CEDH · CASELAW;DECISIONS;DECCOMMISSION;ENG — 22 février 1995

.sDD6737AE { font-size:11pt } .s211D6B00 { margin-top:0pt; margin-bottom:0pt; line-height:normal; widows:0; orphans:0; font-size:8.5pt } .sBB9EE52A { font-family:Arial }                           AS TO THE ADMISSIBILITY OF                         Application No. 21335/93                       by Christopher Ian SCOTT                       against Spain         The European Commission of Human Rights (Second Chamber) sitting in private on 22 February 1995, the following members being present:              Mr.    H. DANELIUS, President            Mrs.   G.H. THUNE            MM.    G. JÖRUNDSSON                  J.-C. SOYER                  H.G. SCHERMERS                  F. MARTINEZ                  L. LOUCAIDES                  J.-C. GEUS                  M.A. NOWICKI                  I. CABRAL BARRETO                  J. MUCHA                  D. SVÁBY              Mr.    K. ROGGE, Secretary to the Chamber         Having regard to Article 25 of the Convention for the Protection of Human Rights and Fundamental Freedoms;         Having regard to the application introduced on 2 September 1992 by Christopher Ian SCOTT against Spain and registered on 4 February 1993 under file No. 21335/93;         Having regard to the report provided for in Rule 47 of the Rules of Procedure of the Commission;         Having regard to :   -      the reports provided for in Rule 47 of the Rules of Procedure of the       Commission;   -      the observations submitted by the respondent Government on       24 January 1994 and the observations in reply submitted by the       applicant on 8 November 1994;         Having deliberated;         Decides as follows:   THE FACTS         The applicant is a British citizen, born in 1958.   When this application was introduced before the Commission, he was detained at the Santa Cruz de Tenerife prison in Spain.   I.     Particular circumstances of the case         The facts of the case, as submitted by the parties, may be summarised as follows :         On 5 March 1990, the applicant was arrested in Puerto de la Cruz, Tenerife, under suspicion of rape of a Finnish citizen, and detained on remand for that reason (prisión provisional).   On 7 March 1990, in the presence of a lawyer and with an interpreter, the applicant made a statement to the police.   When the records were consulted, it was found that an International Detention Order for murder had been issued in respect of the applicant on 31 January 1990 by a judge at Birmingham Crown Court.   On the same day, the applicant was brought before a judge. On 8 March 1990, assisted by a lawyer and with an interpreter, the applicant made a statement to an investigating judge (juez de instrucción) of Puerto de la Cruz concerning the alleged rape.   By decision of 8 March 1990 (auto de prisión), the investigating judge remanded the applicant in custody on the grounds that he was suspected of rape and falsification and pending the investigation for alleged murder of his father referred to in the International Detention Order.         On 23 March 1990, the Central Investigating Judge of the Audiencia Nacional authorised the detention on remand of the applicant following a request for extradition made by the British authorities.   By decision (auto) of 22 February 1991, the Criminal Chamber of the Audiencia Nacional ordered the extradition of the applicant to the United Kingdom, to be judged for the facts referred to in the International Detention Order of 31 January 1990 after having served any outstanding sentence that might be imposed on him in Spain.         Against this decision to grant extradition, the applicant lodged an appeal (súplica) with the plenary of the Audiencia Nacional.   By decision of 28 May 1991, the appeal was dismissed.         On 25 June 1990, an International Letter of Request for Judicial Cooperation was sent to the relevant authority in Finland in order to take a further statement from the alleged victim of the rape.         By decision of 6 March 1992 given by the investigating judge of Puerto de la Cruz, two years after the applicant had been remanded in custody, the applicant was released on bail in the case of the rape, as required by Article 504 of the Criminal Code.   He was however kept in prison pending the determination of the extradition case and detained in various prisons in Spain.         On 17 March 1992, the Audiencia Nacional, considering the 23 March 1990 as the date of the beginning of the applicant's detention for the extradition case, decided to prolong his detention on remand under Article 504 para. 4 of the Code of Criminal Procedure and Article 10 para. 3 of the Passive Extradition Law, for a period not exceeding two years, that is to say until 23 March 1994.         On 3 and 6 April 1992, the applicant's "habeas corpus" appeals, lodged with the investigating judge of Santa Cruz de Tenerife, were dismissed.         On 18 June 1992, the Audiencia Nacional dismissed the applicant's appeal (súplica) on the grounds that he had been remanded in the extradition case only on 23 March 1990, independently of the applicant's former detention for a different matter.         On 22 December 1992, the "habeas corpus" appeal lodged with the investigating judge of Alcala de Henares was dismissed.         