Human rights handbooks, No. 5

The right to libertyand securityof the person

A guideto the implementation

of Article 5of the European Convention

on Human Rights

Monica Macovei

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Human rights handbooks, No. 5

The right to libertyand securityof the person

A guideto the implementation

of Article 5of the European Convention

on Human Rights

Monica Macovei

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Directorate General of Human RightsCouncil of EuropeF-67075 Strasbourg Cedex

© Council of Europe, 2002. Digital imagery © 2002 Photodisc/Getty Images

First impression, March 2002Reprinted December 2004Printed in Germany

The opinions expressed inthis publication are those ofthe author and do not en-gage the responsibility of theCouncil of Europe. Theyshould not be regarded asplacing upon the legal in-struments mentioned in itany official interpretationcapable of binding the gov-ernments of member states,the Council of Europe’sstatutory organs or any or-gan set up by virtue of theEuropean Convention onHuman Rights.

The “Human rights handbooks” series

Handbook No. 1: The right to respect for private andfamily life. A guide to the implementation of Article8 of the European Convention on Human Rights(2001)

Handbook No. 2: Freedom of expression. A guide to theimplementation of Article 10 of the EuropeanConvention on Human Rights (2001)

Handbook No. 3: The right to a fair trial. A guide to theimplementation of Article 6 of the EuropeanConvention on Human Rights (2001)

Handbook No. 4: The right to property. A guide to theimplementation of Article 1 of Protocol No. 1 to theEuropean Convention on Human Rights (2001)

Handbook No. 5: The right to liberty and security ofthe person. A guide to the implementation of Article5 of the European Convention on Human Rights(2002)

Handbook No. 6: The prohibition of torture. A guide tothe implementation of Article 3 of the EuropeanConvention on Human Rights (2003)

Précis no 1: Le droit au respect de la vie privée etfamiliale. Un guide sur la mise en œuvre del’article 8 de la Convention européenne des Droitsde l’Homme (2003)

Précis no 2: La liberté d’expression. Un guide sur lamise en œuvre de l’article 10 de la Conventioneuropéenne des Droits de l’Homme (2003)

Précis no 3: Le droit à un procès équitable. Un guidesur la mise en œuvre de l’article 6 de la Conventioneuropéenne des Droits de l’Homme (2003)

Précis no 4: Le droit à la propriété. Un guide sur la miseen œuvre de l’article 1 du Protocole nº 1 à laConvention européenne des Droits de l’Homme(2003)

Précis no 5: Le droit à la liberté et la sûreté de lapersonne. Un guide sur la mise en œuvre del’article 5 de la Convention européenne des Droitsde l’Homme (2003)

Précis no 6: La prohibition de la torture. Un guide surla mise en œuvre de l’article 3 de la Conventioneuropéenne des Droits de l’Homme (2003)

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Contents

1. General considerations . . . . . . . . . . . 22

2. Suspected offenders . . . . . . . . . . . . . . 22Production before the competent legal authority . 23Reasonable suspicion . . . . . . . . . . . . . . . . . . . . . 25The need for pre-trial detention . . . . . . . . . . . . . 27Justifying pre-trial detention . . . . . . . . . . . . . . . . 28The risk of interference with the course of justice 30The need to prevent crime . . . . . . . . . . . . . . . . . 32The need to maintain public order . . . . . . . . . . . 32Bail conditions . . . . . . . . . . . . . . . . . . . . . . . . . . 33The length of pre-trial detention . . . . . . . . . . . . . 34

3. Convicted offenders . . . . . . . . . . . . . . 37

4. Extradition . . . . . . . . . . . . . . . . . . . . . 38

Section III: Other justifications for depriva-tion of liberty . . . . . . . . . . . . . . . . . . . . 41

1. Court order and obligation prescribed bylaw . . . . . . . . . . . . . . . . . . . . . . . . . . 41

2. Detention of minors . . . . . . . . . . . . . . 42

3. Detention of persons of unsound mind,alcoholics, drug addicts, vagrantsor in order to prevent the spread ofinfectious diseases . . . . . . . . . . . . . . . 43

What the Convention says . . . . . . . . . . . . 5

Section I: presumption of liberty; require-ment of lawfulness; concept of detention 8

1. The presumption in favour of liberty . . 8

2. The lawfulness of the detention . . . . . . 9Formal compliance with national law . . . . . . . . . . 9The importance of a continuing legal basis . . . . . 10Misguided reliance on domestic practice . . . . . . 11Compliance with the Convention. The Conventionunderstanding of lawfulness . . . . . . . . . . . . . . . . 12Incompatibility with Convention provisions . . . . 12Arbitrary use of power . . . . . . . . . . . . . . . . . . . . 12Accessibility, foreseeability and other guarantees 14

3. What constitutes a deprivationof liberty? . . . . . . . . . . . . . . . . . . . . . 17“Arrest” and “detention” . . . . . . . . . . . . . . . . . . . 17Elements to establish that detention exists . . . . . . 17The nature of the confinement . . . . . . . . . . . . . . 17The status of the person affected . . . . . . . . . . . . . 19Acts by private individuals . . . . . . . . . . . . . . . . . 20Action overseas . . . . . . . . . . . . . . . . . . . . . . . . . 20

Section II: Deprivation of liberty as part ofthe criminal process . . . . . . . . . . . . . . . 22

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Section IV: Duty to give reasons promptlyfor arrest . . . . . . . . . . . . . . . . . . . . . . . . 46

1. When the duty arises . . . . . . . . . . . . . 46

2. The nature of the explanation . . . . . . 46

3. The intelligibility of the explanation . 47

4. Timing . . . . . . . . . . . . . . . . . . . . . . . . 48

Section V: Duty to bring detained personspromptly before a judicial officer and fortrial within a reasonable time or release 50

1. The character of the competent legalauthority . . . . . . . . . . . . . . . . . . . . . . 50

2. The role of the competent legalauthority . . . . . . . . . . . . . . . . . . . . . . 52

3. The time-frame for supervision . . . . . 53

4. Emergencies . . . . . . . . . . . . . . . . . . . 56

5. Continuing supervision . . . . . . . . . . . 58

Section VI: Challenging the legality of thedetention . . . . . . . . . . . . . . . . . . . . . . . . 60

1. The need for a court . . . . . . . . . . . . . 60

2. Personal appearance . . . . . . . . . . . . . 61

3. Access to legal advice, adversarial pro-ceedings and equality of arms . . . . . . 61

4. Determining legality . . . . . . . . . . . . . 63

5. Decisions must be taken speedily . . . 64

6. Link with Article 5 (3) . . . . . . . . . . . . 65

Section VII: Compensation . . . . . . . . . . 67

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What the Convention says

Article 5 of the Convention: right toliberty and security1. Everyone has the right to liberty and security of per-

son. No one shall be deprived of his liberty save in thefollowing cases and in accordance with a procedure pre-scribed by law:

a. the lawful detention of a person after conviction by acompetent court;

b. the lawful arrest or detention of a person for non-com-pliance with the lawful order of a court or in order tosecure the fulfilment of any obligation prescribed bylaw;

c. the lawful arrest or detention of a person effected for thepurpose of bringing before the competent legal author-ity on reasonable suspicion of having committed an of-fence or when it is reasonably considered necessary toprevent his committing an offence or fleeing after hav-ing done so;

d. the detention of a minor by lawful order for the purposeof educational supervision or his lawful detention forthe purpose of bringing him before the competent legalauthority;

e. the lawful detention of persons for the prevention of thespreading of infectious diseases, of persons of unsoundmind, alcoholics or drug addicts or vagrants;

f. the lawful arrest or detention of a person to prevent his

effecting an unauthorised entry into the country or of aperson against whom action is being taken with a viewto deportation or extradition.

2. Everyone who is arrested shall be informed promptly, ina language which he understands, of the reasons for hisarrest and of any charge against him.

3. Everyone arrested or detained in accordance with theprovisions of paragraph 1.c of this Article shall bebrought promptly before a judge or other officer author-ised by law to exercise judicial power and shall be enti-tled to trial within a reasonable time or to releasepending trial. Release may be conditioned by guaran-tees to appear for trial.

4. Everyone who is deprived of his liberty by arrest or de-tention shall be entitled to take proceedings by whichthe lawfulness of his detention shall be decided speedilyby a court and his release ordered if the detention is notlawful;

5. Everyone who has been the victim of arrest or detentionin contravention of the provisions of this Article shallhave an enforceable right to compensation.

Article 1 of Protocol No. 4

No one shall be deprived of his liberty merely on theground of inability to fulfil a contractual obligation.Article 5 of the European Convention embodies

a key element in the protection of an individual’shuman rights. Personal liberty is a fundamental con-dition, which everyone should generally enjoy. Its

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deprivation is something that is also likely to have adirect and adverse effect on the enjoyment of manyof the other rights, ranging from the right to familyand private life, through the right to freedom of as-sembly, association and expression to the right tofreedom of movement. Furthermore, any depriva-tion of liberty will invariably put the person affectedinto an extremely vulnerable position, exposing himor her to the risk of being subjected to torture andinhuman and degrading treatment. Judges shouldconstantly keep in mind that in order for the guaran-tee of liberty to be meaningful, any deprivation of itshould always be exceptional, objectively justifiedand of no longer duration than absolutely necessary.

The “right to liberty and security” is a uniqueright, as the expression has to be read as a whole.“Security of a person” must be understood in thecontext of physical liberty and it cannot be inter-preted as to referring to different matters (such as aduty on the state to give someone personal protec-tion form an attack by others, or right to social secu-rity). The guarantee of “security of person” serves tounderline a requirement that the authorities inStrasbourg have developed when interpreting andexplaining the right to liberty in Article 5.

