Case of j.m. v. Denmark

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


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


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


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.


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.


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.


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


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.


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.


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


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.”


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.


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.


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


“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


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.


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.


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

Documents

Case of j.m. v. Denmark