Legal Journals

ECtHR Finds Pre-Trial Detention Justified in International Drug-Trafficking Case

By dpurisch

In Shabani v. Switzerland (application no. 29044/06), a 4-3 decision, the European Court of Human Rights (ECtHR) ruled last Thursday (11/5) that a lengthy pre-trial detention did not violate the right to liberty of a suspected leader of a drug trafficking organization.

The applicant, Mr. Ragip Shabani, was denied the option of posting bail and was then subject to a pre-trial detention lasting over five years. He had originally been arrested on August 2, 2003, on suspicions of taking a leading role in a drug trafficking operation believed to involve fourteen-hundred kilograms of heroin and cocaine. After losing his appeal concerning Switzerland?s decision not to allow him to post bail, he turned to the ECtHR in 2006 while investigations were still underway, claiming that his lengthy detention violated his right to liberty. Subsequently, Mr. Shabani was indicted in December 2007, and his trial was scheduled for March 2008 but was later delayed until August 2008 due to a lack of adequate security staff. He was convicted on October 30, 2008.

The ECtHR recalled its previous findings that a government?s reasonable suspicion that someone had committed an offence could only justify detention for a limited period of time; after that time had lapsed, the authorities would have to give ?relevant? and ?sufficient? reasons for the continued detention and show that they had displayed ?special diligence? in the conduct of the proceedings. The Court found that the government?s reasons for the continued detention satisfied these additional conditions. The government?s concerns that Mr. Shabani might abscond or collude if given the chance to post bail, as well as the potentially dubious origin of the funds used, justified its denial of that opportunity. And the proceedings were understandably long, since investigating an underground international criminal organization is a complex operation; in this regard, the Court found it especially significant that there had been no periods of inactivity during the proceedings.

In a short dissent, three judges rejected the ?no period of inactivity? logic, pointing out that it could potentially justify indefinite detentions. They further argued that the delay in the trial?s starting date had been insufficiently explained; after more than four years with Mr. Shabani in detention, Switzerland should have been particularly cognizant of the need to start trial immediately after the indictment was filed. In their view, Switzerland?s lack of diligence, coupled with the lengthy detention, constituted a violation of Mr. Shabani?s right to liberty.

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Full post as published by Harvard International Law Journal Digest on November 15, 2009 (boomark / email).