The European Court has stressed the impor-tance of the right to liberty and security in manycases. Thus, in Kurt v. Turkey,

1 the Court held:

…that the authors of the Convention reinforced the in-dividual’s protection against arbitrary deprivation of

his or her liberty by guaranteeing a corpus of substan-tive rights which are intended to minimise the risks ofarbitrariness by allowing the act of deprivation of lib-erty to be amenable to independent judicial scrutinyand by securing the accountability of the authoritiesfor that act. […] What is at stake is both the protectionof the physical liberty of individuals as well as theirpersonal security in a context which, in the absence ofsafeguards, could result in a subversion of the rule oflaw and place detainees beyond the reach of the mostrudimentary forms of legal protection.In seeking to give effect to the requirements of

Article 5, the interpretation of text by the EuropeanCourt of Human Rights is vital. As with all the articlesof the European Convention, the European Courthas interpreted every provision of Article 5 in a pur-poseful and dynamic manner, inevitably taking onebeyond the literal terms of the text of the Conventionin determining what particular provisions entail.Many such terms have been given an autonomousmeaning by the European Court. The purposive inter-pretation proceeds on the basis that the object andpurpose of the European Convention must bereached when determining what Article 5 and itsother provisions require. This approach is consistentwith the rules of treaty interpretation and it is also areflection of the constitutional character of the Euro-pean Convention. It is thus inappropriate to see therestrictions imposed by Article 5 as ones whichshould be narrowly construed. The aim of the Con-

1 Kurt v. Turkey, judgmentof 25 May 1998,para. 123.

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vention is to secure real rights for individuals, whichmeans that the rights should be ones with a substan-tive content and not simply affording a mere formalguarantee. Consequently, the limitations on the rightto liberty should be seen as exceptional and only per-mitted where a cogent justification for them is pro-vided; their implementation cannot begin with anyassumption that anything which public authoritiespropose is necessarily appropriate. The dynamic in-terpretation embodies a willingness to re-examinethe interpretation already given to a particular provi-

sion in the light of changing circumstances. The sig-nificance of the European Court’s interpretation ofthe legal texts cannot be underestimated. In order toachieve a full compliance with obligations under Arti-cle 5 (as well as under the entire Convention) judgesmust observe the European Court’s dynamic case-law.

The subsequent sections will address the fun-damental principles and rules found in Article 5 ofthe European Convention on the basis of their inter-pretation and application to concrete situations bythe Court in Strasbourg.

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Section I: presumption ofliberty; requirement oflawfulness; concept ofdetention

1. The presumption in favour ofliberty

Paragraph 1 of Article 5 of the European Con-vention points to there being a presumption thateveryone should enjoy liberty and that, therefore, aperson can only be deprived of it in exceptional cir-cumstances. Thus it begins with an unqualified as-sertion of the right, “Everyone has the right to libertyand security of the person” and this is followed bythe structure that “No one shall be deprived of lib-erty save in the following cases and in accordancewith a procedure prescribed by law”.

Furthermore, the presumption in favour of libertyis underlined by the imperative requirement under Arti-cle 5 to ensure that liberty should both be lost for nolonger than is absolutely necessary and be capable ofbeing readily recovered where such loss is not justified.The former is evident in the stipulation that suspectedoffenders “shall be entitled to trial within a reasonabletime” and the latter is found in the prescription thateveryone deprived of liberty “be entitled to take pro-

ceedings by which the lawfulness of his detention shallbe decided speedily by a court and his release orderedif the detention is not lawful”. There is thus a clear bur-den of proof on those who have taken away some-one’s liberty to establish not only that the powerunder which it occurred falls within one of the groundsspecified in Article 5 but also that its exercise was ap-plicable to the particular situation in which it was used.

This burden necessarily requires a self-criticalanalysis by those who can exercise powers which maylead to a deprivation of liberty to ensure that, whenthey do use them, the limits imposed by Article 5 arecontinually observed. However, the assurance thatsuch an analysis is both undertaken and is effective isheavily dependent upon a sceptical perspective beingadopted on the part of judges when performing thekey supervisory function assigned to them by Article 5(3) and (4). In any case, where a deprivation of liberty iscontested it will be essential for a judge to start fromthe proposition that the person affected should befree. Pursuant to such a proposition the judge shouldnot only expect and require reasons to be advancedfor this deprivation of liberty but also subject them toclose scrutiny to see whether they actually support theaction that has been taken. Anything less than thatwould entail an abandonment of the rule of law and asurrender to arbitrary treatment.

The unacceptability of any tendency in this di-rection can be seen in the European Court’s conclu-sion that a person’s continued detention could not

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be justified in Mansur v. Turkey, 2 when the national

court repeatedly authorised the continuation of de-tention using invariably identical and indeed stere-otypical form of words, often without furtherelaboration. In taking such an approach the nationaljudge was merely rubber-stamping the decision ofthe law-enforcement officials and failing to exercisean independent critical judgement. This can neverbe consistent with the requirement that a depriva-tion of liberty be justified.

2. The lawfulness of the detention

Paragraph 1 of Article 5 requires that any depri-vation of liberty be “in accordance with a procedureprescribed by law”. Further, each sub-paragraphproviding for the cases where deprivation of libertyis permitted supposes that the measure be “lawful”.The requirement of lawfulness has been interpretedas referring to both procedure and substance.Moreover, lawfulness is understood to mean thatany detention must be in accordance with thenational law and the European Convention andmust not be arbitrary.

Formal compliance with national law

It is, of course, essential to check first whetherthe requirements of the relevant national law have

2 8 June 1995.3 Although accepting that it

is principally for theauthorities of a State party– and especially thecourts – to interpret andapply its law, the Courtreserves the power toreview whether that lawhas in fact been compliedwith; and in some of thecases considered below ithas reached a differentconclusion from thatarrived at by thoseauthorities.

4 21 February 1990.5 20 March 1997.

been satisfied when someone has been deprived ofhis or her liberty. This may be a matter of determin-ing whether an essential procedure has been fol-lowed, or assessing whether there is a legal provisioncovering the action taken. The latter may be a matterof construing the scope of a particular provision butit may also be a question of establishing that thesort of factual situation to which such a provisionapplied actually existed. There are a significantnumber of instances where the European Court hasfound that these have still not been performed andthey should not, therefore, be taken for granted.

3

Thus in Van der Leer v. the Netherlands3 a woman had

been confined in a psychiatric hospital, but thejudge who had made the order had failed to observethe legislative requirement that she be heard before-hand. Indeed, as the Court noted, the judge had noteven bothered to explain why he had departed fromthe opinion of the psychiatrist dealing with thewoman’s case that it would not be devoid of pur-pose or medically inadvisable for her to be heard bya judge. It is irrelevant for the purposes of applyingthe European Convention that the woman’s con-finement might on its merits have been appropriateand consistent in this respect with the grounds au-thorised by Article 5; wherever there has been a fail-ure to fulfil a procedural requirement before libertycan be deprived the arrest or detention must neces-sarily be regarded as improper.

Similarly, in Lukanov v. Bulgaria5 one of the coun-

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try’s former prime ministers had been deprived ofhis liberty in relation to the grant of certain publicfunds to developing countries. Although deprivationof liberty in connection with criminal offences is po-tentially compatible with the Convention, there wasa failure to establish in this case that the activity giv-ing rise to the loss of liberty was actually unlawful,let alone a criminal offence. This impugned activityof the applicant could not, therefore, provide a basisin Bulgarian law for depriving him of his liberty. Fur-thermore, even if the criminal prohibition on seekingan advantage for oneself might have been poten-tially applicable to the making of these grants (whichseemed unlikely), there was no fact or informationwhich pointed to the existence of a reasonable sus-picion that the prime minister had actually soughtsuch an advantage. His loss of liberty was thus en-tirely without any legal foundation and was an in-contestable violation of Article 5.

This was also the case in Steel v. the United King-dom

6 with respect to some of the applicants who had

been arrested when handing out leaflets and holdingup banners in the course of a protest about the saleof weapons. Although there was a power of arrestwhere a breach of the peace was apprehended, theirbehaviour did not provide the police with any justifi-cation for fearing that this would occur; there was noevidence that they had significantly obstructed orattempted to obstruct persons attending the confer-ence or had taken any other action that was likely to

provoke them to violence. The European Court heldthat the arrest and subsequent detention of theseapplicants under the breach of the peace power wasunlawful.

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The importance of a continuing legal basis

The requirement of the legal basis for any dep-rivation of liberty extends to the whole period forwhich it lasts. There have been a number of in-stances where violations have been found becausethe legal basis for the deprivation of liberty, despitebeing originally lawful, had at some point hadceased to exist. Thus in Quinn v. France

8 the release

had been ordered by a court of a person who hadpreviously been remanded in custody entirely in ac-cordance with French law. However, for some elevenhours after that order had been made, the applicanthad remained in custody without being notified ofthe order or any move being made to commence itsexecution. Apparently, the prosecutor’s office hadneeded this time to set in motion extradition pro-ceedings against him which would then haveavoided having to comply with the order for release.The European Court acknowledged that there couldbe some delay in complying with such an order, butheld that the respective interval was clearly too longto satisfy the Article 5 requirement.

In Labita v. Italy, a violation of Article 5 wasfound where the delay of over 10 hours in release

6 23 September 1998.7 See also Raninen v. Fin-

land, 16 December 1997,where an arrest of some-one who had refused toperform his national serv-ice had been contrary toFinnish law, because hehad not first been askedwhether he would persistin this refusal.

8 22 March 1995.

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from prison was attributable to the absence of theregistration officer, which prevented verification ofwhether there were any other reasons for keepingthe applicant in detention.

9 In K.-F. v. Germany,

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where national law granted the authorities thepower to detain a person up to twelve hours in or-der to establish his or her identity, the applicant waskept in custody forty minutes longer than thetwelve-hour limit. The German Government claimedthat this had been required in order to record theapplicant’s personal details. The European Courtobserved that this recording of details was part ofthe measures for checking identity and it should,therefore, have been carried out during the periodof detention which was allotted by the law for thispurpose. In the circumstances the detention of theapplicant had to be regarded as having become un-lawful and the Court found a violation of Article 5.

11

Misguided reliance on domestic practice

Violations of Article 5 have been found by theEuropean Court in cases where the domesticauthorities relied on longstanding practices whoselegality has not even been questioned. Thus inBaranowski v. Poland

12 the applicant had initially

been properly arrested and then detained on re-mand in connection with fraud charges. His deten-tion, however, ceased to be reviewed once theprosecutor filed the bill of indictment with the

court. In accordance with the Polish practice ofplacing a detainee “at the disposal of the court”,the detention which had previously been orderedat the investigation stage of a case was prolongedindefinitely; the court was not obliged, of its ownmotion, to make any further decision as to whetherthe detention fixed at that stage should be ex-tended. This practice had undoubtedly – and un-derstandably – arisen to fill a gap, but there was acomplete absence of any support for it in eitherlegislation or case-law. It is doubtful whether the le-gality of the practice was ever questioned, sincethe need for continued detention was undeniable –and potentially quite compatible with the Euro-pean Convention – and its development is a goodillustration of how the general legitimacy of acourse of conduct can lead one into overlooking orfailing to question the absence of legality for it. Inthis case the Court condemned the practice as aviolation of Article 5 (1) because it was seen aslacking foreseeability and certainty, as well as givingscope for arbitrariness.

13 In Jėčius v. Lithuania

14 the

applicant – a murder suspect – had continued to bedetained after a period of detention on remand au-thorised by the deputy prosecutor general had ex-pired. This appeared to be the way in which caseshad come to be handled and it is the sort of habitwhich cannot co-exist with the requirements of theConvention. The Court held that the applicant’sdeprivation of liberty had been incompatible with

9 6 April 2000 .10 27 November 1997.11 See also Engel and Others

v. the Netherlands, 8 June1976, where the maxi-mum permitted provi-sional arrest period oftwenty-four hours wasexceeded by betweentwenty-two and thirtyhours.

