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European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> SCOTT v. SPAIN - 21335/93 [1996] ECHR 71 (18 December 1996)
URL: http://www.bailii.org/eu/cases/ECHR/1996/71.html
Cite as: [1996] ECHR 71, (1997) 24 EHRR 391
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In the case of Scott v. Spain (1),
The European Court of Human Rights, sitting, in accordance with
Article 43 (art. 43) of the Convention for the Protection of
Human Rights and Fundamental Freedoms ("the Convention") and the
relevant provisions of Rules of Court A (2), as a Chamber composed of
the following judges:
Mr R. Ryssdal, President,
Mr Thór Vilhjálmsson,
Mr A. Spielmann,
Mr J.M. Morenilla,
Mr A.B. Baka,
Mr G. Mifsud Bonnici,
Mr D. Gotchev,
Mr B. Repik,
Mr K. Jungwiert,
and also of Mr H. Petzold, Registrar, and Mr P.J. Mahoney, Deputy
Registrar,
Having deliberated in private on 2 September and
30 November 1996,
Delivers the following judgment, which was adopted on the
last-mentioned date:
_______________
Notes by the Registrar
1. The case is numbered 84/1995/590/676. The first number is the
case's position on the list of cases referred to the Court in the
relevant year (second number). The last two numbers indicate the
case's position on the list of cases referred to the Court since its
creation and on the list of the corresponding originating applications
to the Commission.
2. Rules A apply to all cases referred to the Court before the entry
into force of Protocol No. 9 (P9) (1 October 1994) and thereafter only
to cases concerning States not bound by that Protocol (P9). They
correspond to the Rules that came into force on 1 January 1983, as
amended several times subsequently.
_______________
PROCEDURE
1. The case was referred to the Court by the European Commission
of Human Rights ("the Commission") on 18 September 1995, within the
three-month period laid down by Article 32 para. 1 and Article 47 of
the Convention (art. 32-1, art. 47). It originated in an application
(no. 21335/93) against the Kingdom of Spain lodged with the Commission
under Article 25 (art. 25) by a British national,
Mr Christopher Ian Scott, on 2 September 1992.
The Commission's request referred to Articles 44 and 48
(art. 44, art. 48) and to the declaration whereby Spain recognised the
compulsory jurisdiction of the Court (Article 46) (art. 46). The
object of the request was to obtain a decision as to whether the facts
of the case disclosed a breach by the respondent State of its
obligations under Article 5 paras. 1 and 3 of the Convention (art. 5-1,
art. 3).
2. In response to the enquiry made in accordance with Rule 33
para. 3 (d) of Rules of Court A, the applicant stated that he wished
to take part in the proceedings and designated the lawyer who would
represent him (Rule 30).
The Government of the United Kingdom, having been informed by
the Registrar of their right to intervene (Article 48 (b) of the
Convention and Rule 33 para. 3 (b)) (art. 48-b), did not indicate any
intention of so doing.
3. The Chamber to be constituted included ex officio
Mr J.M. Morenilla, the elected judge of Spanish nationality (Article 43
of the Convention) (art. 43), and Mr R. Ryssdal, the President of the
Court (Rule 21 para. 4 (b)). On 29 September 1995, in the presence of
the Registrar, the President drew by lot the names of the other
seven members, namely Mr Thór Vilhjálmsson, Mr A. Spielmann,
Mr A.B. Baka, Mr G. Mifsud Bonnici, Mr D. Gotchev, Mr B. Repik and
Mr K. Jungwiert (Article 43 in fine of the Convention and Rule 21
para. 5) (art. 43).
4. As President of the Chamber (Rule 21 para. 6), Mr Ryssdal,
acting through the Registrar, consulted the Agent of the
Spanish Government ("the Government"), the applicant's lawyer and the
Delegate of the Commission on the organisation of the proceedings
(Rules 37 para. 1 and 38). Pursuant to the order made in consequence,
the Registrar received the Government's memorial on 3 April 1996 and
the applicant's memorial on 13 May 1996.
5. In accordance with the President's decision, the hearing took
place in public in the Human Rights Building, Strasbourg, on
28 August 1996. The Court had held a preparatory meeting beforehand.
There appeared before the Court:
(a) for the Government
Mr J. Borrego Borrego, Head of the Legal Department
for the European Commission and Court of Human
Rights, Ministry of Justice, Agent;
(b) for the Commission
Mr J. Mucha, Delegate;
(c) for the applicant
Mr E. Fitzgerald QC, Counsel,
Mr S. Jakobi, Solicitor.
The Court heard addresses by Mr Mucha, Mr Fitzgerald and
Mr Borrego Borrego.
AS TO THE FACTS
I. Particular circumstances of the case
6. Mr Scott is a British citizen born in 1958. He is currently
detained in Her Majesty's Prison, Leicester.
7. On 5 March 1990 a Finnish national, Ms T., made a statement to
the police in Puerto de la Cruz, Tenerife, Canary Islands, in which she
alleged that the applicant had raped her the night before. According
to Ms T., the applicant had threatened and beaten her, forcing her to
undress and to have sexual intercourse with him. Ms T. underwent a
medical examination and on 9 March 1990 flew back to Finland.
8. In the evening of 5 March 1990, on the strength of Ms T.'s
description, the applicant was located by the police; he attempted to
flee but was finally arrested. He had a false passport and was
suffering from serious alcoholic intoxication requiring
medical attention. On 7 March 1990, assisted by a lawyer and an
interpreter, he made a statement to the police in which he denied the
rape allegations. When the records were consulted, it was found that
the applicant had escaped from Sudbury Prison, West Midlands, on
22 December 1989 and that an international warrant for his arrest for
the murder of his father had been issued against him on 31 January 1990
by a judge at Birmingham Crown Court. In the evening of 7 March 1990
the applicant was brought before the investigating judge
(juez de instrucción).
9. On 8 March 1990, again assisted by a lawyer and an interpreter,
the applicant denied the rape allegations before
investigating judge no. 1 in Puerto de la Cruz. In a decision
(auto de prisión) of the same date the judge held, on the basis of
Articles 503 and 504 of the Code of Criminal Procedure
(Ley de Enjuiciamiento Criminal - see paragraphs 35 and 36 below), that
there was sufficient reason to believe that the applicant was involved
in the commission of an offence that would attract a substantial
prison sentence (see paragraph 33 below). Having regard to the
circumstances of the case and to the existence of an international
arrest warrant (see paragraph 8 above), the investigating judge ordered
Mr Scott's detention pending trial.
