case of j.m. v. denmark
DESCRIPTION
ECHRTRANSCRIPT
FIRST SECTION
CASE OF J.M. v. DENMARK
(Application no. 34421/09)
JUDGMENT
STRASBOURG
13 November 2012
FINAL
13/02/2013
This judgment has become final under Article 44 § 2 of the Convention. It may be
subject to editorial revision.
J.M. v. DENMARK JUDGMENT 1
In the case of J.M. v. Denmark,
The European Court of Human Rights (First Section), sitting as a
Chamber composed of:
Nina Vajić, President,
Peer Lorenzen,
Elisabeth Steiner,
Mirjana Lazarova Trajkovska,
Julia Laffranque,
Linos-Alexandre Sicilianos,
Erik Møse, judges,
and Søren Nielsen, Section Registrar,
Having deliberated in private on 23 October 2012,
Delivers the following judgment, which was adopted on that date:
PROCEDURE
1. The case originated in an application (no. 34421/09) against the
Kingdom of Denmark lodged with the Court under Article 34 of the
Convention for the Protection of Human Rights and Fundamental Freedoms
(“the Convention”) by a Danish national, Mr J.M. (“the applicant”), on
18 June 2009.
2. The applicant was represented before the Court by Mr Nicholas Symes,
a lawyer practising in Copenhagen and by Mr Jens Brøsted, an associate
research professor. The Danish Government (“the Government”) were
represented by their Agent, Mr Thomas Winkler from the Ministry of
Foreign Affairs and their Co-Agent, Ms Nina Holst-Christensen of the
Ministry of Justice.
3. The applicant alleged, in particular, that the length of his detention on
remand was in breach of Article 5 § 3 of the Convention.
4. On 22 March 2010 part of the application was communicated to the
Government. It was also decided to rule on the admissibility and merits of
the application at the same time (Article 29 § 1).
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
5. The applicant was born on 30 November 1991. On
13 September 2007, at the age of fifteen, the applicant was arrested in
Qaqortoq, Greenland, charged with rape and homicide under section 216,
2 J.M. v. DENMARK JUDGMENT
subsection 2, and section 237 of the Danish Penal Code (Straffeloven)
committed on 26 May 2007 against an eighty-five year-old lady, who lived
in Aalborg, Denmark, where the applicant at the relevant time attended a
youth school institution. The case received massive media coverage, both
before and after the police investigation that led to the applicant being
charged.
6. The applicant was brought before Qaqortoq County Court (Qaqortoq
Kredsret) and pleaded guilty to both charges. He was ordered to be held in
pre-trial detention for four weeks. A request by the lay representative
(bisidder) that the applicant be placed in an institution in Greenland during
the investigation was disregarded.
7. After a week, the applicant was transferred to Denmark and brought
before the City Court in Aalborg (Retten i Aalborg) which on
20 September 2007, by virtue of section 762, subsection 2(i), of the
Administration of Justice Act (Retsplejeloven), extended the detention on
remand until 11 October 2007 and until his placement in an appropriate
home or institution could be secured as set out in section 765, subsections 1
and 2(iii) of the Administration of Justice Act. It further decided that the
applicant should undergo a forensic psychiatric examination. The latter was
formally requested by the public prosecutor on 23 October 2007 and
commenced at the Forensic Psychiatric Department at Aarhus University
Hospital on 21 November 2007.
8. On 21 September 2007 the applicant was transferred to a closed
young offender institution. On 10 October 2007 he was transferred to a
secure residential institution called “Grenen” for young people aged
between 12 and 17 who had committed a crime or otherwise displayed
dangerous conduct. One of the objects of that particular institution was that
the young people placed there were given such care, upbringing and help
with development that they would be able to function in society later on.
The young people had a well-structured daily routine with education,
workshops and leisure-time activities, and with limit-setting adults with
strong contact skills to support them.
9. The applicant’s detention in the institution was extended by four
weeks by the City Court in Aalborg on 11 October, 8 November and
6 December 2007.
10. In a letter of 21 December 2007 the prosecution informed the
applicant’s counsel that the investigation was by and large complete and
awaited only a report from the forensic psychiatric examination.
11. The applicant’s detention was extended for four weeks on
3 January 2008.
12. On 22 January 2008 the forensic psychiatric report (retspsykiatrisk
erklæring) was submitted. It concluded that the applicant was covered by
Article 16, subsection 2, of the Penal Code concerning mentally ill persons
J.M. v. DENMARK JUDGMENT 3
and recommended that a judgment be passed to place the applicant in an
appropriate institution for patients with a far-reaching mental handicap.
13. On 31 January 2008 the applicant’s detention was extended, inter
alia, in order for the Medico-Legal Council (Retslægerådet) to be heard on
the forensic psychiatric report.
14. The City Court in Aalborg extended the applicant’s detention by four
weeks on 28 February, 27 March, 24 April, 22 May, 19 June, 17 July and
14 August 2008. On the latter two dates the domestic courts added that the
conditions for extending the detention were fulfilled, also under section
768a of the Administration of Justice Act, which entered into force on
1 July 2008 (see below).
15. In the meantime, on 14 March 2008 the report from the
Medico-Legal Council was submitted, which concluded that the applicant
was considered to fall within section 16, subsection 2, of the Penal Code.
