CEDH · CASELAW;JUDGMENTS;CHAMBER;ENG — 21 juin 2011

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text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s7CB9076 { margin-top:36pt; margin-bottom:0pt; page-break-inside:avoid; page-break-after:avoid } .sFCF63115 { width:173.58pt; display:inline-block } .s7602FED2 { width:18.21pt; display:inline-block } .sC1AC44A4 { width:228.11pt; display:inline-block }     THIRD SECTION           CASE OF FRUNI v. SLOVAKIA   (Application no. 8014/07)                   JUDGMENT     STRASBOURG   21 June 2011     FINAL   21/09/2011     This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision . In the case of Fruni v. Slovakia , The European Court of Human Rights (Third Section), sitting as a   Chamber composed of:   Josep Casadevall, President,   Corneliu Bîrsan,   Egbert Myjer,   Ján Šikuta,   Ineta Ziemele,   Nona Tsotsoria,   Kristina Pardalos, judges, and Santiago Quesada, Section Registrar, Having deliberated in private on 24 May 2011, Delivers the following judgment, which was adopted on that date: PROCEDURE 1.     The case originated in an application (no. 8014/07) 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 Vladimír Fruni (“the applicant”), on 12   February   2007. 2.     The applicant was represented by Ms M. Šuvadová and Mr   M.   Kuzma, lawyers practising in Košice, and Mr P. Púchovský, a lawyer practising in Banská Bystrica. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková. 3.     The applicant alleged, in particular, that the Special Court that had remanded, tried and convicted him had lacked the guarantees of an   independent and impartial tribunal established by law and that his pre ‑ trial detention had been too long. 4.     On 27 April 2010 the Court decided to give notice of the application to the Government. It was also decided to rule on the admissibility and merits of the application at the same time (Article 29 §   1). THE FACTS I.     THE CIRCUMSTANCES OF THE CASE 5.     The applicant was born in 1952 and lives in Košice. A.     General framework and legislative background 1.     The applicant’s business activities in Slovakia 6.     In 1995 the applicant became one of the executives of a   limited ‑ liability company, A. 7.     In 1997 the applicant joined a joint-stock company, B., and became the Chairman of its Board of Directors. Later that year, company B. acquired a share in company A. 8.     Companies A. and B. were private financial institutions involved mainly in soliciting and accepting money from the public on a large scale for the promise of unusually high returns. Companies A. and B. were not banks and operated on the basis of various private-law contracts. 9.     On 31 January 2002 the applicant left Slovakia for the Republic of Croatia after terminating his business activities in companies A. and B. 2.     The applicant’s trial and detention 10.     The applicant was subsequently charged with fraud and other offences in Slovakia in connection with his business activities in companies A. and B., arrested in Croatia (1 March 2002) and extradited to Slovakia (26   June 2002), where he was detained pending trial and subsequently tried and convicted. The details are described below. 3.     Legislative developments in Slovakia 11.     In 2003 legislation (Law no. 458/2003 Coll.) was enacted in Slovakia for the establishment of a Special Court ( Špeciálny súd ) with criminal jurisdiction ratione personae over certain public officials and ratione materiae over corruption, organised crime and other serious offences. Appeals against judgments and decisions of the Special Court would be determined by (the Special Division of) the Supreme Court ( Najvyšší súd ). 12.     On 1 January 2006 the new Criminal Code (Law no. 300/2005 Coll. - “the new CC”) and the Code of Criminal Procedure (Law no. 301/2005 Coll. - “the new CCP”) entered into force to replace the old Criminal Code (Law no. 140/1961 Coll., as amended - “the old CC”) and the old Code of Criminal Procedure (Law no. 141/1961 Coll., as amended - “the old CCP”). The new CC provides for a new penalty scale for the offences of which the applicant was convicted. The new CCP provides for new rules in respect of the maximum permitted length of pre-trial detention. 13.     On 20 May 2009 the Constitutional Court ( Ústavný súd ) found that the legislation establishing the Special Court was contrary to the Constitution. 14.     On 17 July 2009 the judgment ( nález ) of the Constitutional Court was published in the Collection of Laws, upon which the impugned legislation ceased to have legal effect. 15.     At the same time, on 17 July 2009, a new piece of legislation (Law   no. 291/2009 Coll.) entered into force, establishing the Specialised Criminal Court ( Špecializovaný trestný súd ). It has criminal jurisdiction to   try serious offences such as, for example, wilful, deliberate and premeditated murder, manipulation in public procurement, counterfeiting, corruption, organised crime and terrorism. Except where provided otherwise, the Specialised Criminal Court replaced the Special Court. The details are described below. B.     Trial 1.     Pre-trial phase 16.     On 4 February 2002 a criminal investigation was commenced into actions related to the business of companies A. and B. 17.     