SECOND SECTION

CASE OF TARIQ v. THE CZECH REPUBLIC

(Application no. 75455/01)

JUDGMENT

STRASBOURG

18 April 2006

FINAL

18/07/2006

This judgment will become final in the circumstances set out in Article 44 § 2 of the Convention. It may be subject to editorial revision. 

In the case of Tariq v. the Czech Republic,

The European Court of Human Rights (Second Section), sitting as a Chamber composed of:

Mr J.-P. Costa, President
 Mr I. Cabral Barreto
 Mr K. Jungwiert
 Mr V. Butkevych
 Mr M. Ugrekhelidze
 Mrs A. Mularoni, 
 Mrs E. Fura-Sandström, judges
and Mrs S. Dollé, Section Registrar,

Having deliberated in private on 28 March 2006,

Delivers the following judgment, which was adopted on that date:

PROCEDURE

1.  The case originated in an application (no. 75455/01) against the Czech Republic lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Sudanese national, Mr Mohamed Ali Tariq (“the applicant”), on 18 June 2001.

2.  The applicant, who had been granted legal aid, was represented by Ms K. Veselá-Samková, a lawyer practising in Prague. The Czech Government (“the Government”) were represented by their Agent, Mr V.A. Schorm from the Ministry of Justice.

3.  On 3 December 2004 the Court decided to communicate the application to the Government. Under the provisions of Article 29 § 3 of the Convention, it decided to examine the merits of the application at the same time as its admissibility.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

4.  The applicant was born in 1966. He entered the Czech Republic in 1983.

A. The criminal proceedings

5.  On 17 December 1997 at 10.30 a.m. the applicant was brought to a police investigation office in order to provide certain explanations (podání vysvětlení) in connection with an investigation for fraud. He was heard by a police investigator from 2.15 to 4.45 p.m. A lawyer was appointed for him. The applicant was arrested at 5.50 p.m, and charged with attempted fraud under sections 8(1) and 250(1) and (4) of the Criminal Code (hereinafter “the CC”) on the ground that he, together with a certain M.M., had opened bogus bank accounts on which they had attempted to collect CZK 56,228,000 (EUR 1,938,897) and CZK 36,572,000 (EUR 1,261,103) through false postal orders.

6.  On 19 December 1997 the applicant was brought before a judge at the Prague 1 District Court (soudce obvodního soudu) who ordered his detention on remand.  On the same day, the applicant’s home was searched.

7.  On 19 January 1998 the Prague Criminology Institute (Kriminalistický ústav) was requested to draw up an expert report on the false postal orders.  On 16 February 1998 the Criminology Technique and Expertise Department of the criminal police (odbor kriminalistické techniky a expertiz) was requested to examine the applicant’s computer and diary. The expert opinions were submitted on 29 April and 12 June 1998 respectively.

8.  On 3 and 18 March, 22 July and 22 October 1998 respectively, the applicant was heard.

9.  On 18 March 1999 he was informed that his criminal activity would be considered as complicity in fraud in an organised group under section 43 of the CC. On 6 September 1999 the postal orders were described.

10.  On 24 September and 9 August 2000 respectively, the applicant was heard.

11.  On 25 April 2001 the applicant’s defence counsel, after having examined her client’s file, asked that the evidence be completed by the hearing of two witnesses, one of them, T., being the applicant’s cousin. His request was refused by the police investigator on 22 May 2001 who did not consider the hearing of these witnesses necessary for the decision of the prosecutor and court.

12.  Meanwhile, 28 other suspects had been charged with the same offence, some of them being placed in custody.

13. On 3 July 2001 the Prague Regional Prosecutor (krajský státní zástupce), upon the investigator’s proposal of 21 June 2001, indicted the applicant and other co-accused before the Prague Regional Court (krajský soud). The applicant was so informed on 4 July 2001.

14.  On 6 September 2001 the Regional Court sent the case back to the Regional Prosecutor for additional investigations. It held that the applicant should remain in custody until 17 December 2001. On 22 November 2001 the High Court dismissed the prosecutor’s objection to this decision. On 5 December 2001 the case file was remitted to the Regional Prosecutor.

15.  On 29 May 2002 the applicant was heard but used his right to remain silent.

16. On 14 August 2002 another expert, having been appointed on 13 February 2002, submitted a report.

17.  Between June 2002 and January 2003, the authorities took a number of procedural steps.

18.  On 30 January 2003 the Regional Prosecutor again indicted all the suspects, including the applicant. The indictment contained 89 pages. The applicant was so informed on 10 April 2003.

19.  On 15 April 2003 the indictment in Czech, French and Arabian was forwarded to the Regional Court which, on 15 July 2003, set the trial for 20 October until 19 November 2003.

