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DERMANOVIC v. SERBIA - 48497/06 [2010] ECHR 228 (23 February 2010)
URL: http://www.bailii.org/eu/cases/ECHR/2010/228.html
Cite as:
[2010] ECHR 228
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SECOND
SECTION
CASE OF ĐERMANOVIĆ v. SERBIA
(Application
no. 48497/06)
JUDGMENT
STRASBOURG
23
February 2010
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Đermanovic v.
Serbia,
The
European Court of Human Rights (Second Section), sitting as a Chamber
composed of:
Françoise Tulkens,
President,
Ireneu Cabral Barreto,
Vladimiro
Zagrebelsky,
Danutė Jočienė,
Dragoljub
Popović,
András Sajó,
Nona
Tsotsoria, judges,
and Sally
Dollé, Section
Registrar,
Having
deliberated in private on 2 February 2010,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 48497/06) against the Republic
of Serbia lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Serbian national, Mr Dušan Đermanović
(“the applicant”), on 24 November 2006.
The
applicant was represented by Ms A. Gaćeša, a lawyer
practising in Novi Sad. The Serbian Government (“the
Government”) were represented by their Agent, Mr S. Carić.
The
applicant alleged that the length and conditions of his detention, as
well as inadequate medical care during that time, had violated his
rights under Articles 3, 5 and 6 of the Convention.
On
30 August 2007 the President of the Second Section decided to give
notice of the application to the Government. It was also decided to
examine the merits of the application at the same time as its
admissibility (Article 29 § 3).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. The criminal proceedings
The
applicant was born in 1966 and lives in Novi Sad.
On
24 March 2003 the competent authorities opened a criminal
investigation against the applicant on suspicion of abuse of power
(“zloupotreba sluZbenog poloZaja”) and forging of
official documents (“falsifikovanje sluZbenih isprava”).
On the same day, the applicant was examined by the investigating
judge, at which time he submitted a temporary address.
On
5 May 2003 the police searched the flat owned by the applicant
situated at the address of his permanent residence (prebivalište).
The applicant's mother, who was present at the search, stated that
the applicant had not lived in that flat for over two years.
According to the official police report, the police then contacted
the applicant by telephone and he informed them that he was looking
for a new flat.
Subsequently,
following a request by the Novi Sad District Public Prosecutor's
Office (OkruZno javno tuZilaštvo Novi Sad), on 2 June
2003 the Novi Sad District Court (OkruZni sud u Novom Sadu)
ordered that the applicant be detained on remand under section
142(2)(1) of the Criminal Procedure Code (risk of flight) and that an
arrest warrant be issued against him. The applicant appealed against
that decision. On 4 June 2003 his lawyer submitted the applicant's
new address to the Novi Sad District Court, alleging that he had
already done so on 8 May 2003. However, on 23 June 2003 the
Supreme Court dismissed the appeal against the detention order.
On
17 October 2003 the Public Prosecutor's Office indicted the applicant
and shortly thereafter, on 11 December 2003, the District Court
quashed the detention order against the applicant and set bail at EUR
40,000. The applicant appeared at the court hearing in person.
However, the Supreme Court quashed the bail decision and remitted the
case. Thereafter, the District Court again ordered that the applicant
be remanded in custody because his behaviour thus far had indicated a
high risk of flight; the Supreme Court upheld that decision.
Meanwhile,
on 6 February 2004 the applicant was brought before the District
Court (investigating) judge (“istraZni sudija”),
and was remanded in custody. The applicant claimed that he had gone
to the police station of his own accord, but the Government
disagreed. There appears to have been no official police report on
the applicant's arrest. The only document relating to the event of
that date – a note made by the investigating judge of the Novi
Sad District Court – states as follows:
“It is established that the [police] officers...
at 10.30 a.m. brought [the applicant] before the... investigating
judge of this court... The accused states that at 9 a.m. this morning
he voluntarily reported to the Novi Sad police department, because he
heard that they were looking for him...”
The
applicant requested to be released on bail and offered EUR 50,000.
His request was dismissed as insufficient, since “the amount
[he had] obtained by unlawful actions was several times higher than
the amount offered” and thus provided no guarantee that he
would not abscond. His detention was thereafter regularly extended
because of such a risk.
On
9 November 2004 the Novi Sad District Court sentenced the applicant
to four and a half years' imprisonment. On 15 June 2005 the Supreme
Court quashed that judgment and remitted the case, extending at the
same time the applicant's pre-trial detention to prevent his
absconding.
