Sejdiji v. the former Yugoslav Republic of Macedonia: Abuse of detention

Analysis by Gordana Lazetic on the ECtHR judgement "Sejdiji v. the former Yugoslav Republic of Macedonia" (application no. 8784/11).

 

1. The facts and circumstances of the case
The applicant, along with 13 other people, was charged for several criminal offenses in several separate proceedings in which he had been detained. The applicant was charged for money laundering and violence. In the present case, the ECtHR based assessment regarding the alleged violation of Article 5 para. 3 in relation to the detention that was determined on December 25, 2009 and lasted until January 26, 2011, with a total duration of one year, one month and two days. During this time the detention was extended several times and the applicant submitted legal remedies and suggestions for replacing the detention with the bail, but they have remained unsuccessful. The detention lasted until the pronouncement of a first instance judgment by which the applicant was found guilty and remained in detention until the judgment becomes final. 

 

2. Relevant domestic law
Тhe Criminal Proceedings Act of February 2005 specifies the measures which the court may issue in order to secure the attendance of an accused at a trial (Articles 185-199). Under Article 198 para. 2 of the Act detention in prison should be as brief as possible. Under Article 199 para. 1 (1-3) of the Act detention in prison may be ordered on reasonable suspicion that the person concerned has committed an offence if there is a risk of absconding, interference with the investigation or re-offending.
Under Article 200 paras. 1 and 6 of the Act an investigating judge has jurisdiction to order pre-trial detention. The person concerned may appeal before the panel. Article 205 paras. 2 and 6 of the Act provides for the panel set up under Article 22 para. 6 to extend the detention at the request of the investigating judge or the public prosecutor. The extension order may be challenged before the court above.
Under Article 397 of the Act, if the second-instance court considers grounds for an appeal applicable to any co-accused who did not lodge a formal appeal, it may, of its own motion, proceed as if the appeal had been lodged by the co-accused concerned (the beneficium cohaesionis rule).

 

3. General principles 
(Buzadji v. the Republic of Moldova ([GC], no. 23755/07, §§ 84-91, ECHR 2016 (extracts)); Vasilkoski and Others v. the Former Yugoslav Republic of Macedonia (no. 28169/08, 28.X.2010); Miladinov and Others v. the Former Yugoslav Republic of Macedonia (nos. 46398/09, 50570/09 and 50576/09, §§ 45-49, 24.IV.2014)
- 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. However after a certain lapse of time it no longer suffices,so the Court must establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty (Labita v. Italy [GC], no. 26772/95, §§ 152 and 153, ECHR 2000-IV);
- The presumption is in favor of release. A person charged with an offence must always be released pending trial unless the State can show that there are “relevant and sufficient” reasons to justify the continued detention (see, among other authorities, Castravet v. Moldova, no. 23393/05, §§ 30 and 32, 13 March 2007; McKay v. the United Kingdom [GC], no. 543/03, § 41, ECHR 2006; Jabłoński v. Poland, no. 33492/96, § 83, 21 December 2000; and Neumeister v. Austria, judgment of 27 June 1968, Series A no. 8, § 4);
- It is incumbent on the domestic authorities to establish the existence of concrete facts relevant to the grounds for continued detention. The national judicial authorities must examine all the facts arguing for or against the existence of a genuine requirement of public interest justifying, with due regard to the principle of the presumption of innocence, a departure from the rule of respect for individual liberty and set them out in their decisions dismissing the applications for release. It is not the Court's task to establish such facts and take the place of the national authorities who ruled on the applicant's detention. It is essentially on the basis of the reasons given in the domestic courts' decisions and of the true facts mentioned by the applicant in his appeals, that the Court is called upon to decide whether or not there has been a violation of Article 5 § 3 of the Convention (Korchuganova v. Russia, no. 75039/01, § 72, 8 June 2006; Ilijkov, cited above, § 86; and Labita, cited above, § 152).

 