10. On 23 March 1990 the relevant judicial authority in extradition
matters, central investigating judge (juez central de instrucción)
no. 4 of the Audiencia Nacional, Madrid, also ordered the applicant's
detention on the basis of the international arrest warrant and of an
undertaking by the United Kingdom authorities to file a request for
extradition (section 8 of the Extradition Act - see paragraph 38
below). In so doing, the central investigating judge referred to
Articles 503 and 504 of the Code of Criminal Procedure
(see paragraphs 35 and 36 below) and took into account the seriousness
of the offence and the prison sentence it would attract under
Spanish law (see paragraph 34 below). A formal request for extradition
was filed on 27 April 1990. It was accompanied by extensive evidence
incriminating the applicant.
11. On 25 June 1990 an international letter of request for judicial
cooperation was sent to the relevant authority in Finland with a view
to obtaining a further statement from the alleged victim of the rape
and additional medical evidence.
12. On 26 November 1990 the public prosecutor (Ministerio Fiscal)
recommended the applicant's extradition. Guarantees were requested
from the United Kingdom authorities to the effect that, should the
extradition be granted and the applicant be convicted in England, the
final sentence would not exceed thirty years' imprisonment (the
maximum term of imprisonment under Spanish legislation). On
2 January 1991 the British Embassy in Madrid wrote to the
Audiencia Nacional that in the applicant's case the sentence actually
served upon conviction for murder was not likely to be more than
ten years. A hearing was subsequently held in the Audiencia Nacional,
in the course of which the applicant denied the murder allegations and
resisted extradition.
13. By a decision (auto) of 22 February 1991 a section of the
Criminal Division of the Audiencia Nacional accepted the guarantees
given by the United Kingdom authorities and ordered that the applicant
should be extradited to stand trial for the murder of his father. This
extradition order was only to be executed after the applicant had
served any outstanding time of the sentence that might eventually be
imposed on him in Spain for the rape offence (see paragraph 41 below).
Furthermore, the time spent by the applicant in prison pending
extradition was to be deducted from the sentence that would eventually
be passed on him by the English courts in the murder case
(see paragraph 42 below).
14. The applicant lodged an appeal (recurso de súplica) with the
full court of the Criminal Division of the Audiencia Nacional. In a
decision of 28 May 1991 the appeal was dismissed. On 28 June 1991 the
Cabinet (Consejo de Ministros) decided not to exercise its discretion
not to execute the extradition order.
15. In the meantime, on 7 March 1991, the investigating judge in
Puerto de la Cruz had decided to extend the applicant's detention
pending trial in the rape case under Article 504 of the
Code of Criminal Procedure (see paragraph 36 below). In so doing, the
investigating judge also took into account the fact that the
applicant's extradition was pending.
16. In May 1991 Mr Scott wrote to the Audiencia Nacional that he
was willing to be extradited in order to get medical treatment in the
United Kingdom, although it would appear that he later abandoned this
idea. On 24 June 1991 the public prosecutor recommended that the
applicant be kept in detention pending his trial for rape unless he
could be temporarily handed over to the United Kingdom authorities.
17. On 6 March 1992 the British Embassy in Madrid wrote to the
Audiencia Nacional indicating that, in the event of the applicant's
being temporarily handed over to the United Kingdom, his re-extradition
to Spain could not be guaranteed.
18. On that same date, that is to say roughly two years after the
applicant had first been detained (see paragraph 9 above), the
investigating judge in Puerto de la Cruz ordered the applicant's
provisional release (libertad provisional) in connection with the
rape case, as required by Article 504 of the Code of Criminal Procedure
(see paragraph 36 below). He was, however, kept in detention under
orders made in the extradition proceedings.
19. On 17 March 1992 the Audiencia Nacional, taking 23 March 1990
as the date of the beginning of the applicant's detention for the
extradition proceedings (see paragraph 10 above), decided to extend his
detention under Article 504 of the Code of Criminal Procedure and
section 10 (3) of the Extradition Act (see paragraphs 36, 37 and 40
below) for a period not exceeding two years, that is until
23 March 1994. The Audiencia Nacional had previously heard the
public prosecutor and the applicant, the former having submitted that,
given the impossibility of temporarily handing the applicant over to
the United Kingdom authorities, his extradition should not take place
"before he ha[d] discharged his criminal liabilities in Spain", with
reference to the rape case.
20. The applicant lodged an appeal (recurso de súplica) against
this decision but on 18 June 1992 a full court of the Criminal Division
of the Audiencia Nacional dismissed the appeal on the ground that he
had been detained in the extradition case on 23 March 1990,
independently of his earlier detention for a different matter, and that
the risk of his absconding was considerable. In his submissions the
public prosecutor had again referred to the case pending in
Puerto de la Cruz.
21. Another application for release by the applicant on
7 September 1992 was rejected in similar terms by the
Audiencia Nacional on 5 October 1992. Although the application had
been addressed to the Audiencia Nacional, the applicant made ample
reference to the proceedings before the Puerto de la Cruz investigating
judge.
22. On 6 December 1992, following a further application by
Mr Scott, the Audiencia Nacional requested the investigating judge in
Puerto de la Cruz to supply information as to whether the applicant
could be extradited. The Court's case file does not contain any reply.
23. The applicant lodged an amparo appeal with the
Constitutional Court (see paragraph 32 below) against the
Audiencia Nacional's decisions of 17 March 1992 and 18 June 1992 on his
detention pending extradition. The appeal was rejected after summary
proceedings in a decision (auto) of 6 May 1993. On the merits the
Constitutional Court stated that the applicant had been detained in the
extradition proceedings on 23 March 1990, so that the
Audiencia Nacional's decision of 17 March 1992 to extend detention for
two more years as of that date was legally correct as the earlier
period spent in prison by the applicant was unrelated to the new
detention.
24. Meanwhile, in a decision (auto de procesamiento) of
2 February 1993, the investigating judge in Puerto de la Cruz had
formally charged the applicant with, inter alia, rape and forgery of
documents.
25. On 8 February 1993 the investigating judge renewed his request
to have a further statement by the complainant through the channels of
international judicial cooperation (see paragraph 11 above). The
requested statement and two medical certificates, all in Finnish, were
received in Puerto de la Cruz on 29 April 1993. A Spanish translation
did not become available until two months later. The statement - which
was taken at a court hearing in Tuusula, Finland, on 14 December 1992 -
confirmed Ms T.'s original allegations (see paragraph 7 above). The
medical certificates showed that Ms T. had received prolonged
psychiatric treatment after her return from Tenerife.
On 25 August 1993 the applicant's detention was again ordered
in the rape case. The applicant was subsequently committed for trial.
