CEDH · CASELAW;CLIN;ENG — 15 novembre 2005

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Austria - 67175/01 Judgment 15.11.2005 [Section IV] Article 5 Article 5-4 Procedural guarantees of review Prolongation of detention on remand without public hearing: no violation   Facts :The applicant complained under Articles 5(4) and 6(1) that the hearings regarding the prolongation of his pre-trial detention had not been public. Law – Article 5(4):Requirements such as the adversarial nature of the proceedings and the principle of equality of arms are fundamental guarantees of procedure applying in matters of deprivation of liberty. However, there was no basis in the Court’s case-law as it stood to support the applicant’s claim that hearings on the lawfulness of pre-trial detention should be public. There is a close link between Article   5(4) and Article 6(1) in the sphere of criminal proceedings and the latter provision has been found to have some application at the pre-trial stage during which the review of the lawfulness of pre-trial detention under Article 5(4) typically takes place. This application is nevertheless limited to certain aspects and there was no indication that the non-public nature of the detention hearings at which the applicant had been assisted by counsel could similarly prejudice the fairness of the proceedings as a whole. Although some rights applicable in proceedings under Article   5(4), as for instance the right of access to the file or to the assistance of a lawyer may overlap with the rights guaranteed by Article 6, the link between the two provisions in criminal matters does not justify the conclusion that Article 5(4) requires hearings on the lawfulness of pre-trial detention to be public. The two provisions pursue different purposes, which is why Article 5(4) contains more flexible procedural requirements than Article 6 while being much more stringent as regards speediness. Hearings on the lawfulness of pre-trial detention will in practice often be held in remand prisons. Either granting the public effective access to attend hearings in prison or transferring detainees to court buildings for the purpose of public hearings may therefore require arrangements which could run counter to the requirement of speediness. In conclusion, Article 5(4), though requiring a hearing for the review of the lawfulness of pre-trial detention, does not as a general rule require such a hearing to be public. The Court did not exclude the possibility that a public hearing might be required in particular circumstances. However, no such circumstances had been shown to exist in the present case and no other defects in the review of the lawfulness of the applicant’s pre-trial detention had been established. Conclusion : No violation (unanimously). Article 6(1): Applying Article 6 to the proceedings reviewing the lawfulness of pre-trial detention would be against its wording as the subject matter of those proceedings was not the “determination of a criminal charge”. Moreover, the different purposes pursued by Article 5(4) and Article 6 justify the differences as regards procedural requirements. Consequently, there was no basis to conclude that the criminal head of Article 6 applies to proceedings for the review of the lawfulness of detention falling within the scope of Article 5(4). The Court had found in Aerts v. Belgium (judgment of 30 July 1998, Reports of Judgments and Decisions 1998‑V) that Article 6(1) applied under its civil head to proceedings concerning the lawfulness of deprivation of liberty, as “the right to liberty” was a “civil right”. That judgment, however, and various subsequent cases had concerned proceedings relating to the lawfulness of detention of persons of unsound mind falling within the scope of Article 5(1)(e) which proceedings had been conducted after the applicants’ release, that is, when Article 5(4) no longer applied and no potential conflict between the requirements of Articles 5(4) and 6(1) arose. In the current case which concerned criminal proceedings such a conflict did arise as the former provision does not generally require a hearing on the lawfulness of pre-trial detention to be public, while the latter provision requires public hearings in its own sphere of application. It would go againstthe principle of harmonious interpretation of different Convention provisions to derive from the civil head of Article 6 more stringent requirements than those imposed by the thorough protection system in relation to criminal proceedings set up under Article 5(4) and the criminal head of Article 6.Article 5(4) contains specific procedural guarantees for matters of deprivation of liberty which are distinct from the procedural guarantees of Article 6. Therefore, Article 5(4) is the lex specialis in relation to Article   6. Conclusion :No separate issue (unanimously).   © 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