CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 21 décembre 2010

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page-break-after:avoid; font-size:14pt }       FOURTH SECTION           CASE OF MICHALKO v. SLOVAKIA   (Application no. 35377/05)                 JUDGMENT     STRASBOURG   21 December 2010   FINAL   21/03/2011   This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision. In the case of Michalko v. Slovakia , The European Court of Human Rights (Fourth Section), sitting as a   Chamber composed of:   Nicolas Bratza, President,   Lech Garlicki,   Ljiljana Mijović,   David Thór Björgvinsson,   Ján Šikuta,   Päivi Hirvelä,   Mihai Poalelungi, judges, and Lawrence Early, Section Registrar, Having deliberated in private on 30 November 2010, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 35377/05) against the Slovak Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Slovak national, Mr Tibor Michalko (“the applicant”), on 23 September 2005. 2.     The applicant was represented by Mr J. Havlát, a lawyer practising in Bratislava. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková. 3.     The applicant alleged, in particular, that his pre-trial detention had been unlawful and arbitrary and that the corresponding procedure had fallen short of the applicable Convention requirements. 4.     On 8 March 2010 the President of the Fourth Section decided to give notice of the application to the Government. THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1969 and lives in Bratislava. A.     Criminal proceedings 6.     On 22 March 2004 the Bratislava regional police headquarters commenced a criminal investigation into a suspicious claim for a   contractual fine, the mortgage taken out on real property to secure that claim, the expert evaluation of the property and the attempt to sell the property via public auction. 7.     On 29 March 2004 the applicant and three other individuals were charged with conspiracy and attempted fraud in connection with the transaction referred to above. The applicant for his part was suspected of having organised the public auction. The charges against him fell within the category of serious offences specified in Article 62 § 1 of the 1961 Criminal Code (Law no. 140/1961 Coll., as applicable at the relevant time – “the CC”) (see paragraph 71 in “Relevant domestic law” below). The document setting out the charges refers, inter alia , to a statement by the alleged victim, documentary evidence and the results of a search of non ‑ residential premises. The applicant and the other suspects denied the charges and challenged the decision by way of an interlocutory appeal ( sťažnosť ). 8.     On 31 March 2004 the Bratislava Regional Prosecutor’s Office ( Krajská prokuratúra ) dismissed the interlocutory appeal and upheld the charges. The decision contains a detailed factual description of the charges. A general reference was made to the materials in the investigation file and the evidence previously obtained. 9.     The criminal proceedings against the applicant are still pending. B.     Detention order and related constitutional complaint 10.     On 29 March 2004 at 12.40 p.m. the police detained the applicant as a   suspect ( zadržaný ako podozrivý ) immediately before the public auction mentioned above was due to commence. 11.     On 30 March 2004 at 10.10 p.m. the regional prosecutor lodged a   request with the Bratislava I District Court ( Okresný súd ) for the applicant and the other suspects to be placed in detention pending trial. 12.     On 31 March 2004 the applicant was brought before a single judge of the District Court in order to be examined in connection with the prosecutor’s request. 13.     The minutes of the hearing indicate that it commenced at 1 p.m. The applicant denied any wrongdoing and submitted that he had no intention of evading trial or interfering with the administration of justice. He had no knowledge of any other criminal charges against him. In response to a   question put by the regional prosecutor, the applicant acknowledged that the previous day he had been handed a document containing a charge against him for bribery. At the conclusion of the hearing the District Court ordered the applicant’s detention pending trial and the applicant submitted an oral interlocutory appeal. 14.     A written version of the detention order of 31   March 2004 was served on the applicant’s lawyer on 6 April 2004. In a two-page document, of which no more than half a page dealt with questions of substance, the District Court observed that the accused, including the applicant, were being prosecuted for extremely serious offences and that the applicant was facing tax evasion charges in Košice. It could therefore be said that the accused had a manifest inclination to   commit property offences, which gave rise to fears that the persons concerned, including the applicant, would continue their criminal activities within the meaning of Article 67 § 1 (c) of the Code of Criminal Procedure (Law no. 141/1961 Coll., as applicable at the relevant time – “the CCP”). 