26. On 26 November 1993 the public prosecutor made his
pre-trial submissions (conclusiones provisionales). On the basis of
the medical evidence available, he sought a prison sentence of
sixteen years in respect of the rape offence and a further
prison sentence of four months and a fine of 100,000 pesetas for the
offence of forgery of documents.
27. A hearing was held during which Ms T. and court-appointed
medical experts gave evidence.
In a judgment of 21 March 1994 the Audiencia Provincial of
Santa Cruz de Tenerife acquitted the applicant on the rape charge on
the ground that the only evidence incriminating him was Ms T.'s
statements, which contained many inconsistencies. The
Audiencia Provincial accepted the opinion of the experts present at the
hearing that the medical evidence did not sustain the allegation of
forcible sexual intercourse.
With respect to the forgery offence the applicant was convicted
and sentenced as charged.
28. On 16 March 1994, as the applicant's detention was approaching
the statutory maximum of four years (see paragraph 36 below), the
Audiencia Nacional had issued an order releasing the applicant from
detention in the extradition proceedings. However, on learning of the
applicant's acquittal in the rape trial and of his imminent release,
the Audiencia Nacional immediately ordered the applicant's continued
detention pending extradition.
29. On 27 March 1994 the applicant was handed over to the
United Kingdom authorities, pursuant to the international
arrest warrant and the Audiencia Nacional's decision of
22 February 1991 allowing extradition (see paragraph 13 above).
30. The applicant had spent a total of two years, six months and
twenty-nine days under the different orders for detention pending trial
on the rape charge and exactly four years in connection with the
extradition proceedings.
31. On 9 November 1995, following a trial at
Birmingham Crown Court, Mr Scott was convicted of the murder of his
father. He was sentenced to life imprisonment. The trial judge
recommended a "tariff period" (see paragraph 43 below) of twelve years.
II. Relevant domestic law
A. The Constitution
32. Article 17 of the Constitution guarantees the right to liberty
and security of person and sets out the conditions under which a
person's liberty may be restricted. By paragraph 4 of this provision,
a habeas corpus procedure shall be provided for in a statute which
shall also determine the maximum duration of detention pending trial.
Regarded as fundamental, Article 17 rights may be the subject
of an individual appeal to the Constitutional Court
(recurso de amparo).
B. The Criminal Code
33. Under Article 429 of the Criminal Code in force at the material
time, rape was punishable with a term of imprisonment ranging from
twelve years and one day to twenty years (reclusión menor).
34. Under Article 405 of the Criminal Code, killing one's father
or mother (parricidio) was punishable with a term of imprisonment
ranging from twenty years and one day to thirty years
(reclusión mayor).
C. The Code of Criminal Procedure
35. Under Article 503 of the Code of Criminal Procedure,
"The following conditions must be satisfied before
pre-trial detention can be ordered:
1. It must have been established that an act which may
constitute an offence [delito] has been committed.
2. The offence must be punishable by more than six years'
imprisonment [prisión menor] or, if the term of imprisonment
is shorter, the judge must consider it necessary to remand the
accused in custody in the light of his criminal record, the
circumstances of the offence, the prejudice to public order it
has caused or the frequency with which similar acts have been
committed ...
3. There must be sufficient reasons for considering the
person to be remanded in custody criminally responsible for the
offence."
36. By Article 504 of the Code of Criminal Procedure, detention
pending trial shall not exceed one year where an offence is punishable
with a term of imprisonment ranging from six months and one day to
six years (prisión menor) and shall not exceed two years if the
applicable sentence is heavier.
If, however, the case cannot be tried within that period and
there is a risk that the accused may evade justice, Article 504 of the
Code of Criminal Procedure provides that detention pending trial may
be prolonged up to two and four years respectively. A reasoned
decision (auto) to this effect may only be issued after the competent
court has heard the accused and the public prosecutor.
37. Under Article 528 para. 1 of the Code of Criminal Procedure,
detention pending trial may last for only as long as the original
reasons remain valid.
D. Rules on detention pending extradition
38. Extradition proceedings come within the jurisdiction of the
Audiencia Nacional in Madrid irrespective of where the requested person
has been detained (section 65 (4) of the Judicature Act -
Ley Orgánica del Poder Judicial). In such cases preliminary
proceedings fall to the relevant central investigating judge
(juez central de instrucción) attached to the Audiencia Nacional,
likewise in Madrid (section 88 of the Judicature Act and section 8 (2)
of the Extradition Act 1985).
39. Under section 8 of the Extradition Act, the detention of a
person with a view to his or her extradition may in certain
circumstances be sought by a State even before a formal request for
extradition is lodged where the requesting State undertakes that the
said request will be made within the following forty days. The
detainee must be brought before the relevant central
investigating judge within twenty-four hours of his or her arrest.
40. Under section 10 (3) of the Extradition Act, "while extradition
proceedings are pending, the maximum term of detention of the requested
person and his or her rights as a detainee shall be determined, where
not laid down in this Act, according to the relevant provisions of the
Code of Criminal Procedure".
41. By section 19 (2) of the Extradition Act, "if the requested
person is under investigation or has been convicted by a Spanish court
... his or her delivery may be deferred until his or her
criminal liabilities in Spain have been discharged or he or she can be
handed over temporarily or finally in accordance with such conditions
as may be agreed with the requesting State".
Article 18 of the Extradition Treaty between the United Kingdom
and the Kingdom of Spain of 22 July 1985 contains a similar provision.
The Treaty came into force on 1 July 1986.
42. Section 18 (1) (2) of the Extradition Act requires, inter alia,
that extradition be made subject to the time spent in detention pending
extradition by the requested person being deducted from the sentence
that would eventually be passed on him or her by the requesting State.
E. Life sentences in England
43. Under English law murder carries a mandatory sentence of
life imprisonment (Murder (Abolition of Death Penalty) Act 1965). A
person convicted of manslaughter may be sentenced to life imprisonment
at the discretion of the trial judge. In both cases release on licence
can only be granted after a minimum period deemed necessary to satisfy
the requirements of retribution and deterrence ("the tariff period")
has been served.
PROCEEDINGS BEFORE THE COMMISSION
44. Mr Scott applied to the Commission on 2 September 1992. He
relied on Article 5 paras. 1 (c) and 3 of the Convention (art. 5-1-c,
art. 5-3), complaining that he had been unlawfully detained for an
unreasonably long period of time. He further complained of breaches
of Articles 5 para. 4, 6, 8 and 13 of the Convention (art. 5-4,
art. 6, art. 8, art. 13).
