CEDH · CASELAW;COMMUNICATEDCASES;ENG — 27 juin 2012

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He is represented before the Court by Mr M. Kováčik, a lawyer practising in Banská Bystrica. A.     The circumstances of the case The facts of the case, as submitted by the applicant, may be summarised as follows. 1.     Background 2.     On 15 June 2004 the applicant and 13 others were charged with setting up a criminal enterprise, tax fraud and corruption on the suspicion that they had been involved in a large-scale criminal scheme involving the trading in engine diesel falsely declared as mineral oils. The applicant’s interlocutory appeal ( sťažnosť ) against the charges was dismissed on 3   August 2004 and the outcome of his subsequent complaint under Article 127 of the Constitution (Constitutional law no. 460/1992 Coll., as amended) to the Constitutional Court ( Ústavný súd ) is unknown, although it may be presumed that it was unsuccessful. 3.     On 18 June and 5 August 2004, respectively, the Trnava District Court ( Okresný súd ) and, following the applicant’s interlocutory appeal, the Trnava Regional Court ( Krajský súd ) remanded the applicant in detention pending trial on the above charges in order to prevent him from continuing criminal activities within the meaning of Article 67 § 1 (c) of the Code f Criminal Procedure (Law no. 141/1961 Coll., as applicable at the relevant time – “the CCP”) (see paragraph 18 below). In that respect, it was observed that the applicant had been and still was engaged in business activities in the impugned area over a   protracted period of time and that those activates were of systematic and lasting character. Although the applicant has not informed the Court of the outcome of his subsequent constitutional complaint, it may be presumed that it was unsuccessful. 2.     Request for release 4.     On 26 August 2004, through the intermediary of his lawyer, the applicant requested release. He denied any wrongdoing and contended that his charges were wholly unsubstantiated by evidence. Furthermore, he argued that there was no concrete ground to give rise to any justified suspicion that he would continue engaging in the activities under investigation because he had either never had any authorisation to act on behalf of the companies involved or any such authorisation had recently been terminated. At the same time, the applicant’s lawyer submitted an offer of a pledge under Article 73 § 1 of the CCP (see paragraph 19 below) that, if released, the applicant would live in accordance with the law. 5.     On 16 and 27   September 2004 the applicant added further grounds of his request in that, as a precaution, he had terminated his participation in the management and statutory representation of any other company he was involved in even though such companies had nothing to do with the activates under investigation. 6.     The Public Prosecution Service (“the PPS”) dismissed the request and, on 29 September 2004, transmitted it ex officio for judicial determination to the Banská Bystrica Regional Court. 7.     When transmitting the applicant’s request to the Regional Court, the PPS attached a report proposing that the request be dismissed because the investigation was ongoing, a great number of investigative steps had to be taken, and releasing the applicant and the other suspects would put the investigation in jeopardy. The applicant obtained a copy of this report on his lawyer’s initiative. In response, on 22   October 2004, he made a written submission to the Regional Court contending that the PPS’s reasons bore no relevance to the grounds on which he was detained. 8.     On 22 October 2004, in a private session ( neverejné zasadnutie ) and without hearing the applicant, a   single judge of the Regional Court dismissed his request. He considered that the applicant’s detention was still called for on the same grounds as when remanded, in particular in view of the “scope and character” of the suspected offences and the extended time over which they should have taken place and the “organised manner of their commission together with other persons”. On the factual level, the judge justified his above-mentioned conclusions by referring to “the contents of the case file obtained and documented up until [that time]”, “the evidence obtained up until [that time]” and “the operative findings by the police”. The judge also observed that up until then about 700 witnesses had been interviewed and new facts had come to light, which necessitated further investigation. The risk that the applicant would continue criminal activates did not relate solely to his previous modus operandi . The termination of the applicant’s participation in the management of the existing companies was therefore of no consequence as there was information indicating that there was an important movement of creating new shell companies and transferring the existing ones with a view to covering up the investigated scheme. As to the pledge of orderly conduct, as made on the applicant’s behalf by his lawyer, it could not be accepted because it was neither written nor signed by the applicant himself and because such pledge was impermissible by law in the event of detention on the charges such as those of the applicant (see paragraph 20 below). 9.     On 27 October and 2 November 2004, respectively, the applicant lodged an interlocutory appeal and submitted his grounds for appealing, contending mainly that the Regional Court’s conclusions were abstract and without reference to any concrete element of fact and evidence. 10.     On 19 January 2005 the Supreme Court ( Najvyšší súd )) dismissed the applicant’s appeal in a private session and without hearing the applicant. In a short decision it referred to the vast damage that the applicant and his co-accused were suspected of having caused, the fact that the applicant was suspected of having engaged in the illicit activities for a   period of at least three years, and the fact that, if released, the applicant could continue such activities in various ways including through third persons. The decision was served on the applicant’s lawyer and the applicant himself on 2 and 3 February 2005, respectively. 3.     Extension of detention 11.     Meanwhile, on 22 November 2004, the PPS had filed a request with the Regional Court seeking an extension of the applicant’s detention until 15   June 2005. It was argued that the scheme under investigation comprised at least 680 legal entities and 1,280 persons, that it had generated the equivalent of at least 5,077,000 euros in illegal profit for the applicant and his co-accused, and that the applicant had continued the activities in question even after and despite the police crack down on the scheme which had commenced in April 2003. 12.     On 14 December 2004 the Regional Court acceded to the request fully endorsing the reasons supplied by the PPS. The decision was taken in a private session without hearing the applicant. 