FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 42296/98

by David LOWRY

against Portugal

The European Court of Human Rights ( Fourth Section) sitting on 6 July 1999 as a Chamber composed of

Mr M. Pellonpää , President ,

Mr G. Ress ,

Mr A. Pastor Ridruejo ,

Mr L. Caflisch ,

Mr J. Makarczyk ,

Mr I. Cabral Barreto ,

Mrs N. Vajić , Judges ,

with Mr V. Berger, Section Registrar ;

Having regard to Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms;

Having regard to the application introduced on 15 June 1998 by David LOWRY  against Portugal and registered on 20 July 1998 under file no. 42296/98;

Having regard to the reports provided for in Rule 49 of the Rules of Court;

Having deliberated;

Decides as follows:

THE FACTS

The applicant is a British national born in 1944. He is currently detained at Caxias Prison in Portugal.

The applicant is represented before the Court by Ms Gudrun Parasie , lawyer and director of European Legal Advice, a human rights association in London.

The facts of the case, as submitted by the applicant, may be summarised as follows.

A. Particular circumstances of the case

a. The proceedings against the applicant

In April 1997, a preliminary investigation was opened concerning the activities of the applicant as partner, manager and director of the company “Paramount Portugal - Consultadoria Comercial Lda .”. At least one person had complained to the Portuguese Stock Exchange authority ( Comissão do Mercado de Valores Mobiliários , hereinafter CMVM) about the activities of this company. It was accused of selling shares and securities of other international companies which, allegedly, did not have a real existence or activity.

On 22 April 1997, officials of the CMVM and of the Judicial Police ( Polícia Judiciária ) entered and searched the two offices of Paramount in Lisbon and arrested the applicant. Numerous files, including computer data, discs and records, were seized.

On 24 April 1997, the applicant was brought before the investigating judge at the Lisbon Criminal Investigation Tribunal ( Tribunal de Instrução Criminal ) and questioned in the presence of his lawyer. After questioning the applicant, the investigating judge told him that he was suspected of having committed the offences of forgery of shares (Articles 262 and 267 of the Penal Code) and aggravated fraud (Articles 217 and 218 of the Penal Code). Considering the danger of disruption of the investigations, the danger of absconding and taking into account also that the applicant was a foreigner, the investigating judge ordered the detention on remand of the applicant.

The applicant unsuccessfully appealed to the Lisbon Court of Appeal ( Tribunal da Relação ), which upheld the investigating judge’s order by a decision of 1 July 1997.

Thereafter the applicant filed numerous applications for release, which were rejected by the Lisbon Court of Appeal on 23 September 1997, 4 February 1998 and 25 March 1998. He also applied for bail on medical grounds, which was refused by the investigating judge on 19 November 1997. The Lisbon Court of Appeal upheld this decision by a judgment of 25 February 1998.

The applicant also filed a constitutional complaint with the Constitutional Court ( Tribunal Constitucional ) against the Lisbon Court of Appeal’s decision of 23 September 1997. This complaint, concerning the rules of the Code of Criminal Procedure governing the grounds on which detention on remand can be ordered, was declared partly inadmissible and rejected as partly ill-founded, by a judgment of 4 March 1998.

On 19 December 1997, the investigating judge issued a decision by which the proceedings were declared exceptionally complex ( excepcional complexidade ). As a result of this decision, the maximum duration of detention on remand before indictment ( acusação ) by the Public Prosecutor according to the Code of Criminal Procedure was increased from eight months to one year.

During the period of investigation, the applicant was questioned by the police on 23, 24 and 25 July 1997 and on 30 September, 1, 2 and 3 October 1997.

On 21 April 1998, the Public Prosecutor filed his indictment against the applicant and eight other persons. The applicant was accused of fraud, criminal association, forgery of documents and illegal use of databases. According to the prosecution, the applicant and the other eight accused persons contacted potential customers by telephone, without their having given their consent, offering to send them detailed information on attractive financial investments all over the world. Shares of companies with no real existence were then sold to the customers, payments being made by cheque or bank transfer to a specified account in a Swiss bank. These customers were all non-Portuguese and the shares were first sent to Switzerland and then from Switzerland to the customers. It was alleged that the false share certificates were printed, filled in and signed in Portugal, under the direction and control of the applicant.

The indictment was served on the applicant on the same day, with the help of an interpreter. An English translation of the indictment was subsequently given to the applicant, on 19 May 1998.

Several customers of the “Paramount Portugal - Consultadoria Comercial Lda .” subsequently filed private prosecutions and requests for damages.

