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KARNEJEVS v. LATVIA - 14749/03 [2011] ECHR 1077 (5 July 2011)
URL: http://www.bailii.org/eu/cases/ECHR/2011/1077.html
Cite as:
[2011] ECHR 1077
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THIRD
SECTION
CASE OF KARŅEJEVS v. LATVIA
(Application
no. 14749/03)
JUDGMENT
STRASBOURG
5 July 2011
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 Karņejevs v.
Latvia,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep
Casadevall,
President,
Corneliu
Bîrsan,
Alvina
Gyulumyan,
Ineta
Ziemele,
Luis
López Guerra,
Mihai
Poalelungi,
Kristina
Pardalos, judges,
and Santiago Quesada,
Section Registrar,
Having
deliberated in private on 14 June 2011,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
The
case originated in an application (no. 14749/03) against the Republic
of Latvia lodged with the Court under Article 34 of the Convention
for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a permanently resident non-citizen of Latvia,
Mr Valentīns Karņejevs (“the
applicant”), on 24 April 2003.
The
Latvian Government (“the Government”) were represented by
their Agent, Mrs I. Reine.
On
21 September 2009 the President of the Third Section decided to give
notice of the application to the Government. It was also decided to
rule on the admissibility and merits of the application at the same
time.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
The
applicant was born in 1978 and is currently serving a prison sentence
in Jelgava.
A. The applicant’s arrest and pre-trial detention
1. The applicant’s initial arrest
On
4 October 1999 two bodies (male and female) were found in a lake in
Garkalne parish, near Rīga.
On
8 October 1999 the applicant was arrested on suspicion of murder.
Several other persons, namely, V.U., A.V. and A.C. (“the
co-accused”), were arrested in connection with the same
criminal proceedings. They were released on 11 October 1999 on an
undertaking not to change their places
of residence.
On
9 October 1999 the applicant was questioned by the police and he
provided his version of the events.
On
11 October 1999 a judge of the Rīga District Court (Rīgas
rajona tiesa) authorised the
applicant’s detention for two months.
On
9 November 1999 the applicant was repeatedly questioned and
maintained his version of the events. In addition, he confessed to
having murdered the male victim but not the female.
2. The applicant’s detention between 6 December
1999 and 24 May 2000 (the preliminary investigation stage)
On
6 December 1999 the same judge extended the applicant’s
detention until 31 January 2000.
On
27 January and 22 March 2000 another judge of the Rīga Regional
Court extended the applicant’s
detention until 31 March and 31 May 2000 respectively.
On
27 April 2000 the preliminary investigation was completed and the
applicant started to acquaint himself with the case materials. He
finished on 17 May 2000.
On
18 May 2000 the final charge was brought against the applicant and
the co-accused and the case was sent to the Rīga Regional Court,
where it was received the next day.
3. The applicant’s detention between 24 May 2000
and 15 September 2003 (the trial stage)
(a) The detention between 24 May 2000 and
1 November 2002
On
24 May 2000 the applicant and the co-accused persons were committed
for trial and the first hearing was scheduled for November 2001. The
preventive measures – the applicant’s detention and the
co-accused’s undertaking not to change their places of
residence – remained unchanged, as the judge considered them to
have been duly applied in view of the severity of the crimes and the
personalities of the accused. The applicant was not brought
before the court.
During
this period the order for applicant’s detention was not
reviewed.
(b) Detention between 1 November 2002 and
15 September 2003
(i) On the basis of the court order of 1
November 2002
In view of the forthcoming
amendments to the Code of Criminal Procedure to the effect that
detention beyond one year and six months following committal for
trial was not allowed save for in exceptional circumstances (see
Svipsta v. Latvia,
no. 66820/01, § 63, ECHR 2006 III (extracts)),
the Rīga Regional Court forwarded the case to the Senate of the
Supreme Court to decide on the issue of the applicant’s further
detention.
On 1 November 2002 in a
preparatory meeting the Senate extended the applicant’s
detention until 30 April 2003 on the ground that he
was accused of having committed an especially serious crime with
violence and in order to ensure that the proceedings would not be
hindered. The applicant was not brought before the court.
In the meantime, on 18 October
2002, the applicant applied to the Rīga Regional Court with a
view to being released given the fact that he had already been
detained for more than two years and four months (following his
committal for trial) and the trial date had not yet been scheduled.
