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SECOND
SECTION
CASE
OF GALUASHVILI v. GEORGIA
(Application
no. 40008/04)
JUDGMENT
STRASBOURG
17
July 2008
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
The European Court of Human Rights (Second Section), sitting as a
Chamber composed of:
Françoise
Tulkens,
President,
Ireneu
Cabral Barreto,
Vladimiro
Zagrebelsky,
Danutė
Jočienė,
András
Sajó,
Nona
Tsotsoria,
Işıl
Karakaş,
judges,
and
Sally Dollé, Section
Registrar,
Having
deliberated in private on 24 June 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application (no. 40008/04) against Georgia
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by Mr Tamaz Galuashvili on 27 October 2004.
The applicant was represented before the Court by Ms Lia
Mukhashavria, Ms Manana Kobakhidze, Ms Maka Gioshvili, Ms Natia
Katsitadze, Mr Nikoloz Legashvili and Mr Vakhtang Vakhtangidze.
- The
Georgian Government (“the Government”) were represented
by their Agent, Mr Mikheil Kekenadze, of the Ministry of Justice.
- On
24 October 2006 the Court declared the application partly
inadmissible and decided to communicate to the Government the
applicant's allegations concerning arrest without reasonable
suspicion, the absence of information about the reasons for his
arrest and the lack of adequate reasoning in the court decisions
ordering his detention. Under the provisions of Article 29 § 3
of the Convention, the Court decided to examine the merits of the
remainder of the application at the same time as its admissibility.
- The
Government and the applicant each filed observations on admissibility
and merits (Rule 54A of the Rules of Court).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1956 and lives in Tbilisi.
- Following an anonymous telephone call at 3.35 p.m. on
26 June 2004 informing the Central Police Department of Tbilisi
(“the CPD”) that armed men had been seen driving a car,
the police urgently planned an arrest operation. The case file
contains a transcript of that call.
- At
around 4 p.m. on 26 June 2004 the car, driven by the applicant, was
stopped in one of the central avenues of Tbilisi (for more details,
see Galuashvili v. Georgia (dec.), no. 40008/04,
24 October 2006). According to the record of the applicant's body
search undertaken on the spot, certified by two witnesses'
signatures, a gun was found tucked in the belt of his trousers. After
the search, the applicant was immediately conveyed to the CPD.
- According
to the applicant's version of events, however, he was never searched
and nor were the reasons for his arrest explained to him at the time.
The record of the search was allegedly drawn up ex post facto and
presented to him only at the CPD, twenty
minutes after his arrest in the street. He refused to sign the
record of arrest, claiming that it had been fabricated.
- At
the same time the applicant contended that he had first learnt about
the nature of the charges against him when glancing at the television
in the room of the CPD used for questioning. The evening news of
26 June 2004 reported, quoting the investigator in charge of the
case, that the applicant, “a.k.a. the 'Elephant of Tskhneti', a
well-known criminal and ... recidivist ... had been arrested for the
unlawful transport and storage of arms in large quantities.”
Only later was the applicant presented with the investigator's
decision, dated 8.00 p.m. 26 June 2004, opening a criminal case and
declaring him a suspect.
- On
the same day, without the applicant's knowledge, the police conducted
a search of his home in the presence of his family members. The
record of that search, attested by the signatures of several
witnesses, disclosed that guns and ammunition were discovered there.
In addition, the police discovered and seized several Georgian
passports of the applicant, issued on unspecified dates and
containing different serial numbers, as well as his two old Soviet
passports, in one of which he was apparently mentioned as a national
of the former Russian Soviet Federative Socialist Republic. The
applicant's wife refused to sign the record of the search, claiming
that the police had planted firearms in their home.
- On
27 June 2004 the Vake-Saburtalo District Court in Tbilisi validated
the results of the two above-mentioned searches.
- On
28 June 2004 the applicant was
charged with the unlawful transportation and storage of
firearms and ammunition. He pleaded “not guilty” but
promised to cooperate with the investigation. On the same day the
prosecutor requested that the applicant be remanded in custody,
arguing as follows:
“The circumstances of the case prove the
[applicant's] guilt. He is not sincere in his dealings with the
investigators. There exists a suspicion that he might interfere with
the establishment of the truth. The possibility that he will abscond
cannot be ruled out. A number of investigative actions have to be
undertaken...”