20.  On 10 September 2003 a procedural hearing of the applicant was held. The latter said that he would not need an interpreter at the trial.

21.  According to the Government, the Regional Court started to deal with case on 21 October 2003, eight suspects having failed to attend the trial on 20 October 2003. The criminal case relating to two suspects was excluded from the joint trial.

22.  On 22 October 2003 an interpreter into French was appointed to assist M.M. who did not understand Czech. On 27 October 2003 an interpreter into Arabian was appointed for the needs of certain witnesses.

23.  The trial continued between 7 and 30 January 2004, 36 witnesses being summoned and an additional expert report in psychiatry being ordered. According to the Government, the main hearing was actually held from 7 to 9 January 2004 and on 13, 16, 19 and 27 January 2004.

24.  From 19 to 27 January 2004 the case file was given to the Prague High Court (Vrchní soud) for an examination of a complaint made by one of the suspects against a detention order. The matter was decided on 26 January 2004 and, according to the Government, the case file was immediately remitted to the Regional Court.

25.  The court continued to deal with the case between 1 and 26 April 2004, certain witnesses not having attended court. 19 witnesses were summoned to attend the hearing.

26.  On 22 March 2004 the court issued two arrest warrants against two suspects. Nevertheless, the main hearing continued on 1-2, 5, 7-9, 13-16 and 19-20 April 2004. On 21 April 2004 the hearing had to be adjourned until 21 June 2004. 16 witnesses were summoned to attend the court.

27.  The main hearing was held from 21 to 23 June and from 24 to 25 June 2004.

28.  In a judgment of 28 June 2004, the Regional Court found the applicant guilty of attempted fraud under sections 8(1) and 250(1) and (4) of the CC, and was sentenced to five years and six months’ imprisonment. A time-limit for the elaboration of the judgment was extended until 22 January 2005 because of the complexity of the case.

29.  The criminal proceedings are now pending before the High Court, which scheduled a hearing for 21 February 2006.

B. The applicant’s pre-trial detention

30.  On 19 December 1997 the judge at the Prague 1 District Court ordered the applicant’s detention on remand, upon a request of 18 December 1997 by the Prague Municipal Prosecutor (městský státní zástupce), under section 67(a) and (b) of the Code of Criminal Procedure (hereinafter “the CCP”), with effect from 17 December 1997 at 5.50 p.m. The judge held that, given the applicant’s Sudanese citizenship and passport and the fact that he was likely to be sentenced to a lengthy prison sentence, there was a risk that he would abscond to avoid the criminal proceedings. The judge also found that the applicant, being prosecuted together with M.M., could influence his co-accused and witnesses who had not yet been heard, and thus jeopardize the investigation.

31.  On 16 January 1998 the Municipal Court dismissed the applicant’s complaint against his detention order.

32.  On 3 March 1998 the District Court rejected the applicant’s request for release. On 27 March 1998 the Municipal Court upheld this rejection.

33.  On 2 June 1998 the court, following the Municipal Prosecutor’s request of 29 May 1998, extended the applicant’s detention on remand until 17 October 1998. It held that the applicant was likely to be sentenced to a lengthy prison sentence which created the risk that he would abscond abroad if released, and that he could influence M.M. or other persons who had not yet been questioned.

34.  On 30 September 1998 the District Court, upon the Municipal Prosecutor’s request, extended the applicant’s detention on remand until 17 February 1999. The court considered that the reasons for the applicant’s detention, as set out in the earlier decision, were still relevant. It emphasised the fear that the applicant would influence M.M. who was currently serving his prison sentence or other persons who had not yet been heard. It finally referred to the complex character of the case which needed to be properly investigated.

35.  On 23 October 1998 the Prague Municipal Court (městský soud) dismissed the applicant’s complaint of 12 October 1998 against this extension.

36.  On 14 December 1998 the applicant filed a constitutional appeal (ústavní stížnost) against the court decisions by which his detention on remand had been extended. He complained in particular that his continued detention on remand was not justified, and that the courts had not dealt with the case properly when examining the existence of the reasons for extending his detention. He further complained that he had not been brought before the court within 24 hours, as required by law. He invoked in this connection Articles 3 § 1 (the prohibition on discrimination), 8 §§ 2, 3 and 5 (the right to liberty and security), 36 § 1 (the right to judicial protection) and 40 § 2 (the presumption of innocence) of the Charter of Fundamental Rights and Freedoms (Listina základních práv a svobod).

37.  On 4 January 1999 M.M., whose prison sentence would have expired on 6 January 1999, was taken into custody pursuant to section 67(1)(a) of the CCP.

