ECHR ruling of October 06, 2020 in the case "I.S. v. Switzerland (I. S. v. Switzerland)" (aplication No. 60202/15).
In 2015, the applicant was assisted in the preparation of the aplication. Subsequently, the aplication was communicated to Switzerland.
The aplication about the applicant's preventive detention after the acquittal was successfully considered in the case. The case involved a violation of the requirements of paragraph 1 of article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
THE CIRCUMSTANCES OF THE CASE
After the applicant's cohabitant filed a criminal complaint, in which she reported numerous episodes of rape and other crimes, the applicant was placed in custody as a preventive measure chosen for him from August to December 2014, and subsequently - as part of preventive detention, after the prosecutor submitted an indictment. In the law of some foreign countries, there is a concept of "preventive detention", which is literally translated as"preventive/deterrent detention". Its main distinguishing feature is that it is not intended to punish the offender. Its purpose is to prevent the commission of illegal acts. Detention under the chosen preventive measure (pre-trail detention, remand) is considered a special case of "preventive detention".
In April 2015, the court of the Canton of Basel-Stadt in Switzerland acquitted the applicant on all charges. However, at the request of the prosecutor, who intended to appeal the verdict, the canton court decided to extend the applicant's preventive detention, which was allowed by Swiss law, until the sentence entered into force, noting that there were serious suspicions and a risk that the applicant might abscond. The Swiss Federal Court rejected the applicant's complaint against the relevant decision of the canton court on the following grounds: (i) the appeal of the acquittal suspended its consequences; (ii) the circumstances of the case (the word of one party against the word of the other) meant that the acquittal could be overturned with a high degree of probability; (iii) on the contrary, there was strong evidence in the case file that could lead to a review of the sentence; (iv) various factors confirmed the fear that the applicant could have fled to his country of origin.
The applicant was released from custody at the end of 2015, and subsequently, after a review of the sentence by the court of second instance, the applicant was acquitted.
Regarding compliance with article 5, paragraph 1, of the Convention. For the reasons set out below, the Court concluded that the applicant's preventive detention after the acquittal by the court of first instance did not fall under any of the exceptions provided for in Article 5, paragraph 1, of the Convention.
(i) The applicability of subparagraph " c " of paragraph 1 of Article 5 of the Convention. Subparagraph " c " of paragraph 1 of article 5 of the Convention does not contain any restrictions on the detention of a person within the framework of the chosen preventive measure when considering his case by the court of first instance. However, the European Court had the opportunity to clarify this issue, including at the level of the Grand Chamber: the detention of a person on the basis of subparagraph "c" of paragraph 1 of Article 5 of the Convention ends at the time of the acquittal, even if the court of first instance.
This approach was also applied in the present case. Having considered the available facts during the adversarial process and having conducted a detailed assessment of the evidence during the trial, the court of first instance, on the basis of the proceedings in the case as a whole, unanimously concluded that the applicant could not have been convicted of the crimes that were imputed to him in the indictment.
In the opinion of the European Court, in such circumstances it did not matter that the sentence was pronounced only orally and has not yet entered into force: after the acquittal of the applicant, the decision on his detention within the meaning of subparagraph "c" of paragraph 1 of Article 5 of the Convention became invalid.
Moreover, a similar approach is applied in the opposite situation (if the person is found guilty by the court of first instance and is held in custody while the case is being considered by the court of second instance): the period of detention of a person is regulated not by subparagraph " c "of paragraph 1 of article 5 of the Convention, but by subparagraph" a "of paragraph 1 of article 5 of the Convention, since the defendant is considered to be in custody after "conviction by a competent court" as soon as the court of first instance has pronounced a sentence, even if this sentence has not yet entered into legal force and can be overturned by a higher court (see, for example, The judgment of the European Court in the case of "Ruslan Yakovenko V. Ukraine" (Ruslan Yakovenko, V. Ukraine) on June 4, 2015, complaint N 5425/11).
With regard to the probability of erroneous justification, the Court noted that such a reproach to the court of first instance were not voiced either directly or indirectly on any stage of the proceedings the applicant. On the contrary, there was no information about errors in the trial, which is especially important, given the fact that the acquittal, the good reasons for which were set out on 44 pages of this document, was passed unanimously.
In addition, in order to guarantee the appearance of a person in the court of second instance, the legislation should ensure the use of less invasive measures than the deprivation of liberty of a person. For example, in the present case, a sufficient alternative measure would be the seizure of identity documents and other official documents from the applicant.
With regard to the possible risk of committing illegal acts during the review of the sentence by the court of second instance, it is obvious that, if there were special reasons to fear such a possibility, nothing prevented the Swiss criminal justice authorities from ordering further detention on the basis of the first part of article 5, paragraph 1 (c), of the Convention.
Similar reasoning is also true with respect to the second part of subparagraph "c" of paragraph 1 of article 5 of the Convention - prevention of the commission of new crimes by a person - especially if there is an imminent risk of committing a specific and special serious crime that may entail danger to the life or health of third parties or serious material damage. Nevertheless, the detention of a person as a preventive measure should be terminated as soon as the specified risk ceases to exist, and this circumstance requires constant monitoring, since the duration of detention is also essential.
(ii) Applicability of article 5, paragraph 1 (b), of the Convention. In the light of the established case - law of the European Court, the second part of subparagraph "b" of paragraph 1 of Article 5 of the Convention - the detention of a person for non-compliance with a court decision made in accordance with the law or for the purpose of ensuring compliance with any obligation prescribed by law-also could not serve as a justification for the preventive detention of the applicant for about 230 days after his acquittal.
The Swiss authorities mistakenly referred to the case "Harkmann v. Estonia" (Judgment of the European Court of 11 July 2006, complaint No. 2192/03), since in this case the applicant repeatedly violated the District Court's orders to appear at the court hearing in the criminal case. This specificity meant that the reference to the named case could not be relevant to the present case.
The Court was not able to convince the general assumptions alone that the applicant could have committed new crimes during the consideration of his case by the second instance court.
The obligation not to commit criminal offences can be considered sufficiently "precise and specific" only if the place and time of the commission of the crime in the near future and its potential victims are clearly indicated, if the person concerned is aware of what specific action he or she should not commit and if the person refuses to refrain from committing these actions (see the Decision of the Grand Chamber of the European Court in the case " S., V. and A. v. Denmark" (S., V. and A. v. Denmark) of October 22, 2018, complaint No. 35553/12 and other complaints). See: Precedents of the European Court of Human Rights. Special issue. 2018. N 12.
In other words, the obligation not to commit a crime in the near future cannot be considered sufficiently " precise and specific "to fall within the scope of subparagraph" b " of paragraph 1 of article 5 of the Convention, unless special measures are prescribed that are not observed.
The case involved a violation of the requirements of paragraph 1 of Article 5 of the Convention (adopted unanimously).
In the application of article 41 of the Convention. The European Court awarded the applicant 25,000 euros in compensation for non-pecuniary damage.