THIRD SECTION

CASE OF SCHVARC v. SLOVAKIA

(Application no. 64528/09)

JUDGMENT

STRASBOURG

14 January 2014

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Schvarc v. Slovakia,
The European Court of Human Rights (Third Section), sitting as a Chamber composed of:
	Josep Casadevall, President,
	Alvina Gyulumyan,
	Ján Šikuta,
	Luis López Guerra,
	Kristina Pardalos,
	Johannes Silvis,
	Valeriu Griţco, judges,
and Santiago Quesada, Section Registrar,
Having deliberated in private on 10 December 2013,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1.  The case originated in an application (no. 64528/09) 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 Branislav Schvarc (“the applicant”), on 25 May 2010.
2.  The applicant, who had been granted legal aid, was represented by Ms I. Lenčéšová, a lawyer practising in Nitra.
The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková.
3.  The applicant alleged, in particular, a violation of his rights under Article 5 § 4 of the Convention on account of the alleged lack of a speedy review of the lawfulness of his detention.
4.  On 29 November 2012 the application was communicated to the Government.
THE FACTS
5.  The applicant was born in 1978 and habitually resides in Krupina.
A.  Detention
6.  On 20, 21 and 22 May 2009 respectively the applicant was arrested, charged and remanded in custody on suspicion of unlawful production, possession and trafficking in drugs within the meaning of Article 172 § 1 (c) of the Criminal Code, on grounds that, if left at liberty, he would continue offending.
7.  On 22 July 2009 the applicant requested release, and in support of his request he offered a pledge that he would live in accordance with the law and that he would not interfere with the course of justice.
8.  On 3 August 2009 the Zovlen District Prosecutor found no reasons for releasing the applicant and transmitted his request to the Zvolen District Court (Okresný súd) for a judicial determination with a proposal that the request be dismissed.
9.  On 19 August 2009 the District Court examined the request in chambers (neverejné zasadnutie), following which, on the same day, the request was dismissed. The District Court observed, inter alia, that by a judgment of 23 April 2009 the applicant had been convicted of theft.
10.  Immediately after the decisions of 19 August 2009 had been pronounced, the applicant submitted an oral interlocutory appeal (sťažnosť), which he later amended with the assistance of his lawyer.
11.  The written version of the District Court’s decision of 19 August 2009 was served on the applicant on 24 September 2009.
12.  On 8 October 2009, sitting in chambers (neverejné zasadnutie), the Banská Bystrica Regional Court (Krajský súd) dismissed the applicant’s appeal, fully endorsing the reasoning of the District Court, adding that, at the same time, the applicant was also being prosecuted for other drug‑related offences.
13.  On 16 October 2009 the written version of the Regional Court’s decision was transmitted to the District Court, which was responsible for ensuring service of that decision on the applicant.
Service was effected on 30 October 2009.
B.  Constitutional complaint
14.  On 11 November 2009 the applicant lodged a complaint with the Constitutional Court (Ústavný súd), relying on Articles 127 of the Constitution and 5 § 4 of the Convention, challenging the length of the proceedings relating to his request for release, and claiming 1,500 euros (EUR) by way of just satisfaction. In support of the latter claim, he submitted that, while his request for release had been under examination, he had been in a state of legal uncertainty, which had had a particularly severe effect on his state of mind since he had been deprived of liberty.
15.  On 20 January 2010 the Constitutional Court appointed the applicant a legal-aid lawyer and, on 18 February 2010, it declared the complaint admissible.
16.  On 30 March 2010 the Constitutional Court issued a judgment (nález) finding a violation of the applicant’s right to a speedy review of the lawfulness of his detention within the meaning of Article 5 § 4 of the Convention. At the same time, it awarded him EUR 500 in compensation for non-pecuniary damage. The amount was not explained by any particular reasons.
The written version of the constitutional judgment was served on the applicant on 24 May 2010.
THE LAW
I.  ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE CONVENTION
17.  The applicant complained that the lawfulness of his detention had not been determined speedily and that the amount of just satisfaction awarded to him by the Constitutional Court in that respect had been inadequate, in violation of his rights under Article 5 § 4 of the Convention, which reads as follows:
“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.”
A.  Admissibility
18.  The Government referred to the Constitutional Court’s judgment of 30 March 2010 and considered that the redress afforded by it was adequate in Convention terms. In that respect, they emphasised that the violation found by the Constitutional Court had merely been of a procedural nature and that the applicant’s detention as such had been lawful and justified. In addition, they argued that, unlike the District Court, the Regional Court had handled the matter expeditiously.
In conclusion, the Government contended that the applicant could no longer be considered a victim of a violation of his rights under Article 5 § 4 of the Convention. Notwithstanding that, the Government conceded that the complaint was not manifestly ill-founded.