On 28 February 2002 the applicant and two others were charged with conspiracy (Article 9 § 2 of the old CC), fraud (Article 250 §§ 1 and 5 of the old CC), violation of binding business practices (Article 127 § 1 of the old CC) and unauthorised business activities (Article 118 §§ 1 and 3 of the old CC). 18.     The charges were based on the suspicion that, through their involvement in companies A. and B., they were criminally liable for misleading advertising and providing banking services without a banking licence and for accepting and failing to repay the equivalent of some 395,000,000 euros’ (EUR) worth of investment from some 170,000 clients with the knowledge that it was economically impossible to repay them. 19.     On 20 December 2004 the Supreme Court ruled that the victims were not allowed to take part in the proceedings as third parties claiming damages. As to the exercise of the remainder of their procedural rights, common legal representatives were appointed. 20.     On 8 June 2005 the Special Prosecutions Department ( Úrad špeciálnej prokuratúry ) of the Office of the Prosecutor General ( Generálna prokuratúra - “the Special Prosecutor”) indicted the applicant to stand trial on the above charges in the Banská Bystrica Regional Court ( Krajský súd ), which at that time had the powers of the Special Court ( s právomocou Špeciálneho súdu ). 21.     Without a formal decision, the case file was later transmitted to the Special Court in Pezinok. 2.     Access to the case file 22.     At the pre-trial stage, on 13 August 2002, the applicant’s lawyers were denied access to certain information in the investigation file on the ground that giving them access could lead to obstruction or endangerment of the investigation. That position was upheld by the Košice Regional Office of Public Prosecution ( Krajská prokuratúra – “the Regional Prosecutor”) in a letter of 9 January 2003. 23.     On completion of the pre-trial stage, on weekdays between 28   February and 12 April 2005, from 8.30 a.m. to 11.30 a.m. and from 1   p.m. to 3 p.m., the applicant was allowed to consult the case file. It then comprised some 58,500 pages. The total time allotted for the consultation amounted to 130 hours. 3.     Evidence 24.     On 6 February 2002 the Bratislava Police Institute of Criminalistics ( Kriminalisticko-expertízny ústav ) was appointed to secure data in electronic form from the information systems of companies A. and B. This was done by means of inspections of the premises of companies A. and B. 25.     Between 11 and 16 February 2002 statements were taken from six witnesses. 26.     On 23 April 2002 C. was asked to analyse financial data concerning companies A. and B. in the capacity of an expert on accounting and taxation. 27.     Pursuant to a Decree on Appointment ( menovací dekrét ) issued by the President of the Regional Court on 17 September 2002, C. was appointed on the same date as a sworn expert and made a solemn declaration in that capacity. 28.     Prior to his indictment (see paragraph 20 above), on 1 June 2005, the Special Prosecutor upheld a decision of the investigator to dismiss a   request by the applicant for a number of items of further evidence to be taken. 29.     During his trial, on 27 February and 6 June 2006, the applicant asked for some ninety items of additional oral and documentary evidence to be taken. 30.     On 22 November 2006 the Special Court ruled that the evidence ‑ taking be concluded. 31.     In the judgment of 10 January 2007 (see paragraph 36 below), the Special Court held that the applicant’s requests for further evidence to be taken had to be refused, partly because they concerned matters which had already been unequivocally established as fact and partly because they concerned matters that were not relevant. The Special Court concluded that it had taken all evidence necessary for a lawful decision. 4.     Jurisdicti o n and impartiality 32.     On 8 February 2006 the Supreme Court upheld a first-instance decision of the Special Court to dismiss the applicant’s challenge to the jurisdiction of the Special Court. The applicant had mainly contended that he had been indicted in the Regional Court and that no formal decision had been taken to transfer the case to the Special Court. The Supreme Court found that all statutory requirements for the Special Court to have jurisdiction over the applicant’s case had been met and that the case had been transferred to the Special Court by operation of law, which necessitated no formal decision. 33.     The applicant brought a challenge of bias against Judge D., who was the President of the Special Court Chamber trying him. The applicant alleged that Judge D. had previously taken unlawful decisions in respect of his detention. The challenge was dismissed as manifestly ill-founded by the Special Court on 11 September 2006 and, following an interlocutory appeal by the applicant, by the Supreme Court on 19 October 2006. 34.     The applicant also brought challenges of bias against the President and the members of the Supreme Court Chamber trying him. The applicant argued that they had previously been involved in deciding on his detention and that, at a hearing, the President had remarked that he “[was] fed up with procedural motions being brought by [one of the applicant’s lawyers]”. The   challenges were dismissed as unfounded by the Supreme Court on 22   March and 30 May 2007. 