AS TO THE ADMISSIBILITY OF
Application No. 21335/93
by Christopher Ian SCOTT
against Spain
The European Commission of Human Rights (Second Chamber) sitting in
private on 22 February 1995, the following members being present:
Mr. H. DANELIUS, President
Mrs. G.H. THUNE
MM. G. JÖRUNDSSON
J.-C. SOYER
H.G. SCHERMERS
F. MARTINEZ
L. LOUCAIDES
J.-C. GEUS
M.A. NOWICKI
I. CABRAL BARRETO
J. MUCHA
D. SVÁBY
Mr. K. ROGGE, Secretary to the Chamber
Having regard to Article 25 of the Convention for the Protection of
Human Rights and Fundamental Freedoms;
Having regard to the application introduced on 2 September 1992 by
Christopher Ian SCOTT against Spain and registered on 4 February 1993
under file No. 21335/93;
Having regard to the report provided for in Rule 47 of the Rules of
Procedure of the Commission;
Having regard to :
- the reports provided for in Rule 47 of the Rules of Procedure of the
Commission;
- the observations submitted by the respondent Government on
24 January 1994 and the observations in reply submitted by the
applicant on 8 November 1994;
Having deliberated;
Decides as follows:
THE FACTS
The applicant is a British citizen, born in 1958. When this
application was introduced before the Commission, he was detained at the
Santa Cruz de Tenerife prison in Spain.
I. Particular circumstances of the case
The facts of the case, as submitted by the parties, may be
summarised as follows :
On 5 March 1990, the applicant was arrested in Puerto de la Cruz,
Tenerife, under suspicion of rape of a Finnish citizen, and detained on
remand for that reason (prisión provisional). On 7 March 1990, in the
presence of a lawyer and with an interpreter, the applicant made a
statement to the police. When the records were consulted, it was found
that an International Detention Order for murder had been issued in
respect of the applicant on 31 January 1990 by a judge at Birmingham
Crown Court. On the same day, the applicant was brought before a judge.
On 8 March 1990, assisted by a lawyer and with an interpreter, the
applicant made a statement to an investigating judge (juez de
instrucción) of Puerto de la Cruz concerning the alleged rape. By
decision of 8 March 1990 (auto de prisión), the investigating judge
remanded the applicant in custody on the grounds that he was suspected
of rape and falsification and pending the investigation for alleged
murder of his father referred to in the International Detention Order.
On 23 March 1990, the Central Investigating Judge of the Audiencia
Nacional authorised the detention on remand of the applicant following
a request for extradition made by the British authorities. By decision
(auto) of 22 February 1991, the Criminal Chamber of the Audiencia
Nacional ordered the extradition of the applicant to the United Kingdom,
to be judged for the facts referred to in the International Detention
Order of 31 January 1990 after having served any outstanding sentence
that might be imposed on him in Spain.
Against this decision to grant extradition, the applicant lodged an
appeal (súplica) with the plenary of the Audiencia Nacional. By decision
of 28 May 1991, the appeal was dismissed.
On 25 June 1990, an International Letter of Request for Judicial
Cooperation was sent to the relevant authority in Finland in order to
take a further statement from the alleged victim of the rape.
By decision of 6 March 1992 given by the investigating judge of
Puerto de la Cruz, two years after the applicant had been remanded in
custody, the applicant was released on bail in the case of the rape, as
required by Article 504 of the Criminal Code. He was however kept in
prison pending the determination of the extradition case and detained in
various prisons in Spain.
On 17 March 1992, the Audiencia Nacional, considering the 23 March
1990 as the date of the beginning of the applicant's detention for the
extradition case, decided to prolong his detention on remand under
Article 504 para. 4 of the Code of Criminal Procedure and Article 10
para. 3 of the Passive Extradition Law, for a period not exceeding two
years, that is to say until 23 March 1994.
On 3 and 6 April 1992, the applicant's "habeas corpus" appeals,
lodged with the investigating judge of Santa Cruz de Tenerife, were
dismissed.
On 18 June 1992, the Audiencia Nacional dismissed the applicant's
appeal (súplica) on the grounds that he had been remanded in the
extradition case only on 23 March 1990, independently of the applicant's
former detention for a different matter.
On 22 December 1992, the "habeas corpus" appeal lodged with the
investigating judge of Alcala de Henares was dismissed.
