FIRST SECTION
CASE OF
DIMITRIOS DIMOPOULOS v. GREECE
(Application no.
49658/09)
JUDGMENT
STRASBOURG
9 October 2012
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 Dimitrios Dimopoulos v. Greece,
The European Court of Human Rights (First Section), sitting as
a Chamber composed of:
Nina Vajić,
President,
Peer Lorenzen,
Elisabeth Steiner,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Linos-Alexandre Sicilianos,
Erik Møse, judges,
and Søren Nielsen, Section Registrar,
September 2012,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no. 49658/09)
against the Hellenic Republic lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a Greek national, Mr Dimitrios Dimopoulos (“the applicant”), on
4 September 2009.
. The applicant
was represented by Mr V. Vasiliadis, a lawyer practising in Thessaloniki. The
Greek Government (“the Government”) were
represented by their Agent’s delegates, Mrs F.
Dedousi, Legal Adviser at the State Legal Council, and Mr D. Kalogiros, Legal
Representative at the State Legal Council.
The applicant alleged that his conditions of
detention amounted to inhuman and degrading treatment under Article 3. He also
complained that his application challenging his provisional detention before
the Indictment Division of the Thessaloniki
Criminal Court was not decided speedily and that his request to appear in
person before it was tacitly refused, in violation of Article 5 § 4.
On 19 November 2010 the application was
communicated to the Government. It was also decided to rule on the
admissibility and merits of the application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
A. The applicant’s placement in pre-trial detention
and recourses brought in this regard
The applicant was born in 1969 and lives in Thessaloniki.
On 16 January 2009 he was arrested by the Greek
police for drug trafficking and criminal charges were brought against him.
On 21 January 2009, with the concurring opinion
of the Prosecutor of the Criminal Court of Thessaloniki, the investigating
judge remanded him in custody with effect from 16 January 2009, the date of his
arrest (order no. 4/2009).
Subsequently, the applicant was transferred to
the premises of the Thessaloniki General Police Headquarters.
On 26 January 2009 he lodged an application with the Indictment Division of the Thessaloniki Criminal
Court, according to Article 285 of the Code of Criminal Procedure, challenging his
provisional detention. He also included in his application a request to appear
personally before the Indictment Division to support
his request for release.
On 14 May 2009 the Indictment
Division of the Thessaloniki Criminal Court - after hearing the
prosecutor - dismissed the application (order no. 506/2009). No reference
was made to the applicant’s request to appear in person before the Indictment Division. It was noted that the evidence
gathered during the investigation of the case confirmed that the applicant was selling
drugs on a commercial basis. Further it was considered that, taking into
account the circumstances of the case, the provisional detention of the
applicant was lawful, since it was likely that the applicant would commit more
crimes if released.
Subsequently, on 25 June 2009, by order no.
700/2009, the Indictment Division of the
Thessaloniki Criminal Court decided to extend the applicant’s detention until
16 January 2010. No information was provided as to whether the applicant is still
in detention.
B. The conditions of detention
Between 16 January and 22 April 2009 the
applicant was detained at the Thessaloniki General Police Headquarters.
He claims that the conditions of detention there
were deplorable. In particular, he notes the lack of sanitary products and
sleeping facilities. He submitted that the detention area was overcrowded, with
poor ventilation and insufficient natural light. In particular, the applicant
noted that there were ten inmates per cell, which was over two times its design
capacity. Some detainees were forced to sleep on the floor. There was no space
to walk around. The cells and sanitary facilities were dirty. The poor quality
of the food offered forced inmates to order food from outside. The prisoners
had no opportunity to see doctors, even though some were affected by infectious
diseases and others were drug users suffering from withdrawal.
In particular, as far as the lack of medical
care is concerned, the applicant stressed that he has been drug-addicted for
many years and he submitted a medical certificate to support his allegation. In
this connection, he claimed that he was deprived of sufficient pharmaceutical
treatment and regular supervision by a physician.
On 22 April 2009 the applicant was transferred
to Diavata Prison.