Moreover, if the applicant were convicted, a sentence of placement in an
institution for persons with extensive mental disabilities as provided by
section 68, second sentence, was recommended as the most expedient
measure to prevent further similar offences.
16. As a standard practice regarding persons falling within section
16, subsection 2, of the Penal Code, on 4 April 2008 the public prosecutor
requested an opinion from the Joint Council for the Mentally Disabled
(Samrådet for udviklingshæmmede) of Aalborg Municipality on the basis of
the forensic psychiatric report and the recommendation of the Medico-Legal
Council.
17. On 21 April 2008, an opinion was received from the Joint Council
for the Mentally Disabled, which found that the documentation for
considering the applicant to fall within section 16, subsection 2 of the Penal
Code was inadequate. It therefore urged a further examination of the case
before a decision was made. Accordingly, a new forensic psychiatric report
was requested.
18. Originally, the trial was scheduled to commence on
11 September 2008, but it had to be re-scheduled for 13 and 14 November
2008 pending the completion of the second forensic psychiatric report. On
the former date, for the first time the applicant objected to an extension of
the pre-trial detention. He referred to the fact that section 768a of the
Administration of Justice Act, which had entered into force on 1 July 2008,
specifically limited pre-trial detention of persons under eighteen years to a
period not exceeding eight months.
19. By decision of 11 September 2008, still by virtue of section 762,
subsection 2(i), of the Administration of Justice Act, the City Court in
Aalborg extended the applicant’s pre-trial detention until 9 October 2008
and stated:
[The applicant] is charged with rape and homicide committed on 26 May 2007. The
pre-trial detention is thus justified by a charge of a very serious crime which has also
4 J.M. v. DENMARK JUDGMENT
been admitted to by [the applicant], and according to the information available it must
be concluded that the reason why the case has not yet come to trial is the need to
clarify the most expedient sanction, both in consideration of society and in
consideration of [the applicant] himself. Although the length of the pre-trial detention
exceeds the period stated as the maximum period in section 768a of the
Administration of Justice Act, the court therefore finds that such very particular
circumstances (helt særlige omstændigheder) apply as to provide a reason for
deviating from the maximum period in section 768a, and the request for extension is
therefore allowed.
20. On appeal on 19 September 2008 the High Court of Western
Denmark (Vestre Landsret), henceforth the High Court, upheld the decision.
21. The applicant did not apply for leave to appeal against the decision
to the Supreme Court (Højesteret).
22. On 9 October 2008 the City Court in Aalborg extended the
applicant’s detention in the closed youth institution by four weeks.
23. On 6 November 2008 the City Court in Aalborg extended the
applicant’s detention by another four weeks. It noted that the second
forensic psychiatric report had been submitted on 3 November 2008 and
that it was of significant importance to hear the Medico-Legal Council in
this respect. It repeated that such very particular circumstances applied as to
provide a reason for deviating from the maximum period in section 768a of
the Administration of Justice and that an extension could not be considered
in breach of Article 5 § 3 of the Convention. Accordingly, the trial had to be
rescheduled anew.
24. The applicant appealed against the decision to the High Court, which
on 14 November 2008 upheld the decision. Leave to appeal to the Supreme
Court was refused on 19 December 2008 by the Leave-to-Appeal Board
(Procesbevillingsnævnet).
25. In the meantime, on 10 December 2008 the second report from the
Medico Legal Council was submitted. It concluded that the applicant’s case
did not fall under section 16, subsection 2, of the Penal Code, as found in its
first report, but under Section 69 of the Penal Code in that his actions had
been conditioned by deficient development, reduction or disturbance of
mental functions which, from a medical point of view, on the one hand
could suggest a sentence to structured, controlled socio-psychiatric
treatment, and on the other hand could not rule out ordinary imprisonment.
The Medico-Legal Council was unable to point to any other measures under
section 68, second sentence, of the Penal Code that were more expedient
than ordinary punishment. The Medico-Legal Council did find it relevant
though, from a purely medical point of view, to order the applicant to
undergo a structured, supervised socio-pedagogical measure as provided for
by section 74a of the Penal Code. If such sanction was not feasible, the
imposition of ordinary punishment was recommended.
26. Moreover, in the meantime, on 4 and 17 December 2008, and
subsequently on 13 January 2009 the City Court in Aalborg extended the
J.M. v. DENMARK JUDGMENT 5
applicant’s detention, stating expressly that an extension would not be
contrary to Article 5 § 3 of the Convention. The trial had been scheduled to
take place on 27 January 2009, and if necessary also on 2 and
4 February 2009.
27. By judgment of 27 January 2009 the City Court in Aalborg
convicted the applicant in accordance with the indictment and his own
confession. It was established as a fact that the applicant had gained access
to the victim’s apartment because he wanted access to a telephone. Having
raped the victim, he killed her by inflicting several blows, kicks and knife
lesions to the head, neck and body. Thereafter he had left the scene of the
crime, walked to town and called the youth school institution to be
collected. He did not talk to anybody about the crime until he had been
arrested. The applicant was sentenced to eight years’ imprisonment. The
City Court refuted the applicant’s complaint about the length of the
detention and the length of the trial and stated that even though the
proceedings had taken more than sixteen months from the applicant’s
deprivation of liberty, their length could not lead to a reduction of the
sentence as the completion of the two mental status examinations of the
applicant- and the submission of the case to the Medico-Legal Council had
been of vital significance for determining the sanction to be imposed.
