SECOND SECTION
DECISION
Application no. 8346/07
Slavko SLAVKOVIC
against Switzerland
The European Court of Human Rights (Second Section), sitting on 20 May 2014 as a Chamber composed of:
Guido Raimondi, President,
András Sajó,
Nebojša Vučinić,
Helen Keller,
Paul Lemmens,
Egidijus Kūris,
Jon Fridrik Kjølbro, judges,
and Stanley Naismith, Section Registrar,
Having regard to the above application lodged on 12 February 2007,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Slavko Slavkovic, is a Serbian national, who was born in 1980 and lives in Ebikon, Canton of Lucerne. He was represented before the Court by Mr Franz Dörig, a lawyer practising in Lucerne.
2. The Swiss Government (“the Government”) were represented by their Agent, Mr Frank Schürmann, of the Federal Office of Justice.
3. On 20 September 2010 the Government of Serbia were informed of their right to intervene in the proceedings, in accordance with Article 36 § 1 of the Convention and Rule 44 § 1(b) of the Rules of Court. On 18 October 2010 the Government of Serbia informed the Court that they did not wish to exercise their right to intervene in the present case.
A. The circumstances of the case
4. The facts of the case, as submitted by the parties, may be summarised as follows.
5. On 10 April 2006 the applicant was detained in Bad Feilnbach (Germany) on the basis of an international arrest warrant issued by the Sursee district authority (Amtsstatthalteramt Sursee (Switzerland)) on 1 May 2003. According to the arrest warrant, the applicant was suspected of having committed the offences of serious assault, endangering the life of another person and damaging property, because he had allegedly participated in a brawl on 2 March 2003 in Sursee and shot one of the victims in the leg during the fracas.
6. On 19 July 2006 the applicant was convicted in Germany of a number of offences, including illegal entry, illegally staying in the country and forgery of a document.
7. On 11 September 2006 the German authorities extradited the applicant to Switzerland. On 12 September 2006 his lawyer was appointed to represent him. That same day the Sursee Prefect (Amtsstatthalter) ordered that the applicant be placed in pre-trial detention. In the detention order the Prefect established that the applicant was suspected of having committed a number of offences, including serious assault and endangering the life of another person. The applicant’s pre-trial detention was considered to be further justified because serious concerns existed that he would seek to evade the criminal proceedings by absconding or compromise the efforts of the investigation if left at large.
8. Based on the same reasons, an application for immediate release from pre-trial detention made by the applicant on 14 September 2006 was dismissed by the Prefect on 18 September 2006.
9. On 15 September 2006 the applicant appealed against the Prefect’s detention order to the Court of Appeal for the Canton of Lucerne (Obergericht, hereinafter “the Court of Appeal”). He claimed that the requirements for detaining him had not been fulfilled in a number of respects.
10. The Court of Appeal invited the public prosecutor to submit observations on the applicant’s appeal. On 20 September 2006 the public prosecutor sent an e-mail to the Prefect in response. In this e-mail he stated the following:
“Good morning A.
As stated yesterday on the phone, I have been asked to submit before tomorrow, 21 September 2006, observations on the representative’s appeal in the pre-trial detention matter regarding S.S. [Slavkovic Slavko].
Please send me, for the attention of the Court of Appeal, [details of] which (investigation) activities have been carried out since the accused’s detention and which investigative activities are planned in the near future.
In addition I would ask you – as discussed – to issue as soon as possible the new international arrest warrant against S.S. “amended” with respect to the crimes of assault, brawling, assault and theft; to pass it [in accordance with standard procedure] (keyword: granting of the right to be heard) to the person concerned (not as an accused!) and to subsequently submit both [documents] to the Federal Office for Justice. The Federal Office for Justice will then take the next steps (together with [the assistant]).
Please also send the new arrest warrant and the record of the questioning session with S.S. to me by fax or e-mail, so that I can refer to them in my observations to the Court of Appeal.
Many thanks for your efforts, which are appreciated. I am at your disposal in case of any questions.
Kind regards,
G.”
11. On 21 September 2006 the public prosecutor submitted his observations to the Court of Appeal. The applicant was invited to submit observations in response.
12. On 22 September 2006 the Prefect issued a new, amended international arrest warrant against the applicant. By letter of the same date, the applicant wrote to the Prefect stating that he would prefer that the decision regarding the approval of the amended arrest warrant be suspended until the Court of Appeal had decided on his appeal against the order for his pre-trial detention.
