Last Updated on October 8, 2020 by LawEuro
Information Note on the Court’s case-law 244
October 2020
I.S. v. Switzerland – 60202/15
Judgment 6.10.2020 [Section III]
Article 5
Article 5-1
Lawful arrest or detention
Detention of an acquitted person on public-safety grounds, without sufficient justification, to cover the eventuality of the acquittal being overturned on appeal: violation
Facts – After his partner had lodged a criminal complaint alleging multiple counts of rape and other offences, the applicant was placed in pre-trial detention from August to December 2014, and subsequently in preventive detention after the indictment had been filed by the public prosecutor.
In April 2015 the District Court acquitted him on all charges. However, on an application by the public prosecutor, who was intending to appeal, the Cantonal Court ordered the extension of the applicant’s preventive detention – as was permissible under domestic law where an acquittal had not become final – finding that there were serious suspicions and a danger of absconding. The Federal Supreme Court dismissed an appeal by the applicant against that order, on the grounds: (i) that the appeal had suspensive effect on the acquittal; (ii) that the circumstances of the case (one party’s word against the other’s) meant that it could not be considered highly likely that the acquittal would be upheld; (iii) that on the contrary, there was substantial evidence in the case file that could lead to the judgment being overturned; and (iv) that various factors substantiated a risk that the applicant might flee to his country of origin.
The applicant was released in late 2015 and was subsequently acquitted on appeal.
Law – Article 5 § 1: For the following reasons, the Court concluded that the applicant’s preventive detention following his acquittal at first instance could not fall under any of the exceptions listed in paragraph 1 of Article 5.
(i) Applicability of Article 5 § 1 (c) – Admittedly, the wording of Article 5 § 1 (c) of the Convention did not contain any limitation on pre-trial detention at the first level of jurisdiction. However, the Court had had occasion to clarify that issue, including at Grand Chamber level: detention under Article 5 § 1 (c) of the Convention ended with the acquittal of the person concerned, even by a court of first instance.
That approach also applied in the present case. After examining the facts at issue by means of an adversarial procedure and then carrying out a detailed assessment of the evidence during the trial, the District Court had unanimously formed the view, on the basis of the proceedings as a whole, that the applicant could not be convicted of the criminal offences with which he had been charged in the indictment.
In the Court’s view, in such circumstances it was of little consequence that the judgment had only been delivered orally and was not yet final: following an acquittal, an order for detention under Article 5 § 1 (c) of the Convention lapsed.
The same applied, moreover, in the reverse situation (where a person was convicted at first instance and detained during the appeal proceedings): the period of detention at issue was no longer covered by Article 5 § 1 (c) but by Article 5 § 1 (a), as the person concerned was considered to be detained “after conviction by a competent court” once the judgment had been delivered at first instance, even where it was not yet enforceable and remained amenable to appeal (see, for example, Ruslan Yakovenko v. Ukraine, 5425/11, 4 June 2015, Information Note 186).
Regarding the possibility of acquittal “in error”, the Court noted that no such allegation had been levelled at the District Court, either expressly or in substance, at any stage of the domestic proceedings. On the contrary, there was no indication of any error in the administration of justice, especially as the acquittal, for which ample reasons had been given in a 44-page written judgment, had been unanimous.
Furthermore, to guarantee an individual’s appearance during the appeal proceedings, domestic law should provide for measures that were less invasive than deprivation of liberty. In the present case, for example, the confiscation of the applicant’s identity papers and other official documents would have constituted a sufficient alternative measure.
As to the need to counter the risk that further offences might be committed while the appeal proceedings were ongoing, it was self-evident that if there were specific reasons to fear such an eventuality, there would be nothing to prevent the criminal justice authorities from ordering further detention on the basis of the first limb of Article 5 § 1 (c) of the Convention.
The same was true as regards the second limb of Article 5 § 1 (c) – preventing the person from committing an offence – particularly where there was an imminent risk of the commission of a concrete and specific serious offence entailing danger to life and limb or significant material damage. Nevertheless, detention ordered as a preventive measure should cease as soon as the risk had passed, which required monitoring as the duration of the detention was also a relevant factor.
(ii) Applicability of Article 5 § 1 (b) – In the light of the Court’s case-law, the second limb of Article 5 § 1 (b) – detention to compel a person to fulfil a specific and concrete obligation already incumbent on him or her but which he or she had until then failed to satisfy – could likewise not justify preventive detention for a period of approximately 230 days following acquittal.
The Government had been mistaken in relying on Harkmann v. Estonia (2192/03, 11 July 2006, Information Note 88), since the applicant in that case had repeatedly disobeyed orders of the County Court requiring him to appear at his criminal trial; that specific aspect meant that reference to that case was irrelevant.
The Court could not be satisfied by the mere general concern that the applicant might have committed further offences during the appeal proceedings.
The obligation not to commit a criminal offence could only be considered sufficiently “specific and concrete” if the place and time of the imminent commission of the offence and its potential victims had been sufficiently specified, if the person concerned was aware of the specific act which he or she was to refrain from committing, and if the person refused to refrain from committing that act (S., V. and A. v. Denmark [GC], 35553/12 et al., 22 October 2018, Information Note 222).
In other words, the duty not to commit a criminal offence in the imminent future could not be considered sufficiently concrete and specific to fall under Article 5 § 1 (b), at least as long as no specific measures had been ordered which had not been complied with.
Conclusion: violation (unanimously).
Article 41: EUR 25,000 in respect of non-pecuniary damage.
(See also Schwabe and M.G. v. Germany, 8080/08 and 8577/08, 1 December 2011, Information Note 147)
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