No
specific circumstances of the case were relied on, or specific
explanations put forward, in support of the above assertions.
- At
a hearing on 29 June 2004, the applicant denounced the
unfounded nature of the charges and stated that his family, job and
fixed place of residence were guarantees of his appearance for trial.
He reaffirmed his readiness to cooperate with the investigation and
stated that he was suffering from diabetes. The Vake-Saburtalo
District Court ordered the applicant's pre-trial detention for three
months in the following terms:
“...Having examined [various pieces of evidence]
... [the court] has come to the conclusion that the collected
evidence discloses a substantiated suspicion that the accused
committed the offence in question. The evidence has been collected in
conformity with the procedural norms.
“[In the court's] opinion, the prosecutor's
request is substantiated, and granting it would be lawful since the
accused has been charged with an offence carrying more than five
years' imprisonment. The seized gun has to be identified; it remains
to be seen whether it has been the subject of suspicion in any other
crimes. The suspicion that the accused, if released, might interfere
with the establishment of the truth or, in view of the prospect of
punishment, abscond is substantiated.”
- The
applicant appealed, requesting his release on the same grounds as had
previously been put to the District Court. He submitted that the
prosecution had not proved that there existed grounds for a
reasonable suspicion that he might either abscond or negatively
influence the investigation pending trial. The applicant also
referred to his diabetes as an argument for release. The prosecutor
replied that the appeal was unsubstantiated. A number of
investigative measures had to be undertaken, and the applicant's
release might conflict with the interests of the investigation. The
prosecution noted that no medical certificate proving the applicant's
disease had been submitted.
- On
1 July 2004 the Tbilisi Regional Court upheld the detention order of
29 June 2004. It noted that the applicant should remain in custody on
the basis of the circumstances “well argued in the prosecutor's
submissions”. In particular, the court continued, “there
existed sufficient grounds for the assumption that the applicant's
release pending trial would hinder the establishment of the truth
and, in particular, the due assessment of the evidence
submitted by the accused.”
- Both
the initial detention order of 29 June 2004 and the appeal decision
of 1 July 2004 endorsed the fact that firearms and ammunition had
been discovered on the applicant's body and at his home on 26 June
2004.
- On
5 July 2004, the applicant's lawyer requested an official expert
medical opinion on the applicant's condition. The request was
dismissed by the investigator on 8 July 2004 on the ground that the
applicant had the right to have himself examined by an independent
medical expert.
- On
26 July 2004 the applicant's lawyer requested the prosecution to
include in the criminal case file the written statements of thirteen
persons whom he had questioned himself. Some of those persons, having
been eyewitnesses to the applicant's arrest in the street on 26 June
2004, stated that the applicant had not been searched on the spot.
Others, being witnesses to the search of the applicant's home,
testified that the police had planted the firearms there. The lawyer
also requested that those witnesses be interviewed by the
prosecution.
- On
28 July 2004 the investigator in charge of the applicant's case
refused to include the above-mentioned statements as evidence in the
file or to interview their authors. He reasoned that, since all of
the witnesses who had allegedly been eyewitnesses to the applicant's
arrest were women, they would have been uninterested in what had been
happening in the street and their testimonies, being moreover
“superficial, incomprehensive and unsubstantiated”, were
not trustworthy. The investigator suggested that those female
witnesses might have been influenced and recalled that, in any case,
the search on the spot had already been confirmed by other witnesses'
signatures. As to the witnesses to the search of the applicant's
home, the investigator considered that, as they were his neighbours,
they were not impartial.
- The
applicant's lawyer challenged that decision before the prosecutor,
complaining, inter alia, that the investigator had
discriminated against the female witnesses. The prosecutor dismissed
the appeal on 2 August 2004 and instead ordered that the police
officers who had been involved in the applicant's arrest and in the
search of his house be questioned.
