CASE OF PATALAKH v. GERMANY

FIFTH SECTION

CASE OF PATALAKH v. GERMANY

(Application no. 22692/15)

JUDGMENT

STRASBOURG

8 March 2018

FINAL

08/06/2018

This judgment has become final under Article 44 § 2 of the Convention. It may be subject to editorial revision.

In the case of Patalakh v. Germany,

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

André Potocki, President,
Angelika Nußberger,
Yonko Grozev,
Carlo Ranzoni,
Mārtiņš Mits,
Lәtif Hüseynov,
Lado Chanturia, judges,
and Claudia Westerdiek, Section Registrar,

Having deliberated in private on 30 January 2018,

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

PROCEDURE

1. The case originated in an application (no. 22692/15) against the Federal Republic of Germany lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by a Russian national, Mr Ivan Patalakh (“the applicant”), on 11 May 2015.

2. The applicant was represented by Ms K. Rausch, a lawyer practising in Cologne. The German Government (“the Government”) were represented by two of their Agents, Ms K. Behr and Mr H.-J. Behrens, of the Federal Ministry of Justice and Consumer Protection.

3. The applicant, relying on Article 5 §§ 1 and 4 of the Convention, complained about the failure, respectively significant delay, of the competent domestic court to review the lawfulness of his remand detention. He argued that that had resulted in the automatic and arbitrary continuation of his detention, in breach of his right to liberty and security.

4. On 8 November 2016 these complaints were communicated to the Government and the remainder of the application was declared inadmissible pursuant to Rule 54 § 3 of the Rules of Court.

5. The Russian Government, having been informed of their right to intervene in the proceedings (Article 36 § 1 of the Convention and Rule 44 of the Rules of Court), indicated that they did not wish to exercise that right.

THE FACTS

I. THE CIRCUMSTANCES OF THE CASE

6. The applicant was born in 1961 and lives in Frankfurt am Main.

A. Background to the case

7. On 30 October 2013 the Frankfurt am Main District Court issued an arrest warrant against the applicant as there was a strong suspicion that he had aided the commission of crimes, worth several million euros, of aggravated fraudulent conversion, corruption, corruption in commercial practice and aggravated tax evasion through an elaborate system of bribes and fictitious invoices in connection with international business undertakings by a company. The arrest warrant was based on the risk of his absconding owing to the possible heavy sentence for the offences in question. He was also married to the co-accused, who, like him, was a national of the Russian Federation, and he did not have a legal residence or other significant ties to Germany. There was also a risk of collusion. On the same day, he was arrested and the District Court ordered his detention on remand. On 11 September 2014 the District Court included additional charges in the arrest warrant.

8. On 19 December 2014 the Frankfurt am Main prosecution authorities brought criminal proceedings against the applicant, charging him with eight counts of aiding aggravated fraudulent conversion, one count of aiding aggravated corruption and fourteen counts of aiding aggravated tax evasion. On 26 January 2015 the Darmstadt Regional Court sent the translation of the 280-page indictment to the applicant. On 6 March 2015 he responded to the indictment and asked the court not to open the main proceedings. On 18 March 2015 the prosecution authorities asked the Regional Court to amend the proceedings against the applicant, based on the results of the investigation obtained after the criminal proceedings had been brought.

9. On 6 May 2015 the Regional Court decided to open the main proceedings, which commenced on 8 June 2015. On 14 July 2016 the Regional Court convicted the applicant on five counts each of aiding fraudulent conversion and tax evasion and sentenced him to four years and six months’ imprisonment. The conviction has not yet become final, with appeals lodged by both the applicant and the prosecution authorities still pending at the time the Court examined the application.

10. On 26 October 2016 the Frankfurt am Main District Court decided to set aside the arrest warrant of 30 October 2013, which since the outset had been the basis for the applicant’s continuous detention on remand.