45. On 22 February 1995 the Commission declared the application
(no. 21335/93) admissible as far as the complaints under Article 5
paras. 1 (c) and 3 (art. 5-1-c, art. 5-3) were concerned. In its
report of 4 July 1995 (Article 31) (art. 31), it expressed the opinion
that there had been no violation of Article 5 para. 1 (c) (art. 5-1-c)
(ten votes to three) and that there had been a violation of Article 5
para. 3 of the Convention (art. 5-3) (twelve votes to one). The full
text of the Commission's opinion and of the three separate opinions
contained in the report is reproduced as an annex to this judgment (1).
_______________
Note by the Registrar
1. For practical reasons this annex will appear only with the printed
version of the judgment (in Reports of Judgments and
Decisions 1996-VI), but a copy of the Commission's report is obtainable
from the registry.
_______________
FINAL SUBMISSIONS TO THE COURT
46. At the hearing, the applicant invited the Court to declare that
there had been a violation of Article 5 paras. 1 and 3 (art. 5-1,
art. 5-3).
The Government, for their part, submitted that, in the
circumstances of the case, the length of the applicant's detention
could not be considered unreasonable.
AS TO THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 PARA. 1 OF THE CONVENTION
(art. 5-1)
47. Mr Scott complained of the unlawfulness of his detention under
Article 5 para. 1 of the Convention (art. 5-1), which, in so far as
relevant, reads:
"1. Everyone has the right to liberty and security of person.
No one shall be deprived of his liberty save in the following
cases and in accordance with a procedure prescribed by law:
...
(c) the lawful arrest or detention of a person effected
for the purpose of bringing him before the competent
legal authority on reasonable suspicion of having committed an
offence or when it is reasonably considered necessary to
prevent his committing an offence or fleeing after having done
so;
...
(f) the lawful arrest or detention of a person ...
against whom action is being taken with a view to ...
extradition."
A. Preliminary observations
48. Before the Court, Mr Scott complained that the facts relating
to his detention in Spain between March 1990 and March 1994 disclosed
a breach of Article 5 para. 1 (art. 5-1) in relation to both his
detention on remand and his detention with a view to extradition, and
a further breach of paragraph 3 of the same provision (art. 5-3) with
regard to the length of his detention on remand.
The applicant submitted that as from 28 June 1991 - date when
the Spanish Cabinet authorised his extradition to the United Kingdom
(see paragraph 14 above) - the only justification for his continued
detention was his alleged involvement in the rape case.
49. The Commission considered the lawfulness of the applicant's
detention under Article 5 para. 1 (c) (art. 5-1-c). As to its length,
the Commission only examined the applicant's detention on remand.
50. The Government submitted that different considerations applied
to the two different sets of proceedings Mr Scott was involved in:
suspicion of rape and request for extradition. In both cases his
deprivation of liberty had been lawful. The long period of detention
that followed was also justified; in compliance with the appropriate
legislation (see paragraph 41 above), the Spanish authorities were
entitled to defer the execution of the order for the applicant's
extradition as long as his trial in the rape case was still pending.
In view of the wording of Article 5 para. 3 (art. 5-3)
(see paragraph 67 below), however, the Court was only entitled to
examine the period spent by the applicant in detention pursuant to
orders made in the rape proceedings.
51. The Court notes that the applicant was first arrested on
5 March 1990 under suspicion of having raped a Finnish woman
(see paragraph 8 above). Subsequently, central
investigating judge no. 4 ordered that the applicant be kept in custody
pending the resolution of a request for extradition (see paragraph 10
above). On 22 February 1991 the Audiencia Nacional ordered the
applicant's extradition, as requested by the
United Kingdom authorities. However, this extradition order was only
to be executed after the determination of the rape case
(see paragraph 13 above).
The Court further notes that, after the applicant's release had
been ordered in relation to the rape case (see paragraph 18 above) and
after an unsuccessful attempt to hand over the applicant to the
British authorities on a temporary basis, the Audiencia Nacional chose
to extend the applicant's detention pending extradition
(see paragraph 19 above). It is common ground that the basis for this
decision, as well as for the subsequent orders of 5 October and
6 December 1992 (see paragraphs 21 and 22 above), was that the
investigation into the rape allegations was still pending.
Furthermore, the sole argument used by the public prosecutor in
recommending Mr Scott's continued detention was the existence of that
investigation (see paragraphs 16, 19 and 20 above).
52. From the foregoing the Court concludes that for all but the few
days that elapsed between the applicant's acquittal in the rape case
and his delivery to the United Kingdom authorities, the investigation
into the rape charges provided at all times, in whole or in part,
justification for the applicant's ongoing detention. This was
unquestionably the case in the periods comprised between 5 March 1990
and 6 March 1992 and again between 25 August 1993 and 21 March 1994,
where detention had been ordered in the rape proceedings. However,
even during the period going from 6 March 1992 to 25 August 1993, where
technically the applicant was being detained exclusively on the
strength of orders made in the extradition proceedings, the only reason
for extending his detention was that the investigation into the
rape allegations was still incomplete. In other words, the
Spanish extradition authorities, who had ordered the applicant's
detention on the basis of a request for extradition - which was as such
covered by Article 5 para. 1 (f) (art. 5-1-f) - decided to prolong his
detention beyond 6 March 1992 - where provisional release had been
granted in respect of the rape proceedings - for reasons
("reasonable suspicion of having committed an offence" and risk of
absconding) that are more appropriately examined in the context of
Article 5 para. 1 (c) (art. 5-1-c).
In these circumstances and in the exercise of its powers to
consider the legal basis of the applicant's detention "autonomously",
the Court will approach the period between 5 March 1990 and
21 March 1994 as falling within the ambit of Article 5 para. 1 (c)
(art. 5-1-c). This is consonant with the aim and purpose of
Article 5 (art. 5), which are to protect everyone from arbitrary
deprivations of liberty (see, mutatis mutandis, the Van der Leer
v. the Netherlands judgment of 21 February 1990, Series A no. 170-A,
p. 13, para. 27).
B. The lawfulness of the applicant's continued detention
53. Mr Scott did not contest the lawfulness of his
original detention either with regard to the rape investigation or the
extradition proceedings. He contested, however, the legal basis of his
continuing detention pending extradition after he had been granted
conditional release in the rape case on 6 March 1992 (see paragraph 18
above).
The applicant further complained of the unlawfulness of the
order for his continued detention dated 25 August 1993, made after the
international letter rogatory had been complied with (see paragraph 25
above). In his submission, the evidence thus obtained did not
strengthen significantly the prosecution case, making the detention
order arbitrary under Article 5 para. 1 (c) (art. 5-1-c).
54. The Commission considered that the applicant's detention in
connection with the criminal proceedings was ordered in accordance with
a procedure prescribed by law and was lawful within the meaning of
Article 5 para. 1 (c) (art. 5-1-c).
