Lexploria

AS TO THE ADMISSIBILITY OF

Application No. 21335/93

by Christopher Ian SCOTT

against Spain

The European Commission of Human Rights (Second Chamber) sitting in

private on 22 February 1995, the following members being present:

Mr. H. DANELIUS, President

Mrs. G.H. THUNE

MM. G. JÖRUNDSSON

J.-C. SOYER

H.G. SCHERMERS

F. MARTINEZ

L. LOUCAIDES

J.-C. GEUS

M.A. NOWICKI

I. CABRAL BARRETO

J. MUCHA

D. SVÁBY

Mr. K. ROGGE, Secretary to the Chamber

Having regard to Article 25 of the Convention for the Protection of

Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 2 September 1992 by

Christopher Ian SCOTT against Spain and registered on 4 February 1993

under file No. 21335/93;

Having regard to the report provided for in Rule 47 of the Rules of

Procedure of the Commission;

Having regard to :

- the reports provided for in Rule 47 of the Rules of Procedure of the

Commission;

- the observations submitted by the respondent Government on

24 January 1994 and the observations in reply submitted by the

applicant on 8 November 1994;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a British citizen, born in 1958. When this

application was introduced before the Commission, he was detained at the

Santa Cruz de Tenerife prison in Spain.

I. Particular circumstances of the case

The facts of the case, as submitted by the parties, may be

summarised as follows :

On 5 March 1990, the applicant was arrested in Puerto de la Cruz,

Tenerife, under suspicion of rape of a Finnish citizen, and detained on

remand for that reason (prisión provisional). On 7 March 1990, in the

presence of a lawyer and with an interpreter, the applicant made a

statement to the police. When the records were consulted, it was found

that an International Detention Order for murder had been issued in

respect of the applicant on 31 January 1990 by a judge at Birmingham

Crown Court. On the same day, the applicant was brought before a judge.

On 8 March 1990, assisted by a lawyer and with an interpreter, the

applicant made a statement to an investigating judge (juez de

instrucción) of Puerto de la Cruz concerning the alleged rape. By

decision of 8 March 1990 (auto de prisión), the investigating judge

remanded the applicant in custody on the grounds that he was suspected

of rape and falsification and pending the investigation for alleged

murder of his father referred to in the International Detention Order.

On 23 March 1990, the Central Investigating Judge of the Audiencia

Nacional authorised the detention on remand of the applicant following

a request for extradition made by the British authorities. By decision

(auto) of 22 February 1991, the Criminal Chamber of the Audiencia

Nacional ordered the extradition of the applicant to the United Kingdom,

to be judged for the facts referred to in the International Detention

Order of 31 January 1990 after having served any outstanding sentence

that might be imposed on him in Spain.

Against this decision to grant extradition, the applicant lodged an

appeal (súplica) with the plenary of the Audiencia Nacional. By decision

of 28 May 1991, the appeal was dismissed.

On 25 June 1990, an International Letter of Request for Judicial

Cooperation was sent to the relevant authority in Finland in order to

take a further statement from the alleged victim of the rape.

By decision of 6 March 1992 given by the investigating judge of

Puerto de la Cruz, two years after the applicant had been remanded in

custody, the applicant was released on bail in the case of the rape, as

required by Article 504 of the Criminal Code. He was however kept in

prison pending the determination of the extradition case and detained in

various prisons in Spain.

On 17 March 1992, the Audiencia Nacional, considering the 23 March

1990 as the date of the beginning of the applicant's detention for the

extradition case, decided to prolong his detention on remand under

Article 504 para. 4 of the Code of Criminal Procedure and Article 10

para. 3 of the Passive Extradition Law, for a period not exceeding two

years, that is to say until 23 March 1994.

On 3 and 6 April 1992, the applicant's "habeas corpus" appeals,

lodged with the investigating judge of Santa Cruz de Tenerife, were

dismissed.

On 18 June 1992, the Audiencia Nacional dismissed the applicant's

appeal (súplica) on the grounds that he had been remanded in the

extradition case only on 23 March 1990, independently of the applicant's

former detention for a different matter.

On 22 December 1992, the "habeas corpus" appeal lodged with the

investigating judge of Alcala de Henares was dismissed.

