EHRM, 16-01-2007, nr. 27561/02

The Court recalls that the word ‘conviction’, for the purposes of Article 5 § 1 (a), is to be understood as signifying both a finding of guilt, after it has been established in accordance with the law that an offence has been committed, and the imposition of a penalty or other measure involving a deprivation of liberty (Van Droogenbroeck v. Belgium, judgment of 24 June 1982, Series A no. 50, p. 19, § 35). The detention of a person convicted at first instance, whether or not he or she was detained beforehand, falls under Article 5 § 1 (a) which provides as follows:

Thus, if an applicant has been detained pending trial under Article 5 § 3, that form of custody would end on the day on which the charge is determined, even if only by a court of first instance (Wemhoff v. Germany judgment of 27 June 1968, Series A no. 7, p. 23 § 9). The Court additionally observes that a person who had cause to complain of the continued detention after conviction pending a delayed appeal, may not be able to invoke Article 5 § 3 but could possibly allege a breach of the ‘reasonable time’ requirement of Article 6 § 1 of the Convention (ibidem.).

This general principle asserted in Wemhoff has been confirmed in the B. v. Austria judgment (28 March 1990, Series A no. 175, p. 23, § 9): Given the essential link between paragraph 3 and sub-paragraph 1 (c) of Article 5, a person convicted at first instance and detained pending appeal could not be considered to be detained for the purpose of bringing him or her before the competent legal authority on reasonable suspicion of having committed an offence.

There exist important differences among the Contracting States on the question whether a person convicted at first instance has started serving a prison sentence while an appeal is still pending. However, the Court held in B. v Austria that the important guarantees of Article 5 § 3 of the Convention are not dependent on national legislation (ibid., § 39). Thus, even if the domestic law of a Member State provides that a sentence only becomes final on completion of all appeals, detention on remand comes to an end for the purposes of the Convention with the finding of guilt and the sentence imposed at first instance.

In the Neumeister v. Austria case (judgment of 27 June 1968, Series A no. 8; p. 37, § 6), the applicant's initial period of detention ended more than six months before the date on which he lodged his application with the Commission. Therefore the Court considered that it may not be able to examine whether the first period was compatible with the Convention. However, it went on to say that, in the event of an applicant being convicted, the first period would normally be deducted from any term of imprisonment imposed; it would thus reduce the actual length of imprisonment which might be expected. The Court accordingly decided that the first period should be taken into account in assessing the reasonableness of the applicant's later detention (ibid.).

In doing so, it explained that it would be excessively formalistic to require an applicant, complaining about the length of his or her remand in custody within the same criminal proceedings, to file a new application with the Convention organs after each pre-trial detention period ends (Neumeister, p. 38, § 7). Moreover, it observed that such a requirement would overburden the Convention system with multiple applications lodged by the same applicant, with the same complaint concerning different, yet consecutive detention periods (ibid.).

It can be construed from the above explanations that the Wemhoff and Neumeister judgments (pronounced on the same day) complement each other, as the former determines when the relevant period under Article 5 § 3 ceases to apply, while the latter advises on the application of the six-month rule under Article 35 § 1 of the Convention and the calculation of the total length of pre-trial detention periods.

The Court has followed the same approach in more recent judgments. It has held that where an accused person is detained for two or more separate periods pending trial, the ‘reasonable time’ guarantee of Article 5 § 3 requires a global assessment of the accumulated periods (see Kemmache v. France (no. 1 and no. 2) judgment of 27 November 1991, Series A no. 218, § 44; I.A. v. France, judgment of 23 September 1998, Reports of Judgments and Decisions 1998-VII, p. 2979, § 98; Vaccaro v. Italy, no. 41852/98, 16 November 2000, §§ 31–33; Mitev v. Bulgaria, no. 40063/98, 22 December 2004, § 102). In these cases, unlike the Neumeister judgment, no reference was made to the application of six-month rule.

However, until recently, the approach adopted in Turkish cases examined by the Court under Article 5 § 3 has been slightly different from that above: If an application was lodged more than six months after the end of initial periods of detention on remand, the Court declared the complaints regarding these periods inadmissible. Nevertheless, when deciding on the reasonableness of the last period of detention on remand, account was taken of the previous periods of detention to which the applicant had already been subjected (see, among others, Kalay v. Turkey, no. 16779/02, § 34, 22 September 2005; Giyasettin Altun v. Turkey, no. 73038/01, § 28, 24 May 2005; Çiçekler v. Turkey, no. 14899/03, § 61, 22 December 2005; Bahattin Şahin v. Turkey (dec.), no. 29874/96, ECHR 17 October 2000; Köse v. Turkey (dec.), no. 50177/99, ECHR 2 May 2006).

Then again, in the recent Baltaci v. Turkey judgment (no. 495/02, §§ 44–46, 18 July 2006), the Court reinstated the global approach by making an assessment of the accumulated periods of detention, without mentioning the question of the six-month rule.

