EUROPEAN COMMISSION OF HUMAN RIGHTS
Application No. 19382/92
T.
against
Spain
REPORT OF THE COMMISSION
(adopted on 28 June 1994)
TABLE OF CONTENTS
Page
I. INTRODUCTION
(paras. 1-21) . . . . . . . . . . . . . . . . . . . . . . . . 1
A. The application
(paras. 2-4) . . . . . . . . . . . . . . . . . . . . . . 1
B. The proceedings
(paras. 5-16). . . . . . . . . . . . . . . . . . . . . . 1
C. The present Report
(paras. 17-21) . . . . . . . . . . . . . . . . . . . . . 3
II. ESTABLISHMENT OF THE FACTS
(paras. 22-64). . . . . . . . . . . . . . . . . . . . . . . . 4
A. The particular circumstances of the case
(paras. 22-57) . . . . . . . . . . . . . . . . . . . . . 4
B. Relevant domestic law
(paras. 58-64) . . . . . . . . . . . . . . . . . . . . . 8
III. OPINION OF THE COMMISSION
(paras. 65-95). . . . . . . . . . . . . . . . . . . . . . . .10
A. Complaint declared admissible
(para. 65) . . . . . . . . . . . . . . . . . . . . . . .10
B. Point at issue
(para. 66) . . . . . . . . . . . . . . . . . . . . . . .10
C. As regards Article 5 para. 3 of the Convention
(paras. 67-94) . . . . . . . . . . . . . . . . . . . . .10
1. Period to be considered under Article 5 para. 3
of the Convention
(para. 68) . . . . . . . . . . . . . . . . . . . .10
2. Criteria for assessing the reasonableness of the
length of pretrial detention
(paras. 69-77) . . . . . . . . . . . . . . . . . .10
3. Reasons given by the domestic authorities
(paras. 78-85) . . . . . . . . . . . . . . . . . .12
4. The conduct of the proceedings
(paras. 86-91) . . . . . . . . . . . . . . . . . .13
5. General assessment
(paras. 92-94) . . . . . . . . . . . . . . . . . .14
CONCLUSION
(para. 95) . . . . . . . . . . . . . . . . . . . . . . .15
DISSENTING OPINION OF MR. C.A. NØRGAARD, JOINED BY
BY MR. J.-C. SOYER. . . . . . . . . . . . . . . . . . . . . . . . .16
DISSENTING OPINION OF MR. E. BUSUTTIL, MR. A.S. GÖZÜBÜYÜK,
MRS. J. LIDDY, MR. J.-C. GEUS AND MR. I. CABRAL BARRETO . . . . . .17
DISSENTING OPINION OF MR. F. MARTINEZ . . . . . . . . . . . . . . .18
APPENDIX I : HISTORY OF THE PROCEEDINGS . . . . . . . . . . . . .20
APPENDIX II : DECISION OF THE COMMISSION AS TO THE
ADMISSIBILITY OF THE APPLICATION . . . . . . . . . .22
I. INTRODUCTION
1. The following is an outline of the case as submitted to the
European Commission of Human Rights, and of the procedure before the
Commission.
A. The application
2. The applicant is a Dutch citizen, born in 1959 and at the time
of the introduction of the application detained in prison in Vigo,
Spain. He was represented before the Commission by Mr. J.K. Gaasbeek,
a lawyer practising in Haarlem, the Netherlands.
3. The application is directed against Spain. The respondent
Government were represented by their Agent, Mr. Javier Borrego Borrego,
Head of the Legal Department for Human Rights at the Ministry of
Justice.
4. The case concerns the duration of the applicant's detention on
remand. The applicant invokes Article 5 para. 3 of the Convention.
B. The proceedings
5. The application was introduced on 2 December 1991 and registered
on 21 January 1992. In the application the applicant alleged violations
of Articles 5 para. 3 and 6 para. 1 of the Convention.
6. On 1 April 1992 the Commission (Second Chamber) decided, pursuant
to Rule 48 para. 2 (b) of its Rules of Procedure, to give notice of the
application to the respondent Government and to invite the parties to
submit written observations on its admissibility and merits.
7. Pursuant to Article 49 para. 3 of the Commission's Rules of
Procedure, the Commission decided on 7 July 1992 that the application
should remain in the Second Chamber.
8. The Government's observations were submitted on 23 July 1992
after an extension of the time-limit set for this purpose. The
applicant replied on 2 November 1992 after an extension of the time-
limit. On 8 December 1992 the Commission (Second Chamber) granted the
applicant legal aid for the representation of his case.
9. On 10 February 1993 the Commission declared admissible the
applicant's complaint under Article 5 para. 3 of the Convention. It
declared inadmissible the remainder of the application.
10. The text of the Commission's decision on admissibility was sent
to the parties on 19 February 1993 and they were invited, if they so
wished, to submit further observations on the merits. The Government
submitted observations on 31 March 1993, to which the applicant replied
on 18 June 1993.