38.  On 26 January 1999 the District Court, upon the Municipal Prosecutor’s request of 22 January 1999, decided to prolong the applicant’s detention on remand until 17 June 1999, with reference to section 71(2) of the CCP, finding that the reasons for the detention under section 67 § 1(a) and (b) of the CCP continued to exist. The applicant’s belated complaint against this extension was rejected by the Municipal Court on 19 February 1999.

39.   In the meantime, on 15 February 1999, the investigator had decided to join the applicant’s and M.M.’s cases.

40.  On 3 June 1999 the Prague-East District Court extended the applicant’s detention on remand until 17 November 1999. On 30 June 1999 the Regional Court, upon the applicant’s and M.M.’s complaints, found that the reasons for their detention still existed, but reduced the detention period to 28 September 1999, considering that the investigation could be closed by the end of September 1999.

41.  In the meantime, on 9 June 1999, the Constitutional Court (Ústavní soud) had rejected the applicant’s constitutional appeal as being manifestly unsubstantiated.

42.  On 13 September 1999 the District Court, at the Prague Regional Prosecutor’s (krajský státní zástupce) request of 6 September 1999, extended the applicant’s, M.M.’s and two other suspects’ detention on remand until 31 October 1999 with reference, inter alia, to the necessity to complete the investigation.

43.  On 15 October 1999, the District Court granted the Regional Prosecutor’s request of 11 October 1999 and extended the applicant’s detention on remand until 16 December 1999, stating that other persons had been accused in the meantime which would require hearing all 31 accused persons, as well as certain witnesses and experts. It found that there was still a risk that the applicant would influence the witnesses and co-accused and, given the risk of a lengthy prison sentence being imposed on him, he might avoid the criminal prosecution by absconding abroad.

44.  On 29 October and 24 November 1999, the Regional Court dismissed the applicant’s complaints against the decisions of 13 September and 15 October 1999, by which his detention had been extended until 31 October and 16 December 1999 respectively.

45.  On 10 December 1999 the High Court, upon the motion of the Prague High Prosecutor’s Office (Vrchní státní zástupce), relying on section 71(3) of the CCP, extended the applicant’s detention until 31 May 2000 finding that there were still reasons for his detention under section 67(1)(a) and (b) of the CCP. It referred, inter alia, to the complex character of the case. It further relied on the reasonable suspicion based on cogent evidence that the applicant had committed the serious criminal offence with which he had been charged.

46.  On 6 January 2000 the Supreme Court (Nejvyšší soud) quashed the aforesaid decision, holding that there were no concrete reasons justifying the applicant’s remand in custody for fear of collusion or intimidation, under section 67(b) of the CCP, and decided anew, finding that there was still a risk that the applicant would abscond and avoid the criminal prosecution if released given the possible lengthy prison sentence, his Sudanese citizenship and domicile and his personal and family background. It held that the criminal proceedings had not been terminated within the two-year detention time-limit laid down in section 71(3) of the CCP, due to the complexity of the case and for other serious reasons. The court finally held that, on the basis of the material evidence collected in the pre-trial proceedings, it was possible to conclude that the serious criminal offence with which the applicant had been charged had really been committed by him.

47.  On 5 April and 7 June 2000 respectively, the District Court dismissed the applicant’s requests for release. On 28 April and 13 July 2000 respectively, the Regional Court rejected his complaints against these dismissals.

48.  On 19 May 2000 the High Court, granting the High Prosecutor’s request of 5 May 2000, extended the applicant’s detention until 30 November 2000, pursuant to section 71(3) of the CCP. It referred to the complex character of the case involving 31 suspects. The court stated inter alia that, given the legal classification of the applicant’s offence, he was likely to be sentenced to a lengthy term of imprisonment if convicted. It also noted that, being of a Sudanese nationality and having his domicile not only in Prague but also in Sudan, and having his family there and in the United States of America, the applicant might abscond. It considered, therefore, that his detention was still necessary within the meaning of section 67(1)(a) of the CCP.

49.  On 21 June 2000 the Supreme Court rejected the applicant’s complaint against this extension, referring, inter alia, to his Tunisian nationality and passport1, and to the fact that he had his domicile and family in Tunis. The court dismissed any discriminatory element which could be used against the applicant in order to keep him in custody.

50.  On 21 July 2000 the applicant filed a second constitutional appeal, this time filed against the two last decisions. He alleged a violation of Article 8 §§ 1, 2 and 5 of the Charter.

51.  On 24 November 2000 the High Court extended the applicant’s pre-trial detention up to 30 March 2001 under section 71(3) of the CCP finding, with reference in particular to the extent of pecuniary damage allegedly caused by the suspects, that there was still a real risk that the applicant, a Sudanese citizen, would avoid the criminal prosecution or possible lengthy prison sentence if released.

52.  On 29 November 2000 the applicant’s counsel informed the Constitutional Court that his client’s detention had again been prolonged.