The
applicant filed several applications for release on bail, but his
requests were dismissed.
In
the resumed proceedings, on 18 May 2006 the District Court again
found the applicant guilty and sentenced him to three years'
imprisonment. However, that judgment was .quashed by the Supreme
Court on 6 December 2006 and the applicant's detention was extended.
In
early 2007 the applicant requested release from detention on account
of inadequate medical care, but his request was dismissed in April
2007.
In
the remitted proceedings, on 14 May 2007 the applicant's counsel
objected to an expert opinion submitted to the court. She explained
the applicant's health condition in detail, complained about the
inadequacy of his medical treatment in detention and stressed that
his health had deteriorated to a large extent owing to the duration
of his detention.
In
a fresh judgment in the applicant's case delivered on 7 June 2007,
the court sentenced the applicant to four years' imprisonment, but
decided to release him. However, the applicant was ordered not to
leave his habitual place of residence and to report to the District
Court each month, failing which he might be returned to custody.
B. The applicant's medical condition
The
applicant was examined for the first time on 9 February 2004, shortly
after being taken into custody. The medical report concluded that he
had been in good health.
During
2004 he was diagnosed with psychiatric problems and was hospitalised
on several occasions. In 2005 he suffered from severe back pain and
was hospitalised as a result of a hunger strike. In 2006 he was
diagnosed with benign breast augmentation. In addition to the public
medical care provided, since January 2006 the domestic court had
allowed the applicant to have regular consultations with his private
doctor.
At
the end of 2006 the applicant was diagnosed with Hepatitis C. The
testing was organised within the framework of voluntary confidential
counselling and testing for HIV and Hepatitis (“Dobrovoljno
povjerljivo savjetovalište i testiranje”), which at
the material time appears to have been available in prison.
The
applicant claimed that he had been diagnosed already in November
2006, whereas the Government submitted that his diagnosis had been
made on 6 December 2006. In his examination of 1 December 2006 the
applicant's private doctor made no mention of a Hepatitis C
infection.
On
25 January 2007 the applicant went on a hunger strike.
On
8 February 2007 the applicant was examined by his private doctor, who
recommended that he be examined by an infectious diseases specialist.
That consultation took place on 13 February 2007, when the
applicant underwent further blood tests.
As
a result of his hunger strike, on 1 March 2007 the applicant was
transferred to the Belgrade Prison Hospital because of a rise in his
liver enzymes. However, he refused to be examined by the hospital
staff, claiming that he had contracted Hepatitis during his last stay
there. On 19 March 2007 the applicant's lawyer requested the
court that he be returned to the Novi Sad District Prison, and on 28
March 2007 the authorities acted accordingly. On his release from the
Belgrade Prison Hospital, the doctors concluded that there were no
traces of starvation and that the applicant suffered from drug abuse.
On
his return, he was again examined by the infectious diseases
specialist, who on the basis of further blood tests concluded that
his liver enzymes had improved and that he should undergo a liver
biopsy, which was performed on 23 April 2007. The biopsy established
that the applicant suffered from chronic Hepatitis C with minimal
activity and minimal fibrosis. In May 2007 samples were sent for
additional tests to determine his genotype in order to start
anti-viral treatment.
The
applicant was released from detention on 7 June 2007, before the
genotyping tests were concluded and before he had started receiving
treatment for his condition.
Pursuant
to a medical report dated January 2008, after the applicant had
undergone the appropriate anti-viral treatment, his infection was in
remission.
II. RELEVANT DOMESTIC LAW
The
relevant provisions of the Code of Criminal Procedure (Zakonik o
krivičnom postupku; published in OG FRY nos. 70/01, 68/02,
58/04, 115/05 and 49/07) in force at the material time read as
follows:
Section 136
“If there are circumstances indicating that the
defendant might abscond, hide, go to an unknown place or abroad, the
court may, by a reasoned decision, prohibit him from leaving his
place of residence. ...
The parties may appeal against a ruling ordering,
extending or setting aside [the said] measures ... and the Public
Prosecutor may also appeal against a ruling rejecting his request for
their application. The Judicial Panel ... shall decide on the appeal
... [within a period of three days] ... The appeal does not stay the
execution of the ruling. ...”
Section 137
“A defendant who is to be or has already been
detained based only on circumstances indicating that he will abscond
... [or if duly summoned, that he is clearly evading appearance at
the main hearing] ... , may remain at large or may be released
providing that he personally, or another person on his behalf, gives
bail guaranteeing that he will not abscond until the conclusion of
the criminal proceedings, and the defendant himself promises that he
will not hide or change his place of residence without permission.”
