MOLNÁR proti Slovensku

FIRST SECTION

DECISION

Application no. 39818/20
Richard MOLNÁR
against Slovakia

The European Court of Human Rights (First Section), sitting on 16 December 2020 as a Committee composed of:

Gilberto Felici, President,
Alena Poláčková,
Raffaele Sabato, judges,
and Renata Degener, Deputy Section Registrar,

Having regard to the above application lodged on 28 August 2020,

Having deliberated, decides as follows:

THE FACTS

1. The applicant, Mr Richard Molnár, is a Slovak national, who was born in 1965 and lives in Bratislava. He was represented before the Court by Mr O. Urban, a lawyer practising in Bratislava.

The circumstances of the case

2. The facts of the case, as submitted by the applicant, may be summarised as follows.

3. At the relevant time, the applicant was a judge. He and other current and former members of the judiciary, as well as other persons, are facing criminal charges in connection with allegations of corrupt behaviour, abuse of official authority and interference with judicial independence. The proceedings are being conducted against them as one set, with decisions being taken and procedural motions being made together. However, unless specifically relevant to the assessment of his case, the decisions and procedural motions are referred to herein as concerning the applicant only.

4. The applicant’s charge (of bribery) was brought on 9 March 2020 and he was informed thereof on 11 March 2020, when he was arrested with a view to remanding him pending trial.

5. In Slovakia, there is a system in which, in addition to other statutory requirements for pre-trial detention under the Code of Criminal Procedure (Law no. 301/2005 Coll., as amended – “the CCP”), if the person to be detained is a judge, his or her detention requires a prior consent by the Constitutional Court on request by the Prosecutor General (section 226(1) of the Constitutional Court Act (Law no. 314/2018 Coll., as amended)).

6. Accordingly, on 11 March 2020, acting through his First Deputy (prvá námestníčka generálneho prokurátora), the Prosecutor General asked the Constitutional Court to consent to remand the applicant in custody.

7. In the ensuing proceedings before the Constitutional Court, the applicant was given the opportunity to comment on the Prosecutor General’s request before the decision was taken.

8. On 12 March 2020, sitting in its plenary formation, the Constitutional Court acceded to the request.

It noted that he had been charged in accordance with the relevant procedural requirements, that the procedure preceding the filing of the request had been adhered to and that the request for the constitutional consent had been lodged within the time-limit for bringing the applicant before the court.

The Constitutional Court further pointed out that the consent was not the actual decision to remand the applicant in custody or not, which would be taken by the ordinary courts later on the basis of the reasons advanced by the prosecution in the light of the legal provisions concerning detention. Such decision could ultimately be challenged by a separate constitutional complaint. The constitutional consent constituted merely a preliminary requirement upon the fulfilment of which the ordinary courts might examine the fulfilment of the procedural and substantive conditions for detention. The consent did in no way prejudge the ordinary courts’ assessment. The Constitutional Court’s ex ante involvement aimed at protecting the judiciary from any abuse of executive or prosecutorial power. It did not involve an in-depth review of the factual (evidentiary) and legal reasons for detention, the Constitutional Court’s role being limited to examining whether the charges were not “totally unfounded or extremely arbitrary”. By a secret vote, the Constitutional Court concluded that such was not the case as regards the applicant and four other judges concerned, coming to the opposite conclusion in relation to the remaining ones.

9. On 12 March 2020 the prosecution service lodged a request with the Specialised Criminal Court to have the applicant remanded in custody, to which the court acceded on 14 March 2020, finding that there were reasons for detaining him under Article 71 § 1 (b) and (c) of the CCP (i.e. risk of interfering with the course of justice and of continuing to engage in criminal activities). The court’s assessment as regards the validity of the charges as well as the reasons for the applicant’s detention relies mainly on depositions from an informant.

10. On 20 March 2020 the Supreme Court upheld the remand decision following an interlocutory appeal by the applicant. It noted that all procedural requirements applicable to the applicant’s detention, including the constitutional consent, had been fulfilled.

In so far as another one of the detained judges argued, as the applicant now does before the Court (see below), that it had been unlawful of the Prosecutor General to request the constitutional consent through the intermediary of his First Deputy, the Supreme Court held that doing so had been fully in line with the domestic law, according to which the Prosecutor General might delegate some of his powers to another prosecutor. The request itself had been accompanied by an official document authorising the First Deputy to lodge it on the Prosecutor General’s behalf. Moreover, the Supreme Court noted that the Constitutional Court had admitted the request for examination on the merits, which indicated that it too had considered the applicable formal requirements to have been complied with.