19.  In reply, the applicant reiterated his complaint.
20.  The Court considers that the Government’s objection that the applicant had lost his status of a victim, within the meaning of Article 34 of the Convention, of the alleged violation of his rights under Article 5 § 4 of the Convention is closely linked to the merits of the application and should be joined accordingly.
21.  At the same time, the Court notes that the application is not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.
B.  Merits
22.  Apart from the arguments mentioned above, the parties made no separate submissions.
23.  In the present case the applicant submitted his request for release on 22 July 2009 and the final decision was served on him on 30 October 2009.
24.  The period under consideration thus lasted 99 days (see, for example, Singh v. the Czech Republic, no. 60538/00, § 74, 25 January 2005, and Cabala v. Slovakia, no. 8607/02, § 68, 6 September 2007), during which time his request was examined by the Public Prosecution Service and two levels of courts.
25.  In view of the Constitutional Court’s finding of a violation of the applicant’s right to a speedy review of the lawfulness of his detention within the meaning of Article 5 § 4 of the Convention (see paragraph 16 above), the Government’s admission (see paragraph 18 above), and its own case‑law on the subject (see the summary in, for example, Osváthová v. Slovakia, no. 15684/05, § 77, 21 December 2010), the Court has no difficulty in accepting that the proceedings in the applicant’s request for release were not in conformity with the speediness requirement of Article 5 § 4 of the Convention.
26.  It remains to be examined whether the applicant can still claim to be a victim within the meaning of Article 34 of the Convention in that respect.
27.  In that connection, the Court reiterates that a decision or measure favourable to an applicant is not, in principle, sufficient to deprive the applicant of his or her status as a “victim”, within the meaning of Article 34 of the Convention, unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention claimed (see Rosselet-Christ v. Slovakia, no. 25329/05, § 49, 26 October 2010, with further references).
28.  Since in its judgment of 30 March 2010 the Constitutional Court expressly acknowledged a breach of the applicant’s right under Article 5 § 4 to a speedy review of the lawfulness of his detention, the only issue which arises in that respect in the present case is whether the redress afforded to him can be considered as appropriate.
29.  In its judgment, without providing any particular reasons in that respect, the Constitutional Court awarded the applicant EUR 500 in compensation for his non-pecuniary damage.
30.  With reference to its case-law both at the relevant time and subsequently (for comparison see, for example, Kadem v. Malta, no. 55263/00, 9 January 2003; Rapacciuolo v. Italy, no. 76024/01, 19 May 2005; Vejmola v. the Czech Republic, no. 57246/00, §§ 47 and 56, 25 October 2005; and – more recently - Gál v. Slovakia, no. 45426/06, 30 November 2010; Karlin v. Slovakia, no. 41238/05, 28 June 2011; Rahmani and Dineva v. Bulgaria, no. 20116/08, 10 May 2012; Shakurov v. Russia, no. 55822/10, 5 June 2012; Abidov v. Russia, no. 52805/10, 12 June 2012; and Alikhonov v. Russia, no. 35692/11, 31 July 2012), the Court considers that the sum awarded as just satisfaction by the Constitutional Court was not sufficient to provide the applicant with appropriate redress in the circumstances.
31.  The applicant can thus still claim to be a “victim” within the meaning of Article 34 of the Convention of a breach of his rights under Article 5 § 4 of the Convention, and the Government’s objection in this regard must be dismissed.
There has accordingly been a violation of Article 5 § 4 of the Convention.
II.  APPLICATION OF ARTICLE 41 OF THE CONVENTION
32.  Article 41 of the Convention provides:
“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”
A.  Damage
33.  The applicant claimed compensation in respect of non-pecuniary damage, leaving the amount at the Court’s discretion but expressing his belief that the amount of EUR 1,500 claimed before the Constitutional Court was reasonable.
34.  The Government requested that the matter be resolved in accordance with the Court’s case-law and taking into account the amount already awarded at the domestic level.
35.  The Court considers that the applicant must have sustained non‑pecuniary damage. Having regard to the amount considered by him as reasonable and the fact that a part of it has already been awarded to him at the domestic level, the Court awards him in that respect the remainder, that is to say EUR 1,000, plus any tax that may be chargeable.
B.  Costs and expenses
36.  The applicant did not submit a claim under this head.
C.  Default interest
37.  The Court considers it appropriate that the default interest rate should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1.  Joins the Government’s objection under Article 34 of the Convention to the merits of the application and dismisses it;

2.  Declares the application admissible;

3.  Holds that there has been a violation of Article 5 § 4 of the Convention;

4.  Holds
(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 1,000 (one thousand euros), plus any tax that may be chargeable, in respect of non-pecuniary damage;
(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points.
Done in English, and notified in writing on 14 January 2014, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
	Santiago Quesada	Josep Casadevall
	Registrar	President