Individual Application

The Facts

The applicant was indicted for the offences of intentional injury and threat, and the prosecution phase commenced upon the acceptance of the indictment by the criminal court of first instance (criminal court). At the second hearing of the proceedings, the court imposed a one-day disciplinary detention on the applicant for disrupting the order of the hearing. On the same date, the criminal court submitted the hearing record concerning the disciplinary detention to the incumbent chief public prosecutor’s office for execution. The applicant was released after serving the disciplinary detention.

The Applicant’s Allegations

The applicant maintained that his right to seek judicial review of a decision had been violated on account of having been definitively sentenced to one day of disciplinary detention for disrupting the order of the hearing.

The Court’s Assessment

The disciplinary detention imposed for the purpose of maintaining order and discipline during the hearing constitutes a court decision and, in principle, is not subject to appeal under the Code of Criminal Procedure no. 5271. Nor does the Code contain any exceptional provision allowing an appeal against disciplinary detention orders imposed for disrupting the order of the hearing.

Any means employed to restrict the right to seek judicial review of a decision must be suitable for achieving the intended aim and entail the least possible interference with the right. A less intrusive measure can only be adopted if it is capable of accomplishing the same purpose. Where a less restrictive means would fail to achieve the intended purpose, choosing a more restrictive measure does not contravene the Constitution. Beyond this, it is within the legislature’s discretion to decide which form of interference or restrictive measure to employ.

In addition, any interference with the right to seek judicial review of a decision must be proportionate, requiring a fair balance between the aim pursued and the means employed. Accordingly, a reasonable balance must be struck between the legitimate aim sought through the interference and the individual’s interest in obtaining judicial review of the decision against him. The restriction must not impose an excessive or disproportionate burden on the individual.

It is evident that the absence of an appellate remedy for disciplinary detention orders constitutes a suitable means of ensuring the uninterrupted maintenance of the judge’s authority to conduct proceedings in an orderly and disciplined manner, thus securing a fair trial. However, it must be examined whether this means is necessary. Necessity entails choosing a means that constitutes the least possible interference with the right in question so as to achieve the aim pursued. The legislature has the discretion to determine which measures are necessary to ensure the uninterrupted authority of judicial bodies. Nevertheless, the significance of ensuring that decisions which entail deprivation of liberty are subject to judicial review cannot be overlooked.

Sanctions involving deprivation of liberty cannot be regarded as lenient in nature. The aim of ensuring uninterrupted authority of the judge may be accomplished through measures other than the immediate execution of the disciplinary detention order. This aim can be attained by providing for an expedited appellate remedy against such decisions, allowing the review to be completed within a short period. It has accordingly been concluded that the interference with the right to seek judicial review of a disciplinary detention order was not necessary, as other possible alternatives were not considered.

Consequently, the Court has found a violation of the right to seek judicial review of a decision.