12 28 March 2000.13 Other factors shaping the

notion of lawfulness areconsidered further below.A violation of Article 5 (1)for these reasons in re-spect of the same practicehas also been found inKawka v. Poland, 9 Janu-ary 2001. Prior to therulings in these cases thepractice had been endedand replaced by one ofreferring each case wherea detention order hadbeen made at the investi-gation stage to a court inorder to obtain a freshruling as to whether thedetention of the personconcerned should con-tinue. This fulfils the Con-vention’s requirements asto lawfulness and judicialsupervision.

14 31 July 2000.

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the principles of legal certainty and the protectionfrom arbitrariness.

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Compliance with the Convention. TheConvention understanding of lawfulness

In addition to being fully in compliance withnational law, any deprivation of liberty must also sat-isfy the potentially wider European Conventionunderstanding of the term “lawful”. This under-standing relates in the first place to a concern to en-sure that the specific requirements of Article 5 –even though not found in national law – are ob-served. A deprivation of liberty will be found objec-tionable where this is effected either as a means ofinterfering with other rights and freedoms guaran-teed by the Convention or through a law which isapplied in an arbitrary fashion or whose very charac-ter is to be regarded as deficient. In Kurt v. Turkey, theEuropean Court held that

… any deprivation of liberty must not only have beeneffected in conformity with the substantive and proce-dural rules of national law but must equally be in keep-ing with the very purpose of Article 5, namely to protectthe individual from arbitrariness.

16

Where the domestic authorities fail to providefor any ground of the detention, the Court is readyto find a violation of Article 5 (1). In Denizci and Othersv. Cyprus, the applicants claimed, inter alia, that noreason was given for their arrest, and the Court

found a violation of Article 5 (1), observing that therespondent government did not advance any lawfulbasis for the applicants’arrest and detention.

17

Incompatibility with Convention provisions

Deprivation of liberty legally justified atnational level by grounds other than those exhaus-tively listed in Article 5 (1) will certainly be found“unlawful” as being contrary to Article 5 (1). Thegrounds do not, for example, permit preventivemeasures to be taken against suspected criminalswhere a prosecution is not the object of the deten-tion.

18 Such deprivation of liberty, though legal at

national level, runs contrary to Article 5 (1).However, even where deprivation falls within a

listed ground, the Convention can be seen to set alimit to the acceptability of its overall duration. Thus inthe case of persons detained pending trial this is foundin the explicit requirement in Article 5 (3) that the trialbe within a reasonable time; whereas in the case ofpersons detained in connection with deportation, ex-tradition and related proceedings it is derived from theimplied obligation of the authority concerned to actwith reasonable diligence.

Arbitrary use of power

However, even if a national law authorising adeprivation does not give rise to any of these ob-

15 A similar finding of aviolation of Article 5 (1)was made in Grauslysv. Lithuania, 10 October2000.

16 28 May 1998.17 23 May 2001.18 Jėčius v. Lithuania.

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jections and is in other respects entirely compat-ible with the European Convention standard, itsuse in particular circumstances might still not beregarded as lawful because it is considered to bearbitrary. This designation would certainly be seenas appropriate when a power is used in circum-stances where a deprivation of liberty is not reallyneeded or is designed to achieve an illegal objec-tive. An instance of the former can be seen inWitold Litwa v. Poland,

19 where a person who was

blind in one eye and whose sight in the other wasseverely impaired had been confined in a sobering-up centre after post office clerks – to whom he hadcomplained about his boxes being opened andempty – had called the police, alleging that he wasdrunk and behaving offensively. However, althoughthe applicant’s detention was for a ground in-cluded in Article 5 (1) (e) – the detention of alco-holics – the use of the power was clearlyunnecessary given the absence of any threat to thepublic or himself, his blindness and the rathertrivial circumstances of the case. Furthermore thelaw provided for other, far less draconian measuresfor dealing with an intoxicated person – such asbeing taken to a public-care establishment or tohis or her own home – and no consideration ap-peared to have been giving to using them. As a re-sult the deprivation of liberty was, notwithstandingits formal legal basis, to be regarded as an arbitraryuse of power and thus unlawful.

A similar conclusion might, for example, bereached where a power of detention to establishidentity was employed against someone alreadyknown to the police officer, notwithstanding that theperson concerned was not carrying his or her iden-tity papers at the time. The patently unnecessaryuse of the power in such circumstances would leadto it being found to be arbitrary. Such an unjustifieduse of power can also be seen in Tsirlis andKouloumpas v Greece,

20 in which two Jehovah’s Wit-

nesses had been imprisoned following their convic-tion for insubordination after they had beensummoned for military service and had refused tojoin their units or wear military uniform. At all timesthey had maintained that they were ministers of reli-gion and as such exempt from military service. Theapplicability of such exemption to ministers whowere Jehovah’s Witnesses was well established in thecase-law of the supreme administrative court, butthe European Court found that it had been blatantlyignored by the military courts which had trailed theapplicants. In these circumstances the proceedingsagainst the applicants, leading to their loss of liberty,were to be regarded as arbitrary and thus unlawfulfor the purposes of Article 5 (1).

Furthermore, the use of a lawful power solely toachieve an illegal objective would not be acceptableunder the Convention, regardless of whether such ause of a national legal provision is considered withinthe country concerned to be objectionable. Thus in

19 4 April 2000.20 29 May 1997.

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Bozano v France21

a violation of Article 5 (1) was foundwhere a person had been detained supposedly forthe purpose of deportation but actually as a deviceto circumvent restrictions on extradition. In thiscase a request for extradition to Italy was rejectedby a French court. However, over a month after be-ing released by the French courts, the applicant wasarrested and served with a deportation order thathad actually been issued while he was still in custodyduring the extradition proceedings. The applicantwas then taken to the Swiss frontier, even thoughthe Spanish border was much nearer, and handedover to the police in Switzerland. Once in that coun-try extradition proceedings to Italy were successfullyconcluded and the applicant was taken to an Italianprison to serve his sentence. The European Courtfound a violation of Article 5 (1) stating that thiswhole course of conduct was arbitrary. There werevarious factors which the Court emphasised inreaching this conclusion: the delay in the implemen-tation of the deportation measure so that the appli-cant was not in a position to make use of any of theeffective remedies available to him; the fact thatSwitzerland and Italy appeared to be apprised be-forehand of the course of action taken; the failure toinform the applicant of the deportation order whenan application for a residence permit was refused;and the suddenness of the applicant’s apprehensionand his inability to speak to his wife or his lawyer;the absence of any choice of destination upon his

expulsion. All of this made it inevitable that this“disguised extradition” would make the applicant’sdeprivation of liberty arbitrary and thus unlawful forthe purpose of Article 5 (1). However, although theaccumulation of factors was overwhelming, each ofthem individually evinced a disrespect for the ideaof law in its most elemental sense and it is probablethat the approach underlying any one of themwould be sufficient for a finding of arbitrariness.

22

Accessibility, foreseeability and otherguarantees

However, even if a power exits and is not mis-used, it will not be regarded by the European Courtas providing the necessary legal basis for a depriva-tion of liberty if the legal provision lacks the qualitywhich it considers essential for any law to be ac-ceptable for European Convention purposes. Thisentails the law being accessible, foreseeable andcertain, as well as containing other guaranteesagainst the risk of arbitrariness in the way thosesubject to it might be treated.

The accessibility requirement is not met if adeprivation of liberty is based on a legal provisionthat was secret or unpublished. The accessibilityrequirement will also apply to subsidiary rulesadopted in the enforcement of a law. If such sub-sidiary rules are not widely available the EuropeanCourt might find a violation of Article 5 (1). An in-

21 18 December 1986.22 See also Murray v. the

United Kingdom, 28 Oct-ober 1994, in which itwas alleged that the pur-pose of an arrest was notto bring that person be-fore the competent legalauthority as a suspectedcriminal pursuant to Arti-cle 5 (1) (c) but merely forthe purpose of interrogat-ing her with a view togathering general intelli-gence, for which therewas no authorisationunder the Convention.The Court concluded thatno cogent elements hadbeen produced thatwould lead it to departfrom the findings of thedomestic courts that sucha covert and improperpurpose had not beenbehind the arrest butthere is no question that itwould have, if it hadexisted, rendered thearrest unlawful for Con-vention purposes. Itshould also be noted thatin Jėčius v. Lithuania, theabsence of bad faith onthe part of a domesticcourt was one of the con-siderations relied upon bythe Court in finding thatthe one period of deten-

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stance of this might have been seen in Amuurv. France,

23 but for the fact that an unpublished cir-

cular – the only text which dealt specifically withthe practice of holding aliens in the transit zone –was itself considered by the Court to be too briefand lacking in appropriate guarantees required tohave the quality of law. It was immaterial, there-fore, to this finding that the circular was actuallyunpublished and thus inaccessible but there is nodoubt that there could be other instances wherethis would be the key consideration. In such casesthe quality of content should be insufficient toprevent the inaccessibility of the rule being over-looked and the deprivation of liberty being foundto be lawful.

Legal certainty requires that any rules reliedupon must be sufficiently precise to allow a per-son – even with appropriate advice – to foreseeto a degree that is reasonable in the circum-stances the consequences which a given actionmight entail. The failure to satisfy this test –which might also be seen as a requirement toshape the law in such a way as to limit the scopefor arbitrary treatment – can be seen in casessuch as Baranowski v. Poland and Jėčius v. Lithuania,where the European Court was, notwithstandingthe view advanced above, prepared to work onthe assumption that the practices impugned inthose cases did have a basis in national law. Nev-ertheless, the Court found that they were still un-

lawful. In Baranowski this was both because of theabsence of any precise provisions laying downwhether – and, if so, under what conditions – de-tention that had been ordered at the investigationstage could properly be prolonged at the stage ofthe court proceedings and because a person wasdetained under the practice – developed as a re-sult of the statutory lacuna – for an unlimited andunpredictable time without this being based on aconcrete legal provision or any judicial decision.

In Jėčius there was also a finding that legal cer-tainty was absent because there were no clear rulesgoverning the detainee’s position. Detaining some-one for an unlimited period without judicial authori-sation, relying solely on the fact that the case hadbeen referred to the trial court, was held to be con-trary to Article 5 (1). However, legal certainty wasalso considered to be lacking when an attempt wasmade to justify the period of detention by invoking aprovision in the criminal code. In so doing, three dif-ferent explanations were advanced by the prosecu-tor, ombudsman, president of the supreme courtcriminal division and the government itself as to howthis provision might authorise the detention con-cerned. Rather than try to resolve such a significantdiscrepancy in reasoning, the European Courtunderstandably concluded that any provision whichwas vague enough to cause confusion amongst thecompetent State authorities must be incompatiblewith the requirements of lawfulness.

