EHRM, 19-07-2011, nr. 30666/08

The Government submitted that the applicant could no longer be considered a ‘victim’ of any supposed violation of the Convention, within the meaning of Article 34 of the Convention, since the entire period of pre-trial detention had been deducted from his prison sentence (paragraphs 15 and 18 above).

The applicant argued that this objection was in contradiction with the Government's preliminary objection of non-exhaustion, to be discussed below: in his view, to recognise that a legal remedy existed was to recognise that the possibility of victimhood existed.

According to the Court's well-established case-law, the word ‘victim’ in Article 34 denotes the person directly affected by the act or omission in issue, the existence of a violation being conceivable even in the absence of detriment; detriment is relevant only in the context of Article 41. Consequently, the relevant deduction from sentence does not in principle deprive the applicant of his status as an alleged ‘victim’, within the meaning of Article 34, of a breach of Article 5; it is a matter to be taken into consideration solely for the purpose of assessing the extent of any prejudice he may have suffered. The position might be otherwise if the deduction from sentence had been based upon an acknowledgement by the national courts of a violation of the Convention (see, among other authorities and mutatis mutandis, De Jong, Baljet and Van den Brink v. the Netherlands, 22 May 1984, § 41, Series A no. 77, and Pavletić v. Slovakia, no. 39359/98, § 61, 22 June 2004; see also Lebedev v. Russia, no. 4493/04, § 47, 25 October 2007). Such, however, is not the case here; in fact, inclusion of the time spent in custody in the overall time to be served by the applicant was not in any way connected to the alleged violation of Article 6 § 1 (or Article 5 § 4) of the Convention but followed directly from the operation of Article 27 § 1 of the Criminal Code (see paragraph 18 above; compare Lebedev v. Russia, loc. cit.). It follows that this objection must be dismissed.

The Government argued in the alternative that the applicant had failed to exhaust the available domestic remedies.

In the further alternative, the Government argued that the applicant had not suffered any significant disadvantage. They asked the Court to declare the application inadmissible on the ground set out, since the entry into force of Protocol No. 14 on 1 June 2010, in Article 35 § 3 (b) of the Convention, the ‘safeguard clauses’ contained therein not being applicable.

The applicant argued that the consequences which he had suffered could not be dismissed in such cavalier terms. He submitted in addition that the Court was prevented from applying a Convention provision that had entered into force only on 1 June 2010, that is long after the introduction of the application.

Article 20 of Protocol No. 14 to the Convention provides as follows:

The present application is not one of those declared admissible before 1 June 2010. It follows that, under the terms of Article 20 of Protocol No. 14, the Court is not prevented from considering it under the new admissibility criterion.

Article 35 § 3 (b) provides as follows:

The Court has clarified its understanding of the new criterion in Korolev v. Russia (dec.), no. 25551/05, ECHR 2010-…, in the following terms:

The Government have not explained why they consider that the applicant has suffered no ‘significant disadvantage’. The two ‘safeguard clauses’ contained in Article 35 § 3 (b) they dismiss as irrelevant.

As the Court understands the Government's reliance on this provision, the Government wish to imply that the deduction of the applicant's detention on remand from his prison sentence in itself negates any detriment which the applicant may have suffered on this account. The Court has already rejected a similar argument under the head of ‘victim status’ for purposes of Article 34 (paragraph 23 above).

The Court cannot accept such a suggestion under Article 35 § 2 (b) either. It is a feature of the criminal procedure of many contracting Parties, if not most, to set periods of detention prior to final conviction and sentencing off against the eventual sentence; for the Court to hold generally that any harm resulting from pre-trial detention was thereby ipso facto nugatory for Convention purposes would remove a large proportion of potential complaints under Article 5 from the scope of its scrutiny. This objection is therefore likewise dismissed.

The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

The Government submitted that the order for the applicant's detention on remand had been reviewed with sufficient frequency by a court which satisfied the appropriate requirements.

The applicant dismissed the Government's arguments as irrelevant to his complaint, since the Court of Appeal had wrongly rejected his appeals as out of time.

The Court must examine the facts on which the applicant bases his complaints and determine whether in fact the domestic authorities failed to meet any time-limits prescribed them before it can decide whether any failing on their part deprived the applicant of access to proceedings by which the lawfulness of his detention could be decided.

Like the order for extended detention on remand, the decision refusing suspension of the applicant's detention on remand was given by the Regional Court on 28 November 2007 (paragraph 8 above).

The Government observed that the applicant had attended the hearing on 28 November 2007, assisted by counsel. The request for suspension of the detention on remand had been a contingency measure in the event the court decided to order the applicant's further detention on remand. The applicant, having been informed of the order for his extended detention on remand and finding himself still in detention on 1 December 2007, ought to have realised that his request for suspension had been rejected and could have been expected to act of his own accord.

The applicant dismissed this argument as ‘nonsense’ and contrary to usual practice in the Netherlands. He maintained that the Court of Appeal had simply made a mistake.

The Court has held, in the context of Article 5 § 3 of the Convention (McKay v. the United Kingdom [GC], no. 543/03, § 41, ECHR 2006-X):

In the Court's view the corollary is that where a procedure enabling a suspect in pre-trial detention to seek his provisional release exists in domestic law, Article 5 § 4 requires that the suspect enjoy whatever guarantees are offered to the full.

The Court cannot ignore the clear terms of Article 87 § 2 of the Code of Criminal Procedure, which provides that a suspect has three days after such a decision is served to lodge an appeal. In the present case, service took place on 4 December 2007. The applicant's counsel lodged the appeal the following day. Consequently the appeal ought not to have been rejected as out of time.

The applicant has therefore been deprived of access to a procedure to obtain his release, albeit only provisionally, from pre-trial detention which under domestic law ought to have been open to him. In this respect, there has therefore been a violation of Article 5 § 4.