Facts
The Criminal Court of the Republic and Canton of Geneva convicted on 27 September 2012 the accused of obstructing criminal proceedings (art. 305 SCC) and illegal entry and stay (art. 115 para. 1 TSOA. a and b NE), sentencing him to 18 months’ imprisonment, with credit for 533 days of pre-trial detention served, suspended and subject to a probationary period of three years. The Public Prosecutor’s Office immediately announced its appeal and requested that the accused be remanded in custody for security reasons. On the same day, the Criminal Court ordered this preventive detention for security reasons.
On 2 October 2012, the President of the Criminal Chamber of Appeal and Revision of the Court of Justice of Geneva maintained the accused in detention for security reasons until the appeal judgment. The appeal hearing was scheduled for 12 and 13 March 2013. On 8 January 2013, the accused applied for immediate release, but the President of the Criminal Chamber dismissed the application by order of 18 January 2013 on the ground that no legal provision provided for periodic review of detention for security reasons during the appeal procedure.
The accused then filed a criminal appeal with the Federal Supreme Court, seeking annulment of the decision, a finding that his detention since 3 January 2013 was unlawful, and his immediate release. The Federal Supreme Court dismissed the appeal.
Considerations
The Federal Supreme Court recalls that pre-trial detention, including detention for security reasons, must have a legal basis, serve a public interest and comply with the principle of proportionality (art. 31 para. 1 and 36 SCC, art. 5 ECHR). It must be justified by sufficient grounds for suspicion, a risk of absconding, collusion or reoffending (art. 221 para. 1 TSOA. a, b and c CrimPC).
The accused does not dispute that these conditions are met in the present case. His complaint concerns solely the lack of automatic periodic review of detention for security reasons since 3 January 2013, the date on which the initial three-month detention period would have expired. He alleges a violation of art. 31 para. 1 SCC and of arts. 229 para. 3 TSOA. b and 227 para. 7 CrimPC, arguing that the detention should have been set for a maximum period of three months, renewable.
The Federal Supreme Court recalls its case law according to which periodic review of detention for security reasons is necessary during the pre-trial phase, by virtue of the reference to art. 227 para. 7 CrimPC in art. 229 para. 3 CrimPC. However, this obligation does not extend to the appeal procedure. Indeed, arts. 231 to 233 CrimPC confer specific powers on the appellate court in respect of detention for security reasons, including the possibility of maintaining or ordering such detention, but without providing for automatic periodic review. Unlike the…