Overview of the Case-law of the ECHR 2016<\/p>\n
The judgment in Mozer[65], cited above, concerned the lawfulness of detention ordered by courts of the \u201cMoldavian Republic of Transdniestria\u201d (\u201cMRT\u201d).<\/p>\n
Having been detained since 2008, the applicant was convicted in 2010 of defrauding two companies and sentenced to seven years\u2019 imprisonment, five of which were suspended. He complained under Article\u00a05 that his detention by the \u201cMRT courts\u201d had been unlawful.<\/p>\n
The Grand Chamber found that Russia had violated Article\u00a05 and that there had been no violation of that provision by the Republic of Moldova.<\/p>\n
The principal issue for the Grand Chamber was whether the applicant\u2019s detention ordered by the \u201cMRT courts\u201d could be considered \u201clawful\u201d within the meaning of Article 5 \u00a7 1 (c). In particular, the Court was required to reconcile its recognition of the legal basis of the courts of the \u201cTurkish Republic of Northern Cyprus\u201d[66], on the one hand, with its finding that there was no legal basis for decisions of the \u201cMRT courts\u201d, on the other (Ila\u015fcu and Others[67], cited above, and Ivan\u0163oc and Others[68], cited above).<\/p>\n
The Court applied the test as expressed in Ila\u015fcu and Others (\u00a7\u00a7 436 and 460). It noted that it had already been found in that case that the relevant \u201cMRT court\u201d did not form part of a judicial system operating \u201con a constitutional and legal basis reflecting a judicial tradition compatible with the Convention\u201d. It remained to verify whether this continued to be valid in the present case. The Russian Government, which had effective control over the \u201cMRT\u201d, had failed to submit information on the \u201cMRT court\u201d system. There was, moreover, no basis for assuming that that system reflected a judicial tradition compatible with the Convention and similar to the one in the remainder of the Republic of Moldova (the Court compared and contrasted the position in Northern Cyprus in that regard, see Cyprus v. Turkey, cited above[69]). The Grand Chamber concluded that its findings in Ila\u015fcu and Others were still valid so that the \u201cMRT courts\u201d could not have ordered the applicant\u2019s lawful arrest or detention. His detention was therefore \u201cunlawful\u201d within the meaning of Article 5 \u00a7 1 (c) of the Convention.<\/p>\n
Having established that the Republic of Moldova had fulfilled its positive obligation to take appropriate and sufficient measures to secure the applicant\u2019s Article\u00a05 rights (by attempting to re-establish control over the \u201cMRT\u201d and to ensure respect for the present applicant\u2019s rights), it was found not responsible for this unlawful detention. Given Russia\u2019s effective control of the \u201cMRT\u201d, its Convention responsibility was engaged so that there had been a violation of Article\u00a05 \u00a7\u00a01 (c) of the Convention by Russia.<\/p>\n
<\/p>\n
The case of Blokhin[70], cited above, concerned the placement of the applicant, a minor who had not reached the age of criminal responsibility, in a juvenile detention centre.<\/p>\n
The applicant, who was twelve years of age at the material time, was arrested and taken to a police station on suspicion of having extorted money from another minor. The authorities found that he had committed offences punishable under the Criminal Code. However, no criminal proceedings were initiated since he was below the statutory age of criminal responsibility. He was brought before a court, which ordered that he be placed in a temporary detention centre for minor offenders for a period of thirty days in order to \u201ccorrect his behaviour\u201d and to prevent his committing any further acts of delinquency.<\/p>\n
The Grand Chamber found, inter alia, a violation of Article 5 \u00a7 1.[71]<\/p>\n
The Court found that the applicant\u2019s detention was not for the purpose of \u201ceducational supervision\u201d, that it was not therefore within the ambit of Article\u00a05 \u00a7\u00a01\u00a0(d) and, being otherwise not justified, was unlawful and a violation of Article\u00a05 \u00a7\u00a01.<\/p>\n
This finding is interesting in that the Court appears to have clarified the meaning of \u201ceducational supervision\u201d. Previous case-law indicated that the notion of \u201ceducational supervision\u201d was not to be \u201cequated rigidly with notions of classroom teaching\u201d so that, in the context of a young person in local-authority care, educational supervision had to \u201cembrace many aspects of the exercise \u2026 of parental rights for the benefit and protection of the person concerned\u201d (Bouamar v. Belgium[72]; Koniarska v. the United Kingdom[73]; D.G. v. Ireland[74]; and P. and S. v. Poland[75]). Relying on European and international standards in this field[76], the Grand Chamber clarified that \u201ceducational supervision\u201d must nevertheless contain an important core schooling aspect so that \u201cschooling in line with the normal school curriculum should be standard practice\u201d for all detained minors \u201ceven when they are placed in a temporary detention centre for a limited period of time, in order to avoid gaps in their education\u201d.<\/p>\n