55. For the Government also the applicant's detention was decided
according to law and by the competent judicial authority. As to the
applicant's first complaint, the Government pointed out that in
compliance with the appropriate legislation (see paragraph 41 above),
the Spanish authorities were entitled to defer the execution of the
extradition order as long as trial in the rape case remained pending.
56. The Court must therefore examine under this head whether the
applicant's detention between 6 March 1992 (see paragraph 18 above) and
25 August 1993 (see paragraph 25 above) as well as the order for his
continued detention made on that last date were "in accordance with a
procedure prescribed by law" and "lawful" within the meaning of
Article 5 para. 1 (art. 5-1). The Convention here essentially refers
back to national law and states the obligation to conform to the
substantive and procedural rules thereof; but it requires in addition
that any deprivation of liberty should be consistent with the purpose
of Article 5 (art. 5), namely to protect individuals from arbitrariness
(see, as a recent authority, the Amuur v. France judgment of
25 June 1996, Reports of Judgments and Decisions 1996-III, p. 857,
para. 50).
57. It is in the first place for the national authorities, notably
the courts, to interpret and apply domestic law. However, since under
Article 5 para. 1 (art. 5-1) failure to comply with domestic law
entails a breach of the Convention, it follows that the Court can and
should exercise a certain power to review whether this law has been
complied with (see the Bouamar v. Belgium judgment of 29 February 1988,
Series A no. 129, p. 21, para. 49).
1. The applicant's detention between 6 March 1992 and
25 August 1993
58. Mr Scott complained that at least between 6 March 1992 and
25 August 1993 he was technically kept in detention pending extradition
while, in reality, the justification for his detention was the ongoing
investigation into the rape allegations. Once he was released on bail
on the rape charge, there was no substantive justification for his
continued detention under either sub-paragraphs (c) or (f) of Article 5
para. 1 (art. 5-1-c, art. 5-1-f). He should therefore either have been
released or extradited immediately.
59. The Court observes in limine that, although the applicant's
complaint concerning the alleged unlawfulness of his detention pending
extradition was not specifically mentioned in the Commission's decision
on admissibility (see paragraph 45 above), it is apparent from the
facts of the case as established by the Commission but also from the
Commission's reasoning in both its decision on admissibility and its
report (see paragraphs 43 and 44 of the report) that this question
forms part of the scope of the case now before the Court. In any
event, the Court has jurisdiction to examine it of its own motion
(see, mutatis mutandis, the Kamasinski v. Austria judgment of
19 December 1989, Series A no. 168, p. 30, para. 59).
60. As stated above (see paragraph 52), the Court agrees with the
applicant that during the referred period the material justification
for his continued detention was his alleged involvement in the
rape case. The Court is satisfied that, in deciding the applicant's
continued detention on that basis, the central judicial authorities -
central investigating judge no. 4 and Audiencia Nacional - followed a
procedure that was in conformity with domestic legislation. It has not
been contended by the applicant that the legislation in question -
essentially the relevant provisions of the Extradition Act 1985 and the
Extradition Treaty between the United Kingdom and the Kingdom of Spain
and also the provisions concerning detention pending trial contained
in the Code of Criminal Procedure - is in itself contrary to the
Convention. The national authorities were entitled under that
legislation to defer the surrender of a person requested for
extradition if a criminal investigation was in progress
(see paragraph 41 above). Under section 10 (3) of the Extradition Act
(see paragraph 40 above) they were further entitled to keep the
applicant in detention by applying the same principles as those
applicable to pre-trial detainees.
61. Issues of lawfulness which may otherwise have arisen from the
protracted length of the applicant's detention pending extradition
(see the Kolompar v. Belgium judgment of 24 September 1992, Series A
no. 235-C, p. 56, para. 40, and the Quinn v. France judgment of
22 March 1995, Series A no. 311, pp. 19-20, para. 48), are in this case
indistinguishable from those which the Court will address under
Article 5 para. 3 (art. 5-3) and do not therefore call for a separate
examination.
62. Against this background, it cannot be said that the applicant's
detention during the period concerned was unlawful for the purposes of
Article 5 para. 1 (art. 5-1).
2. The detention order of 25 August 1993
63. The conformity with domestic legislation of the procedure
followed by the judicial authorities in charge of the rape case, in
particular the Puerto de la Cruz investigating judge, has not been
disputed. The Court, for its part, does not discern, either in the
wording of the applicable legislation or in its application, any
contradiction with the Convention. It concludes that in this case the
applicant's deprivation of liberty on allegations of rape was "in
accordance with a procedure prescribed by law".
64. It remains to be examined whether the new detention order in
connection with the rape charges on 25 August 1993 also conformed with
the substantive rules of domestic law and was "lawful" within the
meaning of Article 5 para. 1 (c) of the Convention (art. 5-1-c).
65. The Court notes that Mr Scott was first arrested following a
complaint by Ms T. that the applicant had threatened and beaten her,
forcing her to undress and to have sexual intercourse with him; it
further notes that when located by the police, the applicant had
attempted to flee (see paragraphs 7 and 8 above). Moreover, on
29 April 1993 further evidence was received, including a fresh
statement by the complainant and medical certificates to the effect
that upon her return from Tenerife Ms T. had undergone prolonged
psychiatric treatment (see paragraph 25 above). In view of the
foregoing and having particular regard to the applicant's
criminal record (see paragraph 8 above), which the national authorities
were entitled to consider by virtue of Article 503 para. 2 of the
Code of Criminal Procedure (see paragraph 35 above), the Court is
satisfied that the new order for the applicant's detention on
25 August 1993 was made in compliance with the substantive
domestic legislation applicable and was not arbitrary for the purposes
of Article 5 para. 1 (c) (art. 5-1-c).
3. Conclusion
66. The Court concludes that, in the present case, there has been
no violation of Article 5 para. 1 of the Convention (art. 5-1).
II. ALLEGED VIOLATION OF ARTICLE 5 PARA. 3 OF THE CONVENTION
(art. 5-3)
67. The applicant further complained that the unreasonable length
of his detention was in breach of Article 5 para. 3 of the Convention
(art. 5-3), which reads as follows:
"Everyone arrested or detained in accordance with the
provisions of paragraph 1 (c) of this Article (art. 5-1-c) ...
shall be entitled to trial within a reasonable time or to
release pending trial. Release may be conditioned by
guarantees to appear for trial."
A. The Government's preliminary objection
68. The Government pleaded the applicant's failure to exhaust the
domestic remedies available to him. They argued that not a
single application for release had been addressed to the authorities
with responsibility over the rape case, that is Puerto de la Cruz
investigating judge no. 1 and the Audiencia Provincial of
Santa Cruz de Tenerife.