On 24 April 1998, the applicant filed with the investigating judge an application for release. He alleged, invoking Article 6 § 3 (a) of the Convention, that the service of the indictment was null and void due to the absence of a written translation. The applicant submitted that the maximum lawful duration of his detention on remand had expired, which rendered his further detention unlawful.

On the same day, the investigating judge rejected the application, noting that neither Article 6 § 3 (a) nor the relevant Portuguese legislation required a written translation of the indictment. The investigating judge added that in any event the one-year period ran until the issuing of the indictment and not until its service.

A writ of habeas corpus filed by the applicant before the Supreme Court ( Supremo Tribunal de Justiça ) on 4 May 1998, on the same grounds, was also rejected, by a judgment of 7 May 1998.

The applicant appealed to the Lisbon Court of Appeal against the decision of the investigating judge. The Court of Appeal, by a judgment of 1 July 1998, upheld this decision.

On 13 July 1998, the applicant filed a constitutional complaint before the Constitutional Court against this decision.

By a judgment of 23 September 1998, the Constitutional Court rejected the complaint as ill-founded, referring to the European Court’s judgment in the Kamasinski v. Austria case (judgment of 19 December 1989, Series A no. 168).

The trial opened on 21 September 1998 in the First Chamber of Lisbon Criminal Court ( 1ª Vara Criminal ). The court decided, at the first hearing and as a preliminary issue, that the proceedings could be directed only against the applicant ( separação de culpas ), the whereabouts of the other eight accused persons being unknown. Several other hearings were held until 9 December 1998.

By a judgment of 5 March 1999, the applicant was convicted of the four offences in question and sentenced to nine years’ imprisonment.

The applicant appealed to the Supreme Court, where the proceedings are currently pending.

b. The applicant’s conditions of detention and his medical situation

According to the applicant, throughout the entire period of his detention he was held in a 5-person cell with 13 other people with little or no provision for recreation or welfare. He developed numerous tumours in his throat and suffered from high blood pressure, high cholesterol and thyroid problems.

In a letter dated 27 March 1998 from the director of the private office of the Minister of Justice to the Portuguese Parliament (on request of one of the applicant’s representatives), the following information concerning the medical situation of the applicant was given :

The applicant was first examined by the prison doctor on 24 April 1997, two days after his arrest. He was again examined on 5 May 1997. As a result, the applicant underwent a certain number of tests as well as an electrocardiogram and abdominal, renal and thyroidal scans.

An endocrinological consultation in a public hospital was scheduled for 30 January 1998 but the applicant did not attend it for lack of transportation. However, the applicant was taken to a private doctor for this consultation on 18 March 1998.

His personal doctor also visited the applicant in prison on 24 July 1997, 8 October 1997 and 10 March 1998.

B. Relevant domestic law and practice

Articles 86 § 1 and 89 § 2 of the Portuguese Code of Criminal Procedure - applicable at the time of the facts - provided that the accused was not given access to the prosecution evidence until the date of the indictment. By a judgment of 19 February 1997, published in the Official Gazette ( Diário da República ) of 30 April 1997, the Constitutional Court, referring to the European Court’s judgment in Lamy v. Belgium (judgment of 30 March 1989, Series A no. 151), ruled that these provisions would be contrary to the Constitution if interpreted in such a way as to deny access to the case-file to an accused who wished to challenge the prosecution’s views on the lawfulness of the detention.

COMPLAINTS

1. The applicant complains that the relevant Portuguese authorities never established reasonable grounds for his detention, in violation of Article 5 § 1 (c) and § 3 of the Convention. He stresses that the prosecution authorities had successively advanced new and contradictory grounds for his detention.

2. The applicant further complains that between 22 April 1997 and 21 April 1998 he was held in detention without being told, in a language he understood, or at all, of the reasons for his detention. He invokes Articles 5 § 2 and 6 § 3 (a) of the Convention.

3. The applicant submits that the reviews of the legality of his detention were not conducted fairly and in a manner that respects the principle of equality of arms. He was denied access to any information which allegedly formed the basis for his detention, in violation of Articles 5 § 4 and 6 § 3 (a) of the Convention.

4. The applicant further submits that his detention on remand was not sufficiently justified and that it was unnecessarily prolonged by inefficiency and delays in the investigation and prosecution of the allegations against him, in violation of his right to a trial within a reasonable time. He invokes Article 5 § 3 and Article 6 § 1 of the Convention.

