Information Note on the Court’s case-law 234

November 2019

Porchet v. Switzerland (dec.) - 36391/16

Decision 8.10.2019 [Section III]

Article 5

Article 5-5

Compensation

Pre-trial detention in inappropriate premises compensated for by way of reduced sentence: inadmissible

Facts – Having been remanded in custody the applicant remained for sixteen days in a cell reserved for police custody (whereas the legal lim it for this type of cell was 48 hours) before being transferred to an appropriate facility.

Later the Criminal Court gave the applicant a prison sentence (eleven months to be served immediately) and imposed a fine. His prison term was reduced by eight day s by way of compensation for the sixteen days he had been held in unsuitable conditions.

Considering that form of redress to be insufficient, the applicant unsuccessfully asked the higher courts for pecuniary compensation. The Federal Court found that the redress granted fell within the discretion of the trial court.

Law – Article 5 § 5: The applicant complained that the authorities had opted for a reduction of sentence as a form of compensation for conditions of detention which had breached Article 5 § 1 of the Convention.

The Court noted first that the Federal Court had confirmed, expressly analysing the question under Article 5 of the Convention, that while in pre-trial detention the applicant had initially been held in conditions which were in breach of the law; and secondly, that the Criminal Court had granted him a reduction of eight days in his prison sentence by way of compensation for the sixteen days he had spent in unsuitable premises.

While the right to compensation under Article 5 § 5 was mainly pecuniary in nature, this did not rule out the possibility of different forms of redress. In cases concerning other provisions of the Convention, the Court had already held that a reduction in the sentence imposed on an applicant could constitute appropriate redress for the violation in question provided that this reduction was measurable and expressly granted for such purpose (see, in particular, concerning detention conditions incompatible wit h Article 3, Stella and Others v. Italy (dec.), 49169/09 et al., 16 September 2014, Information Note 177 ).

Based on the assumption that Article 5 § 5 was applicable to the applicant’s complaint, the Court found as follows:

– the illegality found by the national authorities was not related to the necessity of the pre-trial detention or its duration but purely to the nature of the premises in which he had been held;

– the pre-trial detention and the subsequent sentence from which the deduction was made concerned the same offence;

– it was precisely in respect of the illegality of part of the pre-trial detention that the applicant’s reduction of sentence was decided by the court;

– the applicant did not complain about the insufficiency of the compensation but merely its non-pecuniary nature.

In the Court’s view, the compensatory intention of the Criminal Court’s decision and the proportionate nature of the reduction in sentence were clearly established.

In a reasoned judgment, the Federal Court had taken the view that the award of compensation in the form of a reduction of sentence, rather than a financial indemnity, was fully compliant with Swiss law. As the reasoning c ould not be regarded as unreasonable or arbitrary, it was not appropriate for the Court to substitute its own interpretation of domestic law for that of the national courts.

Accordingly, in view of the fact that, in the above-cited final judgments, the nat ional authorities had acknowledged the breach in question and had granted compensation for it in a manner comparable to an award of just satisfaction under Article 41 of the Convention, the applicant could no longer claim to be the victim of a violation of Article 5 § 5 of the Convention.

Conclusion : inadmissible (incompatible ratione personae ).

© Council of Europe/European Court of Human Rights This summary by the Registry does not bind the Court.

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