35.     A subsequent complaint by the applicant under Article 127 of the Constitution was declared inadmissible as manifestly ill-founded on 6   March 2008. It was noted that the mere fact that a judge had decided on detention did not disqualify him or her from determining the merits in the absence of special circumstances, and that the latter had not been established in the applicant’s case. The defence strategy was found to be marked by attempts to obstruct the proceedings. Against that background, the remark of the President of the Chamber of the Supreme Court was within his prerogative, namely that of organising the proceedings and managing the conduct of the parties. 5.     Conviction, appeal and related constitutional complaint 36.     On 10 January 2007 the Special Court found the applicant guilty of conspiracy and fraud under the provisions of the old CC and sentenced him to eleven years and six months’ imprisonment. 37.     The applicant appealed, arguing (i) that the Special Court was unconstitutional and did not provide guarantees of a fair trial before an   impartial and independent tribunal established by law; (ii) that in any event it had been unlawful to transfer his case from the Regional Court to the Special Court without a judicial decision; (iii) that he had not had adequate time to study the case file and thus to prepare his defence; (iv) that the witness evidence and other evidence obtained through inspections of business premises (see paragraphs 24 and 25 above) before he was charged (see paragraph 17 above) was procedurally inadmissible; (v)   that it was unlawful for the court to take into account pre-trial statements of witnesses who had not been heard by the court in person; (vi) that further evidence should have been taken as he had proposed; (vii) that the applicable procedures had not been followed in the appointment of C. as an   expert witness and in the preparation of his report; (viii) that he had not engaged in any unauthorised business; and (ix) that in any event he should have been tried under the new CC, as its provisions were more lenient. 38.     On 30 May 2007 the Supreme Court dismissed the appeal. It held (i)   that the jurisdiction of the Special Court had been duly established by law; (ii) that C. had been properly appointed after other sworn experts had excused themselves; (iii) that other persons had merely assisted C. in the preparation of his report but had not themselves provided any expert evidence; (iv) that the witness statements and other evidence taken prior to charging the applicant had been obtained lawfully in the framework of criminal proceedings against one or more persons unknown; (v) that no additional evidence was necessary in order to establish the relevant facts; (vi) that the defence strategy had been obstructive and had contributed to the length of the proceedings and detention; (vii) that taken as a whole the new CC was not more lenient for the applicant than the old CC; and (viii) that – in the circumstances – the time available to the defence to inspect the case file had been adequate. As to the remainder of the applicant’s arguments, the Supreme Court fully endorsed the reasons provided by the Special Court. 39.     On 29 April 2008 the Constitutional Court declared inadmissible the applicant’s complaint under Article 127 of the Constitution, in which he had raised in principle similar arguments to those raised in his appeal. Among a   number of other legal provisions, he relied on Article 50 § 6 of the Constitution (application of subsequent more lenient criminal legislation). 40.     The Constitutional Court found that, in part, the applicant’s arguments were to be examined in the framework of proceedings on an   appeal on points of law (dovolanie) and that, as to the remainder, there was no constitutionally relevant arbitrariness in the impugned decisions of the Special Court and the Supreme Court. C.     Arrest and extradition 41.     On 28 February 2002 the Regional Prosecutor requested, and the Košice I. District Court ( Okresný súd ) issued, a warrant for the applicant’s arrest on the charges mentioned above. 42.     On 1 and 2 March 2002 respectively the applicant was arrested in Croatia and remanded (by the Split County Court) in custody pending extradition to Slovakia. 43.     On 26 June 2002 the applicant was handed over to the Slovakian authorities to be prosecuted in Slovakia. He was subsequently detained in Slovakia pending trial there. The details are described below. D.     Detention 1.     Remand in custody, requests for release, extensions of detention and related constitutional complaints 44.     On 26 June 2002 a single judge of the District Court remanded the applicant in custody pending trial to prevent him from absconding (Article   67 § 1 (a) of the old CCP) or interfering with the course of justice (Article 67 § 1 (b) of the old CCP). The lawfulness of the applicant’s detention was subsequently examined numerous times in the context of his requests for release (see paragraphs 45 to 47 below) and requests by the prosecution service for extension of his detention (see paragraph 48 below). 45.     