11. On 27 September 1993 the respondent Government informed the
Commission that the applicant, in violation of the conditions for his
provisional release, had absconded from Spain, and requested the
Commission, in view of the applicant's conduct, to reject his
application under Article 29 of the Convention. The applicant's reply
to the Government's request was submitted on 14 October 1993.
12. On 20 October 1993 the Commission (Second Chamber) considered the
respondent Government's request and found no basis for applying
Article 29 of the Convention.
13. By letters of 22 and 28 October 1993 respectively, the respondent
Government requested the Commission to refer the case to the plenary
Commission and requested the Commission to reconsider the decision of
20 October 1993 in respect of Article 29 of the Convention. The
applicant's reply to this request was submitted on 4 November 1993.
14. On 30 November 1993, pursuant to Article 49 para. 3 of the
Commission's Rules of Procedure, the application was referred to the
plenary Commission. The Commission subsequently decided on
6 December 1993 that it was not competent to review the decision of
20 October 1993 and decided to put additional questions to the parties.
15. On 14 January 1994 both the respondent Government and the
applicant submitted their respective answers to the additional
questions put by the Commission.
16. After declaring the case admissible, the Commission, acting in
accordance with Article 28 para. 1 (b) of the Convention, also placed
itself at the disposal of the parties with a view to securing a
friendly settlement. In the light of the parties' reactions, the
Commission now finds that there is no basis on which such a settlement
can be effected.
C. The present Report
17. The present Report has been drawn up by the Commission in
pursuance of Article 31 of the Convention and after deliberations and
votes, the following members being present :
MM. C.A. NORGAARD, President
S. TRECHSEL
A. WEITZEL
F. ERMACORA
E. BUSUTTIL
G. JÖRUNDSSON
A.S. GÖZÜBÜYÜK
J.-C. SOYER
H.G. SCHERMERS
H. DANELIUS
Mrs. G.H. THUNE
MM. F. MARTINEZ
C.L. ROZAKIS
Mrs. J. LIDDY
MM. L. LOUCAIDES
J.-C. GEUS
M.P. PELLONPÄÄ
G.B. REFFI
M.A. NOWICKI
I. CABRAL BARRETO
B. CONFORTI
N. BRATZA
I. BÉKÉS
J. MUCHA
E. KONSTANTINOV
D. SVÁBY
18. The text of this Report was adopted on 28 June 1994 by the
Commission and is now transmitted to the Committee of Ministers of the
Council of Europe, in accordance with Article 31 para. 2 of the
Convention.
19. The purpose of the Report, pursuant to Article 31 of the
Convention, is :
(i) to establish the facts, and
(ii) to state an opinion as to whether the facts found disclose
a breach by the State concerned of its obligations under
the Convention.
20. A schedule setting out the history of the proceedings before the
Commission is attached hereto as Appendix I and the Commission's
decision on the admissibility of the application as Appendix II.
21. The full text of the parties' submissions, together with the
documents lodged as exhibits, are held in the archives of the
Commission.
II. ESTABLISHMENT OF THE FACTS
A. The particular circumstances of the case
22. According to the applicant, who is a truck driver, a man unknown
to him asked him, in March 1989, if he could transport and deliver an
important quantity (1.300 kilos) of tobacco to Bayona (Spain). He
would receive, including expenses, 20.000 Dutch guilders for this.
Eventually the applicant agreed. On 26 May 1989, just after delivery
of the goods, the applicant was arrested by the Guardia Civil who also
seized in the truck 1.300 kilos of hashish and a pistol, a Browning
7.65 made in Belgium.
23. The next day, the Guardia Civil seized 2.475 kilos of hashish in
a shed at Cabreiros-Baredo (Bayona). These drugs were part of the same
delivery of hashish as the quantity seized in the applicant's truck.
At least eight persons were involved in the delivery and the total
quantity concerned was 7.000 kilos of hashish which had been delivered
at three stages during the previous days.
24. The applicant claimed not to have been aware that the tobacco
which he had been asked to transport was in fact hashish. Subsequent
to his arrest he was detained on remand (prisión provisional), and his
appeal (recurso de reforma) against this decision was subsequently
rejected on 27 December 1990 by the Investigating Judge (Magistrado-
Juez del Juzgado Central de Instrucción) No. 5 of the Audiencia
Nacional.
25. On 10 June 1989 he was heard by the Investigating Judge
(Magistrado-Juez de Instrucción) No. 1 of Vigo. On 21 September 1989
the Public Prosecutor (Ministerio Fiscal) declared that he was not
opposed to the applicant's provisional release provided that he pay a
security of 500.000 pesetas, that he hand in his passport and that he
report daily to the police.