69. The applicant submitted, inter alia, that, even if the judge
in Tenerife had granted bail on the criminal charges, he would have
remained subject to detention under the extradition proceedings.
70. The Court notes that the applicant made at least three
applications for provisional release (see paragraphs 20, 21 and 22
above) and that, in the last occasion recorded in the file, the matter
was brought all the way to the Constitutional Court. Admittedly, these
applications were addressed to the Audiencia Nacional, which only had
authority to decide on matters concerning the request for extradition.
However, having regard to the reference to the rape proceedings made
by Mr Scott in at least one of his applications for release
(see paragraph 21 above), and, above all, to the autonomous approach
to the applicant's detention adopted by the Court (see paragraph 52
above), the Court considers that the applicant did exhaust the
domestic remedies available to him. The central judicial authorities,
which chose to make the resolution of the rape proceedings a
prerequisite for executing the applicant's extradition, kept the
applicant in detention under their direct orders from 23 March 1990 to
16 March 1994 (see paragraphs 10 and 28 above). In these
circumstances, it was reasonable to consider that they had the last say
in matters relating to his detention, no further purpose being served
by applying to the Tenerife authorities.
The Government's preliminary objection falls therefore to be
dismissed.
B. Merits of the complaint
71. The applicant complained of the protracted length of his
pre-trial detention, which, in his submission, lasted from
5 March 1990, the day of his arrest, to 27 March 1994, when he was
finally handed over to the United Kingdom authorities.
72. The Commission, while finding that Article 5 para. 3 (art. 5-1)
only applied to the applicant's detention in connection with the
rape case, considered that the fact that the applicant was deprived of
his liberty during a very long consecutive period imposed on the
Spanish authorities a special duty of diligence to bring his detention
to an end without further delay.
73. In the Government's submission, the applicant's
pre-trial detention only covered two periods of his overall detention;
namely, one going from 5 March 1990 to 6 March 1992 and another one
from 25 August 1993 to 21 March 1994, a total of roughly two years and
seven months. Only during these periods was the applicant detained
under orders made in the rape case and, therefore, only these periods
strictly fell within the exception in Article 5 para. 1 (c)
(art. 5-1-c) and can thus be taken into consideration for the purposes
of Article 5 para. 3 (art. 5-3).
1. General principles
74. As established in the Court's case-law, whether a period of
pre-trial detention can be considered "reasonable" must be assessed in
each case according to its special features (see, among other
authorities, the Wemhoff v. Germany judgment of 27 June 1968, Series A
no. 7, p. 24, para. 10).
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. It falls in the
first place to the national judicial authorities to examine all the
circumstances arguing for or against the existence of such a
requirement and to 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 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 para. 3 (art. 5-3).
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 ascertain whether the competent
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, among
many other authorities, the Letellier v. France judgment of
26 June 1991, Series A no. 207, p. 18, para. 35, and the Van der Tang
v. Spain judgment of 13 July 1995, Series A no. 321, pp. 17-18,
para. 55).
2. Period to be taken into consideration
75. For the reasons set out above (see paragraphs 51 and 52 above),
the Court is satisfied that the ongoing investigation into the
rape case provided the ultimate justification for the applicant's
protracted period of detention. Not only did the authorities dealing
with extradition matters - central investigating judge no. 4 and the
Criminal Division of the Audiencia Nacional - constantly make reference
to the rape file in extending the applicant's detention pending
extradition, they even requested the investigating judge in
Puerto de la Cruz to supply information as to whether the applicant
could be extradited (see paragraph 22 above). In so doing, the
Spanish courts acted within powers granted to them by the legislation
in force to defer the extradition of a person under investigation until
his criminal liabilities in Spain had been discharged
(see paragraph 41 above).
The Court will therefore consider under the present head the
applicant's detention from the day of his arrest to the day when the
Audiencia Provincial of Santa Cruz de Tenerife acquitted him of the
rape charges; a total of four years and sixteen days. The few
remaining days up to the applicant's delivery to the
United Kingdom authorities on 27 March 1994 were completely unrelated
to the rape proceedings and fall therefore outside the scope of
Article 5 para. 3 (art. 5-3).
3. Grounds for continued detention
76. The applicant accepted that initially the suspicion of an
offence of rape could justify his detention. He concentrated the main
thrust of his arguments on the alleged lack of special diligence on the
part of the Spanish authorities.
77. For the Government, the national authorities, in prolonging the
applicant's detention, relied on the seriousness of the offence
allegedly committed by him (rape) as well as on the risk of his
absconding. In support of the latter ground, they pointed to the fact
that the applicant had already escaped from a British prison; that he
had forged a passport; and had attempted to flee when located by the
police (see paragraph 8 above).
78. The Court accepts that the alleged offences were of a serious
nature. The fact that the public prosecutor requested that the
applicant be sentenced to a period of sixteen years' imprisonment
(see paragraph 26 above) supports this conclusion. However, the
existence of a strong suspicion of the involvement of a person in
serious offences, while constituting a relevant factor, cannot alone
justify a long period of pre-trial detention (see the Tomasi v. France
judgment of 27 August 1992, Series A no. 241-A, p. 35, para. 89).
79. As to the danger of Mr Scott's absconding, the Court notes that
this ground was expressly mentioned in only one of the decisions
rejecting Mr Scott's applications for release (see paragraph 20 above).
While it would certainly have been desirable for the Spanish courts to
have given more detailed reasoning as to the relevance of that ground
in the particular circumstances of the case, the Court is nonetheless
satisfied that an evident and significant risk of the applicant's
absconding persisted throughout his entire period of detention. This
has, furthermore, not been contested by the applicant.
4. Conduct of the proceedings
80. According to the applicant, his case was a straightforward one,
requiring only that two witnesses be heard and certain medical evidence
be obtained. It should have been tried within months, not years.
81. The Commission was also of the view that the case against the
applicant did not appear to have been of great complexity. It found
that it had not been established that his detention was in conformity
with the "reasonable time" requirement in Article 5 para. 3 of the
Convention (art. 5-3).
82. The Government referred to the complexities associated with the
implementation of the international letter rogatory (see paragraph 11
above) as justifying the delay in bringing the applicant to trial. In
that context, they pointed out that the alleged victim's inability to
make a statement in a Finnish court due to her mental state further
delayed the proceedings by nearly one year.