15.     On 19 April 2004 the applicant submitted the grounds of his appeal, which ran to eighteen pages. He relied on Article 5 of the Convention, explained in detail the private-law aspects of the impugned transaction and argued that there was no criminal case to answer. The applicant further submitted that he had no knowledge of any tax evasion charges against him and that the assertion of the prosecution service to that effect had not been substantiated and should therefore not be taken into account, in accordance with the principle of adversarial proceedings. The applicant added that on 16 April 2004 he had returned his licence to   organise public auctions. There was therefore no risk that he would continue criminal activities and he should be released. In the alternative, the applicant offered a detailed pledge under Article   73 § 1 (b) of the CCP that he would live in accordance with the law, would not interfere with the course of justice and would make himself available for the purposes of his prosecution. 16.     On 6 May 2004, in a private session ( neverejné zasadnutie ), the Bratislava Regional Court ( Krajský súd ) dismissed the applicant’s interlocutory appeal against his detention. In a decision the written version of which ran to less than five pages and concerned all four accused, the Regional Court referred to the “evidence previously obtained” and quoted entire passages from the request of the regional prosecutor of 30 March 2004 for the applicant and the other suspects to be placed in detention pending trial. As the regional prosecutor had submitted, the applicant was facing tax evasion charges in Košice and this assertion had not been rebutted. Moreover, as the applicant himself admitted when questioned on 31 March 2004, he had also been charged with bribery and the document setting out the charge had been served on him in person. “Having examined the materials in the case file”, the Regional Court “concluded” that all the formal requirements had been met for placing the applicant and the other suspects in detention pending trial. It was not up to a   court but to the prosecution service at that stage of the proceedings to   examine whether there was a sufficient basis for the charges. The regional prosecutor had reviewed and upheld the charges. The Regional Court held specifically that the principle of adversarial proceedings had been invoked out of context by the applicant in the pre-trial proceedings and that it only applied to the trial on the merits. The Regional Court also observed that the applicant’s pledge under Article 73 § 1 (b) of the CCP was not sufficient at that stage of the proceedings owing to the nature of the case, which took priority over the applicant’s exclusion from the application of that provision under paragraph   3 of Article 73 (see paragraph   71 in “Relevant domestic law” below). The decision was served on the applicant on 10   June 2004. 17.     On 9 July 2004 the applicant lodged a complaint with the Constitutional Court ( Ústavný súd ) under Article   127 of the Constitution (Constitutional Law no. 460/1992 Coll., as amended – “the Constitution”). He argued that his detention had been unlawful ab initio on the ground that when it began he had not been brought before a judge within the period of twenty-four hours required by Article   8 §   3 of the Charter of Fundamental Rights and Freedoms (Constitutional Law no.   23/1991 Coll.) ( Listina základných práv a slobôd – “the Charter”). It was true that the time-limit for bringing a detained person ( zadržaná osoba ) before a judge under Article 17 § 3 of the Constitution, as amended with effect from 1   July 2001 (Constitutional Law no. 90/2001 Coll.), was forty-eight hours. However, neither the Constitution nor any other legislation had expressly repealed the Charter and an implicit repeal was not permissible. The Charter guaranteed him broader legal protection and had to be applied in his case. 18.     The applicant further contended that the courts had failed independently to examine the existence of any “reasonable suspicion” against him and, explaining the private-law dimension of the impugned transaction, argued that there was no criminal case to answer. 19.     The applicant went on to argue that he had no knowledge of any tax evasion charges against him, that there was no evidence of any such charges having actually been raised against him and that, therefore, an   assertion to that effect was not a ground for detaining him. 20.     The applicant also claimed that the decisions of 31 March and 6   May 2004 had been one-sided in favour of the prosecution, that they lacked adequate reasoning and were generally arbitrary and that he had not had sufficient opportunity to take part in the proceedings as they had been held in camera. 21.     Lastly, the applicant argued that the Regional Court had entirely omitted to give a formal ruling on his offer of a pledge under Article   73 §   1 (b) of the CCP, and that the proceedings on his appeal against his detention had not been speedy. 