26. On 25 September 1989 the applicant filed a request for
provisional release. However, on 18 November 1989 the Investigating
Judge No. 1 of Vigo, in a decision (auto de procesamiento), charged the
applicant with an offence against public health and illegal possession
of firearms. On 22 November 1989 the applicant lodged an appeal
(recurso de reforma) against this decision. He also, unsuccessfully,
requested his conditional release. He renewed this request on
22 December 1989 to the Investigation Judge No. 1 of Vigo, and on
20 April 1990, 28 May 1990, 19 July 1990 and 5 September 1990 to the
Audiencia Provincial of Pontevedra.
27. On 6 March 1990 the applicant appeared before the Investigating
Judge and was asked whether he recognised certain persons from
photographs.
28. By decision (auto) of 26 September 1990, the Audiencia Provincial
of Pontevedra rejected the requests, considering that the reasons for
his detention on remand were still pertinent. The applicant lodged an
objection (recurso de súplica) against this decision on 1 October 1990,
which was rejected by the Audiencia Provincial of Pontevedra on
9 October 1990 on the same grounds as in its decision of
26 September 1990.
29. The Spanish authorities became aware at some time of the
existence of an important drug trafficking organisation which gave rise
to an extensive nationwide investigation (known under the name of
"Nécora").
30. On 29 October 1990, as the applicant's case appeared to be
closely connected with that of several other persons also charged with
drug trafficking as part of the operation "Nécora", the cases were
joined. Accordingly the case was referred to the jurisdiction of the
Audiencia Nacional in Madrid.
31. On 19 November 1990 the applicant again filed a request for
provisional release before the Central Investigating Judge No. 5 of the
Audiencia Nacional, but on 28 November 1990 the Public Prosecutor
opposed this request. On 30 November 1990 the Central Investigating
Judge No. 5 rejected the applicant's request in view of the gravity and
nature of the offence and the sentence which corresponded to such an
offence.
32. The applicant's appeal (recurso de apelación) with the Audiencia
Nacional was rejected on 30 April 1991. The Audiencia Nacional, noting
that the applicant was an alien with no domicile or stable work in
Spain, found there was a risk that he would not appear at his trial.
It further had regard to the seriousness of the offences, the
corresponding possible prison sentence, the serious consequences of
such offences and the frequency of such offences in the region at
issue.
33. The applicant's subsequent constitutional appeal (recurso de
amparo) was rejected by the Constitutional Court (Tribunal
Constitucional) on 11 September 1991. It held that the charges
justified the applicant's detention and that the detention was
therefore not in violation of the presumption of innocence. With
regard to the right to a trial within a reasonable time it held that
it was not called upon to decide on the mere possibility that a certain
delay might at some stage no longer be reasonable.
34. Meanwhile, by order (auto de procesamiento) of 8 January 1991,
the Central Investigating Judge No. 5 charged the applicant with
illegal possession of firearms and, together with several other co-
suspects, with participation in drug trafficking. The applicant filed
appeals (recurso de reforma, recurso de apelación) against this order.
He submitted, inter alia, that he had only been questioned on three
occasions during the 20 months which preceded the decision of
8 January 1991. These appeals were dismissed on 12 February and
8 July 1991.
35. By telegram of 30 January 1991 the applicant introduced another
request for provisional release. On 25 February 1991 the investigating
judge informed the applicant of the Public Prosecutor's intention to
have his provisional detention prolonged up to the statutory maximum
of four years provided for in Article 504 of the Act on Criminal
Procedure (Ley de Enjuiciamiento Criminal). On 28 February 1991 the
applicant objected to the Public Prosecutor's intention to have his
detention prolonged. On 6 March 1991 the Central Investigating Judge
No. 5 adjourned his decision on the prolongation but maintained the
applicant in provisional detention.
36. On 8 May 1991 the Public Prosecutor requested that the maximum
period of the applicant's detention be extended for two more years.
The applicant's objections and request for release were dismissed by
the Central Investigating Judge No. 5 who, on 22 May 1991, extended the
maximum period of the applicant's detention for two more years in view
of the seriousness of the charges against the applicant and the
corresponding sentence which could be imposed.
37. In connection with his requests for release the applicant offered
bail.
38. On 2 October 1991 the applicant appeared before the Central
Investigating Judge in connection with the findings of a commission
rogatory in Belgium concerning the applicant's case.
39. During the preliminary investigations several of the fifty-four
suspects appealed against various judicial orders. On 19 February 1992
the Central Investigating Judge No. 5 closed the preliminary
investigation.
40. Eventually, on 11 June 1992, the Audiencia Nacional ordered the
applicant's release on bail. The security was set at 8 million pesetas
and the conditions for his release were, apart from the payment of the
security, that he would indicate his address, hand in his passport,
report daily to the police, inform the authorities about any change of
address and that he would not leave the Spanish territory.
