SLAVKOVIC v. SWITZERLAND

THE FACTS

1. The applicant, Mr Slavko Slavkovic, is a Serbian national, who was born in 1980 and lives in Ebikon, Canton of Lucerne. He was represented before the Court by Mr Franz Dörig, a lawyer practising in Lucerne.

2. The Swiss Government (“the Government”) were represented by their Agent, Mr Frank Schürmann, of the Federal Office of Justice.

3. On 20 September 2010 the Government of Serbia were informed of their right to intervene in the proceedings, in accordance with Article 36 § 1 of the Convention and Rule 44 § 1(b) of the Rules of Court. On 18 October 2010 the Government of Serbia informed the Court that they did not wish to exercise their right to intervene in the present case.

A. The circumstances of the case

4. The facts of the case, as submitted by the parties, may be summarised as follows.

5. On 10 April 2006 the applicant was detained in Bad Feilnbach (Germany) on the basis of an international arrest warrant issued by the Sursee district authority (Amtsstatthalteramt Sursee (Switzerland)) on 1 May 2003. According to the arrest warrant, the applicant was suspected of having committed the offences of serious assault, endangering the life of another person and damaging property, because he had allegedly participated in a brawl on 2 March 2003 in Sursee and shot one of the victims in the leg during the fracas.

6. On 19 July 2006 the applicant was convicted in Germany of a number of offences, including illegal entry, illegally staying in the country and forgery of a document.

7. On 11 September 2006 the German authorities extradited the applicant to Switzerland. On 12 September 2006 his lawyer was appointed to represent him. That same day the Sursee Prefect (Amtsstatthalter) ordered that the applicant be placed in pre-trial detention. In the detention order the Prefect established that the applicant was suspected of having committed a number of offences, including serious assault and endangering the life of another person. The applicant’s pre-trial detention was considered to be further justified because serious concerns existed that he would seek to evade the criminal proceedings by absconding or compromise the efforts of the investigation if left at large.

8. Based on the same reasons, an application for immediate release from pre-trial detention made by the applicant on 14 September 2006 was dismissed by the Prefect on 18 September 2006.

9. On 15 September 2006 the applicant appealed against the Prefect’s detention order to the Court of Appeal for the Canton of Lucerne (Obergericht, hereinafter “the Court of Appeal”). He claimed that the requirements for detaining him had not been fulfilled in a number of respects.

10. The Court of Appeal invited the public prosecutor to submit observations on the applicant’s appeal. On 20 September 2006 the public prosecutor sent an e-mail to the Prefect in response. In this e-mail he stated the following:

“Good morning A.

As stated yesterday on the phone, I have been asked to submit before tomorrow, 21 September 2006, observations on the representative’s appeal in the pre-trial detention matter regarding S.S. [Slavkovic Slavko].

Please send me, for the attention of the Court of Appeal, [details of] which (investigation) activities have been carried out since the accused’s detention and which investigative activities are planned in the near future.

In addition I would ask you – as discussed – to issue as soon as possible the new international arrest warrant against S.S. “amended” with respect to the crimes of assault, brawling, assault and theft; to pass it [in accordance with standard procedure] (keyword: granting of the right to be heard) to the person concerned (not as an accused!) and to subsequently submit both [documents] to the Federal Office for Justice. The Federal Office for Justice will then take the next steps (together with [the assistant]).

Please also send the new arrest warrant and the record of the questioning session with S.S. to me by fax or e-mail, so that I can refer to them in my observations to the Court of Appeal.

Many thanks for your efforts, which are appreciated. I am at your disposal in case of any questions.

Kind regards,

G.”

11. On 21 September 2006 the public prosecutor submitted his observations to the Court of Appeal. The applicant was invited to submit observations in response.

12. On 22 September 2006 the Prefect issued a new, amended international arrest warrant against the applicant. By letter of the same date, the applicant wrote to the Prefect stating that he would prefer that the decision regarding the approval of the amended arrest warrant be suspended until the Court of Appeal had decided on his appeal against the order for his pre-trial detention.

13. The applicant submitted observations on 22 and 24 September 2006 to the Court of Appeal. Having become aware of the e-mail exchange (see paragraph 10 above), he claimed that the Prefect was acting under the instructions of the public prosecutor. He alleged that from an objective point of view the Prefect could not be considered as an independent “officer authorised by law to exercise judicial power”, within the meaning of Article 5 § 3 of the Convention. He therefore sought the Prefect’s withdrawal from the case.

14. On 26 September 2006 the Court of Appeal dismissed the applicant’s appeal and established that the requirements for detaining him pending trial had been fulfilled. It held that there were no indications, either in the e-mail exchange between the Prefect and the prosecutor or in other documents, that the Prefect had been acting under the prosecutor’s instructions when ordering the applicant’s pre-trial detention. It found that the prosecutor’s request regarding the amendment of the international arrest warrant of 20 September 2006 had nothing to do with the detention order against the applicant, which had already been issued by the Prefect on 12 September 2006. Since the e-mail exchange between the prosecutor and the Prefect had occurred some days after the detention order had been issued, no doubts as to the Prefect’s independence when ordering the applicant’s pre-trial detention existed. In addition, according to Article 154bis of the Code of Criminal Procedure of the Canton of Lucerne (hereinafter “the CCP”, see paragraph 19 below), the Prefect was not bound by any instructions of the public prosecutor when ordering pre-trial detention. Furthermore, according to Article 129 of the CCP (see paragraph 19 below), he was not competent to bring criminal charges against the applicant before the domestic courts. In addition, the prosecutor’s supervisory responsibilities, as set out in Article 153(1) and (2) of the CCP (see paragraph 19 below), were limited to investigative activities, with a particular emphasis on responsibility for their proper and expeditious completion. Therefore, the legal provisions in force sufficiently guaranteed the Prefect’s independence when ordering pre-trial detention and no conflict of interest existed.