22.     On 9 February 2005 the Constitutional Court declared the complaint inadmissible as being manifestly ill-founded. It held that all the formal requirements had been met for remanding the applicant in custody and that the Constitutional Court was not a court of appeal and therefore had no power to review as such the assessment of the facts and the interpretation and application of the law by the ordinary courts. 23.     As to the discrepancy between the time-limits for bringing a detained person before a judge under the Charter (twenty-four hours) and the Constitution (forty-eight hours), the Constitutional Court held that, pursuant to Article 152 § 4 of the Constitution, the constitutional provision prevailed. 24.     The principles of adversarial proceedings and equality of arms did not apply in proceedings concerning pre-trial detention and, specifically, in remand proceedings. It had been open to the applicant to substantiate his claim that he was not being prosecuted on other charges and, as he had not done so, the claim could not be accepted. 25.     The decisions of the District Court and the Regional Court were to   be understood in their entirety and any possible shortcomings in the reasoning of the former had been repaired by the latter. 26.     A pledge under Article   73 §   1 (b) of the CCP did not arise either under the Convention or under the CCP in cases of detention under Article   67 § 1 (c) of the CCP such as that of the applicant which, moreover, was expressly excluded by Article   73 §   3 of the CCP, in conjunction with 62 § 1 of the CC. 27.     Finally, the Constitutional Court observed that it had taken seventy ‑ one days (from 31 March to 10 June 2004) for the Regional Court to rule on the applicant’s interlocutory appeal against detention and to have the decision served on him. However, the applicant had not submitted the grounds of his appeal until 19   April 2004 and the Regional Court had ruled on 6   May 2004, which was not an excessively long time. The period between the making and serving of the decision was not to be taken into account as the decision was not subject to appeal and had become final and binding ( právoplatnosť ) on the day it was made. The decision of the Constitutional Court was served on the applicant on 23   March 2005. C.     Request for release and related constitutional complaint 28.     On 4 August 2004 the applicant requested release. By law the request fell to be determined first by the regional prosecutor, who dismissed it and on 10 August 2004 forwarded it ex officio to the District Court for judicial determination. 29.     On 7 September 2004 a single judge of the District Court ordered the applicant’s release on the ground that his continued detention was no longer justified. 30.     On 12 October 2004 the Regional Court quashed the decision of 7   September 2004 following an interlocutory appeal by the prosecutor, and ruled that the applicant should remain in detention. The decision was served on the applicant and his lawyer on 19 and 23   November 2004 respectively. 31.     On 21 January 2005 the applicant lodged a complaint with the Constitutional Court under Article 127 of the Constitution. He contended mainly that there had been no hearing and that he had been deprived of an   opportunity to reply to the prosecutor’s appeal. The applicant also complained that the decision of 12   October 2004 had been arbitrary and that the proceedings on his request for release had not been speedy. 32.     On 14 September 2006 the Constitutional Court declared the complaint inadmissible as out of time. With reference to its previous decisions in cases nos. III. ÚS 90/03, III. ÚS 188/03, III. ÚS 332/04 and II. ÚS 246/06, the Constitutional Court observed that when a decision under the CCP which was final was served on a   complainant and his or her lawyer, the applicable two-month time-limit for challenging such decision by way of a constitutional complaint started on the day when the decision was served on the complainant. In the applicant’s case, the time-limit started to run on 19   November 2004 and ended on 19   January 2005, whereas his complaint had not been lodged until 21   January 2005. D.     Extension of detention and related constitutional complaint 33.     On 17 September 2004 the regional prosecutor requested the District Court to authorise an extension of the detention of the applicant and all his co-defendants until 29 December 2004. 34.     On 21 September 2004 a single judge of the District Court rejected the request. 35.     On 14 October 2004 the Regional Court quashed the decision of 21   September 2004 following an interlocutory appeal by the prosecutor, and ruled that the applicant should remain in detention until 29   December 2004. The decision was served on the applicant on 29   October 2004 and on his lawyer on 2   November 2004. 36.     