The applicant lodged a "de amparo" appeal with the Constitutional
Court against the two former decisions of the Audiencia Nacional
concerning his detention on remand. The appeal was rejected by decision
of 6 May 1993 as being time-barred. Concerning the exhaustion of
domestic remedies, the Constitutional Court also stated that ..."the
decision (auto) of the criminal chamber (third section) of the Audiencia
Nacional of 18 June 1992, ... be considered as the last instance before
the constitutional "de amparo" appeal ...". Nevertheless, as to the
merits, the Constitutional Court stated that the applicant had been
remanded in the extradition case only on 23 March 1990, so that the
decision of the Audiencia Nacional of 17 March 1992 to prolong detention
for two more years as of that date was correct, as the former period
spent in prison by the applicant did not have any relation to the new
detention.
On 29 April 1993, the International Letter of Request for Judicial
Cooperation to obtain the summons of the victim of the criminal offence
allegedly committed in Spain (rape) was finally executed. On 25 August
1993, the applicant's detention was again ordered in the rape case and
his provisional release was revoked. The applicant was again transferred
to Tenerife prison.
By decision of the Audiencia Provincial of Santa Cruz de Tenerife
of 21 March 1994, the applicant was acquitted of the charge of rape and
sentenced to a penalty of four months' imprisonment for falsification of
documents.
On 27 March 1994, the applicant was handed over to the British
authorities following the International Detention Order and the decision
of the Audiencia Nacional of 23 March 1990 to grant extradition.
II. Relevant domestic law
(Original)
Ley de Enjuiciamiento Criminal, Artículo 504 par. 4
"La situación de prisión provisional no durará más de tres
meses cuando se trate de causa por delito al que corresponda
pena de arresto mayor, ni más de un año cuando la pena sea de
prisión menor o de dos años cuando la pena sea superior. En
estos dos últimos casos, concurriendo circunstancias que hagan
prever que la causa no podrá ser juzgada en estos plazos y que
el inculpado pudiera sustraerse a la acción de la justicia, la
prisión podrá prolongarse hasta dos y cuatro años,
respectivamente. La prolongación de la prisión provisional se
acordará mediante auto, con audiencia del inculpado y del
Ministerio Fiscal."
(Translation)
Code of Criminal Procedure, Article 504 para. 4
"Detention on remand shall not last more than three months
when it relates to a case where the established penalty is
that of "arresto mayor" , and not more than one year when the
penalty is "prisión menor" or two years in case of a more
severe penalty. In these two latter cases, when there are
circumstances which indicate that the case will not be dealt
with within those time-limits and that the detainee might try
to evade justice, the detention may be prolonged by up to two
and four years, respectively. The prolongation of the
detention will be pronounced by a decision (auto) after a
hearing of the detainee and the public prosecutor."
(Original)
Ley de extradición pasiva (Ley 4/85 de 21 de Marzo de 1985)
Artículo 10 pár. 3
"El límite máximo de la prisión provisional del reclamado y
los derechos que corresponden al detenido por causa de
extradición se regirán en lo previsto por esta Ley, por los
preceptos correspondientes de la Ley de Enjuiciamiento
Criminal."
(Translation)
Passive Extradition Law (Law 4/1985, of 21 March 1985)
Article 10 para. 3
" The maximum time-limit of the detention on remand of the
requested person and the rights regarding the detainee
awaiting extradition will be determined insofar as established
in this Law, by the related provisions of the Code of Criminal
Procedure."
COMPLAINTS
1. Concerning the criminal proceedings held in Spain for rape and
falsification, the applicant complains of the following breaches of the
Convention :
a) under Article 6 paras. 1 and 2 of the Convention, that he has
not been granted a fair and public hearing within a reasonable time and
that the ongoing detention violated his right to presumption of
innocence;
b) under Article 6 para. 3 (a), (b) and (c) of the Convention,
that he was not informed, in a language which he understood, of the
extent of the evidence against him when first remanded in custody in
March 1990, that he had no adequate time and facilities for the
preparation of his defence, that he was unable to understand his
interpreter and that he was not legally represented or informed of the
nature of the preliminary hearings of the trial for the alleged rape;
c) under Article 8 para. 1 of the Convention, that he was
transferred to various prisons which interrupted his private and family
life as his relatives were unable to visit or to write to him.
2. The applicant complains under Article 5 paras. 1 (c) and 3 of the
Convention that he was held in contravention of Spanish law concerning
the prolongation of detention on remand. He states that his detention
was unlawful and that he was not brought before a competent judge to be
tried.
3. The applicant complains of the absence of a remedy under Spanish law
to challenge the lawfulness of his detention on remand and invokes
Articles 5 para. 4 and 13 of the Convention.