Section 140(1)
“A decision concerning bail before and in the
course of a [judicial] investigation shall be rendered by the
investigating judge. After the indictment is preferred, the decision
on bail shall be rendered by the President of the Chamber and
[subsequently] at the main hearing by the Chamber itself.”
Section 142(2)
“For the purposes of the unhindered conduct of the
criminal proceedings... detention may be ordered against a person who
is under reasonable suspicion of having committed a criminal offence
if:
(1) he is in hiding or his identity cannot be
established, or if there are other circumstances clearly indicating a
risk of flight; ...”
Section 143
“Detention shall be ordered by a decision of the
competent court. ...
A decision on detention shall be served on the person to
whom it relates at the time he is deprived of his liberty, but no
later than within 24 hours ...
A detained person may file an appeal against the
decision on detention with the Judicial Panel within 24 hours from
the time of its receipt. The appeal, the decision on detention and
other files shall immediately be forwarded to the Judicial Panel. The
appeal shall not stay the execution of the [impugned] decision. ...
In the situation referred to ... [above] ... [,] the
Judicial Panel shall rule on the appeal within 48 hours.”
Section 389(4)
“If the defendant is in detention on remand, the
second-instance court shall examine the continuation of the reasons
for the measure and decide whether or not to extend it. No appeal
shall lie against that decision.”
The
relevant provision of the Enforcement of Criminal Sanctions Act 2005
(Zakon o izvršenju
krivičnih sankcija; published in OG RS no. 85/05) reads as
follows:
Section 101
“Prisoners are entitled to free medical care.
Prisoners who cannot receive adequate medical treatment
within the institution shall be transferred to the Special Prison
Hospital or other health institution, and pregnant women to a
maternity ward for childbirth.
Time spent on medical treatment shall be calculated as
part of the time of imprisonment.”
Section 102
“(1) Medical treatment of a prisoner is conducted
with his consent.
(2) Force-feeding of a prisoner is not allowed...”
Section 245
“The enforcement of a detention measure is subject
to supervision by the president of the District Court that has
jurisdiction for the territory where the main premises of the
detention facility are located.”
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE CONVENTION
The
applicant complained under Article 3 of the Convention about the
allegedly inadequate medical treatment afforded to him during his
detention. The said provision reads as follows:
“No one shall be subjected to torture or to
inhuman or degrading treatment or punishment.”
For
the first time in his written observations to the Court, dated
30 January 2008, the applicant also complained about the general
conditions of his detention, including the cell size and permissible
outdoor walks.
The
Court reiterates that, as regards complaints not included in the
initial application, the running of the six-month time-limit is not
interrupted until the date when the complaint is first submitted to
it (see Allan v. the United Kingdom (dec.), no 48539/99, 28
August 2001).
Bearing
in mind that the applicant was released on 7 June 2007 and that he
introduced his complaint about the general conditions of his
detention only on the above-mentioned date, it follows that this part
of the complaint has been introduced out of time and must be rejected
in accordance with Article 35 §§ 1 and 4 of
the Convention.
Consequently,
in examining the applicant's complaint under Article 3, the
Court shall therefore only take into account the adequacy of medical
treatment afforded to him in detention.
A. Admissibility
The
Government submitted that the applicant had failed to exhaust
domestic remedies. Without relying on any provision of domestic law,
they claimed that he could have appealed to the president of the
District Court, as well as to the prison or hospital authorities.
The
applicant disagreed. He maintained that he had repeatedly informed
the competent court about his health condition but to no avail.
The
Court recalls that the rule of exhaustion of domestic remedies
contained in Article 35 § 1 of the Convention requires that
normal recourse should be had by an applicant to remedies which are
available and sufficient to afford redress in respect of the breaches
alleged (see, among other authorities, Akdivar and Others v.
Turkey, 16 September 1996, § 65, Reports
of Judgments and Decisions 1996-IV). The existence of the
remedies in question must be sufficiently certain not only in theory
but in practice, failing which they will lack the requisite
accessibility and effectiveness (ibid.).
In
the area of exhaustion of domestic remedies there is a distribution
of the burden of proof. It is incumbent on the Government claiming
non-exhaustion to satisfy the Court that the remedy was an effective
one available in theory and practice at the relevant time, that is to
say, that it was accessible, was one which was capable of providing
redress in respect of the applicant's complaints and offered
reasonable prospects of success. However, once this burden has been
satisfied it falls to the applicant to establish that the remedy
advanced by the Government was in fact exhausted or was for some
reason inadequate and ineffective in the particular circumstances of
the case or that there existed special circumstances absolving him or
her from the requirement (ibid., § 68).