Moreover, it found that the public prosecutor had conducted the proceedings
with due diligence.
28. On appeal, on 4 June 2009 the High Court upheld the judgment in its
entirety and stated, among other things: “For the reasons stated by the
District Court and because the length of the proceedings cannot be
attributed to ‘periods of inactivity’ of any importance for sentencing
purposes in view of the nature of the case, [the High Court] agrees that the
length of the proceedings has not been attributed importance as a mitigating
factor. Accordingly, and in view of the very significant gravity of the
offences, including the particular ruthlessness exhibited by [the applicant],
the fact that the offences were committed in the victim’s own home, and the
fact that the victim was a defenceless eighty-five year-old woman, the High
Court upholds the sentence of eight years’ imprisonment despite the fact
that [the applicant] was only fifteen years old at the time of the offence, see
section 82, subsection 1(i), of the Penal Code”. On the same day, the High
Court decided that the applicant should remain in alternative detention until
the enforcement of the sentence could commence.
29. It appears that the applicant did not submit a request to the
Leave-to-Appeal Board for leave to appeal against the High Court judgment
to the Supreme Court.
6 J.M. v. DENMARK JUDGMENT
B. Relevant domestic law
1. The rules on detention on remand
30. The rules on detention on remand are laid down in part 70 of the
Administration of Justice Act (Retsplejeloven), which reads in so far as
relevant:
Section 762
1. A person charged (en sigtet) may be detained on remand when there is a
reasonable suspicion that he has committed an offence which is subject to public
prosecution, provided that under the law the offence may result in imprisonment for
one year and six months or more, and
(i) according to information received concerning the suspect’s situation, there are
specific reasons for assuming that he will evade prosecution or execution of judgment,
or
(ii) according to information received concerning the suspect’s situation, there is
specific reason to fear that, if at large, he will commit a new offence of the nature
described above, or
(iii) in the circumstances of the case, there are specific reasons for assuming that the
suspect will impede the investigation, in particular by removing evidence or by
warning or influencing others.
2. A person charged may also be detained on remand when there are strong reasons
for suspecting that he has committed:
(i) an offence which is subject to public prosecution which, under the law, may
result in imprisonment for six years or more, and it is deemed necessary for law
enforcement reasons, according to the information obtained on the gravity of the
offence, that the person is not at large (hensynet til retshåndhævelsen); or
(ii) an offence in violation of section 119(1), section 123, section 134a, section
192a(2), section 218(1), section 222, section 224 or section 225 read with section
218(1) or section 222, section 235(1), sections 244-246, section 250 or section 252 of
the Penal Code or violation of section 232 of the Penal Code committed against a
child of less than 15 years, in case the offence may be expected, due to the particulars
of the seriousness of the circumstances, to be punished with a non-suspended sentence
of imprisonment for at least sixty days and due regard for enforcement of the law is
found to require that the accused shall not be at large.”
3. Detention on remand may not be imposed if the offence can be expected to result
in a fine or imprisonment for a period not exceeding thirty days, or if the deprivation
of liberty would be disproportionate to the inconvenience so caused to the life of the
person charged, the importance of the case and the legal consequence to be expected
if the person charged is found guilty.
J.M. v. DENMARK JUDGMENT 7
Section 764
1. The court shall decide, upon request from the prosecution, if an accused person
shall be detained on remand. A request for continued remand detention shall be
submitted to the court in writing and the request shall state the detention provision(s)
relied on by the prosecutor, the factual circumstances on which the request is based
and the most significant investigative steps expected to be taken.
...
4. ... If detention on remand is continued beyond the time limits set out in section
768a, subsections 1 and 2, the [court] must state in its decision the special
circumstances of the case which necessitate continued detention on remand ...
Section 765
1. Where the conditions to apply detention on remand are met, but if the purpose of
detention on remand may be obtained by less radical measures, the court decides on
such measures in lieu thereof subject to the consent of the person charged.
2. The court may thus decide that the person charged shall
...
(iii) be placed in an appropriate home or institution
...
Section 767
1. Except for situations where the person charged is not present in Denmark, the
court order must state a period for the pre-trial detention or the measure. The period
must be as short as possible and may not exceed four weeks. The period may be
extended but not by more than four weeks at a time. The extension is made by court
order unless the defendant accepts the extension. Until judgment is rendered in the
first instance, the rules of section 764 apply correspondingly to court hearings and
court orders about extension of periods. A defendant who is held in pre-trial detention
or is subject to another custodial measure does not, however, have to be brought in
person before the court if he waives this or the court finds that such attendance will
involve undue difficulties.
Section 768
Detention on remand or measures in lieu hereof, shall if necessary be terminated by
a court order if prosecution is dropped or the conditions for instituting proceedings no
longer exist. If the court order finds that the necessary speed has not been used to
proceed with the matter and that detention on remand or other measures are not
reasonable, the court shall terminate it.
8 J.M. v. DENMARK JUDGMENT
Section 768a
1. Unless the court finds that there are special circumstances to the contrary, the
maximum period of detention on remand must not be extended for a continuous
period of
(i) six months, when the accused is charged with an offence that cannot carry a
sentence of imprisonment for six years or
(ii) one year when the accused is charged with an offence that may carry a sentence
of imprisonment for six years or more.
