Information Note on the Court’s case-law 198
July 2016
Buzadji v. the Republic of Moldova [GC] - 23755/07
Judgment 5.7.2016 [GC]
Article 5
Article 5-3
Reasonableness of pre-trial detention
Absence of relevant and sufficient reasons for pre-trial detention other than reasonable suspicion of commission of an offence: violation
Facts – The applicant, a businessman, was arrested in May 2007 and formally charged with defrauding a State company of which he was the director. He was placed in detention pending trial given the gravity of the charges against him, the complexity of the case and the risk of collusion. His detention was then extended on a number of occasions until July 2007 when the domestic courts accepted his request to be placed under house arrest. He remained under house arrest until March 2008 when he was released on bail.
In a Chamber judgment of 16 December 2014, the Court held, by four votes to three, that there had been a violation of Article 5 § 3 of the Convention because the domestic courts had failed to give sufficient reasons for extending the applicant’s detention pending trial and subsequently ordering his house arrest.
On 20 April 2015 the case was referred to the Grand Chamber at the request of the Moldovan Government.
Law – Article 5 § 3: Under the first limb of Article 5 § 3, persons arrested or detained under Article 5 § 1 (c) on suspicion of having committed an offence have the right to be brought “promptly” before a judicial authority who will examine the lawfulness of the detention and whether the suspicion is reasonable.
Under the second limb of Article 5 § 3 – the right to a trial within a reasonable time or to release pending trial – the Court’s case-law provided that the persistence of a reasonable suspicion is a condition sine qua non for the validity of the continued detention, but, after a “certain lapse of time”, this no longer suffices so that other “relevant and sufficient” reasons to detain are required. The Court had, however, never defined the length of a “certain lapse of time” although it had recognised that it could be as short as a few days.
The Court therefore considered it useful to further develop its case-law as to the requirement on national judicial authorities to justify continued detention for the purposes of the second limb of Article 5 § 3. As a starting point, it reiterated that the period to be taken into consideration for the assessment of the reasonableness of the detention under the second limb begins when the person is deprived of his or her liberty.
The Court noted that, while the two limbs conferred distinct legal rights, there were certain overlaps: the period started to run for both from the time of arrest; both required a judicial authority to determine whether there were reasons justifying detention and to order release if not; and in practice the application of the guarantees under the second limb would to some extent overlap with those of the first, typically in situations where the judicial authority which authorises detention under the first limb at the same time orders detention on remand subject to the guarantees under the second. In such situations, the first appearance of the suspect before the judge constituted the “crossroads” where the two sets of guarantees met and where the second set succeeded the first. Yet, the question of when the second applied to its full extent, in the sense that further relevant and sufficient reasons additional to reasonable suspicion were required, was left to depend on the rather vague notion of “a certain lapse of time”.
In this connection, the Court noted that the domestic laws of the great majority of the thirty-one Council of Europe member States covered by its comparative-law survey required the relevant judicial authorities to give “relevant and sufficient” reasons for continued detention if not immediately then only a few days after the arrest, namely when a judge examined for the first time the necessity of placing the suspect in pre-trial detention. Such an approach, if transposed to Article 5 § 3 of the Convention, would not only simplify and bring more clarity and certainty into the Convention case-law, but would also enhance the protection against detention beyond a reasonable time.
There were thus compelling arguments for synchronising the second-limb guarantees with the first limb. Accordingly, the requirement on the judicial officer to give relevant and sufficient reasons for the detention in addition to the persistence of reasonable suspicion applied already at the time of the first decision ordering detention on remand, that is to say “promptly” after the arrest.
The Grand Chamber found that the applicant’s house arrest also constituted a deprivation of liberty and proceeded to apply the same criteria for the entire period of deprivation of liberty, irrespective of the place where the applicant had been detained.
It found that the reasons invoked by the domestic courts for ordering and prolonging the applicant’s detention had been stereotyped and abstract. Their decisions had cited the grounds for detention without any attempt to show how they applied concretely to the specific circumstances of the applicant’s case. Moreover, the domestic courts could not be said to have acted consistently. In particular, on some occasions they had dismissed as unsubstantiated and implausible the prosecutor’s allegations about the danger of the applicant’s absconding, interfering with witnesses and tampering with evidence. On other occasions they had accepted the same reasons without there being any apparent change in the circumstances and without explanation. Where such an important issue as the right to liberty was at stake, it was incumbent on the domestic authorities to convincingly demonstrate that the detention was necessary. That had certainly not been the case here.
Thus there had been no relevant and sufficient reasons to order and prolong the applicant’s detention pending trial.
Conclusion: violation (unanimously).
Article 41: EUR 3,000 in respect of pecuniary damage.
(See Letellier v. France, 12369/86, 26 June 1991; Labita v. Italy [GC], 26772/95, 6 April 2000, Information Note 17; and Idalov v. Russia [GC], 5826/03, 22 May 2012, Information Note 152)
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This summary by the Registry does not bind the Court.
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