Information Note on the Court’s case-law No. 138
February 2011
Ignatenco v. Moldova - 36988/07
Judgment 8.2.2011 [Section IV]
Article 5
Article 5-1
Lawful arrest or detention
Remand in custody beyond maximum statutory period where application for pre-trial detention was made in time and hearing of that application was imminent: no violation
Facts – Under domestic law the maximum period for which a suspect could be held by the police without a court order was 72 hours. The applicant was arrested on suspicion of misappropriation and forgery at 12.15 p.m. on 19 June 2007. The prosecution lodged a request for him to be remanded in custody at 8.55 a.m. on 22 June 2007, but the remand hearing did not start until 12.45 p.m. (that is to say, 30 minutes after the expiry of the statutory 72-hour period). The hearing ended at 4 p.m. with an order by the investigating judge for the applicant’s detention for a period of ten days, which period was subsequently extended.
Law
Article 5 § 1 – Detention between 12.15 p.m. and 4 p.m. on 22 June 2007: The Court had held in previous cases that, while some delay in implementing a court order for the release of a detainee was often inevitable due to practical considerations, stricter criteria had to be applied in cases where release after a fixed period of time was a statutory requirement. In such cases, the authorities were under a duty to take all necessary precautions to ensure that the permitted duration was not exceeded (see K.-F. v. Germany, no. 25629/94, 27 November 1997 – finding of a violation in respect of a 45-minute delay). In the present case, the investigating judge had not made an order for the applicant’s pre-trial detention until 4 p.m. on 22 June 2007, whereas the statutory maximum period for him to be held without a warrant had expired at 12.15 p.m. Accordingly, there had been no legal basis for the applicant’s detention between 12.15 p.m. and 4 p.m. The Court noted, however, that the prosecution had lodged their request for the applicant to be remanded in custody within the required time-limit and the applicant had been required to attend, and indeed had attended, the remand hearing before the investigating judge. The applicant had therefore only been materially affected by the delay for 30 minutes (between 12.15 p.m. and 12.45 p.m.). In these circumstances, where the application for an extension had been lodged within the relevant time-limit, the hearing was imminent and there was only a short delay during which the detention had no legal basis, the present case could be distinguished from K.-F. v. Germany.
Conclusion: no violation (unanimously).
Article 5 § 3 – Subsequent periods of detention: The domestic courts had failed to give relevant and sufficient reasons for subsequent orders prolonging the applicant’s detention. In that connection, the Court expressed grave concern that the applicant’s reliance on its case-law was seen by the domestic courts as an attempt to undermine the normal conduct of the domestic proceedings.
Conclusion: violation (unanimously).
Article 41: EUR 2,000 in respect of non-pecuniary damage.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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