CASE OF QING v. PORTUGAL
No violation of Article 5 - Right to liberty and security (Article 5-1 - Lawful arrest or detention;Article 5-1-c - Reasonable suspicion);Violation of Article 5 - Right to liberty and security (Article 5-3 - Length of pre-trial detention;Reasonableness of pre-trial detention);No violation of Article 14+5-1-c - Prohibition of discrimination (Article 14 - Discrimination) (Article 5-1-c - Reasonable suspicion;Article 5 - Right to liberty and security);Pecuniary damage - claim dismissed (Article 41 - Pecuniary damage;Just satisfaction);Non-pecuniary damage - award (Article 41 - Non-pecuniary damage;Just satisfaction)
András Sajó;Dmitry Dedov;Erik Møse;Khanlar Hajiyev;Linos-Alexandre Sicilianos;Mirjana Lazarova Trajkovska;Paulo Pinto De Albuquerque
5. The applicant was born in 1964 and lives in Parede. At the material time, she was working as a Chinese-Portuguese translator and was married to a Portuguese national. 6. On 16 December 2010 criminal proceedings were initiated against the applicant, her husband and others by a public prosecutor of the Central Department of Investigation and Prosecution (Departamento Central de Investigação e Ação Penal) in Lisbon on allegations of aiding illegal immigration, money laundering and forgery. 7. In April 2011 the applicant sent letters to the Attorney General (Procurador-Geral da República) and Director of the Immigration and Borders Service (Serviço de Estrangeiros e Fronteiras), informing them that she knew she was being investigated, and that she was available to present herself to the judicial authorities to be questioned and considered as a defendant. The letters read, in so far as relevant, as follows: “[The applicant] is ready to be made a defendant and questioned. She hereby suggests the following dates for these procedural steps, for which she volunteers to attend when summoned: 30 April – Saturday, at any time; 1 May – Sunday, at any time; 7, 8, 9, 10, 17, 18 and 20 May, at any time.” 8. On 9 June 2011 the public prosecutor issued an arrest warrant against the applicant on the basis of Articles 254 and 257 § 1 of the Code of Criminal Procedure (hereinafter “the CCP”), as the case material provided sufficient grounds for believing that she might abscond, obstruct the investigation or continue the alleged criminal activity. The arrest warrant reads, in so far as relevant, as follows: “In view of the above, it is essential to question the suspect and thus assess the application of other preventive measures in addition to providing information on identity and residence [termo de identidade e residência]. Having regard to the strong grounds that exist regarding the commission of the acts described, which are crimes allowing for the application of pre-trial detention, and taking into account that, in the present case, there is a risk of absconding, a risk of continuing the criminal activity and obstructing the investigation ... I order Qing Xu’s arrest... to bring her before the investigating judge...” 9. On 14 June 2011 the applicant was arrested at her home between 5 and 6 a.m. She was questioned by an investigating judge of the Lisbon Criminal Investigation Court over the following two days, 15 and 16 June 2011. 10. The applicant challenged the arrest before the investigating judge and submitted observations with regard to the preventive measure she thought should be applied. She argued that there was no reason to believe that she would abscond and, as such, the arrest warrant had been issued by the public prosecutor unlawfully. She further stated that she did not have a criminal record; she had two young children who lived with her. She further claimed that she had a permanent residence in Portugal, where she had been living for at least twenty years. She also stated that she was ready to hand over her passport, and that prohibiting her from going to places attended by immigrants and contacting the other defendants in the proceedings would be adequate preventive measures. 11. On 16 June 2011 the investigating judge dismissed her request, noting as follows: “In the present case it appears evident that there is a risk of the defendant absconding, given that she is a Chinese national and once confronted with the seriousness of the facts attributed to her, she could flee from Portugal to her home country. ... the crimes of aiding illegal immigration and money laundering allow the application of the preventive measure of pre-trial detention in respect of the defendant. The requirements established under Article 257 § 1 of the CCP have thus been met and the defendant’s appeal is dismissed.” 12. The investigating judge also remanded the applicant in custody for the duration of the investigation, noting as follows: “The acts committed by the defendants are objectively serious. [They] are Chinese nationals, with the exception of defendant J.G. [the applicant’s husband], raising fears that when confronted with the seriousness of the facts attributed to them, they would evade justice and flee to their home country. It is also evident that there is a risk the investigation will be obstructed with regard to the gathering of evidence, as there are numerous investigative steps to be carried out, namely the examination of witnesses. ... taking into account the profits obtained from the criminal activity, it is also evident that there is a risk that the criminal activity will continue. ... The defendants Qing Xu and K.G. are primarily responsible for the criminal organisation acting in Portugal... Thus, having regard to the severity and multiplicity of the crimes against them, the risk of absconding and ... obstructing the investigation and finally, it being predicted that a custodial sentence will be imposed after trial, only detention on remand would be adequate and proportionate to the severity of the facts and the preventive aims required in this particular case. With regard to defendants B.G., J.G. [the applicant’s husband] and M.M., the application of other preventive measures which would not deprive them of liberty [medidas não privativas de liberdade] would be proportionate to the purpose of preventing the above-mentioned risks. In view of the above: - defendants K.G, Qing Xu and Z.M. should ... be held in pre-trial detention pursuant to Articles 191, 193, 196, 202 § 1 (a) and 204 (a), (b) and (c) of the Code of Criminal Procedure. - defendants B.G, M.M. and J.G. [the applicant’s husband] are prohibited from leaving Portugal and must surrender their passports, prohibited from contacting each other, and must attend their nearest police station on a weekly basis ... the prohibition on contact does not apply to J.G. and defendant Qing Xu or to B.G. and defendant K.G., as they live together.” 