Extension of pre-trial detention of an accused despite his release by the first instance court violates the right to personal liberty
JUDGMENT
I.S. v. Switzerland 6-10-2020 (app. no. 60202/15)
SUMMARY
In this case, I.S. complained about the extension of his preventive detention (between April and
December 2015) despite his acquittal at first instance.
The Court found in particular that I.S.’s preventive detention following his acquittal at first instance
did not fall within the exceptions provided for in Article 5 § 1 of the Convention. For the purposes of
Article 5 § 1 (c)2 of the Convention, detention ended with the person’s acquittal, even by a court of
first instance. Accordingly, domestic law should provide for measures that were less invasive than
deprivation of liberty to guarantee an individual’s appearance in the appeal proceedings. Lastly, a
general concern that the applicant might commit further offences while the appeal proceedings
were ongoing could not be regarded as sufficiently concrete and specific to fall under Article
5 § 1 (b)2
PROVISION
Article 5
PRINCIPAL FACTS
The applicant, I.S., is a Turkish national who was born in 1973 and lives in Baden (Switzerland).
On 4 August 2014 I.S.’s partner lodged a criminal complaint against him. I.S. was placed in pre-trial
detention the same day on suspicion of offences including multiple counts of rape. Subsequently, in
December 2014 the public prosecutor filed an indictment and I.S. was placed in preventive
detention.
On 16 April 2015 the District Court unanimously acquitted I.S. However, he was kept in preventive
detention on the basis of Article 231 of the Code of Criminal Procedure. The following day, the
Cantonal Court ordered the extension of his preventive detention pending the outcome of an appeal
by the public prosecutor against the acquittal.
On 12 May 2015 I.S. submitted a first application for release, which was rejected. The Federal
Supreme Court found, in particular, that I.S. risked a heavy custodial sentence, which constituted a
significant incentive to abscond. It further noted that I.S. had taken precautions to be able to travel to Turkey, the country he had left at the age of 17, where he knew the language and still had a network of acquaintances.
On 19 October 2015 I.S. submitted a further application for release, which the Federal Supreme
Court allowed in November 2015. He was released on 2 December 2015.
THE DECISION OF THE COURT…
Article 5 § 1 (right to liberty and security)
The Court observed that the periods of I.S.’s detention from 4 August 2014 until 16 April 2015 (the
date of his acquittal at first instance) were covered by Article 5 § 1 (c) of the Convention. That was
not the case, however, for the period of detention between 16 April and 2 December 2015, which
had been based on Article 231, paragraph 2, of the Code of Criminal Procedure.
While it was true that the text of Article 5 § 1 (c) of the Convention did not contain any limitation on
pre-trial detention at the first level of jurisdiction, the Court had clarified that issue in 1968 in the
case of Wemhoff v. Germany. Subsequently, it had confirmed its position in a number of Grand
Chamber and Chamber judgments: detention under Article 5 § 1 (c) of the Convention ended with
the acquittal of the person concerned, even by a court of first instance.
That approach also applied in the present case. After examining the facts at issue in adversarial
proceedings, the Baden District Court had unanimously formed the view that I.S. could not be
convicted of the criminal offences with which he had been charged in the indictment. In such
circumstances, following an acquittal at first instance – even where the judgment was only delivered
orally and was not yet final – an order for detention under Article 5 § 1 (c) of the Convention lapsed.
The Government had argued, in general terms, that preventive detention ordered after an acquittal
at first instance was necessary to ensure that dangerous individuals did not escape criminal justice
and commit further offences because they had been acquitted “in error” at first instance.
In that connection, the Court emphasised that in the present case, no such allegation had been
levelled at the District Court, either expressly or in substance, at any stage of the domestic
proceedings. On the contrary, there was no indication of any error in the administration of justice, especially as the acquittal by first-instance court, for which ample reasons had been given in a 44-page written judgment, had been unanimous.
Furthermore, the Court took the view that domestic law should provide for measures that were less
invasive than deprivation of liberty to guarantee an individual’s appearance during the appeal
proceedings. In the present case, the confiscation of I.S.’s identity papers and other official
documents could have constituted a sufficient alternative measure to ensure his presence at the
appeal stage.
The Government had also submitted that a dangerous person who was acquitted “in error” at first
instance might commit a further offence while the appeal proceedings were ongoing. The Court
found it self-evident that if there were specific reasons to suspect that such an eventuality might
occur, there would be nothing to prevent the criminal justice authorities from ordering the person’s
further detention on the basis of the first limb of Article 5 § 1 (c) of the Convention. However, the
Court could not be satisfied merely by the general concern, as expressed by the Government, that
I.S. might have committed further offences during the appeal proceedings. In that connection it
reiterated its findings in S., V. and A. v. Denmark4 and pointed out that the duty not to commit a
criminal offence in the imminent future could not be considered sufficiently concrete and specific to
fall under Article 5 § 1 (b), at least as long as no specific measures had been ordered which had not
been complied with.
Accordingly, the Court concluded that I.S.’s preventive detention following his acquittal at first
instance did not fall within the exceptions provided for by Article 5 § 1 of the Convention. There had
therefore been a violation of that provision.
Just satisfaction (Article 41)
The Court held that Switzerland was to pay the applicant 25,000 euros (EUR) in respect of
non-pecuniary damage and EUR 7,000 in respect of costs and expenses