- An
alternative expert medical opinion of 3 September 2004 confirmed that
the applicant was suffering from a progressive type of diabetes and
needed intensive insulin treatment. The opinion concluded that the
risk of hypoglycaemia was high which, in the absence of urgent
intervention, could lead to the applicant's death. The following
week, the applicant was transferred, upon his request, to the prison
hospital where he stayed until his release (see paragraph 23 below).
- On
25 September 2004 the investigation was terminated and the case sent
to the Vake-Saburtalo District Court. During the trial, which opened
on 18 November 2004, the applicant's lawyer complained of the
prosecution's refusal to admit to the file the above-mentioned
thirteen testimonies (see paragraph 18 above). He also referred
to the fact that the witnesses for the prosecution, whose signatures
certified the record of the applicant's search, had changed their
testimony in favour of the latter. In fact, when interviewed by the
District Court, those persons said that they had not witnessed the
actual process by which the gun on the applicant's body had been
revealed.
- In
its verdict of 22 November 2004, the Vake-Saburtalo District Court
convicted the applicant of the unlawful transportation and storage of
firearms and ammunition. In its opening part, the verdict referred to
the applicant as an unemployed person. The court did not accept the
prosecution witnesses' altered testimonies, considering that they had
been influenced by the applicant's authority as a criminal
ringleader. As disclosed by the record of the hearing, the prosecutor
submitted – subsequently endorsed by the court – that the
applicant's “donation” of 100,000 Georgian laris
(EUR 42,825)
to the “Development Fund of the Law-Enforcement Agencies”
should be considered as a mitigating factor. The facts that the
applicant had had no prior convictions and was suffering from
diabetes were also endorsed as mitigating circumstances. The
applicant was sentenced to one year's imprisonment, suspended, and
was immediately released from the courtroom.
- On
3 December 2004 the applicant challenged the verdict before the
Tbilisi Regional Court, seeking an acquittal.
However, on 22 December 2004 he informed the Regional
Court that he had lost interest in the proceedings and withdrew his
appeal. According to the applicant, he had done so for
security reasons, as the authorities had threatened to arrest him
again.
II. RELEVANT DOMESTIC LAW
25. The Code of Criminal Procedure (“CCP”),
as it stood at the material time
Article 145 § 1
“When the police officer, or
other competent official, decides that the grounds prescribed by this
Code for an arrest exist, he should inform the suspect thereof in
understandable terms. Namely, the officer should explain to the
suspect what are the charges leveled against him ... and convey him
to a police station or other law enforcement office.”
Article 151 §§ 1, 2 and 3
“A restraint measure shall be applied to ensure
that the accused cannot avoid the preliminary investigation and
trial, that his further criminal activity is prevented, that he
cannot interfere with the establishment of the truth in the given
criminal case, or that the court's verdict is executed.
The application of a restraint measure is justified if
the evidence in the criminal case file sufficiently substantiates the
assumption that it is necessary to ensure the attainment of the aims
mentioned in the first paragraph of this Article.
The ground for the imposition of pre-trial detention can
be a substantiated suspicion that the accused may abscond or
interfere with the establishment of the truth in the criminal case,
or that a serious or grave crime has
been committed.”
Apart
from pre-trial detention, Article 152 § 1 envisaged the
possibility of using such measures of pre-trial restraint as police
supervision, home arrest, bail or a personal undertaking not to leave
the place of residence.
Article 159 § 3
“Pre-trial detention shall be imposed only with
regard to persons charged with an indictable offence carrying [a
punishment of] more than two years' imprisonment ...”
THE LAW
- ALLEGED VIOLATION OF ARTICLE 5 § 1 (c) OF THE
CONVENTION
- The
applicant complained that his arrest had not been based on a
reasonable suspicion within the meaning of Article 5 § 1 (c)
of the Convention. The relevant part of that provision reads as
follows:
“1. ... 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...”
- The
Government contested that argument. They submitted that the arrest of
the applicant had been planned on the basis of the anonymous
telephone call. They also referred to the fact that the urgent search
of the applicant and his home on 26 June 2004 had revealed firearms
in his possession. The results of those searches were later validated
and endorsed by the domestic courts.