He asked for the preventive measure imposed on him to be changed from
detention either to an undertaking not to change his place of
residence or to police supervision.
On 6 November 2002 the judge of
the Rīga Regional Court replied to the applicant in a letter
that there were no grounds for his release. The judge merely referred
to the amended section 77, paragraph 7 of the Code of Criminal
Procedure and to the fact that on 1 November 2002 the Senate of the
Supreme Court had extended his detention until 30 April 2003. No
other reasons were given.
(ii) On the basis of the court order of 13
March 2003
On 13 March 2003 the Senate,
following an application lodged by the Rīga Regional Court,
extended the applicant’s detention until 15 November 2003.
In its relevant part, the decision reads:
“The criminal case was received at the Rīga
Regional Court on 19 May 2000 and [the applicant] was committed for
trial on 24 May 2000; the preventive measure – detention –
remained unchanged. With the decision of 1 November 2002 taken
by the Supreme Court in its preparatory meeting [the applicant’s]
detention was extended until 30 April 2003. The judge of the Rīga
Regional Court has submitted an application, which shows that the
first-instance court will not be able to examine the case by that
date because [the applicant] was ordered to undergo a forensic
psychiatric and psychological examination. The judge is asking for an
extension of his detention until 15 November 2003.
Having examined the case materials and the judge’s
application, the Criminal Department of the Senate confirms that,
exceptionally, it is possible to extend [the applicant’s]
detention. [The applicant] is accused of having committed an
especially serious crime with violence. There are no guarantees that
the applicant, if released, will not evade the trial or continue
illegal activities. Therefore, on the above-mentioned grounds and in
accordance with section 77, paragraph 7 of the Code of Criminal
Procedure, the Criminal Department of the Senate decides: to
extend the applicant’s detention until 15 November 2003. No
appeal can be lodged against this decision.”
On 14 March 2003 the Criminal
Department of the Senate of the Supreme Court informed the applicant
that his detention had been extended until 15 November 2003 and that
no appeal lay against that decision.
In reply to a letter from the
applicant with unspecified contents, on 30 July 2003 the judge
informed that he had replied on 6 November 2002 to the applicant’s
request for release.
In reply to several letters from
the applicant with unspecified contents, on 19 August 2003 another
judge of the Rīga Regional Court informed the applicant that he
could not receive copies of his letters to that court under the Code
of Criminal Procedure. At the same time, she sent the applicant a
copy of her colleague’s letter of 6 November 2002 (see
paragraph 19 above).
On
15 September 2003 the Rīga Regional Court, acting as a court of
first instance, convicted the applicant (see paragraph 30 below).
4. New charge against the applicant
In
the meantime, on 25 May 2000 the applicant confessed that he had
stolen a car in January or February 1999. Another set of criminal
proceedings against the applicant were opened in that connection.
On
10 November 2000 the preliminary investigation was completed and on
25 November 2000 the final charge was brought against the applicant
in that regard. On 30 November 2000 the case was sent to the Rīga
Regional Court for adjudication.
On
4 December 2000 the applicant was committed for trial and the first
hearing was scheduled for November 2001. No preventive measure was
ordered for the applicant as he was already detained for the purposes
of the criminal proceedings concerning the murder charge. The judge
noted in the decision that the criminal proceedings concerning the
theft charge would be joined to the first proceedings at a later
stage.
The
criminal proceedings concerning the murder and theft charges were
joined on 24 February 2003.
B. The applicant’s trial
On
21 and 24 February 2003 the Rīga Regional Court held the first
hearings in the applicant’s criminal case. On the latter date
the criminal proceedings concerning the applicant’s murder and
theft charges were joined. On the same date the court ordered the
applicant to undergo a forensic psychiatric and psychological
examination.
On 15 September 2003 the Rīga
Regional Court convicted the applicant of aggravated murder on two
counts and aggravated theft on two counts and sentenced him to life
imprisonment. One of the co-accused, V.U., was convicted of
aggravated murder on one count.
On
13 February 2004, on an appeal by the applicant, the Criminal Chamber
of the Supreme Court upheld and re-qualified his conviction to one
count of aggravated (double) murder and upheld the conviction of
aggravated theft on two counts. The applicant’s sentence was
reduced to twenty-one years of imprisonment.
