National legislation should provide for a specific review of the detention of a prisoner. The non-review violates Article 5 of the ECHR

JUDGMENT 

Šaranović v. Montenegro 05-03-2019 (no. 31775/16)

see here

SUMMARY

The case concerned Mr Šaranović’s complaints about his pre-trial detention for two and half years in
Montenegro on suspicion of being behind the 2013 murder of the brother of the leader of a Serbian
criminal organisation. He had allegedly arranged the murder out of revenge for his own brother’s
murder in Belgrade in 2009. Mr Šaranović himself was murdered outside his house in 2017 and his
wife continued the proceedings before the Court.

The Court found in particular that the domestic legislation for reviewing detention had been clear
but that it had not been applied consistently at the time. Such inconsistency had resulted in there
being no legal basis for the applicant’s detention between 16 November and 15 December 2014
because it had not been reviewed after the 30-day time-limit set down in the law.

The Supreme Court has since clarified the situation by holding that it was mandatory for national
courts to review detention within the statutory time-limits. Furthermore, with the exception of that
one-month period, Mr Šaranović’s pre-trial detention had been reviewed regularly.
All his other complaints were declared inadmissible.

No award of damages was made to the applicant as the Court considered that the finding of a
violation was sufficient.

PROVISION

Article 5 § 1 (c)

PRINCIPAL FACTS

The applicant, Slobodan Šaranović, now deceased, was a Montenegrin national who was born in
1938 and lived in Budva (Montenegro).

Mr Šaranović was arrested in April 2014 and spent the next two and half years in pre-trial detention.
The first six months were extended essentially because of the gravity of the offences of which he
was suspected. After that, and following the prosecuting authorities issuing an indictment against
him in October 2014, his detention was extended “until further decision”. The indictment never
entered into force, but was repeatedly returned by the courts with requests for further
investigation.

He was released in December 2016, given the time he had already spent in detention and because it
was uncertain when the indictment would come into force, if at all.

All his appeals against the decisions to order and extend his detention were unsuccessful. In
particular, in December 2014 he submitted appeals alleging that his detention from 15 November onwards had not been reviewed after the 30-day period required by law. These appeals were dismissed and his detention further extended on 15 December 2014.

He lodged two constitutional appeals. The first was dismissed in 2015 as unfounded and the second
is still ongoing.

THE DECISION OF THE COURT 

Article 5 § 1 (lawfulness of pre-trial detention)

As concerned the applicant’s detention between 15 November and 15 December 2014, the Court
considered that the legislation was clearly formulated. It explicitly provided that, as long as an
indictment had not entered into force, courts were obliged to examine at 30 day intervals whether
there were still reasons for detention.

However, the legislation had been unforeseeable in its application at the time, in particular because
of a lack of consistency as to whether the statutory time-limits for re-examination of detention were
mandatory or not. A legal opinion issued by the Supreme Court clarified that situation in 2017,
holding that the courts had to consistently comply with the legal time-limits for reviewing detention.
There had been no review of the applicant’s detention after 15 November 2014, despite the 30-day
period having lapsed. There had therefore been no legal basis for his detention between
16 November and 15 December 2014, when it had been reviewed and extended again. His detention
in that period had not therefore been “lawful” within the meaning of Article 5 § 1.

With the exception of that one-month, Mr Šaranović’s detention for two and a half years had been
reviewed on a regular basis. Furthermore, an indictment had been issued within six months, as
required under domestic legislation. There was no provision requiring that an indictment enter into
force for detention to be extended. Moreover, the time-limits for the investigation in Mr Šaranović’s
case had been extended in accordance with procedure. The Court therefore considered that extending his detention beyond six months had not been unlawful and rejected that part of his
complaint as inadmissible.

Article 5 § 3 (entitlement to trial within a reasonable time or to release pending trial)

The Court found that Mr Šaranović’s complaint about insufficient reasoning in the decisions
extending his detention, and an implicit complaint about the length of his detention, were
premature because they had been raised in his second constitutional appeal, which was still
ongoing. The Court therefore rejected those complaints for non-exhaustion of domestic remedies.

Article 5 § 4 (right to have lawfulness of detention decided speedily by a court)

The Constitutional Court had explicitly and extensively examined Mr Šaranović’s submissions in his
first appeal concerning the lack of reasoning in the decisions extending his detention, the indictment
not having entered into force and his detention not having been regularly reviewed and considered
them unfounded. As found above, his complaint concerning the second constitutional appeal was
premature. The Court therefore also rejected his complaints under Article 5 § 4 as inadmissible.

Article 41 (just satisfaction)

The Court held that the finding of a violation constituted sufficient just satisfaction for
the non-pecuniary damage sustained by the applicant. It awarded 1,500 euros in respect of costs
and expenses(echrcaselaw.com editing). 


ECHRCaseLaw

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