13. The applicant appealed against the decision of the investigating judge to the Lisbon Court of Appeal. She complained that there had not been any justification for her arrest or for the application of the custodial measure as her family situation, place of residence and other personal circumstances had not been taken into account when the court had ordered her detention. She also argued that she had voluntarily shown that she was available to be questioned by the authorities in April 2011. 14. On 13 July 2011 the public prosecutor in charge of the criminal case asked the investigating judge to classify the proceedings as particularly complex, noting that more time was needed to complete the investigation. 15. On 5 August 2011 the investigating judge accepted the public prosecutor’s request to classify the proceedings as particularly complex and extended the pre-trial detention to twelve months, taking into account the number of applicants and crimes that were being investigated. 16. On 14 September 2011 the Lisbon Court of Appeal dismissed the applicant’s appeal against the arrest warrant and upheld the court’s decision of 16 June 2011 to hold her in pre-trial detention. The court held, inter alia, the following in relation to the lawfulness of the arrest warrant: “... The public prosecutor’s reasoning that ‘there were grounds for considering that [the applicant] would not present herself to the authorities on a scheduled date could not eventually be justified’; however, one cannot say that the arrest warrant was unlawful because of that.” In relation to the necessity of the detention on remand, it noted that: “... It can be considered that there is ‘no high risk of the defendant absconding’ since on 29 April 2011, aware of the ongoing criminal proceedings against her, she nevertheless volunteered to be questioned [by the authorities] and even detained. Furthermore, she did not flee from her residence or the country. However, neither her family circumstances nor the measure of electronic surveillance are, at present, capable of safeguarding the risk [relating to the] gathering of evidence... Indeed, it would not be possible to safeguard the risk for the investigation, which is very high, especially given the nature of the Chinese community in Portugal. And it does not avoid the risk of the criminal activity continuing especially since, as said by the public prosecutor at first instance, ‘it was mainly done from home, and the contact was established with third parties.’” 17. The applicant filed a request for clarification with the Lisbon Court of Appeal regarding its decision of 14 September. On 2 November 2011 it was rejected. 18. Between October 2011 and February 2012 the applicant lodged three requests with the investigating judge of the Lisbon Criminal Investigation Court asking for her release and the remand in custody to be replaced with police supervision pending trial or house arrest with electronic surveillance, reiterating that there was no risk of her absconding or continuing criminal activity, that she had contacted the police voluntarily, that she had not committed the alleged crimes, that she was a mother of two children living in Portugal, and that she had a permanent place of residence there. 19. On 12 October 2011, 13 December 2011 and 13 February 2012 the investigating judge of the Lisbon Criminal Investigation Court upheld the decision to maintain her in pre-trial detention, noting as follows: “... the requirements for the order [of pre-trial detention] remain unchanged and strengthened. For that reason, [the defendants] should remain in pre-trial detention pending trial (Article 213 § 1 a) of the CCP).” “The arguments submitted by the defendant [the applicant] do not interfere with the reasons on which the pre-trial detention was based. It is therefore our understanding that these reasons remain valid.” “The defendant claims equal treatment in the judicial decisions. In her arguments she did not inform [the court] of any new circumstances which could affect the reasons that justified her detention on remand. The reasons which were already analysed in an appeal remain unchanged and there are therefore no grounds capable of mitigating the preventive requirements which justified the detention on remand. I therefore dismiss the defendant’s request and order that she remains in pre-trial detention pending trial.” 20. Between October 2011 and February 2012 the applicant also lodged two requests with the Prosecutor General’s Office to have the criminal inquiry expedited (pedido de aceleração processual). 21. On 9 November 2011 and 20 February 2012 the Prosecutor General’s Office rejected the request. It substantiated its decisions by the fact that the requests were manifestly ill-founded, given the complexity of the proceedings and the fact that the investigation was under way. 22. On 19 March, 30 May, 30 August and 19 November 2012 the investigating judge reviewed the grounds for application of the applicant’s pre-trial detention, in accordance with Article 213 § 1 of the CCP. He noted that they remained unchanged and, therefore, upheld the custodial measure applied in respect of the applicant. 23. On an unspecified date the applicant was indicted and her case sent to the Lisbon Criminal Court for trial. 24. On 29 January 2013 the investigating judge decided to release the applicant from pre-trial detention and place her under house arrest with electronic surveillance. The relevant parts of the decision read as follows: “From the analysis of the case file ... there are no new facts capable of affecting the strong grounds surrounding the acts attributable to the defendants; nor does it seem that the risks mentioned [in the 16 June 2011 order] have ceased to exist. From the evidence provided to date, namely with regard to their personal and family circumstances, less severe preventive measures can be applied in respect of the defendants. The risk of absconding still exists; however, it can be safeguarded through electronic surveillance.” 25. On 30 January 2013 the applicant was released from pre-trial detention. 26. On 20 February 2013 the Lisbon Criminal Court delivered its judgment. The applicant was acquitted of money laundering and forgery. She was convicted of aiding illegal immigration and sentenced to five years’ imprisonment, although the sentence was suspended on the condition that she made an annual payment of EUR 1,500. On the same day she was released from house arrest. 27. On an unspecified date she appealed against the judgment to the Lisbon Court of Appeal. According to the latest information received on 29 April 2015, the proceedings are still pending.