83. The Court cannot subscribe to the Government's contention that
the various difficulties associated with the implementation of the
international letter of judicial cooperation (translation of documents,
transmission by diplomatic channels, repeated summons of the
complainant) can justify the very long period of time the applicant
spent in detention. Like the Commission, the Court considers that the
case was not particularly complex. Indeed, it is apparent from the
case file before it that, after the investigation had been terminated,
the evidence against the applicant only included two statements by the
complainant, two statements by the accused and four medical
certificates. Furthermore, there is nothing to suggest that the length
of the proceedings can be attributable in whole or in part to the
applicant's conduct. In these circumstances the Court cannot but
conclude that the duty of "special diligence" enshrined in Article 5
para. 3 (art. 5-3) has not been observed.
5. Conclusion
84. In conclusion, there has been a violation of Article 5
para. 3 of the Convention (art. 5-3).
III. APPLICATION OF ARTICLE 50 OF THE CONVENTION (art. 50)
85. Article 50 of the Convention (art. 50) provides as follows:
"If the Court finds that a decision or a measure taken by a
legal authority or any other authority of a High Contracting
Party is completely or partially in conflict with the
obligations arising from the ... Convention, and if the
internal law of the said Party allows only partial reparation
to be made for the consequences of this decision or measure,
the decision of the Court shall, if necessary, afford just
satisfaction to the injured party."
The applicant's claims under this provision (art. 50) were for
compensation for damage and reimbursement of legal costs and expenses
referable to the proceedings before the Convention institutions.
A. Damage
86. The applicant sought compensation at a rate of £30,000 per
annum for what he considered had been an unnecessary and unjustified
period of detention. He left it to the Court's discretion to decide
whether the appropriate period was the whole four years spent in
detention or only after March 1992, that is when provisional release
in the rape case was ordered.
87. The Court notes that the applicant, following his extradition
to the United Kingdom in March 1994, stood trial for the murder of his
father. He was found guilty and was sentenced to life imprisonment
(see paragraph 31 above). The trial judge recommended a minimum period
of imprisonment of twelve years (ibid.). The Court further notes that
the applicant's extradition was granted on condition that the time
spent in prison pending extradition be deducted from the sentence that
would eventually be passed on him by the English courts in the
murder case (see paragraph 13 above). No evidence has been adduced
before the Court to suggest that the United Kingdom authorities will
not honour that condition.
In these circumstances, the Court considers that the finding
of a violation constitutes sufficient just satisfaction for the
purposes of Article 50 (art. 50) as to any damage sustained.
B. Costs and expenses
88. For the legal costs and expenses in bringing his case before
the Convention institutions, the applicant claimed the sum of
£31,497.50 inclusive of value-added tax.
89. The Government found the sum claimed excessive.
90. In the light of the criteria emerging from its case-law, the
Court holds that the applicant should be awarded the amount of £18,000
less 20,700 French francs already paid by way of legal aid in respect
of fees and travel and subsistence expenses.
C. Default interest
91. In the circumstances of the present case, the Court considers
it appropriate to apply the statutory rate in force in the
United Kingdom on the date of adoption of the present judgment, namely
8% per annum.
FOR THESE REASONS, THE COURT
1. Holds by eight votes to one that there has been no violation
of Article 5 para. 1 of the Convention (art. 5-1);
2. Dismisses unanimously the Government's preliminary objection
concerning the non-exhaustion of domestic remedies as regards
the complaint under Article 5 para. 3 of the Convention
(art. 5-3);
3. Holds unanimously that there has been a violation of Article 5
para. 3 of the Convention (art. 5-3);
4. Holds unanimously that the finding of a violation constitutes
adequate satisfaction for any damage suffered by the applicant;
5. Holds unanimously:
(a) that the respondent State is to pay to the applicant,
within three months, in respect of costs and expenses,
£18,000 (eighteen thousand pounds sterling) less
20,700 (twenty thousand, seven hundred) French francs to be
converted into pounds sterling at the rate applicable on the
date of delivery of the present judgment;
(b) that simple interest at an annual rate of 8% shall be
payable from the expiry of the above-mentioned three months
until settlement;
6. Dismisses unanimously the remainder of the claim for just
satisfaction.
Done in English and in French, and delivered at a public
hearing in the Human Rights Building, Strasbourg, on 18 December 1996.
Signed: Rolv RYSSDAL
President
Signed: Herbert PETZOLD
Registrar
In accordance with Article 51 para. 2 of the Convention
(art. 51-2) and Rule 53 para. 2 of Rules of Court A, the partly
dissenting opinion of Mr Repik is annexed to this judgment.
Initialled: R.R.
Initialled: H.P.
PARTLY DISSENTING OPINION OF JUDGE REPIK
(Translation)
I voted with the majority to reject the preliminary objection
that domestic remedies were not exhausted and to find a violation of
Article 5 para. 3 of the Convention (art. 5-3), but on the latter point
for reasons which were different in part. On the other hand, I
disagree with the majority's finding that there was no violation of
Article 5 para. 1 of the Convention (art. 5-1).
The reasons for my partly separate and partly dissenting
opinion are as follows.
I. General observations
According to the majority of the Court, the whole period of the
applicant's detention fell within the ambit of Article 5 para. 1 (c)
of the Convention (art. 5-1-c), and accordingly also within that of
Article 5 para. 3 (art. 5-3) (see paragraphs 52 and 74 of the
judgment), with the exception of the short period from 21 to
27 March 1994, which had no connection at all with the
Spanish proceedings on the rape charges (see paragraph 75 of the
judgment).
The Court based this amalgamation of the two separate grounds
for the applicant's detention on its power to consider the legal basis
of detention "autonomously" (see paragraph 52 of the judgment) having
regard to the fact that "the investigation into the rape charges
provided at all times, in whole or in part, justification for the
applicant's ongoing detention" and that "even during the period going
from 6 March 1992 to 25 August 1993, where technically the applicant
was being detained exclusively on the strength of orders made in the
extradition proceedings, the only reason for extending his detention
was that the investigation into the rape allegations was still
incomplete" (see paragraph 52 of the judgment).
I regret that I am unable to follow the Court in this approach;
to find that detention with a view to extradition under the
Spanish legal rules governing detention fell within the ambit of
Article 5 para. 1 (c) of the Convention (art. 5-1-c) seems to me to be
unfounded. It is the statutory conditions for detention, both
substantive and procedural, as laid down by domestic legislation, that
should be taken into account in order to decide what was lawful under
the Convention, not the reasons given by the domestic courts in their
decisions to justify extending detention with a view to extradition.
The Court's task is precisely to determine whether the latter reasons
suggest that detention with a view to extradition pursued an aim other
than that for which it was prescribed by law (see the Quinn v. France
judgment of 22 March 1995, Series A no. 311, p. 19, para. 47).
The applicant's detention during the period under consideration
was based - in part concurrently and in part consecutively - on
two different legal grounds and two different types of court order,
between which the Convention also draws a clear distinction. Detention
on remand (Article 503 of the Spanish Code of Criminal Procedure) -
apart from the other specific substantive conditions relating thereto -
may be ordered only in the context of domestic criminal proceedings.