2. Unless the court finds that there are very special circumstances to the contrary,
the maximum period of the detention on remand of a juvenile (less than 18 years old)
must not be extended for a continuous period of
(i) four months, when the accused is charged with an offence that cannot carry a
sentence of imprisonment for six years or
(ii) eight months when the accused is charged with an offence that may carry a
sentence of imprisonment for six years or more.
3. The periods mentioned in subsections 1 and 2 comprise the period until the
beginning of the trial at first instance.
31. Section 768a was inserted into the Administration of Justice Act by
act no. 493 of 17 June 2008 and entered into force on 1 July 2008 with the
aim of reducing lengthy criminal charges and detention on remand. The
reasons for the proposal were explained in the general remarks to the Act,
inter alia by a reference to a specific Committee Report, 1492/2007,
pp. 136-38:
“The Committee notes that detention on remand is a particularly serious interference
in criminal procedure, and that this especially is the case for persons under 18 years of
age. The strain that flows from detention on remand - in the view of the Committee -
caused not only by the uncertainty that follows from the charge and the imprisonment,
but also uncertainty with respect to the length of the detention and the consequent
questions, inter alia, whether the detainee can resume his work or his education after
the detention ends, relationships with family and friends, etc. The strain must
normally be presumed to grow concurrently with the length of the interference and
especially for this reason the length of detention should be limited as far as possible.
Against this background, the Committee finds that there is a need for further measures
to reduce the length of detention on remand. Considering the serious character of the
interference, the Committee further notes that it must be incumbent on the police, the
prosecution authorities and the courts that, in the organisation of their work, they pay
special attention to expediting these cases in order for detention on remand to be of
the shortest possible duration.”
32. As appears from the wording of section 768a, deviation from pre-
trial detention periods of defendants under the age of eighteen is only
possible if the court finds that “very special circumstances” apply. As
explained in more detail in the preparatory notes (see the Official Report on
J.M. v. DENMARK JUDGMENT 9
Parliamentary Proceedings 2007-2008 (2nd sitting), Addendum A, p. 2952
(Bill No. L 78)), it depends on a specific assessment of all the circumstances
of each case whether there is a basis for deviating from the maximum
periods of pre-trial detention, as concerns both charged persons under and
over the age of eighteen. When assessing this, the court must start from the
reason for detention applied, that is, the reasons for pre-trial detention under
section 762, subsection 1(i) (danger of absconding), section 762, subsection
1(ii) (danger of re-offending), or section 762, subsection 2 (public interest)
of the Administration of Justice Act. The preparatory notes set out:
In case of pre-trial detention pursuant to the said provisions, the requirement of
particular circumstances implies that a total assessment must be made on the basis of a
strict assessment, both of the circumstances mentioned in section 768 (that is,
particularly whether the investigation is being conducted with the requisite
expedition) and of the necessity of continuing the detention pursuant to the detention
reason applied.
The strict attention to the necessity of continuing the detention also implies that the
court must pay special attention to the proportionality requirement under section
762(3) of the Administration of Justice Act and, particularly in connection with the
detention reason stipulated in subsection (l)(i) (danger of absconding), to the
possibility of using alternatives to detention as prescribed in section 765. Concerning
the application of alternatives, it should be noted in that connection that the court, the
public prosecutor as well as defence counsel should be aware at all times of the need
to try to apply alternative detention in cases where that would be an adequate
measure.
...
In all cases, the offence charged will be of significant importance so that continued
detention after the maximum periods stated may particularly be applied in serious
criminal cases, that is, in cases of aggravated offences against the person and other
cases of particular public interest in which the expected sanction will be several years
of imprisonment. Thus, following an overall assessment, the court must make a
critical assessment of the necessity of continued pre-trial detention in light of the
length of the detention so far.
...
In the assessment of the question of continuation of the detention in case of the most
aggravated offences, for example in cases of homicide, the most aggravated drugs
offences, etc., the nature of the actual aggravated offence will naturally be included in
the assessment of whether detention may be continued in excess of the periods stated.
Particularly in cases where prosecution has been instituted, and where there is a rather
strong suspicion, the criminal nature of a very serious offence may, in addition to the
specific reason for detention, be included as an essential factor resulting in a finding
that particular circumstances exist in accordance with the provision proposed.
10 J.M. v. DENMARK JUDGMENT
33. Particularly concerning continued pre-trial detention of charged
persons under the age of 18 in excess of the maximum periods, the
preparatory notes stated the following:
Whether pre-trial detention of young people under the age of 18 may occur in excess
of the normal periods stated in subsection (2) must normally depend on an assessment
corresponding to the one to be made when determining whether there is any basis for
deviating from the periods stated in subsection (1), see above. However, the condition
for deviating from the periods stated in subsection (2) is qualified, as exceptional
circumstances must apply. This pertains to both the circumstances referred to in
section 768 of the Administration of Justice Act (that is, particularly whether the
investigation is being conducted with the requisite expedition) and to the necessity of
continued pre-trial detention in accordance with the reason for detention applied, see
above for details. Also the nature of the offence charged will be of significant
importance so that continued detention after the maximum periods stated may
particularly be applied in very serious criminal cases (that is, in cases of severely
aggravated offences against the person and other cases of particular public interest in
which the expected sanction will be several years of imprisonment).
