CEDH · CASELAW;CLIN;ENG — 24 août 2010

.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. 133 August-September 2010 Prehn v. Germany (dec.) - 40451/06 Decision 24.8.2010 [Section V] Article 5 Article 5-4 Procedural guarantees of review Review of lawfulness of detention Refusal to allow a convicted prisoner to be assisted by lawyer of his own choosing in order to appeal against preventive detention: inadmissible   Facts – In 1996 a regional court sentenced the applicant to ten years’ imprisonment for rape and ordered his preventive detention. In 2005 the applicant requested the court to suspend the remainder of his sentence and his preventive detention on probation. Although he already had representation, the applicant requested the court to appoint another counsel, who he said was specialised in the execution of sentences and sexual offences. His request was dismissed as the counsel in question was practising in another city and so was not within the court’s judicial district. In 2006, having regard to a psychiatric report, the court ordered that the applicant be placed in preventive detention. The applicant complained that he had not been allowed to defend himself effectively by legal assistance of his own choosing. Law – Article 5 § 4: Preventive detention was ordered if the offender was considered at risk of recidivism and therefore still a danger to the public. However, the factor of dangerousness was susceptible to change over the passage of time and new issues of lawfulness might thus arise in the course of the offender’s detention. The applicant in the instant case had therefore been entitled to have the lawfulness of his preventive detention decided by a court at reasonable intervals. Under the Court’s case-law on Article 6 §   3   (c), the right of an accused to be defended by counsel “of his own choosing” was not an absolute one and could be subject to limitations necessary in the interests of justice. These principles applied, mutatis mutandis , to the right to receive legal assistance in proceedings covered by Article 5 §   4. The main reason why the domestic courts had refused to appoint the counsel chosen by the applicant was that he was not practising within the court’s jurisdiction. The Court accepted that the proximity of counsel to his client and the court facilitated proper defence and communication and kept costs down. The domestic courts were entitled within their margin of appreciation to take into account the fact that counsel resided more than 100 kilometres from the court and the prison where the applicant was detained, as also the limited availability of modern means of communication. Moreover, the interests of justice required the decision on the applicant’s placement in preventive detention to be taken speedily. Furthermore, according to the findings of the domestic courts, there had been no firm relationship of trust between the applicant and the counsel concerned, who had never previously defended or met him in person. Nor had there been any evidence to suggest that the counsel already acting for the applicant was unable to provide him with effective legal assistance. The Court was therefore satisfied that there had been relevant and sufficient grounds for the domestic courts not to appoint the counsel chosen by the applicant and that the applicant’s right to receive legal assistance comprised in the right under Article 5 §   4 to a fair, adversarial procedure had not been disregarded. Conclusion : inadmissible (manifestly ill-founded).   © 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