Lexploria

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 Ã

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

Menu

T. v. SPAIN

T. v. SPAIN

LEXI