The applicant lodged a complaint with the Constitutional Court on 30 December 2004 under Article 127 of the Constitution. The complaint arrived at the Constitutional Court on 2 January 2005. 37.     The applicant contended mainly that there had been no hearing on the prosecutor’s request for extension of his detention and on the prosecutor’s appeal and that he had been deprived of an   opportunity to reply to that appeal. He also complained that the decision of 14   October 2004 had been arbitrary and that the proceedings had not been speedy. 38.     On 1 June 2005 the Constitutional Court declared the complaint inadmissible as having been lodged out of time. It observed that the extension of the applicant’s detention had become final and binding ( právoplatnosť ) on the day when the Regional Court quashed the decision of the District Court and resolved the matter itself, irrespective of when a   written copy of the Regional Court’s decision had been served on the parties. The Constitutional Court held that, therefore, the two-month time-limit in the present case had commenced on 14   October 2004 and ended on 14   December 2004, whereas the constitutional complaint had not reached the Constitutional Court until 2   January 2005. The Constitutional Court also observed that, even if the two-month time ‑ limit were to be counted from the date of service of the impugned decision on the applicant, which was 29   October 2004, the applicant’s constitutional complaint was out of time. II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     The Charter of Basic Rights and Freedoms ( Listina základných práv s slobôd ) 39.     The Charter was introduced into the legal order by way of a   constitutional law which was enacted by the Federal Assembly of the Czech and Slovak Federal Republic on 9   January 1991 and which entered into force on 8 February 1991. It is a valid law in Slovakia today. 40.     Pursuant to Article   1 §   1 of that constitutional law, constitutional legislation ( ústavné zákony ), other Acts of Parliament ( zákony ) and legal regulations ( ďalšie právne predpisy ), and their interpretation and implementation, must be compliant with the Charter. 41.     Under Article   8 §   3 of the Charter, a person arrested as a suspect or on the basis of a charge against him or her ( zadržaná osoba ) must be   brought before a judge within twenty-four hours. The judge must examine the arrested person and decide whether he or she should be   remanded in custody or released, within twenty ‑ four hours of his or her presentation. B.     The Constitution ( Ústava ) 42.     The Constitution was adopted by the National Council of the Slovak Republic on 1 September 1992 and its relevant part entered into force on 1   January 1993. It has the status of constitutional legislation in Slovakia. 43.     Pursuant to Article 17 § 3, as in force until 30   June 2001, a person arrested as a suspect or on the basis of a charge against him or her ( zadržaná osoba ) had to be brought before a judge within twenty-four hours of the arrest. The judge had to examine the person and order detention pending trial or release within twenty-four hours of presentation. 44.     Some provisions of the Constitution were amended with effect from 1 July 2001. Since then, pursuant to Article   17 §   3, a person arrested as a   suspect or on the basis of a charge against him or her ( zadržaná osoba ) has had to be brought before a judge within forty-eight hours of arrest. The judge has to examine the detained person and order his or her detention pending trial or release within forty-eight hours and, in the case of particularly serious offences, within seventy-two hours of presentation. 45.     Under Article 152, which has not been affected by any amendments, constitutional legislation, other Acts of Parliament and other generally binding legal regulations remain in force in the Slovak Republic, provided that they are not contrary to the Constitution (§ 1). Their interpretation and application must be compliant with the Constitution (§ 4). C.     The Constitutional Court Act (Law no. 38/1993 Coll., as amended) 46.     Section 53(3) provides that a complaint to the Constitutional Court may be lodged within two months of the date on which the decision in question has become final and binding or on which a measure has been notified or notice of other interference with the complainant’s interests has been given. As regards measures and other types of interference, this period commences when the complainant has a practical possibility of becoming aware of them. 47.     Under section 31a, except where otherwise provided or where the nature of the matter at hand precludes their application, the provisions of the Code of Civil Procedure and the CCP are to be applied accordingly in proceedings before the Constitutional Court. D.     The State Liability Act 1969 (Law no. 58/1969 Coll.) and practice of the ordinary courts in its application 48.     