***<\/p>\n
The judgment in D.L. v. Bulgaria[77] concerned safeguards governing detention for the purposes of educational supervision. The applicant, who was a minor, was placed in a closed educational institution on account of, among other things, her antisocial behaviour and the risk that she would become further involved in prostitution. The placement was ordered by a court following a hearing at which she was represented.<\/p>\n
In the Convention proceedings, the applicant alleged, among other things, that her placement was not in conformity with Article\u00a05 \u00a7\u00a01 (d) of the Convention.<\/p>\n
The judgment can be seen as an important contribution to the Court\u2019s case-law on juvenile justice (see also in this respect the recent Grand Chamber judgment in Blokhin[78], cited above) and on the rights of juveniles deprived of their liberty in circumstances foreseen by Article 5 \u00a7 1 (d) of the Convention. The following points are worthy of note.<\/p>\n
The judgment confirms the Court\u2019s concern to ensure that the placement of a minor in a closed educational institution is a proportionate measure of last resort taken in his or her best interests and that the nature of the regime complies with the aim of the placement, namely to provide education. Its inquiry into these matters was focused on the specific facts of the case, given that there was some dispute over the nature of the relevant legislation in force at the material time and the nature of the education on offer in the institution. It highlighted the following factors: the applicant was able to follow a school curriculum, had help with her difficulties in the classroom and obtained a professional qualification. It concluded that the aim of the placement was to provide for her education and protection, and not, as claimed by the applicant, punitive in nature. It further noted that the placement was ordered following an adversarial hearing during which all possible options for dealing with the applicant\u2019s behaviour and the risks to which she was exposed were considered, having regard to what was in her best interests. The Court concluded that there had been no breach of Article\u00a05\u00a0\u00a7\u00a01.<\/p>\n
<\/p>\n
In the Buzadji v. the Republic of Moldova[79] case, the Court established the point from which the authorities are required to show, in addition to \u201creasonable suspicion\u201d, other \u201crelevant and sufficient\u201d reasons to justify pre-trial detention.<\/p>\n
On 2\u00a0May 2007 the applicant was arrested and on 5\u00a0May 2007 he was charged with attempted large-scale misappropriation of goods. On the same day, a district court approved his pre-trial detention, which was renewed until 20\u00a0July 2007 when he was placed under house arrest. He was later acquitted of the charges to which the pre-trial detention related.<\/p>\n
The Grand Chamber found a violation of Article\u00a05 \u00a7\u00a03 given the absence of \u201crelevant and sufficient reasons\u201d justifying the ordering or prolonging of the applicant\u2019s detention pending trial.<\/p>\n
The case is interesting since the Grand Chamber has expressly developed the Court\u2019s case-law on the second limb of Article\u00a05 \u00a7\u00a03 (the right to \u201ctrial within a reasonable time or to release pending trial\u201d) given its overlap with the first-limb guarantees (to \u201cbe brought promptly before a judge or other officer authorised by law to exercise judicial power\u201d).<\/p>\n
Under the first limb of Article\u00a05 \u00a7\u00a03, an accused has the right to be brought \u201cpromptly\u201d before a judicial authority who will examine the lawfulness of the detention and whether there is a reasonable suspicion of guilt (namely, compliance with Article\u00a05 \u00a7\u00a01\u00a0(c)).<\/p>\n
Under the second limb of Article 5 \u00a7 3, the case-law provides that the \u201cpersistence of reasonable suspicion \u2026 is a condition sine qua non for the validity of the continued detention\u201d but after a \u201ccertain lapse of time\u201d this no longer suffices so that other \u201crelevant and sufficient\u201d reasons to detain a suspect are required (see Letellier v. France[80], which case-law was reaffirmed by the Grand Chamber in, for example, Labita v. Italy[81] and Idalov v. Russia[82]). The Court had never, however, defined the length of a \u201ccertain lapse of time\u201d although it had recognised that that period could be as short as a few days.<\/p>\n
