EIT:lta jälleen ratkaisu tutkintavankeuden jatkamisen perustelemattomuudesta

30.12.2013 | Oikeusuutiset

Markku Fredman

Euroopan ihmisoikeustuomioistuin on jälleen kerran todennut, että tuomioistuinten tulee aidosti ja perustellusti arvioida tutkintavankeuden jatkamista koskevissa päätöksissään sitä, onko syyttömyysolettamasta ja siitä seuraavasta vapautta puoltavasta lähtökohdasta huolimatta tutkintavankeuden jatkaminen tarpeen. Pelkkä tutkintavankeuden jatkaminen samoilla perusteilla kuin aikaisemmin ei ole riittävää, eikä tutkintavankeuden jatkaminen saa perustua yksinomaan rikosepäilyn vakavuuteen.

EIT:n tuomiosta:

48.  The
Court reiterates that under its constant 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. 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,
W. v. Switzerland, 26 January 1993, Series A no. 254A, and Kudła v. Poland [GC], no. 30210/96, § 110, ECHR 2000XI).

49.  The
presumption is in favour of release. As the Court has consistently
held, the second limb of Article 5 § 3 does not give judicial authorities a choice between either bringing an accused to trial within a
reasonable time or granting him provisional release pending trial. Until his conviction, the accused must be presumed innocent, and the
purpose of the provision under consideration is essentially to require
him to be released provisionally once his continuing detention ceases to
be reasonable (see
Vlasov v. Russia, no. 78146/01, § 104, 12 June 2008, with further references).

50.  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 time. To this end, they must examine all the
evidence 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 must 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 the facts cited by the applicant in
his appeals that the Court is called upon to decide whether or not there has been a violation of Article 5 § 3 of the Convention (see
Labita v. Italy [GC], no. 26772/95, § 152, ECHR 2000IV).

51.  The arguments for and against release must not be “general and abstract” (see Smirnova v. Russia, nos. 46133/99 and 48183/99, § 63,
ECHR 2003-IX). Where the law provides for a presumption in respect of
factors relevant to the grounds for continued detention, the existence
of the specific facts outweighing the rule of respect for individual
liberty must be convincingly demonstrated (see
Ilijkov v. Bulgaria, no. 33977/96, § 84 in fine, 26 July 2001).

52.  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
continued to justify the deprivation of liberty. Where such grounds were
“relevant” and “sufficient”, the Court must also ascertain whether the
competent national authorities displayed “special diligence” in the conduct of the proceedings (see
Contrada v. Italy, 24 August 1998, § 54, Reports of Judgments and Decisions 1998-V; I.A. v. France, 23 September 1998, § 102, Reports 1998-VII; Toth v. Austria, 12 December 1991, § 67, Series A no. 224; and B. v. Austria, 28 March 1990, § 42, Series A no. 175).

56.  However,
the Court notes that after a month, on 21 April 2011, once the
investigating judge questioned the witnesses, the applicant’s detention
was extended solely on the ground of the gravity of the charges (see
paragraph 11 above). Subsequently, over a period of more than one and a
half years until the applicant’s release on 9 November 2012, his
detention was extended several times only on that
ground (compare Peša v. Croatia, no. 40523/08, § 105, 8 April 2010).

57.  The Court reiterates that it has repeatedly held that the gravity of the charges cannot by itself serve to justify long periods of detention (see, among many other authorities, Ilijkov, cited above, §§ 80-81; Michta v. Poland, no. 13425/02, § 49, 4 May 2006; Gultyayeva v. Russia, no. 67413/01, § 186, 1 April 2010; and Trifković v. Croatia, no. 36653/09, § 129, 6 November 2012).

58.  While
the Court accepts that the charges of abuse of power and authority were
serious and that they had allegedly resulted in considerable pecuniary
gain and criminal intent, it notes that the explanations given by the
national courts in this connection, over a period of more than one and a
half years, went no further.
None
of the elements adduced by the national courts were capable of showing that the applicant continued to pose a danger or that his release would
in any manner harm the conduct of the criminal proceedings against him
(see
Peša, cited above, § 106).

59.  The
Court also observes that when extending the applicant’s detention
during this period the domestic authorities relied not only on the same
reasons but at some instances they used almost identical wording in
their decisions (see paragraphs 20 and 31 above). In this connection,
the Court reiterates that it has found a violation of Article 5 § 3 of
the Convention in many other cases in which the domestic authorities
used stereotyped formulae without addressing the specific facts
warranting continued detention (see, for example,
Sulaoja v. Estonia, no. 55939/00, § 64, 15 February 2005; Tsarenko v. Russia, no. 5235/09, § 70, 3 March 2011, and the cases cited therein, and Trifković, cited above, § 125).

60.  Furthermore,
the Court notes that the Government failed to provide evidence that
consideration had been given at any stage of the proceedings to the
possibility of imposing alternative, less severe preventive measures on
the applicant (see
Idalov v. Russia [GC], no. 5826/03, § 148, 22 May 2012, and Peša,
cited above, § 107) which could have allowed his provisional release
once his continuing detention ceased to be reasonable, as required under
Article 5 § 3
(see Vlasov, cited above, § 104, 12 June 2008, and Aleksandr Makarov v. Russia, no. 15217/07, § 117, 12 March 2009).

61.  Lastly,
regarding the Government’s reference to the protection of public order
as a ground for the applicant’s detention, the Court notes that the
national courts gave no consideration to such a ground in their
decisions. They did not explain why it was necessary to remand the
applicant in custody in order to prevent public disquiet, and did not
examine whether the applicant posed a danger to public safety (compare
Peša, cited above, § 103). The
Court reiterates that it is not its task to take the place of the
national authorities which ruled on the applicant’s detention. It falls
on them to examine all the facts arguing for or against detention and
set them out in their decisions. Accordingly, the Government’s reasons
raised for the first time in the proceedings before the Court, cannot be
taken into account (see, amongst many others,
Valeriy Kovalenko v. Russia, no. 41716/08, § 49, 29 May 2012).

62.  Against the above background, the Court finds that by
relying solely on the gravity of the charges when extending the
applicant’s detention in the period between 21 April 2011 and
9 November 2012, the domestic authorities prolonged the applicant’s detention on reasons which cannot be regarded as sufficient (compare Csáky v. Hungary, no. 32768/03, § 36, 28 March 2006; and Peša, cited above, § 108). In those circumstances, it is not necessary to examine whether the proceedings were conducted with “special diligence” (see Peša, cited above, § 108; and compare Szepesi v. Hungary, no. 7983/06, § 27, 21 December 2010, and Dervishi v. Croatia, no. 67341/10, § 138, 25 September 2012).

63.  There has accordingly been a violation of Article 5 § 3 of the Convention.

Koko tuomio Orban v Kroatia löytyy täältä: http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-139183.

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