The applicant lodged a "de amparo" appeal with the Constitutional

Court against the two former decisions of the Audiencia Nacional

concerning his detention on remand. The appeal was rejected by decision

of 6 May 1993 as being time-barred. Concerning the exhaustion of

domestic remedies, the Constitutional Court also stated that ..."the

decision (auto) of the criminal chamber (third section) of the Audiencia

Nacional of 18 June 1992, ... be considered as the last instance before

the constitutional "de amparo" appeal ...". Nevertheless, as to the

merits, the Constitutional Court stated that the applicant had been

remanded in the extradition case only on 23 March 1990, so that the

decision of the Audiencia Nacional of 17 March 1992 to prolong detention

for two more years as of that date was correct, as the former period

spent in prison by the applicant did not have any relation to the new

detention.

On 29 April 1993, the International Letter of Request for Judicial

Cooperation to obtain the summons of the victim of the criminal offence

allegedly committed in Spain (rape) was finally executed. On 25 August

1993, the applicant's detention was again ordered in the rape case and

his provisional release was revoked. The applicant was again transferred

to Tenerife prison.

By decision of the Audiencia Provincial of Santa Cruz de Tenerife

of 21 March 1994, the applicant was acquitted of the charge of rape and

sentenced to a penalty of four months' imprisonment for falsification of

documents.

On 27 March 1994, the applicant was handed over to the British

authorities following the International Detention Order and the decision

of the Audiencia Nacional of 23 March 1990 to grant extradition.

II. Relevant domestic law

(Original)

Ley de Enjuiciamiento Criminal, Artículo 504 par. 4

"La situación de prisión provisional no durará más de tres

meses cuando se trate de causa por delito al que corresponda

pena de arresto mayor, ni más de un año cuando la pena sea de

prisión menor o de dos años cuando la pena sea superior. En

estos dos últimos casos, concurriendo circunstancias que hagan

prever que la causa no podrá ser juzgada en estos plazos y que

el inculpado pudiera sustraerse a la acción de la justicia, la

prisión podrá prolongarse hasta dos y cuatro años,

respectivamente. La prolongación de la prisión provisional se

acordará mediante auto, con audiencia del inculpado y del

Ministerio Fiscal."

(Translation)

Code of Criminal Procedure, Article 504 para. 4

"Detention on remand shall not last more than three months

when it relates to a case where the established penalty is

that of "arresto mayor" , and not more than one year when the

penalty is "prisión menor" or two years in case of a more

severe penalty. In these two latter cases, when there are

circumstances which indicate that the case will not be dealt

with within those time-limits and that the detainee might try

to evade justice, the detention may be prolonged by up to two

and four years, respectively. The prolongation of the

detention will be pronounced by a decision (auto) after a

hearing of the detainee and the public prosecutor."

(Original)

Ley de extradición pasiva (Ley 4/85 de 21 de Marzo de 1985)

Artículo 10 pár. 3

"El límite máximo de la prisión provisional del reclamado y

los derechos que corresponden al detenido por causa de

extradición se regirán en lo previsto por esta Ley, por los

preceptos correspondientes de la Ley de Enjuiciamiento

Criminal."

(Translation)

Passive Extradition Law (Law 4/1985, of 21 March 1985)

Article 10 para. 3

" The maximum time-limit of the detention on remand of the

requested person and the rights regarding the detainee

awaiting extradition will be determined insofar as established

in this Law, by the related provisions of the Code of Criminal

Procedure."

COMPLAINTS

1. Concerning the criminal proceedings held in Spain for rape and

falsification, the applicant complains of the following breaches of the

Convention :

a) under Article 6 paras. 1 and 2 of the Convention, that he has

not been granted a fair and public hearing within a reasonable time and

that the ongoing detention violated his right to presumption of

innocence;

b) under Article 6 para. 3 (a), (b) and (c) of the Convention,

that he was not informed, in a language which he understood, of the

extent of the evidence against him when first remanded in custody in

March 1990, that he had no adequate time and facilities for the

preparation of his defence, that he was unable to understand his

interpreter and that he was not legally represented or informed of the

nature of the preliminary hearings of the trial for the alleged rape;

c) under Article 8 para. 1 of the Convention, that he was

transferred to various prisons which interrupted his private and family

life as his relatives were unable to visit or to write to him.

2. The applicant complains under Article 5 paras. 1 (c) and 3 of the

Convention that he was held in contravention of Spanish law concerning

the prolongation of detention on remand. He states that his detention

was unlawful and that he was not brought before a competent judge to be

tried.

3. The applicant complains of the absence of a remedy under Spanish law

to challenge the lawfulness of his detention on remand and invokes

Articles 5 para. 4 and 13 of the Convention.

PROCEEDINGS BEFORE THE COMMISSION

The application was introduced on 2 September 1992 and registered

on 4 February 1993.