15. The applicant appealed against this decision to the Federal Supreme Court (hereinafter “the FSC”). He reiterated that in the given circumstances the Prefect could not be considered as an independent officer authorised by law to exercise judicial power within the meaning of Article 5 § 3 of the Convention and accordingly had to be excluded from the case. He also alleged that the Court of Appeal had failed to consider whether the international arrest warrant of 1 May 2003 had been issued by the Prefect under the prosecutor’s instructions.

16. By a judgment of 3 November 2006 the FSC upheld the Court of Appeal’s judgment. It ruled that the provisions of the CCP sufficiently guaranteed the impartiality and independence of the Prefect in accordance with Article 5 § 3 of the Convention. With regard to the e-mail exchange, the FSC further reiterated that it had mainly concerned the amendment of the international arrest warrant and that the prosecutor’s actions had been fully compliant with Article 153(1) and (2) of the CCP. Moreover, the e‑mail exchange had occurred some days after the detention order had been issued and contained no indications that the prosecutor had given the Prefect instructions when the latter was ordering the applicant’s pre-trial detention on 12 September 2006.

17. By penal order of 29 November 2006 the Prefect sentenced the applicant to seventy-nine days’ imprisonment for having taken part in a brawl on 2 March 2003 in Sursee. The applicant accepted this sentence and the penal order entered into force on 29 November 2006, in accordance with Article 133 of the CCP (see paragraph 19 below).

18. On 1 January 2011 the Federal Code of Criminal Procedure entered into force and replaced the CCP (see paragraph 19 below).

B. Relevant domestic law and practice

19. Articles 60, 63, 80, 81, 83bis, 126, 129, 133, 153, 154, 154bis and 158 of the Code of Criminal Procedure of the Canton of Lucerne of 3 June 1957, as in force at the relevant time, provided as follows:

Article 60 – Duties of the Prefect

1 The Prefect investigates crimes, an offender’s criminal record and his personal circumstances.

(...)

Article 63 - Investigative Activities

"1The Prefect leads investigations.

(...)

Article 80 – Requirements for pre-trial detention

1 The accused normally remains at liberty.

2 The accused can be put in pre-trial detention if there is a strong suspicion that he has committed a crime or an offence and if one of the following requirements is applicable:

1. A reasonable suspicion that he will seek to evade the criminal proceedings or the anticipated sanction by absconding; [such] a suspicion will be further strengthened if the person is accused of having committed a serious crime or offence; (...)

2. Circumstances which give reason to fear that the accused would seek to compromise the efforts of the investigation; (...)

Article 81 – Arrest warrant

1 An arrest warrant must be issued in writing and provide the reason(s) for the arrest.

2 The following authorities are entitled to issue an arrest warrant: the Prefect, the Public Prosecutor, the Criminal Courts before which the case is pending, and their presidents.

Article 83bis – Detention order

1 An authority which issues an arrest warrant shall decide immediately after a questioning session with the accused whether he should be kept in detention. ... A detention order shall be issued in writing and provide the reasons for the pre-trial detention.

2 The accused has the right to appeal to the Court of Appeal against a detention order of the Prefect, the public prosecutor, a first-instance court or its president. (...)

Article 126 – Referral

If sufficient indications of a punishable offence exist, the Prefect shall refer the case to the competent court if the investigation cannot be closed by a penal order.

Article 129 – Application

If the District Court or the Court of Appeal has subject-matter jurisdiction, the Prefect may submit a written application regarding [the accused’s] guilt, the penalty [to be imposed] and [other] measures [to be taken] if he has not previously ordered pre-trial detention.

Article 133 – Acceptance of a penal order
(a) regarding imprisonment and community service

1 The accused may accept in writing, within twenty days, a penal order if:

(a) the penal order concerns imprisonment alone, or in combination with another penalty or measure;

(b) the penal order concerns community service alone, or in combination with another penalty or measure.

2 Provided that the accused accepts a penal order regarding a crime or an offence within the [above-stated] period, the penal order shall have legal effect from the day of the accused’s declaration of acceptance, if the public prosecutor has subsequently signed it off.

Article 153 – Supervision

1 The Public Prosecutor shall execute direct supervision over the Prefects. He shall supervise investigations, [with] particular [responsibility for] their proper and expeditious completion.

2 He can require reports on the progress of investigations, issue instructions and assist investigative activities.

Article 154 – Examination of case management

1 The Prefect shall regularly provide the Public Prosecutor with updates about pending investigations, especially those of long duration.

2 The Public Prosecutor shall examine the Prefect’s case management, give the necessary instructions and make reports to the Criminal Cases Commission.

Article 154bis – Status of the Prefect in pre-trial detention matters

In matters regarding pre-trial detention, the Prefect takes decisions freely and independently.

Article 158 – Bringing criminal charges

1 The Public Prosecutor shall bring criminal charges if,

(...)

(c) the Prefect has ordered the accused’s pre-trial detention and the District Court or the Court of Appeal has subject-matter jurisdiction.

2 The Public Prosecutor cannot file criminal charges if he has previously issued an arrest warrant or a pre-trial detention order against the accused or if he has dismissed an accused’s application for release from pre-trial detention.

COMPLAINT

20. The applicant complained under Article 5 § 3 of the Convention that the Prefect had not been independent from the public prosecutor and that his pre-trial detention had accordingly not been ordered by “a judge or other officer authorised by law to exercise judicial power” within the meaning of this provision.