CEDH · CASELAW;CLIN;ENG — 26 mars 2009

.s3ABFC313 { font-size:10pt } .sEB86A30B { margin-top:0pt; margin-bottom:14pt; page-break-after:avoid } .sBB9EE52A { font-family:Arial } .sA241FE93 { margin-top:0pt; margin-bottom:18pt; text-align:justify; page-break-after:avoid; border-bottom:0.75pt solid #000000; padding-bottom:1pt } .s2EF62ED2 { margin-top:0pt; margin-bottom:0pt; font-size:12pt } .s4DDA3AA3 { font-family:Arial; font-weight:bold; font-style:italic } .s29100277 { font-family:Arial; font-weight:bold } .s32563E28 { margin-top:0pt; margin-bottom:0pt } .s8F2B0B1B { margin-top:12pt; margin-bottom:12pt; page-break-after:avoid; font-size:12pt } .s9FF10068 { margin-top:0pt; margin-bottom:12pt } .sA36B60A1 { font-family:Arial; font-style:italic } .s5F48796F { margin-top:12pt; margin-bottom:0pt; text-align:justify } .s5CB9E8AB { margin-top:12pt; margin-bottom:0pt; text-align:justify; border-bottom:1pt solid #000000; padding-bottom:1pt } .sDF790F1E { margin-top:12pt; margin-bottom:0pt; text-align:center } .s7ED160F0 { text-decoration:none } .s3DC36BA9 { font-family:Arial; text-decoration:underline; color:#0069d6 } Information Note on the Court’s case-law No. 117 March 2009 Krejčíř v. the Czech Republic - 39298/04 Judgment 26.3.2009 [Section V] Article 5 Article 5-3 Length of pre-trial detention Failure of domestic law to specify conditions in which time-limit on pre-trial detention could be excluded: violations   Article 5-4 Procedural guarantees of review Failure by Supreme Court to hold hearing when examining a deprivation of liberty that did not satisfy the Convention requirement for it to be ordered by a court: violation   Facts : In 2003 the applicant, a national of the Czech Republic, was arrested and questioned in the framework of proceedings against him for the fraudulent use of funds borrowed from a bank under credit contracts. In September 2003 a district court ordered his detention pending trial. He appealed to the municipal court, which dismissed his appeal in October 2003, without a hearing being held. The Constitutional Court also rejected his appeal. The district court dismissed an initial request for the applicant’s release. In December 2003 the public prosecutor at the Supreme Court decided that the applicant should remain in detention in view of the seriousness of the offences he stood accused of, the parallel criminal proceedings against him, the possibility of him obtaining forged papers and absconding and the pressure already brought to bear on witnesses. The prosecutor concluded that the time-limit on pre-trial detention provided for in Article 67 b) of the Code of Criminal Procedure (“CCP”) did not apply to the present case. The second sentence of Article 71 § 2 of the CCP, permitting exceptions to the time-limit on pre-trial detention where there was a risk of pressure being brought to bear on witnesses, was applied. An appeal lodged by the applicant against that decision was dismissed by the Supreme Court in January 2004, without a hearing being held. The applicant also challenged a decision dismissing his second application for release. Constitutional appeals he lodged against the decisions of December 2003 and January 2004 were dismissed. The applicant was subsequently released on a decision of the public prosecutor, adopted by virtue of provisions of the CCP placing time-limits on detention. During a house search in 2005 the applicant absconded and went first to the Seychelles then to South Africa, where he was arrested. Proceedings were under way to extradite him to the Czech Republic. Law : Article 5 § 3 – (a) Lawfulness of the applicant’s continued detention : The applicant alleged that the decisions to keep him in detention had merely reiterated the facts mentioned in the decision ordering his detention pending trial. He also complained that the prosecutor had considered, in the reasons for his decision of December 2003, that there were grounds for applying the second sentence of Article 71 § 2 of the CCP, permitting exceptions to the time-limit on pre-trial detention where there was a risk of pressure being brought to bear on witnesses, to his case, whereas in his opinion it was for a court to order such a measure and include it in the operative part of the corresponding decision. In this case it was the first extension of the applicant’s detention, after the initial three-month period, that was at issue. It should be noted in this connection that the court decision of October 2003 made no reference to the application of the second sentence of Article 71   §   2 of the CCP. Indeed, it appeared to be incompatible with the guarantees of Article 5 of the Convention that a court ordering pre-trial detention should anticipate a decision whether or not to extend the measure that was to be taken three months later. Furthermore, it is not disputed that the decision to extend the applicant’s detention was taken by the prosecutor, who did not present the requisite guarantees of independence. In this case the Constitutional Court had acknowledged that the CCP did not specify in what manner the non-application of the three-month time-limit provided for in the second sentence of Article 71 § 2 should be declared. Such a shortcoming in domestic law was incompatible with the need for legal certainty and foreseeability. In this context it was not without importance that the impugned provision of Article 71   §   2 of the CCP had been amended on 1 July 2004 to require a judge or a court to take such decisions in the future. Lastly, the national authorities had reached the decision that the applicant should remain in detention also for a legal reason other than that given in Article 71 § 2. However, as the continuing application of Article 67 b) of the CCP had affected the applicant’s conditions of detention and the