II. RELEVANT DOMESTIC LAW AND
PRACTICE AND COUNCIL OF EUROPE DOCUMENTS
A. Domestic legislation
Article
285 of the Code of Criminal Procedure,
which concerns the right to lodge an application challenging remand in
custody, reads as follows:
“1. An accused may lodge an objection to a remand order with
the indictment division of the criminal court. The application shall be made
within five days of the date of detention ... The application is transmitted to
the First Instance Prosecutor and is submitted without delay to the indictment
division, which decides definitively on the issue ...
4. The indictment division may overturn the remand order or
replace it with preventive measures ...”
. Further,
as far as the provisions relating to the procedure before indictment
divisions are concerned, in accordance with Article 306 of the Code of
Criminal Procedure, the deliberations of indictment divisions are not
public. Decisions are taken by a majority, after the prosecutor has been
heard and has left the room (Article 138).
Article
572 of the Code of Criminal Procedure, reads as follows:
“1. The First Instance Prosecutor of the place where the
sentence is served, shall exercise the powers provided by the Code [of Criminal
Procedure] regarding the treatment of prisoners, and shall monitor the
execution of sentences and the application of security measures in accordance
with this Code, the Criminal Code and other related laws.
2. To perform the above functions, the First Instance
Prosecutor visits the prison at least once a week. During these visits, meetings
are held with inmates who have previously requested them ...”
B. Relevant national and international documents
regarding conditions of detention in Greek police stations
1. The report of the Greek Ombudsman on 11 May 2007
entitled “Detention on police premises of prisoners convicted of criminal offences”
From 15 to 16 March 2007 the Ombudsman visited
the Thessaloniki General Police Headquarters in order to examine, inter alia,
the prisoners’ conditions of detention.
The Ombudsman noted that there had been a significant
increase in the number of inmates detained on police premises of the Thessaloniki
General Police Headquarters since 2005. In particular, he emphasised that there
was a large number of aliens for whom deportation proceedings were pending. He
added that they were detained in police stations for periods varying between
ten days and three months. The Ombudsman observed that the infrastructure of
the Thessaloniki Police Headquarters and of police stations in general was
quite unlike that of detention centres, and therefore they were only suitable
for detentions of very short duration. The Ombudsman made reference to a police
document (no. 1026/5/22/1-θ/30.3.2007) which acknowledges a lack of
sufficient space in police stations, total absence of space to walk around,
hygiene problems, deficiencies with respect to medical care, and security
problems. In addition, the Ombudsman notes the lack of infrastructure for
feeding the prisoners. It was observed that, instead of providing food to
inmates, each one received from the authorities the amount of 5.87 euros (EUR) per
day. For the Ombudsman, this amount would not always be sufficient, since this depended
on the pricing of the dishes offered by the restaurant, which was the sole meal
provider for the police station.
The Ombudsman concluded that detention in police
stations for long periods constituted a violation of Article 3 of the
Convention. He recommended that the competent authorities ensure as soon as
possible for each person detained for more than twenty-four hours the opportunity
to exercise in the open air and receive proper meals.
2. The Greek Ombudsman’s letter of 13 May 2009 to the
Ministry of Justice, entitled “Detention of prisoners convicted of criminal offences
on the premises of the police”
. The
Ombudsman reminded the Ministry about his report
dated 11 May 2007 (see paragraphs 19-21 above) and underlined again the
problem of long periods of detention in police stations. According to the
Ombudsman, this problem proved to be more important in northern Greece because of the refusal of the Thessaloniki judicial prison to accept a greater number of
inmates. The Ombudsman noted that the conditions of detention had not improved
in the two year period that had elapsed since May 2007. He noted that the
situation was critical for both detainees and police officers, as it was also
confirmed by a report of the Police Directorate of Imathia. The Ombudsman had already
received complaints on the subject from the Thessaloniki Bar Association and
the Greek League of Human Rights. At the same time, a group of detainees began
a hunger strike. In conclusion, the Ombudsman asked the Ministry to take all
necessary steps to tackle the issue in question.
