Information Note on the Court’s case-law No. 88
July-August 2006
Harkmann v. Estonia - 2192/03
Judgment 11.7.2006 [Section IV]
Article 5
Article 5-3
Brought promptly before judge or other officer
Release after fifteen days but before appeal against custody order is heard: violation
Article 5-4
Speediness of review
Release after fifteen days but before appeal against custody order is heard: inadmissible
Article 5-5
Compensation
Detention lawful under domestic law, no provision for compensation for detention in violation of Article 5: violation
Facts: Criminal proceedings were instituted against the applicant in 1996 and 2000. The applicant repeatedly failed to appear at the police prefecture when summoned and on many occasions it proved impossible to compel him to appear. The applicant was committed for trial in 2002 and his case was set down for hearing by the County Court. The applicant was eventually taken into custody on the orders of the County Court on 2 October 2002, having failed several times to appear in court. He subsequently lodged a complaint with the Court of Appeal alleging that his custody was unlawful as he had not been presented with a copy of the custody decision which, moreover, had been taken in his absence. The County Court held a hearing on the merits of the case on 17 October 2002 but adjourned it on the ground that the defence was not familiar with the case file; at the same time it released the applicant from custody, having secured his promise to appear when the hearing resumed. On 11 November 2002 the Court of Appeal heard the applicant’s appeal against the custody order and dismissed it.
Law: Article 5(1) – The Government argued that the applicant’s detention had been justified under Article 5(1)(b) of the Convention: the reason for his detention had not been so much a reasonable suspicion of his having committed a crime, in which cases Article 5(1)(c) applied, but rather his regular non-compliance with the court’s orders and the aim of securing the fulfilment of an obligation – namely, attendance in court – prescribed by law. The Court, noting that the applicability of one ground for detention does not necessarily preclude that of another, and taking into account that the applicability of Article 5(1)(c) triggers also the protection provided by Article 5(3), considers it appropriate to analyse first whether this sub-paragraph is applicable to the present case. It goes on to note that there was no other reason for the authorities to compel the applicant to appear before the court save for the criminal proceedings against him, and concludes that his detention falls within the ambit of Article 5(1)(c): Article 5(1)(c) applicable.
Article 5(3) – The applicant chose not to appear before the County Court when the decision concerning his arrest was taken. This fact in itself does not give rise to an issue under Article 5(3), as a requirement cannot be derived from the Convention to the effect that a person who is evading court proceedings should be present at the court hearing where authorisation for his or her arrest is dealt with. However, the applicant had no chance to present the court with possible personal reasons militating against his detention after his actual arrest on 2 October 2002, despite the authorities’ obligation under Article 5(3) to give him a possibility to be heard. The applicant was released after a hearing of his criminal case on 17 October 2002, which is before the lawfulness of his detention was examined. Until then, he had been kept in custody for fifteen days. The Court finds that such a period is incompatible with the requirement of “promptness” under Article 5(3).
Conclusion: violation (unanimously).
Article 5(4) – The applicant was released before an issue under Article 5(4) could arise: Manifestly ill‑founded.
Article 5(5) – The Court finds no reason to doubt the lawfulness of the applicant’s detention under Estonian law. In these circumstances it does not appear that a claim for compensation made by the applicant would have had any reasonable prospect of success. Nor did Estonian law provide for a distinct right to compensation for detention in violation of Article 5 of the Convention.
Conclusion: violation (unanimously).
Article 41 – Award in respect of non-pecuniary damage (EUR 2,000).
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This summary by the Registry does not bind the Court.
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