Until 30 June 2004 State liability for damage caused by decisions concerning pre-trial detention was governed by Chapter ( hlava )   2 of Part ( časť ) 1 of the Act on State Liability for Damage Caused by a State Body’s Decisions or Erroneous Official Action ( Zákon o zodpovednosti za škodu spôsobenú rozhodnutím orgánu štátu alebo jeho nesprávnym úradným postupom – “the State Liability Act 1969”). 49.     Persons deprived of their liberty had a claim against the State for damages when the criminal proceedings against them were dropped or they were acquitted (section 5(1)). However, such compensation was excluded when the persons concerned were responsible for their own detention, in particular when they had tried to abscond or had otherwise given rise to the facts on which the decision concerning their detention was based. 50.     Section 18(1) rendered the State liable for damage caused in the context of carrying out functions vested in public authorities resulting from wrongful official action of persons entrusted with the exercise of those functions. An award of compensation could be made when the plaintiff showed that he or she had suffered damage as a result of the wrongful official action of a public authority, quantified its amount, and showed that there was a   causal link between the damage and the wrongful action in question. 51.     The State Liability Act 1969 was traditionally interpreted and applied as not allowing for compensation to be awarded for non-pecuniary damage unless it was related to the deterioration of a person’s health (see, for example, Pavletić v. Slovakia , no. 39359/98, § 55, 22 June 2004, and Havala v. Slovakia (dec.), no. 47804/99, 13 September 2001). 52.     By its judgment of 31 May 2007 in an appeal on points of law (no.   4 Cdo   177/2005) concerning an action for damages under the State Liability Act 1969, the Supreme Court upheld the view that neither that Act nor an   action for protection of personal integrity provided a legal basis for awarding compensation in respect of non-pecuniary damage caused by unlawful detention. The State Liability Act 1969 was, however, to be interpreted in line with Article 5 § 5 of the Convention which presupposed compensation for non ‑ pecuniary damage and which, pursuant to Article   154c §   1 of the Constitution, prevailed over the statutory text. This line of reasoning was followed in judgments of the Banská Bystrica Regional Court of 26   March 2009 and Nitra Regional Court of 26   February 2010 when deciding on appeals nos.   12Co 5/2009 and 6Co   237/2009. As the decisive events had taken place prior to 1 July 2004, the courts applied the State Liability Act 1969 and not the State Liability Act   2003. E.     State Liability Act 2003 (Law no. 514/2003 Coll.) and practice of the ordinary courts in its application 53.     In June 2002 the Minister of Justice submitted to the Government a   draft bill providing for a new legislative framework for official liability. The bill was accompanied by an introductory report ( predkladacia správa ) in which the Minister observed, inter alia , that the old State Liability Act had been on the statute book since 1969 and that, owing to subsequent changes to the social system and the adoption of the Convention, there was a new understanding of the concept of State liability for damage, which called for the introduction of new legislation. 54.     The bill was later submitted to Parliament with an explanatory report, the relevant part of which stated that it was necessary to extend the current concept of the right to damages to incorporate just satisfaction in respect of non-pecuniary damage as well as pecuniary damage. The purpose of the proposed Act was, inter alia , to render the mechanism of compensation for damage caused by public authorities more effective and thereby reduce the number of cases in which claimants were obliged to seek redress before the European Court of Human Rights. 55.     The bill was adopted with effect from 1   July 2004 ( Zákon o zodpovednosti za škodu spôsobenú pri výkone verejnej moci ) and replaced the State Liability Act 1969. 56.     The right to compensation for damage caused by a decision concerning detention on remand ( väzba ) is vested in the person who was detained on remand provided that the criminal proceedings against him or her have been dropped (section 8(5)(a)) or he or she has been acquitted (section 8(5)(b)) or the matter has been referred to another authority (section 8(5)(c)). 57.     However, no such right arises when the person concerned himself or herself gave cause for the detention on remand (section 8(6)(a)). 58.     The State is also liable for damage caused by wrongful official action which comprises, inter alia, a public authority’s failure to take an   action within the time-limit set, inactivity or any other unlawful interference with rights and legally recognised interests of individuals and legal entities (section 9(1)). 59.     The right to compensation for damage caused by wrongful official action is vested in the person who suffered the damage (section   9(2)). 60.     