41. The Audiencia Nacional based this decision on the fact that it
had appeared that the applicant had merely transported drugs and was
not involved in the organisation of the drug trafficking within the
"Nécora" operation. Further, noting that the applicant had been
detained longer than any of the other accused, the Audiencia found that
there was no risk of suppression of evidence. As to the risk of the
applicant absconding, the Audiencia noted that other accused foreigners
concerned by the investigation had already been released and found the
fact that the applicant was a foreigner an insufficient reason for
maintaining his detention on remand. Moreover, the applicant had shown,
at least to some extent, that he had the possibility to stay in Spain
since he had obtained a labour contract.
42. Following the applicant's request of 26 June 1992 to reduce the
security, the Audiencia Nacional reduced it to 4 million pesetas on
2 July 1992. On 24 July 1992, after his wife had deposited the
security, the applicant was released.
43. The Audiencia Nacional concluded the preliminary investigations
and started the oral hearings (juicio oral) on 3 July 1992. At that
point in time the case-file counted about 22.000 pages. On
15 July 1992 the Public Prosecutor submitted his provisional
conclusions, in which he demanded, in respect of the applicant, a total
prison sentence of 14 years and a fine of 60 million pesetas for a
crime against public health within the meaning of Sections 344 and
344bis a) of the Criminal Code and for illegal weapon possession in
violation of Sections 254 and 255 para. 2 of the Criminal Code.
44. In July 1992 the final charges were formulated.
45. On 9 October 1992, upon the applicant's request, the Audiencia
Nacional decided that the applicant should report to the police only
once every week and that certain documents, inter alia his driving
licence, be returned to him.
46. On 16 October 1992 the applicant appeared before the judicial
authorities of Vigo in order to receive his driving licence, two
wallets and certain documents back.
47. On 12 November 1992 the applicant requested permission to travel
to the Netherlands in order to spend the holidays there with his
family. The Audiencia Nacional rejected this request on
24 November 1992 in view of the obvious risk that he would then avoid
Spanish justice.
48. On 23 December 1992 the applicant travelled by car from Spain to
the Netherlands.
49. By letter of 5 January 1993 the applicant's Dutch lawyer informed
the applicant's two Spanish lawyers that the applicant had left Spain
and had returned to the Netherlands, as he had been lacking means of
subsistence in Spain, and requested them to take the necessary steps
to alter the conditions attached to the applicant's provisional
release, in particular the obligation to stay in Spain.
50. By letter of 7 April 1993, at the applicant's request, his lawyer
informed the Spanish Embassy at The Hague that the applicant had
returned to the Netherlands and wished to alter the conditions of his
provisional release. He proposed that he should report weekly to the
Embassy. He further stated that he intended to return to Spain in order
to appear at his trial.
51. On 19 April 1993 the Spanish Embassy at The Hague informed the
applicant's Dutch lawyer that a request to alter the conditions for the
applicant's provisional release should be addressed to the Audiencia
Nacional which determined the conditions at issue and advised him to
contact the Audiencia Nacional.
52. By summons of 10 June 1993 the applicant was ordered to appear
before the trial court, but this summons was not served on the
applicant in view of the fact that he no longer resided at the address
in Spain he had given to the Spanish authorities.
53. On 9 July 1993 the police informed the judicial authorities that
the applicant's whereabouts were unknown. Subsequently the Audiencia
Nacional ordered that the applicant and his guarantor, i.e. his wife,
appear before it on 23 July 1993 at a hearing regarding the forfeiture
of the security paid for the applicant's release.
54. The applicant's Spanish lawyer filed an objection against this
order, submitting, inter alia, that the applicant had had to leave
Spain for compelling family reasons, i.e. the terminal illness of his
father, but that the applicant had no intention to avoid Spanish
justice and would appear at his trial. This objection was rejected by
the Audiencia Nacional on 31 July 1993. It noted the applicant's
failure to comply with the conditions attached to his release and
ordered his arrest.
55. On 16 September 1993 the Audiencia Nacional, noting that the
applicant had failed to report, this being one of the conditions for
his provisional release, and that the Spanish authorities had been
unable to trace him, declared the applicant in default of appearance
(rebeldìa) and his security was forfeited.
56. The criminal proceedings against the applicant and about 50 other
persons charged with involvement in the operation "Nécora" started on
20 September 1993. The applicant did not appear. He states that he had
chosen to attend the funeral of his father which took place on the same
day. It does not appear that the applicant has returned to Spain to
attend his trial at some later point in time.
57. The Spanish authorities have not requested the Netherlands
authorities to extradite the applicant.
B. Relevant domestic law
58. Section 17 of the Spanish Constitution secures the right to
liberty and security of person and sets out the conditions under which
a person may be deprived of his liberty. Pursuant to para. 4 of this
provision a habeas corpus procedure shall be provided for by law, which
shall also determine the maximum duration of detention on remand.