In respect of the substantive requirements for the applicant’s detention, the Supreme Court endorsed the conclusion of the Specialised Criminal Court that the evidence gathered thus far justified detaining him.

11. The applicant’s subsequent request for release was dismissed, the Supreme Court’s decision concerning it being served on him on 14 July 2020. It was found that the reasons for his detention persisted and that alternative measures were not justified. The proceedings are ongoing.

COMPLAINTS

12. The applicant alleged a violation of his rights under Article 5 §§ 3 and 4 and Article 6 § 1 of the Convention by the Constitutional Court’s decision of 12 March 2020 in that it had been unlawful (in particular since it had been prompted by a request by the deputy to the Prosecutor General and not the Prosecutor General himself), arbitrary and lacking adequate reasoning.

THE LAW

13. The applicant alleged a violation of his rights under Articles 5 (§§ 3 and 4) and 6 (§ 1) of the Convention by the Constitutional Court’s decision of 12 March 2020. The Court considers that the complaint made in reliance on Article 5 falls to be examined under its paragraph 1 (c).

Article 5 § 1 (c) of the Convention reads as follows:

“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”

The relevant part of Article 6 § 1 provides:

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair ... hearing ... by [a] ... tribunal ...”

14. The Court observes at the outset that the applicant directed his complaints specifically against the decision of the Constitutional Court of 12 March 2020. As explained by the Constitutional Court itself, that decision concerned a prerequisite for the subsequent decision on the applicant’s detention. In other words, it did not involve the determination of any of his civil rights and obligations or of any criminal charge against him (see, for example, Nešťák v. Slovakia, no. 65559/01, § 93, 27 February 2007). Nor did it directly concern the deprivation of his liberty.

15. The applicant’s complaint under Article 6 § 1 of the Convention is therefore clearly incompatible ratione materiae with the provisions of the Convention within the meaning of Article 35 § 3 (a).

16. By a similar token, it may be questioned whether the applicant’s complaint under Article 5 of the Convention falls within the purview ratione materiae of that provision. However, the Court considers that it is not called upon to give this question a definitive answer because, even assuming that Article 5 is applicable, in particular because the decision of 12 March 2020 may be viewed as a component of the decision concerning the applicant’s deprivation of liberty in a broader perspective, the complaint is inadmissible on the following grounds.

17. The applicant argues that the decision of 12 March 2020 was unlawful in that it had been prompted by a person not having the standing to do so, in particular by the deputy to the Prosecutor General instead of the Prosecutor General himself. The Court notes that an essentially the same argument was examined and dismissed by the Supreme Court on grounds that do not appear arbitrary, irregular or otherwise wrong (see paragraph 10 above). Moreover, a similar argument was dismissed as unfounded by the Court itself in the case of COMPCAR, s.r.o. v. Slovakia (no. 25132/13, § 58, 9 June 2015).

18. The applicant further contends that the decision of 12 March 2020 was arbitrary and lacking adequate reasoning. The Court finds that this argument must be assessed in the light of the particular scope and purpose of the consent proceedings before the Constitutional Court. Rather than involving a determination of any of the applicant’s civil rights or obligations or of a criminal charge against him, or directly dealing with the deprivation of his liberty, these proceedings constituted a specific additional guarantee to protect the independence of the judiciary from “totally unfounded or extremely arbitrary” executive (prosecutorial) intervention. Having examined all elements of the applicant’s file at the given stage of the proceedings, and having heard the applicant in person, the Constitutional Court concluded that this was not the case. To the extent the relevant part of the application has been substantiated, there is no appearance of any arbitrariness (see Čonka v. Belgium, no. 51564/99, § 39, ECHR 2002‑I) in the Constitutional Court’s conclusion or of any lack of the reasoning behind it (see Urtāns v. Latvia, no. 16858/11, § 28, 28 October 2014, and Mooren v. Germany [GC], no. 11364/03, § 79, 9 July 2009). The remainder of the application is therefore manifestly ill-founded.

19. For the sake of completeness, it is noted that the applicant does not contest before the Court his remand decisions as such (i.e. those of 14 and 20 March 2020) and, even if he did, in respect of them he did not fulfil the requirement of exhaustion of domestic remedies by challenging them before the Constitutional Court.

20. Accordingly, the application must be rejected under Article 35 §§ 3 (a) and 4 of the Convention.

For these reasons, the Court, unanimously,

Declares the application inadmissible.

Done in English and notified in writing on 21 January 2021.

Renata Degener Gilberto Felici
Deputy Registrar President