PROCEEDINGS BEFORE THE COMMISSION
The application was introduced on 2 September 1992 and registered
on 4 February 1993.
On 13 October 1993, the Commission (Second Chamber) decided to
communicate the application to the respondent Government pursuant to Rule
48 para. 2 (b) of the Rules of Procedure.
The Government's written observations were submitted on
24 January 1994, after an extension of the time-limit for that purpose.
The applicant replied on 8 November 1994, also after an extension of the
time-limit.
On 18 May 1994, the applicant was granted legal aid.
THE LAW
1. As regards the criminal proceedings in Spain for rape and
falsification, the applicant complains of not having been granted a fair
and public hearing within a reasonable time and of a violation of his
right to be presumed innocent. He alleges several violations of his
rights to be informed, in a language which he understood, of the extent
of the evidence against him when remanded in custody, to have time and
facilities for the preparation of his defence, to be assisted by an
understandable interpreter and to be legally represented or informed of
the nature of the preliminary hearings of the trial for the alleged rape.
He invokes Articles 6 paras. 1, 2 and 3 (a), (b) and (c) (Art. 6-1, 6-2,
6-3-a, 6-3-b, 6-3-c) of the Convention. The applicant further alleges
a violation of Article 8 para. 1 (Art. 8-1) of the Convention, insofar
as he was deprived of his private and family life.
The Commission notes that the applicant has not validly invoked
these complaints before the Spanish courts. In this respect, the
Commission observes that the applicant only challenged the lawfulness of
the decision to prolong his detention on remand (Article 17 of the
Constitution) and did not lodge any appeal either with internal ordinary
courts or with the Constitutional Court in a "de amparo" appeal
concerning Article 6 paras. 1, 2 and 3 (Art. 6-1, 6-2, 6-3), or Article
8 para. 1 (Art. 8-1) of the Convention. He has not, therefore, exhausted
the domestic remedies available under Spanish law, as required by Article
26 (Art. 26) of the Convention.
It follows that this part of the application must be rejected
pursuant to Article 27 para. 3 (Art. 27-3) of the Convention.
2. The applicant complains under Article 5 paras. 1 (c) and 3
(Art. 5-1-c, 5-3) of the Convention that he was held in contravention of
Spanish law concerning the prolongation of detention on remand. He states
that his detention was unlawful and that he was not brought before a
competent judge to be tried.
The provisions invoked read as follows :
"1. Everyone has the right to liberty and security of
person. No one shall be deprived of his liberty save in the
following cases and in accordance with a procedure prescribed
by law:
...
c. the lawful arrest or detention of a person effected
for the purpose of bringing him before the
competent legal authority on reasonable suspicion
of having committed an offence or when it is
reasonably considered necessary to prevent his
committing an offence or fleeing after having done
so ; ...
3. Everyone arrested or detained in accordance with the
provisions of paragraph 1 (c) of this Article shall be brought
promptly before a judge or other officer authorised by law to
exercise judicial power and shall be entitled to trial within
a reasonable time or to release pending trial. Release may be
conditioned by guarantees to appear for trial. ..."
As a preliminary point, the Government contend that the applicant
has not exhausted the domestic remedies available to him under Spanish
law since he did not lodge an appeal against any judicial decision
pronounced either by the investigating judge at Puerto de la Cruz or by
the Audiencia Provincial of Tenerife in the course of the criminal
proceedings, and that his "de amparo" appeal against the prolongation of
detention ordered on 17 March 1992 was time-barred. The applicant
contests this submission.
The Commission recalls that under Article 26 (Art. 26) of the
Convention, it may only deal with a matter after all domestic remedies
have been exhausted according to the generally recognised rules of
international law. In the present case, the Commission notes that the
decision (auto) of the Constitutional Court of 6 May 1993 in the "de
amparo" appeal lodged by the applicant against the decision of 17 March
1992 expressly stated that ..."the decision (auto) of the criminal
chamber (third section) of the Audiencia Nacional of 18 June 1992, ...
be considered as the last instance before the constitutional "de amparo"
appeal ...". The Commission notes, moreover, that the Constitutional
Court considered the "de amparo" appeal as being time-barred, but did
examine the merits of the case. The Commission recalls that non-
exhaustion of domestic remedies cannot be held against the applicant if
in spite of the latter's failure to observe the forms prescribed by law,
the competent authority has nevertheless examined the appeal (cf. No.
12794/87, Dec. 9.7.88, D.R. 57 p. 251). The Commission cannot,
therefore, reject this part of the application for non-compliance with
the exhaustion rule.