- The
applicant replied that the anonymous call had been fabricated by the
police. In support of this assertion, he claimed that, taking into
account the distance between the CPD and the place of arrest and the
usual traffic jams in the centre of Tbilisi at peak hours, it would
hardly have been possible for the police to arrange the operation
within thirty minutes of receiving the call.
- The
applicant reiterated that he had not been searched on the spot and
that the relevant record of arrest, attesting to the presence of a
gun in the belt of his trousers, had in reality been presented to him
only upon his transfer to the CPD. He claimed that he had not been
wearing a belt at the time of his arrest and that his light sports
trousers could not carry a heavy gun. He further complained that the
domestic courts had arbitrarily endorsed the statements of the
prosecution witnesses, whilst rejecting those of the defence without
any explanation. Lastly, the applicant asserted, without adducing any
proof, that the witnesses who had signed the record of his body
search were agents provocateurs of the police.
A. Admissibility
- The Court reiterates that the national authorities are
better placed to evaluate the evidence adduced before them and,
consequently, its task is limited to reviewing under the Convention
the decisions they have taken rather than substituting its own
assessment of the facts of the case (see, amongst other authorities,
mutatis mutandis, X v. the United Kingdom, judgment of
5 November 1981, Series A no. 46, p. 20, § 43; Luberti v.
Italy, judgment of 23 February 1984, Series A no. 75,
p. 12, § 27).
- Contrary
to the applicant's submission, it is not the Court's task to probe
into whether the applicant, on arrest, was wearing trousers in the
belt of which he could have carried a gun or whether the police
could truly have reached the spot in thirty minutes. Nor can it
assess the credibility of the documents in the criminal case file in
a manner different from that adopted by the domestic courts. Other
than challenging the domestic factual findings, the applicant has not
advanced any major and substantiated argument capable of showing a
prima facie instance of the incompatibility of the national
authorities' decisions with the relevant Convention standards.
- Furthermore,
the applicant's arguments concerning the arbitrary disregard of the
defence witnesses' statements and the alleged involvement of agents
provocateurs would have been more appropriate in the context of
the proceedings relating to the determination of the criminal charges
against him (see, amongst others, Stoimenov v. the former Yugoslav
Republic of Macedonia, no. 17995/02, § 44, 5 April
2007; Borisova v. Bulgaria, no. 56891/00, §§ 46-49,
21 December 2006). He could have raised those grievances before the
appellate and cassation courts. Instead, the applicant chose to drop
the case (see paragraph 24 above), a fact which has already led the
Court to declare the same complaints raised under Article 6 of the
Convention inadmissible for non-exhaustion of domestic remedies (see
the Galuashvili decision, cited above). As to the complaint
about the fabrication of the anonymous telephone call, the Court has
already examined and rejected it as being manifestly
ill-founded (ibid.).
- The
Court further notes that the results of the urgent searches of
26 June 2004, which revealed the firearms and ammunition
unlawfully in the applicant's possession, were first validated on 27
June 2004 and, afterwards, were also repeatedly endorsed as
established fact by the domestic courts. The Court considers that
those well-established facts were sufficient to raise “a
reasonable suspicion” that the offence of the unlawful
transportation and storage of arms had been committed. It should also
be pointed out in this regard that facts which raise a suspicion
under Article 5 § 1 (c) of the Convention need
not be of the same level of certainty as those necessary to justify a
conviction or even the bringing of a charge (see Murray v. the
United Kingdom, judgment of 28 October 1994, Series A
no. 300-A, p. 27, § 55).
-
In the light of the above considerations, the Court concludes that
the complaint under Article 5 § 1 (c) of the
Convention is unsubstantiated and must be rejected as being
manifestly ill-founded pursuant to Article 35 §§ 3 and
4 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 5 § 2 OF THE
CONVENTION
- The
applicant complained under Article 5 § 2 of the Convention that
he was not immediately informed of the reasons for his arrest and the
nature of the charges against him, and that he was denied the
assistance of a lawyer. This provision reads as follows:
“Everyone who is arrested shall be informed
promptly, in a language which he understands, of the reasons for his
arrest and of any charge against him.