2. The rules on mentally deviant perpetrators and the obtaining of
mental status reports
34. The Penal Code contains various provisions on the significance of
the perpetrator’s mental status at the time of the offence, inter alia:
Section 16
(1) Persons who, at the time of the act, were irresponsible on account of mental
illness or a state of affairs comparable to mental illness, or who are severely mentally
defective, are not punishable. Provided that the perpetrator was temporarily in a
condition of mental illness or a state of affairs comparable to mental illness on
account of the consumption of alcohol or other intoxicants, he may in particular
circumstances be punished.
(2) Persons who, at the time of the act, were slightly mentally defective are not
punishable, except in particular circumstances. The same shall apply to persons in a
state of affairs comparable to mental deficiency.
Section 68
Where an accused is acquitted in accordance with section 16 of this Act, the court
may decide on the use of other measures which it considers to be expedient for the
prevention of further offences. If less extreme measures such as supervision, decisions
on place of residence or work, addiction treatment, psychiatric treatment and so on are
considered insufficient, the court may decide that the person in question must be taken
to a hospital for the mentally ill or to an institution for severe mental defectives, or
that he must be put into care suitable for the mentally deficient, or that he must be
taken to a suitable home or to an institution where he can receive special nursing or
care. Safe custody is possible under the conditions stated in section 70 of this Act.
J.M. v. DENMARK JUDGMENT 11
Section 69
Where the offender was, at the time that the punishable act was committed, in a
condition resultant upon inadequate development or an impairment or disturbance of
his mental abilities, although not of the character referred to in section 16 of this Act,
the court may, if considered expedient, decide upon the use of measures such as those
referred to in the second sentence of Section 68 above, in lieu of punishment.
35. The Administration of Justice Act contains the following provision
on mental status examinations of the perpetrator:
Section 809
1. The defendant must be subjected to a mental status examination when this is
found to be of importance for the decision of the case. If he does not explicitly
consent to the examination, it can only take place pursuant to a court order. If the
defendant is being detained, he cannot be examined without a decision of the court.
3. Medico-Legal Council
36. Mental status reports are prepared by consultants in psychiatry. The
cases of forensic psychiatry that are submitted to the Medico-Legal Council
(Retslægerådet) for an opinion concern the question of whether, at the time
of the offence, the defendant was mentally ill or in a comparable state as
stated in section 16 of the Penal Code and questions of determination of the
most/more expedient measure, see sections 68 and 69 of the Penal Code.
Approximately half of all mental status reports are submitted to the
Medico-Legal Council. Cases not submitted to the Medico-Legal Council
typically concern less serious crimes and where the examination gives no
basis for recommending a special psychiatric measure. The detailed rules
for the organisation and work routines of the Medico-Legal Council are laid
down in the Rules of Procedure of the Council. Rule 7(1) of the Rules of
Procedure provides that:
If the written material submitted to the Council is deemed not to provide a sufficient
basis for the Council’s assessment of the case, the Council shall inform the submitting
authority of what further information will be of importance for such assessment. At
the same time, the Council shall state whether it is deemed most expedient that such
information is provided: ...
through examination of the person in question by one or more of the Council
members or experts at the request of the Council.
4. Joint Council for the Mentally Disabled
37. In cases where it is concluded, on the basis of the mental status
examination of the perpetrator, that the perpetrator is slightly retarded
(‘mentally disabled’), it is standard practice for the public prosecutor of the
North Jutland Police, who conducted the criminal proceedings against the
12 J.M. v. DENMARK JUDGMENT
applicant before Aalborg District Court, to request an opinion from the Joint
Council for the Mentally Disabled (Samrådet for Udviklingshæmmede) of
Aalborg Municipality. The Joint Council for the Mentally Disabled, which
includes a forensic psychiatrist and a psychologist as well as a
representative of the Danish Prison and Probation Service, assesses the
conclusion of the mental status report on the perpetrator’s mental status and
recommends the sanction which should be imposed on the perpetrator,
including the type of institution in which the perpetrator should be placed.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 1 OF THE CONVENTION
38. It appears that the applicant complained in substance that his
pre-trial detention was in breach of Article 5 § 1 (c) and (d).
39. The Court reiterates that the purpose of the rule on exhaustion of
domestic remedies is to afford the Contracting States the opportunity to
prevent or put right the violations alleged against them before those
allegations are submitted to the Court (see, among many other authorities,
Selmouni v. France [GC], no. 25803/94, § 74, ECHR 1999-V).
40. In the present case the applicant only once requested leave to appeal
to the Supreme Court against a High Court decision on pre-trial detention,
namely the original decision by the City Court in Aalborg on
6 November 2008 to extend the applicant’s detention, which was upheld by
the High Court on 14 November 2008. Leave to appeal to the Supreme
Court was refused on 19 December 2008 by the Leave-to-Appeal Board. In
that appeal, the applicant invoked Article 5 § 3 of the Convention. He failed
to raise, however, either in form or substance, before the domestic courts the
complaint made to it under Article 5 § 1 of the Convention. It follows that
this part of the application is inadmissible for non-exhaustion of domestic
remedies within the meaning of Article 35 § 1 of the Convention and must
be rejected pursuant to Article 35 § 4.
II. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE CONVENTION
41. The applicant complained under Article 5 § 3 that the length of his
detention on remand was excessive and that it had been routinely extended.
