The state of uncertainty about the reasons for detention and the delayed administration of justice for the legality of detention violated the ECHR. Condemnation of Greece
JUDGMENT
Loizou v. Greece 18.03.2021 (app. no. 17789/16)
SUMMARY
Termination of temporary detention of a detainee to serve a sentence following a conviction in his absence. Uncertainty about the reasons for detention in prisons. Rapid judicial processing of cases related to the legality of detention.
Coincidence between the period of temporary detention and the execution of a prison sentence imposed for an offense other than that of the temporary detention. The period of execution of the sentence is not counted as a period of temporary detention, unless the sentence of imprisonment is converted into a fine and the Prosecutor is obliged to request a written statement from the detainee regarding his intention to redeem it.
In the present case, the conviction was not notified to the applicant in time, nor was the Prosecutor summoned to redeem the sentence. Upon learning of the conviction, he immediately lodged an appeal, which was upheld by the national court, which dismissed the statute of limitations.
The applicant complained that he had been held in custody for the first six months without a court order, citing his right to personal liberty and security and his right to a speedy decision on the lawfulness of his detention. He also complained that the Board of Appeal had not given a speedy decision on the legality of his detention.
Taking into account the above considerations and the special circumstances of the case, the ECtHR considered that between 30.03.2015 (expiration date of the six-month period provided by Article 287 of the Code of Criminal Procedure) and 16.09.2015, the applicant’s detention had no clear legal basis of national law. This situation put the applicant in a state of uncertainty as to the legal basis and reasons for his detention. The ECtHR considered that the judicial authorities did not offer the applicant adequate protection against arbitrariness, which is an essential element of the lawfulness of detention within the meaning of Article 5 § 1 (c). The Court found a violation of Article 5 § 1 (right to liberty and security) of the ECHR.
The ECtHR concluded that the proceedings before the Board of Appeal (4 months and 8 days) did not meet the requirement of speed under the circumstances of the case, as the proceedings before it were not legally or factually complex and only one question arose as to whether whether the applicant was remanded in custody or not. The Strasbourg Court found a violation of Article 5 § 4 (right to a speedy decision on the lawfulness of detention) of the ECHR.
The ECtHR awarded EUR 4,500 for non-pecuniary damage and court costs.
PROVISION
Article 5 par. 1
Article 5 par. 4
PRINCIPAL FACTS
The applicant, Andreas Loizou, is a Cypriot national born in 1966. He was detained in Diavata prison during the submission of the application to the ECtHR. The case concerned the lawfulness of the extension of the applicant’s pre-trial detention, which had been suspended in order to serve a sentence of imprisonment for another offenses and the delay in the applicant’s appeal.
The applicant was arrested on 30 September 2014 and was transferred to the Aliens Directorate of the General Directorate of Thessaloniki Police as a suspect for committing many crimes, in particular for directing a criminal organization and facilitating the illegal transfer of immigrants. He was remanded in custody.
On 12 December 2014, the applicant was remanded in custody pending an 18-month sentence in absentia on 10 March 2011 by the Piraeus Criminal Court.
In fact, on March 10, 2011, the Piraeus Criminal Court sentenced him in absentia to 18 months in prison, which was commuted to a fine of 10 euros per day.
The applicant alleged that this decision was not notified to him in time and that he became aware that he was serving a sentence under that decision and not as a detainee on 4 February 2015, when he requested and received a certificate of detention from the Diavata prison. On the other hand, the Government claimed that the applicant had become aware of the decision on 3 December 2014, when the Piraeus Prosecutor’s Office faxed it to the Agios Athanasios police station where the applicant was being held. As evidence, the Government relied on the fact that the applicant had appealed against that decision on 4 December 2014.
On 27 January 2015 the applicant was transferred to Diavata Prison. The applicant alleges that he was placed in a 20 cm2 cell with 9 other detainees. He also claimed that the cell was not sufficiently heated and that he had not received, by the date of referral to the Court, any response to his request, which was submitted in July 2015, for the examination of his sentence.
On 5 May 2015, the applicant was released by decision of the Criminal Court of 10 March 2011, because the Piraeus Court of Appeal upheld his appeal against the above decision. By decision of 5 May 2015, the Court of Appeal terminated the criminal prosecution against the applicant due to limitation period. He had previously accepted that the applicant’s appeal was out of time, as at the date of notification of the decision, the applicant had been detained at the General Directorate of Police in Thessaloniki, a fact which was known to the judicial authorities. As a result, the time limit for filing an appeal had not expired.
However, the applicant was detained in accordance with the above-mentioned warrant of 6 October 2014.
