Excessive length of his pre-trial detention, which lasted approximately four and half years, because of the frequent interruptions of court sessions due to obstructions by advocates and prosecutors. Violation of the Convention

Article 5
26/02/2023 10:31
Print

JUDGMENT

ABULADZE v. ESTONIA 24.01.2023 (app. no. 12928/20)

SUMMARY

The case concerns the applicant’s allegations of excessive length of his pre-trial detention, which lasted approximately four and half years, in breach of Article 5 § 3.

The applicant was accused of being a member of a criminal organization. His pre-trial detention was ordered. During both the pre-trial and trial stages the domestic courts examined at regular intervals (once every six months at most) whether the applicant’s pre-trial detention continued to be justified, either in response to his own requests or of their own motion. As grounds for his detention, they relied on the risks of the applicant reoffending and obstructing the proceedings by influencing witnesses or otherwise tampering with evidence.

The courts repeatedly dismissed the applicant’s requests for pre-trial detention to be replaced with electronic surveillance. During the trial a total of 108 hearings were held in a regular manner. Setting hearing dates that would suit all the parties concerned was complicated by the fact that during some periods the applicant’s lawyer, other defense lawyers (including legal-aid lawyers designated by the Bar Association) and the prosecutor were simultaneously involved in another criminal case concerning another criminal organization.

When it appeared that some of the defense lawyers, including the applicant’s, could not attend the scheduled hearings, the judge refused to postpone them.

According to the Court, the length of the applicant’s detention on remand – approximately four and half years as calculated from his remand in custody until his conviction by the first-instance court (see Buzadji, cited above, § 85) – is a matter of great concern requiring very strong justification.

Nevertheless, the Court could not overlook the fact that there were longer periods of inactivity in the proceedings, when no hearings were scheduled or held. There has accordingly been a violation of Article 5 § 3 of the Convention. The Court awarded the applicant EUR 4,500 in respect of non-pecuniary damage and EUR 4,500, in respect of costs and expenses.

PROVISION

Article 5 par. 3

PRINCIPAL FACTS

The applicant was accused of being a member of a criminal organization. He was arrested on 6 October 2015 and remanded in custody by a preliminary investigation judge on 8 October 2015. He remained in custody until his conviction by the first-instance court on 13 March 2020.

After the completion of the pre-trial investigation, the defense lawyers were given time to examine the criminal files on 7 March 2016, and on 22 March 2016 the statement of charges was sent to the court. Following a preliminary hearing, the applicant was committed for trial on 5 April 2016.

Charges were brought against nine persons in respect of eleven different criminal offenses, including membership of a criminal organization (other offenses included, inter alia, physical abuse, torture, human trafficking, theft, fraud and extortion). The prosecutor had applied to examine more than sixty witnesses, victims and third parties. The applicant was suspected of having belonged to the criminal organization at least since 2013.

During both the pre-trial and trial stages the domestic courts examined at regular intervals (once every six months at most) whether the applicant’s pre-trial detention continued to be justified, either in response to his own requests or of their own motion. On each occasion the courts confirmed that there was reasonable suspicion that the applicant had committed the offense he was accused of. As grounds for his detention, they relied on the risks of the applicant reoffending and obstructing the proceedings by influencing witnesses or otherwise tampering with evidence.

With regard to the risk of reoffending, the courts referred not only to the nature of the offense of membership of a criminal organization (including the manner in which the organization operated and divided its criminal proceeds), but also to the applicant’s supposed role as collector of the financial proceeds from criminal activities on behalf of the criminal organization and long-term membership in the organization in question. Noting that the applicant was likely to have lived off illegal income, at least partially, for an extended period of time and considering that it was common for criminal organizations to take care of their members and their families (including those who had been detained), the courts found that, if released, the applicant could continue committing offenses in order to maintain his own living standard as well as that of his co-defendants.