On 30 September 2002 the applicant made a submission in which he argued, inter alia , that his continued detention after 1 September 2002 had been unlawful, since on that day the six-month period for pre-trial detention (from the date of his arrest in Croatia on 1 March 2002) had expired and no extension of his detention had been authorised. He accordingly sought to be released. The Regional Prosecutor subsequently sought a judicial ruling that the period of the applicant’s detention in Croatia be deducted from his detention time in Slovakia. The District Court granted the request of the prosecution service and dismissed the request of the applicant on 21 and 28 October 2002, respectively. Following the applicant’s interlocutory appeals, the matter was finally resolved by the Regional Court on 18 November 2002 when it upheld the District Court’s ruling to the effect that the applicant’s detention time in Croatia did not count as pre-trial detention for the purposes of the time ‑ limits on its maximum duration in Slovakia. 46.     On 5 December 2002 the District Court dismissed the applicant’s further request for release, finding that, although it was no longer necessary to keep him detained to prevent him from interfering with the course of justice, there was a continuing need for his detention to prevent him from absconding. 47.     The applicant’s further requests for release were dismissed at first instance on 16 December 2004 (by the Regional Court) and 21 July 2005 (by the Special Court) and, following interlocutory appeals by the applicant, on 13 January 2005 and 25 July 2006 (by the Supreme Court), respectively. The latter decision was made after a previous decision of the Supreme Court had been quashed by the Constitutional Court on account of a   technical error. 48.     Extensions of the applicant’s detention were authorised by decisions of 21 June 2004 (until 26 December 2004), 20 December 2004 (until 26   June 2005), 21 June 2005 (until 26 January 2006), 26 January 2006 (until 31   March 2006), 23 March 2006 (until 26 June 2006) (see below for details), on 26 June 2006 (until 26 October 2006) (see below for details) and 22   February 2007 (until 26 June 2007). 49.     The courts observed that the applicant stood accused of wide ‑ ranging criminal activity and that an extensive amount of evidence had to be obtained and assessed, including statements from a very large number of witnesses. Some of the evidence was abroad and had to be obtained by means of international judicial assistance. The length of the applicant’s detention was therefore justified. 50.     As to the existence of a risk that the applicant would abscond, the courts held that it was of crucial importance that when leaving Slovakia the applicant had known that criminal proceedings concerning his activities might commence shortly. The applicant had not been staying at his habitual residence in Slovakia and his whereabouts in Croatia had been unknown even to his family. 51.     The courts observed that if convicted the applicant faced a heavy penalty, that he had four passports, that his financial situation would allow him to settle in any country, and that there were indications that he would do so in a country out of the reach of Interpol. 52.     These reasons were endorsed by the Constitutional Court in its decision of 23 August 2005 to declared inadmissible as being manifestly ill ‑ founded the applicant’s complaint under Article 127 of the Constitution, in which, represented by a lawyer, the applicant had sought to challenge the decision of the Supreme Court of 20 December 2004 (see paragraph 48 above), arguing that his continued detention had been unjustified and as such contrary to Article 17 §§ 2 and 5 of the Constitution and Article   5   §   1   (c) of the Convention. 2.     Decision of 23 March 2006 53.     In the decision of 23 March 2006 (see paragraph 48 above) concerning the extension of the applicant’s pre-trial detention, the Supreme Court acceded to a request by the President of the Special Court Chamber trying the applicant and extended the applicant’s detention until 26   June   2006. 54.     At the same time, the Supreme Court expressed the opinion that the limitation on the maximum duration of pre-trial detention to forty-eight months under the new CCP applied to the applicant’s case by operation of the constitutional principle of equality before the law, although, pursuant to the transitional provisions of the new CCP, the applicant’s trial and detention continued to be governed by the old CCP, which allowed detention pending trial to last at most five years. Therefore, as the applicant’s pre-trial detention in Slovakia had commenced on 26 June 2002, a further extension after 26 June 2006 would not be permissible. 3.     Decision of 26 June 2006 and related constitutional complaint 55.     On 7 June 2006 Judge D. of the Special Court requested that the Supreme Court authorise an extension of the applicant’s detention until 26   October 2006. 56.     In his observations in reply, the applicant, assisted by his lawyer, relied on the Supreme Court decision of 23 March 2006, considered the matter to be res judicata and asked for the request to be dismissed. Moreover, the applicant submitted that he had not been heard in person in any of the previous proceedings on extension of his pre-trial detention and argued that this was contrary to his right to adversarial proceedings and equality of arms. 57.     