On
25 October 2004 the applicant’s appeal on points of law was
rejected in a preparatory meeting of the Criminal Department of the
Senate of the Supreme Court.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A
full description of the law and practice at the relevant time may be
found in Svipsta (cited above, §§ 53-66).
In case no. 2003-03-01 the Constitutional Court
examined individual constitutional complaints lodged by several
individuals, who complained about the impossibility to lodge an
appeal against a detention order issued by the Senate of the Supreme
Court under section 77, paragraph 7 of the Code of Criminal
Procedure. In its judgment of 27 June 2003 the Constitutional Court
declared that provision unconstitutional on the basis of incompliance
with the right to a fair trial and declared it null and void as of 1
October 2003. The Constitutional Court ruled that the impossibility
to lodge an appeal against the detention order did not infringe the
right to a fair trial; however the right to a fair trial had not been
respected in the proceedings before the Senate of the Supreme Court
because it had not ensured adversarial proceedings and the right to
be heard.
As
of 1 October 2003 the relevant provision of the Code of Criminal
Procedure was amended to ensure the right to be heard. From then on
detention orders under section 77, paragraph 7 of the Code of
Criminal Procedure were issued by the appellate courts.
THE LAW
I. COMPLAINTS COVERED BY THE UNILATERAL DECLARATION
The
applicant complained about the length of his pre-trial detention and
of the length of the criminal proceedings against him. He relied on
Articles 5 § 3 and 6 § 1 of the Convention
which, in so far as relevant, provides as follows:
Article 5 (right to liberty and security)
“3. 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.”
Article 6 (right to a fair hearing)
“In the determination of ... any criminal charge
against him, everyone is entitled to a ... hearing within a
reasonable time by [a] ... tribunal ...”
By
letter dated 12 February 2010 the Government informed the Court that
they proposed to make a unilateral declaration with a view to
resolving the issue raised by this part of the application. They
further requested the Court to strike out the application in
accordance with Article 37 of the Convention.
The
declaration provided as follows:
“The Government of the Republic of Latvia
represented by their Agent Inga Reine (hereinafter – the
Government), admit that the length of detention and total length of
criminal proceedings initiated against Valentīns Karņejevs
(hereinafter – the applicant) did not meet the standards
enshrined in Article 5, paragraph 3 and Article 6, paragraph 1, of
the Convention for the Protection of Human Rights and Fundamental
Freedoms (hereinafter – the Convention). Being aware of that,
the Government undertake to adopt all necessary measures in order to
avoid similar infringements in future.
The Government declare that they offer to pay to the
applicant the compensation in the amount of 2,900 euros (LVL 2,039),
this amount being the global sum and covering any pecuniary and
non-pecuniary damage together with any costs and expenses incurred,
free of any taxes that may be applicable, with a view to terminating
the proceedings on Article 5, paragraph 3, and Article 6, paragraph
1, of the Convention pending before the European Court of Human
Rights (hereinafter – the Court) in the case of Karņejevs
v. Latvia (application no. 14749/03).
The Government undertake to pay the above compensation
within three months from the date of notification of the decision
(judgment) by the Court pursuant to Article 37 of the Convention. In
the event of failure to pay this sum within the said three-month
period, the Government undertake to pay simple interest on the
amount, as established in the decision (judgment) by the Court. The
above sum shall be transferred in Latvian lati to the bank account
indicated by the applicant.
This payment will constitute the final resolution of the
alleged complaints.”
In
a letter of 18 March 2010 the applicant expressed the view that the
Government’s declaration did not cover all his complaints and
that the compensation offered was unacceptably low.
The
Court reiterates that Article 37 of the Convention provides that it
may at any stage of the proceedings decide to strike an application
out of its list of cases where the circumstances lead to one of the
conclusions specified, under (a), (b) or (c) of paragraph 1 of that
Article. Article 37 § 1 (c) enables the
Court in particular to strike a case out of its list if:
“for any other reason established by the Court, it
is no longer justified to continue the examination of the
application”.
It
further reiterates that, in certain circumstances, it may strike out
an application under Article 37 § 1 (c) on the basis of a
unilateral declaration by a respondent Government even if the
applicant wishes the examination of the case to be continued.
