximum of one month.   Such extension can be challenged by a complaint.        According to Section 25(2) of the Public Prosecutions Act No. 60/1965 as amended, a public prosecutor must immediately release any person in unlawful detention.        By virtue of Article 130 para. 3 of the Constitution, the Constitutional Court may commence proceedings upon a "podnet" presented by an individual or a corporation claiming that their rights have been violated.        Article 17 paras. 1 and 2 of the Constitution provide that "personal liberty of every individual shall be guaranteed and no one shall be prosecuted or deprived of liberty unless for reasons and by methods set by law".   According to paragraph 6, "a person may be committed to or held in a health care institution without his consent only in cases stipulated by law.   Such cases shall be reported to a court within 24 hours and the court shall decide within five days". According to paragraph 7, "a psychological examination of the person charged with an offence is permissible only on a written court order".        According to Section 26 of the Constitutional Court Act No. 39/1993, the Court is not obliged to deal with "podnets" in the order in which they were submitted, where the matter involved in the "podnet" is considered urgent.   COMPLAINTS        The applicant claims that the criminal proceedings leading to his conviction for assault and his detention for observation in the mental hospital were unlawful and violated his human rights.   In particular, he claims that he was convicted in his absence.   He alleges, in substance, a violation of Article 6 of the Convention.   He further claims that his detention for observation in the mental hospital was illegal and arbitrary.   In substance, he alleges a violation of Article 5 paras. 1 and 4 of the Convention.   PROCEEDINGS BEFORE THE COMMISSION        The application was introduced on 27 September 1993 and registered on 4 July 1994.        On 17 January 1996 the Commission decided to communicate the application to the respondent Government, pursuant to Rule 48 para. 2(b) of the Rules of Procedure.        On 16 April 1996 the Commission granted the applicant legal aid. By letter of 30 August 1996 the applicant informed the Secretariat that he wished to present his case himself.        On 21 May 1997 the Commission decided to adjourn the applicant's complaints under Article 6 paras. 1 and 3(c) of the Convention in that he could not defend himself in person in the criminal proceedings in which he was involved and under Article 5 para. 4 of the Convention in that his detention for observation in the mental hospital had not been decided in a correct procedure and that he had not been entitled to take proceedings by which the lawfulness of his detention in the mental hospital could be decided speedily by a court.   The Commission invited, therefore, the respondent Government to submit further written observations on the admissibility and merits of these complaints.   It declared the remainder of the application inadmissible.        The respondent Government's further observations were submitted on 7 July 1997.   The applicant replied on 27 August 1997.   THE LAW   1.    The applicant alleges that he was convicted in his absence.   In substance, he alleges a violation of Article 6 (Art. 6) of the Convention which, insofar as relevant, reads as follows:        "1.    In the determination of ... any criminal charge against      him, everyone is entitled to a fair and public hearing ... by an      independent and impartial tribunal established by law. ...      ...      3.     Everyone charged with a criminal offence has the following      minimum rights:      ...      c.     to defend himself in person or through legal assistance of      his own choosing ...;      ..."        The Government submit that all requirements contained in Article 6 (Art. 6) of the Convention have been complied with.        They claim that the applicant could have defended his case in the public hearing before the Trnava District Court as well as before the Bratislava Regional Court.   He deprived himself of this right because he disturbed the proceedings in an unacceptable manner, as a result of which he was twice removed from the court room pursuant to Section 204 of the Code of Criminal Procedure (apart from his removal on 5 December 1994, after the first main hearing before the Trnava District Court had been adjourned), despite previous warnings about possible consequences given by the judge at the Trnava District Court and the presiding judge at the Bratislava Regional Court.        Moreover, the applicant, after his first removal from the court room, had to be removed from the court building as he continued not to behave properly.   The Government also submit that the applicant deprived himself of his right to re-enter the court room of the Trnava District Court because after he had been removed from the court building, he left the court premises of his own will.   The applicant behaved in the same manner before the Bratislava Regional Court: after his removal from the court room, he left the court building of his own will.   The Government stress that in these circumstances, it was not possible to call the applicant back before the end of both hearings.      As to whether before his removals the applicant was informed that he would be removed for "an absolutely necessary period" as provided for in Section 204 of the Code of Criminal Procedure, and would be called back before the end of the hearings, the Government submit that the court reports of both courts dealing with the case indicate that the applicant's removals were ordered pursuant to this Section.   They emphasise that the mere reference to the relevant provision sufficiently establishes that the applicant was instructed that he was removed for an "absolutely necessary" period and that he would re-enter the court room as soon as he caused no more disturbance.   