5. The applicant submits that the conditions of his detention violated Article 3 of the Convention.

6. The applicant further complains that, following his arrest on 22 April 1997, all business records connected with “Paramount Portugal - Consultadoria Comercial Lda .” were seized and all its assets, along with the applicant’s assets, frozen, causing him substantial financial loss. He submits that this amounts to a violation of his right to peaceful enjoyment of his possessions under Article 1 of Protocol No. 1.

7. The applicant finally invokes, with no further details, Article 14 of the Convention.

THE LAW

1. The applicant complains that the relevant Portuguese authorities never established reasonable grounds for his detention, in violation of Article 5 § 1 (c) and § 3 of the Convention. He stresses that the prosecution authorities had successively advanced new and contradictory grounds for his detention.

These provisions 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.

(…)”

The Court first notes that the applicant was arrested on 22 April 1997. On 24 April 1997, the investigating judge ordered his detention on remand. According to the investigating judge, the applicant was suspected of having committed the offences of forgery of shares (Articles 262 and 267 of the Penal Code) and aggravated fraud (Articles 217 and 218 of the Penal Code). He was later indicted and eventually convicted of the offences of fraud, criminal association, forgery of documents and illegal use of databases.

To the applicant, there were no reasonable grounds whatsoever on which to suspect him of having committed the offences of which he was accused.

The Court observes that the "reasonableness" of the suspicion on which an arrest must be based forms an essential part of the safeguard against arbitrary arrest and detention which is laid down in Article 5 § 1 (c). Having a "reasonable suspicion" presupposes the existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offence. What may be regarded as "reasonable" will however depend upon all the circumstances (see the Fox, Campbell and Hartley v. United Kingdom judgment of 30 August 1990, Series A no. 182, p. 16, § 32).

It should also be recalled that the object of questioning during detention under sub-paragraph (c) of Article 5 § 1 is to further the criminal investigation by way of confirming or dispelling the concrete suspicion grounding the arrest. Thus, facts which raise a suspicion need not be of the same level as those necessary to justify a conviction or even the bringing of a charge, which comes at the next stage of the process of criminal investigation (see the Murray v. United Kingdom judgment of 28 October 1994, Series A no. 300- A, p. 27, § 55).

As to the present case, the Court firstly notes that the prosecution authorities had received complaints from at least one person concerning some of the activities of the applicant and those of “Paramount Portugal - Consultadoria Comercial , Lda .” which would appear to infringe the criminal legislation.

Moreover, some of the offences grounding the applicant’s arrest were later confirmed by the indictment and also by the judgment of Lisbon Criminal Court. The simple fact that other grounds, such as forgery of shares, were not ultimately confirmed is not, in itself, capable of rendering unlawful the applicant’s arrest.

On the particular facts of the case, the Court is thus satisfied that the applicant can be said to have been arrested and detained on “reasonable suspicion” of the commission of a criminal offence, within the meaning of sub-paragraph (c) of Article 5 § 1. No appearance of a violation of the provisions invoked by the applicant is therefore disclosed.

It follows that this part of the application is manifestly ill-founded and must be rejected as inadmissible, in accordance with Article 35 § 3 of the Convention.

2. The applicant further complains that between 22 April 1997 and 21 April 1998 he was held in detention without being told, in a language he understood or at all, of the reasons for his detention. He invokes Articles 5 § 2 and 6 § 3 (a) of the Convention.

The Court will first examine this complaint under Article 5 § 2, which provides as follows :

“Everyone who is arrested shall be informed promptly, in a language which he              understands, of the reasons for his arrest and of any charge against him.”

The Court recalls that this provision contains the elementary safeguard that any person arrested should know why he is being deprived of his liberty. He must be told, in a language that he can understand, the essential legal and factual grounds for his arrest, so as to be able, if he sees fit, to apply to a court to challenge its lawfulness. Whether the content and promptness of the information conveyed were sufficient is to be assessed in each case according to its special features (see the above-mentioned Fox, Campbell and Hartley judgment, p. 19, § 40).

The Court notes that the European Commission of Human Rights has already decided that the fact that an applicant has been questioned in detail by the investigating judge can be sufficient for the purposes of Article 5 § 2 (application no. 1936/63, dec. 6.7.1964, Yearbook 7, pp. 225 and 244).

In the present case, the applicant was questioned in detail by the investigating judge two days after his arrest. He was subsequently told that he was suspected of having committed the offences of forgery of shares and aggravated fraud. It should be noted that the applicant was assisted by his lawyer and that he did not claim not to understand the meaning of the decision of the investigating judge.