3. The findings of the European
Committee for the Prevention of Torture and Inhuman and Degrading Treatment or
Punishment (“CPT”) following its visits to police stations and detention
centres for foreigners in 2008 (from 23 to 29 September 2008)
. The
CPT visited, among others, the Thessaloniki immigration detention premises. It
noted the lack of beds in the cells and that detainees were sleeping on dirty
mattresses on the floor. In addition, the report observed the absence of space
to walk and do physical exercise, and stressed that each inmate was entitled to
EUR 5.87 per day to order meals delivered to them from outside prison. On this
point, the CPT referred to the prisoners’ complaints alleging that with this
amount of money they could not buy more than two sandwiches per day. The CPT
recommended to the national authorities to ensure that everyone detained in places
for aliens awaiting deportation was served a
dish (preferably hot), at least once a day.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 3 OF THE
CONVENTION
The applicant complained about his conditions of
detention in so far as the premises of the Thessaloniki General Police Headquarters
are concerned. He relied on Article 3 of the Convention, which reads as
follows:
“No one shall be subjected to torture or to inhuman or
degrading treatment or punishment.”
A. Admissibility
1. The parties’ submissions
The Government submitted that the complaint
concerning conditions of detention should be dismissed, because the applicant
had failed to exhaust domestic remedies. They contended that, according to the law, the applicant
had had the opportunity to bring an application under Article 572 of the Code
of Criminal Procedure, in order to inform the prosecutor of the Thessaloniki Criminal
Court about the conditions of his detention. He could also lodge a complaint
concerning his conditions of detention with the chief of police.
The applicant pointed out that he had lodged an
application challenging his provisional detention and that, if his request had
been granted, he would have been released immediately. Further, relying on Zając
v. Poland (no. 19817/04, § 80, 29 July 2008), he observed that, in
cases where the national law provides for several parallel remedies in various
branches of law, Article 35 § 1 of the Convention does not require the person
concerned, necessarily to try all other means after an attempt to obtain
redress through one such remedy, and accordingly the Government’s objection
should be dismissed.
2. The Court’s assessment
The Court reiterates that the purpose of Article 35 § 1,
which sets out the rule on exhaustion of domestic remedies, is to afford the
Contracting States the opportunity to prevent or put right the violations
alleged against them before those allegations are submitted to the Court (see,
among other authorities, Selmouni v. France
[GC], no. 25803/94, § 74, ECHR 1999-V). However, the only remedies which
Article 35 of the Convention requires to be exhausted are those which relate
to the breaches alleged and at the same time are available and sufficient. The
existence of such remedies must be sufficiently certain not only in theory but
also in practice, failing which they will lack the requisite accessibility and
effectiveness. It is incumbent on the respondent State to demonstrate that
these requirements are satisfied (see, inter alia, Dalia
v. France, 19 February 1998, § 38, Reports of Judgments and Decisions
1998-I, and Mifsud v. France
(dec.) [GC], no. 57220/00, ECHR 2002-VIII).
The Court notes that the Government refers to
two remedies available to the applicant: the application before the First
Instance Prosecutor according to Article 572 of the Code of Criminal Procedure and
the complaint to the chief of police.
As regards the remedy provided by Article 572 of
the Code of Criminal Procedure, the Court notes that the applicant’s main
arguments are not related to the specific conditions of detention applied to him
personally, but they mostly referred to the general conditions of detention in the
Thessaloniki General Police Headquarters as far and to the extent that they
affected him. In view of the above, no measures could have been taken by the
Prosecutor (see Nisiotis v. Greece, no. 34704/08, § 29, 10 February 2011; Samaras
and Others v. Greece, no. 11463/09, § 48, 28 February 2012).
With regard to the second remedy, the Court reiterates
that it has repeatedly found that referral to the chief of police cannot be
considered an effective remedy within the meaning of Article 35 § 1 of the
Convention (see A.A. v. Greece, no. 12186/08, §§ 45-46,
22 July 2010; Rahimi v. Greece, no. 8687/08, § 77, 5 April 2011; R.U.
v. Greece, no. 2237/08, § 59, 7 June 2011; and Efraimidi
v. Greece, no. 33225/08, § 28, 21 June 2011). In the
aforementioned cases, the Court emphasised the lack of clarity regarding
procedures which may be brought before the chief of police and the type of
complaints that may be submitted. Doubts were also expressed about the
impartiality and objectivity of the latter, which could have an impact on the
effectiveness of the remedy.