On 13 October 1993, the Commission (Second Chamber) decided to

communicate the application to the respondent Government pursuant to Rule

48 para. 2 (b) of the Rules of Procedure.

The Government's written observations were submitted on

24 January 1994, after an extension of the time-limit for that purpose.

The applicant replied on 8 November 1994, also after an extension of the

time-limit.

On 18 May 1994, the applicant was granted legal aid.

THE LAW

1. As regards the criminal proceedings in Spain for rape and

falsification, the applicant complains of not having been granted a fair

and public hearing within a reasonable time and of a violation of his

right to be presumed innocent. He alleges several violations of his

rights to be informed, in a language which he understood, of the extent

of the evidence against him when remanded in custody, to have time and

facilities for the preparation of his defence, to be assisted by an

understandable interpreter and to be legally represented or informed of

the nature of the preliminary hearings of the trial for the alleged rape.

He invokes Articles 6 paras. 1, 2 and 3 (a), (b) and (c) (Art. 6-1, 6-2,

6-3-a, 6-3-b, 6-3-c) of the Convention. The applicant further alleges

a violation of Article 8 para. 1 (Art. 8-1) of the Convention, insofar

as he was deprived of his private and family life.

The Commission notes that the applicant has not validly invoked

these complaints before the Spanish courts. In this respect, the

Commission observes that the applicant only challenged the lawfulness of

the decision to prolong his detention on remand (Article 17 of the

Constitution) and did not lodge any appeal either with internal ordinary

courts or with the Constitutional Court in a "de amparo" appeal

concerning Article 6 paras. 1, 2 and 3 (Art. 6-1, 6-2, 6-3), or Article

8 para. 1 (Art. 8-1) of the Convention. He has not, therefore, exhausted

the domestic remedies available under Spanish law, as required by Article

26 (Art. 26) of the Convention.

It follows that this part of the application must be rejected

pursuant to Article 27 para. 3 (Art. 27-3) of the Convention.

2. The applicant complains under Article 5 paras. 1 (c) and 3

(Art. 5-1-c, 5-3) of the Convention that he was held in contravention of

Spanish law concerning the prolongation of detention on remand. He states

that his detention was unlawful and that he was not brought before a

competent judge to be tried.

The provisions invoked read as follows :

"1. Everyone has the right to liberty and security of

person. No one shall be deprived of his liberty save in the

following cases and in accordance with a procedure prescribed

by law:

...

c. the lawful arrest or detention of a person effected

for the purpose of bringing him before the

competent legal authority on reasonable suspicion

of having committed an offence or when it is

reasonably considered necessary to prevent his

committing an offence or fleeing after having done

so ; ...

3. Everyone arrested or detained in accordance with the

provisions of paragraph 1 (c) of this Article shall be brought

promptly before a judge or other officer authorised by law to

exercise judicial power and shall be entitled to trial within

a reasonable time or to release pending trial. Release may be

conditioned by guarantees to appear for trial. ..."

As a preliminary point, the Government contend that the applicant

has not exhausted the domestic remedies available to him under Spanish

law since he did not lodge an appeal against any judicial decision

pronounced either by the investigating judge at Puerto de la Cruz or by

the Audiencia Provincial of Tenerife in the course of the criminal

proceedings, and that his "de amparo" appeal against the prolongation of

detention ordered on 17 March 1992 was time-barred. The applicant

contests this submission.

The Commission recalls that under Article 26 (Art. 26) of the

Convention, it may only deal with a matter after all domestic remedies

have been exhausted according to the generally recognised rules of

international law. In the present case, the Commission notes that the

decision (auto) of the Constitutional Court of 6 May 1993 in the "de

amparo" appeal lodged by the applicant against the decision of 17 March

1992 expressly stated that ..."the decision (auto) of the criminal

chamber (third section) of the Audiencia Nacional of 18 June 1992, ...

be considered as the last instance before the constitutional "de amparo"

appeal ...". The Commission notes, moreover, that the Constitutional

Court considered the "de amparo" appeal as being time-barred, but did

examine the merits of the case. The Commission recalls that non-

exhaustion of domestic remedies cannot be held against the applicant if

in spite of the latter's failure to observe the forms prescribed by law,

the competent authority has nevertheless examined the appeal (cf. No.

12794/87, Dec. 9.7.88, D.R. 57 p. 251). The Commission cannot,

therefore, reject this part of the application for non-compliance with

the exhaustion rule.

The Government submit that the first period of detention concerning

the criminal case (from 8 March 1990 to 6 March 1992) did not exceed the

two years period laid down in Article 504 of the Code of Criminal

Procedure. As regards the extradition case, the Government state that

the applicant was only detained on 23 March 1990, this detention being

extended from 17 March 1992 up to the legal maximum of four years.