B. The detention review proceedings

11. From 15 January 2014 onwards the applicant challenged the lawfulness of his remand detention before the Frankfurt am Main District Court and the Frankfurt am Main Regional Court without success. Following a request by the prosecution authorities, the Frankfurt am Main Court of Appeal on 28 July 2014 ordered the prolongation of the applicant’s remand detention. It also ordered that the case file be re-submitted to it by 28 October 2014 at the latest for the next periodic review. Until that time, it transferred the competency for further reviews to the court having jurisdiction according to the general provisions (see paragraphs 21 and 22 below). It considered that there was a risk that the applicant might abscond and that continued detention on remand was not disproportionate in light of the sentence which he risked incurring if found guilty. On 5 September 2014 the applicant lodged a constitutional complaint with the Federal Constitutional Court against that decision. The court refused to accept it for adjudication, without providing reasons (no. 2 BvR 2050/14), a decision which was served on the applicant on 6 October 2014.

12. Subsequently, the applicant initiated another set of review proceedings before the District Court and lodged a complaint of bias against the competent judge. The complaint was eventually rejected in accordance with the proceedings prescribed by law, as were the remedies pursued by the applicant. On 8 December 2014 the Frankfurt am Main District Court dismissed an application from the applicant to set aside the detention order as it had become devoid of purpose (prozessual überholt) because the Frankfurt am Main Court of Appeal had been seized with a review of the applicant’s detention under Articles 121 et seq. of the Code of Criminal Procedure.

13. On 24 October 2014 the prosecution authorities submitted a statement and the case file to the Frankfurt am Main Court of Appeal, requesting the extension of the applicant’s detention on remand in accordance with Articles 121 et seq. of the Code of Criminal Procedure.

14. On 7 November 2014 the applicant requested that the detention order be set aside. He also requested that the Court of Appeal decide on his objection and an appeal to be heard, lodged on 25 August 2014 against the Court of Appeal’s decision of 28 July 2014, prior to the expiry of the time‑limit given to him to respond to the prosecution authorities’ submission. On 10 November 2014 the Court of Appeal dismissed the objection and the appeal to be heard.

15. On 19 November 2014 the names of the judges called to decide on the continuation of the applicant’s detention were disclosed to the applicant, following his request of the same day. On 25 November 2014 the applicant lodged a complaint of bias against two of the three judges concerned, arguing that they had repeatedly contacted the wrong authorities – either the Frankfurt am Main District Court or Regional Court, rather than the prosecution authorities – to request the case file and had taken two and half months to decide on his objection and appeal to be heard. That had amounted to an arbitrary handling of his case and the judges involved could not decide on the continuation of his detention with the necessary impartiality. The judges gave their statements on 27 November 2014 and 1 December 2014. The applicant then requested additional statements from them, which was not deemed to be necessary by the Court of Appeal on 11 December 2014. Four days later the applicant lodged another complaint about bias, arguing that their statements in response to his first such complaint could not restore his confidence in their impartiality. The judges concerned again gave statements and the applicant’s counsel was given the opportunity to respond. On 30 December 2014 the Court of Appeal rejected the applicant’s first complaint of bias as ill-founded, finding that there were no indications that the judges concerned were partial, even assuming that they had made a procedural mistake in connection with requesting the case file, leading to a delay in deciding on his objection and appeal to be heard. On 8 January 2015 the applicant lodged an objection against that decision. On 22 January 2015 the Court of Appeal rejected the applicant’s second complaint of bias as ill-founded, also addressing his objection in its decision.

16. On 26 January 2015 the Court of Appeal asked the Frankfurt am Main Regional Court about the current state of the criminal proceedings and what developments there had been. The Court of Appeal was informed by the prosecution authorities that the criminal proceedings had been brought before the Darmstadt Regional Court, rather than the Frankfurt am Main Regional Court, so the Court of Appeal made a similar enquiry to the court in question on 3 February 2015.

17. On 10 March 2015 the applicant’s lawyer sent to the Court of Appeal two comprehensive submissions which he had made in the main proceedings before the Regional Court and asked the appeal court to take them into account when deciding on the continuation of the applicant’s remand detention.