When examining the risk of obstruction of proceedings, the domestic courts took into account information in the criminal file according to which disobedient members of the organization were physically punished, were threatened with punishment or were pushed to commit offenses. In the present case not all of the alleged members of the criminal organization in question were remanded in custody during the proceedings. The domestic courts pointed to a concrete example where one of the defendants had repeatedly tried to influence witnesses. The courts also referred to the applicant’s role and authority in the organization, noting that his task of collecting money from the organization’s lower-ranking members had not been a merely “technical” one. The courts regularly assessed the relevance of the risk of obstruction in relation to the state of proceedings, notably the progress made in hearing the witnesses, and noted in May 2019 that the risk had ceased because all the witnesses had been questioned.

The courts repeatedly dismissed the applicant’s requests for pre-trial detention to be replaced with electronic surveillance as the latter measure would not have prevented him from communicating and meeting with other persons, and could thus not have sufficiently limited the risk of his reoffending.

During the trial a total of 108 hearings were held in a regular manner, apart from the longer gaps described below.

On five separate occasions during the trial the defendants, including the applicant on two occasions, informed the court shortly before the scheduled hearings that the client agreements with their chosen lawyers had been terminated. Consequently, while the applicant found a new lawyer for himself, some of the other defendants needed to have legal-aid lawyers designated by the Bar Association (Article 43 of the Code of Criminal Procedure and section 18 of the State-Funded Legal Aid Act).

Setting hearing dates that would suit all the parties concerned was complicated by the fact that during some periods the applicant’s lawyer, other defense lawyers (including legal-aid lawyers designated by the Bar Association) and the prosecutor were simultaneously involved in another criminal case concerning another criminal organization. Trial in these parallel proceedings commenced on 8 March 2016 and ended with a final judgment on 6 January 2021.

The difficulty of finding suitable hearing dates, combined with the termination of the client agreements between some of the defendants and their lawyers, resulted in longer breaks between hearings from April 2016 until January 2017 and from April 2017 until January 2018. The applicant also pointed to gaps between hearings from June 2018 until September 2018 and from the end of May 2019 until the end of September 2019, which the Government did not comment on.

The case was assigned to a new judge of the Harju County Court in mid-November 2016, although this does not appear to have caused any delays in the proceedings. When it appeared that some of the defense lawyers, including the applicant’s, could not attend the scheduled hearings, the judge refused to postpone them. Furthermore, relying on Article 441 of the Code of Criminal Procedure, the judge compelled the lawyers concerned to appoint substitute lawyers in good time before the scheduled hearings. The judge also advised to avoid situations where defense lawyers, who were already involved in complex large-scale criminal cases, would take up defense duties in simultaneous heavy cases.

While the domestic courts also considered the need for a substitute prosecutor due to his parallel involvement in a large-scale case and noted that the prosecutor’s office should in future consider appointing several prosecutors to work on cases of such magnitude, domestic law did not provide for the possibility of the court ordering the appointment of a substitute prosecutor. The trial judge also dismissed the applicant’s request for the removal of the prosecutor. Furthermore, the trial judge criticised the parties for having been unrealistic in their initial assessment of the need for scheduling hearing dates. As a result, extra hearing dates had to be scheduled on a number of occasions. For example, the defense lawyers had not revealed that they intended to ask that the secret surveillance recordings be played during hearings at the court – this stage had lasted for eighteen hearing days.

On other occasions the hearings had to be cancelled either because the judge, the defendants or their lawyers were ill or because defendants did not appear in court.

In a decision dated 7 February 2019, concerning another defendant in the same criminal case, the Supreme Court reiterated the arguments of the trial court in respect of the delays in the proceedings. The Supreme Court noted, in particular, that the prosecutor’s office had not chosen the most efficient conduct of proceedings by assigning the same prosecutor to several trials conducted at the same time, and criticized the Bar Association for appointing defense councils already acting in other large cases.

The applicant complained under Article 5 § 3 of the Convention that his detention on remand had been excessively long.

THE DECISION OF THE COURT…

The Court noteD that this complaint was not manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention or inadmissible on any other grounds. It should therefore be declared admissible.