According to the Government, the fact that the court reports do not contain the wording of that instruction is due to the technical side of conducting the proceedings.   In criminal proceedings, an accused is informed about his rights by oral quotation of the relevant provision with the judge's explanation thereof within the meaning of Section 33(3) of the Code of Criminal Procedure.        The Government further submit that the right to defend oneself cannot be absolute or unlimited and can be restricted.   Under Article 13 para. 2 of the Constitution, "limitation of fundamental rights and freedoms shall be imposed only under conditions set forth in the Constitution and by law".   In the present case, Section 204 of the Code of Criminal Procedure is the law which can limit the right of the accused to defend himself by allowing the judge to remove him from the court room, after a previous warning, if he disturbs the proceedings.        The Government add that the applicant as one of the persons defined in Section 37(1) of the Code of Criminal Procedure failed to exercise the right to choose a counsel.   Moreover, he failed to exercise his right to have free counsel or legal assistance at reduced cost as provided for in Section 33(2) of the Code of Criminal Procedure.   A mandatory defence counsel was irrelevant in the instant case because there were no sufficient legal grounds.   The Government stress that the applicant was informed of all rights relating to his defence.        The Government submit that even though the hearings before the courts at both levels were partially held in the absence of the applicant, for which the latter was fully responsible, the criminal proceedings brought against him otherwise complied with the requirements of Article 6 para. 1 (Art. 6-1) of the Convention.   The Government emphasise that the Trnava District Court and the Bratislava Regional Court were bound to consider any circumstances in the applicant's favour.   After the applicant's first removal, however, his statement of 30 May 1994 was read, all his relevant comments were presented, and the witnesses and Mrs D. were heard.   At the hearing before the Bratislava Regional Court, all the applicant's allegations contained in his appeal were dealt with.   The Government confirm that the applicant's wife and a member of the Bulgarian embassy were present at the hearing before the Bratislava Regional Court, but state that the identity of the latter could not be proved as he said that he was only present as a member of the public.        The applicant contests the Government's observations.   He first submits that because he did not trust Slovak lawyers, he decided to defend himself in person during the proceedings.   He also submits that on 5 December 1994, at the first main hearing before the Trnava District Court, he refused to accept the indictment.   The hearing was then adjourned and the applicant left the court room.   On 21 February 1995, at the second main hearing before this court, he refused to enter the dock as his request to have the witnesses called had not been accepted.   He says that after an intense discussion with the judge, the latter called a police officer and ordered him to remove the applicant from the court building.   The applicant claims that he was not informed that, after the hearing was over, he would be called back.        The applicant confirms that on 30 March 1995, at the Bratislava Regional Court hearing, he refused to enter the court room as an accused.   Shortly afterwards he was called again, but the word "accused" was not used.   When asked to enter the dock, he refused and asked the presiding judge why the witnesses were not present.   The presiding judge, the applicant states, shouted at him and asked him again to step forward.   The applicant said that he was not prepared to be humiliated and enter the dock as an accused, especially if he did not have the right to defend himself, and he insisted that the witnesses be called.   The presiding judge ordered police officers to remove the applicant out of the court building.   The applicant submits that he was not warned about the consequences of his misconduct and was not told that he would be called back and informed about the content of the hearing in order to give his comments on the proceedings held in his absence.   He submits that he was waiting outside the court building until the end of the hearing.   When the hearing was over, no one called him back.   When his wife and the Bulgarian consul came out, they left together.   The applicant adds that the Court refused to give his wife the floor, although she asked for it twice.        The Commission recalls that the guarantees contained in paragraph 3 of Article 6 (Art. 6-3) of the Convention constitute elements, amongst others, of the general notion of a fair trial (see Goddi v. Italy judgment of 9 April 1984, Series A no. 76, p. 11, para. 28).   In the circumstances of the present case, the Commission, whilst also having regard to those guarantees, considers that it should examine the applicant's complaint under paragraph 1 of Article 6 (Art. 6-1) of the Convention which provides that everyone is entitled to a fair hearing.        The basic question which arises in the present case is whether the right thus guaranteed was respected in a case where an accused, who had attended the proceedings without legal representation, was removed from the court room because of his misbehaviour and the proceedings then continued in his absence.        The Commission recalls that the object and purpose of Article 6 para. 1 (Art. 6-1) of the Convention taken as a whole and the concept of a fair trial make it clear that the accused must be entitled to take part in the hearing of his case and that the Contracting States must exercise diligence in order to ensure that the rights guaranteed by this provision are enjoyed in an effective manner (see Eur. Court HR, Colozza v. Italy judgment of 12 February 1985, Series A no. 89, p. 14, paras. 