Communicated on 12 January 2016
THIRD SECTION
Application no. 1654/15
Marko DANIJA
against Switzerland
lodged on 19 December 2014
STATEMENT OF FACTS
1. The applicant, Mr Marko Danija, is a Croatian national, who was born in 1987 and lives in Hohenems (Austria). He is represented before the Court by Mr C. Schroff, a lawyer practising in Weinfelden.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
3. On 30 December 2012, the applicant was arrested in Egnach on suspicion of having committed drug offences and traffic violations. On 3 January 2013 the Compulsory Measures Court of Thurgau (“Zwangsmassnahmengericht”) ordered his placement in remand until 30 January 2013. By decision of 28 January 2013, the same court dismissed the application for temporary release filed by the applicant with the Public Prosecutor and extended the remand until 1 March 2013. The applicant’s complaint against this extension was rejected by the High Court on 21 February 2013. The Federal Tribunal (“Bundesgericht”) declined to consider the applicant’s subsequent complaint by judgment of 30 April 2013 due to a lack of an apparent Convention violation or formal errors in the ordering of the remand.
4. The indictment issued by the Public Prosecutor on 7 February 2013 requested the conviction of the applicant to a suspended sentence of 12 months and a fine of 2500 CHF in accelerated proceedings. Based on the indictment, the Public Prosecutor applied for and the Compulsory Measures Court granted by decision of 11 February 2013 preventive detention of the applicant due to a risk of flight until 6 May 2013.
5. On 28 February 2013 the applicant was convicted as indicted by the Regional Court of Arbon (“Bezirksgericht”). He was released the same day.
6. Deciding upon a complaint by the applicant the High Court of Thurgau (“Obergericht”) ruled on 7 March 2013 that the applicant’s preventive detention had been unlawful. The lower court, the Compulsory Measures Court, had held the detention for necessary in order to guarantee that the applicant could be personally questioned at trial. In the opinion of the High Court the securing of personal appearance at trial did not, however, alone justify a further deprivation of liberty in the form of preventive detention. Accelerated proceedings could be conducted in absentia under the same conditions as normal main proceedings could. Moreover, for the High Court the Public Prosecutor’s decision to indict in accelerated proceedings was indicative of the high probability that the requested sentence would amount to a definite conviction to a suspended sentence. In the opinion of the High Court, the imposition of preventive detention as a serious interference with the personal liberty could, as a rule, not be justified in cases in which a suspended sentence was foreseeable.
7. The Regional Court followed this verdict on 4 June 2013 in compensation proceedings initiated by the applicant finding that also the remand had become unlawful as of 3 February 2013, i.e. from the moment the continuation in accelerated proceedings became apparent. As of this date the remand could no longer be grounded on flight risk alone as it was foreseeable, in analogy to the High Court’s ruling concerning preventive detention, that the applicant would only be convicted to a suspended sentence and it was possible to conduct in absentia proceedings against him.
8. For the altogether 26 days of unlawful pre-trial detention (8 days of remand and 18 days of preventive detention) the Regional Court ordered compensation in the amount of 4000 CHF to be paid to the applicant. This verdict was upheld by the High Court by decision of 28 August 2013 raising the compensation to be paid to the applicant to 5000 CHF.
9. By judgment of 22 May 2014 the Federal Tribunal dismissed the applicant’s appeal for a higher compensation denying altogether the existence of a right to compensation in the circumstances of the case. Under the Code of Criminal Procedure a claim for compensation in relation to remand and preventive detention could only arise if the permitted period of detention was exceeded (“Überhaft”) and the excessive deprivation of liberty could not be counted against sanctions imposed in respect of other offences. In the opinion of the Federal Tribunal, this was not the case here as the custodial sentence imposed on the applicant exceeded the duration of his pre-trial detention. Furthermore, no right to compensation directly under Article 5 § 5 of the Convention arose. Even though the coercive measures imposed had proven to have been unjustified on appeal their initial imposition was not to be considered unlawful.
B. Relevant domestic law
10. The relevant provisions of the Swiss Code of Criminal Procedure (“Strafprozessordnung”) as in force at the material time read as follows:
Section 220
Definitions
Remand begins when it is ordered by the compulsory measures court and ends with the receipt by the court of first instance of the indictment, the accelerated commencement of a custodial sanction or with the accused’s release during the investigation.
Preventive detention is the period of detention between the time of receipt by the court of first instance of the indictment and the issue of a final judgment, the commencement of a custodial sanction, or the accused’s release.
Section 431
Unlawfully applied compulsory measures
If compulsory measures have been applied to the accused unlawfully, the criminal justice authority shall award the accused appropriate damages and satisfaction.
There is a right to damages and satisfaction in relation to remand and preventive detention if the permitted period of detention is exceeded and the excessive deprivation of liberty cannot be accounted for in sanctions imposed in respect of other offences.
The right under paragraph 2 ceases to apply if the accused:
a. is sentenced to a monetary penalty, community service or a fine and the equivalent alternative custodial sentence would not be substantially shorter than the time spent on remand or in preventive detention;
b. receives a suspended custodial sentence the length of which exceeds the time spent on remand or in preventive detention.
COMPLAINT
The applicant complains that the Federal Tribunal’s finding that his pre‑trial detention had been unjustified but not unlawful and therefore did not warrant the grant of compensation amounted to a violation of his rights under Article 5 § 5 of the Convention.
QUESTION TO THE PARTIES
Despite the judgment of the Federal Tribunal of 22 May 2014, did the applicant have an enforceable right to compensation for his pre-trial detention in alleged contravention of Article 5 § 3, as required by Article 5 § 5 of the Convention?
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