On the other hand, detention with a view to extradition may be ordered
only in the context of extradition proceedings. These requirements are
also laid down by Article 5 para. 1 (c) of the Convention (art. 5-1-c),
as regards the former, and Article 5 para. 1 (f) (art. 5-1-f) as
regards the latter. In addition, different domestic courts have
jurisdiction to determine all questions concerning these two different
grounds of detention. The fact that the two sets of proceedings were
being conducted concurrently does not make it right for the Court to
treat these two grounds of detention as identical for the purposes of
the Convention and does not dispense it from examining them separately,
which does not mean that when assessing the length of detention it
cannot take into account the total period of imprisonment (see, for
example, mutatis mutandis, the Yagci and Sargin v. Turkey judgment of
8 June 1995, Series A no. 319-A, p. 18, para. 49).
The majority's approach leads to the following unacceptable
consequence: if the whole period of detention from 5 March 1990 to
21 March 1994 was based solely on what was needed in connection with
the domestic proceedings on the rape charge and thus fell within the
ambit of Article 5 para. 1 (c) of the Convention (art. 5-1-c), how is
it possible to justify the fact that this detention exceeded the
maximum statutory limit under Spanish law, namely four years
(Article 504 of the Spanish Code of Criminal Procedure)? From
6 March 1994 onwards the applicant's detention should be considered
unlawful.
It is therefore necessary to consider the two grounds of
detention separately.
II. Detention on remand
I agree with the majority that this detention was lawful and
that, throughout its length, there were plausible reasons to suspect
that the applicant had committed a serious offence and that there was
an obvious risk of his absconding (see paragraphs 78 and 79 of the
judgment).
Taking a different approach from the majority, I consider that
the period of detention which fell within the ambit of Article 5
para. 3 (art. 5-3) ran only from 5 March 1990 to 6 March 1992 and from
25 August 1993 to 21 March 1994, that is to say a total of two years
and nearly seven months. However, although the period in question was
considerably shorter than the period considered by the majority, their
conclusions on the question whether the detention exceeded a reasonable
time remain valid, even for this shorter period. There were very
lengthy periods of inactivity on the part of the
Puerto de la Cruz investigating judge not only during the applicant's
detention on remand but also during the period when he was technically
no longer being held on remand (6 March 1992 - 25 August 1993), and the
delays during this last period directly influenced the fact that his
detention continued after 25 August 1993.
III. Detention with a view to extradition
For detention falling within the ambit of two (or more)
sub-paragraphs of Article 5 para. 1 (art. 5-1) to be justified, it is
sufficient for it to be justified under only one of the provisions
concerned. Having regard to the above conclusions concerning detention
on remand ordered in connection with the domestic proceedings on the
rape charge, the only period which has still to be considered under
Article 5 para. 1 (f) (art. 5-1-f) is that part of the applicant's
detention ordered solely with a view to extradition, that is the period
from 6 March 1992 to 25 August 1993, since the period from 21 to
27 March 1994 was manifestly justified by the need to order and
implement measures to hand the applicant over to the
British authorities.
According to the majority, by holding the applicant in
detention with a view to extradition for the sole reason that the
domestic criminal proceedings on the rape charge were still pending,
the Spanish judicial authorities acted within the limits of the powers
conferred on them under domestic law to defer extradition
(see paragraph 75 of the judgment). I consider that there is a stage
missing from that reasoning. Under the relevant provision of the
Extradition Act (section 19 (2)) and the similar provision of
Article 18 of the Extradition Treaty between Spain and the
United Kingdom (see paragraph 41 of the judgment), delivery of the
person whose extradition is sought into the charge of the requesting
State may be deferred until he has discharged his
criminal responsibilities if criminal proceedings against him are
pending in the State from which extradition is sought. But these
provisions say nothing to the effect that the person whose extradition
is sought must be detained with a view to extradition or held at the
disposal of the requested State in some other manner, in particular in
detention on remand in connection with the
domestic criminal proceedings (1). Consequently, these provisions
cannot constitute the legal basis for detention with a view to
extradition, which is based on other provisions.
_______________
1. It is logical that if the person concerned is detained only for the
purposes of the domestic criminal proceedings, the means that must be
employed to that end are those which are available to the State in such
proceedings. If means which have no place in such proceedings are
used, and if the prisoner is not detained under the responsibility of
the court conducting the proceedings, there is nothing to encourage
that court to proceed with the necessary diligence, notwithstanding the
fact that the prisoner is deprived of the safeguards laid down by the
legislation of most countries in respect of detention on remand, but
not of detention with a view to extradition (for example, statutory
maximum limits of detention, obligation to consider proprio motu, at
various intervals, whether the reasons for detention are still valid,
deduction of detention on remand from the sentence imposed in the
domestic criminal proceedings, etc.).
_______________
For more than seventeen months the applicant was detained only
with a view to extradition. However, the extradition proceedings ended
for all practical purposes with the Cabinet's decision of 28 May 1991.
All that remained to be done was to enforce extradition, which took
only a few days (21-27 March 1994). The Audiencia Nacional's decision
of 17 March 1992 to extend detention with a view to extradition came
after the Puerto de la Cruz investigating judge decided, rightly or
wrongly, that the applicant should be released from detention on remand
(see paragraphs 18 and 19 of the judgment). There can be no doubt that
detention with a view to extradition was used for the purposes of the
domestic criminal proceedings on the rape charge.
Article 5 para. 1 (f) of the Convention (art. 5-1-f) provides
for a review of the lawfulness of the detention of a person against
whom action with a view to his extradition "is being taken". The
wording in both French and English means that only where extradition
proceedings are in progress is deprivation of liberty justified under
that provision (art. 5-1-f). It follows that if the proceedings are
not being conducted by the authorities with the necessary diligence,
or if continued detention results from the pursuit of aims other than
those for which it was prescribed by law, the detention ceases to be
justified under Article 5 para. 1 (f) (art. 5-1-f) (see the
above-mentioned Quinn judgment, p. 19, paras. 47 and 48; see also
application no. 7317/75, decision of 6 October 1976 in the Lynas
v. Switzerland case, Decisions and Reports 6, pp. 141 et seq.).
Whatever approach one chooses - either the excessive length of
detention not justified by extradition proceedings in progress or the
use of detention with a view to extradition for the purposes of the
domestic criminal proceedings - the detention in question was not
justified under Article 5 para. 1 (f) of the Convention (art. 5-1-f)
and there has accordingly also been a violation of Article 5 para. 1
(art. 5-1).