53.  On 21 December 2000 the Supreme Court dismissed the applicant’s complaint of 30 November 2000 against the decision of 24 November 2000 to extend his detention until 30 March 2001. The court shared the opinion of the High Court that the reason for the applicant’s continued detention under section 67(1)(a) of the CCP persisted. It referred in this respect to the previous decision of the High Court of 21 June 2000 describing the applicant’s ties with the Czech Republic, the character of his criminal activities and possible prison sentence.

54.  On 6 February 2001 the Constitutional Court dismissed the applicant’s second constitutional appeal as being manifestly ill-founded. It held that the decisions extending the applicant’s detention beyond two years had been taken by virtue of section 71(3) of the CCP, and that it was clear from the evidence available that these decisions had been taken on the basis of the facts established at the material time.

55.  On 20 March 2001 the High Court granted the High Prosecutor’s request of 13 March 2001 to extend the applicant’s pre-trial detention until 30 June 2001. On 24 April 2001 the Supreme Court dismissed the applicant’s complaint against this extension.

56.  On 21 May 2001 the District Court dismissed the applicant’s request for release. On 20 July 2001 the Regional Court rejected the applicant’s complaint against this dismissal.

57.  On 19 June 2001 the High Court, upon the High Prosecutor’s request of 5 June 2001, extended the applicant’s detention on remand until 31 August 2001. Referring to the complex character of the case, the seriousness of the criminal activities with which the applicant and the other suspects had been charged and to the evidence collected so far, it found that it had been impossible to close the investigation within the two-year statutory period. It further held that the purpose of the criminal proceedings would be jeopardised if the suspects were released. In this respect the court recalled, inter alia, that the applicant was a Sudanese citizen, that his family lived in Sudan and that he did not have any family or other ties with the Czech Republic. On 18 July 2001 the Supreme Court dismissed the applicant’s complaint of 2 July 2001 against the extension.

58.  On 1 August 2001 the High Court granted the request dated 10 July 2001 of the president of the chamber of the Regional Court to extend the applicant’s pre-trial detention until 17 December 2001, finding that the reason for the applicant’s detention under section 67(1)(a) of the CCP continued to exist. The applicant’s complaint against this extension was dismissed on 21 August 2001 by the Supreme Court which found that there were good reasons to extend his detention in accordance with section 71(4) of the CCP, sharing the opinion of the High Court. It held that the case was factually complex and that the competent authorities had not been responsible for any unjustified delay.

59.  On 17 December 2001 the applicant was released from custody.

C. The procedure on the applicant’s request for a residence permit

60.  On 28 June 2002 the applicant married a Czech woman.

61.  On 16 August 2002 the applicant filed an application for a residence permit in order to live with his Czech wife.

62.  On 2 September 2002 the Prague Aliens and Customs Police Service (služba cizinecké a pohraniční policie) suspended the examination of this request given the criminal investigation against the applicant which was still pending. It held in particular that, under section 70(1)(e) of the Aliens’ Residence in the Czech Republic Act, such a request had to be supported by a certificate of good conduct (doklad k posouzení trestní zachovalosti) proving that he had no criminal record in his own country, in a country where he had his permanent residence or in a country where he had been living for more than six months in the past three years. The Service also held that the application had not contained necessary documents confirming the reason for his residence in the Czech Republic or his financial means to live there. It referred to section 70(1)(c) and (d) of the Act.

63.  On 6 December 2002 the Constitutional Court dismissed as unsubstantiated the applicant’s constitutional appeal against the aforesaid decision, in which he had alleged a violation of his rights guaranteed by Article 36 §§ 1 and 2 and Article 40 § 2 of the Charter.

64.  On 2 January and 3 April 2002 respectively, the Deputy Ombudsman (zástupkyně veřejného ochránce práv) found that the Service had proceeded unlawfully.

65.  On 5 June 2003 a private translation company offered employment to the applicant. On 17 July 2003 it withdrew the offer, as the applicant had not submitted his residence permit.

II. RELEVANT DOMESTIC LAW

66.  Until 31 December 1998, section 67 of the Code of Criminal Procedure provided that an accused person may be remanded in custody only if there existed specific grounds to believe that he or she

a) will abscond in order to avoid prosecution or punishment, in particular if the person’s identity cannot be immediately established, if the suspect has no permanent residence or if there is a risk of a heavy penalty being imposed;

b) will try to influence the witnesses or co-accused who have not yet been heard by the court, or otherwise frustrate the investigation into the facts which are of importance for the conduct of the proceedings; or

c) will carry on the criminal activity for which he or she is being prosecuted, or will accomplish an offence previously attempted, or will commit an offence which was being prepared or threatened.