To
this end, the Court will examine carefully the declaration in the
light of the principles emerging from its case-law (see, in
particular, Tahsin Acar v. Turkey (preliminary issue) [GC],
no. 26307/95, §§ 75-77, ECHR 2003 VI; Kapitonovs
v. Latvia (dec.), no. 16999/02, 24 June 2008; Ozoliņš
v. Latvia (dec.), no.12037/03, 2 September 2008; and Borisovs
v. Latvia (dec.), no. 6904/02, 2 September 2008).
The
Court has established in a number of cases, including those brought
against Latvia, its practice concerning the right of a detained
person to be tried within a reasonable time (see Svipsta,
cited above, §§ 106-113; Estrikh v. Latvia,
no. 73819/01, §§113-127, 18 January 2007; and Moisejevs
v. Latvia, no. 64846/01, §§ 112-119, 15 June
2006) and concerning the right to a hearing within a reasonable time
(see Lavents v. Latvia, no. 58442/00, §§ 85-87,
99-104, 28 November 2002; Freimanis and Līdums
v. Latvia, nos. 73443/01 and 74860/01, §§ 106-109,
123-126, 9 February 2006; Kornakovs v. Latvia, no.
61005/00, §§ 113-116, 120-130, 15 June 2006;
Moisejevs, cited above, §§ 123-126, 132-142;
Estrikh, cited above, §§ 136-143; and Čistiakov
v. Latvia, no. 67275/01, §§ 74-81, 8 February
2007).
Having
regard to the nature of the admissions contained in the Government’s
declaration, as well as the amount of compensation proposed, the
Court considers that it is no longer justified to continue the
examination of this part of the application (Article 37 § 1(c)).
Moreover,
in the light of the above considerations, and in particular given the
clear and extensive case-law on the topic, the Court is satisfied
that respect for human rights as defined in the Convention and the
Protocols thereto does not require it to continue the examination of
this part of the application (Article 37 § 1 in fine).
In
view of the above, it is appropriate to strike the case out of the
list in so far as it relates to the complaints under Articles 5 §
3 and 6 § 1 of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE
CONVENTION
The
applicant complained about the lawfulness of his detention after May
2000, that is, after he was committed for trial on 24 May 2000. He
called into question the lawfulness of the detention orders issued by
the Rīga Regional Court on 24 May 2000 and those issued by the
Senate of the Supreme Court on 1 November 2002 and 13 March 2003.
The
Court will examine this complaint under Article 5 § 1 (c) of the
Convention (see, mutatis mutandis, Svipsta, cited
above, §§ 88-89, and Shannon v. Latvia,
no. 32214/03, §§ 42-50, 24 November 2009), which, in
its relevant part, reads as follows:
“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 ...”
Admissibility
The
Government pointed out that the detention orders had been issued by
the competent domestic courts – the Rīga Regional Court
and the Senate of the Supreme Court – and argued that no
question of lawfulness thus arose. They further argued, with
reference to the specified evidence in the criminal case file, that
there had been a reasonable suspicion against the applicant
throughout his pre-trial detention.
The
applicant disagreed and submitted that his pre-trial detention had
been unlawful since it had been unreasonable and not supported by
necessary and persuasive evidence.
The
Court refers to its previous case-law establishing the applicable
principles (see Svipsta, cited above, § 79).
The
Court observes at the outset that the applicant only complained about
the lawfulness of his detention for the period that followed his
committal for trial, that is, after 24 May 2000. He did not call into
question the lawfulness of his detention prior to that stage (see, by
contrast, Svipsta, cited above, §§ 69, 82-87;
Jurjevs v. Latvia, no. 70923/01, § 36, 43-46, 15 June
2006; and Shannon, cited above, §§ 36, 46-47).
The
Court considers that the applicant’s detention from
24 May 2000, when he was committed for trial by the Rīga
Regional Court, until 15 September 2003, when he was convicted
by that court, was based on detention orders issued by the competent
domestic courts in accordance with national law. The first detention
order in the period under consideration was issued by the Rīga
Regional Court on 24 May 2000 in accordance with the relevant
provisions of the Code of Criminal Procedure. Moreover, on the very
day when the legislative amendments limited the length of detention
pending trial to one year and six months at the trial stage, the
Senate of the Supreme Court issued an order authorising the
applicant’s further detention until 30 April 2003 under
the amended section 77, paragraph 7 of the Code of Criminal Procedure
(see paragraphs 16 to 17 above). A further order was issued by the
Senate authorising the applicant’s detention until 15 November
2003 (see paragraphs 20 to 21 above) under the same provision of the
Code of Criminal Procedure. Therefore, the applicant’s
detention during this period of over three years was “lawful”
and imposed “in accordance with a procedure prescribed by law”
within the meaning of Article 5 § 1 of the Convention
The
Court agrees with the Government that the reasonable suspicion
against the applicant was based on the evidence in the criminal case
file. It is further satisfied that the nature of the suspicion
against the applicant did not change during the period in question
(see Svipsta, cited above, § 88, and Shannon,
cited above, § 48).