The applicant lodged a "de amparo" appeal with the Constitutional Court against the two former decisions of the Audiencia Nacional concerning his detention on remand.   The appeal was rejected by decision of 6 May 1993 as being time-barred.   Concerning the exhaustion of domestic remedies, the Constitutional Court also stated that ..."the decision (auto) of the criminal chamber (third section) of the Audiencia Nacional of 18 June 1992, ... be considered as the last instance before the constitutional "de amparo" appeal ...".   Nevertheless, as to the merits, the Constitutional Court stated that the applicant had been remanded in the extradition case only on 23 March 1990, so that the decision of the Audiencia Nacional of 17 March 1992 to prolong detention for two more years as of that date was correct, as the former period spent in prison by the applicant did not have any relation to the new detention.         On 29 April 1993, the International Letter of Request for Judicial Cooperation to obtain the summons of the victim of the criminal offence allegedly committed in Spain (rape) was finally executed.   On 25 August 1993, the applicant's detention was again ordered in the rape case and his provisional release was revoked.   The applicant was again transferred to Tenerife prison.         By decision of the Audiencia Provincial of Santa Cruz de Tenerife of 21 March 1994, the applicant was acquitted of the charge of rape and sentenced to a penalty of four months' imprisonment for falsification of documents.         On 27 March 1994, the applicant was handed over to the British authorities following the International Detention Order and the decision of the Audiencia Nacional of 23 March 1990 to grant extradition.   II.    Relevant domestic law   (Original)              Ley de Enjuiciamiento Criminal, Artículo 504 par. 4         "La situación de prisión provisional no durará más de tres       meses cuando se trate de causa por delito al que corresponda       pena de arresto mayor, ni más de un año cuando la pena sea de       prisión menor o de dos años cuando la pena sea superior. En       estos dos últimos casos, concurriendo circunstancias que hagan       prever que la causa no podrá ser juzgada en estos plazos y que       el inculpado pudiera sustraerse a la acción de la justicia, la       prisión podrá prolongarse hasta dos y cuatro años,       respectivamente. La prolongación de la prisión provisional se       acordará mediante auto, con audiencia del inculpado y del       Ministerio Fiscal."   (Translation)                Code of Criminal Procedure, Article 504 para. 4         "Detention on remand shall not last more than three months       when it relates to a case where the established penalty is       that of "arresto mayor" , and not more than one year when the       penalty is "prisión menor" or two years in case of a more       severe penalty. In these two latter cases, when there are       circumstances which indicate that the case will not be dealt       with within those time-limits and that the detainee might try       to evade justice, the detention may be prolonged by up to two       and four years, respectively.   The prolongation of the       detention will be pronounced by a decision (auto) after a       hearing of the detainee and the public prosecutor."   (Original)          Ley de extradición pasiva (Ley 4/85 de 21 de Marzo de 1985)                            Artículo 10 pár. 3         "El límite máximo de la prisión provisional del reclamado y       los derechos que corresponden al detenido por causa de       extradición se regirán en lo previsto por esta Ley, por los       preceptos correspondientes de la Ley de Enjuiciamiento       Criminal."   (Translation)            Passive Extradition Law (Law 4/1985, of 21 March 1985)                            Article 10 para. 3         " The maximum time-limit of the detention on remand of the       requested person and the rights regarding the detainee       awaiting extradition will be determined insofar as established       in this Law, by the related provisions of the Code of Criminal       Procedure."   COMPLAINTS   1.     Concerning the criminal proceedings held in Spain for rape and falsification, the applicant complains of the following breaches of the Convention :         a)    under Article 6 paras. 1 and 2 of the Convention, that he has not been granted a fair and public hearing within a reasonable time and that the ongoing detention violated his right to presumption of innocence;         b)    under Article 6 para. 3 (a), (b) and (c) of the Convention, that he was not informed, in a language which he understood, of the extent of the evidence against him when first remanded in custody in March 1990, that he had no adequate time and facilities for the preparation of his defence, that he was unable to understand his interpreter and that he was not legally represented or informed of the nature of the preliminary hearings of the trial for the alleged rape;         c)    under Article 8 para. 1 of the Convention, that he was transferred to various prisons which interrupted his private and family life as his relatives were unable to visit or to write to him.   2.     The applicant complains under Article 5 paras. 1 (c) and 3 of the Convention that he was held in contravention of Spanish law concerning the prolongation of detention on remand.   