Insufficient justification for the imposition of pre-trial detention by national courts. Violation of personal freedom
JUDGMENT
Hysa v. Albania 21.02.2023(app. no. 52048/16)
SUMMARY
The applicant was remanded in custody on the charge of having committed the offense of abuse of power while acting as director of the Tirana Inspection Department of the Regional Tax Directorate. She unsuccessfully challenged her temporary detention before the national courts. He was eventually convicted by national courts of abuse of power in concert with others. The court of first instance, in ordering the applicant’s temporary detention, had referred to the risk of her escaping without providing any justification for the existence of a risk of flight or any personal circumstances of the applicant leading to this conclusion.
The Court of Appeal, when rejecting the applicant’s appeal against her pre-trial detention, relied on essentially the same reasoning as the Court of First Instance, but did not refer to the fact that the applicant was allegedly a flight risk. The Constitutional Court then relied solely on the fact that the applicant’s pre-trial detention had been terminated. By the date the Constitutional Court reached its decision, the applicant had already suffered a deprivation of her liberty. The domestic courts had not provided relevant and sufficient reasoning to support their decisions regarding the applicant’s first period of pre-trial detention.
The ECtHR found a violation of Article 5 § 3 and awarded the applicant 4,500 euros for non pecuniary damage, rejecting her claim for compensation.
PROVISONS
Article 5
Article 5 par. 3
THE DECISION OF THE COURT…
Article 5 § 3:
(a) Proceedings before the district and appellate courts –
The District Court in ordering the applicant’s pre-trial detention had referred to the risk that the applicant would abscond without providing any reason as to why it had considered that she presented a flight risk or pointing to any personal circumstances of the applicant that had led it to that conclusion. The Court of Appeal, when dismissing the applicant’s appeal against her detention, had relied in essence on the same reasoning as the District Court, but had not referred to the fact that the applicant had allegedly presented a flight risk. Although it had held that there had been a risk that if she would reoffend if released, it had not explained what elements had led to it reaching that conclusion, in particular, besides the reference to the gravity of the charges, what weight it had attached to the applicant’s prior criminal record, if any, and her character or behaviour. The applicant’s submission before the appellate court that there had been no risk that she would reoffend as she had been suspended from her official position had warranted an answer. It was unclear why that court had considered that she had still presented a risk of reoffending, notwithstanding her suspension from the office in the exercise of which she had been accused of having committed the offence in issue. The decisions of both courts had been based to a large extent on the grave financial consequences of the offence and the fact that the applicant had been suspected of committing it by means of abusing her public office. However, these considerations did not constitute standalone grounds justifying detention and might not, by themselves, justify depriving the applicant of her liberty unless they were considered when assessing the existence of permissible grounds under which detention might be ordered, pursuant to the Court’s case-law.
Lastly, while both courts had stated in their decisions that alternative measures to the applicant’s detention in prison had been considered to be inadequate, they had not referred in substance to the extent of the consideration they had given to any alternative measures of ensuring her appearance at trial.
(b) Proceedings before the superior courts –
The applicant’s cassation appeal, relying on the requirements concerning the imposition of a detention measure, had been rejected by the Supreme Court by way of a de plano inadmissibility decision on the ground that her claims had not been within its jurisdiction. The Constitutional Court had not examined her arguments on the merits and had rejected her complaint on the sole grounds that she had not been detained in prison any longer, her detention having been replaced by house arrest. That restriction of the applicant’s right to a constitutional review of her first period of detention on account of lack of a legitimate interest, and thus of standing, had not been provided specifically by domestic law but had been identified by the Constitutional Court in its interpretation of Article 134 § 2 of the Constitution, which provided that individuals complaining before that court must justify a personal interest in the proceedings.
In the circumstances, the Court was not persuaded that the Constitutional Court’s decision or the Government’s observations had set out convincingly the reasons for concluding that the applicant had had no personal interest in challenging the lawfulness of her first period of pre-trial detention. In particular, the Constitutional Court had relied exclusively on the fact that the applicant’s pre-trial detention had been discontinued. However, the District Court’s decision to place her under house arrest had not involved any determination of the lawfulness of that first period. By the date on which the Constitutional Court had adopted its decision the applicant had had already endured a deprivation of her liberty; accordingly, she could have legitimately benefitted from a post facto constitutional review of her first period of detention which could have led to the finding that she had been detained in violation of her right to liberty. In addition to the moral interest in obtaining that result, such declaratory relief could have had also opened the way for a compensation claim on the grounds of unlawful detention under Article 5 § 5 of the Convention.
In any event, the Constitutional Court’s refusal to examine the merits of the applicant’s complaint had meant that the shortcomings in the reasoning of the first instance and appeal judgments had not been rectified, and the infringement of the applicant’s right to liberty had not been remedied, by way of either cassation or constitutional review at domestic level. Therefore, the domestic courts had failed to provide relevant and sufficient reasons in support of their decisions regarding the applicant’s first period of detention.
Conclusion: violation (unanimously).
Art 41: EUR 4,500 awarded to the applicant in respect of non-pecuniary damage. Claim in respect of pecuniary damage dismissed.