While the Grand Chamber confirmed that these limbs provided two distinct legal guarantees, there were certain overlaps: the period started to run for both from the moment of arrest; both required a judicial authority to determine whether there were reasons justifying detention and to order release if not; and in practice the application of both limbs often overlapped, typically where the same judicial authority which authorises detention under the first limb (\u201creasonable suspicion\u201d) orders at the same time detention on remand under the second limb (other \u201crelevant and sufficient\u201d reasons). This first appearance before a judge constituted therefore a \u201ccrossroads\u201d between both limbs.<\/p>\n
Yet the moment from which the additional second-limb guarantees are considered to apply remained vague, governed as it was by the undefined \u201ccertain lapse of time\u201d. Moreover, a comparative study indicated that in the great majority of the thirty-one States surveyed the relevant judicial authority was required to give relevant and sufficient reasons either immediately or within days after arrest.<\/p>\n
In order therefore to simplify and bring more clarity and certainty to the case-law and thereby enhance protection against an unreasonably long deprivation of liberty, the Grand Chamber considered there were compelling arguments for synchronising the second-limb guarantees with the first limb. Accordingly, it decided that the requirement on the judge or other officer to give relevant and sufficient reasons for the detention in addition to the persistence of reasonable suspicion should already apply \u201cat the time of the first decision ordering detention on remand, that is to say, \u2018promptly\u2019 after the arrest\u201d.<\/p>\n
Applying this principle, the Grand Chamber went on to review the initial detention order of 5\u00a0May 2007, as well as the subsequent renewals, and concluded that there had been no relevant and sufficient reasons to order and prolong the applicant\u2019s pre-trial detention.<\/p>\n
<\/p>\n
The judgment in A.M. v. France[83] concerned the review of the lawfulness of a short period of administrative detention and the scope of such review.<\/p>\n
The applicant was arrested on 7\u00a0October 2011 and placed in administrative detention pending his removal to Tunisia. On 9\u00a0October he introduced proceedings before the Administrative Court to challenge the lawfulness of his detention. The hearing in his case was scheduled for 1\u00a0p.m. on 11\u00a0October. However, at 4\u00a0a.m. that day he was removed to Tunisia, before his case could be heard. The applicant\u2019s lawyer, in his absence, pursued the proceedings. The Conseil d\u2019\u00c9tat ultimately rejected his case.<\/p>\n
The applicant complained in the Convention proceedings that Article\u00a05 \u00a7\u00a04 had been breached: firstly, because his deportation should have been suspended in order to allow his challenge to his deportation to be determined; secondly, because of the failure of the domestic courts to pronounce on the merits of his claim that his placement in detention had been unlawful.<\/p>\n
The Court found that Article\u00a05 \u00a7\u00a04 had been violated. The judgment is of interest for the following reasons.<\/p>\n
(i) The Court confirmed that the bringing of proceedings under Article\u00a05 \u00a7\u00a04 to challenge the lawfulness under Article\u00a05 \u00a7\u00a01\u00a0(f) of administrative detention pending deportation did not have a suspensive effect on the implementation of the deportation order.<\/p>\n
(ii) The Court noted that in previous cases it had ruled that it was unnecessary to examine a complaint under Article 5 \u00a7 4 where the impugned detention was of a short duration (see Slivenko v. Latvia[84]); however it observed that the applicant\u2019s detention had lasted from 7 October, 2011 the date of his arrest, to 11 October 2011, the date of his expulsion; the complaint under Article 5 \u00a7 4 of the Convention had therefore to be examined.<\/p>\n
(iii) Having regard to the requirements which Article 5 \u00a7 4 imposes when it comes to a review of the lawfulness of detention mandated by Article 5 \u00a7 1 (f) (Chahal v. the United Kingdom[85]), the Court found that the Administrative Court\u2019s power of review was restricted in that it could only check whether the authority which ordered the applicant\u2019s placement in detention had the competence to do so and had given reasons for its decision, in particular as regards the necessity of the measure. It was, however, unable under domestic law at the material time to review the lawfulness of the arrest stage and whether in the applicant\u2019s case his arrest leading to his placement in detention had been in accordance with the requirements of domestic law as well as with the aim of Article 5, namely to prevent arbitrariness.<\/p>\n