The applicant contends that although, technically, his continued

detention after 6 March 1992 may have been as a result of the pending

extradition, the failure to extradite was the result of the delay in

proceeding with the rape charge. He considers that the justification for

his ongoing detention was the rape charge and not the fact that he was

awaiting extradition. The applicant considers that he could not be

extradited as a result of the delay and/or failure of the respondent

State to either proceed with the prosecution for rape or alternatively

dismiss the charge.

The applicant submits that the criminal case was not complicated and

that there was no justification for this process to take four years,

despite the fact that the alleged victim lived in Finland, and that extra

diligence should have been exercised as the applicant was under an

International Detention Order.

The Commission recalls that, for a detention to be "in accordance

with a procedure prescribed by law", it has to comply with the relevant

procedure under national law, which must itself be in conformity with the

Convention and the general principles expressed or implied therein. The

notion underlying the term in question is one of fair and proper

procedure, namely that any measure depriving a person of his liberty

should be ordered and executed by an appropriate authority and should not

be arbitrary (Eur. Court H.R., Winterwerp judgment of 24 October 1979,

Series A no. 33, p. 19, para. 45).

The Commission further recalls that it is in the first place for the

national authorities, notably the courts, to interpret and apply the

domestic law (above-cited judgment, p. 20, para. 46). As regards the

conformity with domestic law, the "lawful" character of a detention

covers procedural as well as substantive rules (same judgment, p. 17,

para. 39).

The Commission notes that the applicant was first arrested

on 5 March 1990 and detained on remand on 8 March 1990 on the ground of

being suspected of rape and falsification, and also because of the

International Detention Order issued against him. Nevertheless, the

Audiencia Nacional, in its decision of 17 March 1992 to prolong the

applicant's detention on remand, considered the date of 23 March 1990 as

that of the beginning of the applicant's detention for the extradition

case.

The Commission has taken cognizance of the parties' observations and

considers that this complaint raises serious questions of fact and law

which are of such complexity that the determination of the lawfulness or

unlawfulness of the detention at issue should depend on an examination

on the merits. This complaint cannot therefore be rejected as being

manifestly ill-founded within the meaning of Article 27 para. 2 (Art. 27-

2) of the Convention. No other grounds for inadmissibility having been

established, this part of the application should accordingly be declared

admissible.

3. The applicant complains of the absence of a remedy under Spanish law

to challenge the lawfulness of his detention on remand and invokes

Articles 5 para. 4 and 13 (Art. 5-4, 13) of the Convention, which read

as follows :

Article 5 (Art. 5)

"4. Everyone who is deprived of his liberty by arrest or

detention shall be entitled to take proceedings by which the

lawfulness of his detention shall be decided speedily by a

court and his release ordered if the detention is not lawful.

..."

Article 13 (Art. 13)

"Everyone whose rights and freedoms as set forth in this

Convention are violated shall have an effective remedy before

a national authority ..."

The Commission observes that the applicant filed several "habeas

corpus" appeals which were examined and dismissed by the competent

authorities. The applicant lodged an appeal (súplica) with the Audiencia

Nacional against its decision dated 17 March 1992 concerning his

detention on remand. The appeal was dismissed on 18 June 1992 and the

applicant then lodged a "de amparo" appeal with the Constitutional Court.

The Commission therefore concludes that the applicant's complaint under

Article 5 para. 4 (Art. 5-4) of the Convention is manifestly ill-founded

under Article 27 para. 2 (Art. 27-2) of the Convention.

In view of the above conclusion reached under the lex specialis of

Article 5 par. 4 (Art. 5-4), there is no need for the Commission to

examine the case under Article 13 (Art. 13) (Eur. Court. H.R., De Jong,

Baljet and Van den Brink judgment of 22 May 1984, Series A N° 77,

p. 27, para. 60).

It follows that this part of the application must be rejected as

being manifestly ill-founded under Article 27 para. 2 (Art. 27-2) of the

Convention.

For these reasons, the Commission, unanimously,

DECLARES ADMISSIBLE, without prejudging the merits, the applicant's

complaints under Article 5 paras. 1 (c) and 3

(Art. 5-1-c, 5-3) of the Convention concerning the lawfulness and

length of his detention on remand ;

DECLARES INADMISSIBLE the remainder of the application.

Secretary to the Second Chamber President of the Second Chamber

(K. ROGGE) (H. DANELIUS)

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SCOTT V. SPAIN

SCOTT V. SPAIN

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