EHRM, 09-02-2021, nr. 69491/16

The Government argued, relying on Vučković and Others v. Serbia ((preliminary objection) [GC], nos. 17153/11 and 29 others, 25 March 2014) that the application was inadmissible for non-exhaustion of domestic remedies within the meaning of Article 35 § 1 of the Convention as, for reasons unknown, the applicant had failed to appeal against the pre-trial-detention order given on 29 June 2016 by the Oost-Brabant Regional Court (see paragraph 11 above).

The applicant submitted that he had exhausted domestic remedies as his application was not directed against the pre-trial order of 29 June 2016 (see paragraph 9 above) but against the ruling of the Court of Appeal of 18 August 2016 (see paragraph 16 above), against which no appeal lay (see paragraph 17 above).

The applicant essentially repeated his arguments as raised in the domestic proceedings. He added, relying on the Court's consideration in the case of Vosgien v. France (no. 12430/11, § 52, 3 October 2013), that the likelihood of reoffending could not be solely based on a suspect's criminal record. His pre-trial detention was only based on the risk of recidivism on account of his criminal record, his presumed pro-criminal attitude and on the assumption that his financial dispute with U. was still ongoing.

However, that justification had ignored the fact that, according to his criminal record, he had not committed any violent crimes since 2004. Since then, he had changed his life for the better and no longer tried to solve his disputes through violence, as illustrated by the fact that he had not approached U. in any way between 16 May 2016, when he had had an altercation with him, and 13 June 2016, when the applicant had been arrested by the police. According to the applicant, this further indicated that he was convinced that his (financial) dispute with U. could not be resolved by revisiting him to confront him again with his claim.

According to the applicant this meant that it had not been possible to base the assumed risk of recidivism on his criminal record, the facts from the criminal file or the circumstances of the case to justify his pre-trial detention after 18 August 2016 and that therefore the decision concerned had lacked adequate justification or, alternatively, had lacked sufficient reasoning.

The Government submitted that under domestic law and the Convention pre-trial detention was permitted if there was a serious risk that a suspect would commit further offences. In the applicant's case that risk had been real because his conflict with U. had remained unresolved; because of incriminating witness statements according to which the applicant had not acted in self-defence but had in fact been the aggressor; because of the weapons found in the applicant's home and his prior convictions, the most recent one of 2 March 2016 of threatening a person with homicide.

The Government therefore asserted that the applicant's pre-trial detention had been justified.

Pointing out that the Court had held that national courts must indicate with sufficient clarity the grounds on which they base their decisions (they referred to Hadjianastassiou v. Greece, 16 December 1992, § 33, Series A no. 252) but that the extent of the duty to give reasons varied according to the nature of the decision and must be determined in the light of the circumstances of the case (Ruiz Torija v. Spain, 9 December 1994, § 29, Series A no. 303 A), the Government argued that the pre-trial-detention orders had been reasoned adequately. In their opinion, it was important to consider not only the judicial decisions as such, but also the discussions during the courts' examination as reflected in the official records. There had been no need for the Court of Appeal to provide more detailed reasons than it had done in its ruling of 18 August 2016 as it had been unconvinced by the applicant's repetitive arguments. A brief statement of reasons contravened the Convention only in exceptional circumstances. In another case against the Netherlands (Kanzi v. the Netherlands (dec.), no. 28831/04, 5 July 2007) the Court had found no fault with the detention decisions though they had been of a similar level of detail.

The Government further emphasised that the applicant's pre-trial detention had been quite brief (a little over three months, similar to the circumstances in Kanzi). The authorities had shown themselves diligent because in that period they had reviewed the pre-trial detention no less than six times and they had eventually released the applicant pending trial considering that, although the serious grounds for suspicion had still existed, the applicant's interests in being released from pre-trial detention had had to prevail. Referring to the Court's decision in the case of Van Thuil v. the Netherlands (no. 20510/02, 9 December 2004), the Government further pointed out that the applicant had had access to the prosecution case file, which was a safeguard against arbitrariness.

The applicable general principles concerning the length and the justification of pre-trial detention are set out in Buzadji (cited above, §§ 84-91).