18. On 27 March 2015 and on 10 April 2015 the applicant lodged two applications with the Court of Appeal, asking it to take a decision in the pending review proceedings without delay.

19. On 21 April 2015 the applicant lodged another constitutional complaint with the Federal Constitutional Court, alleging that the absence of a decision by the Court of Appeal in the pending detention review proceedings had violated his right to liberty and security. On 27 April 2015 the Federal Constitutional Court refused to accept the complaint for adjudication without providing reasons (no. 2 BvR 726/15).

20. On 15 May 2015 the applicant was served with a decision by the Frankfurt am Main Court of Appeal, taken on 15 April 2015 and issued on 13 May 2015, ordering the continuation of his detention on remand. It found that the risk of his absconding continued to exist. It further considered that in the light of, inter alia, the amount of evidence to be examined, the requests for legal assistance sent to several countries, and the scope and complexity of the case, there was no indication of undue delay in the conduct of the criminal proceedings, with the trial being scheduled to commence in June 2015. The applicant’s continued detention on remand was, therefore, proportionate. The court did not address the duration of the review proceedings nor provide any reasons for it.

II. RELEVANT DOMESTIC LAW AND PRACTICE

21. Article 121 § 1 of the Code of Criminal Procedure provides that detention on remand can only exceed a period of six months if the particular difficulty, unusual extent of the investigation or another important reason do not allow for the pronouncement of a judgment and justify the continuation of detention. In accordance with Article 122 of the Code, the Court of Appeal is competent to review the lawfulness of extending remand detention beyond the six-month period and for further reviews, which must be carried no later than every three months (Article 122 § 4, second sentence, of the Code), starting from the date of the last review decision. The running of time, both in relation to the six-month review and the further three-month periodic reviews, is suspended pending the court’s decision if the case file has been submitted to the Court of Appeal prior to the expiry of the time-limit (Article 121 § 3, first sentence, of the Code; Oldenburg Court of Appeal, JZ 1965, p. 770). There is no fixed time-limit for the Court of Appeal to render its decision. The remand detainee and his or her defence counsel must be heard prior to a decision being rendered (Article 122 § 2, first sentence, of the Code).

22. Remand prisoners can at any time seek a judicial review of a decision to issue a detention order or ask for the order to be suspended (Article 117 § 1 of the Code). Once the Court of Appeal has ordered the continuation of remand detention following a review under Articles 121 and 122 of the Code, it remains competent, under Article 122 § 3, for further reviews initiated by the applicant under Article 117 § 1, unless it temporarily transfers the competency for such a review, for a period not exceeding three months, to the court having jurisdiction according to the general provisions. That court is, as a rule, the court that issued the arrest warrant or, if criminal proceedings have been brought, the court seized with the case (Article 126).

THE LAW

I. ALLEGED VIOLATION OF ARTICLE 5 OF THE CONVENTION

23. Relying on Article 5 §§ 1 and 4 of the Convention, the applicant complained about the failure, respectively significant delay, of the competent domestic court to review the lawfulness of his remand detention. He argued that that had resulted in the automatic and arbitrary continuation of his detention, in breach of his right to liberty and security.

A. Alleged violation of Article 5 § 4 of the Convention

24. The Court finds it appropriate to examine the complaint first under Article 5 § 4 of the Convention, which reads, in so far as relevant:

“4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”

25. The Government contested the allegation.

1. Admissibility

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

2. Merits

(a) The parties’ submissions

(i) The applicant

27. The applicant submitted that Article 5 of the Convention required domestic courts to review the lawfulness of a person’s deprivation of liberty at regular intervals. Under domestic law that obligation was embodied in Articles 121 and 122 of the Code of Criminal Procedure, which required the Court of Appeal to carry out reviews no later than every three months, once the duration of remand detention had exceeded six months. He argued that the Frankfurt am Main Court of Appeal had arbitrarily omitted to carry out such a review between 28 July 2014 and 15 April 2015. It had taken its decision more than five months after he had requested, on 7 November 2014, that the detention order against him be set aside.