The request fell to be determined by a different bench of the Supreme Court which, on 20 June 2006, summoned the applicant and his lawyer to a public session ( verené zasadnutie ) on the extension of the applicant’s pre-trial detention, to be held on 26 June 2006. 58.     On 26 June 2006, prior to the scheduled public session, the Supreme Court established that the summons had not been served on the applicant’s lawyer within the procedural time-limit of at least five days before the session. The Supreme Court held that in those circumstances the public session could not take place and the matter had to be decided in private session ( neverejné zasadnutie ), that is to say behind closed doors. 59.     Nevertheless, before opening the private session, the Supreme Court allowed, and the applicant used, the opportunity to address the court orally. The applicant was assisted by three defence lawyers and one substitute defence lawyer. He made various submissions, including that he had never had any intention of absconding. 60.     Later on 26 June 2006, in private session, the Supreme Court extended the applicant’s pre-trial detention until 26 October 2006. The Supreme Court explained in detail that the offences of which the applicant stood accused fell within the category of “extremely serious offences” ( obzvlášť závažný trestný čin ) within the meaning of the old CC and the old CCP, that pre-trial detention on charges of such offences could last up to five years under the old CCP and that the old CCP applied. In that context, the Supreme Court referred to a decision of the Constitutional Court of 17 May 2006 in an unrelated but similar case, file no. III. ÚS 164/06 (see paragraph 95 in “Relevant domestic law and practice” below and Martikán v. Slovakia (dec.), no. 50184/06, 17   March   2009), in which the Constitutional Court had upheld a previous decision of the Supreme Court of 5 April 2006 interpreting and applying the relevant law in line with the decision taken in the applicant’s case. 61.     The applicant then requested that the Minister of Justice challenge the decision by way of an appeal on points of law and lodged a   complaint with the Constitutional Court under Article 127 of the Constitution. He   argued that his detention beyond the forty-eight-month time-limit under the new CCP was unlawful and complained that there had been no public hearing. 62.     In a letter of 17 October 2006 the Ministry of Justice dismissed the applicant’s request, having found no error of law or procedure. As to the maximum duration of detention pending trial in situations such as that of the applicant, the Ministry also referred to the above-mentioned decision of the Constitutional Court in the case file no. II. ÚS 164/06. 63.     On 4 October 2006, sitting in private, the Constitutional Court declared the applicant’s constitutional complaint inadmissible. It observed that, although he had complained to the Supreme Court that there had been no oral hearing on the extension of his detention, the applicant had failed to   make a formal request for a public hearing. The applicant had had ample opportunity to make written submissions and he had actually used it, both directly and through the intermediary of his lawyers. In addition, the applicant had addressed the Supreme Court orally before the private session on 26 June 2006. The principle of always applying the more lenient criminal legislation was only valid in substantive criminal law and not in respect of detention, which was a procedural measure. There was no doubt that under the relevant statutory provisions the old CCP continued to apply to the applicant’s detention, including the limits on its maximum duration. The decision was served on the applicant on 4 October 2006. II.     RELEVANT DOMESTIC LAW AND PRACTICE A.     Constitution 64.     Article 17 guarantees the right to liberty. Pursuant to its paragraphs 1 and 2, liberty of a person is guaranteed and no one is to be prosecuted or deprived of liberty except for reasons and in a manner provided for by an   act of Parliament. 65.     Under Article 17 § 5, pre-trial detention is permissible exclusively on grounds and for a period defined by an act of Parliament and on the basis of a court’s ruling. This provision is to be read in conjunction with the provisions of the CCP providing that pre-trial detention may only last for a period that is inevitably necessary (see paragraph 94 below). 66.     The provisions of Article 17 §§ 2 and 5 are understood as comprising the rights under Article 5 § 3 of the Convention not to be deprived of liberty for a period longer than is necessary and to trial within a   reasonable time or to release pending trial (see, for example, judgments of the Constitutional Court in cases nos. III. ÚS 7/00, III. ÚS 255/03 and III.   ÚS 199/05). 67.     Article 127 §§ 1, 2 and 3 of the Constitution provides: “1.     The Constitutional Court shall decide complaints by natural or legal persons alleging a violation of their fundamental rights or freedoms ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court. 2.     