The Court reiterates in particular that, while paragraph 1 (c) of Article 5 sets out the grounds on which pre-trial detention may be permissible in the first place (see De Jong, Baljet and Van den Brink v. the Netherlands, 22 May 1984, § 44, Series A no. 77), paragraph 3, which forms a whole with the former provision, lays down certain procedural guarantees, including the rule that detention pending trial must not exceed a reasonable time, thus regulating its length (see Buzadji, cited above, § 86).

According to the Court's established case-law under Article 5 § 3, the persistence of a reasonable suspicion is a condition sine qua non for the validity of the pre-trial detention, but after a certain lapse of time — that is to say as from the first judicial decision ordering detention on remand (see Buzadji, cited above, § 102) — it no longer suffices. The Court must then establish (1) whether other grounds cited by the judicial authorities continue to justify the deprivation of liberty, and (2) where such grounds were ‘relevant’ and ‘sufficient’, whether the national authorities displayed ‘special diligence’ in the conduct of the proceedings. Justification for any period of detention, no matter how short, must be convincingly demonstrated by the authorities (see, among many other authorities, Idalov v. Russia [GC], no. 5826/03, § 140, 22 May 2012; and Buzadji, cited above, § 87). Justifications which have been deemed ‘relevant’ and ‘sufficient’ reasons — in addition to the existence of reasonable suspicion — in the Court's case-law, have included such grounds as the danger of absconding, the risk of pressure begin brought to bear on witnesses or of evidence being tampered with, the risk of collusion, the risk of reoffending, the risk of causing public disorder and the need to protect the detainee (see Buzadji, cited above, § 88, with further references). Until conviction, an accused must be presumed innocent and the purpose of the provision under consideration is essentially to require his or her provisional release once his or her continuing detention ceases to be reasonable (see McKay v. the United Kingdom [GC], no. 543/03, § 41, ECHR 2006-X, and Buzadji, cited above, § 89).

The question whether a period of time spent in pre-trial detention is reasonable cannot be assessed in the abstract. Whether it is reasonable for an accused to remain in detention must be assessed on the facts of each case and according to its specific 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 rule of respect for individual liberty laid down in Article 5 of the Convention (see, for instance, Labita v. Italy [GC], no. 26772/95, § 152, ECHR 2000-IV, and Kudła v. Poland [GC], no. 30210/96, §§ 110 et seq., ECHR 2000 XI; see also Buzadji, cited above, § 90).

It primarily falls 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. Accordingly, they must, with respect for the principle of the presumption of innocence, examine all the facts militating for or against the existence of the above mentioned requirement of public interest or justifying a departure from the rule in Article 5, and must set them out in their decisions on applications for release (see Buzadji, cited above, § 91). With particular regard to the risk that the suspect, if released, would reoffend, consideration must be given to, inter alia, the nature and seriousness of the charges against a defendant, his or her criminal record, and his or her character or behaviour that would indicate that he or she presented such a risk (see, for instance, Merčep v. Croatia, no. 12301/12, § 96, 26 April 2016, Šoš v. Croatia, no. 26211/13, § 95, 1 December 2015 and Magnitskiy and Others v. Russia, nos. 32631/09 and 53799/12, § 221, 27 August 2019).

In exercising its function on this point, the Court has to ensure that the domestic courts' arguments for and against release must not be ‘general and abstract’ (see, for example, Smirnova v. Russia, nos. 46133/99 and 48183/99, § 63, ECHR 2003-IX (extracts)), but contain references to specific facts and the personal circumstances justifying an applicant's detention (see, mutatis mutandis, Panchenko v. Russia, no. 45100/98, § 107, 8 February 2005). For example, the Court found no violation of Article 5 § 3 in a case concerning a pre-trial detention period of more than four years (see Lisovskij v. Lithuania, no. 36249/14, § 77, 2 May 2017, in which it considered that the Lithuanian courts thoroughly evaluated all the relevant factors and based their decisions on the particular circumstances of the case), in a case concerning a pre-trial detention period of more than three years and eight months (see Štvrtecký v. Slovakia, no. 55844/12, § 65, 5 June 2018 in which the Court observed that the judicial authorities referred to specific facts of the case and did not use a pre-existing template or formalistic and abstract language and noted that, with the passing of time, the court's reasoning evolved to reflect the state of the investigations) and in a case concerning a pre-trial detention period of one year, three months and twenty-three days (see Podeschi v. San Marino, no. 66357/14, § 153, 13 April 2017, in which the Court observed that while the various jurisdictions referred to the previous decisions refusing bail, they gave details of the grounds for the decisions in view of the developing situation and whether the original grounds remained valid despite the passage of time), whereas the Court did find a violation of this provision in a case in which the pre-trial detention lasted three months (Sinkova v. Ukraine, no. 39496/11, § 74, 27 February 2018, in which the Court observed that, in extending the applicant's detention and rejection her applications for release, the domestic courts mainly referred to the reasoning for her initial placement in detention, without any updated details); in a case concerning a period of pre-trial detention of forty-three days (Krivolapov v. Ukraine, no. 5406/07, §§ 105-108, 2 October 2018, for which the Court noted the absence from the relevant decision of any justification other than the fact that criminal proceedings were pending against the applicant); and in a case in which the pre-trial detention lasted slightly less than two months (Cîrstea v. Romania [Committee], no. 10626/11, §§ 54-59, 23 July 2019, in which the Court found that the domestic courts failed to adduce a proper substantiation for the alleged risks in case of a discontinuation of the applicant's pre-trial detention).

