ECtHR - Akhadov v. Slovakia, Application No. 43009/10

Facts:

The Applicant, a Russian national, attempted to seek asylum in Slovakia in June 2009. He was detained pending expulsion on the grounds of illegal residence and contravention of a five year entry ban. On 16 July, he sought judicial review of the order for his detention. The Regional Court dismissed his application at an oral hearing on 13 August, in the presence of his lawyer. A subsequent complaint concerning the length of proceedings was rejected by the Constitutional Court as inadmissible in December. The Regional Court’s dismissal of his judicial review request was quashed by the Supreme Court, which prompted the former court to quash the original detention order and remit the matter to the first instance decision-maker for a new assessment and decision. In November 2009, the Applicant was expelled to Russia. Before the ECtHR, he argued that the length of the initial judicial review proceedings before the Regional Court was incompatible with Article 5(4) (right to have lawfulness of detention decided speedily by a court) ECHR.

Decision & reasoning:

The Court maintains that in order to determine whether the requirement that a decision be given “speedily” has been complied with, it is necessary – where the proceedings were conducted at more than one level of jurisdiction – to make an overall assessment. The question of whether the right to a speedy decision has been respected must be determined in the light of the circumstances of each case, including the complexity of the proceedings, the conduct of the domestic authorities, the conduct of the applicant and what was at stake for the latter (Mooren v. Germany [GC], no. 11364/03, § 106, 9 July 2009).

The Court notes that the proceedings under examination lasted at least twenty-eight days and that the applicant’s detention case was not of any particular complexity. The applicant has not contributed to the length of the impugned period in any way.

The Court observes that the period under consideration consisted of two sub-periods, one in which the Foreigners Police Department had the opportunity to submit its observations in reply, and the other used by the Regional Court to call a hearing and determine the application. If taken separately, these two sub-periods do not seem to raise an issue under Article 5 § 4 of the Constitution. The Court however points out that both of them are attributable to organs of the respondent State and occurred under the authority of the Regional Court, that is to say the defendant in the context of the ensuing constitutional complaint.

The Court observes that the applicant has limited his complaint to the period of the initial examination of his application by the Regional Court. In other words, he has not contested the subsequent procedure concerning his appeal to the Supreme Court, the subsequent re‑examination of his application dated 13 July 2009 by the Regional Court and the presumed final determination of his detention case.

 Nevertheless, the Court considers it of relevance that the applicant’s detention case was by no means concluded with the judgment of 13 August 2009, that the proceedings subsequently lasted for a further substantial period of time, and that the judgment was eventually quashed as unlawful.

In addition, it should be taken into account that the detention order challenged by the applicant had been issued by the Foreigners Police Department, that is to say a non-judicial body.

Taking into account the Court’s case-law on the subject, it concludes that the applicant’s application dated 13 July 2007 was not determined “speedily”.

There has accordingly been a violation of Article 5 § 4 of the Convention.

Outcome:

A violation of Article 5 § 4 of the Convention

The Court also awarded the applicant 2,600 Euros in respect of non-pecuniary damage.