From the above recapitulation of its case-law, the Court concludes that confusion has grown regarding the application of the six-month rule in cases of the present kind. It recalls that this rule, in reflecting the wish of the Contracting Parties to prevent past decisions being called into question after an indefinite lapse of time, serves the interests not only of the respondent Government but also of legal certainty as a value in itself. It marks out the temporal limits of supervision carried out by the organs of the Convention and signals to both individuals and State authorities the period beyond which such supervision is no longer possible. It is therefore not open to the Court to set aside the application of the six-month rule solely because a Government have not made a preliminary objection based on it (see, Walker v. United Kingdom (dec.), no. 34979/97, ECHR 2000-I).

In the light of the above explanations, the Court wishes to clarify the application of the six-month rule in cases of multiple detention periods, within the meaning of Article 5 § 3 of the Convention, through its examination of the present case.

The Court observes that, in the present case, the applicant's detention on remand began when he was arrested on 23 January 1994. He was detained within the meaning of Article 5 § 3 of the Convention until his conviction by the Istanbul State Security Court on 12 June 2000. As from that date, until 15 May 2001, when the Court of Cassation quashed the decision of the first instance court, he was detained ‘after conviction by a competent court’, within the meaning of Article 5 § 1 (a) and therefore that period of his detention falls outside the scope of Article 5 § 3 (see B. v Austria, cited above, §§ 33 39; Kudla v. Poland[GC], no. 30210/96, § 104, ECHR 2000-XI). From 15 May 2001 until his release pending trial on 18 February 2002, the applicant was again in pre-trial detention falling under Article 5 § 3 of the Convention.

The Court notes that, in the absence of domestic remedies, the six-month time limit starts to run from the act of which complaint is made. It nevertheless reaffirms and emphasises the Neumeister considerations cited above (paragraph 27), in particular the need to avoid excessive formalism and the imposition of an excessive burden on not only the applicant but also the Convention supervisory mechanism (Neumeister, cited above, p. 38, § 7). This is especially so in the circumstances of the present case where the criminal proceedings were pending at the appeal stage and the applicant continued to be deprived of his liberty, albeit under Article 5 § 1 (a) of the Convention.

Consequently, the Court considers that, in the instant case, the multiple, consecutive detention periods of the applicant should be regarded as a whole, and the six-month period should only start to run from the end of the last period of pre-trial custody, i.e. 18 February 2002.

The Court further notes that, according to Article 63 of the Criminal Code, any period of imprisonment served before the finalisation of a judgment depriving an individual of personal liberty shall be deducted from the sentence (paragraph 18). In order to assess the reasonableness of the length of the applicant's pre-trial detention, the Court should therefore make a global evaluation of the accumulated periods of detention under Article 5 § 3 of the Convention (see, mutatis mutandis, Neumeister, cited above, p. 37, § 6). Consequently, the Court concludes that, after deducting the periods when the applicant was detained after conviction under Article 5 § 1 (a) of the Convention from the total time that he was deprived of his liberty, the period to be taken under consideration in the instant case is nearly seven years and two months.

The Court reiterates that the question of whether or not a period of detention is reasonable cannot be assessed in the abstract. Whether it is reasonable for an accused to remain in detention must be assessed in each case according to its special features. Continued detention can be justified in a given case only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the need to respect individual liberty as guaranteed by Article 5 of the Convention (see, among other authorities, Kudla v. Poland[GC], cited above, §§ 110–111).

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 examine all the facts arguing for or against the existence of the above-mentioned requirement of public interest 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, Labita v. Italy[GC], no. 26772/95, § 152, ECHR 2000-IV; Kudla, cited above, § 110).

The persistence of 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 given 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 1996-VI, pp. 2399–2400, § 74; I.A. v. France, judgment of 23 September 1998, Reports 1998-VII, p. 2978, § 102).

The Court observes that the Istanbul State Security Court examined the applicant's continued detention at the end of every hearing, either on its own motion or upon the applicant's request. It notes however, from the material in the case file, that the court ordered the applicant's continued detention on remand using identical, stereotyped terms, such as ‘having regard to the nature of the offence, the state of evidence and the content of the file’ at the end of most of the hearings. Although, in general, the expression ‘the state of evidence’ may be a relevant factor for the existence and persistence of serious indications of guilt, in the present case it nevertheless, alone, cannot justify the length of the detention of which the applicant complains (see Letellier v. France, judgment of 26 June 1991, Series A no. 207; Tomasi v. France, judgment of 27 August 1992, Series A no. 241-A; Demirel v. Turkey, no. 39324/98, § 59, 28 January 2003).

In this context, the Court notes that the State Security Court failed to indicate to what extent the applicant's release would have posed a risk, after — by then — well over eight years of detention (including the periods of imprisonment after conviction), in its last decision to prolong the applicant's remand in custody pending his re-trial at first instance (see Demirel, cited above, § 60).

The foregoing considerations are sufficient to enable the Court to conclude that the grounds given for the applicant's pre-trial detention were not ‘sufficient’ and ‘relevant’ to justify holding him in custody for nearly seven years and two months. In these circumstances it is not necessary to examine whether the proceedings were conducted with special diligence.

There has accordingly been a violation of Article 5 § 3 of the Convention.