Communicated on 2 September 2014
FIRST SECTION
Application no. 69861/11
Xu QING
against Portugal
lodged on 6 November 2011
STATEMENT OF FACTS
The applicant, Ms Xu Qing, is a Chinese national, who was born in 1964 and who lives in Parede (Portugal). She is represented before the Court by Mr. V. Carreto, a lawyer practising in Torres Vedras (Portugal).
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant is a Chinese national who is married to a Portuguese national and used to work as a Chinese-Portuguese translator for the Immigration and Border’s Service (Serviço de Estrangeiros e Fronteiras) in Portugal. At the time of the events she had been leaving in Portugal for, at least, fifteen years.
On 16 December 2010 criminal proceedings were initiated against the applicant and others by the Public Prosecutor before the Lisbon Department of Investigation and Criminal Action in respect to the crimes of aid to illegal immigration, money laundering and document fraud that had allegedly been committed by them (proc. 22/10.3ZCLSB).
In April 2011 the applicant sent a letter to the Attorney-General (Procurador-Geral da República) and to the Director of the Immigration and Border’s Service informing them that she knew that she was being investigated and that she was available to present herself before the judicial authorities in order to be questioned and held defendant.
On 9 June 2011 the Public Prosecutor issued an arrest warrant against the applicant on the basis of Articles 254 and 257 § 1 of the Code of Criminal Procedure (“the CCP”) on the grounds that the case material provided sufficient grounds for believing that the applicant might abscond, obstruct the investigation and continue the alleged criminal activity. On 14 June 2011 the applicant was arrested at her home between 5.00 and 6.00 a.m. The applicant was questioned by an investigating judge before the Lisbon Court of Criminal Investigation in the two following days, 15 and 16 June 2011.
On 16 June 2011 the investigating judge remanded the applicant in custody for the period of the investigation. The judge gave as grounds for this measure the gravity of the applicant’s alleged criminal acts, the
“possibility of her absconding considering that she was a Chinese national”
and the possibility of obstructing the investigation.
The applicant’s husband was among the suspects in the proceedings and he was not detained.
The applicant appealed against the decision of the Lisbon Court of Criminal Investigation of 16 June 2011 to remand her in custody and contested the arrest warrant. She complained that there was no justification for the arrest neither for the application of the preventive measure of remand in custody, noting that her family situation, place of residence and other personal circumstances had not been taken into account when the court had ordered her detention. She also argued that she had voluntarily showed her availability to be questioned by the authorities in April 2011.
On 13 July 2011 the Public Prosecutor in charge of the criminal case asked the investigating judge to classify the proceedings as having a special complexity, noting that more time was needed to complete the investigation.
On 5 August 2011 the Lisbon Court of Criminal Investigation classified the proceedings as having a special complexity and extended pre-trial detention to 12 months. The court substantiated its decision with reference to the number of applicants and the number of crimes that were being investigated.
On 14 September 2011 the Lisbon Court of Appeal dismissed the applicant’s appeal against the arrest warrant order and the court’s decision of 16 June 2011. In its decision the court held, among other things, the following: in relation to the lawfulness of the arrest warrant it noted that
“the Public Prosecutor’s reasoning that there were grounded reasons to consider that [the applicant] would not present herself before the authorities in a fixed time could eventually not be justified, however one cannot say that the warrant was unlawful because of that”;
and in relation to the necessity of the detention on remand, it noted that
“even considering that there was no risk of the applicant absconding (...) It would not had been possible to avoid the risk for the collection and preservation of evidence, which is very high, specially acknowledging the Chinese community characteristics in Portugal.”
The court further noted that detention on remand was the only way to avoid the risk of continuation of the criminal activity.
The applicant filed a request for clarification of the decision of the Lisbon Court of Appeal of 14 September. On 2 November 2011 the Court of Appeal rejected her request.
Between October 2011 and February 2012 the applicant lodged three requests with the Lisbon Court of Criminal Investigation asking for her release and the remand in custody to be replaced by the preventive measure of police supervision pending trial, or house arrest with electronic surveillance, alleging that there was no risk of absconding or of continuing the criminal activity, that she had contacted the police voluntarily, that she was a mother of two children living in Portugal, that she had not committed the alleged crimes and that she had a permanent place of residence in Portugal.
