Doubt in Favour of the Defendant, Guilty Beyond Reasonable Doubt
§1 of the Convention in respect of the applicant’s first arrest.
Regarding the second arrest the Court further found that “Had the
applicant indeed committed the crime and had he wanted to pressure the
victim or witnesses or destroy evidence, he would have had plenty of time
to do so before December 2005, and no evidence was submitted to the Court
of any such actions on the part of the applicant. There was, therefore, no
urgency for an arrest in order to stop an ongoing criminal activity and the
24 investigators assigned to the case could have used any extra time to verify
whether the complaints were prima facie well-founded. Instead of such
verification, the applicant was arrested on the day when the investigation
was initiated (…). More disturbingly, it follows from the statements of the
two alleged victims that one of the complaints was fabricated and the
investigating authority did not verify with him whether he had indeed made
that complaint, while the other was the result of the direct influence of officer
O., the same person who registered the first complaint against the applicant
… This renders both complaints irrelevant for the purposes of determining the
existence of a reasonable suspicion that the applicant had committed a crime,
while no other reason for his arrest was cited (…).The Court is aware of the
possibility of a victim retracting his or her statements because of a change of
heart or even coercion. However, whether or not a victim signed a complaint
can be verified by objective forensic evidence and there is nothing in the file to
suggest that the person had lied to the domestic court about not having signed
the complaint. Indeed, if it were shown that the victim had actually signed the
complaint but later retracted it under duress, the domestic court would have
had serious reasons for refusing the applicant’s request for release. No such
concerns were expressed by the court (…).629
So, as in the case of the first arrest, the Court concluded that it does not see
in the file any evidence to support a reasonable suspicion that the applicant
committed a crime. Therefore, the Court has found a violation of Article 5
§1 of the Convention in respect of the applicant’s second arrest too.
Similarly, in the case of Lazoroski630 the applicant complained under
Article 5, paragraph 1, 2 and 3 of the Convention that his deprivation of
liberty had not been based on any of the permissible grounds and that he
had not been informed of the reasons for his arrest. Namely, on 6 August
2003 the applicant received a phone call from an Intelligence Service
officer to come to the police station for a “talk”. J.S., a high ranking
official in the Intelligence Service gave a verbal order for the applicant’s
arrest on suspicion that he was armed and might leave the country. At
23.15 hours on the same day (6 August), the applicant was arrested by
the police near the border, he was taken to the police station, searched,
and according to the report he was found with a mobile phone, passport,
identity card and a licence to carry arms. According to the parties, a
629
630
138
Ibid. §76-78.
Lazoroski v. the former Yugoslav Republic of Macedonia, no. 4922/04, ECHR, 08.01.2010.
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