- The
Government stated that, as a gun had been found on his person, the
applicant could easily have understood the reasons for his arrest.
They submitted the record of his arrest, dated 4.20 p.m. 26 June
2004, which disclosed that the applicant had been informed, upon his
transfer to the CPD, of the suspected offence – unlawful
transportation of a gun – and had had his procedural rights
explained to him. The applicant had refused to sign the record.
-
The applicant endorsed the above-mentioned record as valid evidence,
claiming that it disclosed the authorities' hesitation as to the
exact classification of the offence in question at the time of his
arrest. However, he still maintained that it was only through the
evening news of 26 June 2004 that he had first learnt of the
charges against him.
A. Admissibility
- The
Court reiterates that, by virtue of Article 5 § 2
of the Convention, any person arrested must be told, in simple,
non-technical language which he or she can understand, the essential
legal and factual grounds for the measure. Whilst this information
must be conveyed “promptly”, it need not be related in
its entirety by the arresting officer at the very moment of the
arrest. Whether the content and promptness of the information
conveyed were sufficient is to be assessed in each case according to
its special features (see Fox, Campbell and
Hartley v. the United Kingdom, judgment of 30 August 1990,
Series A no. 182, p. 19, § 40).
- The
Court notes that the record of the arrest was presented to the
applicant at 4.20 p.m. at the CPD, that is, twenty minutes following
his arrest in the street. The applicant has himself acknowledged this
fact (see paragraphs 8 and 37 above). Having closely examined the
content of that record, the Court finds that it contained specific
information about the reason for the applicant's arrest, namely, a
suspicion that the offence of the illegal transportation and storage
of firearms had been committed. In the context of the present case,
the interval of twenty minutes cannot be regarded as falling outside
the time constraints imposed by the notion of promptness in Article 5
§ 2.
- This
limb of the complaint is therefore manifestly ill-founded and must be
rejected pursuant to Article 35 §§ 3 and 4 of the
Convention.
- As
to the second limb of the complaint, relating to the applicant's
inability to have the assistance of a lawyer immediately after his
arrest, it was already declared inadmissible on 24 October 2006 (see
the Galuashvili decision, cited above).
III. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
- The
applicant complained under Article 5 § 3 of the
Convention that the judicial decisions concerning his pre-trial
detention lacked reasonable grounds. This provision reads as follows:
“Everyone arrested or detained in accordance with
the provisions of paragraph 1 (c) of this Article shall be
... entitled to trial within a reasonable time or to release pending
trial. Release may be conditioned by guarantees to appear for trial.”
- The
Government contested that argument, maintaining that the reasons
expressly given in the contested judicial decisions were adequate.
- The
applicant replied that the domestic courts had never considered the
possible use of other non-custodial forms of pre-trial restraint and
that they had justified the imposition of detention on insufficient
grounds, such as the severity of the charge against him. He
complained that, against the prosecutor's unsubstantiated
statements, the domestic courts, without giving any explanations in
the relevant decisions, refused to accept his specific arguments,
such as, for example, that he suffered from diabetes and was in need
of permanent medical supervision and treatment which would have been
impossible to receive in detention. Since the prosecution requested
his pre-trial detention without supporting the alleged risks of
absconding or hampering the investigation by reference to the
specific circumstances of the case or pieces of evidence, the
applicant considered that the burden of proof in the relevant
proceedings had been shifted onto him, in breach of Article 5 §
3 of the Convention. The applicant
further complained in this regard that there was no statutory
obligation for the prosecution to assume the burden of proof in
matters of detention.