The provision reads in so far as relevant:
“Everyone arrested or detained in accordance with the provisions of paragraph 1 (c)
of this Article shall be ... entitled to trial within a reasonable time or to release
pending trial. Release may be conditioned by guarantees to appear for trial.”
J.M. v. DENMARK JUDGMENT 13
42. The Government contested that argument.
A. Admissibility
43. The Court notes that this complaint is not manifestly ill-founded
within the meaning of Article 35 § 3 (a) of the Convention. It further notes
that it is not inadmissible on any other grounds. It must therefore be
declared admissible.
B. Merits
1. The parties’ submissions
44. The applicant submitted, inter alia, that when he was arrested on
13 September 2007 the detention was based on the object of gathering
supplementary technical information, but already as from the first court
hearing in Denmark on 20 September 2007 the only outstanding issue was
his mental examination. Formally, he was detained under section 762,
subsection 2 (i), of the Administration of Justice Act, due to a particular
confirmed suspicion and because it was deemed necessary for law
enforcement reasons, according to the information obtained on the gravity
of the offence, that he was not at large. In his view, however, the Danish
authorities failed to show a sufficient genuine requirement in the form of a
threat continuing to disturb public order, or to show that releasing him,
being a minor, would have implied a specified concrete infringement of the
sense of justice (see, for example, Letellier v. France, 26 June 1991, § 51,
Series A no. 207).
45. In any event, on 1 July 2008, when the applicant had been detained
for almost 10 months, with the entry into force of section 768a, subsection 2
(ii), of the Administration of Justice Act limiting the period of pre-trial
detention in his type of cases to eight months, he should have been released.
46. He submitted that the City Court in Aalborg ignored the said
provision until he objected on 11 September 2008. Moreover, on the same
day the City Court in Aalborg submitted a new reason to justify the
continued detention, namely the problem of finding an expedient sentence
“both in consideration of society and in consideration of [the applicant]
himself”. However, problems with finding an expedient sanction is not
among the permitted reasons in section 762 of the Administration Act for
depriving someone of their liberty. Accordingly, in the applicant’s opinion,
the extension of his detention thereafter was without basis in law and
disproportionate under section 762 § 3 of the Administration of Justice Act
as well as Article 5 § 3 of the Convention.
14 J.M. v. DENMARK JUDGMENT
47. The applicant also pointed out that the process of examining his
mental status had lasted from 20 September 2007 until 10 December 2008,
thus more than one year and two months, which was excessive. Moreover,
even if there had been difficulties in those proceedings, the quality of the
work and the disagreement among the doctors could only be attributed to
the authorities and not to him.
48. The Government pointed out that the applicant was detained pre-trial
under section 762, subsection 2(i), of the Administration of Justice Act, due
to the gravity of the offences, namely rape of a particularly dangerous
nature and homicide; due to the fact that a conviction could result in
imprisonment for six years or more; and notably because regard for public
interest required that the defendant should not be at large. It would thus
have offended the public sense of justice if the applicant, who had
committed, and admitted to, such very serious crimes, had been released
pending completion of the mental status examinations. Pre-trial detention
with such an aim was in accordance with Article 5 § 1 (c) of the Convention
(see, Henrik Jensen v. Denmark, no. 13671/88, Commission decision of
3 July 1989), and similar to pre-trial detention with the aim of fulfilling
public order (see, for example I.A. v. France, 23 September 1998, § 104,
Reports of Judgments and Decisions 1998-VII and Letellier v. France,
26 June 1991, § 51, Series A no. 207).
49. The applicant did not object to the pre-trial detention until
11 September 2008. Thereafter, when extending the applicant’s pre-trial
detention on 6 November 2008, 4 December 2008, 17 December 2008 and
13 January 2009 the District Court expressly concluded that the extension of
the applicant’s pre-trial detention was not contrary to Article 5 § 3 of the
Convention.
50. Moreover, after the entry into force of section 768a of the
Administration of Justice Act on 1 July 2008, both on 11 September 2008
and on 6 November 2008 the District Court found that, although the
applicant’s pre-trial detention period had exceeded eight months as set out
in the said provision, such very particular circumstances existed to justify a
deviation from the maximum period. On the former date the District Court
pointed out that the pre-trial detention was justified by the charge of very
serious crimes and because it was necessary to clarify the most expedient
sanction, both in consideration of society and in consideration of the
applicant himself. On the latter date the District Court noted that the second
forensic psychiatric report had been submitted on 3 November 2008 and
that it was of significant importance to hear the Medico-Legal Council in
this respect. It repeated that such very particular circumstances applied as to
provide a reason for deviating from the maximum period in section 768a of
the Administration of Justice and that an extension could not be considered
in breach of Article 5 § 3 of the Convention.
J.M. v. DENMARK JUDGMENT 15
51. The Government pointed out that the District Court’s reasoning in
this respect was in accordance with the preparatory notes to section 768a of
the Administration of Justice Act which stated that the nature of the crime
would be of significant importance for continued detention in excess of the
maximum period to be applicable, particularly in very serious criminal
cases.
52. The Government also emphasised that throughout the detention, the
courts did consider and decided to apply a less interfering measure than
ordinary pre-trial detention. Thus, for almost the whole period, the applicant
was placed in a secure institution for young offenders, as provided for by
section 765(2) of the Administration of Justice Act.