The
Court points out that the decisive question in assessing the
effectiveness of a remedy concerning a complaint of ill-treatment is
whether the applicant can raise this complaint before domestic courts
in order to obtain direct and timely redress, and not merely an
indirect protection of the rights guaranteed in Article 3 of the
Convention. The remedy can be both preventive and compensatory in
instances where persons complain about their ill-treatment in
detention or the conditions thereof (see Melnik v. Ukraine,
no. 72286/01, § 68, 28 March 2006).
Turning
to the present case, the Court observes on the one hand that, in her
submissions to the District Court, the applicant's counsel often
complained about the inadequacy of the medical treatment which her
client had been receiving in detention (see above § 16).
On the other hand, the Government failed to specify any provision of
domestic law which would secure the applicant, with reasonable
prospects of success, redress for his Convention grievance.
In
Serbia, the enforcement of detention measures is regulated by the
Code of Criminal Procedure and the Enforcement of Criminal Sanctions
Act. Pursuant to section 245 of the Enforcement of Criminal Sanctions
Act in force at the material time, enforcement of a detention measure
is subject to supervision by the president of the District Court
which has jurisdiction for the territory where the main premises of
the detention facility are located. However, the above legislation
does not provide for a complaints procedure – before a court or
an administrative authority – which would satisfy the
effectiveness requirements in respect of complaints concerning
detention conditions or the medical treatment afforded to detainees.
In
the absence of any domestic case-law in support of their contention,
the Court must conclude that the Government have failed to show that
there existed an effective remedy accessible to the applicant in
respect of his Convention grievance under Article 3 of the
Convention. Consequently, the Government's objection must be
rejected.
The
Court further notes that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. It also
notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
1. The Government's submissions
The
Government submitted that during his detention the applicant had been
examined 270 times in the Novi Sad District Prison as well as by
specialists. Further, he had been hospitalised in the Belgrade Prison
Hospital on eight occasions. In addition, ever since January 2006 the
applicant had had regular check-ups by his private doctor and was at
all times allowed to receive the treatment prescribed by him. In this
connection, the Government pointed out the importance for detainees
of being able to undergo medical checks by doctors from outside the
prison regime, which in the applicant's case had been fully ensured.
The
Government acknowledged that the applicant had been in good health
when taken into custody and that his health had deteriorated during
his detention. Most of the time, he had been suffering from
depression and anxiety, partly because of his previous history of
illness and in part related to his mental suffering caused by the
detention itself. For his psychological problems, the applicant was,
however, regularly treated by three psychiatrists.
The
applicant was diagnosed with Hepatitis C on 6 December 2006 and the
Government did not dispute that he had contracted the virus in
detention. However, in their view, he had been afforded adequate
medical treatment in that he had immediately been examined by an
infectious diseases specialist and sent to the Novi Sad Clinical
Centre for testing. As regards the medical care afforded to the
applicant in March 2007 in the Belgrade Prison Hospital, the
Government submitted that the applicant had not only begun a hunger
strike, which had caused additional deterioration in his condition,
but had also refused to be examined by the hospital staff, claiming
that he had contracted that infection during his last stay there. The
latter information, in the Government's view, could not be
established beyond reasonable doubt.
Finally,
the Government recalled the findings of the Committee for the
Prevention of Torture during their visit to Serbia in 2004, when that
body had found no specific problem with Hepatitis C infections in
Serbian prisons and had observed that “the prison hospital
staff seemed dedicated to providing best possible care to the
patients”.
2. The applicant's arguments
The
applicant maintained that the treatment for his Hepatitis C infection
had been inadequate. It had taken several months before he was
examined for the first time by a specialist and his anti-viral
treatment had not even begun prior to his release from detention
seven months after the diagnosis. Moreover, during his hunger strike
he had not been afforded the necessary vitamins, medication or tea.
As
regards treatment in the Belgrade Prison Hospital, the applicant
claimed that one of the doctors there had erroneously diagnosed him
as a drug abuser – something which had never been diagnosed
during his previous stays in that hospital. Also he claimed to have
contracted the Hepatitis infection during his last stay at that
hospital, which is why he refused any further blood tests.