31. In the light of the
foregoing, the Court considers that the Government’s objection on the ground of
non-exhaustion cannot be accepted.
. The
Court notes that the present complaint is not manifestly ill-founded within the
meaning of Article 35 § 3 (a) of the Convention, or inadmissible on any other
grounds. It must therefore be declared admissible.
B. Merits
1. The parties’ submissions
The Government submitted that the applicant’s allegations were
vague and generic and that he had not proved that the
conditions of detention complained of reached the
threshold of severity which would bring the
matter within the scope of Article 3.
In particular, regarding the applicant’s
allegations of insufficient medical consultation, the Government stressed that
he had twice been taken to hospital for treatment. Further, concerning the
catering at the Police Headquarters, they noted that from 23 April 2009,
following an order of the Head of the Directorate of Internal Affairs of Thessaloniki
police, all inmates could have lunch and dinner in the canteen of the police station,
where police officers and civilian staff took their meals.
The applicant
contended that the deplorable conditions of detention had been demonstrated by
the relevant report and the letter from the Greek Ombudsman (see
paragraphs 19-22 above) and the findings of the CPT (see paragraph 23 above).
He referred in particular to the lack of medical care. He stressed that he had
been a drug addict for many years and submitted a medical certificate to
support this. In this connection, he claimed that he needed to be placed in a
rehabilitation facility where he could be monitored by appropriate medical
staff. He further stressed that a total of two check-ups at a local hospital
were not adequate. He was deprived of sufficient pharmaceutical treatment and
supervision by a physician.
2. The Court’s assessment
The Court reiterates that, according to its case-law,
ill-treatment must attain a minimum level of severity if it is to fall within
the scope of Article 3. The assessment
of this minimum level of severity 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, Van der Ven v. the Netherlands,
no. 50901/99, § 47, ECHR 2003-II).
Furthermore, in considering whether a treatment is
“degrading” within the meaning of Article 3,
the Court will have regard to whether its object is to humiliate and debase the
person concerned and whether, as far as the consequences are concerned, it
adversely affected him or her personally in a manner incompatible with Article 3 (see Raninen v. Finland, 16 December 1997,
§ 55, Reports 1997-VIII).
. Measures
depriving a person of his liberty inevitably involve an element of suffering
and humiliation. Although this is an unavoidable state of affairs which in
itself does not infringe Article 3, that provision nevertheless requires the
State to ensure that all prisoners are detained in conditions which are
compatible with respect for their human dignity, that the manner of their
detention does not subject them to distress or hardship of an intensity
exceeding the unavoidable level of suffering inherent in such a measure, and
that, given the practical demands of imprisonment, their health and well-being
are adequately secured (see Kudła v. Poland [GC], no. 30210/96, §§ 92-94,
ECHR 2000-XI, and Ramirez Sanchez v. France [GC], no. 59450/00, §
119, ECHR 2006-IX); furthermore, the measures taken in connection with
the detention must be necessary to attain the legitimate aim pursued (see Ramirez Sanchez, ibid.).
As far as the present case is concerned, the Court
notes from the outset that the applicant was detained for approximately three
months in a place intended for detentions of very short duration. As the Court
has already considered, such a place was not adequate for the needs of a
prolonged imprisonment (see Dougoz v. Greece, no. 40907/98, § 48,
ECHR 2001-II, and Kaja v. Greece, no. 32927/03, § 49-50, 27
July 2006). Moreover, the Court has
already considered the conditions of detention at the Thessaloniki General
Police Headquarters, where the applicant was detained, in previous cases, and a
violation of Article 3 of the Convention was found (see Vafiadis v. Greece,
no. 24981/07, §§ 30-39, 2 July 2009, and
Shuvaev v. Greece, no. 8249/07, §§ 28-41, 29 October 2009). In this respect, the Court observes
that, even though the present case does not refer to the same period as the
aforementioned cases, the Government do not dispute the applicant’s allegations
regarding the general conditions of detention, and they did not submit any
evidence that the conditions had been substantially improved, especially with
regard to the problem of overcrowding. Further, the problematic conditions about
which the applicant complains are also confirmed by the report and the letter
of the Greek Ombudsman (see paragraphs 19-22 above) and the findings of the CPT
(see paragraph 23 above).
