18 September 2014
On 17 September, a juvenile client of the HHC was set free after 13 months of pre-trial detention imposed for the alleged robbery of a T-shirt. The HHC turned to Strasbourg in the case earlier on.
The underlying case concerns an alleged robbery of a T-shirt in August 2013. According to the court ordering the pre-trial detention, the client of the HHC, the then 17-year old K. R. (who is of Roma origin) harassed two minors together with his two accomplices (one of them being 13 years old, while the other one being also 17 years old) by calling the minors to show how they can fight. The two minors refused to fight, however, they met defendants later on again, who told to one of them to change his T-shirt with the youngest perpetrator, or sell it to them. As the victim refused to change or sell his T-shirt he was allegedly threatened to be beaten up unless he gives the defendants his T-shirt. These threatening sentences were not heard by the other minor (the friend of the victim). Finally, the alleged victim decided to give his T-shirt to the defendants. However, the defendants were afraid that their actions will cause a problem, so they decided to give the T-shirt back to its owner, which they did within a few days by sending the T-shirt to the alleged victim via one of his relatives.
Both the victim and his friend told during their confrontation with K. R. that K. R. had not committed anything, had not acted violently, had not threatened anyone, and had acted and talked “normally”, as they said. In spite of his clean criminal record, the lack of any evidence against him, and the fact that he was a juvenile, the court ordered K. R.’s pre-trial detention and upheld it even after the investigation has been closed, the bill of indictment has been submitted and the court phase of the criminal proceedings started. The legal basis for K.R.’s pre-trial detention referred to by the courts remained the same throughout the pre-trial detention’s whole period. The courts referred to the danger of absconding due to the possible severe sanction, although that would be 5 years of imprisonment as a maximum, but in the present case it is very likely that maximum 2-3 years of imprisonment would be imposed on K. R. if condemned due to the many mitigating circumstances and due to the fact that he is a juvenile. Furthermore, the courts referred to the risk of threatening the witnesses, although K. R. did not act aggressively during the commission of the alleged criminal offence as evidenced by the victim himself.
K. R. was taken into a 72-hour detention on 6 April 2013, and had been in pre-trial detention since 9 August 2013.
In June 2014, the HHC submitted an application to the European Court of Human Rights on behalf of K. R. In the application, the HHC claimed the following:
- In the course of the confrontation referred to above, taking place on 5 November 2013, the victim stated that K. R. had not committed anything, thus reasonable suspicion against K. R. ceased on that date. Therefore, upholding the pre-trial detention became unjustified on 5 November 2013. Accordingly, there has been a violation of K. R.’s rights under Article 5 (1) of the European Convention on Human Rights.
- The risk of absconding was based solely on the length of imprisonment the criminal offence in question is punishable with, and the courts failed to take into account the personal circumstances of the defendant. Furthermore, there was no data which would have substantiated the risk that K. R. would threaten the witnesses, and the possibility of imposing alternative (non-custodial) coercive measures instead of pre-trial detention was not examined. Therefore, there has been a violation of Article 5 (3) c) of the European Convention on Human Rights.
- Most of the court decisions prolonging the pre-trial detention of K. R. were repetitive and superficial, and did not contain any substantial reasoning. Therefore, there has been a violation of Article 5 (4) of the European Convention on Human Rights.