Legal summary

February 2023

Perstner v. Luxembourg - 7446/21

Judgment 16.2.2023 [Section V]

Article 5

Article 5-3

Reasonableness of pre-trial detention

Summarily-stated reasons for rejection of bail applications counterbalanced by reference to objective content of judicial investigation file accessible to applicant: no violation

Facts – In 2019 the applicant was arrested on a European arrest warrant on suspicion that he and two other people had robbed an elderly couple after following them home from a shopping centre. Upon examination by the investigating judge, before his remand in custody, he identified himself on the security camera footage from the shopping centre, which showed the suspects tailing the couple in a vehicle in the car park.

The applicant’s three bail applications were refused.

In 2021 the applicant was convicted of robbery and sentenced to seven years’ imprisonment.

The applicant complained to the Court that the reasons given for the decisions refusing him bail had been formulated in an abstract and stereotyped manner.

Law – Article 5 § 3

The applicant had been held on remand for one year, four months and twenty days.

His first bail application had been rejected by a decision against which he had not appealed and in which a finding of suspicion had been made by reference to the results of the judicial investigation. On the second and third bail applications the Luxembourg District Court, in judgments upheld by the Court of Appeal, had relied on the order of committal for trial in the Criminal Division to make a finding of suspicion in his case. Whilst more detailed reasoning would have been desirable, this could be regarded as sufficient, in so far as the order in issue had contained specific considerations and discussion. Accordingly, it had been established that the applicant had been under suspicion both at the time of his arrest and as the investigation had progressed.

There was no doubt that the decision refusing the first bail application had also been supported by “other grounds”, since the court delivering it had referred to concrete particulars such as the findings from the alleged victims’ medical examinations, the seriousness of their injuries and the deliberate and extremely brutal manner in which the offence had been carried out.

As to the rejection of the second and third applications, the primary ground advanced by the authorities had been a risk of flight. Such a risk could not be gauged solely on the basis of the severity of the sentence faced but had to be assessed by reference to a number of other factors calculated to either confirm it or show it to be too slight to justify detention pending trial, a principle also endorsed by the Court of Cassation of Luxembourg in November 2022.

In this case the District Court had merely stated that the risk of flight was presumed by law and also existed in fact given the seriousness of the charges and the applicant’s lack of ties to Luxembourg. Those reasons were clearly not sufficiently tailored to the individual case, especially as they did not even mention the alternatives contended for by the applicant. The Court of Appeal, however, had been at pains to add, in the first instance, that a grant of bail with conditions or against a deposit of security would not be appropriate “in [the applicant’s] individual circumstances” and, in the second instance, that the mere adduction by the applicant of a contract of employment was not a sufficient guarantee of his appearance at trial. Although it had not referred in those instances to any other detailed information or factors, the decisions it was affirming had relied on the considerable body of material already collected in the course of the judicial investigation. In the circumstances of the present case the Court was prepared to accept that the Court of Appeal had been referring to all of the material in the investigation record, to which the applicant had, through his representative at least, been afforded full access.

The same was true of a risk of reoffending found to exist “given [the applicant’s] unstable personal and social situation”. For a statement of reasons this was certainly economically worded, if not terse. But the court’s summarily‑stated decision had to be looked at in the context of the particular case, any examination of which had to take account of the lack of substance of the applicant’s arguments in favour of bail and the fact that the Court of Appeal had made reference to the record of the judicial investigation.

Accordingly, the reasons set out by the national courts for refusing the applicant bail had, in the circumstances of the case, amounted to “relevant” and “sufficient” grounds.

Since many investigative steps had been completed by the time of the applicant’s arrest, only a forensic genetic analysis, performed in October 2019, had taken place after his remand in custody. The judicial investigation had concluded two months later, followed by an order of committal for trial, which had been upheld on appeal three months after that. It could not be complained that the national authorities had been particularly slow to act during the period in question.

After that period, however, there had been some delay. Once the decision committing the applicant for trial had become final, he had not been served with notice to appear until seven months later, for hearings scheduled the next month. Nonetheless, the particular context of the public health crisis occasioned by the COVID-19 pandemic prevailing at the time could not be ignored. In another case, a temporary stay of proceedings on account of those exceptional circumstances had been held to be consistent with the duty of “special diligence” where the proceedings had been actively progressed both before and after the introduction of emergency measures (see the case of Fenech v. Malta (dec.)). In this unprecedented context, the duration of the proceedings had not exceeded what could be regarded as reasonable.

Conclusion: no violation (by six votes to one).

(See also Buzadji v. the Republic of Moldova [GC], 23755/07, 5 July 2016, Legal summary ; Hasselbaink v. the Netherlands , 73329/16, 9 February 2021, Legal summary ; Fenech v. Malta (dec.), 19090/20, 23 March 2021, Legal summary )

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

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