In particular, the Court observes deficiencies
regarding the lack of sufficient space, the total absence of an exercise area
and the hygiene problems. Moreover, even if the Government’s submission that meals
were provided for detainees after the 22 April 2009 was accepted, it is noted
that the applicant was transferred to Diavata Prison on that date. Thus, the
problem of poor catering did exist, as the applicant had been subject to the
previous catering regime, and meals began to be offered after he had been
transferred to another prison (see Vafiadis, cited above, § 35, and Shuvaev,
cited above, §§ 37 and 39).
The foregoing considerations are sufficient to
enable the Court to conclude that that the conditions of detention of the
applicant on the premises of the Thessaloniki Police Headquarters, combined
with the inordinate length of his detention in those conditions, amounted to
inhuman and degrading treatment contrary to Article 3.
Accordingly, there has been a violation of Article 3
of the Convention.
II. ALLEGED VIOLATION OF ARTICLE 5 § 4 OF THE
CONVENTION
The applicant complained that, in two respects,
the procedure through which he challenged his provisional detention before the Indictment Division of the Thessaloniki Criminal
Court did not comply with the requirements of Article 5 § 4 and Article 6 of
the Convention. The Court considers that these complaints fall to be examined
under Article 5 § 4, which is the lex specialis
for matters of deprivation of liberty (see Reinprecht
v. Austria, no. 67175/01, § 55,
ECHR 2005-XII). Article 5 § 4 reads as follows:
“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. Regarding
the tacit refusal of the request to appear in person
1. Admissibility
. The
Court notes that the present complaint is not manifestly ill-founded within the
meaning of Article 35 § 3 (a) of the Convention, nor is it inadmissible on any
other grounds. It must therefore be declared admissible.
2. Merits
(a) The parties’ submissions
The Government submitted that the applicant’s
request for leave to appear in person was not clear, as no specific reasons
justifying his request were mentioned. They further noted that no reference was
made in order no. 506/2009 to the applicant’s request to appear as, apparently,
the Indictment Division considered that no such
request had been submitted.
The applicant referred
to the following judgments: Kampanis v. Greece (13 July
1995, Series A no. 318-B); Kotsaridis v. Greece, (no. 71498/01,
23 September 2004); and Giosakis v. Greece (no. 1), (no. 42778/05,
12 February 2009) and contended that, while the
Prosecutor had been heard, he himself had not had this opportunity and thus had
not been able to elaborate further on his reasons for seeking release.
According to the above, he was denied the opportunity to submit an appropriate
and reasoned justification by providing his opinion on his continued detention.
(b) The Court’s assessment
The Court reiterates that the opportunity for a
detainee to be heard, either in person or through some form of representation,
features among the fundamental guarantees of procedure applied in matters of
deprivation of liberty (see A. and Others v. the United Kingdom [GC], no. 3455/05, § 204,
ECHR-2009). That is the case specifically where the prisoner’s appearance can
be regarded as a means of ensuring respect for equality of arms, one of the main safeguards inherent in judicial proceedings conducted
in conformity with the Convention (see Giosakis v. Greece (no. 2), no. 36205/06, § 61, 12 February 2009). In particular, in
proceedings in which an appeal against a detention order is being examined,
“equality of arms” between the parties - the prosecutor and the detained person
- must be ensured (see Nikolova v. Bulgaria [GC], no. 31195/96, § 58,
ECHR 1999-II).
. The
Court reiterates that,
according to well-established case-law, the detainee’s right to be heard is already applied in proceedings before Indictment Divisions related to applications for release
(see Kampanis, cited above, § 58) and
also in proceedings before an investigating judge in which he has to decide
whether provisional detention should be extended or not (see Giosakis (no. 2), cited above, § 62). In
particular, the Court observes that in Kampanis it was noted that “to
ensure equality of arms it was necessary to give the applicant the opportunity
to appear at the same time as the prosecutor, so that he could reply to his
arguments”. Further, it was concluded that “as they did not afford the
applicant an adequate opportunity to participate in proceedings whose outcome
determined whether his detention was to continue or to be terminated, the Greek
rules in force at the material time, as applied in the instant case, did not
satisfy the requirements of Article 5 § 4” (see
Kampanis, ibid.).