24

tion challenged which didhave a clear legal basiswas not unlawful for Con-vention purposes. Simi-larly in Benham v. theUnited Kingdom, 10 June1996, the Court declinedto find that a committal toprison by a court wasarbitrary where it had notbeen suggested that thedecision had either beentaken in bad faith or fol-lowing any neglect toattempt to apply the rel-evant legislation cor-rectly. In Perks v. theUnited Kingdom, 12 Oct-ober 1999, the Courtsuggested that a fetteredexercise of discretion or afailure to have regard to arelevant piece of evi-dence might render arbi-trary an otherwiseformally lawful decision.

23 25 June 1996.24 See also Wloch v. Poland,

19 October 2000, wherethe Court doubted that adeprivation of libertywould have been lawful ifit had been based solelyon a provision as to theinterpretation of whichthere were many contra-dictory opinions and nodecisive case-law.

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The certainty requirement of the legal basis fordeprivation of liberty might also be providedthrough associated rules, even if not of the samestanding in the legal hierarchy

25 or by the develop-

ment of case-law establishing the interpretation tobe given to a particular provision. An example of thelatter can be seen in the case of Steel v. the UnitedKingdom, which concerned an arrest for breach of thepeace.

26 The European Court considered that the

concept of “breach of the peace” had been clarifiedthrough two decades of domestic judicial decisionsso that it only relates to persons who cause harm, orappear likely to cause harm to persons or propertyor who act in a manner where the natural conse-quence would be the provocation of others to vio-lence. The effect of this development was thus toturn a fairly imprecise concept into one that wasregulated with sufficient guidance and appropriateprecision. In Wloch v. Poland, the interpretation of aprovision for which there was no pertinent case lawor a unanimous opinion of legal scholars was neitherarbitrary nor unreasonable.

However, such rulings

are not an invitation to reject a challenge to a provi-sion’s lawfulness on the basis that appropriate pre-cision will ultimately be derived from cases to bedecided in the future. Nevertheless it would be aperfectly legitimate to use the power of interpreta-tion to give a broadly-cast provision the narrow con-struction required to keep it “lawful” for Conventionpurposes.

Certainly, the need for such guarantees can inparticular contexts be quite extensive. Thus in Amuurv. France – where asylum-seekers had been detained fortwenty days – the Court was unhappy that none of thelegal texts applicable to the holding of aliens in thetransit zone allowed the ordinary courts to review theconditions under which they were held or, if necessary,to impose a limit on the authorities as regards thelength of time for which they were held. In addition,the European Court observed that legal texts did notprovide for legal, humanitarian and social assistanceand for any procedures and time-limits for access tosuch assistance so that asylum-seekers could take thenecessary steps. Thus the laws were not regarded ashaving sufficiently guaranteed the right to liberty of agroup of applicants who might be regarded as particu-larly vulnerable in the absence of such assistance.

Moreover, the requirements can also be quitebasic and still invaluable. Thus the Court has repeat-edly emphasised the importance of accurate and re-liable data being recorded about any deprivation ofliberty. This concern has been expressed by theCourt in a number of cases where complaints hadbeen made about persons being apprehended bylaw enforcement officers and there being no infor-mation available as to what happened to the personthereafter.

27 A particular difficulty in trying to dis-

cover what happened was the lack of any officialcustody records in respect of the persons con-cerned and this, of course, made it easier for those

25 The circular in Amuurv. France was insufficientfor this purpose not be-cause of its status butbecause of its own lack ofprecision.

26 Although not formallyclassified as an offence, itwas so regarded becauseof the nature of the pro-ceedings – involving thepolice and the first levelof criminal courts – andpower to imprison per-sons who refuse to bebound over to keep thepeace.

27 See Kurt v. Turkey; Çakıcıv. Turkey, 8 July 1999,Timurtaş v. Turkey,13 June 2000 and Taşv. Turkey, 14 November2000. Such a disappear-ance is likely also to en-tail a violation of the rightto life under Article 2.

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responsible for the deprivation of liberty then toevade responsibility for what had occurred. System-atic recording of data with respect to deprivation ofliberty from any initial apprehension to any transferfrom one place of custody to another is thus a vitalsafeguard against arbitrary treatment. An institu-tionalised process of recording – even where thereis no risk of such grave abuse as disappearance – isseen as essential requirement whenever a depriva-tion of liberty occurs.

3. What constitutesa deprivation of liberty?

“Arrest” and “detention”

The terms arrest and detention are used inter-changeably in almost all the provisions of Article 5and they should therefore be seen as being essen-tially concerned with any measure – whatever desig-nation is used by national law – that has the effectof depriving a person of his or her liberty. The guar-antee afforded by the judicial supervision require-ment in Article 5 is taken by the Court to arise assoon as the initial loss of liberty has happened, andany other approach will necessarily entail a violationof the Convention. The essential requirement is toconcentrate on what is achieved by processes andnot what they are called.

Elements to establish that detention exists

It is important to be clear about what consti-tutes a deprivation of liberty – whether by means ofarrest or detention – and when it starts, because it isonly then that the requirements of Article 5 of theEuropean Convention become applicable. Thismight seem self-evident but it still needs to be em-phasised as there can certainly be situations wheresomeone has been deprived of his or her liberty butthis might still not be appreciated by the persons re-sponsible, particularly if no physical restraint hasbeen imposed. Identifying the moment at which lib-erty is lost is especially important in the context ofthe criminal process on account of the need to scru-tinise both the delay before the person affected isfirst brought before a judge and the overall length ofany detention prior to any trial that might take place.

Elements such as the nature of the confine-ment involved and the status of the person affectedare essential in determining whether a particularmeasure constitutes deprivation of liberty.

The nature of the confinement

The European Court will certainly look at thenature of the confinement. Deprivation of liberty willmost obviously have occurred where a person is be-ing forcibly kept in a police or prison cell but thereare many other forms of confinement which can lead

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to Article 5 becoming applicable. Certainly this willbe the case where, for example, a law enforcementofficer – whether or not force is actually used –makes it clear that a person either cannot leave aparticular place or is obliged to come with the officerto some other place. Thus it would cover a personbeing stopped in the street or being required to stayin a police station after having originally come thereof his or her own free will. It is the existence of com-pulsion that is important so that, as the EuropeanCourt made clear in De Wilde, Ooms and Versyp v. Bel-gium,

28 it is of no consequence that the person may

have surrendered him or herself voluntarily. More-over it is probably irrelevant that the person de-prived of liberty is unaware of this fact; it is sufficientthat he or she is no longer free to leave.

Article 5 is most commonly going to be relevantwhere the degree of confinement to a particularplace is extreme in that the person affected cannotmove from a certain spot – whether in the street orother open place – or is required to stay in a certainvehicle or room (not necessarily a cell). However, thefact that a person has a degree of liberty within aparticular place will not necessarily mean that Arti-cle 5 has no application. Thus it was found inAshingdane v. the United Kingdom

29 to cover a person

who, although being kept compulsorily in a mentalhospital, was placed in a ward which was not lockedand was allowed to leave the hospital grounds dur-ing the day and over the weekend without being ac-

companied. Similarly in Guzzardi v. Italy30

it was heldapplicable to a requirement that someone sus-pected of involvement in organised crime live in anunfenced area of 2.5 sq. km on a remote island withother such persons. Although his wife and childcould live with him, the combination of constraintand isolation were sufficient in this case for it to betreated as a deprivation of liberty. These factors aremore significant than the place, so a requirementthat a person stay in their home would engage Arti-cle 5, whether – as in Giulia Manzoni v. Italy

31 – this

was pending trial or – as in Cyprus v. Turkey32

– pursu-ant to a particularly strict form of curfew underwhich persons could leave their homes only if es-corted.

Where there is confinement to a particular areasuch as a village or district but there is no accompa-nying isolation – as there was in the Guzzardi case –it is much more likely to be regarded as an interfer-ence with freedom of movement rather than a dep-rivation of liberty.

Equally, restrictions on persons seeking entryto a country – such as a requirement that they stayin a particular area at the airport as opposed to be-ing forcibly kept in a special detention centre for al-iens – would not generally be regarded as adeprivation of liberty since they would still have theoption of going to another country.

However, such an option must be a realisticone and would not exist if either there were no

28 18 June 1971.29 28 May 1985.30 6 November 1976.31 1 July 1997.32 Appl. Nos. 6780/74 and

6950/75 (CommissionReport).

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other country that would admit them or, where theperson concerned was seeking asylum, there wereno other country offering protection comparable tothe protection which he or she expected to find inthe one where it was being sought. Such a situationarose in the case of Amuur v. France, where the onlypossible alternative was Syria and admission wasnot only subject to the “vagaries of diplomatic rela-tions” but, as that was a country which was notbound by the Geneva Convention on the Status ofRefugees, there was no guarantee that the personsconcerned would not then be returned to the coun-try in which they feared being persecuted.

The status of the person affected

The status of the person affected is also rel-evant to determining whether a deprivation of lib-erty has actually occurred. This has certainly beenthe view taken of the confinement to particularplaces of persons serving in the armed forcesthrough the application of the normal disciplinaryregime. Thus in Engel v. the Netherlands, Article 5 wasfound inapplicable to a form of “arrest” which led tothe soldiers concerned, although required to carryout their normal duties, being confined to a desig-nated but unlocked building within army premises intheir off-duty hours. The soldiers were only able toinvoke it when they were subjected to a more strictform of “arrest”, which entailed them being locked

in a cell and thus unable to carry out their normalduties. The assumption underlying this ruling is that,as military service inevitably leads to a lesser degreeof liberty, the threshold to be reached before restric-tions engage Article 5 must necessarily be greaterthan for civilians.

It is unlikely that the imposition of greater re-strictions on the liberty of someone already in prison– such as a transfer from one with a light security re-gime to one where prisoners are very strictly confined– would be regarded as a deprivation of liberty for thepurposes of Article 5, since liberty has already beenlost as a result of the conviction or other order ofconfinement. The Court did not consider that therewas any deprivation of liberty when a prisoner wasconfined in her cell rather than allowed the usual freeassociation with other prisoners. However, in Bollan v.the United Kingdom

33 the Court accepted that measures

adopted within a prison might disclose interferencewith the right to liberty in exceptional circumstances.It has also accepted that a prisoner released on li-cence could thus have regained his or her liberty sothat a subsequent recall to prison would be a depriva-tion subject to the requirements of Article 5. It madeit clear in Weeks v. the United Kingdom

34 that this was a

matter of fact to be determined in each case but con-ditions imposed on such a person which required adegree of supervision and reporting to the authoritieswere not seen as sufficient to prevent the applicantfrom being regarded as at liberty for the purposes of

33 4 May 2000 (admissibilitydecision).