He states that his detention was unlawful and that he was not brought before a competent judge to be tried.   3.     The applicant complains of the absence of a remedy under Spanish law to challenge the lawfulness of his detention on remand and invokes Articles 5 para. 4 and 13 of the Convention.   PROCEEDINGS BEFORE THE COMMISSION         The application was introduced on 2 September 1992 and registered on 4 February 1993.         On 13 October 1993, the Commission (Second Chamber) decided to communicate the application to the respondent Government pursuant to Rule 48 para. 2 (b) of the Rules of Procedure.         The Government's written observations were submitted on 24 January 1994, after an extension of the time-limit for that purpose. The applicant replied on 8 November 1994, also after an extension of the time-limit.         On 18 May 1994, the applicant was granted legal aid.   THE LAW   1.     As regards the criminal proceedings in Spain for rape and falsification, the applicant complains of not having been granted a fair and public hearing within a reasonable time and of a violation of his right to be presumed innocent.   He alleges several violations   of his rights to be informed, in a language which he understood, of the extent of the evidence against him when remanded in custody, to have time and facilities for the preparation of his defence, to be assisted by an understandable interpreter and to be legally represented or informed of the nature of the preliminary hearings of the trial for the alleged rape. He invokes Articles 6 paras. 1, 2 and 3 (a), (b) and (c) (Art. 6-1, 6-2, 6-3-a, 6-3-b, 6-3-c) of the Convention.   The applicant further alleges a violation of Article 8 para. 1 (Art. 8-1) of the Convention, insofar as he was deprived of his private and family life.         The Commission notes that the applicant has not validly invoked these complaints before the Spanish courts. In this respect, the Commission observes that the applicant only challenged the lawfulness of the decision to prolong his detention on remand (Article 17 of the Constitution) and did not lodge any appeal either with internal ordinary courts or with the Constitutional Court in a "de amparo" appeal concerning Article 6 paras. 1, 2 and 3 (Art. 6-1, 6-2, 6-3), or Article 8 para. 1 (Art. 8-1) of the Convention.   He has not, therefore, exhausted the domestic remedies available under Spanish law, as required by Article 26 (Art. 26) of the Convention.         It follows that this part of the application must be rejected pursuant to Article 27 para. 3 (Art. 27-3) of the Convention.   2.     The applicant complains under Article 5 paras. 1 (c) and 3 (Art. 5-1-c, 5-3) of the Convention that he was held in contravention of Spanish law concerning the prolongation of detention on remand. He states that his detention was unlawful and that he was not brought before a competent judge to be tried.         The provisions invoked read as follows :         "1.   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 ; ...         3.    Everyone arrested or detained in accordance with the       provisions of paragraph 1 (c) of this Article shall be brought       promptly before a judge or other officer authorised by law to       exercise judicial power and shall be entitled to trial within       a reasonable time or to release pending trial.   Release may be       conditioned by guarantees to appear for trial. ..."         As a preliminary point, the Government contend that the applicant has not exhausted the domestic remedies available to him under Spanish law since he did not lodge an appeal against any judicial decision pronounced either by the investigating judge at Puerto de la Cruz or by the Audiencia Provincial of Tenerife in the course of the criminal proceedings, and that his "de amparo" appeal against the prolongation of detention ordered on 17 March 1992 was time-barred.   The applicant contests this submission.         The Commission recalls that under Article 26 (Art. 26) of the Convention, it may only deal with a matter after all domestic remedies have been exhausted according to the generally recognised rules of international law.   In the present case, the Commission notes that the decision (auto) of the Constitutional Court of 6 May 1993 in the "de amparo" appeal lodged by the applicant against the decision of 17 March 1992 expressly stated that ..."the decision (auto) of the criminal chamber (third section) of the Audiencia Nacional of 18 June 1992, ... be considered as the last instance before the constitutional "de amparo" appeal ...".   The Commission notes, moreover, that the Constitutional Court considered the "de amparo" appeal as being time-barred, but did examine the merits of the case.   The Commission recalls that non- exhaustion of domestic remedies cannot be held against the applicant if in spite of the latter's failure to observe the forms prescribed by law, the competent authority has nevertheless examined the appeal (cf. No. 12794/87, Dec. 9.7.88, D.R. 57 p. 251).   The Commission cannot, therefore, reject this part of the application for non-compliance with the exhaustion rule.         The Government submit that the first period of detention concerning the criminal case (from 8 March 1990 to 6 March 1992) did not exceed the two years period laid down in Article 504 of the Code of Criminal Procedure.   