The Government submit that the first period of detention concerning
the criminal case (from 8 March 1990 to 6 March 1992) did not exceed the
two years period laid down in Article 504 of the Code of Criminal
Procedure. As regards the extradition case, the Government state that
the applicant was only detained on 23 March 1990, this detention being
extended from 17 March 1992 up to the legal maximum of four years.
The applicant contends that although, technically, his continued
detention after 6 March 1992 may have been as a result of the pending
extradition, the failure to extradite was the result of the delay in
proceeding with the rape charge. He considers that the justification for
his ongoing detention was the rape charge and not the fact that he was
awaiting extradition. The applicant considers that he could not be
extradited as a result of the delay and/or failure of the respondent
State to either proceed with the prosecution for rape or alternatively
dismiss the charge.
The applicant submits that the criminal case was not complicated and
that there was no justification for this process to take four years,
despite the fact that the alleged victim lived in Finland, and that extra
diligence should have been exercised as the applicant was under an
International Detention Order.
The Commission recalls that, for a detention to be "in accordance
with a procedure prescribed by law", it has to comply with the relevant
procedure under national law, which must itself be in conformity with the
Convention and the general principles expressed or implied therein. The
notion underlying the term in question is one of fair and proper
procedure, namely that any measure depriving a person of his liberty
should be ordered and executed by an appropriate authority and should not
be arbitrary (Eur. Court H.R., Winterwerp judgment of 24 October 1979,
Series A no. 33, p. 19, para. 45).
The Commission further recalls that it is in the first place for the
national authorities, notably the courts, to interpret and apply the
domestic law (above-cited judgment, p. 20, para. 46). As regards the
conformity with domestic law, the "lawful" character of a detention
covers procedural as well as substantive rules (same judgment, p. 17,
para. 39).
The Commission notes that the applicant was first arrested
on 5 March 1990 and detained on remand on 8 March 1990 on the ground of
being suspected of rape and falsification, and also because of the
International Detention Order issued against him. Nevertheless, the
Audiencia Nacional, in its decision of 17 March 1992 to prolong the
applicant's detention on remand, considered the date of 23 March 1990 as
that of the beginning of the applicant's detention for the extradition
case.
The Commission has taken cognizance of the parties' observations and
considers that this complaint raises serious questions of fact and law
which are of such complexity that the determination of the lawfulness or
unlawfulness of the detention at issue should depend on an examination
on the merits. This complaint cannot therefore be rejected as being
manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-
2) of the Convention. No other grounds for inadmissibility having been
established, this part of the application should accordingly be declared
admissible.
3. The applicant complains of the absence of a remedy under Spanish law
to challenge the lawfulness of his detention on remand and invokes
Articles 5 para. 4 and 13 (Art. 5-4, 13) of the Convention, which read
as follows :
Article 5 (Art. 5)
"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.
..."
Article 13 (Art. 13)
"Everyone whose rights and freedoms as set forth in this
Convention are violated shall have an effective remedy before
a national authority ..."
The Commission observes that the applicant filed several "habeas
corpus" appeals which were examined and dismissed by the competent
authorities. The applicant lodged an appeal (súplica) with the Audiencia
Nacional against its decision dated 17 March 1992 concerning his
detention on remand. The appeal was dismissed on 18 June 1992 and the
applicant then lodged a "de amparo" appeal with the Constitutional Court.
The Commission therefore concludes that the applicant's complaint under
Article 5 para. 4 (Art. 5-4) of the Convention is manifestly ill-founded
under Article 27 para. 2 (Art. 27-2) of the Convention.
In view of the above conclusion reached under the lex specialis of
Article 5 par. 4 (Art. 5-4), there is no need for the Commission to
examine the case under Article 13 (Art. 13) (Eur. Court. H.R., De Jong,
Baljet and Van den Brink judgment of 22 May 1984, Series A N° 77,
p. 27, para. 60).
It follows that this part of the application must be rejected as
being manifestly ill-founded under Article 27 para. 2 (Art. 27-2) of the
Convention.
For these reasons, the Commission, unanimously,
DECLARES ADMISSIBLE, without prejudging the merits, the applicant's
complaints under Article 5 paras. 1 (c) and 3
(Art. 5-1-c, 5-3) of the Convention concerning the lawfulness and
length of his detention on remand ;
DECLARES INADMISSIBLE the remainder of the application.
Secretary to the Second Chamber President of the Second Chamber
(K. ROGGE) (H. DANELIUS)
Full & Egal Universal Law Academy