34 2 March 1987.

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Article 5. It was undoubtedly significant that the appli-cant had not been released for a very specific pur-pose – such as attending a funeral – but could followa normal life subject to a number of conditions.

Acts by private individuals

Although most problems in satisfying the re-quirements of Article 5 are likely to arise from theacts and decisions of judges and public officials, thebehaviour of private individuals may also be asource of concern. Any power given to private indi-viduals in arresting someone must also be con-strained by Article 5 requirements. A privateindividual who is empowered to arrest someone sus-pected of committing an offence (whether under alaw of general applicability or one governing privatesecurity services) must ensure that the person de-prived of liberty is then brought into the criminalprocess in the same manner that a law enforcementofficer is obliged to do.

Moreover, public officials cannot stand by andallow a deprivation of liberty to be perpetratedwhere this is not compatible with the requirementsof Article 5. Such acquiescence was found to haveoccurred in Riera Blume and Others v. Spain

35 when the

families of the applicants – who were thought tohave become members of a religious sect – had keptthem in a hotel so that they could be “depro-grammed” by a psychologist and a psychiatrist. In

this particular case the action had been at the sug-gestion of a court following the arrest of the appli-cants in the course of a preliminary judicialinvestigation but there was no legal authority for ei-ther this or the action of the families. As the lattercould not have taken place without the active co-operation of the authorities, Spain was found tohave violated Article 5. No private action whichleads to a deprivation of liberty contrary to this pro-vision must be tolerated by public authorities andthe latter should certainly never encourage theformer to do what they are themselves barred fromdoing.

36

Action overseas

A State party to the European Conventionmakes a commitment in Article 1 of the EuropeanConvention to secure the rights and freedoms toeveryone within its jurisdiction; and that meanswherever it is in a position to exercise power, re-gardless of whether this occurs within its inter-nationally recognised or constitutionally prescribedboundaries and regardless of whether there is anylegal basis for acting there.

As the European Court made clear in Loizidouv. Turkey,

37 jurisdiction for the purposes of the Con-

vention is not restricted to a State Party’s nationalterritory, and thus responsibility could arise wherethe acts and omissions of its authorities produced

35 14 October 1999.36 The Court also empha-

sised, in Cyprus v. Tur-key, 10 May 2001, thatany acquiescence or con-nivance by a State Party’sauthorities in the acts ofprivate individuals whichviolate the rights of otherindividuals within itsjurisdiction would engageits responsibility underthe Convention. In thatcase, however, claims ofsuch acquiescence orconnivance were notfound to be substantiated.

37 18 December 1996.

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effects elsewhere. In particular where, as in thatcase, military action was undertaken by a State Partyin the territory of another State, the exercise of ef-fective control by the former over a particular areawould be sufficient to establish that it had jurisdic-tion and was thus under an obligation to secure theConvention rights and freedoms there.

This conclusion was reinforced in the case ofCyprus v. Turkey – which arose out of the same events– by virtue of the fact that the military operation andsubsequent occupation prevented one State Party tothe Convention from fulfilling its obligations underthat instrument in the territory concerned. A failureto regard events there as within Turkey’s jurisdictionwould result in a vacuum in the system of humanrights protection available to the persons within it.

This exacting but realistic view of jurisdictionmeans that the requirements of Article 5 will alwayshave to be satisfied wherever a deprivation of libertytakes place. It would, therefore, be applicable wherelaw enforcement officers go to another country inorder to bring someone back either to stand trial orto serve a sentence. Thus in Reinette v. France

38 Arti-

cle 5 was found applicable once an accused personwas handed over in Saint Vincent to French policeon board a military aircraft. Thereafter the appli-cant’s deprivation of liberty, although still occurringwithin Saint Vincent, was taking place under theauthority of the French and thus within France’s ju-risdiction for the purpose of Article 5.

Article 5 would be equally applicable wheresomeone is illegally seized or abducted, whether toensure that they are subjected to the criminal processor to reunite a child with one of its parents or forsome other reason whenever such action is effectedby State officials or it is in some other way attribut-able to the State Party. Furthermore, as was seen inthe case of Cyprus v. Turkey, Article 5 would be applica-ble to any deprivation of liberty effected in the courseof military action in some other country. The only rea-son that the Court found no violation of Article 5 as aresult of the military operations by Turkey which werebeing impugned by Cyprus was that it had not beenclaimed by the latter that any members of the Greek-Cypriot population had actually been detained duringthe period under consideration.

38 63 DR 189 (1989) (admis-sibility decision).

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Section II: Deprivation ofliberty as part of the crimi-nal process

1. General considerations

Article 5 (1) acknowledges three situations inwhich deprivation of liberty may be justified as partof the criminal process: the apprehension of some-one suspected of involvement in committing an of-fence (para. c); the imprisonment of someone as apenalty for having committed an offence (para. a);and the detention of someone pursuant to a requestfor his or her extradition to another country (para. f).

Although what constitutes an offence for thesepurposes is primarily a matter of national law,

39 this

is a concept which it has already been seen to havean autonomous meaning for Convention purposesand it is conceivable that the use of the criminal lawin some circumstances could be seen as dispropor-tionate and thus arbitrary.

Certainly, imprisonment as a penalty is oftenthe basis for regarding as excessive an interferencewith another Convention right or freedom

40 and the

circumstances in which the apprehension of a sus-pected offender could similarly be so regarded. Itshould not, therefore, be taken for granted that theoffence said to justify a deprivation of liberty is nec-

essarily compatible with the requirements of theConvention, even if this is unlikely to be a problemin most cases.

It should also be noted that the criminal proc-ess for the purpose of the Convention will includeany discrete military criminal offences and proceed-ings,

41 which must, therefore, conform with the fol-

lowing requirements.42

As has already been seen,the fact that a deprivation of liberty might fall inprinciple within one of the grounds specified in Arti-cle 5 does not mean that the need to ensure thatthe imposition of such a measure is not arbitrarycan be overlooked. The succeeding sub-sectionsmust, therefore, be read in the light of that over-arching obligation.

2. Suspected offenders

The text of Article 5 (1) (c) makes it clear thatdeprivation of a suspected offender’s liberty can beeither prior to or following the offence concernedwhich is relied upon to justify this measure. How-ever, as was seen in Lukanov v. Bulgaria, there mustactually be an offence existing under national lawfor this ground to be legitimately invoked as a basisfor depriving someone of liberty. This does notmean that there is a need to establish that an of-fence has actually been committed but that theconduct giving rise to the deprivation of liberty

39 In the case of extraditionthis will extend to the lawof the requesting state.

40 See, for example, thesignificance attached tothe possibility of impris-onment in Hertel v Swit-zerland, 25 August 1998,and Sürek v Turkey, 8 July1999, when finding par-ticular restrictions to beviolations of the right tofreedom of expression.

41 See De Jong, Baljet andVan Den Brink v. theNetherlands, 22 May1984, and Hood v. theUnited Kingdom, 18 Feb-ruary 1999.

42 In Engel and Othersv. the Netherlands, it wasnot significant that theproceedings were termed“disciplinary” when thepenalty was sufficient forthem to be regarded as“criminal” for Conven-tion purposes. However,the differentiation innational law betweendisciplinary and criminalproceedings undoubtedlycontributed to the failureto meet all the require-ments of Article 5 (1).

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must be alleged to fall within the scope of an of-fence already established by law.

In addition to this essential prerequisite, thereare also two further key requirements. The first isthat the objective of apprehending the suspectedoffender must be to bring him or her before the“competent legal authority” and the second is thatthe suspicion about the commission of the offencemust be “reasonable”. In addition to these require-ments there is also a need to ensure that the overalllength of any loss of liberty prior to the trial for theoffence does not become excessive and that thepossibility of release pending this has been properlyconsidered.

Production beforethe competent legal authority

Although the suspected commission of an of-fence, the need to prevent one from being commit-ted or the possible flight of the suspected offenderconstitute the basis on which deprivation of some-one’s liberty can be contemplated, such a measurewill only be compatible with Article 5 (1) (c) if it isalso done with the object of bringing criminal pro-ceedings against him or her. This is the conse-quence of the indissoluble link made in theConvention between Article 5 (1) (c) and 5 (3); theformer authorising deprivation of liberty but the lat-ter requiring that, where this ground is used for such

action, the person concerned must then be broughtbefore “a judge or other officer authorised by law toexercise judicial power and shall be entitled to trialwithin a reasonable time or to release pending trial”.The judge or other officer referred to in Article 5 (3)is a clarification of the term “competent legalauthority” used in Article 5 (1) (c) but it is intendedthat the appearance before such a person be a stagein a process that leads ultimately to trial, underliningthat the object of the deprivation is the criminalprocess.

This does not mean that there necessarily haveto be criminal proceedings – whether a trial or evenjust the issuing of a formal accusation or charge –following from a deprivation of liberty in order forthis to be compatible with Article 5 (1) (c). The crucialconsideration is the purpose at the time when sucha deprivation occurred, so whether or not it is ulti-mately fulfilled will not be significant. The recogni-tion by the Court that the former is more importantthan the latter reflects an understanding of the fac-tors bearing upon the criminal process; notwith-standing the validity of the suspicion at the time thismeasure was taken, the bringing of such proceed-ings may become unnecessary (e.g., because suspi-cious conduct has been clarified), impossible (e.g.,because certain key evidence is not available) or un-desirable (e.g., the poor health of the accused wouldmake a trial oppressive). Thus in both Brogan v. theUnited Kingdom

43 and Murray v. the United Kingdom the43 29 November 1989.

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Court declined to find a violation of Article 5 (1) (c)simply because the persons deprived of their libertywere released without ever being charged or broughtbefore the competent legal authority. In these casesit concluded that the authorities had concluded thatafter questioning the persons concerned it was im-possible to pursue their suspicions against them andthat in these circumstances charges could not bebrought. This outcome did not, however, mean thatthe objective of a prosecution was called into doubtas it was recognised that the appropriateness of thismight only be established once a person deprived ofhis or her liberty is questioned.

44

It will not be acceptable, therefore, for the pur-poses of Article 5 (1) (c), for a person to be deprivedof his or her liberty in purported reliance on a provi-sion of the criminal law if there was never any inten-tion to enforce that law against them insofar as thatproves appropriate.