. In view of the above, the Court considers that the aforementioned
jurisprudence should also be applicable in the present case, where the
applicant lodged an application with the Indictment
Division challenging his detention. The Court notes that it is not in
dispute that the law does not entitle either the applicant or his lawyer to
attend the session in which it was examined whether his detention was lawful
and justified (see Giosakis (no. 2),
cited above, § 62). Moreover, the applicable provisions of law on criminal
procedure did not require that the prosecutor’s submissions in support of the
applicant’s detention be communicated, either to the applicant or to his
lawyer. Consequently, the applicant or his counsel did not have any opportunity
to comment on those arguments in order to contest the reasons given by the
prosecuting authorities for his detention, either by disputing them directly
before the Indictment Division or by way of written submissions (see Kawka
v. Poland, no. 25874/94, § 60, 9 January 2001).
At the same time, the Court observes that under
the applicable provisions it was possible for the prosecutor to be present at
the session in which the lawfulness of the applicant’s detention was examined.
It is also to be noted that the prosecutor in fact availed himself of this
opportunity, by attending the session when it was examining the applicant’s
request for release, while neither the applicant nor his counsel were present. In the light of these considerations, the Court is of the
view that to ensure equality of arms it was necessary to give not only the
prosecutor but also the applicant the opportunity to appear and elaborate his
views. Lastly, it is noted that in the decision subsequently taken (order
no. 506/2009), no reference was made to the applicant’s written and clear request
to be heard, and thus no reply was given to the applicant’s arguments.
. Accordingly,
the Court considers that the authorities did not
afford the applicant an adequate opportunity to participate in proceedings
whose outcome determined whether his detention was to continue or to be
terminated, and they did not reply to his request for appearance in the
decision given. Thus, there has been a violation Article 5 § 4 in this respect.
B. The alleged
failure of the authorities to have the applicant’s request decided speedily
1. Admissibility
The Government submitted that the application
under Article 285 of the Code of Criminal Procedure does not fall to be
examined under Article 5 § 4 of the Convention, as under the
latter only remedies brought against administrative or judicial decisions,
where deprivation of liberty is ordered automatically, may be challenged.
The applicant referred
to Stafford v. the United Kingdom ([GC], no. 46295/99,
ECHR 2002-IV) and contended that it was
possible to implement the provisions of Article 5 § 4 throughout
criminal proceedings where deprivation of liberty is ordered without assessing
the specific facts of the case or when the detention imposed is based primarily
on risks associated with the offender in custody. Further, it was observed that
these elements may change with the course of time, and thus new issues of
lawfulness may arise which require determination.
The Court would state that, according to its
case-law, Article 5 § 4 is applicable to proceedings
brought before the Indictment Division challenging the
lawfulness of pre-trial detention of an accused,
as in the present case (see Giosakis (no. 1), cited above,
§§ 50-55).
In the light of the foregoing, the
Court considers that the Government’s allegations cannot be accepted and the objection
must be rejected.
The Court notes that
the present complaint is not manifestly ill-founded within the meaning of
Article 35 § 3 (a) of the Convention, or inadmissible on any other grounds. It
must therefore be declared admissible.
2. Merits
(a) The parties’ submissions
The Government
contended that the period of three months and
seventeen days taken for the examination of his application was not excessive,
considering the circumstances of the case.
. The
applicant contested that argument and observed that the protracted length of the proceedings was
not consistent with the logic of Article 285, which provides the detained
person with only five days in order to explain all the reasons for a challenge to
the lawfulness of the provisional detention imposed. The applicant alleged
that an application under Article 285 gives him the opportunity to seek that the
Indictment Division review and decide whether the detention should be
continued. Moreover, it was stressed that the fact that the particular
application had to be lodged within five days of the date of detention itself
shows the urgency of this remedy, and presupposes that the Indictment Division has to make a speedy decision regarding his
detention.
(b) The Court’s assessment
.