53. Finally, the Government attached importance to the fact that the
national authorities exhibited special diligence in their conduct of the
proceedings throughout the period, including in connection with the
examination of the applicant’s mental status. There were thus no ‘periods of
inactivity’. It should be recalled in that connection that the assessment of the
applicant’s mental status was complex as he was bordering between the
definitions in section 16 subsection 2 and section 69 of the Penal Code, and
the doctors disagreed about the provision applicable. Therefore, and having
regard to the applicant’s young age, a renewed examination was necessary
to establish whether he was suitable for ordinary punishment.
2. The Court’s assessment
54. The Court reiterates that a person charged with an offence must
always be released pending trial unless the State can show that there are
“relevant and sufficient” reasons to justify the continued detention (see, for
example, Smirnova v. Russia, nos. 46133/99 and 48183/99, § 58, ECHR
2003-IX (extracts) and Khodorkovskiy v. Russia, no. 5829/04, § 182,
31 May 2011). The national judicial authorities must ensure that, in a given
case, the detention of an accused person pending trial does not exceed a
reasonable time. To this end they must examine all the facts arguing for or
against the existence of a genuine requirement of public interest justifying,
with due regard to the principle of the presumption of innocence, a
departure from the rule of respect for individual liberty, and set them out in
their decisions on the applications for release (see Letellier v. France,
26 June 1991, § 35, Series A no. 207). Arguments for and against release
must not be general and abstract (see Clooth v. Belgium, 12 December 1991,
§ 44, Series A no. 225). The persistence of a reasonable suspicion that the
person arrested has committed an offence is a condition sine qua non for the
lawfulness of the continued detention, but after a certain lapse of time it no
longer suffices. In such cases, the Court must establish whether the other
grounds given by the judicial authorities continued to justify the deprivation
of liberty. Where such grounds were “relevant” and “sufficient”, the Court
must also ascertain whether the competent national authorities displayed
16 J.M. v. DENMARK JUDGMENT
“special diligence” in the conduct of the proceedings (see Labita v. Italy
[GC], no. 26772/95, § 153, ECHR 2000-IV). The Convention case-law has
developed four basic acceptable reasons for detaining a person before
judgment when that person is suspected of having committed an offence:
the risk that the accused would fail to appear for trial (see Stögmüller v.
Austria, 10 November 1969, § 15, Series A no. 9); the risk that the accused,
if released, would take action to prejudice the administration of justice (see
Wemhoff v. Germany, 27 June 1968, § 14, Series A no. 7) or commit further
offences (see Matznetter v. Austria, 10 November 1969, § 9, Series A
no. 10) or cause public disorder (see Letellier, cited above, § 51). More
specifically, as to public disorder, in the latter quoted judgment, the Court
accepted “that, by reason of their particular gravity and public reaction to
them, certain offences may give rise to a social disturbance capable of
justifying pre-trial detention, at least for a time. In exceptional
circumstances this factor may therefore be taken into account for the
purposes of the Convention, in any event in so far as domestic law
recognises - as in Article 144 of the Code of Criminal Procedure - the
notion of disturbance to public order caused by an offence. 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
disturb public order. In addition detention will continue to be legitimate
only if public order remains actually threatened; its continuation cannot be
used to anticipate a custodial sentence...”.
55. In the present case, at the relevant time the applicant was fifteen
years old and charged with rape and homicide committed against an
eighty-five year-old lady. When ordering the applicant’s detention and its
extension approximately every four weeks the domestic courts relied on
section 762, subsection 2 (i), of the Administration of Justice Act, according
to which a charged person may be detained on remand when there are
strong reasons for suspecting that he has committed an offence which is
subject to public prosecution which, under the law, may result in
imprisonment for six years or more, and it is deemed necessary for law
enforcement reasons, according to the information obtained on the gravity
of the offence, that the person is not at large.
56. The detention began on 13 September 2007 and ended on 27 January
2009 when the applicant was convicted by the City Court. It thus lasted one
year, four months and fourteen days.
57. The applicant pleaded guilty from the beginning, which facilitated
the investigation. The length of the pre-trial detention can therefore be
attributed to the forensic psychiatric examinations of the applicant and the
opinions from the Medico-Legal Council in order to determine the
appropriate sanction.
58. The applicant pointed out that the process of examining his mental
status had lasted from 20 September 2007 until 10 December 2008, which
J.M. v. DENMARK JUDGMENT 17
was more than one year and two months. The Government explained in that
connection that the assessment of the applicant’s mental status had been
complex as he was bordering between the definitions in section 16,
subsection 2, and section 69 of the Penal Code and the doctors disagreed
about the provision applicable.
59. In the Court’s view, having regard to the nature and seriousness of
the crimes committed, and to the vital significance of determining an
appropriate sanction to be imposed on the applicant, who was an adolescent
at the relevant time, this period, during which two forensic psychiatric
examinations were carried out and two opinions from the Medico-Legal
Council and one opinion from the Joint Council for the Mentally Disabled
were obtained, cannot be considered excessive to such an extent that for that
reason alone there was a breach of the invoked article. It also attaches
weight to the fact that there were no periods of inactivity of any
significance.