45 Similarly it would be inconsist-

ent with Article 5 (1) (c) if, as in Ciulla v. Italy, 46

a per-son were to be deprived of his or her liberty andthen brought before a judge where the legal basis forsuch action had some object other than ultimatelyto bring a prosecution against him or her. In thatcase the applicant had been apprehended andbrought before a judge in order to obtain a compul-sory residence order because of his Mafia-type be-haviour. There was no doubt that such behaviourwas likely to constitute various criminal offences,but the seeking and making of the order – and in-

deed the reason for establishing the procedure –was based on unproved suspicion; the order wasbased on past serious offences committed by theapplicant and concerns about the future dangerthat he posed to society rather than his involve-ment in concrete and specific offences. The appli-cant’s deprivation of liberty was thus a preventiveprocedure rather than something that could beequated with the detention prior to trial; the factthat he had been brought before a judge could notalter the fact that the measure was not part of thecriminal process. In Ciulla, deprivation of liberty wasalso contrary to Article 5 (1) (c) because it was notpossible to argue that such deprivation for the pur-pose of obtaining a compulsory residence ordercame within the ground permitting such a measurewhere it is “reasonably considered necessary to pre-vent… [someone]… committing an offence”. This isbecause the acceptance of this preventive power byArticle 5 (1) is also linked to the enforcement of thecriminal law and its use must be directed at fore-stalling the commission of specific and concrete of-fences.

47 Such an objective clearly requires a degree

both of particularity as to what is apprehended willbe done by someone and of imminence as to his orher doing it. The ruling in Ciulla was also a furtherconfirmation that Article 5 (1) (c) may justify a depri-vation of liberty as a preventive measure under Arti-cle 5 (1) (c) only where it is directed at theprevention of a concrete and specified offence.

44 In these cases the successof a prosecution wouldhave been heavily de-pendent upon statementsmade by the suspectsand, as they had refusedto answer any questions,there would have beenno point in chargingthem.

45 The use of a power ofapprehension where therewas no such intentionwould not only be out-side the specific terms ofArticle 5 (1) (c) but wouldalso be contrary to themore general prohibitionon arbitrary acts.

46 22 February 1989.47 This requirement is such

that the conduct justifyingthe deprivation of libertyis likely to be an attemptto commit the offenceconcerned, which in mostjurisdictions is itself anoffence.

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The ruling in Ciulla was followed in Jėčiusv. Lithuania, which concerned an applicant who hadbeen suspected of murder; but the case had thenbeen struck out for lack of evidence. Subsequentlyhe was detained under a provision in the criminalprocedure code connected with banditism, criminalassociation and terrorising a person, which permit-ted preventive detention. Acting under this provi-sion the deputy prosecutor general ordered hisdetention for sixty days and an appeal against thiswas dismissed by a court. No specific charge wasmade against the applicant and no investigation wascarried out in connection with this preventive de-tention. A month after the detention was orderedthe murder charge was reopened and it became thebasis for his detention. The Court had no hesitationin finding that the original preventive detention, asit had no connection with the conduct of criminalproceedings, was a violation of Article 5 (1). Arti-cle 5 (1) (c) does not, however, simply require thatthe object of the deprivation of liberty be, if appro-priate, the institution of criminal proceedings. Thelegal framework must also be such that productionof the person concerned, if not already released,before the competent legal authority is an auto-matic consequence of that measure being taken.The function of the competent legal authority willbe to determine whether pre-trial detention shouldbe continued and, if so, for how long. In the follow-ing sub-sections the grounds for such a continua-

tion and its overall length will be considered. How-ever, it is essential that this process be an integralpart of the arrangements for depriving suspected of-fenders of their liberty. Its absence was a key reasonfor finding a violation of Article 5 (1) in Engel and Oth-ers v. the Netherlands, where the characterisation of of-fences by soldiers as disciplinary meant that therewas no supervision by the competent legal authorityof their deprivation of liberty. As a consequence thisdeprivation could not be justified by reference tothe authorisation to apprehend suspected offend-ers.

Reasonable suspicion

The stipulation in Article 5 (1) (c) of the need fora reasonable suspicion that the person being de-prived of liberty has committed an offence ensuresthat a deprivation only occurs where this is well-founded and is thus not arbitrary. A suspicion mustalways be genuinely held – the Court emphasised inMurray v. the United Kingdom that the honesty and bonafides of a suspicion was an indispensable element ofits reasonableness – but it can only be regarded asreasonable if it is also based on facts or informationwhich objectively link the person suspected to thesupposed crime. There will, therefore, have to beevidence of actions directly implicating the personconcerned or documentary or forensic evidence tosimilar effect. Thus there should be no deprivation

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of liberty based on feelings, instincts, mere associa-tions or prejudice (whether ethnic, religious or anyother), no matter how reliable these may be re-garded as an indicator of someone’s involvement inthe commission of an offence.

This does not mean that the evidence must ei-ther be sufficient to justify a conviction or even thebringing of a charge; as has already been seen, it wasrecognised in Brogan v. the United Kingdom and Murrayv. the United Kingdom that the object of questioningduring the deprivation of liberty permitted underArticle 5 (1) (c) is simply to further the investigationof a possible offence through confirming or dispel-ling the suspicion that exists which inevitably cannotbe conclusive at this stage. Nevertheless, there mustbe some basis for the suspicion that is relied upon.

The mere fact that a person has committedsome offence – even if similar – in the past will not,therefore, be a sufficient basis for a reasonable sus-picion, as the Court made clear in the case of Fox,Campbell and Hartley v. the United Kingdom.

48 In that

case the applicants had previous convictions foracts of terrorism but, although the Court acceptedthat this might be something which could reinforce asuspicion deriving from other material, it appearedthat this was the only basis on which they had beendeprived of their liberty. It is essential that the suspi-cion be linked to the person’s present conduct. Amere assertion that there was reliable but confiden-tial information – as it was invoked in the Fox case –

would not be a sufficient basis for accepting thatthere was a reasonable suspicion if it is not madeavailable to the court considering a challenge to thelegality of a deprivation of liberty.

The reasonable suspicion was held to be es-tablished in K.-F. v. Germany, where tenants were ar-rested for rent fraud when, after their landlady hadalleged to the police that they did not intend toperform their obligations, inquiries revealed thatthe address which they had given was merely apost office box and one of them had previouslybeen under investigation for fraud. In Punzelt v. theCzech Republic the Court found a reasonable suspi-cion where reliance was placed on the inability ofthe vendor of two department stores to cash twocheques deposited as security in negotiations be-cause they were dishonoured.

49

In Lukanov v. Bulgaria the Court underlined thatno fact or information had been provided whichshowed the applicant as having sought to obtain forhimself or anyone else an advantage from his in-volvement in allocating public funds to other coun-tries; a vague reference to certain “deals” wasunderstandably regarded by the Commission as nothaving substantiated the existence of such an im-proper objective. However, the main problem inLukanov was that most of the accusations broughtagainst him did not amount to any criminal offenceunder Bulgarian law. In that case the absence of acriminal prohibition was relatively clear-cut but the

48 30 August 1990.49 25 April 2000.

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Court has recognised that there can be instanceswhere there is some uncertainty as to whetherknown facts could reasonably be considered as fall-ing within a particular prohibition on behaviour bythe criminal law.

There is a need to be able to demonstrate notonly a link between the person deprived of his orher liberty and the events supposed to constitutean offence but also a sufficient basis for concludingthat those events fall within the scope of the of-fence alleged. This is most likely to be problematicwith new or little-used offences but a particularlyunusual interpretation of a particular prohibitioncould equally lead to a conclusion that the suspi-cion was unreasonable.

Although the reasonable suspicion test is notstipulated in respect of anticipated offences, thejoint requirements that deprivation of liberty on thisground should only occur where specific and con-crete offences are involved and that such depriva-tion be “reasonably considered necessary” forprevention purposes are undoubtedly going tomean that the same degree of suspicion will have tobe demonstrated in order to avoid a violation ofArticle 5 (1) (c). There would thus have to be suffi-cient objective evidence linking the conduct of theperson concerned with a likelihood of an offencethereby being committed; there is no scope for rely-ing on either prejudice or unfocused fears as towhat might happen.

The need for pre-trial detention

Although either the need to initiate the criminalprocess against someone suspected of committingan offence or the need to prevent an offence beingcommitted can provide the initial justification fordepriving suspected offenders of their liberty, thisdoes not constitute a sufficient basis for its continu-ation thereafter. Continuation of detention must besubjected to prompt judicial scrutiny which shouldnot only consider whether it was justified in the firstplace but also whether it was still appropriate. Thelatter question cannot be answered in the affirma-tive merely because there continues to be a reason-able suspicion that the person concerned hascommitted or attempted to commit an offence. TheCourt held that the reasonable suspicion can disap-pear soon after the initial deprivation of liberty be-cause it becomes clear that either no offence hasbeen committed or the person concerned is able toallay any suspicions regarding his or her involve-ment. The Court has repeatedly asserted that theexistence of a suspicion is essential but not suffi-cient for any prolongation of detention after a cer-tain lapse of time.

50 This is because there is an

explicit right to release pending trial in Article 5 (3)and this can only be overcome if in addition one ormore relevant and sufficient reasons for continueddeprivation of liberty – notwithstanding the pre-sumption of liberty – can also be established.

50 Stögmuller v. Austria,10 November 1969,Clooth v. Belgium,12 December 1991,Contrada v. Italy, 24 Au-gust 1998, Jėčiusv. Lithuania, (where thesuspicion was actuallyfound to be unsubstanti-ated by the trial court)and Barfuss v. the CzechRepublic, 1 August 2000.

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The reasons for prolongation of detention willonly be admissible if they are actually applicable tothe circumstances of the person concerned. Therecan, therefore, never be a rule which excludes per-sons who have a particular criminal record or whoare accused of certain specified offences from beingconsidered for release pending their trial. In Caballerov. the United Kingdom, where the applicant was ar-rested for attempted rape, the government con-ceded that there had been a violation of Article 5 (3)when a court refused the applicant bail pursuant to alaw that precluded – without exception – all personscharged with, or convicted of, murder, manslaughterand rape from being granted bail.

51 Such a law was

objectionable because it prevented the courts fromconsidering the particular circumstances of some-one who had been deprived of his or her liberty. Itshould be noted that the Court has found prolongeddeprivation of liberty to be unjustified even in mur-der cases.

52

Furthermore, it may be found that reasonswhich at first appear to justify a continued depriva-tion of liberty will become less compelling the longerthis lasts and it is essential that applications for re-lease be examined with an open mind. Where suchreasons do not exist – whether initially or at a laterstage – but there is still reasonable suspicion regard-ing the commission of an offence, the person con-cerned should be released on bail but this may besubject to guarantees designed to ensure that he or

51 8 February 2000.52 I.A. v. France, 23 Septem-

ber 1998; Letellierv. France, 26 June 1991.