13. The applicant submitted observations on 22 and 24 September 2006 to the Court of Appeal. Having become aware of the e-mail exchange (see paragraph 10 above), he claimed that the Prefect was acting under the instructions of the public prosecutor. He alleged that from an objective point of view the Prefect could not be considered as an independent “officer authorised by law to exercise judicial power”, within the meaning of Article 5 § 3 of the Convention. He therefore sought the Prefect’s withdrawal from the case.
14. On 26 September 2006 the Court of Appeal dismissed the applicant’s appeal and established that the requirements for detaining him pending trial had been fulfilled. It held that there were no indications, either in the e-mail exchange between the Prefect and the prosecutor or in other documents, that the Prefect had been acting under the prosecutor’s instructions when ordering the applicant’s pre-trial detention. It found that the prosecutor’s request regarding the amendment of the international arrest warrant of 20 September 2006 had nothing to do with the detention order against the applicant, which had already been issued by the Prefect on 12 September 2006. Since the e-mail exchange between the prosecutor and the Prefect had occurred some days after the detention order had been issued, no doubts as to the Prefect’s independence when ordering the applicant’s pre-trial detention existed. In addition, according to Article 154bis of the Code of Criminal Procedure of the Canton of Lucerne (hereinafter “the CCP”, see paragraph 19 below), the Prefect was not bound by any instructions of the public prosecutor when ordering pre-trial detention. Furthermore, according to Article 129 of the CCP (see paragraph 19 below), he was not competent to bring criminal charges against the applicant before the domestic courts. In addition, the prosecutor’s supervisory responsibilities, as set out in Article 153(1) and (2) of the CCP (see paragraph 19 below), were limited to investigative activities, with a particular emphasis on responsibility for their proper and expeditious completion. Therefore, the legal provisions in force sufficiently guaranteed the Prefect’s independence when ordering pre-trial detention and no conflict of interest existed.
15. The applicant appealed against this decision to the Federal Supreme Court (hereinafter “the FSC”). He reiterated that in the given circumstances the Prefect could not be considered as an independent officer authorised by law to exercise judicial power within the meaning of Article 5 § 3 of the Convention and accordingly had to be excluded from the case. He also alleged that the Court of Appeal had failed to consider whether the international arrest warrant of 1 May 2003 had been issued by the Prefect under the prosecutor’s instructions.
16. By a judgment of 3 November 2006 the FSC upheld the Court of Appeal’s judgment. It ruled that the provisions of the CCP sufficiently guaranteed the impartiality and independence of the Prefect in accordance with Article 5 § 3 of the Convention. With regard to the e-mail exchange, the FSC further reiterated that it had mainly concerned the amendment of the international arrest warrant and that the prosecutor’s actions had been fully compliant with Article 153(1) and (2) of the CCP. Moreover, the e‑mail exchange had occurred some days after the detention order had been issued and contained no indications that the prosecutor had given the Prefect instructions when the latter was ordering the applicant’s pre-trial detention on 12 September 2006.
17. By penal order of 29 November 2006 the Prefect sentenced the applicant to seventy-nine days’ imprisonment for having taken part in a brawl on 2 March 2003 in Sursee. The applicant accepted this sentence and the penal order entered into force on 29 November 2006, in accordance with Article 133 of the CCP (see paragraph 19 below).
18. On 1 January 2011 the Federal Code of Criminal Procedure entered into force and replaced the CCP (see paragraph 19 below).
B. Relevant domestic law and practice
19. Articles 60, 63, 80, 81, 83bis, 126, 129, 133, 153, 154, 154bis and 158 of the Code of Criminal Procedure of the Canton of Lucerne of 3 June 1957, as in force at the relevant time, provided as follows:
Article 60 – Duties of the Prefect
1 The Prefect investigates crimes, an offender’s criminal record and his personal circumstances.
(...)
Article 63 - Investigative Activities
"1The Prefect leads investigations.
(...)
Article 80 – Requirements for pre-trial detention
1 The accused normally remains at liberty.
2 The accused can be put in pre-trial detention if there is a strong suspicion that he has committed a crime or an offence and if one of the following requirements is applicable:
1. A reasonable suspicion that he will seek to evade the criminal proceedings or the anticipated sanction by absconding; [such] a suspicion will be further strengthened if the person is accused of having committed a serious crime or offence; (...)
2. Circumstances which give reason to fear that the accused would seek to compromise the efforts of the investigation; (...)
Article 81 – Arrest warrant
1 An arrest warrant must be issued in writing and provide the reason(s) for the arrest.
2 The following authorities are entitled to issue an arrest warrant: the Prefect, the Public Prosecutor, the Criminal Courts before which the case is pending, and their presidents.