Accordingly,
the Court finds that this complaint is manifestly ill-founded and it
must be rejected in accordance with Article 35 §§
3 and 4 of the Convention.
III. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE
CONVENTION
The
applicant also considered that Article 5 § 4 had been violated
in that he could not have his detention reviewed after he had been
committed for trial in May 2000. He also complained about the fact
that he could not appeal against the detention orders issued by the
Senate of the Supreme Court. Finally, relying on Article 13 of the
Convention, he considered to have had no effective remedy to have the
lawfulness of his detention reviewed.
The
Court will consider this complaint solely under Article 5 § 4 of
the Convention, the relevant part of which reads as follows:
“4. Everyone who is deprived of his
liberty by arrest or detention shall be entitled to take proceedings
by which the lawfulness of his detention shall be decided speedily by
a court and his release ordered if the detention is not lawful.”
A. Admissibility
The
Government argued that the applicant had not exhausted domestic
remedies as he had not requested the Rīga
Regional Court or the Senate of the Supreme Court to reassess
the lawfulness and reasonableness of his detention pursuant to
section 222.1
of the Code of Criminal Procedure. They considered that the
applicant’s letter of 18 October 2002 had not contained any
reasons for the judge to grant the applicant’s request. The
Government relied on the Court’s decision in the case of
Dobrovoļskis v. Latvia (no. 2233/03, 5 May
2009) and submitted that in legally and factually similar
circumstances the Court had declared the complaint inadmissible for
non-exhaustion of domestic remedies.
The
applicant disagreed and pointed out that he could not have lodged an
appeal against the orders issued by the Senate of the Supreme Court
on 1 November 2002 and 13 March 2003.
The
Court notes at the outset that the present case differs from the
aforementioned Dobrovoļskis case, where the applicant did
not approach the relevant court with any requests. Leaving aside the
question whether the remedy contained in section 222.1
of the Code of Criminal Procedure was available and effective for the
purposes of Article 35 § 1 of the Convention (see, for a case
where an argument concerning the effectiveness of section 222.1
as a
remedy
concerning an appeal has been rejected, Estrikh,
cited above, § 98), the Court observes that in the present case,
unlike in the Dobrovoļskis case, the applicant approached
the Rīga Regional Court. His request of 18 October 2002,
however succinct, contained his reasons: that the trial had been
unduly protracted and that he had been held in pre-trial detention
for already more that two years and four months since his committal
for trial (see paragraph 18 above). Moreover, the Court would add
that since the applicant’s arrest on 8 October 1999 more than
three years had already passed when the judge of the Rīga
Regional Court received the applicant’s letter, a fact which
the Government admit is in violation of Article 5 § 3 of the
Convention. Moreover, the applicant appears to have applied to that
court on several other occasions (see paragraphs 22 and 23 above).
Even though the Court has not been furnished with copies of those
requests, it can be inferred from the replies given by the judges of
the Rīga Regional Court that these letters contained, at least
in substance, similar requests to that of 18 October 2002.
In
such circumstances, the Court finds that the applicant did approach
the Rīga Regional Court with requests to review the lawfulness
of his detention and rejects the Government’s preliminary
objection of non-exhaustion of domestic remedies in that regard.
The
Court concludes therefore that this complaint is not manifestly
ill-founded within the meaning of Article 35 § 3 of the
Convention, nor inadmissible on any other grounds. It must therefore
be declared admissible.
B. Merits
The
Government did not submit any observations on the merits of this
complaint. Their position was that there had been no violation.
The
applicant reiterated his previous submissions.