3. Relevant principles
The Court reiterates that Article 3 of the Convention
enshrines one of the most fundamental values of a democratic society.
It prohibits in absolute terms torture or inhuman or degrading
treatment or punishment, irrespective of the circumstances and the
victim's behaviour (see Labita v. Italy, 6 April 2000, §
119, Reports 2000-IV). Such ill-treatment must attain a
minimum level of severity if it is to fall within the scope of
Article 3 of the Convention. The assessment of this minimum level is
relative; it depends on all the circumstances of the case, such as
the duration of the treatment, its physical and mental effects and,
in some cases, the sex, age and state of health of the victim (see,
among other authorities, Ireland v. the United Kingdom,
18 January 1978, § 162, Series A no. 25). Although the
purpose of such treatment is a factor to be taken into account, in
particular the question of whether it was intended to humiliate or
debase the victim, the absence of any such intention does not
inevitably lead to a finding that there has been no violation of
Article 3 (see Peers v. Greece, no. 28524/95, § 74,
ECHR 2001-III; Valašinas v. Lithuania, no. 44558/98, §
101, ECHR 2001-VIII; Cenbauer v. Croatia, no. 73786/01, §
43, ECHR 2006 III).
The
Court has consistently stressed that the suffering involved must in
any event exceed that inevitably connected with a legitimate
deprivation of liberty. Nevertheless, in the light of Article 3 of
the Convention, the State must ensure that a person is detained under
conditions which are compatible with respect for human dignity, that
the manner and method of the execution of the measure do not subject
the individual to distress or hardship exceeding the unavoidable
level of suffering inherent in detention, and that, given the
practical demands of imprisonment, the person's health and well-being
are adequately secured (see Kudła v. Poland [GC], no.
30210/96, §§ 92-94, ECHR 2000-XI), with the provision of
the requisite medical assistance and treatment (see, mutatis
mutandis, Aerts v. Belgium, 30 July 1998, §§
64 et seq., Reports 1998-V).
In exceptional cases, where the state of a detainee's
health is wholly incompatible with detention, Article 3 may require
his or her release under certain conditions (see Papon v. France
(no. 1) (dec.), no. 64666/01, ECHR 2001-VI, and Priebke
v. Italy (dec.), no. 48799/99, 5 April 2001). However,
Article 3 cannot be construed as laying down a general obligation to
release detainees on health grounds. It rather imposes an obligation
on the State to protect the physical well-being of persons deprived
of their liberty. The Court accepts that the medical assistance
available in prison hospitals may not always be at the same level as
that offered by the best medical institutions for the general public.
Nevertheless, as said above, the State must ensure that the health
and well-being of detainees are adequately secured (see Kudła,
cited above, § 94, ECHR 2000-XI; see also Hurtado
v. Switzerland, 28 January 1994, Series A no. 280-A, opinion
of the Commission, pp. 15-16, § 79, and Kalashnikov v.
Russia, no. 47095/99, §§ 95 and 100, ECHR
2002-VI).
4. The Court's assessment
In
order to establish whether the applicant received the requisite
medical assistance while in detention, it is crucial to determine
whether the State authorities provided him with sufficient medical
supervision for a timely diagnosis and treatment of his illnesses
(see Popov v. Russia, no. 26853/04, § 211, 13
July 2006, and Mechenkov v. Russia, no. 35421/05, §
102, 7 February 2008).
As
regards the diagnosis of his Hepatitis C, the Court sees no evidence
to indicate that the authorities had failed to ensure prompt
discovery of the infection. Moreover, as is apparent from the case
file, the applicant discovered his infection through voluntary
confidential counselling, which had been offered to him in detention
as part of a public awareness-raising project concerning HIV and
Hepatitis infections (see paragraph 20 above). In the absence of
any obvious earlier symptoms or claim to the contrary, the State can
therefore not be reproached for failing to diagnose his illness in a
timelier manner.
The
applicant complained, however, that once his illness had been
diagnosed, he had not received prompt and adequate treatment. The
Court notes that chronic hepatitis is an illness that primarily
attacks the liver and with time can lead to liver cirrhosis, liver
cancer and death. In this connection the Court reiterates that it is
essential that an applicant undergo an adequate assessment of his or
her state of health in order to be provided with adequate treatment.
In the present case, such an assessment could be obtained from a
liver biopsy and relevant blood tests (see Testa v. Croatia,
no. 20877/04, § 52, 12 July 2007).