67.  As of 1 January 1999, section 67 was slightly modified by a second, new sub-section which provides that, in the preliminary proceedings, the court may impose detention on remand or extend such detention only if this is justified for one of the reasons indicated in sub-section 1, and if the ascertained facts indicate that the criminal offence with which the accused is charged has been committed, and that there is a justified suspicion that the accused is its author.

68.  Pursuant to section 71(1), the competent authorities shall give priority to cases involving a person’s detention on remand, dealing with them as speedily as possible.

69.  Section 71(3) provides that a person’s detention on remand shall not exceed two years. If, because of the complexity of the matter or for other serious reasons, it is not possible to complete the criminal proceedings within this period, and if the release of the accused person would jeopardise or substantially complicate achieving the aim of the proceedings, the High Court may extend the detention for the necessary period.

70.  Under section 71(4), a person’s detention on remand shall not exceed three years. In cases of particularly serious offences, within the meaning of section 41(2) of the Criminal Code, the maximum period of detention on remand is four years.

71.  Under section 70(1)(d) of the Aliens’ Residence in the Czech Republic Act (Act no. 326/1999), when filing an application for a residence permit, an alien must submit a document confirming that he or she has the financial means to stay in the Czech Republic.

72.  Pursuant to section 70(1)(e), the alien must also submit excerpts from the criminal records of the Czech Republic, his or her own country, or a country in which the alien has had permanent residence, or a country in whose territory the alien has stayed for more than six months in the past three years, in order to prove the absence of any criminal convictions.

73.  Section 174 provides that a petitioner without a criminal record is one whose entry in the criminal records of the Czech Republic does not contain a notice that he or she has been convicted of a criminal offence, or whose entry in the criminal records of a foreign country does not contain such a conviction. The integrity of a person is proved by excerpts from the relevant criminal records or equivalent documents which are not older than six months.

THE LAW

I.  ALLEGED VIOLATION OF ARTICLE 5 §§ 1 AND 3 OF THE CONVENTION

74.  The applicant complained that his detention on remand had been contrary to national law and unreasonably long, contrary to Article 5 §§ 1 and 3 of the Convention, which in so far as material reads as follows:

“1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: ...

c. the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; ...

3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this article ... shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”

A.  Admissibility

75. The Government argued that the applicant had failed to exhaust domestic remedies, as required by Article 35 § 1 of the Convention, in that he had not filed a constitutional appeal against the decisions of the District Court of 19 December 1997 and that of the Municipal Court of 16 January 1998, by which his detention on remand had been ordered.

76.  The Court notes that the applicant was charged with attempted fraud on the ground that, together with a certain M.M., he had opened bogus bank accounts on which he had attempted to collect money through false postal orders.

77.  The Court also notes that the applicant was arrested on 17 December 1997 and stayed in detention on remand until 17 December 2001. However, he did not appeal against the arrest and remand decisions. He only appealed against the extensions of the custody periods, the first appeal being ultimately refused by the Constitutional Court on 9 June 1999, more than six months before the application was lodged with the Court on 18 June 2001. Consequently, insofar as the applicant complains about the original decision to remand him in custody, the Court is barred from examining it by virtue of Article 35 §§ 1 and 4 of the Convention.

78.  Insofar as the applicant has complained about the extensions of the remand decision, only those dealt with by the Constitutional Court on 6 February 2001 fall within the Court’s competence for the purposes of Article 35 § 1 of the Convention. However, the Court notes that the applicant was still under reasonable suspicion of having committed an offence and that the domestic courts consistently upheld the lawfulness of the measure. In the absence of any element of arbitrariness in the relevant domestic decisions, the Court concludes that the case discloses no appearance of a violation of Article 5 § 1 of the Convention. It follows that this aspect of the case is to be rejected as being manifestly ill-founded, pursuant to Article 35 §§ 3 and 4 of the Convention.

79.  Insofar as an issue of unlawfulness may otherwise arise from the protracted length of the applicant’s detention until 17 December 2001, the Court finds that the question falls to be examined on the merits below under Article 5 § 3 of the Convention (see, mutatis mutandis, Scott v. Spain, judgment of 18 December 1996, Reports of Judgments and Decisions 1996-VI, p. 2397, § 61). This aspect of the case cannot be declared inadmissible.

B.  Merits

1.  Period to be taken into consideration

80.  The Court observes that the applicant was arrested on 17 December 1997 (see paragraph 30 above). He was released on 17 December 2001 (see paragraph 59 above). Accordingly, the total period of his detention on remand amounts to four years.