Under section 17 the compensation is to cover pecuniary damage, including loss of profit, and, where appropriate and necessary, non ‑ pecuniary damage. 61.     The Act applies only to damage caused by decisions and wrongful official action occurring after it entered into force (section 27(1)). Liability for damage resulting from decisions and wrongful official action that took place before the entry into force of the Act falls under the State Liability Act 1969. 62.     In a judgment of 16 March 2007 (in case no. 4C   258/2006) the Brezno District Court granted an action for damages by two individuals against the State under the State Liability Act 2003 and ordered the defendant to pay the costs of their defence in a criminal trial on charges of 2005 that had ended with their acquittal with final and binding effect in 2006. On 22   November 2007 the Banská Bystrica Regional Court upheld the judgment following the defendant’s appeal. 63.     On 14 October 2009 the Bratislava Regional Court granted an appeal (case no.   2Co 238/2008) in an action by an individual against the State under the State Liability Act 2003 for damages and awarded him an   amount of money in compensation for non-pecuniary damage caused by detention on remand in 2005 in the context of a criminal trial on charges of the same year that had ended with his acquittal with final and binding effect in   2006. 64.     In a judgment of 17   August 2009 (in case no.   19C 47/2006) the Bratislava District Court granted an action for damages by an individual against the State under the State Liability Act   2003 and awarded the claimant an amount of money in compensation for non-pecuniary damage caused by wrongful official action in connection with his detention pending a criminal trial. The impugned wrongful official action concerned an extension by a   decision of 12   October 2004 until 28   April 2005 of the claimant’s detention pending trial. The action was preceded by a judgment of the Constitutional Court of 19   October 2005 (in case no. I.   ÚS 65/05) in which the Constitutional Court had found a violation of the claimant’s rights under Article   5 §§   3 and 4 in connection with the same facts. However, the Constitutional Court had been unable to award the claimant damages as he had made no claim to that effect. F.     Practice of the Constitutional Court in respect of Article 8 of the Charter 65.     In its decisions of 9   June and 8   September 2004 and 13   January 2005, in cases nos. I.   ÚS 100/04, I. ÚS 141/04 and I. ÚS 2/05 respectively, the First Chamber of the Constitutional Court held that, by virtue of Article   152 §§   1 and 4 of the Constitution, the time-limit of forty ‑ eight hours under the Constitution took precedence over the time-limit of twenty ‑ four hours under the Charter. The same position was taken by the Second, Third and Fourth Chambers of the Constitutional Court in decisions of 6   February 2005, 22   November 2006, 30   June 2004, 5   October 2005 and 9   March 2005 in cases nos. II. ÚS 38/05, II. ÚS 369/06, III. ÚS 220/04, III. ÚS 273/05 and IV. ÚS 64/05, and appears to have been taken by the First Chamber and the Fourth Chamber of the Constitutional Court in their decisions of 16   December and 25   August 2004 in cases nos. I.   ÚS 239/04 and IV. ÚS   235/04. G.     Practice of the Constitutional Court in respect of section 53(3) of the Constitutional Court Act 66.     In a decision of 23   August 2006 in case no.   II. ÚS 246/06, the Second Chamber of the Constitutional Court took the view that, in respect of final decisions under the CCP which were served on both the complainant and his or her lawyer, the decisive date for the start of the two ‑ month time-limit was the date when the decision was served on the complainant. The same position was taken by the Third Chamber of the Constitutional Court in decisions of 26 March and 21   August 2003 and 3   November 2004 (cases nos.   III. ÚS 90/03, III. ÚS 188/03 and III.   ÚS   332/04). The conclusion of the Constitutional Court in all these decisions in respect of the two-month time-limit is supported by analysis. 67.     The same line of interpretation was followed by the Constitutional Court in subsequent decisions, including those of 20 June and 14   September 2006, 17   April 2008, 12 February, 24 June and 8 September 2009 and 21   January 2010 in cases nos. II. ÚS 166/06, II. ÚS 288/06, IV.   ÚS   131/08, IV.   ÚS 37/09, I.   ÚS 177/99, III.   ÚS   281/09 and IV. ÚS 9/2010. 68.     On 13 January 2005, in case no. I. ÚS 2/05, the First Chamber of the Constitutional Court declared admissible part of a complaint under Article 127 of the Constitution which was lodged with the Constitutional Court on 7 December 2004, concerning a decision that had been served on the complainant on 6 October 2004, while he was in detention, and on his lawyer on 7 October 2004. The decision contains no analysis in respect of the two-month time-limit. From the case file concerning application no.   30011/05 it transpires that the above-referred decision of the Constitutional Court of 13   January 2005 was notified in writing and was served on the complainant on 9   February 2005. 