The
Court observes that the applicant was diagnosed some time in late
November or early December 2006, a fact which is in dispute between
the parties. Since in his examination of the applicant dated 1
December 2006, the applicant's private doctor made no mention of such
a diagnosis (see paragraph 21 above), the Court shall proceed on
the assumption that the applicant's infection was indeed diagnosed on
6 December 2006.
Following
that date, the applicant appears to have been examined for the first
time in February 2007 by both his private doctor and a specialist in
infectious diseases (see paragraph 23 above). By that time, he
had already started his hunger strike as a result of which his liver
enzymes rose and made him unfit for an immediate liver biopsy, which
was nevertheless essential in establishing the already existing
damage to his liver and the necessary course of treatment. He was
therefore transferred to the Belgrade Prison Hospital, where he
refused to be examined by the hospital staff because he claimed to
have contracted the Hepatitis infection during his last stay there.
At the applicant's own request, he was returned to the Novi Sad
Prison Hospital, where in April 2007 he underwent a liver biopsy,
further blood tests and specialist exams (see paragraph 25
above). At the time of his release from detention, on 7 June
2007, the results of further blood tests to enable the applicant to
start antiviral treatment had not yet been completed.
It
is true that during the seven months between his diagnosis and
release from detention the applicant had not started medication-based
treatment for his Hepatitis C infection. However, during that period
he had undergone a liver biopsy, numerous blood tests and
examinations by specialised doctors (compare and contrast with Testa,
cited above, § 52, and Poghosyan v. Georgia, no.
9870/07, § 57, 24 February 2009). Nevertheless, the Court finds
it regrettable that two months elapsed before the
applicant's first examination by an infectious diseases
specialist on 13 February 2007, despite the fact that during
that time he appears to have been under the supervision of
his private doctor.
However,
the Court would note that, by going on a hunger strike and refusing
to be examined in hospital, the applicant himself substantially
delayed the identification of the damage to his liver which he had
already sustained. In doing so, he showed little or no concern for
his state of health and can therefore hardly hold the authorities
responsible for the aggravation of his condition during that period.
The
Court is aware that Hepatitis C is a serious and, if left untreated,
possibly fatal disease. However, it considers that in the present
case the authorities showed a sufficient degree of diligence,
providing the applicant with prompt and uninterrupted medical care as
well as the possibility of identifying the extent to which the
disease had already progressed.
In
the light of the foregoing, it cannot be said that the authorities
provided the applicant with inadequate or insufficient medical care.
Accordingly, the Court concludes that there has been no violation of
Article 3 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF
THE CONVENTION
The
applicant further complained that the length of his pre-trial
detention had been excessive, in violation of Article 5 § 3
of the Convention, which, in so far as relevant, reads as follows:
“Everyone arrested or detained in accordance with
the provisions of paragraph 1 (c) of this Article shall be
... entitled to trial within a reasonable time or to release pending
trial. Release may be conditioned by guarantees to appear for trial.”
The
Government contested that argument.
A. Admissibility
The
Court considers that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 of the Convention. No other
ground for declaring it inadmissible has been established.
B. Merits
1. Period to be taken into consideration
The
Court reiterates that, in determining the length of detention pending
trial under Article 5 § 3 of the Convention, the period to be
taken into consideration begins on the day the accused is taken into
custody and ends on the day when the charge is determined, even if
only by a court of first instance (see Panchenko v. Russia,
no. 45100/98, § 91, 8 February 2005, and Labita cited
above, §§ 145 and 147, ).
Furthermore, in view of the essential link between
Article 5 § 3 of the Convention and paragraph 1 (c) of that
Article, a person convicted at first instance cannot be regarded as
being detained “for the purpose of bringing him before the
competent legal authority on reasonable suspicion of having committed
an offence”, as specified in the latter provision, but is in
the position provided for by Article 5 § 1 (a), which authorises
deprivation of liberty “after conviction by a competent court”
(see Panchenko, cited above, § 93, and Kudła
v. Poland [GC], no. 30210/96, § 104, ECHR
2000-XI). However, when assessing the
reasonableness of the length of the applicant's pre-trial detention,
the Court should make a global evaluation of the accumulated periods
of detention under Article 5 § 3 of the Convention (see
Solmaz v.
Turkey,
no. 27561/02, §§ 36-37, ECHR 2007-... (extracts)).
67. Accordingly,
in the present case the period to be taken into consideration
consisted of three separate terms: (1) from 6 February 2004 when the
applicant was taken into custody until his conviction on 9 November
2004; (2) from 15 June 2005 when the applicant's conviction was
quashed on appeal until his subsequent conviction on 18 May 2006; and
(3) from 6 December 2006 when the second conviction was quashed
on appeal until his release on 7 June 2007.