2. The reasonableness of the length of detention

(a)  The parties’ arguments

81.  The Government were of the opinion that the applicant’s detention had been necessary in order to secure the proper conduct of the proceedings. There had been valid reasons for holding the applicant in detention for the entire period in question. The Government firstly referred to the serious suspicion that the applicant had committed the offences with which he had been charged. They further relied on the particularly complex character of the criminal investigation which involved 31 persons, of whom 29 were officially indicted. The competent authorities heard hundreds of witnesses and victims. Moreover, they had had to ensure the translation from Czech into French and Arabic for the needs of the applicant and his co-accused M.M. The Government emphasised that there had existed “relevant and sufficient” grounds justifying the applicant’s continued detention. In this respect, they submitted that the applicant was a Sudanese citizen with a valid passport and that he had been likely to be sentenced to a lengthy prison sentence, what had created a risk that he would abscond to avoid the criminal proceedings if released. The national courts had also found that the applicant could have influenced his co-accused and the witnesses, thus jeopardising the investigation.

82. The Government submitted that the applicant’s detention had been subject to permanent and diligent judicial supervision. In the Government’s view, the domestic courts had adduced “relevant and sufficient” reasons for the applicant’s detention. They agreed that the applicant had the right to avail himself of the defence remedies offered to him under national law. Nevertheless, it was an objective fact that he had delayed the proceedings by numerous complaints.

83.  The Government concluded that the length of and reasons for the applicant’s continued detention were in conformity with the case-law of the Court.

84.  The applicant submitted that his detention had been unduly long. He disputed the Government’s argument that the main reason for his detention had not been his Sudanese citizenship and valid passport. The irrelevance of this reason was, according to him, proved by the fact that the trial had started two years after his release.

85.   As to the necessity of the extensions of his detention, the applicant noted that the national authorities had nearly always applied the maximum period of time provided for by law. He conceded that the case was complex. It was, however, unacceptable that the pre-trial proceedings had lasted almost six years.

(a)      The Court’s assessment

(i) Principles established by the Court’s case-law

86. The Court recalls that the issue of whether a period of detention is reasonable cannot be assessed in abstracto. Whether it is reasonable for an accused to remain in detention must be assessed in each case according to its special features. Continued detention can be justified in a given case only if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty laid down in Article 5 of the Convention (see, among other authorities, Labita v. Italy [GC], no. 26772/95, § 152, ECHR 2000-IV; Kudła v. Poland [GC], no. 30210/96, §§ 110-111 with further references, ECHR 2000-XI).

87.  It falls in the first place to the national judicial authorities to ensure that, in a given case, the pre-trial detention of an accused person does not exceed a reasonable time. To this end they must, paying due regard to the principle of the presumption of innocence, examine all the facts arguing for or against the existence of a public interest justifying a departure from the rule in Article 5, and must set them out in their decisions on the applications for release. It is essentially on the basis of the reasons given in these decisions and of the well-documented facts stated by the applicant in his appeals that the Court is called upon to decide whether or not there has been a violation of Article 5 § 3 (see, for example, Labita v. Italy, cited above, § 152, and Kudła v. Poland, cited above, § 110).

88.  The persistence of a reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but after a certain lapse of time it no longer suffices. In such cases, the Court must establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty. Where such grounds were “relevant” and “sufficient”, the Court must also ascertain whether the competent national authorities displayed “special diligence” in the conduct of the proceedings (see, among others, I.A. v. France, judgment of 23  September 1998, Reports 1998-VII, p. 2979, § 102).

(ii) Application of the principles to the circumstance of the present case

89.  The Court observes that the judicial authorities relied, in addition to the reasonable suspicion against the applicant, on the need to secure the proper conduct of the criminal proceedings (see paragraphs 30, 33-34, 38, 40, 43, 45-46, 48, 51, 53, 57 and 58 above). In this respect, they referred to the risk of the applicant’s absconding, given his Sudanese citizenship and valid passport, and the fact that his family lived abroad and that he had no close ties to the Czech Republic. The courts also relied on the lengthy sentence which he risked incurring if found guilty of the serious charges he was facing. Furthermore, the applicant’s pre-trial detention was justified by the danger of pressure being brought to bear on his co-accused and the witnesses.

90.  The Court shares the opinion of the Government that the prolongation of the applicant’s detention twelve times was in accordance with the relevant material and procedural conditions provided for by law.

91.  The Court accepts that the reasonable suspicion against the applicant of having committed the offences with which he had been charged may have warranted his detention in the early stage of the proceedings. However, with the passage of time, that ground inevitably became less relevant. In particular, the Court considers that this ground cannot suffice to justify the entire period at issue. It must then establish whether the other grounds advanced by the judicial authorities were “relevant” and “sufficient” to continue to justify the deprivation of liberty.