Article 83bis – Detention order
1 An authority which issues an arrest warrant shall decide immediately after a questioning session with the accused whether he should be kept in detention. ... A detention order shall be issued in writing and provide the reasons for the pre-trial detention.
2 The accused has the right to appeal to the Court of Appeal against a detention order of the Prefect, the public prosecutor, a first-instance court or its president. (...)
Article 126 – Referral
If sufficient indications of a punishable offence exist, the Prefect shall refer the case to the competent court if the investigation cannot be closed by a penal order.
Article 129 – Application
If the District Court or the Court of Appeal has subject-matter jurisdiction, the Prefect may submit a written application regarding [the accused’s] guilt, the penalty [to be imposed] and [other] measures [to be taken] if he has not previously ordered pre-trial detention.
Article 133 – Acceptance of a penal order
(a) regarding imprisonment and community service
1 The accused may accept in writing, within twenty days, a penal order if:
(a) the penal order concerns imprisonment alone, or in combination with another penalty or measure;
(b) the penal order concerns community service alone, or in combination with another penalty or measure.
2 Provided that the accused accepts a penal order regarding a crime or an offence within the [above-stated] period, the penal order shall have legal effect from the day of the accused’s declaration of acceptance, if the public prosecutor has subsequently signed it off.
Article 153 – Supervision
1 The Public Prosecutor shall execute direct supervision over the Prefects. He shall supervise investigations, [with] particular [responsibility for] their proper and expeditious completion.
2 He can require reports on the progress of investigations, issue instructions and assist investigative activities.
Article 154 – Examination of case management
1 The Prefect shall regularly provide the Public Prosecutor with updates about pending investigations, especially those of long duration.
2 The Public Prosecutor shall examine the Prefect’s case management, give the necessary instructions and make reports to the Criminal Cases Commission.
Article 154bis – Status of the Prefect in pre-trial detention matters
In matters regarding pre-trial detention, the Prefect takes decisions freely and independently.
Article 158 – Bringing criminal charges
1 The Public Prosecutor shall bring criminal charges if,
(...)
(c) the Prefect has ordered the accused’s pre-trial detention and the District Court or the Court of Appeal has subject-matter jurisdiction.
2 The Public Prosecutor cannot file criminal charges if he has previously issued an arrest warrant or a pre-trial detention order against the accused or if he has dismissed an accused’s application for release from pre-trial detention.
COMPLAINT
20. The applicant complained under Article 5 § 3 of the Convention that the Prefect had not been independent from the public prosecutor and that his pre-trial detention had accordingly not been ordered by “a judge or other officer authorised by law to exercise judicial power” within the meaning of this provision.
THE LAW
1. The applicant’s submissions
21. The applicant claimed that although the provisions of the CCP had formally established the Prefect’s impartiality and independence, in practice Article 153 of the CCP had allowed the Prefect to act under the prosecutor’s orders. In the applicant’s view, the prosecutor’s e-mail of 20 September 2006 proved that his role had not been restricted to that of a supervisory nature, as it had contained a direct order to the Prefect to amend the international arrest warrant. Therefore, it appeared from an objective point of view that the Prefect had lacked sufficient independence and impartiality. Accordingly, he had not fulfilled the requirements of an “officer authorised by law to exercise judicial power”, within the meaning of Article 5 § 3 of the Convention.
2. The Government’s submissions
22. With regard to the domestic legal provisions, the Government reiterated that, pursuant to Articles 153 and 154 of the CCP, the public prosecutor had been tasked with supervising the Prefect’s management of the case. In order to carry out that supervision he had been empowered to give instructions in specific cases and participate in investigative activities. However, it had been clearly stated in Article 154bis of the CCP that the Prefect took decisions regarding pre-trial detention freely and independently from the prosecutor. In addition, Article 129 of the CCP prevented any overlap between investigative tasks and the indictment of the accused by providing that the Prefect could not make an application regarding the accused’s guilt and the penalty to be imposed if he had previously ordered the accused’s pre-trial detention. Those provisions therefore ensured that the Prefect could not simply follow instructions received from the prosecuting authority when ordering pre-trial detention or act in such a manner in the course of the proceedings. The Government therefore concluded that the Prefect had been acting impartially and independently when ordering the applicant’s pre-trial detention and could therefore be considered as an “other officer authorised by law to exercise judicial power”, within the meaning of Article 5 § 3 of the Convention. In the view of the Government, the system established in the CCP had thus been in full conformity with the Court’s case-law.
