CEDH · CASELAW;CLIN;ENG — 16 juillet 2009

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Monaco - 43376/06 Judgment 16.7.2009 [Section V] Article 5 Article 5-3 Length of pre-trial detention Lack of relevant reasons for continued pre-trial detention: violation   Article 3 Degrading treatment Inhuman treatment Compatibility of continued detention with applicant’s state of health: no violation   Article 35 Article 35-1 Exhaustion of domestic remedies Effective domestic remedy Automatic fine in the event of appeal on point of law being dismissed: admissible   Article 37 Article 37-1-c Continued examination not justified Unilateral declaration by respondent Government without any acknowledgment of allegation of a violation of the Convention: not struck out   Facts : The applicant, a French national, was charged with having misappropriated several million euros when she worked as a bank employee in Monaco. When first questioned in 2004, she confessed to misappropriating the money, but explained that she had not made any personal profit from her actions. The next day she was charged and remanded in custody. Between 2004 and 2006 the applicant lodged several requests for her release, which were all rejected. In September 2006 the Judicial Revision Court rejected an appeal lodged by the applicant, fined her and ordered her to pay the costs. When a prison doctor found that the applicant’s state of health was incompatible with her continued detention, she submitted a new request to the investigating judge to be released on health grounds, but it was rejected. The Court of Appeal upheld that decision in December 2006. The applicant did not appeal against that decision. In 2007, while the criminal proceedings were in progress, the applicant was released “in order to comply with the requirements of the European Convention on Human Rights concerning the reasonable length of detention pending trial”. Law : Article 5 § 3 – Concerning the Government’s request to strike the case out of the list : In certain circumstances a case could be struck out of the list under Article 37 § 1 (c) of the Convention on the basis of a unilateral declaration by the respondent Government even if the applicant wished the examination of the case to be continued. Many factors needed to be taken into account to determine whether the unilateral declaration was a sufficient basis for the Court to conclude that there was no need for it to examine the case any further in order to protect the human rights enshrined in the Convention: depending on the type of complaints raised, the Government’s unilateral declaration must include an admission of liability for the alleged violations of the Convention or, at least, a concession along those lines. In this particular case the Government’s declaration contained no form of acknowledgment that, under the circumstances, the length of the applicant’s detention pending trial had been in violation of Article 5 § 3 of the Convention. That being so, it did not suffice to render further examination of this complaint unnecessary in order to guarantee respect for human rights as defined in the Convention. The Court accordingly decided to reject the Government's request to strike the application out of the list. Merits : The applicant’s detention pending trial had lasted almost four years. The Court confined its examination of the detention to the period from the entry into force of the Convention in respect of Monaco (on 30 November 2005) to the applicant’s release in 2007, while bearing in mind that she had in fact been in detention from 2004 onwards. The domestic courts had given various reasons to justify the applicant’s continued detention and the length of the investigation. As to the seriousness of the offences and the threat to law and order, the Court found that the authorities had failed to substantiate the threat sufficiently to justify the applicant’s continued detention. In any event the seriousness of the offences and the threat to law and order alone were no justification for such lengthy pre-trial detention. Furthermore, most of the decisions pronounced had been unsubstantiated as far as the need to guarantee the applicant’s appearance in court was concerned; the courts had simply mentioned “the need to make sure the applicant appeared in court”, without further explanation and without specifying what risk there might be, in the circumstances of the case, that the applicant would abscond after almost four years in detention. In addition, due regard should have been had to the applicant’s personal connections with the respondent State. Various factors which pointed to the unlikelihood of the applicant’s absconding – she had no criminal record, had been born in Monaco and had strong personal, social and family ties with the Principality – had never been taken into account by the domestic courts. Nor had the matter of whether the applicant was able to offer sufficient guarantees that she would appear in court if released been properly examined. Lastly, the risk of collusion or pressure between the co-accused had been raised only once, without any substantiation, and therefore without any evidence of a serious risk of collusion or pressure that was likely to hinder the investigation. That being so, the need to avoid such a risk did not justify the applicant’s pre-trial detention. Conclusion : violation (unanimously). Article 3 – Non-exhaustion of domestic remedies : The applicant had not lodged an appeal before the Judicial Revision Court against a judgment of the Court of Appeal of December 2006 rejecting her request for release, although an appeal to that court was, in principle, a remedy that should have been used. However, Monaco’s Criminal Code provided for a fine to be imposed automatically on the appellant if an appeal was rejected, the size of the fine depending on the nature of the criminal case. Only certain persons could be exempted, and the applicant did not qualify for exemption. By systematically imposing a fine, apart from costs, on an unsuccessful appellant, the impugned domestic laws effectively penalised recourse to the Judicial Revision Court, albeit indirectly. Imposing a fine based on the outcome of an appeal when no abuse of process was alleged rendered the appeal ineffective. The Government’s preliminary objection that the applicant had failed to exhaust domestic remedies could not be allowed. Merits : The different medical reports prepared by the authorities and produced before the Court made no mention of any incompatibility between the applicant’s state of health and her continued detention, of any deterioration of her health as a result of her detention, or of the prison’s inability to cope. Furthermore, the applicant had had more than 220 consultations in the prison and been transferred for external consultations about 30 times, mostly with specialists, and had had X-rays, scans and MRI scans. That being so, the prison authorities, who had closely monitored the applicant’s health at regular intervals, had not failed in their duty to take the necessary measures. The applicant had not been subjected to treatment which attained a sufficient level of severity to fall within the scope of Article 3 of the Convention. Conclusion : no violation (unanimously). Article 41 – EUR 6,000 in respect of non-pecuniary damage.   © Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court. Click here for the Case-Law Information Notes