92.  As regards the risk of absconding, obstructing or avoiding the criminal proceedings, the Court finds that the applicant’s Sudanese citizenship and passport, as well as the fact that his family lived abroad, could and certainly did justify keeping him in custody at the initial stages of the proceedings. However, the Court considers that that ground also gradually lost its force and relevance as the proceedings progressed. In particular, given the absence of any attempt on the part of the applicant to obstruct the proceedings, it is difficult to accept that the sole fact that he was an alien with family abroad could justify the conclusion that the risk of his escaping persisted during the entire four years on remand.

93.  Moreover, it appears that the applicant’s detention no longer served the purpose of securing the proper conduct of the court proceedings. Holding him in custody does not seem to have helped the Regional Court to proceed more speedily with the trial, which did not start until two years after the applicant’s release (see paragraphs 21 and 59 above).

94.  As to the impact of a possible severe sentence, the Court acknowledges that this is a relevant element in the assessment of the risk of absconding or re-offending. This, in view of the seriousness of the accusations against the applicant, the authorities could justifiably have considered that such a risk was established in the early stages of the case. However, the Court has repeatedly held that the gravity of the charges cannot in itself serve to justify long periods of detention on remand (see Ilijkov v. Bulgaria, no. 33977/96, §§ 80-81, 26 July 2001). In the circumstances of the present case and having particular regard to the fact that the applicant was ultimately sentenced to five and a half years’ imprisonment (see paragraph 28 above), the Court finds that the severity of the anticipated penalty, either alone or in conjunction with the other grounds relied on by the authorities, cannot constitute a “relevant and sufficient ground” for holding the applicant in detention for the extensive period of four years.

95.  The Court accordingly concludes that the reasons relied on by the courts in their decisions were not sufficient to justify the applicant’s being held in detention for such a long time.

96.  That finding would, as a rule, absolve the Court from determining whether the national authorities displayed “special diligence” in the conduct of the proceedings. However, in that context the Court cannot but note that, although the applicant was arrested on 17 December 1997, he was not indicted until 3 July 2001 (see paragraphs 5 and 13 above). After having been returned to the Regional Prosecutor on 6 September 2001, the new indictment was issued on 30 January 2003, i.e. over 16 months later (see paragraphs 14 and 18 above). In addition, the Court notes that the trial started in October 2003, i.e. almost two years after the applicant had been released (see paragraphs 21 and 59 above). The Court considers that, although the present case may have been factually complex, involving a considerable number of accused persons, requiring the hearing of a large number of witnesses and the administration of other evidence, the considerable delays in submitting the official indictments against the applicant were significant. Consequently, it cannot be said that the authorities displayed “special diligence” in the conduct of the criminal proceedings against the applicant.

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

III. ALLEGED VIOLATION OF ARTICLE 6 § 1 OF THE CONVENTION

98.  The applicant complained that the length of the proceedings had been incompatible with the “reasonable time” requirement of Article 6 § 1 of the Convention, which reads as follows:

“In the determination ... of any criminal charge against him, everyone is entitled to a ... hearing within a reasonable time by [a] ... tribunal ...”

99.  The Government contested that argument.

100.  The period to be taken into consideration began on 17 December 1997, the day of the applicant’s arrest, and has not yet ended. It has thus lasted over eight years and three months for two levels of jurisdiction.

A.  Admissibility

101.  The Court notes that this complaint is not manifestly ill-founded within the meaning of Article 35 § 3 of the Convention. It further notes that it is not inadmissible on any other grounds. It must therefore be declared admissible.

B.  Merits

102.  The Court reiterates that the reasonableness of the length of proceedings must be assessed in the light of the circumstances of the case and with reference to the following criteria: the complexity of the case, the conduct of the applicant and the relevant authorities (see, among many other authorities, Pélissier and Sassi v. France [GC], no. 25444/94, § 67, ECHR 1999-II).

103.  The Court has frequently found violations of Article 6 § 1 of the Convention in cases raising issues similar to the one in the present case (see Pélissier and Sassi, cited above).

104.  Having examined all the material submitted to it, the Court considers that the Government have not put forward any fact or convincing argument capable of persuading it to reach a different conclusion in the present case. Having regard to its case-law on the subject, the Court finds that in the instant case, notwithstanding its rather complex nature, the length of the proceedings was excessive and failed to meet the “reasonable time” requirement.

There has accordingly been a breach of Article 6 § 1.

III. OTHER ALLEGED VIOLATIONS OF THE CONVENTION

105.  The applicant complained under Article 5 § 4 of the Convention that his two constitutional appeals, in which he had criticised the reasons for which his detention had been ordered and extended, had been dismissed by the prosecution because the judicial authorities had withdrawn relevant documents from his criminal file.

Under Article 5 § 5 of the Convention, the applicant further claimed damages for his allegedly illegal detention which had started in 1997.