A. Admissibility
- The Court notes that this complaint is not manifestly
ill founded within the meaning of Article 35 § 3 of the
Convention; nor is it inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
- According
to the Court's case-law, the issue of whether a period of detention
is reasonable cannot be assessed in abstracto. Whether it is
reasonable for an accused to remain in detention must be assessed in
each case according to its special features (see, among other
authorities, Kudła v. Poland [GC],
no. 30210/96, §§ 110-111, ECHR 2000-XI;
Pihlak v. Estonia, no. 73270/01, § 41,
21 June 2005). It falls in the first place to the national judicial
authorities to ensure that, in a given case, the pre-trial detention
of an accused person does not exceed a reasonable time. To this end
they must, whilst paying due regard to the principle of the
presumption of innocence, examine all the facts arguing for or
against the existence of a public interest requirement justifying a
departure from the rule in Article 5, and must set them out in their
decisions on the applications for release. It is essentially on the
basis of the reasons given in these decisions and of the
well-documented facts stated by the applicant in his appeals that the
Court is called upon to decide whether or not there has been a
violation of Article 5 § 3 (see, for example, Labita v. Italy
[GC], no. 26772/95, § 152, ECHR 2000-IV; Kudła,
cited above, § 110).
- The
persistence of a reasonable suspicion that the person arrested has
committed an offence is a condition sine qua non for the
lawfulness of the continued detention, but after a certain lapse of
time it no longer suffices. The Court must then establish whether the
other grounds cited by the judicial authorities continued to justify
the deprivation of liberty. Where such grounds were “relevant”
and “sufficient”, the Court must also be satisfied that
the national authorities displayed “special diligence” in
the conduct of the proceedings. The complexity and special
characteristics of the investigation are factors to be considered in
this respect (see, for example, Scott v. Spain, judgment of 18
December 1996, Reports of Judgments and Decisions 1996 VI,
pp. 2399-2400, § 74; I.A. v. France,
judgment of 23 September 1998, Reports 1998-VII, p.
2978, § 102).
- As
to the case at hand, the Court first notes that the impugned court
decisions of 29 June and 1 July 2004 relied, in addition to the
existence of a reasonable suspicion against the applicant, on the
need to secure the proper conduct of the proceedings. In this
respect, the domestic courts referred to the severity of the penalty
to which the applicant was liable. Given that the applicant was found
in possession of firearms and ammunition, the Court accepts that
there was a reasonable suspicion that the applicant had committed the
serious offence with which he had been charged and which could
warrant his detention (see Kusyk v. Poland, no. 7347/02,
§§ 36-37, 24 October 2006). It further subscribes
to the domestic authorities' consideration that the severity of the
sentence was a relevant element in the assessment of the risk of
absconding or otherwise jeopardising the investigation at the early
stages of the proceedings (see Ilijkov v. Bulgaria,
no. 33977/96, § 80, 26 July 2001). Moreover, in its
decision of 29 June 2004, the Vake-Saburtalo District Court
referred to the need to test the seized gun in order to establish
whether it had been used in any other crimes. In the Court's view,
this was another reasonable ground justifying the applicant's
detention.
- As
to the applicant's arguments in favour of his release, the Court
notes that one of those grounds – the existence of a job as a
guarantee for appearance at trial (paragraph 13 above) – was
apparently false, in so far as the applicant was, according to the
verdict of 22 November 2004, unemployed at the material time
(paragraph 23 above). As to the reference to diabetes (paragraphs 13
and 14 above), the Court observes that the veracity of this
submission could not be tested by the domestic courts on 29 June
and 1 July 2004, as the applicant did not put forward any medical
evidence to that end until 3 September 2004 (paragraphs 14 and 21
above). Apparently, he had not taken any medication with him into the
prison or sought its immediate acquisition. Moreover, neither he nor
his family immediately contacted the prison medical practitioners on
this matter.
- Lastly,
the Court notes that the applicant was tried speedily – within
five months (see paragraphs 7 and 23 above). Consequently, the
authorities dealt with the case with special diligence, this factor
being of further importance in assessing the compatibility of
pre-trial detention with Article 5 § 3 of the Convention (see
Kusyk, cited above, § 39; Klamecki v. Poland,
no. 25415/94, §§ 74 and 76, 28 March 2002).