_______________________<\/p>\n
65. Mozer v. the Republic of Moldova and Russia [GC], no. 11138\/10, ECHR 2016.
\n66. Loizidou v. Turkey (merits), 18 December 1996, Reports of Judgments and Decisions 1996-VI; Demopoulos and Others v. Turkey (dec.) [GC], nos. 46113\/99 and 7 others, ECHR 2010; Foka v. Turkey, no. 28940\/95, 24 June 2008; Protopapa v. Turkey, no. 16084\/90, 24 February 2009; Asproftas v. Turkey, no. 16079\/90, 27 May 2010; Petrakidou v. Turkey, no. 16081\/90, 27 May 2010; and Union Europ\u00e9enne Des Droits de L\u2019Homme and Josephides v. Turkey (dec.), no. 7116\/10, 2 April 2013.
\n67. Ila\u015fcu and Others v. Moldova and Russia [GC], no. 48787\/99, ECHR 2004-VII.
\n68. Ivan\u0163oc and Others v. Moldova and Russia, no. 23687\/05, 15 November 2011.
\n69. Cyprus v. Turkey [GC], no. 25781\/94, \u00a7 237, ECHR 2001-IV.
\n70. Blokhin v. Russia [GC], no. 47152\/06, ECHR 2016.
\n71. See also Article 3 above and Article 6 below.
\n72. Bouamar v. Belgium, 29 February 1988, Series A no. 129.
\n73. Koniarska v. the United Kingdom (dec.), no. 33670\/96, 12 October 2000.
\n74. D.G. v. Ireland, no. 39474\/98, \u00a7 80, ECHR 2002-III.
\n75. P. and S. v. Poland, no. 57375\/08, \u00a7 147, 30 October 2012.
\n76. Including the 1989 United Nations Convention on the Rights of the Child, the Beijing Rules and the Havana Rules, as well as the 2008 European Rules for juvenile offenders subject to sanctions or measures and the 2010 Guidelines of the Committee of Ministers of the Council of Europe on child-friendly justice.
\n77. D.L. v. Bulgaria, no. 7472\/14, 19 May 2016.
\n78. Blokhin v. Russia [GC], no. 47152\/06, ECHR 2016.
\n79. Buzadji v. the Republic of Moldova [GC], no. 23755\/07, ECHR 2016.
\n80. Letellier v. France, 26 June 1991, \u00a7 35, Series A no. 207.
\n81. Labita v. Italy [GC], no. 26772\/95, \u00a7 153, ECHR 2000-IV.
\n82. Idalov v. Russia [GC], no. 5826\/03, \u00a7 140, 22 May 2012.
\n83. A.M. v. France, no. 56324\/13, 12 July 2016.
\n84. Slivenko v. Latvia [GC], no. 48321\/99, \u00a7\u00a7 158-59, ECHR 2003-X.
\n85. Chahal v. the United Kingdom, 15 November 1996, \u00a7 127, Reports of Judgments and Decisions 1996-V.<\/p>\n