60. As to section 768a, subsection 2 (ii), of the Administration of Justice
Act, which entered into force on 1 July 2008, when the applicant had been
detained for almost 10 months, the Court observes that that provision set out
that detention on remand of a juvenile (less than 18 years old) charged with
an offence that may carry a sentence of imprisonment of six years or more
(such as homicide) should not be extended for a continuous period of more
than eight months unless the court finds that there are very special
circumstances. It notes that whenever the applicant’s detention was
extended after 1 July 2008, the domestic courts expressly stated that they
found that there were such very special circumstances in the present case.
Moreover, on 11 September and 6 November 2008, when the applicant
objected to the extension of the detention, the City Court gave detailed
reasoning as to why it found that such very special circumstances existed
(see paragraph 19 and 23).
61. Accordingly, the domestic courts regularly assessed whether
extending the applicant’s detention was lawful and justified, both under
762, subsection 2 (i) and, after 1 July 2008, also under section 768a,
subsection 2 (ii), of the Administration of Justice Act. It cannot be
concluded that the domestic courts used identical, stereotyped terms, nor
can it be said in the circumstances of the present case that one year, four
months and fourteen days was such a long lapse of time, that other grounds
had to be given by the judicial authorities to justify the continued
deprivation of liberty, other than the one set out in 762, subsection 2 (i), of
the Administration of Justice Act, which in the concrete case before it was
that it would have offended the public sense of justice if the applicant, who
had committed and admitted to the rape and homicide of an eighty-five
year-old lady, had been released pending completion of the mental status
examinations.
18 J.M. v. DENMARK JUDGMENT
62. The present case is distinguishable from the Court’s case-law in
which it found it in violation of Article 5 § 3 that the domestic courts relied
on the gravity of the charges or the severity of the sentence as the decisive
factor to justify long periods of detention of remand (see, for example,
Veliyev v. Russia, no. 24202/05, § 148, 24 June 2010 and Sutyagin v.
Russia, no. 30024/02, § 143, 3 May 2011). In the present case the domestic
courts relied not only on the gravity of the charge against the applicant, but
also on the public reaction. More concretely they found that it would have
offended the public sense of justice if the applicant, who had been charged
with rape and homicide of an eighty-five year-old lady, had been released
pending completion of the mental status examinations. The more so,
because the applicant from the beginning had admitted to the crime
committed. Moreover, although the public prosecution is also responsible
for drawing up the indictment in Denmark, it is for the Danish courts,
regularly during the pretrial detention, to verify and control that the
indictment is still justified, as opposed to the Russian legal system, where
the characterization in law of the facts, and thus the sentence faced by the
accused, is determined by the prosecution without judicial review of
whether the evidence obtained supports a reasonable suspicion that the
accused has committed the alleged offence (see, inter alia, Veliyev v.
Russia, cited above, § 148).
63. The present case is also distinguishable from the Court’s case-law,
where the authorities did not take the young offender’s age into
consideration when ordering their detention (see, for example, Güveç v.
Turkey, no. 70337/01, §§ 109-110, ECHR 2009-... (extracts)); Nart v.
Turkey, no. 20817/04, 6 May 2008; and Selçuk v. Turkey, no. 21768/02,
10 January 2006). It will be recalled that already on 20 September 2007 the
City Court in Aalborg decided that the applicant should be placed in an
appropriate home or institution as provided for in section 765, subsection 1
and 2(iii), of the Administration of Justice Act. The following day, the
applicant was placed in a secure institution for young offenders (see
paragraph 8). Accordingly, it cannot be said that the Danish courts did not
consider and decide to apply a less interfering measure than ordinary
pre-trial detention.
64. Finally, as to the applicant’s submission that the Danish authorities
failed to show a sufficient genuine requirement in the form of a threat
continuing to disturb public order, or to show that releasing him, being a
minor, would have implied a specified concrete infringement of the sense of
justice, or that the City Court applied a new reason on 11 September 2008
which allegedly had no legal basis to justify the continued detention, the
Court refers to its finding under Article 5 § 1.
65. In the light of the foregoing the Court concludes that there has been
no violation of Article 5 § 3 of the Convention.
J.M. v. DENMARK JUDGMENT 19
III. ALLEGED VIOLATION OF ARTICLE 6 OF THE CONVENTION
66. The applicant also complained that the length of the trial exceeded
the “reasonable time” requirement of Article 6 of the Convention.
67. The Court notes that the High Court in its judgment of 4 June 2009
found that the length of the proceedings, which lasted one year, four months
and fourteen days, had not exceeded the “reasonable time” requirement
within the meaning of Article 6 of the Convention.
68. It appears that the applicant failed to request leave to appeal against
that judgment to the Supreme Court. Nevertheless, even assuming that the
applicant has exhausted domestic remedies (see, for example, Ugilt Hansen
v. Denmark (dec.), no. 11968/04, of 26 June 2006), and in so far as the
criteria set out in Article 35 § 1 have been complied with and the matters
complained of are within its competence, the Court finds that they do not
disclose any appearance of a violation of Article 6 of the Convention. It
follows that this part of the application must be rejected in accordance with
Article 35 § 4 of the Convention.
FOR THESE REASONS, THE COURT UNANIMOUSLY
1. Declares the complaint concerning Article 5 § 3 of the Convention
admissible and the remainder of the application inadmissible;
2. Holds that there has been no violation of Article 5 § 3 of the Convention;
Done in English, and notified in writing on 13 November 2012, pursuant
to Rule 77 §§ 2 and 3 of the Rules of Court.
Søren Nielsen Nina Vajić
Registrar President