The Court reiterates that Article 5 § 4 of the Convention, in
guaranteeing detainees the right to institute proceedings to challenge the
lawfulness of their detention, also proclaims their right, following the
institution of such proceedings, to a speedy judicial decision concerning the
lawfulness of detention and to an order for its termination if it proves
unlawful (see Van der Leer v. the Netherlands,
21 February 1990, § 35, Series A no. 170-A; Musiał
v. Poland [GC], no. 24557/94, § 43, ECHR 1999-II; and Mathieu v. France, no. 68673/01, § 35,
27 October 2005). The requirement that a decision be given “speedily” is
undeniably one such guarantee, and Article 5 § 4, concerning issues of liberty,
requires particular expedition (see Hutchison Reid v. the United Kingdom, no.
50272/99, § 79, ECHR 2003-IV).
The question whether a person’s right under
Article 5 § 4 has been respected has to be determined in the light of the circumstances
of each case (see Rehbock v. Slovenia,
no. 29462/95, § 84, ECHR 2000-XII), including the complexity of the
proceedings, their conduct by the domestic authorities and by the applicant and
what was at stake for the latter (see Mooren v. Germany [GC], no.
11364/03, § 106, 9 July 2009). In
principle, considering that the freedom of the applicant comes into play, there
is a special need for a swift decision determining the lawfulness of detention (see Fuchser v. Switzerland, no.
55894/00, § 43, 13 July 2006).
. Taking
into account the aforementioned criteria, the Court has found, for example,
that the requirement for a decision to be given “speedily” was violated in the
following cases: Rehbock, cited above, §
84. twenty-three days; Mamedova, cited above, § 96, thirty-six days;
and Kostadinov v. Bulgaria (no. 55712/00, § 88, 7 February
2008), twenty-six days.
The Court observes
that, in the present case, the authorities’ decision was taken more than a
hundred days after the proceedings in question had been lodged. It is further
noted that, according to the aforementioned paragraph, violations were found by
the Court in cases where proceedings had lasted for far shorter periods.
. Thus
the Court considers that there has been a violation of Article 5 § 4 of the
Convention because of the national authorities’ failure to decide on the
lawfulness of the applicant’s detention “speedily”.
III. 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 25,000 euros (EUR) in
respect of non-pecuniary damage.
The Government
considered the amount claimed exorbitant and submitted that the finding of a
violation would constitute sufficient just satisfaction.
The Court considers that the applicant has
suffered non-pecuniary damage which is not sufficiently compensated for by the
finding of a violation of the Convention. Considering the circumstances of the
case and making its assessment on an equitable basis, the Court awards the
applicant EUR 10,000 under this head.
B. Costs and expenses
The applicant also claimed EUR 18,000 for costs
and expenses incurred before the Court. He did not
produce any documents in support of his claim.
. The
Government contested the applicant’s claim and
submitted that it was unsubstantiated.
. According
to the Court’s established case-law, costs and expenses will not be awarded
under Article 41 unless it is established that they have been actually and
necessarily incurred and are reasonable as to quantum (see Iatridis v.
Greece (just satisfaction) [GC], no. 31107/96, § 54, ECHR 2000-XI).
In the present case, the Court notes that the applicant’s claims were not
supported by any invoice or bill of costs on the basis of which the Court can
assess precisely the cost and expenses actually incurred.
. Regard
being had to the above-mentioned criteria, the Court considers it reasonable to
reject the applicant’s claim under this head.
C. Default interest rate
The Court considers it appropriate that the
default interest rate 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
1. Declares the application admissible;
2. Holds that there has been a violation of
Article 3 of the Convention;
3. Holds that there has been a violation of Article
5 § 4 as regards the applicant’s absence from the appeal
hearing of 14 May 2009 and the lack of a speedy
review of the applicant’s appeal of 26 January 2009;
4. Holds
(a) that the respondent State is to pay the
applicant, within three months of the date on which the judgment becomes final
in accordance with Article 44 § 2 of the Convention, EUR 10,000
(ten thousand euros), plus any tax that may be chargeable on this amount, in
respect of non-pecuniary damage;
(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above
amount at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points;
5. Dismisses the remainder of the applicant’s
claim for just satisfaction.
Done in English, and notified in writing on 9 October 2012, pursuant to Rule 77 §§ 2 and 3
of the Rules of Court.
Søren Nielsen Nina Vajić
Registrar President