On 12 October 2011, 13 December 2011 and 13 February 2012 the Lisbon Court of Criminal Investigation upheld its decision to maintain the applicant in pre-trial detention.
On 19 March and 30 August 2012 the Lisbon Court of Criminal Investigation reviewed the existence of the conditions of the applicant’s pre-trial detention, in accordance with Article 213 § 1 of the CCP. It noted that those conditions have remained unchanged and, therefore, upheld the applicability of the preventive measure of remand in custody in respect of the applicant.
Between October 2011 and February 2012 the applicant lodged two requests with the Prosecutor’s General Office to expedite the criminal inquiry (pedido de aceleração processual).
On 9 November 2011 and 20 February 2012 the Prosecutor’s General Office rejected the request to expedite the criminal inquiry. It substantiated the decisions on the fact that the requests were manifestly ill-founded and that the investigation was under way.
On 20 February 2013 the Lisbon Criminal Court delivered its judgment. The applicant was acquitted of the crimes of money laundering and document fraud. She was convicted for the crime of aid to illegal immigration and sentenced to five years’ imprisonment although the execution of the prison sentence was suspended upon the annual payment of 1,500 euros (EUR). On the same day the applicant was released.
On a non-specified date the applicant challenged the outcome of the proceedings before the Lisbon Court of Appeal where the proceedings are still pending.
B. Relevant domestic law
The Code of Criminal Procedure
According to Articles 197, 201 and 202 of the Code of Criminal Procedure, preventive measures include, inter alia, bail, detention on remand and house arrest subject to electronic surveillance.
According to Article 204, the court can impose a preventive measure only when the materials obtained in the criminal case provide sufficient grounds to believe that the suspect or the accused may: (1) abscond or if there is a danger of absconding; (2) risk of obstructing the normal course of the inquiry or the investigative stage and, in particular, danger to the collection, preservation or veracity of evidence; (3) risk, due to the nature and circumstances of the offence or of the defendant’s personality, that he continues his criminal activity or gravely affects public order and peace.
Article 213 § 1 imposes on the investigative judge the obligation to review the conditions of the applicability of the preventive measure of remand in custody at least every three months.
Under Article 254 § 1 detention aims at (a) presenting a detainee before a judge in 48 hours in order to be questioned and subjected to the applicability of a preventive measure; and (b) at assuring the immediate presence of the detainee before a judicial authority in not more than 24 hours.
Article 257 § 1 sets the requirements for the arrest in the situation where the suspect is not caught in the act (fora de flagrante delito). According to Article 257 § 1 the arrest in these situations can only be made upon a judge’s order when there are well-grounded reasons that the suspect will not voluntarily present himself or herself to the authorities in the period established by them.
COMPLAINTS
Relying on Articles 5, 6 and 14 of the Convention, the applicant complains that there had been no reason for the issue of the arrest warrant against her neither for her remand in custody as a preventive measure and that she had been held in pre-trial detention on the grounds of her nationality.
She further complains about her continued detention and the fact that the domestic courts had failed to justify it. She argued that there had been no justification for the application of the remand in custody alleging that her personal situation and other circumstances had not been taken into account when the court ordered and prolonged her detention.
QUESTIONS TO THE PARTIES
1. Was the applicant deprived of her liberty in breach of Article 5 § 1 of the Convention? In particular, was the applicant’s arrest and detention pending trial from 14 June 2011 to 20 February 2013 compatible with Article 5 § 1 (c) in terms of being justified and based on a reasonable suspicion? Did the deprivation of liberty comply with the rules of domestic law?
2. Given that one of the reasons provided by the domestic authorities in justifying the applicant’s detention was her being a Chinese national, has the applicant suffered discrimination on the ground of her nationality, contrary to Article 14 of the Convention, read in conjunction with Article 5 § 1 (c)?
3. Was the length of the applicant’s pre-trial detention in breach of the “reasonable time” requirement of Article 5 § 3 of the Convention? Were the applicant’s requests for the substitution of pre-trial detention for other measure of pre-trial restraint examined by the domestic courts, as required by Article 5 § 3 of the Convention?
Full & Egal Universal Law Academy