59. Section 344 of the Criminal Code reads:
"Whoever performs acts of cultivation, manufacturing or trafficking with regard to toxic drugs, narcotics or psychotropic substances or in any other way promotes, favours or facilitates their illegal consumption, or possesses them for such purposes, shall be punished with a penalty ranging from minor imprisonment ("prisión menor") in its medium degree to major imprisonment ("prisión mayor") in its minimum degree and a fine from 1 million to 100 million pesetas if the substances or products involved could cause serious damage to health, and from major arrest ("arresto mayor") in its maximum degree to minor imprisonment in its medium degree and a fine from 500.000 to 50 million pesetas in all other cases." 60. Section 344bis a. of the Criminal Code, insofar as relevant, reads: "Penalties superior in degree to those respectively indicated in the foregoing Section will be imposed, (...) 3. Whenever the quantity of toxic drugs, narcotics or psychotropic substances, which are the subject of the acts referred to in the foregoing Section, is of particular importance. (...) 6. When the offender belongs to an organisation, even of a provisional character, that could have the aim of spreading such substances or products even in an occasional way." 61. Section 254 of the Criminal Code reads: "The illicit possession of firearms, outside a person's own home, without the required guide or licence, or inside a person's own home, without a guide who has ownership, will be punished with the penalty of minor imprisonment." 62. Section 255 of the Criminal Code, insofar as relevant, reads: "The offence defined in the foregoing Section will be punished with major imprisonment when some of the following circumstances are at hand: (...) 2. That the firearms come from abroad and have been illegally brought into the Spanish territory." 63. According to Section 504 of the Code of Criminal Procedure the detention on remand shall not exceed three months if the proceedings concern an offence punishable with major arrest (one to six months). The detention on remand shall not exceed one year where an offence is punishable with minor imprisonment (six months to six years) and shall not exceed two years if the punishment which can be imposed is more severe. 64. If, however, due to certain circumstances the case cannot be adjudicated within that period and there is a risk that the accused could avoid justice, Section 504 provides, in respect of the last two categories, that the detention on remand may be prolonged up to two and four years respectively. An order to this effect shall only be given after the competent court has heard the accused and the Public Prosecutor. III. OPINION OF THE COMMISSION A. Complaint declared admissible 65. The Commission has declared admissible the applicant's complaint that the length of his detention on remand was excessive. B. Point at issue 66. Accordingly, the issue to be determined is whether the length of the applicant's detention on remand was contrary to Article 5 para. 3 (Art. 5-3) of the Convention. C. As regards Article 5 para. 3 (Art. 5-3) of the Convention 67. Article 5 (Art. 5) of the Convention, insofar as relevant, provides: "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." 1. Period to be considered under Article 5 para. 3 (Art. 5-3) of the Convention 68. As to the length of the detention on remand, the Commission observes that the applicant was arrested and detained on remand on 26 May 1989. On 11 June 1992 the Audiencia Nacional ordered his release on bail. Following the deposit of the security the applicant was provisionally released on 24 July 1992. The total period the applicant spent in detention on remand was therefore three years, one month and 27 days. 2. Criteria for assessing the reasonableness of the length of pre- trial detention 69. The Commission recalls that it falls in the first place to the national judicial authorities to ensure that, in a given case, the pre- trial detention of an accused person does not exceed a reasonable time (cf. Eur. Court H.R., Kemmache judgment of 27 November 1991, Series A no. 218, p. 23, para. 45). 70. In determining whether or not in a given case the detention of an accused person exceeds a reasonable time, it is for the national judicial authorities to seek all the facts arguing for or against the existence of a genuine requirement of public interest justifying a departure from the rule of respect for individual liberty. It is essentially on the basis of the reasons given in the decisions on the applications for release pending trial, and of the facts mentioned by the detained person in his appeals, that the question whether or not there has been a violation of the Convention must be decided (Eur. Court H.R., Neumeister judgment of 27 June 1968, Series A no. 8 p. 37, para. 5). 71. The persistence of reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but after a certain lapse of time it no longer suffices. It must then be established whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty. Where such grounds are "relevant" and "sufficient", it must also be ascertained whether the competent national authorities displayed "special diligence" in the conduct of the proceedings (Eur. Court H.R., Tomasi judgment of 27 August 1992, Series A no. 241-A, p. 35, para. 84). Article 5 para. 3 (Art. 5-3) of the Convention implies that there must be special diligence in the conduct of the prosecution of persons charged and detained. The Commission further notes that Article 5 para. 3 (Art. 5-3) expressly refers to the possibility for the accused under certain circumstances to be released from pre-trial detention under guarantees to appear for trial. 72. The danger of absconding cannot be gauged solely on the basis of the severity of the possible sentence. It must be assessed with reference to a number of other relevant factors which may either confirm the existence of a danger of absconding, or make it appear so slight that it cannot justify pre-trial detention. In this context regard must be had, in particular, to the character of the person involved, his morals, his assets, his links with the State in which he is being prosecuted and his international contacts (cf. Eur. Court H.R., W. v. Switzerland judgment of 26 January 1993, Series A no. 254-A, p. 16, para. 33). 