68. Making
an overall evaluation of the accumulated periods under Article 5 §
3 of the Convention, the Court concludes that the period to be taken
into consideration in the instant case amounts
to approximately two years and two months.
2. The parties' submissions
(a) The Government
The
Government stressed that in 2003 the applicant had not been available
to the police authorities, which was why the competent court had
lawfully ordered that he be remanded in custody. His detention was
thereafter regularly extended because of the risk of flight, which
could not be excluded given the high maximum sentence for the crime
of which he had been accused as well as his behaviour prior to his
deprivation of liberty on 6 February 2004.
The
Government further submitted that the domestic courts had thoroughly
examined the applicant's requests for release on bail. However, those
requests were rejected because the proposed amounts had been
insufficient to guarantee the applicant's attendance at the hearings,
in particular bearing in mind that he had unlawfully acquired around
ten times more than the amount offered.
The
authorities had also carefully examined the applicant's request to be
released from detention on account of inadequate medical treatment,
and concluded that there had been insufficient evidence to suggest
that the applicant's medical condition might justify his release.
Lastly, in its final judgment of 7 June 2007 the District Court
decided to release the applicant, under certain conditions, primarily
on account of his state of health.
(b) The applicant
The
applicant maintained that the authorities had failed to prove an
intention to abscond, thus rendering his detention devoid of any
legal basis. Also, when extending his detention, the courts should
have taken into account his medical condition and other relevant
factors. His requests for bail were rejected without a valid reason,
at the same time breaching his right to the presumption of innocence.
3. The Court's assessment
(a) General principles
73. Under
the Court's case-law, the issue of whether a period of detention is
reasonable cannot be assessed in abstracto. Whether it is
reasonable for an accused to remain in detention must be assessed in
each case according to its special features. Continued detention can
be justified 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
(see, among other authorities, McKay v. the United Kingdom [GC],
no. 543/03, § 42, ECHR 2006 X, and Kudła, cited
above, § 110).
The Court further observes that it falls in the first
place to the national judicial authorities to ensure that, in a given
case, the pre-trial detention of an accused person does not exceed a
reasonable length of time (see, among many other authorities, Vrenčev
v. Serbia, no. 2361/05, § 73, 23 September 2008). To this
end they must examine all the facts arguing for or against the
existence of a genuine requirement of public interest justifying,
with due regard to the principle of the presumption of innocence, a
departure from the rule of respect for individual liberty, and set
them out in their decisions dismissing the applications for release.
It is essentially on the basis of the reasons given in these
decisions and of the true facts mentioned by applicants in their
appeals that the Court is called upon to decide whether or not there
has been a violation of Article 5 § 3 of the
Convention (see Labita, cited above, § 152).
The
persistence of a 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. In such cases the Court must establish
whether the other grounds given by the judicial authorities continue
to justify the deprivation of liberty. Where such grounds are
“relevant” and “sufficient”, the Court must
also ascertain whether the competent national authorities displayed
“special diligence” in the conduct of the proceedings
(see Labita, cited above, § 153). The burden of
proof in these matters should not be reversed by making it incumbent
on the detained person to demonstrate the existence of reasons
warranting release (see Ilijkov v. Bulgaria, no. 33977/96,
§ 85, 26 July 2001).
(b) Application of the above principles to the
present case
As
noted above, the applicant was held in pre-trial detention for two
years and two months, a period which may raise an issue under the
Convention (see, for example, Dolasiński v. Poland, no.
6334/02, § 35, 19 December 2006; Bárkányi
v. Hungary, no. 37214/05, § 27, 30 June 2009; Doronin v.
Ukraine, no. 16505/02, § 61, 19 February 2009).
His
detention was regularly extended by the domestic authorities.
However, each periodic decision
contained the same reason – the risk of absconding –
owing to the fact that the applicant had been unavailable to the
authorities in 2003 and that they had had to issue an
international arrest warrant. The
applicant contested these facts, claiming that he had provided the
authorities with his temporary address and that, once he had found
out about the arrest warrant, he had turned himself in at the local
police station.