Where circumstances that could have warranted a person's detention may have existed but were not mentioned in the domestic decisions, it is not the Court's task to establish them and take the place of the national authorities which ruled on the applicant's detention (see Bykov v. Russia [GC], no. 4378/02, § 66, 10 March 2009, and Giorgi Nikolaishvili v. Georgia, no. 37048/04, § 77, 13 January 2009).

The Court observes that the applicant does not contest before this Court that there was a reasonable suspicion that he had committed an offence and it has no reason to hold otherwise.

Next, the Court notes that the applicant's pre-trial detention was initially based on the risk of reoffending. In its decision of 3 August 2016 (see paragraph 14 above) the Regional Court, when rejecting the applicant's original application for release, limited itself to referring to the reasons which had led to the issuance of the original order for the applicant's placement in extended detention on remand and, on appeal, in its decision of 18 August 2016 (see paragraph 16 above), the Court of Appeal considered that it ‘is of the opinion that serious objections and grounds, as found by the Regional Court, can indeed be derived from the case-file, which fully justify the continuation of the pre-trial detention’.

The Court observes that those rulings fell short of the above-mentioned criteria. In particular, they do not address the applicant's arguments contesting the risk of reoffending which he raised in the context of his application of 26 July 2016 for release from pre-trial detention (see paragraphs 12---8211---16 above). The reasons were stated in abstracto and constituted little more than a chain of references leading back to the Regional Court's order of 29 June 2016 and the investigating judge's order of 16 June 2016 (see paragraphs 9 and 7 above; compare and contrast Lisovskij, cited above, § 77.

In this context, it should be reiterated that it is essentially on the basis of the reasons given by the national judicial authorities in their decisions on applications for release 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 Buzadji, cited above, § 91). The Court cannot therefore accept the Government's contention that the depth of the courtroom discussions, reflected in the official records of the hearings concerned, compensated for the lack of detail in the written decisions (see paragraph 39 above). Indeed, the discussion at the hearing reflects the arguments put forward by the parties but does not indicate what were the grounds justifying the pre-trial detention in the eyes of the judicial authority competent to order or extend a deprivation of liberty. Only a reasoned decision by those authorities can effectively demonstrate to the parties that they have been heard and make appeals and public scrutiny of the administration of justice possible (see Ignatenco v. Moldova, no. 36988/07, § 77, 8 February 2011). In this respect it is moreover noted that national law provisions — Articles 24(1) and 78(2) of the CCP (see paragraphs 20 and 22 above) — stipulate that decisions on pre-trial detention should be duly reasoned.

Having regard to the above, the Court considers that by failing to address the specific facts and individual circumstances, the Court of Appeal extended the applicant's pre-trial detention on grounds which, although ‘relevant’, cannot be regarded as ‘sufficient’ to justify his continued deprivation of liberty. This conclusion dispenses the Court from ascertaining whether the competent national authorities displayed ‘special diligence’ in the conduct of the proceedings (see Qing v. Portugal, no. 69861/11, §§ 67-69, 5 November 2015).

It follows that there has been a violation of Article 5 § 3 of the Convention.