73. With the passage of time the grounds for detention on remand will themselves diminish in pertinence when balanced against the right to liberty guaranteed by Article 5 (Art. 5) of the Convention to the person provisionally detained (W. v. Switzerland judgment, loc. cit., opinion of the Commission, p. 33, para. 106). 74. The applicant submits that the length of his detention on remand, as a result of the important and undue delay in setting a date for his trial, cannot be justified on the basis that there were numerous other accused involved. According to the applicant, his case is very clear and can be dealt with independently from those of the other accused. There was no necessity to wait four years with his trial. 75. As regards his departure from Spain, the applicant submits that he stayed in Spain for several months, but had difficulties in supporting himself financially. He is, however, of the opinion that this departure from Spain does not alter the unreasonableness of the length of his pre-trial detention. 76. The Government, pointing out the necessity to fight organised crime in the field of drug trafficking as reflected in, inter alia, the United Nations Convention against the Illicit Trafficking of Narcotics and Psychotropic Substances, submit that the length of the applicant's detention on remand was justified, given that he was charged with serious offences for which the Public Prosecutor has demanded a prison sentence of 14 years and a fine of 60 million pesetas. 77. The Government note that the domestic courts, when considering the question whether or not to allow the applicant's provisional release, took the seriousness of these offences, the risk of the applicant absconding from Spain and the apparent connection between the applicant's case and the operation "Nécora", into account. 3. Reasons given by the domestic authorities 78. The Commission has first examined the reasons given by the Spanish courts when prolonging the applicant's detention on remand and refusing his applications to be released pending trial. 79. The Spanish authorities suspected the applicant of drug offences and illegal possession of a weapon. They also considered that there was a link between his case and the operation "Nécora", which involved criminal proceedings against about 50 other suspects. 80. The persistence of reasonable suspicion alone cannot suffice to justify a protracted period of detention on remand, such as in the present case. The Commission must therefore examine the other grounds which persuaded the Spanish authorities to decide that the detention on remand should be continued, in particular whether they were "relevant" and "sufficient" (cf. Tomasi judgment, loc. cit). 81. The Commission notes that the Spanish authorities rejected the applicant's requests to be released pending trial on the basis of the danger of the applicant absconding as well as the serious nature of the drug offence with which the applicant was charged and the severe sentence that could be imposed (decisions of 30 November 1990 and 22 May 1991 by the Central Investigating Judge and decision of 30 April 1991 by the Audiencia Nacional). 82. The Commission considers that the main reason for the applicant's detention on remand must be considered to have been the risk that he might evade justice. The references to the serious character of the offence and the severity of the sentence which might be pronounced are subsidiary elements which, however, may affect the assessment of the danger of absconding, since a person who can expect a severe sentence may be particularly inclined to attempt to abscond. 83. The Commission notes that the danger of absconding was expressly cited by the Audiencia Nacional in its decision of 30 April 1991 to justify continued detention on remand. Having regard to Section 504 of the Code of Criminal Procedure (cf. supra para. 63), such a danger must also have been taken into consideration by the Audiencia Nacional when it decided on 22 May 1991 to extend the maximum period of detention by two years. Also when the applicant was finally released against the deposit of security and subject to various conditions, a risk that he might flee from justice must have been considered to exist since both the security which had to be deposited and the conditions imposed upon the applicant were aimed at ensuring his presence in Spain to stand trial. 84. The Commission notes that the applicant was neither a Spanish citizen nor a resident of Spain and that he had no family or other special connections in Spain. Moreover, he risked a severe sentence in Spain for illegal import of narcotics into the country. The Spanish courts therefore had good reason to believe that he might wish to leave Spain in order to escape from Spanish justice. The fact that, some time after his release, the applicant left Spain in violation of the conditions imposed on him confirms that a danger that he would abscond existed. 85. The Commission is therefore satisfied that the danger of absconding existed throughout the applicant's period of detention. 4. The conduct of the proceedings 86. The Commission notes that the applicant's case was connected with those of over 50 other persons accused within the context of the operation "Nécora" and that the whole investigation was referred to the jurisdiction of the Audiencia Nacional in Madrid. There can be no doubt that the investigation was a complex one which necessitated investigatory measures in many places and the interrogation of numerous persons. The size of the investigation is also shown by the fact that the case-file regarding the investigation consisted of about 22.000 pages. 