On 8 May 2015, the applicant lodged an objection with the Judicial Council of the Thessaloniki Court of Appeal (Article 287 § 5 of the Code of Criminal Procedure), arguing that his detention was not lawful and demanded his release from prison. He further stated that he had not served the above-mentioned prison sentence and that he was still in pre-trial detention under the order of 6 October 2014. With regard to the pre-trial detention, he argued that more than seven months had elapsed without the detention order being extended. of. Therefore, he argued, his detention was not legal.
Pursuant to Articles 5 §§ 1 and 4 (right to personal liberty and security / right to a speedy decision on the lawfulness of his detention) of the Convention, the applicant complained that he had been remanded in custody for the first 6 months without judgment. He also complained that the Board of Appeal had not given a speedy decision on his detention.
THE DECISION OF THE COURT…
Article 5 § 1
The Court noted that, in accordance with the relevant domestic law, in the event of a coincidence between the period of provisional detention and the execution of a sentence imposed for an offense other than that for which detention on remand was ordered, the period of execution of the sentence shall not be counted as temporary detention. The only exception to this principle is the case provided in article 3 § 10 of Law 2408/1996. In this case, in the case of a simultaneous execution of a prison sentence which turns into a fine and temporary detention, the prosecutor in charge of the execution must ask the detainee for a written statement of his intention to pay the amount resulting from the conversion of imprisonment sentence. If the latter declares that he will not pay the amount of the fine, the temporary detention is terminated and the detainee is considered to be serving a prison sentence. On the other hand, the temporary detention is not interrupted if the detainee declares that he wishes to pay the required amount.
It is therefore clear that taking into account the execution of a prison sentence to calculate the duration of pre-trial detention may affect the possible release of the detainee. That was the case with the applicant, who was released on 5 May 2015 instead of 8 January 2016. The Court therefore had to consider whether the procedure provided for in national law was followed in the present case.
However, the Court noted that the conviction of 10 March 2011, which provided for the conversion of the prison sentence into a fine, was not notified to the applicant until 3 December 2014 when he was in custody at the Thessaloniki Police Department. Furthermore, it does not appear from the file and the Government do not allege that the applicant was officially and within a reasonable time informed by the authorities that his period of detention had been suspended in order to commence his imprisonment. According to the applicant, he became aware of the interruption on 4 February 2015, when he requested a certificate of detention from the Diavata prison.
Even if it is assumed that the applicant could have known about the dates of the alleged knowledge of the conviction or appeal, ie 3 or 4 December 2014 respectively, as to whether he had to state his intention to redeem the prison sentence or not, as provided for in article 3 § 10 of L.2408 / 1996, does not appear from the file and neither did the Government claim that the prosecutor had invited him to do so, either orally or in writing.
As regards the Government’s argument that the ransom should be redeemed immediately and in a single payment, the Court notes that the time-limit available to the applicant was very short, as on 12 December 2014 the pre-trial detention had already been terminated.
In that regard, the Court considers that what will determine the detainee’s willingness to comply with the obligation to redeem the prison sentence will depend on the three criteria which the courts must take into account: the immediate notification of the decision providing for the conversion of the sentence the detainee on a fine, the express statement of the detainee and upon explicit invitation of the authorities, that he intends to pay the required amount, so as not to interrupt the execution of the temporary detention and the payment of the amount within a reasonable time and in accordance with the conditions in advance.
In view of the above considerations and the special circumstances of the case, the Court found that between 30 March 2015 (the end of the six-month period provided for in Article 287 of the Code of Criminal Procedure) and 16 September 2015, the applicant’s detention had no clear legal basis. basis in national law to be deemed to comply with Article 5 § 1 (c) of the Convention. This situation put the applicant in a state of uncertainty as to the legal basis and reasons for his detention. In those circumstances, the Court held that the judicial authorities did not offer the applicant adequate protection against arbitrariness, which is an essential element of the lawfulness of detention within the meaning of Article 5 § 1 (c).
The ECtHR found a violation of Article 5 § 1 of the Convention.
Article 5 § 4
In the present case, the Court noted that the applicant filed his objections on 08.05.2015. The Diavata prisons forwarded them to the Prosecutor at the Thessaloniki Court of Appeals on 11.05.2015. The proposal of the Prosecutor regarding these objections was submitted on 04.09.2015. The examination of the objections took place on 16.09.2015 and the decision was taken on the same day. The Court therefore notes that the proceedings lasted four (4) months and eight days.
It does not appear that the applicant contributed to the length of those proceedings. The Court also noted that the proceedings were not legally or factually complex: there was only one question, whether the applicant’s detention had been suspended or not. The Court therefore considered that the present case must be distinguished from the Ilnseher case cited above.
The Court then concluded that the proceedings before the Judicial Board of Appeal did not meet the requirement of speed in the circumstances of the case.
The ECtHR found a violation of Article 5 § 4 of the Convention in this respect.
Just satisfaction: EUR 4,500 for non-pecuniary damage and EUR 1,000 for costs and expenses