53 The strength of the caseagainst someone can betaken into account but isnot in itself a sufficientbasis for the continuationof detention; seeKemmache v. France(Nos. 1 and 2), 27 Nov-ember 1991, Mansurv. Turkey and Yağcı andSargın v. Turkey, 8 June1995.

54 In Trzaska v. Poland,11 July 2000, the Courtrefused to accept that therisk of re-offending musthave been relied upon inrefusing release when itwas not expressly referredto in any of the decisionsof the domestic authorities.

she appears for trial. However, even if the reasonsjustifying continued deprivation of liberty can stillbe demonstrated to be applicable to a particular in-dividual, there is also a need to ensure that he orshe is brought to trial within a reasonable time andthis necessarily sets limits to the overall period forwhich such a deprivation can be allowed to endure.

Justifying pre-trial detention

The Court has recognised four reasons as rel-evant for continuing a person’s pre-trial detentionwhere there is still a reasonable suspicion of his orher having committed an offence.

53 These are:

the risk of flight;the risk of an interference with the course ofjustice;the need to prevent crime;the need to preserve public order.It is essential that there be no attempt to use

one or other of these reasons to justify a continua-tion of a person’s deprivation of liberty unless dueand explicit

54 consideration has first been given as

to the genuineness of their applicability to his or herparticular situation. Where none is found applicablethe release of the person concerned will then be re-quired by virtue of Article 5 (3).

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cific evidence of plans to flee; 60

his or her links withanother country that might make flight easier or theabsence of links with the country in which the pro-ceedings are being brought;

61 or other problems

that might arise for the person in connection with acountry.

However, as with the severity of the sentence, itis not possible to invoke any of these factors point-ing to the risk of flight as a justification in itself forcontinuing to deprive someone of liberty. There is aneed to assess how significant such a factor (orcombination of them) is in the particular circum-stances of the case – on closer examination somemay be found not even to exist, others may proveinsubstantial and yet others may be contradicted bythe person’s actual behaviour

62 – and to then weigh

it (or them) against any of the factors present whichmight point against the person concerned beinglikely to flee. Since the risk decreases as timepasses, the Court will be correspondingly more ex-acting in its scrutiny the longer pre-trial detentionlasts. In I.A. v. France, the Court was unconvinced bythe sketchiness of the reasoning for a risk of flightsupposed to have persisted for more than five years.

Someone might be encouraged to stay or oughtat least to be regarded as less likely to leave becauseof family considerations,

63 his or her particular char-

acter, morals, status or responsibilities, 64

the extentof the property that he or she would have to leavebehind, past evidence of reliability when released

65

55 See Stögmuller v. Austria,where it was held that therisk of absconding doesnot arise from it beingpossible or easy for some-one to cross the frontier.

56 See Matznetter v. Austria,10 November 1969;Letellier v. France, Wv. Switzerland, 26 January1993; Yağcı and Sargınv. Turkey and Mullerv. France, 17 March1997.

57 8 June 1995.58 See Punzelt v. the Czech

Republic, 25 April 2000,where the applicant hadabsconded from relatedcriminal proceedings inGermany.

59 This was identified assignificant in Stögmullerv. Austria, 10 November1969.

60 Matznetter v. Austria,10 November 1969, inwhich account had beentaken of the transfer offunds out of the countryand a visit abroad, as wellas connections that hadbeen established there.See also Česk v. theCzech Republic, 6 June2000, where the appli-cant had entrusted a largesum of money to an ac-quaintance, bought a car

The risk of flight

The risk of flight is undoubtedly something thatconcerns law enforcement officers, particularly ifthe initial apprehension of a suspect was not easy,and there are certainly individuals who will flee ifthey are given an opportunity to do so. However, itis not enough to rely on this general possibility – letalone that there is no obstacle to flight

55 – to con-

tinue a deprivation of liberty; it will always be essen-tial to examine all the factors specific to theparticular case in order to determine whether such arisk exists. Those factors that ought first to be con-sidered will obviously be those which might leadsomeone to flee despite the consequences thatmay follow and the hazards that might have to beendured. These could well include the nature of thepenalty that can be imposed on someone convictedof the offence in issue but the Court has repeatedlymade it clear that the fact that a severe sentencecan be anticipated is not in itself sufficient to justifya continuation of detention.

56 Moreover, in Mansur

v. Turkey, the Court found that the “state of evi-dence” could not substantiate an alleged risk of theapplicant absconding.

57

Relevant in suggesting a risk of flight would beprevious instances when the person had fled afterbeing charged with an offence; or where extraditionhad been required in order for the proceedings tobe pursued;

58 a clear distaste for detention;

59 spe-

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and the extent of the guarantees given to ensurethat he or she will appear for trial.

66 The need is to

make an overall evaluation of the risk of flight onceall the relevant factors – both for and against flight –have been taken into consideration. Certainly, a rul-ing which is based on a stereotyped form of wordswithout any explanation as to why the risk of ab-sconding exists will never be considered acceptableby the Court.

67

Furthermore, if the risk of flight is the sole justi-fication invoked for continuing a deprivation of lib-erty, the Court has emphasised that the effect ofArticle 5 (3)’s final sentence is to require the releaseof the person concerned if it is possible to obtainguarantees from him or her that would ensure his orher appearance at the pending trial.

68 However, even

if such guarantees cannot be obtained or are notconsidered reliable, consideration ought to be givenin all cases to the suitability of other measures thandeprivation of liberty for ensuring that flight doesnot occur: e.g., requirements that the person con-cerned reside in a particular place, give up his or hertravel documents or report frequently report to thepolice.

69

The risk of interferencewith the course of justice

The risk of interference with the course of jus-tice is a legitimate concern of all involved in the ad-

using another person’s identity card and obtained a false passport.61 W v. Switzerland, 26 January 1993, where the applicant was a single man who had transferred his

residence to Monte Carlo and had frequently visited Anguilla – where he was supposed to be theowner of a bank – England, Germany and the United States, appeared to have considerable fundsat his disposal outside Switzerland and possessed several different passports; Punzelt v. the CzechRepublic, where the applicant had numerous business contacts abroad; Barfuss v. the Czech Re-public, 1 August 2000, where the applicant could have obtained German citizenship if he had fledto Germany, which would have made impossible extradition back to the Czech Republic.

62 In Stögmuller v. Austria, 10 November 1969, the applicant (who had a pilot’s licence) had flownabroad several times during a period of provisional release and had always returned; a slight delayin doing so on one occasion had also been satisfactorily explained. Similarly, in Letellier v. Francethere had been no attempt to abscond when the applicant had previously been released for a four-week period.

63 See Letellier v. France, where the applicant was the mother of minor children.64 See Letellier v. France, where the applicant was the manager of a business representing her sole

source of income; Matznetter v. Austria, where reliance had not really been placed on a seriousillness but which in another case could be a reason for doubting someone’s capacity to flee, and;Yağcı and Sargın v. Turkey, where the applicants had returned to their country of their own accordeven though they have been aware of the risk of prosecution.

65 See W v. Switzerland.66 In Wemhoff v. the Federal Republic of Germany, the applicant had repeatedly given the impres-

sion that he was not prepared to provide security for a large amount in order to secure his releasebut in Letellier v. France, the national courts had failed to establish that adequate guarantees werenot available. Furthermore in Stögmuller v. Austria, the Court noted that the applicant, althoughultimately released subject to security, had actually first offered to provide such a security longbefore this occurred.

67 See Yağcı and Sargın v. Turkey.68 Wemhoff v. the Federal Republic of Germany, 27 June 1968.69 In Stögmuller v. Austria the Court observed that the applicant could have been asked to surrender

his passport to prevent his crossing the frontier.70 It was accepted in Letellier v France that there had been a genuine risk of pressure being brought

to bear on witnesses at the outset of the preparation of the prosecution but this risk was consideredto have diminished and to have actually disappeared with the passage of time. The failure of al-most all the French courts to refer to this risk, after the initial refusals to release the applicant,clearly undermined any weight that could be attached to this ground for deprivation of liberty. Therisk of pressure on witnesses was also considered to have existed in I.A. v France, but only at theearly stage of the investigation.

71 In W v. Switzerland there was found to be a risk that the applicant would influence his employeesto manufacture false evidence or to connive with witnesses.

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ministration of justice and it is not surprising, there-fore, that this has been recognised as a possible rea-son for continuing to deprive someone of liberty. Anaccused person could well use the opportunity ofhis or her release to undermine the preparation of acase against him or her by putting pressure on wit-nesses not to testify,

70 tipping off others who might

also be under investigation, colluding with anyoneinvolved in the case as to how they will respond tothe proceedings,

71 and even destroying documents

and other material forms of evidence72

or in someother disrupting the inquiry.

73

However, these possibilities cannot be reliedupon in abstracto; there must be some concrete fac-tual circumstances supporting them in respect ofthe person deprived of his or her liberty.

74 Further-

more, in most cases this is a ground for continueddeprivation of liberty which will become less andless compelling as the various stages of an investiga-tion – such as the taking of statements and the car-rying out of verifications – are completed, and it willnot generally be an admissible justification once thewhole process has been completed.

75 However, the

Court will always make its assessment by referenceto the facts of the particular case and these cansometimes be so exceptional as to justify depriva-tion of liberty until trial.

76

72 The anxiety of the courts as to the suppression of evidence was considered justified in Wemhoffv. the Federal Republic of Germany, because of the character of the offences (breach of trust andmisappropriation of funds held by a bank) and the extreme complexity of the case. However, theCourt noted that even the domestic appeal court had doubted whether this risk had ceased tooperate and it is unlikely that this concern will remain compelling the nearer the preparation of aprosecution case is to being finalised.

73 See Clooth v. Belgium, where the Court accepted that initially the applicant had made the investi-gation more complicated by the number and changing nature of his statements but it underlinedthat in general the needs of the investigation could not justify the continuation of detention. Wherespecific investigative measures are alleged to be threatened, the continuation of detention aftertheir completion would not be appropriate; the failure of this to happen in Clooth was significantin finding a violation of Article 5 (3).

74 In Trzaska v. Poland no such circumstances were found to have been relied upon.75 See Muller v. France, where the investigation and the committal of the applicant to stand trial had

occurred almost a year before the conviction; and I.A. v. France, where the possibility that theapplicant had not acted alone in murdering his wife was initially seen as reasonable but its rel-evance failed when no supporting evidence for the hypothesis appeared and thus any fears ofcollusion were no longer compelling.