Invoking Article 14 of the Convention, the applicant next complained that the competent authorities had discriminated against him due to his foreign citizenship. He noted that his cousin T. had been able to visit him in prison eighteen months after the applicant’s arrest and had been allowed to leave the Czech Republic. However, the authorities had later found that the hearing of his cousin had been necessary. Therefore, the applicant’s detention had had to be extended once again. Moreover, when the applicant’s lawyer had asked to have the investigation completed by T.’s hearing, the request had been rejected.

The applicant complained that the decision of the Aliens and Customs Police Service to suspend administrative proceedings because of a question of criminal records had violated Article 6 § 2 of the Convention.

In his written observations on the admissibility and merits submitted on 27 May 2005, the applicant further alleged a violation of his rights guaranteed by Articles 3 and 8 of the Convention.

106.  However, even assuming that the applicant has exhausted domestic remedies, as required by Article 35 § 1 of the Convention, the Court finds that, in the light of all the material in its possession, and in so far as the matters complained of were within its competence, they do not disclose any appearance of a violation of the rights and freedoms set out in the provisions invoked by the applicant.

107.  This part of the application is manifestly ill-founded and must therefore be rejected in accordance with Article 35 §§ 3 and 4 of the Convention.

IV. APPLICATION OF ARTICLE 41 OF THE CONVENTION

108.  Article 41 of the Convention provides:

“If the Court finds that there has been a violation of the Convention or the Protocols thereto, and if the internal law of the High Contracting Party concerned allows only partial reparation to be made, the Court shall, if necessary, afford just satisfaction to the injured party.”

A.  Damage

109.  The applicant claimed a total of USD 35,000,000 (EUR 29,061,078) and EUR 462,000 in respect of pecuniary and non-pecuniary damages. He claimed compensation for loss of profits without, however, providing any details. The applicant finally asked for an apology to be published in Sudanese, Egyptian and British daily newspapers for the alleged violation of the presumption of innocence guaranteed by Article 6 § 2 of the Convention.

110.  The Government considers that the applicant’s claims are partly irrelevant and partly exorbitant. They invited the Court to dismiss the applicant’s claims for compensation for pecuniary damage for the period in custody. Furthermore, they were of the opinion that the Court should only award the applicant a reasonable compensation in respect of a possible violation of the “reasonable time” requirement of Article 6 § 1 of the Convention. In respect of a possible violation of Article 5 §§ 1 and 3 of the Convention, the Government argued that the finding of a violation would constitute sufficient just satisfaction in respect of any non-pecuniary damages the applicant might have sustained.

111. As regards the applicant’s claim for pecuniary damages, the Court considers that there is no causal link between the violations found and the pecuniary damage claimed. Consequently, it finds no reason to award the applicant any sum under this head.

112.  However, the Court finds that the applicant has suffered non-pecuniary damage – such as distress resulting from the unreasonably protracted length of his detention and of the criminal proceedings – which is not sufficiently compensated by the finding of a violation of the Convention (see, mutatis mutandis, Harazin v. Poland, judgment of 10 January 2006, § 53). Considering the circumstances of the case and making its assessment on an equitable basis, the Court awards the applicant EUR 7,000 under this head.

B.  Costs and expenses

113.  The applicant sought reimbursement of his costs and expenses incurred before the domestic authorities and the Court. However, he has neither quantified the amount nor submitted any receipts or other documents in support of his claim.

114.  The Government contested this claim which had not been supported by any evidence.

115.  The Court notes that the applicant was granted EUR 715 in legal aid for his representation by Ms K. Veselá-Samková. As the applicant did not justify having incurred any actual expenses exceeding that amount, the Court makes no award under this head.

C.  Default interest

116.  The Court considers it appropriate that the default interest should be based on the marginal lending rate of the European Central Bank, to which should be added three percentage points.

FOR THESE REASONS, THE COURT UNANIMOUSLY

1.  Declares the complaints concerning the length of the applicant’s detention and the criminal proceedings brought against him admissible and the remainder of the application inadmissible;

2.  Holds that there has been a violation of Article 5 § 3 of the Convention;

3.  Holds that there has been a violation of Article 6 § 1 of the Convention;

4.  Holds

(a)  that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the Convention, EUR 7,000 (seven thousand euros) in respect of non-pecuniary damage, plus any tax that may be chargeable, to be converted into national currency at the rate applicable at the date of settlement;

(b)  that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;

5.  Dismisses the remainder of the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 18 April 2006, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

S. Dollé  J.-P. Costa Registrar President

1 This seems to be a typing error of the court, the applicant being a Sudanese citizen.



TARIQ v. THE CZECH REPUBLIC JUDGMENT


TARIQ v. THE CZECH REPUBLIC JUDGMENT