In the Court’s view, the reasons for the arrest of the applicant were therefore sufficiently brought to his attention during his questioning by the investigating judge. The Court further finds that, in the context of the present case, the interval of 48 hours between the applicant’s arrest and his questioning cannot be regarded as falling outside the constraints of time imposed by the notion of promptness in Article 5 § 2.

The applicant also invoked Article 6 § 3 (a) of the Convention in this connection. The Court recalls however that the question whether a trial is in conformity with the requirements of Article 6 must be considered on the basis of an examination of the proceedings as a whole. This complaint is thus premature as the domestic proceedings are still pending before the Supreme Court.

It follows that there is no appearance of a violation of these provisions and that this part of the application must be rejected as manifestly ill-founded, within the meaning of Article 35 § 3 of the Convention.

3. The applicant submits that the reviews of the legality of his detention were not conducted fairly and in a manner that respects the principle of equality of arms. He was denied access to any information which allegedly formed the basis for his detention, in violation of Articles 5 § 4 and 6 § 3 (a) of the Convention.

The Court recalls from the outset that under Article 35 § 1 of the Convention a complaint can only be dealt with after exhaustion of all domestic remedies. This provision normally requires also that the complaints intended to be made subsequently at Strasbourg should have been made to the national courts, at least in substance and in compliance with the formal requirements and time-limits laid down in domestic law (see the Cardot v. France judgment of 19 March 1991, Series A no. 200, p. 18, § 34).

In the present case, the Court notes that the applicant has never submitted to the national courts, in one of his numerous appeals, the question of access to the prosecution’s case-file. The constitutional complaint that he filed on 23 September 1997 before the Constitutional Court concerned only the rules of the Code of Criminal Procedure governing the grounds on which detention on remand can be ordered. It is worth noting that on that date the Constitutional Court’s judgment of 19 February 1997, which concerned the rules on access to the prosecution’s case-file, had already been published. The applicant has however chosen not to submit such a complaint to this court.

The Court therefore finds that the applicant has not exhausted the remedies available to him under Portuguese law. This part of the application is thus inadmissible under Article 35 §§ 1 and 4 of the Convention.

4. The applicant submits that his detention on remand was not sufficiently justified and that it was unnecessarily prolonged by inefficiency and delays in the investigation and prosecution of the allegations against him, in violation of his right to a trial within a reasonable time. He invokes Article 5 § 3 and Article 6 § 1 of the Convention.

Insofar as the applicant’s complaint refers to the alleged insufficient grounds for his detention, the Court recalls its findings on Article 5 § 1 (c) above according to which the applicant was arrested and detained on “reasonable suspicion” of the commission of a criminal offence (see supra § 1).

Concerning the length of the detention on remand, the Court firstly notes that the period to be taken into consideration began on 22 April 1997, the date on which the applicant was arrested, and ended on 5 March 1999, with the judgment of Lisbon Criminal Court. It therefore lasted one year, ten months and thirteen days.

In this connection, the Court points out 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. To this end they 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 on the applications for release. It is essentially on the basis of the reasons given in these 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 (see, inter alia , the Neumeister v. Austria judgment of 27 June 1968, Series A no. 8, p. 37, §§ 4-5).

The persistence of reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the validity of the continued detention (see the Stögmüller v. Austria judgment of 10 November 1969, Series A no. 9, p. 40, § 4), but, after a certain lapse of time, it no longer suffices; the Court must then establish whether the other grounds cited by the judicial authorities continue to justify the deprivation of liberty. Where such grounds are "relevant" and "sufficient", the Court must also ascertain whether the competent national authorities displayed "special diligence" in the conduct of the proceedings (see the W. v. Switzerland judgment of 26 January 1993, Series A no. 254-A, p. 15, § 30).

In order to justify their refusal to release the applicant, the national courts, especially the Lisbon Court of Appeal, stressed in particular that it was necessary to prevent disruption of the investigations and the danger of absconding, taking into account also that the applicant was a foreigner.

Concerning the first of those grounds, the Court readily accepts that the authorities may consider it necessary to keep a suspect in prison, at least at the beginning of an investigation, in order to prevent him from disrupting it, especially in a complicated case like this one where manifold difficult enquiries are necessary.

In respect of the danger of absconding, the Court recalls that it must be assessed with reference to a number of different factors, including 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 (see the W. v. Switzerland judgment cited above, p. 16, § 33).