- In view of the foregoing considerations, the Court
concludes that, whilst it would certainly have been desirable for the
domestic courts to have given more detailed reasoning as to the
grounds for the applicant's detention, this cannot, in the
circumstances of the present case, amount to a violation of his
rights under Article 5 § 3 of the Convention (see Sardinas Albo,
cited above, § 89; Van der Tang v. Spain, judgment
of 13 July 1995, Series A no. 321, p. 19, § 60).
- The
Court thus concludes that there has been no violation of Article 5
§ 3 of the Convention.
FOR THESE REASONS, THE COURT
- Declares unanimously
the complaint under Article 5 § 3 of the Convention admissible
and the remainder of the application inadmissible;
- Holds by 6 votes to 1 that there has been no
violation of Article 5 § 3 of the Convention.
Done in English, and notified in writing on 17 July 2008,
pursuant to Rule 77 §§ 2 and 3 of the Rules of
Court.
Sally Dollé Françoise Tulkens
Registrar President
In accordance with Article 45 § 2 of the Convention
and Rule 74 § 2 of the Rules of Court, the following
dissenting opinion of Judge Tulkens is annexed to this judgment.
F.T.
S.D.
DISSENTING OPINION OF JUDGE TULKENS
I
cannot subscribe to the decision of the majority in so far as it
departs in two essential respects from the Court's case-law
concerning Article 5 § 3 of the Convention and from
the general principles underlying that provision.
- I
note firstly that the present case is similar to Patsuria v. Georgia
(no. 30779/04, §§ 61-77, 6 November 2007), in
which the Court held precisely that in the absence of specific,
relevant and sufficient grounds, the first three months of the
applicant's pre-trial detention had breached Article 5 § 3
of the Convention.
This
touches on a basic principle governing the Court's settled case-law.
A decision to continue a person's pre-trial detention must be duly
reasoned and the reasons must be given in concreto. It
is essentially on the basis of the reasons given in the relevant
decisions of the national judicial authorities and of the arguments
submitted by the applicant in his or her applications for release
that the Court is called upon to decide whether or not the detention
on remand was justified under Article 5 § 3 of the Convention.
In this context, any period of detention on remand, whatever its
length, requires appropriate reasoning by the competent national
authorities (see Jabłoński v. Poland,
no. 33492/96, § 80, 21 December 2000). It was
precisely such a review and such reasoning that were lacking in the
present case.
- The
domestic courts did not attempt to refute the arguments submitted by
the applicant in his applications for release but simply accepted the
general, abstract assertions put forward by the prosecution (see
paragraphs 13-15 of the judgment). Contrary to the relevant
Convention standards (see, for example, Garycki v. Poland,
no. 14348/02, § 46, 6 February 2007), the
first-instance court endorsed the mere existence, unrelated to other
valid grounds, of a reasonable suspicion that the applicant had
committed the offence, and referred to the severity of the possible
punishment (see Rokhlina v. Russia, no. 54071/00, § 66,
7 April 2005, and Khudoyorov v. Russia, no. 6847/02,
§ 181, ECHR 2005 X). Another reason which was relied
on – the lawfulness of the evidence collected – was
necessary under domestic law to justify the applicant's detention;
however, in my view, this goes to the issue under Article 5 § 1
(c) of the Convention and it is not relevant for the assessment of
the reasonableness of the decision concerning pre-trial detention for
the purposes of Article 5 § 3 (see Patsuria, cited above,
§ 68).
- Admittedly,
the fear that the applicant might abscond or hamper the establishment
of the truth might, in principle, have been a valid ground. However,
the domestic courts did not substantiate this fear with reference to
any specific circumstances of the case, and relied solely on the
prosecutor's abstract statements, unsupported by actual evidence
(see, by contrast, Ramishvili and Kokhreidze v. Georgia
(dec.), no. 1704/06, 27 June 2007).
In particular, the first-instance court mentioned, without providing
any logical explanation for the asserted cause and effect, the need
to test the seized gun in order to establish whether it had been used
in any other crimes (see paragraph 13 of the judgment). However, I am
unable to discern how the applicant's release might have hindered
that particular investigative measure, given that the gun in question
had already been taken from the applicant and was in the authorities'
possession. Neither did the appellate court specify why the
applicant, if released, might interfere with the investigation.