28. The omission, or significant delay, of the Court of Appeal’s decision could not be justified. It was true that he had lodged two bias complaints, but he had had good reasons to fear that the judges concerned were not impartial due to their prior negligent and arbitrary handling of his objection and application to be heard. The proceedings concerning his bias complaints had also not been conducted with the particular expedition required. The exercise of his procedural rights should not be held against him.

29. Furthermore, neither the complexity of the criminal proceedings, which he did not consider to be extraordinary, nor the scope of the Court of Appeal’s assessment had justified the long delay in the review proceedings. Rather, the Court of Appeal had not acted with the “special diligence” required in the light of his detention. After deciding on his second bias complaint on 22 January 2015, the Court of Appeal had, on 26 January 2015, turned to the wrong court to enquire about the state of and developments in the criminal proceedings. It had taken until 3 February 2015 for it to enquire with the Darmstadt Regional Court, where the criminal proceedings had been sent on 19 December 2014. He had even lodged two applications, on 27 March 2015 and 10 April 2015, for the Court of Appeal to take a decision in the ongoing review proceedings without delay.

(ii) The Government

30. The Government submitted that the substantive conditions for the applicant’s detention on remand under Article 5 § 1 (c) of the Convention had been met. There had been a reasonable suspicion that he had aided the commission of aggravated fraudulent conversion, corruption, corruption in commercial practice and aggravated tax evasion, and there had been a risk that he might abscond. They noted that the review proceedings had commenced on 24 October 2014, when the prosecution authorities had applied to the Court of Appeal for the continuation of the applicant’s detention on remand, which was therefore less than three months after the Court of Appeal’s decision of 28 July 2014. The running of time had been suspended under domestic law from that moment. There was no fixed time‑limit under domestic law or the Convention for the Court of Appeal to render its decision.

31. The Court of Appeal had been unable to take a decision prior to 22 January 2015 owing to the applicant’s conduct and the procedural guarantees it had had to respect. First, it had had to give the applicant the opportunity to respond to the prosecution authorities’ submission. In his response, the applicant had asked the court to decide on an earlier submission first, which the court had done on 10 November 2014. He had then lodged two complaints about bias on 25 November 2014 and 15 December 2014, which meant that statements had had to be taken, exchanged and assessed. The judges concerned had not been able to decide on the lawfulness of the applicant’s detention prior to deciding on his second bias complaint. Both bias cases had been processed with the necessary diligence. The Government emphasised that the nature of the bias complaints had been such that the applicant’s lawyer must have known from the start that they were ill-founded and would only cause delay, marking an abuse of procedural rights.

32. By 22 January 2015, the situation which had to be assessed had changed fundamentally compared to the commencement of the review proceedings. The prosecution authorities had brought criminal proceedings on 19 December 2014 and the case file had grown considerably. In accordance with the case-law of the Federal Constitutional Court, the Court of Appeal had had to undertake a comprehensive assessment of, inter alia, the conduct of the criminal proceedings and whether there had been any undue delays that would have rendered continuation of the remand detention disproportionate. In that regard, it had to be noted that the criminal proceedings in question were very complex, both in fact and law. The investigations had concerned business activities in several countries and had been carried out against twenty-six accused. The case file, which consisted of several thousand pages, had to be examined in its entirety. Under those circumstances, and noting that the applicant’s lawyer had on 10 March 2015 sent two comprehensive submissions that had to be taken into account, the duration of the review proceedings, which had been terminated with the Court of Appeal’s decision of 15 April 2015, had not been unreasonable.