If the Constitutional Court finds a complaint justified, it shall deliver a decision stating that a person’s rights or freedoms as set out in paragraph 1 have been violated by a final decision, specific measure or other act and shall quash such decision, measure or act. If the violation that has been found is the result of a failure to act, the Constitutional Court may order [the authority] which has violated the rights or freedoms to take the necessary action. At the same time it may remit the case to the authority concerned for further proceedings, order such authority to refrain from violating the fundamental rights and freedoms ... or, where appropriate, order those who have violated the rights or freedoms set out in paragraph 1 to restore the situation to that existing prior to the violation. 3.     In its decision on a complaint the Constitutional Court may grant appropriate financial compensation to the person whose rights under paragraph 1 have been violated.” B.     Special Court 1.     Establishment 68.     According to the explanatory report ( dôvodová správa ) on the Special Court Act (Law. No 458/2003 Coll.), the aim of the Act was to   create structures for the detection, investigation and prosecution of corruption and organised crime. The Special Court and other authorities established under the Act had national jurisdiction with a view to ensuring better specialisation and protection as well as to severing local ties. 69.     Pursuant to Section VII.9 of the Act, the Special Court had criminal jurisdiction over members of Parliament, members of the Government, heads of central administrative agencies, judges, prosecutors, the Ombudsman, the Director of the National Security Agency ( Národný bezpečnostný úrad – “the NSA”), the Director of the National Intelligence Service and members of the board of the National Bank of Slovakia. 70.     Irrespective of who was the perpetrator, the Special Court also had jurisdiction over certain forms of corruption, organised crime, terrorism, “extremely serious offences” (see paragraph 90 below), crimes of an   economic nature that resulted in damage equal to or greater than ten thousand times the statutory minimum wage, and other offences. 71.     A judge could only be assigned to the Special Court after passing security vetting by the NSA for access to top secret information (Section   VI.1 of the Act) and would be recalled if he or she ceased to meet the security vetting criteria (Section VI.4 of the Act). A decision to refuse security vetting clearance ( bezpečnostná previerka ) could be appealed against in a special parliamentary committee and ultimately, by way of an   administrative-law action, in the Supreme Court. 72.     Special Court judges were entitled to a salary as Supreme Court judges (Section VI.7 of the Act) and to a special monthly allowance equal to double the average nominal wage in the Slovak economy in the previous calendar year (Section VI.12 of the Act). In 2005 the amount of the allowance was increased to six times the average nominal wage in the Slovak economy in the previous calendar year (Law no. 122/2005 Coll.). 2.     Abolition and the majority reasoning 73.     On 11 February 2008 a group of forty-six members of Parliament challenged in the Constitutional Court the constitutionality of the statutory provisions establishing the Special Court. 74.     On 20 May 2009 the Constitutional Court, sitting in plenary, gave a   judgment, by majority of seven against six, declaring the statutory provisions establishing the Special Court unconstitutional. 75.     At the same time, the Constitutional Court ruled that its judgment gave no ground for reopening proceedings which had ended by final but not yet executed judgments of the Special Court, which would otherwise be the case under section 41b of the Constitutional Court Act. 76.     On the publication of the judgment in the Collection of Laws on 17   July 2009, the unconstitutional provisions ceased to have legal effect. 77.     The majority of the Constitutional Court relied on a comparative law analysis concerning specialised jurisdictions in various Council of Europe member States. It observed that there was no specific legal basis in Slovakia allowing for an extraordinary jurisdiction whereas the Special Court had mixed features of a specialised court and an extraordinary court. However, the existence of the latter could only be justified by extraordinary circumstances and for the attainment of an extremely serious goal that could not be attained by other means. 78.     Restricting the jurisdiction of the Special Court ratione personae was an anachronism. This and the requirement for Special Court judges to   have valid security vetting clearance from the NSA, which was an agency within the executive, was found to be incompatible with the principles of legal certainty and division of power. It was also noted that the role of the NSA in respect of appointment of judges to the Special Court unacceptably interfered with the role to the professional body of the judiciary in Slovakia, the Judicial Council ( Súdna Rada Slovenskej republiky ). 79.     In reaching the conclusion mentioned in the precedent paragraph, the majority took into account, inter alia , that existing remedies against decisions of the NSA were insufficient and limited in effect. 80.     Moreover, the remuneration arrangements for the Special Court judges were discriminatory and disproportionate and as such unacceptable. 81.     