Published on 27 February 2023

FIRST SECTION

Applications nos. 36989/21 and 7945/22 M.B. against Slovakia lodged on 14 July 2021 and 31 January 2022 respectively communicated on 6 February 2023

SUBJECT MATTER OF THE CASES

The applications concern detention on remand of a minor, raising questions under Article 5 §§ 1 (c), 3 and 4 of the Convention.

On 4 August 2020, when he was fourteen years and nearly ten months old, the applicant was remanded in detention on suspicion of theft committed two days earlier. It was noted that he was in the care of a juvenile correctional facility ( reedukačné centrum ), that the suspected offence had been committed while the applicant was temporarily at home from that facility and that, in his submission, he was to go back there as from 1 September 2020. It was further noted that the suspected theft had been committed while the applicant was on probation for a robbery committed earlier (2019). According to a report of the correctional facility, his behaviour there had improved. Nevertheless, as the suspected offence showed, in the remand court’s assessment his stay at that facility had no effect on the applicant’s behaviour when in his home environment. It was accordingly necessary to detain him until his return to that facility in order to prevent him from re-offending. As not even the conditional prison sentence (for the 2019 robbery) had deterred him from doing so, substituting detention by less stringent measures was not feasible. In a decision that was served on the applicant on 18 September 2020, his interlocutory appeal was dismissed.

Endorsing the reasoning of the remand court, the court of appeal added that the risk of the applicant’s continuing to engage in offences, in particular those related to property, was “exacerbated by the fact that he had no known source of lawful income”.

On 21 October 2020 the applicant was released upon the order of the remand court, following his request. The court held that “[his] detention was no longer necessary, since it was possible for him to return to the [correctional facility], where he was to return on 1 September 2020, as he had indicated in his [appearance before the remand judge] on 6 August 2020.” The court also noted an expert report submitted in the course of the proceedings indicating that the applicant’s ability to control his behaviour was at a level excluding detention on remand.

The proceedings concerning the 2019 robbery were then reopened on the grounds that, prior to the conviction, the trial court had failed to comply with its statutory duty to examine the level of the applicant’s maturity with a view to determining his criminal liability, in connection with his age (having been just over 14 years old at the time of the offence).

QUESTIONS TO THE PARTIES

1. Was the applicant deprived of his liberty in breach of Article 5 § 1 (c) and/or Article 5 § 3 of the Convention?

In particular,

- was his detention strictly necessary in view of all the circumstances, including the applicant’s age (see, mutatis mutandis , Nart v. Turkey , no. 20817/04, § 31, 6 May 2008 and Güveç v. Turkey , no. 70337/01, § 109, ECHR 2009 (extracts)), his claim that he was able to return to the juvenile correctional facility, the seriousness of the suspected offence?

- in view of his past history and personality, was the danger of his reoffending plausible and was his detention appropriate a measure of response (see, for example, Clooth v. Belgium , 12 December 1991, § 40, Series A no. 225 and Toth v. Austria , 12 December 1991, § 70, Series A no. 224)?

- could the purpose of the applicant’s detention have been achieved by other, less stringent measures (see Ladent v. Poland , no. 11036/03, § 55, 18 March 2008 and S., V. and A. v. Denmark [GC], nos. 35553/12 and 2 others, § 161, 22 October 2018)?

- was the duty complied with to consider alternative measures of ensuring the applicant’s appearance at trial (see Jabłoński v. Poland , no. 33492/96, § 83, 21 December 2000)?

2. Did the length of the proceedings concerning the applicant’s interlocutory appeal against the detention order comply with the “speed” requirement of Article 5 § 4 of the Convention?