Détention provisoire injustifiée

FAITS

M. Robert Peša, ressortissant croate et vice-président du Fond croate de privatisation, fut arrêté le 16 juin 2007 et placé en détention provisoire jusqu’au 18 mars 2009 dans le cadre de la lutte anti-corruption. Le 15 mai 2009, il a été condamné à deux ans d’emprisonnement, condamnation dont il a fait appel, l’instance d’appel étant toujours pendante. Devant la Cour, le requérant soutenait qu’il avait subi une détention excessive méconnaissant les garanties de l’article 5 § 3 et 4 de la Convention.

SOLUTION

La Cour européenne des droits de l’Homme, dans son arrêt du 8 avril 2010 Peša c. Croatie, relève que la détention a duré un an, neuf mois et deux jours alors que le requérant n’était ni récidiviste ni accusé de crimes violents.

Dès lors il n’était pas possible pour les autorités nationales de baser la durée de sa détention (du 15 février 2008 au 18 mars 2009) sur le fondement de la gravité des charges retenues contre lui, lesquelles ne forment pas un motif suffisant et caractérisent une violation de l’article 5 § 3 de la Convention.

De plus, s’agissant des griefs tirés de l’article 5 § 4, la Cour européenne des droits de l’Homme reproche à la Cour constitutionnelle croate de n’avoir pas examiné à « bref délai » la constitutionnalité de cette privation de liberté, de sorte qu’elle a manqué à ses obligations au regard de l’article 5 § 4.

EXTRAITS

(a)  The danger of reoffending

95.  The Court considers that the seriousness of a charge may lead the judicial authorities to place and leave a suspect in detention on remand in order to prevent any attempts to commit further offences. It is, however, necessary, among other conditions, for the danger to be a plausible one and the measure appropriate, in the light of the circumstances of the case and in particular the past history and the personality of the person concerned (see Clooth v. Belgium, 12 December 1991, § 40, Series A no. 225).

96.  The Court notes that the applicant had no previous criminal record and that no expert assessment of the likelihood of his reoffending was carried out. Furthermore, as he was charged with committing criminal offences closely related to his position as one of the vice-presidents of the CPF, after he had been dismissed from that position on 29 June 2007, no danger of his reoffending persisted.

97.  The ground based on the risk of reoffending did not therefore in itself justify the continuation of the applicant's detention after 29 June 2007.

(b)  The danger of suborning witnesses

98.  The Court acknowledges that the applicant's case was a very complicated one, necessitating difficult inquiries. Some of the witnesses were employees of the CPF, in which the applicant had held a high-ranking position. The authorities' belief that he should consequently be kept in detention in order to prevent him from being able to suborn those witnesses is easy to understand, at least at the outset.

99.  In the long term, however, the requirements of the investigation do not suffice to justify the detention of a suspect: in the normal course of events the risks alleged diminish with the passing of time as the inquiries are conducted, statements taken and verifications carried out (see Clooth, cited above, § 43).

100.  The Court notes that by 13 February 2008, when the indictment was lodged, all witnesses who were employees of the CPF had already given their evidence before the investigation judge. Therefore, the danger that the applicant might suborn witnesses no longer persisted after that date. It must be inferred from this that after 13 February 2008, the date on which the applicant was indicted, the risk in question disappeared and could no longer serve as justification for his detention.

(c)  Protection of public order

101.  The Court notes that the Government also relied on the protection of public order as a ground for the applicant's detention, although it was not expressly mentioned by the national courts. The latter did rely, however, on the harm which the applicant's alleged conduct had caused to public trust. In any event, the Court accepts that, by reason of their particular gravity and the public reaction to them, certain offences may give rise to public disquiet capable of justifying pre-trial detention, at least for a certain time.

102.  In exceptional circumstances – and subject, obviously, to there being sufficient evidence – this factor may therefore be taken into account for the purposes of the Convention. However, this ground can be regarded as relevant and sufficient only provided that it is based on facts capable of showing that the accused's release would actually prejudice public order. In addition, detention will continue to be legitimate only if public order actually remains threatened; its continuation cannot be used to anticipate a custodial sentence (see Kemmache v. France, 27 November 1991, § 52, Series A no. 218, and Tomasi v. France, 27 August 1992, § 91, Series A no. 241-A).

103.  The Court firstly notes that Croatian law does not recognise the notion of prejudice to public order caused by an offence as a ground for detention. Furthermore, the national courts did not explain why continued detention of the applicant was necessary in order to prevent public disquiet and did not examine whether the applicant presented a danger for public safety. Therefore, the arguments of the Government referring to the protection of public order cannot be seen as sufficient for ordering or extending the applicant's detention.

(d)  Seriousness of the alleged offences

104.  The Court has repeatedly held that although the severity of the sentence faced is a relevant element in the assessment of the risk of absconding or reoffending, the need to continue the deprivation of liberty cannot be assessed from a purely abstract point of view, taking into consideration only the gravity of the offence. Nor can continuation of the detention be used to anticipate a custodial sentence (see Belevitskiy v. Russia, no. 72967/01, § 101, 1 March 2007; Panchenko v. Russia, no. 45100/98, § 102, 8 February 2005; Khudoyorov v. Russia, no. 6847/02, § 180, ECHR 2005-X; and Ilijkov v. Bulgaria, no. 33977/96, § 81, 26 July 2001).

105.  In the present case, from 15 February 2008, immediately after the trial had commenced, to 18 March 2009, the domestic courts extended the applicant's detention solely on the ground of the particularly grave circumstances under which he had allegedly committed the offences at issue. This period lasted one year, one month and three days.

106.  As to the nature of the offences held against the applicant in the present case, the Court notes that he was charged with committing offences related to accepting bribes in his capacity as one of the vice-presidents of the CPF. While the Court accepts that the charges against the applicant were serious and that the national courts found that the alleged offences entailed a high degree of criminal resolve in undertaking a number of illegal steps over a long period, it notes that the explanations given by the national courts in this connection were not sufficient and relevant for extending the applicant's detention after 15 February 2008. No elements adduced by the national courts were capable of showing that the applicant presented a continued danger or that his release would in any manner harm the conduct of the criminal proceedings against him.

107.  The Court further emphasises that, when deciding whether a person is to be released or detained, the authorities are obliged under Article 5 § 3 to consider alternative means of guaranteeing his appearance at the trial. Indeed, that Article lays down not only the right to “trial within a reasonable time or release pending trial” but also provides that “release may be conditioned by guarantees to appear for trial” (see Jabłoński v. Poland, no. 33492/96, § 83, 21 December 2000). In the present case, the Court notes that there is no express indication that during the entire period of the applicant's detention the authorities envisaged any other guarantees designed to secure his appearance at the trial. Nor did they give any consideration to the possibility of ensuring his presence at the trial by imposing on him, under Article 90 of the Code of Criminal Procedure, other “preventive measures” expressly intended to ensure the proper conduct of criminal proceedings.

108.  The Court notes that the applicant was not a habitual offender and that he was charged with financial offences and not with crimes containing a violent element. The Court finds, therefore, that by relying solely on the gravity of the charges, the authorities prolonged the applicant's detention in the period from 15 February 2008 to 18 March 2009 on grounds which cannot be regarded as “sufficient”. In those circumstances it is not necessary to examine whether the proceedings were conducted with “special diligence”.

109.  There has accordingly been a violation of Article 5 § 3 of the Convention.

L'arrêt n'est disponible qu'en anglais; voir également sur cet arrêt, la chronique du Dr. Edgar Enyegue, Europe des Libertés, n°32, p.30.