The general principles regarding the application of Article 5 § 3 of the Convention have been set out in Buzadji v. the Republic of Moldova ([GC], no. 23755/07, §§ 84-91, 102, ECHR 2016) and Merabishvili v. Georgia ([GC], no. 72508/13, §§ 222 and 225, 28 November 2017); for a more recent application of those principles in a case similar to the instant one, see Štvrtecký v. Slovakia (no. 55844/12, 5 June 2018).

The length of the applicant’s detention on remand – approximately four and half years as calculated from his remand in custody until his conviction by the first-instance court (see Buzadji, cited above, § 85) – is a matter of great concern requiring very strong justification (see Štvrtecký, cited above, § 57, and Trifković v. Croatia, no. 36653/09, § 121, 6 November 2012).

The Court accepted that the reasonable suspicion that the applicant had committed the offenses with which he had been charged persisted throughout the criminal proceedings leading to his conviction. This was verified by the domestic courts on each occasion when they reviewed whether the applicant’s detention continued to be justified.

As to the grounds for the applicant’s (continued) detention – namely the risk of reoffending and of obstructing the proceedings – the Court observed that the domestic courts were consistent in referring to them. While the applicant did not agree with the domestic courts’ substantive assessment of those risks, it cannot be said that the courts relied on these grounds in an abstract manner, without showing how they applied to the specific circumstances of the applicant’s case.

Having examined the case file, the Court found that the domestic courts gave relevant and sufficient reasons for the applicant’s detention during the investigation and trial.

As to the conduct of the proceedings, the Court noted that they were of considerable scope and complexity, regard being had to the number of defendants involved and the duration of the activities of the criminal organization under investigation. Additional criminal cases were joined to the original case during the investigation stage and also during the trial phase. The proceedings required individual determinations to be made of the criminal responsibility of a number of the defendants in relation to a variety of separate criminal acts.

While the pre-trial proceedings could not be considered to have lasted an excessively long period of time, the trial proceedings lasted for approximately four years.

The Court was willing to acknowledge that the case – which concerned organized crime – presented, by definition, particular difficulties for the investigating authorities, and later for the courts, in relation to determining the facts and the degree of responsibility of each member of the group.

Nevertheless, the Court could not overlook the fact that there were longer periods of inactivity in the proceedings, when no hearings were scheduled or held. The Court noted that attribution of each delay is disputed by the parties and may prove difficult in this case, where many delays resulted to a large extent from the prosecutor as well as some lawyers being involved in more than one set of proceedings simultaneously, the combined effect of last-minute terminations of the client contracts, the need to find new lawyers or designate legal-aid lawyers in cooperation with the Bar Association, the repeated need to schedule more hearing dates and the consequential difficulties of finding dates that would suit everyone concerned. In such a situation, the Court acknowledges that the trial judge took certain steps to avoid further delays in the proceedings.

However, what is in issue is not the possible responsibility of any particular national authority, but the international responsibility of the State (see R.B. v. Estonia, no. 22597/16, § 102, 22 June 2021). In that regard, the Court attaches particular weight to the delays that were caused by re- scheduling hearings due to the fact that the prosecutor’s office had assigned the same prosecutor simultaneously to another large-scale criminal case (see paragraphs 11 and 14 above). As noted by the domestic courts, the power of assigning prosecutors to a trial lied entirely with the prosecutor’s office and the trial court could not request the appointment of a substitute prosecutor. Although it did not appear that the applicant raised the issue of ineffective legal-aid assistance before the trial court, the domestic courts also pointed to the problem of assignment of legal-aid lawyers who were already involved in other large-scale criminal proceedings.

In conclusion, the Court found that while the State cannot be held responsible for the actions of the applicant and his co-defendants, the criminal justice system nonetheless failed to handle the applicant’s case with “special diligence”.

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

Just satisfaction (Article 41)

The Court awarded the applicant EUR 4,500 in respect of non-pecuniary damage and EUR 4,500, in respect of costs and expenses.