(b) The Court’s assessment

33. The Court notes that the term “speedily” cannot be defined in the abstract and must be determined in the light of the circumstances of the individual case, including the complexity of the proceedings, the conduct by the domestic authorities and by the applicant and what was at stake for the latter (Mooren v. Germany [GC], no. 11364/03, § 106, 9 July 2009). The standard of “speediness” is less stringent when it comes to appeal proceedings (Abdulkhakov v. Russia, no. 14743/11, § 198, 2 October 2012). Nonetheless, there is a special need for a swift decision determining the lawfulness of detention in cases where a trial is pending, because the defendant should benefit fully from the principle of the presumption of innocence (Frasik v. Poland, no. 22933/02, § 63, ECHR 2010 (extracts)). What needs to be assessed, is the diligence shown by the authorities (Abdulkhakov, cited above, § 199).

34. The Court observes that the applicant’s argument can be analysed under Article 5 § 4 of the Convention from two different angles: first, by looking at the interval between the Court of Appeal’s decisions on the lawfulness of his remand detention (see Abdulkhakov, cited above, § 213, with further references), and, second, by examining the lack of a speedy judicial decision following the institution of the proceedings before the Court of Appeal (see G.B. v. Switzerland, no. 27426/95, § 32, 30 November 2000).

35. Departing, first, from that latter angle, the Court reiterates that the relevant period to be taken into consideration runs from the institution of review proceedings (Sanchez-Reisse v. Switzerland, 21 October 1986, § 54, Series A no. 107) until the service of the decision on the applicant (see Jablonski v. Poland, no. 33492/96, § 88, 21 December 2000), in the present case from 24 October 2014 to 15 May 2015. That duration of six and a half months seems prima facie incompatible with the notion of speediness, even more so when it comes to a review of pre-trial detention, given the relatively strict standards laid down in the Court’s case-law in this regard (see paragraph 40 below).

36. Under such circumstances, the Court will look to the State to explain the reason for the delay and to put forward exceptional grounds to justify the lapse of time in question (see Musiał v. Poland [GC], no. 24557/94, § 44, ECHR 1999‑II).

37. The Court accepts that the delay between 24 October 2014 and 22 January 2015 can be explained by the procedural guarantees that had to be respected and, primarily, by the applicant’s conduct in the form of two complaints about bias.

38. As regards the period from 22 January 2015 to 15 May 2015, the Court notes that, at the beginning of this period, already three months had passed since the review proceedings concerning the applicant’s detention on remand had been initiated, and that almost six months since the last decision on the applicant’s detention had gone by. It therefore considers that the remainder of the review proceedings needed to be conducted with particular expedition. The Court accepts that the criminal proceedings against the applicant were complex, that the procedural situation had changed fundamentally after criminal proceedings were brought on 19 December 2014 and that the Court of Appeal had to undertake a comprehensive assessment, including of the conduct of the criminal proceedings and whether there had been any undue delays that would render the applicant’s continued detention disproportionate.

39. Nonetheless, it observes that the Court of Appeal, after initially contacting the wrong court, only made enquiries with the Darmstadt Regional Court about the state of the criminal proceedings and developments in the case on 3 February 2015. It decided on the continuation of the applicant’s detention on 15 April 2015, almost three months after rejecting his second bias complaint. It then took another month, until 15 May 2015, for the decision of ten pages to be served on the applicant, who had in the meantime lodged a constitutional complaint with the Federal Constitutional Court and the present application to the Court. In sum, almost four months – from 22 January 2015 to 15 May 2015 – passed between the rejection of the applicant’s second complaint about bias and the service of the Court of Appeal’s decision ordering the continuation of his detention. That was almost seven months after the review proceedings had been initiated on 24 October 2014.