69.     In decision of 25 November 2004 in case no.   IV. ÚS 372/04 the Constitutional Court took as decisive for the commencement of the two ‑ month time-limit the date when an interlocutory appeal was determined, irrespective of when the decision was served on the detained complainant and his lawyer. H.     The Code of Criminal Procedure 70.     At the relevant time and until 31 December 2005, criminal procedure in Slovakia was governed by the 1961 Code of Criminal Procedure. This Code has been amended numerous times. 71.     Under Article 73 a court or a single judge had the power to release pending trial persons arrested in order to prevent them from absconding or continuing their criminal activities within the meaning of Article   67 §   1 (a) and (c), if a guarantee was provided on their behalf or if they gave a pledge that they would live in accordance with the law, cooperate with the authorities and make themselves available for the purposes of the prosecution. Under Article   73a a court or a single judge had similar powers to release the accused pending trial on payment of bail. However, persons charged with certain serious offences defined in Article   62 §   1 of the CC were excluded from the scope of these provisions (Article   73 §   3 and 73a §   1). 72.     The time-limit for delivering a detained person to a court was laid down in Articles   76 §   4 and 77 §   1. 73.     Until 31 July 2001 a person arrested as a suspect or on the basis of a   charge against him or her ( zadržaná osoba ) had to be released or brought before a judge with a request for a detention order within twenty-four hours of arrest. 74.     On 1 August 2001 an amendment took effect, pursuant to which a   person arrested as a suspect or on the basis of a charge against him or her had to be released or brought before a judge with a request for a detention order within forty-eight hours of arrest. 75.     Under Article 143 § 1, which remained unchanged throughout the relevant period, interlocutory appeals were to be lodged within three days of service of the decision appealed against. If the decision was served on both the accused and his or her lawyer, the time-limit started to run on the later date of service. I.     Practice of the Constitutional Court in respect of conditions for release 76.     In its decisions of 8 October 2004 and 26   October 2005, in cases nos.   I.   ÚS 100/04 and I. ÚS 239/04, the Constitutional Court found a   violation of an individual’s rights under Article   5 §   3 of the Convention on account of the ordinary courts’ failure to examine on the substance and formally to   make a ruling on the complainant’s pledge, given in the context of his application for release from detention pending trial, that he would live in accordance with the law. The Constitutional Court observed that the relevant provisions of the CCP by operation of law did not allow for the replacement of the complaint’s detention by his pledge. These provisions were however to   be   interpreted in line with Article   5 § 3 of the Convention, which called for the possibility of a release on conditions, and, pursuant to Article   154c §   1 of the Constitution, prevailed over the statutory text. J.     Practice of the ordinary courts in respect of Article 8 of the Charter 77.     In a decision of 16 February 2006 the Trnava Regional Court overturned a detention order issued by the Galanta District Court on 3   February 2006 and ordered the release of the detainee. The Regional Court did so having “examined the written interlocutory appeal of the person charged as submitted by his defence counsel ... and [having] appraised itself of the objections raised therein”. The objections in question included a claim that the authorities had failed to observe the twenty ‑ four ‑ hour time ‑ limit under the Charter for bringing the person charged before a judge. Nevertheless, the Regional Court made no specific reference to that argument and offered no reasons other than those mentioned above. K.     Rules on making legislation 78.     The rules on making legislation were approved by the National Council of the Slovak Republic by way of a resolution passed on 18   December 1996 and published in the Collection of Laws under the number   19/1997. 79.     The rules apply to constitutional legislation and other Acts of Parliament (Article 1 § 1) and provide, inter alia, that amendments to legislation are to be made by means of a direct and explicit amendment and that indirect or implicit amendments are impermissible (Article   11 §   1). 80.     Identical rules were adopted by the Government in the form of a resolution passed on 8   April 1997 under the number 241 and published in the Collection of Laws under the number   372/2000. 81.     Under section 2 of the Collection of Laws Act (Law no.   1/1993), anything that has been published in the Collection of Laws is presumed to   have become known to all those concerned on the day of publication. This presumption is non-rebuttable. THE LAW I.     ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION 82.     The applicant raised a number of generic complaints which can be   summarised as follows: (i) that he had not been brought before a judge within twenty-four hours of his arrest as required under the Charter; (ii) that there were no reasons for his continued detention and that it was arbitrary; (iii) that the principles of adversarial proceedings and equality of arms had not been complied with in the remand proceedings and in the proceedings concerning the prosecutor’s request for extension of the applicant’s detention and the applicant’s request for release; (iv) that in the remand proceedings the courts had failed to deal adequately with his arguments concerning the lack of a “reasonable suspicion” against him and the lack of reasons for detaining him pending trial; (v)   that the decisions of 31   March, 6   May and 12 and 14 October 2004 had generally lacked adequate reasoning; (vi) that the courts had failed to   rule on his offer of a pledge under Article 73 § 1 (b) of the CCP; (vii) that the proceedings in respect of the applicant’s interlocutory appeal against detention, his request for release and the prosecution’s interlocutory appeal against the decision of 21   September 2004 had not been “speedy”; and (viii) that the decisions of the Constitutional Court of 9   February and 1 June 2005 and 14   September 2006 had infringed the applicant’s right to compensation in respect of his wrongful detention. The applicant relied on Article 5 §§ 1 (c), 3, 4 and 5 of the Convention, which provide 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: ... (c)     the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ... 3.     Everyone arrested or detained in accordance with the provisions of paragraph   1   (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial. 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. 5.     Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.” A.     Admissibility 1.     The Government’s objection of non-exhaustion of domestic remedies (a)     The parties’ arguments 83.     The Government argued in general that the applicant had failed to   comply with the requirement of Article   35 §   1 of the Convention to   exhaust domestic remedies in that he had failed to claim compensation from the State under the State Liability Act 1969 and the State Liability Act 2003 in respect of “wrongful official action” (see paragraphs   50 and 58   above). 84.     The Government referred to the current judicial practice (see paragraphs   52 and 62 to 64 above) and asserted that both under the State Liability Act   1969 and the State Liability Act   2003 the applicant could have obtained compensation in respect of both pecuniary and non ‑ pecuniary damage. 85.     The applicant submitted, in reply, that the State Liability Act   2003 was inapplicable for two reasons. First, under section 8(5), compensation for damage caused by decisions concerning detention could only be   awarded if the proceedings were dropped, the detained person was acquitted or the matter was referred to another authority, none of which applied in his case as his proceedings were still pending. Second, in accordance with section   27, only damage caused by decisions and actions that took place after the entry into force of the Act could be the subject of compensation under the State Liability Act   2003. (b)     The Court’s assessment in respect of the complaints under Article   5 §§   1, 3 and 4 of the Convention 86.     The Court considers that in respect of the requirement to exhaust domestic remedies a distinction has to be made between, on the one hand, the applicant’s complaints under Article 5 §§ 1, 3 and 4 of the Convention and, on the other hand, his complaint under Article 5 § 5 of the Convention. 87.     As to the complaints under Article 5 §§ 1, 3 and 4 of the Convention, which concern lawfulness and justification of the applicant’s deprivation of liberty and conformity of the relevant procedure with the Convention requirements, the Court observes that the remedies advanced by the Government are only compensatory in nature. 88.     In particular, the Court observes that these remedies were not aimed at and capable of redressing the applicant’s situation in its essence, that is to   say to bring about an end to his continuing deprivation of liberty and rectification of the alleged shortcomings in the proceedings (see Weeks v.   the United Kingdom , 2   March 1987, §   61, Series A no.   114; Pavletić v.   Slovakia , no.   39359/98 , §   69, 22   June 2004 and, mutatis mutandis , Smatana v.   the Czech Republic , no.   18642/04, § 111, 27   September 2007). These remedies had to be   examined by the civil courts and there is no indication that such courts could in any way interfere with matters concerning the applicant’s continued detention on remand that fall within the jurisdiction of the criminal courts (see Haris v.   Slovakia , no. &#xa0