Consequently, I find that the risks of absconding and hampering the
establishment of the truth appear, in the present case, to be
unsubstantiated, hypothetical and thus insufficient to justify
depriving the applicant of his liberty (see Patsuria, cited
above, §§ 69 and 71; Letellier v. France,
judgment of 26 June 1991, Series A no. 207, § 43; and
Smirnova v. Russia, no. 46133/99 and 48183/99, § 63,
ECHR 2003-IX).
- Even
though specific, relevant facts warranting the applicant's
deprivation of liberty may have existed in the present case, they
were not set out in the relevant domestic decisions (see Labita
v. Italy [GC], no. 26772/95, § 152 in fine,
ECHR 2000-IV). It is not the Court's task to take the place of the
national authorities and establish such facts in their stead (see
Ilijkov v. Bulgaria, no. 33977/96, § 86, 26 July 2001;
Nikolov v. Bulgaria, no. 38884/97, § 74, 30 January
2003; and Panchenko v. Russia, no. 45100/98, §
105, 8 February 2005), as the majority did in the present case (see
paragraph 49 of the judgment).
- What,
then, are the factors which led the majority to conclude that there
was no violation of Article 5 § 3 of the
Convention in this case?
A
first aspect that was explicitly mentioned was the severity of the
penalty to which the applicant was liable (see paragraph 48). The
Court has always held that the seriousness of the offence –
and, consequently, the severity of the sentence – is a
necessary ground for continuing a person's pre-trial detention but is
in itself insufficient; other supporting reasons must also be given
(see Demirel v. Turkey, no. 39324/98, § 59, 8 January
2003, and Goral v. Poland, no. 38654/97, § 68,
30 October 2003), but that did not happen in this case.
The
second aspect is probably the decisive factor which persuaded the
majority: the length of the applicant's pre-trial detention, a
period of five months, which was deemed, so to speak, “insufficient”.
This marks, in my opinion, the other departure from our case-law. As
the Court forcefully pointed out in Belchev v. Bulgaria (no.
39270/98, § 82, 8 April 2004), there is no cause to consider
that there is a “certain period” within which pre-trial
detention may be regarded as acceptable. Even a relatively short
period of detention – the period in Belchev was four
months and fourteen days – must be justified by the
authorities and may, where appropriate, be found to breach Article 5
§ 3 if there is no satisfactory justification.
- Lastly,
under Article 5 § 3 of the Convention, when deciding whether a
person should be released or detained, the authorities must consider
alternative measures of ensuring his or her appearance at the trial.
Indeed, this provision proclaims not only the right to “trial
within a reasonable time or to release pending trial” but also
lays down that “release may be conditioned by guarantees to
appear for trial” (see, among other authorities, Kaszczyniec
v. Poland, no. 59526/00, § 57, 22 May 2007). The
authorities are under an obligation to conduct such a review and it
must be clear from the reasoning of their decision that the review
has taken place (see J.G. v. Poland, no. 36258/97,
§§ 55-56, 6 April 2004). However, in the present case,
the domestic courts did not consider at all the possibility of
applying other non-custodial preventive measures, which were
expressly envisaged by Article 152 § 1 of the CCP.
Such an omission by the domestic courts is yet another indication of
their disregard for the requirements of Article 5 § 3
of the Convention (see Patsuria, cited above, §§
75-76, and Dolgova v. Russia, no. 11886/05, §§ 47,
48 and 50, 2 March 2006).
- As
the Court has often emphasised, the safeguard in Article 5 §
3 of the Convention secures “the rule of law, one of the
fundamental principles of a democratic society” (see Dikme
v. Turkey, no. 20869/92, § 66, ECHR 2000-VIII). The very
essence of Article 5 § 3 is the right to remain free pending a
criminal trial, so that the presumption of innocence is given
practical and useful effect rather than being theoretical and
illusory. Liberty is the rule and detention the exception. That is
the message which the Court should be giving States in the efforts
they pursue, by various means, to limit pre-trial detention, which is
a problematic issue in all criminal justice systems in Europe.