40. While accepting that the review proceedings were delayed by almost three months primarily because of the applicant’s conduct, that the procedural situation had changed in the meantime, that the criminal proceedings were complex and that the Court of Appeal had to take into account the two comprehensive submissions the applicant’s lawyer had made in the main proceedings and submitted to it on 10 March 2015, the Court notes that it has laid down relatively strict standards in its case-law concerning the question of State compliance with the “speediness” requirement. For example, it found a violation of the speediness requirement of Article 5 § 4 of the Convention in the case of Baranowski v. Poland (no. 28358/95, ECHR 2000‑III), where the review involved an assessment of complex medical issues and lasted for a total of nearly six months, that is less than in the present case. Similarly, the Court has found that, in proceedings before the ordinary courts which followed a detention order imposed by a court, delays exceeding three to four weeks for which the authorities must be held responsible are susceptible of raising an issue under the “speediness” requirement of Article 5 § 4 of the Convention (compare, inter alia, G.B. v. Switzerland, cited above, §§ 27 and 32-39, and Lebedev v. Russia, no. 4493/04, §§ 97-102, 25 October 2007).

41. In the light of the foregoing, the Court cannot conclude that the Court of Appeal displayed the “special diligence” required and decided on the lawfulness of the applicant’s detention in compliance with the “speediness” requirement of Article 5 § 4 of the Convention, both with a view to the time that had lapsed since the proceedings had been initiated and the time that had lapsed since that court had rejected the applicant’s second bias complaint on 22 January 2015.

42. Noting that the proceedings at issue were periodic review proceedings, the Court considers that analysing the applicant’s argument under Article 5 § 4 of the Convention from the other possible angle, that is by looking at the interval between the decisions on the lawfulness of his detention (see paragraph 34 above), does not lead to a different result.

43. While domestic law provided that automatic periodic reviews were to be carried out no later than every three months, the review proceedings at issue were only terminated nine and a half months after the previous decision on the lawfulness of the applicant’s remand detention had been taken. Reiterating that the nature of pre-trial detention calls for short intervals of periodic judicial review because there is an assumption that such detention is to be of a strictly limited duration (see Abdulkhakov, cited above, § 213, and Bezicheri v. Italy, 25 October 1989, § 21, Series A no. 164), the Court considers that this interval between the two decisions cannot be said to have been a “reasonable interval” of periodic judicial review of the applicant’s remand detention.

44. There has accordingly been a violation of Article 5 § 4 of the Convention.

B. Alleged violation of Article 5 § 1 of the Convention

45. Having regard to its finding under Article 5 § 4 of the Convention, the Court finds it not necessary to examine separately the complaint under Article 5 § 1 of the Convention.

II. APPLICATION OF ARTICLE 41 OF THE CONVENTION

46. 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.”

47. The applicant did not submit a claim in respect of pecuniary or non‑pecuniary damage. Accordingly, the Court considers that there is no call to award him any sum on that account.

48. The applicant claimed reimbursement of costs and expenses incurred as a result of the violation of the Convention, without, however, specifying those costs and expenses or providing supporting documents. According to the Court’s case-law, an applicant is entitled to the reimbursement of costs and expenses only in so far as it has been shown that these have been actually and necessarily incurred and are reasonable as to quantum. Regard being had to those criteria and to the fact that the applicant neither specified what costs he had actually and necessarily incurred nor provided any documentary evidence to that end, the Court rejects his claim for reimbursement of costs and expenses and makes no award under this head.

FOR THESE REASONS, THE COURT, UNANIMOUSLY,

1. Declares the application admissible;

2. Holds that there has been a violation of Article 5 § 4 of the Convention;

3. Holds that it is not necessary to examine separately the complaint under Article 5 § 1 of the Convention;

4. Dismisses the applicant’s claim for just satisfaction.

Done in English, and notified in writing on 8 March 2018, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.

              Claudia WesterdiekAndré Potocki
RegistrarPresident

In accordance with Article 45 § 2 of the Convention and Rule 74 § 2 of the Rules of Court, the separate opinion of Judge Ranzoni is annexed to this judgment.

A.P.
C.W.

CONCURRING OPINION OF JUDGE RANZONI

I fully agree with the finding of a violation of Article 5 § 4 of the Convention. However, this finding does not answer all the questions raised in the present case, as it leaves the underlying problem unaddressed. I would like to briefly highlight this aspect.