As regards the extradition case, the Government state that the applicant was only detained on 23 March 1990, this detention being extended from 17 March 1992 up to the legal maximum of four years.         The applicant contends that although, technically, his continued detention after 6 March 1992 may have been as a result of the pending extradition, the failure to extradite was the result of the delay in proceeding with the rape charge.   He considers that the justification for his ongoing detention was the rape charge and not the fact that he was awaiting extradition.   The applicant considers that he could not be extradited as a result of the delay and/or failure of the respondent State to either proceed with the prosecution for rape or alternatively dismiss the charge.         The applicant submits that the criminal case was not complicated and that there was no justification for this process to take four years, despite the fact that the alleged victim lived in Finland, and that extra diligence should have been exercised as the applicant was under an International Detention Order.         The Commission recalls that, for a detention to be "in accordance with a procedure prescribed by law", it has to comply with the relevant procedure under national law, which must itself be in conformity with the Convention and the general principles expressed or implied therein.   The notion underlying the term in question is one of fair and proper procedure, namely that any measure depriving a person of his liberty should be ordered and executed by an appropriate authority and should not be arbitrary (Eur. Court H.R., Winterwerp judgment of 24 October 1979, Series A no. 33, p. 19, para. 45).         The Commission further recalls that it is in the first place for the national authorities, notably the courts, to interpret and apply the domestic law (above-cited judgment, p. 20, para. 46).   As regards the conformity with domestic law, the "lawful" character of a detention covers procedural as well as substantive rules (same judgment, p. 17, para. 39).         The Commission notes that the applicant was first arrested on 5 March 1990 and detained on remand on 8 March 1990 on the ground of being suspected of rape and falsification, and also because of the International Detention Order issued against him.   Nevertheless, the Audiencia Nacional, in its decision of 17 March 1992 to prolong the applicant's detention on remand, considered the date of 23 March 1990 as that of the beginning of the applicant's detention for the extradition case.         The Commission has taken cognizance of the parties' observations and considers that this complaint raises serious questions of fact and law which are of such complexity that the determination of the lawfulness or unlawfulness of the detention at issue should depend on an examination on the merits.   This complaint cannot therefore be rejected as being manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27- 2) of the Convention.   No other grounds for inadmissibility having been established, this part of the application should accordingly be declared admissible.   3.     The applicant complains of the absence of a remedy under Spanish law to challenge the lawfulness of his detention on remand and invokes Articles 5 para. 4 and 13 (Art. 5-4, 13) of the Convention, which read as follows :                            Article 5 (Art. 5)         "4.   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.       ..."                            Article 13 (Art. 13)         "Everyone whose rights and freedoms as set forth in this       Convention are violated shall have an effective remedy before       a national authority   ..."         The Commission observes that the applicant filed several "habeas corpus" appeals which were examined and dismissed by the competent authorities.   The applicant lodged an appeal (súplica) with the Audiencia Nacional against its decision dated 17 March 1992 concerning his detention on remand.   The appeal was dismissed on 18 June 1992 and the applicant then lodged a "de amparo" appeal with the Constitutional Court. The Commission therefore concludes that the applicant's complaint under Article 5 para. 4 (Art. 5-4) of the Convention is manifestly ill-founded under Article 27 para. 2 (Art. 27-2) of the Convention.         In view of the above conclusion reached under the lex specialis of Article 5 par. 4 (Art. 5-4), there is no need for the Commission to examine the case under Article 13 (Art. 13) (Eur. Court. H.R., De Jong, Baljet and Van den Brink judgment of 22 May 1984, Series A N° 77, p. 27, para. 60).         It follows that this part of the application must be rejected as being manifestly ill-founded under Article 27 para. 2 (Art. 27-2) of the Convention.         For these reasons, the Commission, unanimously,         DECLARES ADMISSIBLE, without prejudging the merits, the applicant's       complaints under Article 5 paras. 1 (c) and 3       (Art. 5-1-c, 5-3) of the Convention concerning the lawfulness and       length of his detention on remand ;         DECLARES INADMISSIBLE the remainder of the application.   Secretary to the Second Chamber       President of the Second Chamber           (K. ROGGE)                            (H. DANELIUS)