At the same time, it was pointed out in the reasoning of the judgment that the judgment would have no impact on decisions of the Special Court which had become final, because the reasons for the judgment concerned the institutional status of the Special Court within the judiciary and had no bearing on the legal basis of its decisions. 3.     Dissenting opinion 82.     The dissenting judges were of the opinion that the majority had applied an incorrect test for the determination of the compatibility of the Special Court with the judicial system of Slovakia as a whole. The appropriate test was whether such a court offered sufficient guarantees of a   fair trial before an   independent tribunal. 83.     The question of the social need for the Special Court, which the majority had examined, was predominantly political in nature, fell within the discretion of Parliament and the courts should be most cautious in dealing with such questions. 84.     The dissenting judges found no support for the conclusion that the Special Court had unacceptable features as an extraordinary court. 85.     The requirement for a Supreme Court judge to obtain security vetting clearance from the NSA was legitimate and constitutional. Any doubts as to the powers of the NSA to   withdraw and refuse renewal of security vetting clearance could have been eliminated and did not constitute grounds for abolishing the Special Court. 86.     In addition, the conclusion of the majority that the remedies existing against the security vetting decisions of the NSA were insufficient was not supported by convincing reasoning and it was contrary to the Constitutional Court’s previous case-law. 87.     Furthermore, the majority opinion as to the inadequacy and discriminatory nature of the remuneration of the Special Court judges lacked relevant analysis, the remuneration being legitimate and justified. 88.     Lastly, the ruling concerning inapplicability of section 41b of the Constitutional Court Act (no ground for reopening) was an intolerable act of judicial activism, by which the Constitutional Court had assumed the role of an active lawmaker in excess of its jurisdiction in the given case and, consequently, in breach of the rule of law. 4.     Follow-up 89.     With effect from 17 July 2009 the Specialised Criminal Court was established, which, unless provided for otherwise, provides for procedural continuity after the abolition of the Special Court. C.     The Criminal Code 90.     The old CC distinguished between “offences” ( trestný čin ) and “extremely serious offences” ( obzvlášť závažný trestný čin ). The latter comprised “offences” for which the minimum penalty was equal to or higher than eight years of imprisonment (Article 41 § 2) and “offences” listed in Article 62 of the Code, such as, for example, treason, terrorism, sabotage, spying, currency counterfeiting, genocide, setting up a criminal enterprise, murder and aggravated forms of robbery, hostage-taking, extortion, rape, fraud and money-laundering. 91.     The offence of fraud was defined in Article 250. Pursuant to paragraph 5, in conjunction with Article 89 § 13, if a fraud resulted in damage equal to or greater than five hundred times the statutory minimum monthly salary, it was punishable by imprisonment in the range of five to twelve years. 92.     The new CC distinguishes between “transgressions” ( prečin ), “crimes” ( zločin ) and “extremely serious crimes” ( obzvlášť závažný zločin ). A “crime” that carries as the minimum penalty a term of imprisonment equal to or greater than ten years is considered “extremely serious” (Article   11 § 3). 93.     The crime of fraud is defined in Article 221. Pursuant to paragraph   4, in conjunction with Article 125 § 1, if a fraud results in damage equal to or greater than EUR 133,000, it is punishable by imprisonment in the range of ten to fifteen years. D.     The Code of Criminal Procedure 94.     Pre-trial detention may only last for a period that is inevitably necessary (Article 71 of the old CCP and Article 76 § 1 of the new CCP). 95.     Detailed rules of the old CCP and of the new CCP as well as the existing judicial practice in respect of the maximum duration of detention pending trial are stated in the Court’s decision in the case of Martikán v.   Slovakia (cited above). 96.     Part eight of the new CCP governs extraordinary remedies. These include an appeal on points of law, which is regulated by section two. 97.     An appeal on points of law can be lodged against judicial decisions resolving a matter with final effect (Article 368 § 1). An appeal on points of law has no suppressive effect (Article 368 § 2). 98.     A convicted person is entitled to lodge an appeal on points of law against rulings that directly concern him or her (Article 369 § 2 (b)) within three years of the date the decision is served (Article 370 § 2) on grounds recognised by Article 371 § 1. These include (i) lack of territorial, material or personal competence of the court, (ii) errors in the composition of the bench, (iii) fundamental breach of the rights of defence, (iv) the matter has been decided upon by a judge who should have been excluded from the proceedings, (v) the decision is based on evidence which has not been lawfully examined, and (vi) the penalty imposed is outside the lawful penalty scale. 