27-28).   On the other hand, the accused who lawfully elects to defend himself in person, having thus deliberately waived his right to be assisted by a lawyer, is also under a duty to show diligence (see Eur. Court HR, Melin v. France judgment of 22 June 1993, Series A no. 261-A, p. 12, para. 25).        In the present case, the applicant attended the first and second instance proceedings but, as he disturbed them in an unacceptable manner, he had to be removed from the court building and the court room (not the court building as the applicant submits) respectively pursuant to Section 204 of the Code of Criminal Procedure.        The applicant does not contest his misbehaviour, claiming that he acted against the conduct of the proceedings by the Slovak courts that he considered unfair.   He argues that neither the judge at the Trnava District Court nor the presiding judge at the Bratislava Regional Court instructed him that after his removal he would be called back to the court room.        The Commission notes that the court record of the Trnava District Court states that the judge warned the applicant that he could be removed from the court room pursuant to Section 204 of the Code of Criminal Procedure and that the main hearing could continue in his absence.   The court record of the Bratislava Regional Court does not contain such a warning, but the Commission considers that the applicant must have been familiar with the consequences of his misbehaviour as it was already his second removal under the same provision of the Code of Criminal Procedure.        The Commission further considers that even though the court records of the Trnava District Court and the Bratislava Regional Court do not contain the wording of the instruction that after having been removed, the applicant would be called back to the court room before the end of the hearing, the examination of the court records leaves no doubt that the applicant's removals were ordered on the basis of Section 204 of the Code of Criminal Procedure which clearly indicates that the removal of the accused from the court room can be ordered only for such period as is absolutely necessary and that after the accused is allowed to re-enter the court room, he shall be informed of the substance of the proceedings held in his absence in order to make his comments.   The Commission considers that the applicant could, therefore, foresee that the removals had a temporary character and that he would be called to return to the court room.   However, the Commission observes that the applicant deprived himself of his right to re-enter the court room of the Trnava District Court because after he had been removed from the court building, he left the court premises of his own will.   He behaved in the same manner before the Bratislava Regional Court when after his removal from the court room he voluntarily left the court building.   The applicant's submission that he was waiting after his removal from the hearing at the Bratislava Regional Court before the court building until the end of the hearing, has not been proved in any way.        The Commission finally notes that notwithstanding the applicant's absence from the hearings held before the national courts, it cannot be said that the criminal proceedings brought against him did not satisfy the requirements of Article 6 para. 1 (Art. 6-1) of the Convention.   The Commission observes that from the judgments of both courts dealing with the applicant's case it appears that the courts assessed the evidence produced before them basing their judgments on the applicant's statement in the preliminary proceedings, on the evidence of Mrs D., on the statement of Mrs T., according to which on 16 February 1994 the applicant had repeatedly hit Mrs D., on that of Mr H. who accompanied Mrs D. to the hospital, and on the medical certificates about Mrs D.'s injuries from 16 February 1994.        In these circumstances, the Commission considers that the fact that after the applicant's removals from both courts the criminal proceedings were held in his absence did not make the proceedings unfair and did not violate the applicant's rights of defence within the meaning of Article 6 (Art. 6) of the Convention.        It follows that this part of the application must be declared inadmissible as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-2) of the Convention.   2.    The applicant claims that his detention in the mental hospital was illegal and arbitrary.   In substance, he alleges a violation of Article 5 paras. 1 and 4 (Art. 5-1, 5-4) of the Convention which read as follows:        "1.    Everyone has the right to liberty and security of person.      No one shall be deprived of his liberty save in the following      cases and in accordance with a procedure prescribed by law:      ...      e.     the lawful detention of persons for the prevention of the      spreading of infectious diseases, of persons of unsound mind,      alcoholics or drug addicts or vagrants;      ...        4.     Everyone who is deprived of his liberty by arrest or      detention shall be entitled to take proceedings by which the      lawfulness of his detention shall be decided speedily by a court      and his release ordered if the detention is not lawful."        The Government object that the applicant did not exhaust all domestic remedies.   He could, under Section 167 of the Code of Criminal Procedure, have submitted a petition to a public prosecutor immediately after his detention for observation in the mental hospital, seeking a remedy for any wrong procedure that may have occurred.   The public prosecutor would have applied the procedure laid down in Section 25(2) of the Public Prosecutors Act No. 60/1965.   In the Government's view, there is no doubt that the public prosecutor would have ordered the release of the applicant from the mental hospital as the latter had been placed there prior to an effective judicial decision.   