87. As a result the Commission accepts that the investigation regarding the operation "Nécora", in view of its size and complexity, required a considerable time to be completed. 88. On the other hand, the final charges against the applicant and several co-accused were formulated in an order of 8 January 1991 by the Central Investigating Judge No. 5, i.e. almost one and a half years before the applicant was released on bail. In regard to the charges against the applicant, no difficult problems of evidence would seem to have arisen, since it was not contested that the applicant had transported the hashish and the pistol. The only remaining point which needed to be elucidated concerned the applicant's intention and knowledge, since he claimed to have believed that he was in fact transporting tobacco. 89. It also seems that the applicant was only interrogated on a few occasions and that there were long intervals between the interrogations. In his appeal against the order of 5 January 1991, the applicant stated that he had only been questioned three times during the preceding 20 months of his detention. Moreover, on 11 June 1992 the Audiencia Nacional, when it ordered the applicant's release on bail, noted that the applicant had only played a minor role in the drug trafficking organisation, that he had been detained longer than any of the other accused and that other foreigners who were also accused had already been released. 90. In its decision on the admissibility of the present application, the Commission noted that the investigation had been complex in that it concerned a large scale drug traffic with international implications, that charges were brought against 54 persons and that the case-file regarding the preliminary investigation covered 22,000 pages. In these circumstances, the Commission found the period which it took the Spanish authorities to complete the investigation not to be unreasonable and contrary to Article 6 para. 1 (Art. 6-1) of the Convention. 91. However, insofar as the right to personal liberty within the meaning of Article 5 (Art. 5) of the Convention is concerned, stricter criteria must be applied. In the present case, the Commission cannot find, on the basis of the material available, that the case against the applicant alone, when taken separately fron the cases of his co-accused, was particularly complex, and it notes that charges against the applicant had been formulated already on 8 January 1991. At that time, the applicant had been in detention on remand for about one year and eight months, and in view of this long period of detention the authorities were under a special obligation, in accordance with Article 5 para. 3 (Art. 5-3) of the Convention, to bring his detention on remand to an end as soon as possible. However, the applicant remained in detention on remand for a further period exceeding one year, and the Government have not presented any convincing argument to explain why he could not, in order to avoid such a long period of detention on remand, have been brought to trial at an earlier date. 5. General assessment 92. The Commission accepts that there was throughout the applicant's detention on remand a risk that he would abscond, if he was released. It has also been convincingly demonstrated that the investigation of the "Nécora" affair was a complicated one and that a considerable time was needed to bring it to an end. 93. However, there has been no sufficient explanation of why the applicant could not have been brought to trial at an earlier date. Special diligence was required in this regard in view of the long time he had spent in detention on remand. The investigation regarding the offences he was suspected of having committed does not appear to have been of great complexity, and while the link with the whole "Nécora" investigation was no doubt a complicating factor, special measures should have been contemplated in order to avoid that the applicant would have to be detained in remand for an unusually long period. In fact, the actual period during which he was detained was of such a length that a very convincing justification for it must be provided in order for it to be acceptable under Article 5 para. 3 (Art. 5-3) of the Convention. 94. In the circumstances of the present case, the Commission considers it not to have been established that the applicant's period of detention, which exceeded three years, was in conformity with the "reasonable time" requirement in Article 5 para. 3 (Art. 5-3) of the Convention. CONCLUSION 95. The Commission concludes, by 17 votes to 9, that there has been a violation of Article 5 para. 3 (Art. 5-3) of the Convention. Secretary to the Commission President of the Commission (H.C. KRÜGER) (C.A. NØRGAARD) (Or. English) DISSENTING OPINION OF MR. C.A. NØRGAARD, JOINED BY MR. J.-C. SOYER I regret that I am unable to agree with the conclusion of the majority of the Commission that there has been a violation of Article 5 para. 3 of the Convention. I note that the applicant, after being detained on remand for a period of three years, one month and twenty seven days, was provisionally released on 24 July 1992 on condition, inter alia, that he would not leave Spanish territory and that, in breach of that condition, he left Spain on 23 December 1992 and has not returned to Spain to stand trial. Like the Commission, I accept that there was throughout the applicant's detention on remand a risk that he would abscond if he was released. It has also been convincingly demonstrated that the investigation was a complicated one and that a considerable time was needed to bring it to an end. It is also understandable that a trial against more than 50 accused persons required careful and lengthy preparations. It is true that the applicant's case does not seem to have been particularly complicated, and that question therefore arises whether he should have been brought to trial separately at an earlier date. However, I cannot find it established that such a procedure would have been appropriate and in conformity with a proper administration of justice. For these reasons, and notwithstanding the fact that the applicant's detention on remand exceeded three years, I consider that the length of the detention did not exceed a reasonable time within the meaning of Article 5 para. 3 of the Convention. (Or. English) DISSENTING OPINION OF MR. E. BUSUTTIL, MR. A.S. GÖZÜBÜYÜK, MRS. J. LIDDY, MR. J.