In the present case, the national courts had, in their carefully reasoned decisions, attached great importance to the international characteristics of the offences in question as well as to the fact that the applicant was a foreigner with interests in several countries, mainly Switzerland, which would make it easy for him to abscond.

The Court sees no reason to reach a different conclusion. Even if is true that the danger of absconding decreases as the length of detention increases, it considers that the factors specified by the national courts could legitimately suffice to demonstrate that such a danger still existed when the Lisbon Court of Appeal examined the last appeal filed by the applicant (25 March 1998).

Summing up, the two above-mentioned dangers were relevant and sufficient reasons in this case. It remains to be ascertained whether the conduct of the authorities was negligent, as submitted by the applicant.

In this connection, the Court firstly notes that the proceedings in question concerned a case of economic crime of great complexity. For instance, the investigations were also conducted at international level due to the network of relations between several companies allegedly owned or controlled by the applicant. It should be noted that the investigating judge prolonged the maximum duration of the applicant’s detention because he considered that the legal conditions for concluding that the case was complex had been met. In the Court’s view, this complexity constitutes an exceptional circumstance which in itself considerably contributed to the length of the applicant’s detention on remand.

The Court also points out that the applicant filed no less than five appeals and two constitutional complaints that were decided by the national courts within a reasonable time.

Finally, the Court finds that even if certain delays in carrying out the investigations are attributable to the authorities, they do not seem to be sufficiently important to amount to a violation of Article 5 § 3.

Assessing the above elements as a whole and in view, in particular, of the overall length of the applicant’s detention on remand, the Court does not consider that the facts of the case disclose a violation of his right to a trial within a reasonable time or to release pending trial, within the meaning of this provision of the Convention.

As to Article 6 § 1 of the Convention, also invoked in this connection by the applicant, the Court finds that the period of two years and three months to date does not exceed a reasonable time, within the meaning of this provision of the Convention.

This part of the application is therefore manifestly ill-founded and must be rejected as inadmissible, in accordance with Article 35 § 3 of the Convention.

5. The applicant submits that the conditions of his detention violated Article 3 of the Convention, which provides :

“No one shall be subjected to torture or to inhuman or degrading treatment or              punishment.”

The Court firstly notes that the conditions of detention of a prisoner might raise an issue under this provision, depending on the nature and context of the situation complained of. There is, however, well established case-law of the Court to the effect that ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3 (see the Ireland v. the United Kingdom judgment of 18 January 1978, Series A no. 25, p. 65, § 162).

Even supposing that the applicant has exhausted the domestic remedies available to him under Portuguese law, the Court finds that the situation described by him does not, in itself and in the absence of more precise information, attain the above-mentioned “minimum level”. Concerning, in particular, the applicant’s health conditions, the Court points out that he was provided with a certain number of medical tests and consultations and that he was examined by the prison doctor. The prison authorities also authorised a visit from his personal doctor.

In these circumstances, the Court does not find an appearance of a violation of Article 3 of the Convention. It follows that this part of the application is manifestly ill-founded and must be rejected as inadmissible, in accordance with Article 35 § 3 of the Convention.

6. The applicant complains that following his arrest on 22 April 1997, all business records connected with “Paramount Portugal - Consultadoria Comercial Lda .” were seized and all its assets, along with the applicant’s assets, frozen, causing him substantial financial loss. He submits that this amounts to a violation of his right to peaceful enjoyment of his possessions under Article 1 of Protocol No. 1.

The Court finds, however, that the seizure in question was clearly a provisional measure intended to ensure that property which appeared to be the fruit of unlawful activities carried out to the detriment of the community could subsequently be confiscated if necessary. The Court has already decided that such a situation was not in violation of Article 1 of Protocol No. 1 (see the Raimondo v. Italy judgment of 22 February 1994, Series A no. 281, p. 16, § 27).

There is thus no appearance of a violation of this provision. It follows that this part of the application is manifestly ill-founded and must be rejected as inadmissible, in accordance with Article 35 § 3 of the Convention.

7. The applicant finally invokes, with no further details, Article 14 of the Convention.

After having examined the material in its possession, and in so far as the matters complained of are within its competence, the Court finds that they do not disclose any appearance of a violation of this provision. It follows that this part of the application is also manifestly ill-founded and must be rejected as inadmissible, in accordance with Article 35 § 3 of the Convention.

For these reasons, the Court, unanimously,

DECLARES THE APPLICATION INADMISSIBLE .

Vincent Berger Matti Pellonpää Registrar President