23. With respect to the applicant’s argument that the e-mail exchange of 20 September 2006 (see paragraph 10 above) had demonstrated the Prefect’s lack of independence from the prosecutor, the Government reiterated, making reference to the judgments of the Court of Appeal and the FSC, that only the detention order of 12 September 2006 was pertinent in this regard under Article 5 § 3 of the Convention. The Prefect had, however, taken that decision completely independently, after having questioned the applicant in person and examined whether his detention was warranted. Furthermore, the applicant had never denied that this had taken place. The Government could not therefore see how the prosecutor’s e-mail of 20 September 2006 could have had any influence on the Prefect’s detention order, which had been issued a week earlier. The Government concluded that the application was manifestly ill-founded and had to be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
3. The Court’s assessment
24. The Court reiterates that the judicial review of interference by the executive with the individual’s right to liberty is an essential feature of the guarantee embodied in Article 5 § 3. Before an “officer” can be said to exercise “judicial power” within the meaning of this provision, he or she must satisfy certain conditions providing a guarantee to the person detained against any arbitrary or unjustified deprivation of liberty. Thus, the “officer” must be independent of the executive and the parties. In this respect, objective appearances at the time of the decision on detention are material: if it appears at that time that the “officer” may later intervene in subsequent criminal proceedings on behalf of the prosecuting authority, his independence and impartiality may be open to doubt. The “officer” must hear the individual brought before him in person and review, by reference to legal criteria, whether or not the individual’s detention is justified. If it is not so justified, the “officer” must have the power to make a binding order for the detainee’s release (see Huber v. Switzerland, 23 October 1990, § 43, Series A no. 188, and Assenov and others v. Bulgaria, 28 October 1998, § 146, Reports of Judgments and Decisions 1998-VIII).
25. The Court firstly notes that the applicant did not deny that the Prefect had questioned him in person before placing him in pre-trial detention and that he had examined the circumstances militating for and against his pre-trial detention. Furthermore, the applicant never claimed that the legal provisions in force allowed the Prefect to intervene in the subsequent criminal proceedings as a representative of the prosecuting authority and that his impartiality would hence have been capable of appearing open to doubt. The Court therefore considers that the only issue that arises concerns the Prefect’s independence, in particular whether he met the conditions of an “officer authorised by law to exercise judicial power” within the meaning of Article 5 § 3 of the Convention.
26. The Court further notes that the applicant did not raise the question of the Prefect’s independence at the time of the issuing of the detention order. Nor did he do so in his appeal to the Court of Appeal of 15 September 2006. Only after he had obtained knowledge of the e-mail exchange of 20 September 2006 (see paragraph 10 above) did he claim that the Prefect had been acting under the instructions of the public prosecutor and that the domestic provisions in force did not create sufficient legal safeguards to ensure the Prefect’s independence.
27. With regard to the legal provisions in force at the time of the domestic decisions, the Court finds that they did, in fact, sufficiently guarantee the Prefect’s independence when ordering pre-trial detention. Article 154bis of the CCP clearly stated that the Prefect took decisions regarding pre-trial detention freely and independently. The Prefect also had the power to take legally binding decisions as to the detention or release of the accused (see, a contrario, Assenov and others, cited above, § 148). Meanwhile, the prosecutor’s responsibilities were limited, according to Articles 153 and 154 of the CCP, to the supervision of the Prefect’s investigative and case management activities.
28. The question therefore remains whether the e-mail exchange between the public prosecutor and the Prefect on 20 September 2006 shows that the Prefect had, contrary to the legal provisions of the CCP, acted under the prosecutor’s instruction when ordering the applicant’s pre-trial detention on 12 September 2006. In this regard the Court notes that the prosecutor’s e-mail mainly concerned the amendment of the international arrest warrant and was only secondarily related to the Prefect’s investigative activities in the applicant’s case. The Court further finds that the prosecutor’s e-mail did not contain any instruction to the Prefect regarding the applicant’s pre-trial detention or any indication that the prosecutor had previously instructed the Prefect with regard to the issue of the detention order. In this regard the Court also takes into account that, as established by the domestic authorities, the e-mail exchange occurred some days after the issuing of the Prefect’s detention order and could therefore hardly have influenced it. The Court hence holds that the e-mail exchange could not have given rise to doubts as to the Prefect’s independence when ordering the applicant’s pre-trial detention. The Court therefore concludes that the Prefect acted as an “officer authorised by law to exercise judicial power” within the meaning of Article 5 § 3 when ordering the applicant’s pre-trial detention.
29. It follows that the applicant’s complaint under Article 5 § 3 of the Convention is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
Stanley NaismithGuido Raimondi
RegistrarPresident
Full & Egal Universal Law Academy