Moreover, such order would have entitled the applicant to recover damages.   The Government note that the public prosecutor could consider this matter even now.   Accordingly, the applicant still has a chance to lodge such a petition which may have a significant impact on the recovery of damages.        The Government add that no order would have been issued for the applicant's detention for observation, had he not failed to communicate with the appointed medical experts and undergo an out-patient examination.   Moreover, the medical findings on the applicant's mental health resulted in the stay of his prosecution and, as soon as the medical report had been presented, the applicant was released from the mental hospital where he was allowed to move freely on the premises, receive visitors, communicate with any agent participating in the criminal proceedings and obtain a three-day leave to visit his family.        The Government further submit that the applicant could, and still can, file a "podnet" with the Constitutional Court under Article 130 para. 3 of the Constitution and claim that his constitutional right was breached as he was deprived of personal liberty guaranteed by Article 17 paras. 1 and 7 of the Constitution and Article 5 para. 1 (Art. 5-1) of the Convention, and ask for an urgent review of the lawfulness of his deprivation of liberty invoking Article 5 para. 4 (Art. 5-4) of the Convention.   A decision of the Constitutional Court that the applicant's personal liberty has been violated would result in his release from the mental hospital and would give rise to a right to recover damages.   In this regard, the Government refer to the Constitutional Court's judgment upon the "podnet" filed by a patient confined in a mental establishment without his consent.   He challenged a violation of Article 17 para. 6 of the Constitution seeking a decision of the Constitutional Court ordering his release.   The Constitutional Court, having considered the matter in the light of Article 5 para. 4 (Art. 5-4) of the Convention, ordered the petitioner's release (cf. No. I ÚS 79/93, judgment of 15 September 1993).   The Government consider that this case-law of the Constitutional Court is mutatis mutandis applicable in the present case.        The Government submit that in such a situation the Constitutional Court deals with the "podnet" outside the usual order of cases within the meaning of Section 26 of Constitutional Court Act No. 39/1993 inviting the parties to submit, within three days, their written observations.   They refer to the above-mentioned judgment of the Constitutional Court where the Court applied these proceedings and decided fifteen days after its preliminary discussion on the case.        As regards the merits, the Government claim that the applicant's detention for observation in the mental hospital was compatible with Article 5 para. 1 (Art. 5-1) of the Convention.   They submit that the examination of the applicant's mental health was required for the purposes of the criminal proceedings.   On 19 July 1995 the applicant was brought to the mental hospital by an investigator who, having received the order of the Trnava District Court of 11 July 1995 which had not yet become effective, ordered the applicant to be taken to the mental hospital in view of his previous conduct which made it unlikely that he would appear voluntarily.   In addition, the investigation office believed that the applicant was insane at the time of the commission of the offence, a circumstance constituting a ground for the stay of the prosecution.        The Government state that in bringing the applicant to the mental hospital, the investigator acted under Section 90(2) of the Code of Criminal Procedure. The summons was delivered to the applicant on 20 July 1995 by the head of the medical staff of the hospital, who was in fact one of the two experts appointed to give evidence based on the results of the examination of the applicant's mental health.   The Government specify that a medical summons is not a decision made in criminal proceedings, but a routine doctor-patient communication.   They contend therefore that the difference in time between the actual escorting of the applicant to the hospital, i.e. 19 July 1995, and the medical summons issued by the head of medical staff, i.e. 20 July 1995, is irrelevant.        The Government, referring to the case of De Wilde, Ooms and Versyp v. Belgium (Eur. Court HR, judgment of 10 March 1972, Series A no. 12), note that the decision on detention for observation of the applicant in the mental hospital was ordered by the court in conformity with the requirements under Article 5 para. 4 (Art. 5-4) of the Convention.   They point out that the detention for observation is, in any event, limited to two months according to Section 117 of the Code of Criminal Procedure.   Moreover, the applicant could, during this period, have requested the public prosecutor to protect his rights, if he believed that these rights had not been respected.   However, he did not make such a request.        With regard to the absence of a representative for the applicant during his detention for observation in the mental hospital, the Government submit that under Section 36(1)(a) of the Code of Criminal Procedure, any person who has been detained for observation has the right to be represented from the moment of his placement in the mental hospital regardless of whether that person agreed with the legal representation or not.   The Government stress that no mandatory counsel was appointed, but state that if the applicant had insisted, he could have been represented by counsel of his choice.   With regard to his assets, he was very likely to obtain free legal aid.   They add that the applicant neither objected to the absence of mandatory counsel nor did he request one of his choice.        The absence of legal representation by counsel does not, in the Government's view, constitute a violation of Article 5 para. 1 (Art. 5-1) of the Convention.   