13.     On 20 and 27 December 2004 respectively, the applicant lodged an   interlocutory appeal and submitted his reasons for appealing. He argued mainly that the Regional Court had decided without having at its disposal the complete case file. It therefore could not have had full knowledge of the case. Furthermore, there were no concrete grounds for suspecting that the applicant had committed the offences in question and that, if at liberty, he would continue offending. 14.     On 20 January 2005 the Supreme Court dismissed the applicant’s appeal in a private session and without hearing the applicant. It found that the proceedings against him were still justified by the persisting suspicion against him and that his detention was still justified on the same grounds as before. The decision was served on the applicant at an unknown date, presumably after 2 February 2005. 4.     Constitutional complaint 15.     On 17 March 2005 the applicant lodged a complaint under Article   127 of the Constitution with the Constitutional Court. Relying on Articles 5 §§ 3 and 4 and 6 §§ 1 and 3 (c) and (d) of the Convention, he contested the above decisions of 22 October and 14 December 2004 and 19   and 20 January 2005. He argued in particular (i) that his prosecution and detention had been based on hypothetical and abstract grounds without any reference to concrete evidence, (ii) that the contested decisions lacked adequate reasoning, (iii) that in connection with them he had not been heard in person and (iv) the proceedings had not been “speedy”, and (v) that the dismissal of his pledge of lawful conduct was arbitrary and, although arguably in accordance with the applicable domestic law, it was contrary to the Convention which, in the given case, guaranteed him a broader scope of rights than the domestic law. 16.     On 20 September 2007 the Constitutional Court declared the applicant’s complaint inadmissible. It found that the reasons given by the ordinary courts for keeping the applicant detained and for extending his detention were not arbitrary and that they were based on relevant and sufficient arguments. The applicant had had full knowledge of the position of the PPS and had had ample opportunity to contest it and to state his case in writing. The fact that the decisions had been taken without hearing him did not render the proceedings incompatible with the standards of Article 5 § 4 of the Convention, which were lesser than those of Article   6 § 1 of the Convention. The latter Article was moreover inapplicable in the present case because the impugned proceedings concerned the applicant’s detention and not the criminal charges against him as such. As to the alleged lack of speediness of the proceedings, the Constitutional Court observed that the time taken by the Supreme Court to   determine the applicant’s interlocutory appeal against the decision of 22   October 2004 had as such been inadequate. However, it had to be viewed in the light of the facts that, meanwhile, the issue of extension of the applicant’s detention had been examined and that, on 16 June 2005, the applicant had been released. In sum, there was no indication of a breach of the “speediness” requirement. The part of the applicant’s complaint concerning the dismissal of his pledge of lawful conduct was not addressed by the Constitutional Court in any way. The decision was served on the applicant’s lawyer on 11 February 2008. B.     Relevant domestic law and practice 17.     At the relevant time and until 31 December 2005, criminal procedure in Slovakia was governed by the 1961 CCP, which had been amended numerous times. 18.     Under Article 67 § 1 (c) a person charged with a criminal offence could be detained only if there were “concrete facts justifying concern” that he or she would continue criminal activities, complete an attempted offence or commit an offence which he or she had prepared or threatened to commit. 19.     Under Article 73 § 1 the body deciding on detention had the power to   release pending trial persons arrested in order to prevent them from continuing their criminal activities within the meaning of Article 67 § 1 (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. 20.     However, persons charged with certain serious offences defined in Article 62 § 1 of the Criminal Code (Law no. 140/1963 Coll., as applicable at the given time) were excluded from the scope of this provision (Article   73 § 3). 21.     In that respect, in its judgment (nález ) of 11 October 2001 in case no. III.   ÚS 38/01, the Constitutional Court held that the court deciding on detention is to assess the relevant facts both in favour and against detention, including the possibility of substituting detention by a guarantee, pledge or bail and, should it decide to remand or keep a person in detention, the decision is to be based on concrete facts and not on abstract reflections. 22.     In its judgments 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 under Article 73 § 1 of the CCP, 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. COMPLAINTS 23.     Relying on Articles 5 §§ 3 and 4 and 6 §§ 1 and 3 (c) of the Convention, the applicant complains that: (i)   his detention was unlawful and unjustified because there was no reasonable suspicion based on evidence, as opposed to abstract, hypothetical and vague assumptions, that he had committed a criminal offence and that, if left at liberty, he would continue to offend; (ii)   his request for release was determined and his detention was extended without hearing him; (iii)   the decisions on his request for release and on extension of his detention lack adequate reasoning; (iv)   his offer of a pledge of lawful conduct was rejected without considering its merits partly on the ground that it was impermissible by law; and (v)   his request for release was not decided on speedily. QUESTIONS   1.     Was the dismissal of the applicant’s request for release and of his offer of pledge under Article 73 § 1 (b) of the Code of Criminal Procedure compatible with his rights under Article 5 § 3 of the Convention (see Michalko v. Slovakia , no. 35377/05, § 147, 21   December 2010)?   2.     Was the procedure by which the applicant sought to challenge the lawfulness of his pre-trial detention in conformity with Article 5 § 4 of the Convention? Was the lack of an oral hearing of the applicant compatible with the guarantees of that Article (see Michalko , cited above, §§ 159-161, and, by way of contrast and comparison, Mamedova v.   Russia , no. 7064/05, § 90, 1 June 2006, and Jankauskas v. Lithuania (dec.), no. 59304/00, 16   December 2003)?   3.     Did the length of the proceedings in the present case, by which the applicant sought to challenge the lawfulness of his pre-trial detention, as initiated by his request for release of 26 August 2004, comply with the “speed” requirement of Article 5 § 4 of the Convention?