possibility of him being released subject to guarantees, and in view of the paramount importance of protecting individuals against arbitrariness, the above-mentioned shortcoming in domestic law and the situation that had resulted in this case had violated the applicant’s right under Article 5 § 3. That being so, it was not necessary to examine whether the reasons given by the courts had been “relevant and sufficient” or whether the competent national authorities had displayed “special diligence” in the conduct of the proceedings. Conclusion : violation (unanimously). (b) Compatibility of certain provisions of domestic law with Article 5 § 3 of the Convention : The applicant also complained that he had not been able to aspire to conditional release because of the application of Articles 73 and 73a of the CCP. Article 5   § 3 of the Convention obliged the domestic courts to review a person’s pre-trial detention in order to guarantee that they would be released when circumstances no longer justified their further detention. In the present case Articles 73 and 73a § 1 of the CCP combined with Article 67 b) had formed a legal barrier to the courts’ consideration of the guarantees offered by the applicant in his first two applications for release. That barrier had remained in place until the courts had decided no longer to hold against the applicant the risk, provided for in Article 67 b) du CCP, of pressure being brought to bear on witnesses. It followed, on the one hand, that the lack of judicial review only concerned the guarantees meant to replace the applicant’s pre-trial detention and, on the other, that it had been limited in time. In the light of the decisions taken by various courts throughout the impugned detention, however, it could not be said that there had been no judicial review whatsoever of the continuing existence of reasonable suspicion that the applicant had committed the offence in question, or of other grounds justifying the deprivation of his liberty. The requirements of Article   5   §   3 had therefore been respected. Conclusion : no violation (unanimously). Article 5 § 4 – Adversarial nature of the proceedings : The applicant alleged that in its decision of October 2003 the Municipal Court had substituted its own reasoning for the superficial, illogical reasons put forward by the first-instance court but without giving him a chance to comment. He also complained that the Supreme Court, in January 2004, had based its decision on a translation of a witness statement to which the defence had not had access, and had not given him an opportunity to be heard. It was not in dispute that the applicant’s appeal against the decision reached by the District Court in September 2003, following his hearing, had been examined without a hearing and without the parties being present. While in certain circumstances, particularly when the interested party had been able to appear before the court ruling on his detention in the first instance, the procedural requirements under Article 5   §   4 did not require him to appear again before the appeal courts, the particular circumstances in which the proceedings took place nevertheless had to be borne in mind to determine whether the proceedings afforded the safeguards provided for in Article 5 § 4.   In this case the situation certainly appeared to be a particular one in so far as it was not disputed that the Municipal Court had knowingly considerably expanded on and concretised the grounds for the applicant’s detention which the District Court had formulated in fairly vague terms. Furthermore, the Municipal Court had requested additional documents from the prosecutor. While it was true that all these documents had been in the case file, where counsel for the defence could have consulted them, there was no way the applicant could have known in advance what specific facts the Municipal Court would rely on to place him in detention. Furthermore, the decision concerned had had at least one major effect on his detention, in so far as it had subsequently been argued that the facts mentioned in that decision justified the application of the second sentence of Article 71 § 2 of the CCP and therefore the non-application of the three-month time-limit on pre-trial detention, because of the risk of pressure being brought to bear on witnesses. Also, it was quite clear that the applicant had been unable to obtain a hearing by applying for release as such hearings were far from automatic at that time. As to the circumstances in which the decision of January 2004 was adopted, it was not disputed that the defence had not known about the impugned document until almost a month after the impugned Supreme Court decision. Lastly, in December   2003 the   decision to keep the applicant in detention by virtue of Article 71 § 3 du CCP had been taken by a prosecutor, not by a court as provided for under Article 5 § 4, so the Supreme Court should have provided all the proper guarantees necessary for the type of deprivation of liberty in question; instead, it had determined the appeal without a hearing, that is, without giving the applicant a chance orally to express his views on matters essential to the review of the lawfulness of his detention, even though the previous hearing had been held not just a few weeks but several months earlier. In the particular circumstances of the case, where the decisions of September and December 2003 were concerned, there had been no judicial remedy available to the applicant which satisfied the requirements of Article 5 § 4 of the Convention. Conclusion : violation (unanimously). Article 41 – The finding of a violation constituted in itself sufficient just satisfaction for the non-pecuniary damage sustained by the applicant.   © 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