The Government presume that compliance with the procedural and material requirements of an order of detention, i.e. with the condition of "lawful" order of detention "in conformity with the procedure set by law", refers only to the proceedings or decision by which an individual will be deprived of his liberty.   The Government consider that this provision refers to the restriction of personal liberty and not to its enforcement.   The Government emphasise that the duty to appoint counsel for the applicant arose at the moment of his placement in the mental hospital.   Prior to that moment there were no statutory grounds for a mandatory counsel.        The Government add that the applicant could have had counsel appointed.   He had been informed about his right to legal assistance on 12 May 1995 when he was charged with contempt of court, but he did not exercise this right until 19 July 1995 when he was detained for observation in the mental hospital.        The applicant first contests the Government's submission that his complaint about the ruling of the Trnava District Court of 11 July 1995 was filed on 18 July 1995 and that he did not complain about his detention for observation in the mental hospital at the domestic level. In fact, on 17 July 1995 he lodged three complaints against the ruling: with the Prosecutor General, the Bratislava Regional Court through the Trnava District Court and the Trnava Investigation Office.        The applicant also contests the Government's submission that if the public prosecutor had been informed he would have immediately arranged his release.   In fact, nine days after his abduction his wife informed the Prosecutor General about the applicant's unlawful detention for observation in the mental hospital.   The Prosecutor General did not secure his release and on 30 August 1995, long after the applicant's return home, he answered the applicant's wife that her complaint had been referred to the Bratislava Regional Prosecutor.   On 21 September 1995 the Regional Prosecutor informed the applicant's wife that her complaint had been handed over to the Trnava District Prosecutor.        The applicant further submits that the Slovak authorities had no right whatsoever to order his examination on an out-patient basis or any other examination and to take him by force from home, to "kidnap him in handcuffs and to deliberately place him into the mental hospital with the only objective - to cover up more effectively the genocides against foreign nationals and minorities".   He claims that during his detention for observation in the mental hospital no one advised him of his right to have a lawyer, not even when he was taken away from his home in handcuffs and brought to the hospital. He says that if he had known about it, he would certainly have agreed in spite of his mistrust of Slovak lawyers.   He denies that he could move about freely and submits that his wife was not allowed to visit him until the fifth day of his detention.   (i)   As to the applicant's complaints under Article 5 para. 1 (Art. 5-1) of the Convention, the Commission recalls that under Article 26 (Art. 26) of the Convention normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged.   Furthermore, it is incumbent on the Government claiming non-exhaustion to show that the remedy was an effective one available in theory and in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant's complaints and offered reasonable prospects of success (see Eur. Court HR, Akdivar and Others v. Turkey judgment of 16 September 1996, Reports of Judgments and Decisions 1996-IV, p. 1211, paras; 66 and 68).        In so far as the petition under Section 167 of the Code of Criminal Procedure in compliance with Section 25(2) of Public Prosecutors Act is concerned, the Commission observes that the applicant pursued this remedy.   On 28 July 1995 his wife informed the Prosecutor General that on 19 July 1995 her husband had been detained in the mental hospital although he had appealed against the Trnava District Court's order of 11 July 1995 to observe him in the mental hospital.   On 30 August 1995 the Prosecutor General informed the applicant's wife that her petition had been referred, for reasons of competence, to the Bratislava Regional Prosecutor, who, on 21 September 1995, informed the applicant's wife that her petition had been sent, again for reasons of competence, to the Trnava District Prosecutor. In this regard, the Commission finds that the Government's objection is unfounded in fact.   The question of effectiveness of this remedy can therefore remain open.        As regards the "podnet", the Commission notes that, according to the Government, this remedy could give rise to a declaration of unlawfulness of the applicant's detention, could have led to his release from the mental hospital and could lead to an award of damages in respect of a violation of Article 17 of the Constitution, which guarantees the personal liberty, or Article 5 para. 1(e) (Art. 5-1-e) of the Convention, which is directly applicable in Slovak law.   The Commission further notes that the Constitutional Court's case-law referred to by the Government (No. I ÚS 79/93, judgment of 15 September 1993) shows that the Constitutional Court has the competence to order the release of a patient confined in a mental establishment without his consent.        In the present case, the applicant was detained in the mental hospital for observation of his mental health.   It is true that during his stay in the hospital, a mandatory counsel was not appointed to him notwithstanding that this was required by the Code of Criminal Procedure.    However, the Commission observes that the applicant's wife accompanied him throughout the criminal proceedings and acted on his behalf after he had been detained in the mental hospital.   The Commission considers that she could have appealed to the Constitutional Court and that this appea