78. Be
that as it may, the Court considers that the
possibility of absconding may have been an acceptable justification
for the initial placement of the applicant in custody. However, the
need to continue the deprivation of liberty cannot be assessed from a
purely abstract point of view. With the passage of time the
authorities must examine this issue with reference to a number of
other relevant factors which may either confirm the existence of a
danger of absconding or make it appear so slight that it cannot
justify detention pending trial (see, among other authorities,
Letellier v. France, 26 June 1991, § 43,
Series A no. 207, and Panchenko v. Russia, cited above,
§ 106).
79. In
the applicant's case, however, with the passing of time
the courts' reasoning did not evolve to reflect the developing
situation and they failed to verify whether this ground remained
valid at the advanced stage of the proceedings (see Bykov v.
Russia [GC], no. 4378/02, § 64, ECHR 2009 ...).
Instead, the authorities used
standardised formulas, consistently referring to the initial
difficulties in determining the applicant's whereabouts.
80. Furthermore,
when prolonging the applicant's detention, the authorities failed to
consider alternative means of ensuring his presence at the trial,
such as, for example, the seizure of his travel documents. Moreover,
his applications for release were rejected even after he had been
detained for a period equivalent to three-quarters of the prison
sentence imposed on him by both – ultimately quashed –
judgments and despite his aggravated health condition.
For
the foregoing reasons, the Court considers that the authorities
extended the applicant's detention on grounds which cannot be
regarded as “sufficient”, thereby failing to justify the
applicant's continued deprivation of liberty for a period of over two
years. It is therefore not necessary to examine whether the
proceedings against him were conducted with due diligence.
82. There
has accordingly been a breach of Article 5 § 3 of the
Convention.
ALLEGED VIOLATION OF ARTICLE 6 § 1 OF
THE CONVENTION
The
applicant lastly complained about the length of the criminal
proceedings against him. He relied on Article 6 § 1 of
the Convention, which, in so far as relevant, provides as follow:
“In the determination of ... any criminal charge
against him, everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal ...”
The
period to be taken into consideration began on 3 March 2004, when the
Convention entered into force in respect of Serbia, and ended on
7 June 2007. It thus lasted approximately three years and three
months.
During
that time the case was examined by two levels of jurisdiction,
including a remittal. Since it involved several accused persons and a
series of financial offences, it was of a certain legal and factual
complexity. Moreover, an examination of the case file does not
disclose any lack of diligence on the part of the courts.
Consequently, bearing in mind its case-law on the matter, the Court
does not consider that the overall length of the proceedings in the
present case exceeded a “reasonable time”.
It
follows that this complaint is manifestly ill-founded and must be
rejected in accordance with Article 35 §§ 3 and 4 of the
Convention.
APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
The
applicant claimed 42,272.30 euros (EUR) in respect of pecuniary
damage and EUR 116,575.80 in respect of non-pecuniary damage.
The
Government contested those claims.
The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim.
However, it considers that the applicant has suffered non-pecuniary
damage which cannot be sufficiently compensated by a mere finding of
a violation of the Convention. Having regard to the violations found
in the present case and making its assessment on an equitable basis,
the Court therefore awards the applicant EUR 1,500 under this head.
B. Costs and expenses
The
applicant also claimed EUR 26,155.98 for the costs and expenses
incurred before the domestic court and before this Court, in respect
of which claim the applicant submitted invoices from his lawyer.
The
Government contested those claims.
According
to the Court's case-law, an applicant is entitled to the
reimbursement of costs and expenses only in so far as it has been
shown that these have been actually and necessarily incurred and were
reasonable as to quantum (see, for example, Iatridis v. Greece
(just satisfaction) [GC], no. 31107/96, § 54, ECHR
2000-XI).
In
the present case, regard being had to the documents in its possession
and to the above criteria, the Court considers it reasonable to award
the sum of EUR 1,500, plus any tax that may be chargeable on that
amount.
C. Default interest
The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Declares the complaints concerning inadequacy of
medical treatment and the length of pre-trial detention admissible,
and the remainder of the application inadmissible;
Holds that there has been no violation of
Article 3 of the Convention;
Holds that there has been a violation of Article
5 § 3 of the Convention;
Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final, in accordance with
Article 44 § 2 of the Convention, the following
sums, to be converted into the national currency of the respondent
State at the rate applicable on the date of settlement:
(i)
EUR 1,500 (one thousand five hundred euros) in respect of
non-pecuniary damage, plus any tax that may be chargeable,
(ii)
EUR 1,500 (one thousand five hundred euros) in respect of costs and
expenses, plus any tax that may be chargeable to the applicant;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and notified in writing on 23 February 2010,
pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Sally Dollé Françoise
Tulkens
Registrar President