4. Relevant aspects of the present case
It is evident that the domestic courts, when deciding upon determination and extension of the detention and rejection of the proposal for replacement of the detention with the bail, have violated several principles related to the  justified and lawful extension of the detention. Detention should be considered as the most severe measure for securing the presence of the accused, so more lenient measure shall be imposed whenever it is considered as justified. The duration of the detention shall be reasonable. The court decisions need to contain relevant arguments for determination and extension of the detention regarding every accused person and regarding different detention grounds.
The various grounds on which the Court found a violation of Article 5 para. 3 may be grouped as follows:
1) The courts used stereotypical formulations in all decisions for extension of applicant’s detention without referring to individualized arguments with regard to the applicant - the ECtHR considers that any extension of the detention should have the status as a determination of detention for the first time, from the aspect of the arguments justifying the grounds for the extension of detention - the personal circumstances and the personal situation of the applicant. In this sense, continued detention can only be justified if there are specific indications of the real need of the public interest, which, regardless of the presumption of innocence, prevails over the rule of respect for personal liberty provided for in Article 5 of the ECHR (Kudła v. Poland [GC], no. 30210/96, § 110, ECHR 2000-XI; Perica Oreb v. Croatia, no. 20824/09, § 107, 31.X.2013, §§ 114 и 116; Panchenko v. Russia, no. 45100/98, § 105, 8.II.2005; Letellier v. France, Judgement 26.VI.1991, Series A no. 207, § 43);
2) Extension of the detention by the so-called “collective decisions” that contain general and summariesed arguments is in contrary to Art. 5 ст. 3 of the ECHR. This is a longstanding wrong practice of macedonian courts that has been already established as such in previous judgments of ECtHR against Macedonia (Vasilkoski and Others v. the Former Yugoslav Republic of Macedonia, no. 28169/08, 28.X.2010);
3) The assessment of the danger for escape without specifying the concrete and relevant circumstances justifying that danger - the ECtHR considers that the danger of escape as a ground for detention must be concretized by elaborating circumstances related to the defendant's personal and family circumstances, his conduct, behavior or actions that lead to the conclusion that the defendant is preparing for the escape. Regarding the danger of escape, the ECtHR took the view that the danger of escape can not be measured or assessed purely abstractly and exclusively according to the severity of punishment the applicants faced. Arguments for and against release should not be general and abstract (Smirnova v. Russia, nos. 46133/99 и 48183/99, § 63, ECHR 2003-IX);
4) The nature, character and type of the offense – this circumstances was repeated as a ground for extension of the detention with several decisions by the Court of Appeal, which is an abstract circumstance that can not justify the extension of the detention;
5) The seriousness of the prescribed sanction itself shall not be considered as a basis for the determination or extension of detention, since detention is a measure for securing the presence of the accused during a particular criminal procedure, and the prescribed sanction in the Criminal Code is abstractly determined and depends on the type of protected good by that offense;
6) The court did not engage in assessing the evidence submitted by the applicant - the domestic courts did not give any explanation as to why they assessed that the evidence submitted by the applicant (medical documentation regarding the health of his wife; the fact that his family lives in Macedonia) were not relevant to reduce the danger for escape and the detention to be replaced by a more lenient measure to ensure the applicant's presence during the criminal proceedings. The ECtHR in its judgment does not include an assessment whether these circumstances could or could not have grounds for court decision in a different manner, but the ECtHR only indicates the omission made by the domestic courts to provide reasonable arguments for assessing that the defendant's family and financial situation are not a sufficient guarantee that he will regularly appear at the hearings and will not impede the course of the criminal procedure;
7) Insufficient argumentation of the decision for refusing the replacement of the detention with a bail - ECtHR concluded that for rejecting the defendant's proposal to replace detention with a bail, the domestic court has used the following phraseology “... given the gravity of the charge, the potential punishment and complexity of the proceedings with many defendants and extensive evidence ... ". In the same time the court insufficiently offered elaboration in relation to the defendant's personal, family and property circumstances. It is not enough that the court merely stated that "the fact that the applicant had a family and property in the respondent State does not provide sufficient security for his presence during the proceedings". When proceeding in this manner, there is a risk that the court will not obey Code of criminal procedure’s provision regarding the duty of the judge to determine the easiest measure to secure presence of the defendant during the criminal procedure and to avoid detention when it is not necessary and justified;
8) А former "conflict with the law" - the Appellate Court has proceeded quite wrongly when it found that it was not justified to replace the detention with a bail due to the fact that the applicant had "been in conflict with the law" in the past. One has to have in mind that the circumstances justifying detention shall be linked with a specific ongoing procedure, so that a recidivism is not a criteria either for determining or for extension of the detention;
9) Violation of the presumption of innocence - the domestic courts stated in their decisions that the applicant was under investigation and other criminal proceedings that had not been completed with a final court decision. The defendant protects the presumption of innocence and the fact that other criminal proceedings were pending can not be a circumstance for the determination or extension of the detention or for refusing the proposal for replacement of the detention with the bail. The presumption of innocence does not cease when after the first-instance judgment the procedure continues with an appeal procedure (Case оf Konstas v. Greece (no. 53466/07, Judgment Final 28.11.2011);
10) The influence of the media - the public in a certain way is performing a role as a controller of the court's work, but it is completely unjustified the media exposure of the applicant's case to be referred in the court decision as one of the arguments for extension of the detention. The effect of media reporting on the impartiality of the first-instance court and the sharp comments from the media, according to the ECtHR, are sometimes inevitable in cases that are related to the public interest, but they should not affect the court (Viorel Burzo v. Romania, nos. 75109/01 et 12639/02, § 160);
11)  In explaining the decisions of the court for the determination and extension of detention, there is no indication of certain facts which may be considered relevant even though they were presented in the media - in the explanation of the decisions the court did not mention the fact that the applicant was arrested at the border with a foreign state in an attempt to escape, nor the fact that several international arrest warrants were issued against the applicant. Although these circumstances were published in the media, it was necessary for them to be the subject of an assessment of the court within the relevant circumstances justifying the danger for escape and for the detention to be assessed as the only effective measure to ensure the applicant's presence during the procedure.

 

5. Conclusion of the court
There has been a violation of Article 5 § 3 of the Convention by failing to refer to concrete, relevant facts justifying the applicant’s detention or to give genuine consideration to alternative “preventive measures”, the authorities extended the applicant’s detention on grounds which cannot be regarded as “relevant and sufficient” within the meaning of the Court’s case-law.