99.     The merits of an appeal on points of law are determined by the Supreme Court (Article 377) in public session (Articles 384 et seq. ) and legal representation is mandatory (Article 373). 100.     Should the Supreme Court find an appeal on points of law well founded, it makes a finding of a breach of the law (Article 386 § 1) and quashes the decisions concerned (Article 386 § 2). 101.     Should a new determination of the matter be required, the Supreme Court makes an order to that effect (Article 388 § 1). Legal opinions and instructions expressed by the Supreme Court are binding upon the bodies making a new determination of the matter (Article 391 § 1). E.     State liability for damage 102.     The relevant statutory provisions and the existing judicial practice in respect of State liability for damage are summarised in the Court’s judgments in the cases of Štetiar and Šutek v. Slovakia (nos. 20271/06 and 17517/07, §§ 52-61, 23 November 2010); Michalko v. Slovakia (no.   35377/05, §§ 48-64 with further references, 21 December 2010); Osváthová v. Slovakia (no. 15684/05, §§ 34-46, 21 December 2010); Aydemir v. Slovakia (no. 44153/06, §§ 27-43, 8 February 2011); and Michalák v. Slovakia (no. 30157/03, §§ 92 and 93 with further references, 8   February 2011). THE LAW I.     CLAIM FOR DAMAGES UNDER THE STATE LIABILITY ACT 103.     The Government objected that the applicant had failed to exhaust domestic remedies by seeking compensation under the legislation concerning State liability for damage caused by wrongful official action. 104.     The applicant argued that he had lost all faith in the system of justice in the respondent State and that therefore there was no point in resorting to any further domestic remedies. 105.     The Court observes that the Government’s objection is rather general and indistinct. It reiterates that certain aspects of the remedial mechanism referred to by the Government have recently been addressed by the Court in Štetiar and Šutek (cited above, §§ 68-76); Michalko (cited above, §§ 86-96); Osváthová (cited above, §§ 55-63); Michalák (cited above, §§ 101-08); and Aydemir (cited above, §§ 46-53). In those cases, in matters concerning pre-trial detention, the Court found that this mechanism was not effective and did not have to be resorted to for the purposes of Article 35 § 1 of the Convention. The Court finds no reasons to reach a different conclusion in the present case. The relevant part of the Government’s objection therefore has to be dismissed. 106.     In so far as the applicant complains of the lack of an “independent” tribunal “established by law” within the meaning of Article 6 § 1 of the Convention, the Court observes that the crux of the applicant’s complaint appears to lie in the institutional status, constitutional role of and legal framework for the operation of the Special Court. The Court has found no indication how and against whom such matters could be raised in the ordinary courts exercising jurisdiction under the State Liability Act. The relevant part of the Government’s objection therefore has to be dismissed. 107.     To the extent that the Government may be understood as proposing the compensatory mechanism in question in order to remedy other aspects of the applicant’s case than those in respect of which it has already been found ineffective, the Court considers that it is not called upon to examine separately the Government’s objection on the grounds of judicial economy and of the fact that the application is in any event inadmissible, for the reasons specified below. II.     ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION 108.     The applicant complained that he had not had a “fair” hearing by an   “independent” and “impartial” “tribunal established by law” in that: (i)   his trial and conviction had been politically motivated, unjustified and arbitrary; (ii)   contrary to the applicable law, his case had been administratively transferred from the Regional Court to the Special Court; (iii)   there had been no transparent rules for the assignment of his case to the appropriate Chamber of the Special Court; (iv)   the Special Court and the Special Division of the Supreme Court could not be considered independent tribunals established by law because, among other reasons, their existence was contrary to the Constitution and they were under undue influence from the executive, as had eventually been acknowledged by the Constitutional Court in its judgment of 20 May 2009; (v)   the courts had taken into account inadmissible evidence such as witness statements and other evidence obtained prior to the commencement of the proceedings against him; (vi)   contrary to the applicable law, the courts had taken witness statements into account without actually hearing those witnesses, while the applicant had had no opportunity to comment on such statements (see item ix, below) or to question those witnesses; (vii)   the courts had refused to take a substantial amount of evidence cited by the applicant; (viii)   the evidence given by expert C. was flawed, in that the expert had been selected in an irregular and untrustworthy manner, C. had failed to   follow the prescribed procedure, and, contrary to the law, there had been no second expert opinion; (ix)   the time allowed for the preparat