The
Court refers to its previous case-law establishing the applicable
principles (Svipsta, cited above, § 129) and notes at the
outset that the applicant’s complaint in the present case
concerns only one particular aspect of the rights contained in
Article 5 § 4 of the Convention. The Court notes that the
applicant did not complain about the reasoning contained in the
detention orders either (see, by contrast, Svipsta, cited
above, §§ 120, 130-134, and Shannon, cited
above, §§ 51, 62-66) or about the speed of review (see, by
contrast, Shannon, cited above, §§ 51, 67-74). The
applicant’s complaint in the present case is limited to the
absence of an adequate remedy by which to obtain a review of the
lawfulness of his detention at the trial stage, that is, after he was
committed for trial on 24 May 2000 until his conviction by the
first-instance court on 15 September 2003 (see, for a similar
complaint, Svipsta, cited above, §§ 141-143).
Concerning
the period between 24 May 2000 and 1 November 2002, the Court
observes that on the former date the judge of the Rīga Regional
Court decided to commit the applicant for trial while keeping him in
detention. Under the Code of Criminal Procedure, as then in force,
there was no time-limit placed on detention pending trial and the
detention order, in principle, remained in force until judgment had
been given on the merits. The Court has already found that no remedy
was available under Latvian law whereby the lawfulness of detention
could be periodically reviewed at the trial stage before the
examination of the merits of the case had begun (Svipsta,
cited above, §§ 141-143). Moreover, when the judge replied
to the applicant’s request for release of 18 October 2002,
he explicitly referred to the applicable provisions of the domestic
law and noted that the Senate of the Supreme Court had extended his
detention until 30 April 2003 (see paragraph 19 above). The Court
considers that such an explanation confirms that no remedy existed in
Latvian law at that time for the applicant to contest the lawfulness
of his detention. The Court would further add that Article 5 § 4
of the Convention obliges the court to provide guarantees appropriate
to the kind of deprivation of liberty in question. In the case of a
person whose detention falls within the ambit of Article 5 § 1
(c), a hearing is required (see, among many other authorities,
Assenov and Others v. Bulgaria, 28 October 1998, § 162,
Reports of Judgments and Decisions 1998 VIII). It is
evident from the facts of the case that no such hearing had taken
place either before the Senate of the Supreme Court or before the
judge of the Rīga Regional
Court during the period under consideration. Therefore, the
Court considers that the applicant was not offered the procedural
safeguards contained in Article 5 § 4 of the
Convention.
As
for the period between 1 November 2002 and 15 September 2003,
the Court observes that the applicant’s detention was
authorised by the Senate of the Supreme Court. It stems from the
facts that also during that period the applicant’s requests for
release (see paragraphs 22 and 23 above) were rejected by the judge
of the Rīga Regional Court, which review does not meet the
requirements of Article 5 § 4 of the Convention (see the above
paragraph).
The
Court therefore considers that, after 24 May 2000, the applicant did
not have an adequate remedy by which to obtain a review of the
lawfulness of his detention pending the outcome of the judicial
proceedings, in breach of Article 5 § 4 of the Convention.
Finally,
the Court notes that in view of the Constitutional Court’s
ruling (see paragraph 34 above), the law and practice in Latvia was
changed and since 1 October 2003 proceedings concerning detention
orders issued under section 77, paragraph 7 of the Code of Criminal
Procedure had to be adversarial.
In
view of the above finding of a violation of Article 5 § 4 of the
Convention, the Court does not consider it necessary to examine
separately the applicant’s complaint as regards the inability
to lodge an appeal against the detention orders issued by the Senate
of the Supreme Court.
IV. 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.”
The
applicant did not submit a claim for just satisfaction. Accordingly,
the Court considers that there is no call to award him any sum on
that account.
FOR THESE REASONS, THE COURT UNANIMOUSLY
Takes note of the terms of the respondent
Government’s declaration and the modalities for ensuring
compliance with the undertakings referred to therein;
Decides to strike the application out of its
list of cases in so far as it relates to the complaints under
Articles 5 § 3 and 6 § 1 of the Convention, in accordance
with Article 37 § 1 (c) of the Convention;
Declares the complaint under Article 5 § 4
of the Convention admissible and the remainder of the application
inadmissible;
Holds that there has been a violation of Article
5 § 4 of the Convention.
Done in English, and notified in writing on 5 July 2011, pursuant to
Rule 77 §§ 2 and 3 of the Rules of Court.
Santiago Quesada Josep
Casadevall
Registrar President