-C. GEUS AND MR. I. CABRAL BARRETO We entirely agree with paragraphs 90 to 94 of the Report, which led the majority to conclude that there was a violation of Article 5 para. 3 of the Convention. Nonetheless, we voted against such a finding of violation because the fact that the applicant left Spain in breach of a condition attached to his provisional release and thereafter failed to return to stand trial, was sufficient in our view to warrant the striking out of the application from the Commission's list of cases in terms of Article 30 para. 1 (c) of the Convention. (Or. French) OPINION DISSIDENTE DE M. MARTINEZ La majorité de la Commission a conclu, en l'espèce, à la violation par le Gouvernement espagnol de ses obligations découlant de la Convention. J'exprime mon total désaccord avec l'avis de la majorité pour les motifs qui suivent: 1. L'article 5 par. 3 de la Convention reconnaît implicitement que la détention provisoire vise à assurer la comparution des prévenus devant les juridictions de jugement. La Commission, pour sa part, estime au paragraphe 82 de son rapport que la raison principale de maintenir le requérant en situation de détention provisoire était le risque qu'il se soustraie à la justice. Or, en prenant la fuite après qu'il ait été libéré, le requérant a prouvé lui-même le bien-fondé des craintes qui avaient motivé son maintien en détention. 2. Au paragraphe 91 de son rapport la Commission, tout en admettant le sérieux du risque de fuite, fonde la violation de la Convention sur le fait que: "il n'y a pas eu une explication suffisante de pourquoi il n'avait pas été possible de renvoyer le requérant en jugement à une date antérieure". Je ne peux accepter que cela suffise à constater une violation de l'article 5 par. 3 de la Convention. Toute une série de raisons militent contre ce raisonnement. J'en exposerai quelques unes seulement. 3. S'agissant tout d'abord de la durée de la détention provisoire, question qui aux yeux de la majorité de la Commission revêt en l'occurrence une importance capitale, je considère pour ma part que la durée à prendre en considération est de 3 ans et 15 jours, puisqu'elle a pris fin le 11 juin 1992 avec la décision de mise en liberté sous caution (par. 40 du Rapport). 4. Pour ma part, j'estime qu'une durée de détention de 3 ans et 15 jours ne saurait être considérée comme étant contraire à l'article 5 par. 3 de la Convention à la lumière de l'arrêt W. c/Suisse du 26 janvier 1993 (série A no 254) dans lequel la Cour a conclu qu'une durée de détention de 4 ans et 3 jours ne constituait pas une violation de la disposition précitée. En l'espèce le risque de fuite était d'autant plus justifié qu'il s'est réalisé. 5. En considérant que les autorités judiciaires espagnoles auraient du renvoyer le requérant devant la juridiction de jugement plus tôt qu'il ne l'ont fait, la Commission contredit quelque peu sa propre décision sur la recevabilité qui déclara irrecevable le grief du requérant tiré de la durée de la procédure. 6. On est en droit de se demander si, compte tenu des faits reprochés au requérant - participation dans un important trafic international de drogue-, des conséquences sur la santé des personnes de ce trafic, son cas ne relève pas de l'article 17 de la Convention. 7. En tout cas, pour l'opinion publique, il paraîtra pour le moins curieux de voir la Commission européenne des Droits de l'Homme soutenir un fugitif de la justice et l'aider à exiger des comptes à un Etat dans lequel il est inculpé de faits délictueux d'une particulière gravité. Il me semble paradoxal qu'un délinquant présumé qui s'est soustrait de façon illégale à l'action de la justice puisse être à l'origine d'un jugement de condamnation de cet Etat par suite de ses accusations. 8. De quel droit une personne qui fait fi de la justice d'un Etat démocratique peut-il, dans les circonstances de l'espèce, prendre parti contre cet Etat? APPENDIX I HISTORY OF THE PROCEEDINGS Date Item _________________________________________________________________ 2 December 1991 Introduction of application 21 January 1992 Registration of application Examination of admissibility 1 April 1992 Commission's decision (Second Chamber) to communicate the case to the respondent Government and to invite the parties to submit observations on admissibility and merits 23 July 1992 Government's observations 2 November 1992 Applicant's observations in reply 8 December 1992 Commission's grant of legal aid 10 February 1993 Commission's decision to declare application in part admissible and in part inadmissible Examination of the merits 19 February 1993 Decision on admissibility transmitted to parties. Invitation to parties to submit further observations on the merits 31 March 1993 Government's observations 18 June 1993 Applicant's observations 5 July 1993 Commission's consideration of state of proceedings 27 September 1993 Government's request to reject the application under Article 29 of the Convention 20 October 1993 Commission's decision in respect of the Government's request of 27 September 1993 22 October 1993 Government's request to refer the case to the plenary Commission and to reconsider the decision of 20 October 1993 30 November 1993 Commission's decision to refer the case to the plenary Commission 6 December 1993 Commission's decision on the Government's request to reconsider the decision of 20 October 1993 and further decision to put additional questions to the parties 14 January 1994 Submission of the parties' answers to the additional questions. 9 April 1994 Commission's consideration of state of proceedings 28 June 1994 Commission's deliberations on the merits, final vote and consideration of text of the Report and adoption of the Report
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