The review proceedings before the Court of Appeal on the lawfulness of the applicant’s remand detention lasted six and a half months from the initiation of these proceedings on 24 October 2014 until the delivery of its decision on 15 May 2015. The time period between the Court of Appeal’s previous decision of 28 July 2014 and this latter date was considerably longer, namely nine and a half months.

The finding of a violation of Article 5 § 4 puts the blame on the Court of Appeal, which did not display the necessary diligence and did not comply with the speediness requirement of this provision (see, in particular, paragraph 41 of the judgment). With this finding, however, the Court does not deal with the more important underlying problem, namely the lacuna in the German legislation which enabled that to happen.

Pursuant to Article 122 § 4, second sentence, of the Code of Criminal Procedure, where remand detention exceeds six months, review proceedings must be conducted no later than every three months thereafter, starting from the date of the last review decision (see paragraph 21 of the judgment). This provision, in principle, meets the requirement that, where an automatic review of the lawfulness of detention has been instituted, the competent courts’ decisions must follow at “reasonable intervals” (see Oldham v. the United Kingdom, no. 36273/97, § 30, ECHR 2000-X), and it also provides an effective protection of the individual from arbitrary or unjustified deprivation of liberty, which is the key purpose of Article 5 of the Convention (see McKay v. the United Kingdom [GC], no. 543/03, § 30, ECHR 2006‑X).

That being said, pursuant to Article 121 § 3, first sentence, of the Code of Criminal Procedure, the running of time for the purpose of the three-month period under Article 122 § 4 is suspended if the case file has been submitted to the Court of Appeal prior to the expiry of this time-limit, and domestic law does not provide for a fixed time-limit by which the Court of Appeal must render its decision (see paragraph 21 of the judgment). This lacuna in the legislation was conducive to the excessive prolonging of the review proceedings at issue. Therefore, what is at stake here is the “quality” of the domestic law, which must contain clear and accessible rules governing the circumstances in which deprivation of liberty is permissible, and in particular, must be foreseeable in its application, in order to avoid all risk of arbitrariness (see Mooren v. Germany [GC], no. 11364/03, § 76, 9 July 2009, and H.W. v. Germany, no. 17167/11, §§ 66 and 80, 19 September 2013).

By contrast, Article 121 § 3 of the Code of Criminal Procedure, authorising as it does the suspension of the running of time for the purpose of the three-month period, introduces an element of uncertainty in the application of Article 122 § 4, which requires a regular review every three months. The time frame in which the Court of Appeal has to take its decision on the deprivation of liberty is not defined. This raises concerns as regards the foreseeability of the provisions governing the periodic review of the lawfulness of the applicant’s remand detention, and may, in turn, raise concerns as to the lawfulness, for the purposes of Article 5 of the Convention, of the remand detention itself.

In these circumstances, affording detainees adequate safeguards against unreasonable delays and arbitrary detention is of crucial importance (see, mutatis mutandis, H.W. v. Germany, cited above, §§ 82 and 89). To my mind, such effective safeguards, however, were lacking in the present case. This conclusion is corroborated by the fact that the review proceedings were pending before the Court of Appeal for six and a half months, and the applicant’s remand detention was continued without a fresh assessment of its lawfulness for a period of nine and a half months.

In the case at hand, the delay in the review proceedings resulted in a violation of Article 5 § 4 of the Convention, but not of Article 5 § 1, because the relevant conditions for the latter provision to be engaged, according to the Court’s case-law, were not fulfilled (see in this respect, inter alia, Daniel Faulkner v. the United Kingdom, no. 68909/13, in particular §§ 44 and 45, 6 October 2016). Nevertheless, the interval of nine and a half months between the Court of Appeal’s decisions on the lawfulness of the applicant’s remand detention, despite periodic reviews being foreseen by domestic law no later than every three months, without the detainee being afforded effective safeguards against unreasonable delays, raises an issue which goes beyond the shortcomings detected in this specific case in the proceedings before the Court of Appeal. This issue should be dealt with at domestic level by legislative means.

 

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