76 A substantial risk of collusion until trial was considered to exist in W v. Switzerland because of theexceptional extent of the case (a fraud involving the management of sixty companies), the extra-ordinary quantity of the documents seized and their intentionally confused state, the large numberof witnesses (including some abroad) to be questioned, the behaviour of the applicant before andafter release reflecting an intention of systematically deleting all evidence of liability (e.g., by falsi-fying or destroying accounts), and the fear of the applicant’s being able to eliminate items of evi-dence still hidden, to manufacture false evidence and to connive with witnesses, as well as theextension of the investigation to offences in Germany. It was undoubtedly significant in this regardthat the case-file indicated that in other proceedings the applicant had manufactured exoneratingevidence, antedated documents and manipulated witnesses. It should, however, be noted that thiswas not the sole justification for continued deprivation of liberty as there was also a risk of theapplicant’s fleeing; Switzerland had also relied on the need to prevent further offences being com-mitted but this had not been examined by the appellate courts, as the risk of collusion and flightwere considered justifications and the Court shared this view.

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The need to prevent crime

The need to prevent crime has been recognisedas a legitimate basis for continuing deprivation ofliberty where a serious charge is involved, but itmust be demonstrated that any concern about fur-ther offences being committed is a plausible oneand that the measure in the particular case is appro-priate. In making an assessment of these matters, allthe circumstances of the case and especially thepast history and personality of the person con-cerned must be taken into account. The fact that theperson concerned had previous convictions for thesame or similar offences to the one under investiga-tion would thus be significant, as would other of-fences apparently being committed between thebeginning of the investigation and the person beingcharged with the one (s) for which his or her deten-tion is sought.

77 However, the continued detention

of the person in such cases is likely to be inappro-priate where the offences concerned were not com-parable in either their nature or degree ofseriousness.

78 Moreover, suggestions that further of-

fences had been committed during any period ofprovisional release – which might be invoked to jus-tify a resumption of detention – would certainlyneed to be substantiated

79 and the argument that

financial difficulties would be a temptation to com-mit further offences is unlikely to be convincing.

80

Furthermore a psychiatric evaluation of the appli-

cant could be relevant but it should be borne inmind that these could indicate that therapeutic careis essential and that thereafter the continuation ofdetention without this would be inappropriate.

81 In

addition it would be inappropriate to seek to justifyprolonged deprivation of liberty by reference to thefear of repetition of an offence that by its very na-ture is likely to be a unique event.

82

The need to maintain public order

The need to maintain public order, includingconcern for the protection of an accused person,was recognized in Letellier v. France as something thatcould be a basis for continuing a deprivation of lib-erty. However, the Court underlined that it had inmind exceptional circumstances, namely, that itwould only be applicable where it could be demon-strated that the release of the person concernedwould actually disturb public order at that particulartime. It could not, therefore, be invoked as a way ofanticipating a custodial sentence which is really justanother way of taking into account the severity ofthe sentence. Nor could it be relied upon simply be-cause of the nature of the offence involved.

83

Although the possibility of a reaction to a gravecrime such as murder – whether on the part of rela-tives of the victim or the public in general – might besufficient to justify fears of disturbance, the Courtheld in Letellier that no concrete manifestations of

77 As in Assenov v. Bulgaria.78 Clooth v. Belgium, where

in a murder and arsoncase the applicant hadprevious convictions forattempted aggravatedtheft and desertion;Muller v. France, whereunspecified antecedentswere invoked in respectof an applicant accused ofseveral armed robberies.

79 In Stögmuller v. Austriathe Court emphasised thatonly some of the com-plaints cited as a justifica-tion had actually led to aprosecution.

80 This was particularly so inStögmuller v. Austria,where the applicant hadchanged his occupationfrom money-lender – withwhich activity the of-fences had been con-nected – to aviator.

81 In Clooth v. Belgium thepsychiatrists reported thatlong-term care wasneeded for the applicantas he suffered from seri-ous mental disturbanceswhich made it impossiblefor him to control hisactions.

82 See I.A. v. France, whichconcerned the applicant’salleged murder of hiswife. There was in any

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33

disorder had been cited and indeed the mother andsister of the deceased had not opposed the appli-cant’s release. The invocation of concern about re-prisals by a murder victim’s relatives was ineffectivein I.A. v. France because they were vague but also im-plausible, given that most of them lived in Lebanon.Furthermore, the Court emphasised that thisground could be invoked only for so long as publicorder continued to be threatened. It may well bethat action by members of the public will becomeless likely or improbable once the initial shock at aparticular offence has dissipated.

Bail conditions

Article 5 (3) guarantees the right to bail andcontains a strong presumption in favour of bailpending trial. The presumption grows stronger if thetrial is delayed. The refusal of bail may only be justi-fied under the four grounds identified by the Court –danger of flight, interference with the course of jus-tice, prevention of crime and preservation of publicorder – under the circumstances discussed in theprevious paragraphs.

Since the bail is designed to ensure the pres-ence of the accused at the hearing, its amount mustalso correspond to this aim. In Neumeister v. Austria,

84

where the domestic authorities calculated theamount of bail solely in relation to the loss imputedto the applicant, the Court found this contrary to

Article 5 (3), holding that the guarantee of bail needsto ensure the presence of the person accused to thehearing and not the reparation of the loss caused bythe accused. The guarantee asked for release mustnot impose on the accused a burden heavier thanrequired for a reasonable degree of security. The na-ture and the amount of the security measure desig-nated to ensure the accused’s attendance at thetrial must be related to and follow from the groundswhich had justified the pre-trial detention. While afinancial guarantee may be required to this end,

85 its

amount must be calculated by reference to the ac-cused, his or her assets and the relationship with theperson providing the security. The accused mustmake available information related to his or her as-sets while the domestic authorities are under a dutyto carefully assess this information for a proper as-sessment of the security to be calculated. The set-ting of an amount which is more than sufficient toreach the purpose of ensuring a “sufficient deterrentto dispel any wish on his part to abscond” wouldviolate the right to bail.

86 Guarantees other than

monetary, such as the surrender of a passport, canalso be required to the same end of ensuring the ac-cused’s presence at the trial.

87

Some particular circumstances justifying a highdanger of absconding may, however, make any amountof bail look insufficient. In Punzelt v. the Czech Republic,the domestic courts refused to release the applicanton bail (he had offered to pay up to CZK 15 000 000)

event no substantiation ofthe fear in this case.

83 See I.A. v. France, wherethe Court was not con-vinced by references indomestic court decisionsto either the nature of thecrime (the murder of theapplicant’s wife) or thecircumstances in which itwas committed.

84 27 June 1968.85 Wemhoff v. the Federal

Republic of Germany.86 Neumeister v. Austria.87 Stogmuller v. Austria.

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34

and on one occasion expressed the readiness to con-sider releasing the applicant, in view of his health prob-lems, if he paid a bail of CZK 30 000 000. The EuropeanCourt noted that given the scale of the applicant’stransactions (he had issued two dishonoured chequesamounting to the equivalent of CZK 28 400 000; priorto his arrest he had intended to buy two departmentstores for CZK 338 856 000 and CZK 236 000 000, andhe had undertaken to pay for them in instalments ofCZK 150 000 000) the refusal of release on bail and theimposition of a security higher than he offered did notinfringe Article 5 (3).

88

The length of pre-trial detention

Article 5 (3) requires that deprivation of libertypending trial should never exceed a reasonable time.The European Court held repeatedly that

continued detention may be justified in a given caseonly if there are clear indications of a genuine publicinterest which, notwithstanding the presumption of in-nocence, outweighs the right to liberty.

89

Moreover, the Court argued that the persist-ence of a reasonable suspicion that the person ar-rested has committed an offence is a condition sinequa non for the lawfulness of the continued deten-tion, but after a certain elapse of time it is no longersufficient. The Court must then establish if the othergrounds given by the judicial authorities continue tojustify the deprivation of liberty. Where such grounds

exist and are “relevant and sufficient”, the Courtproceeds to the next step, which is to ascertain ifthe competent authorities displayed “special dili-gence” in the conduct of the proceedings.

90

The period of the detention considered by theCourt runs from the moment of the arrest until themoment the person is released. If the person is notreleased during the trial, the period to be consid-ered ends when the first instance court issues a de-cision (of acquittal or conviction). The period ofdetention following conviction by the trial court –for example during the appeal proceedings – is nottaken into account. As the Court held, Article 5 (3)ceases to apply to detention following convictionby the trial court, which will be founded on the basisof Article 5 (1) (a).

91 However, if an appellate court

quashes the first judgment and a new trial is or-dered, the detention during the period between thequashing and the new judgment is also consid-ered.

91 This does not mean that the period of sen-

tence served until the initial judgment is quashedwill be considered as pre-trial detention for the pur-pose of Article 5 (3)

.93

It should also be noted that the Court is com-petent to consider only the periods of detentionfollowing the ratification of the European Conven-tion by the respondent State, although it will con-sider the extent of a deprivation of liberty prior tothat moment in assessing whether or not what fol-lows is reasonable.

94

88 25 April 2000; the Courtalso noted that the appli-cant would have been re-detained anyway giventhe extradition proceed-ings against him.

89 See, among others,Punzelt v. the CzechRepublic.

90 See W v. Switzerland,Assenov v. Bulgaria andPunzelt v. the CzechRepublic.

91 B. v. Austria, 28 March1990.

92 Punzelt v. the CzechRepublic.

93 I.A. v. France.94 Mansur v. Turkey,

Trzaska v. Poland, Jėčiusv. Lithuania and Kudlav. Poland.

95 Stögmuller v. Austria, Wv. Switzerland, Wemhoffv. the Federal Republic ofGermany. It is worth bear-ing in mind the averagesderived from comparativestudies which were citedby Judge Pettiti in hisdissent in W v. Switzer-land. These were lessthan two or three monthsin general and less than ayear with respect to eco-nomic offences and bank-ruptcies. These figuresmay not be accurate forthe enlarged Council of

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In determining what is “reasonable”, the Courthas never accepted the idea that there is a maxi-mum length of pre-trial detention which must neverbe exceeded since this would involve an assess-ment in abstracto and a judgment must always takeinto account all the special features of each case.

95

Any period, no matter how short, will always have tobe justified. The Court’s jurisprudence has provedthe significance of the particular circumstances of acase. While periods in excess of a year were consid-ered excessive,

96 periods between two and three

years were found both acceptable and objection-able.

97 A similar difference in the view can also be

seen of periods between three and four years.98

Periods beyond five years have not been found tobe justified.

99

A domestic law providing for a maximum peri-od of pre-trial detention would raise no problems ofcompatibility with the Convention. However, itwould undoubtedly be a mistake to be guided bysuch a maximum since it is the particular circum-stances of a case that will determine whether or nota reasonable time has been exceeded.

The cases in which longer periods have beenfound unobjectionable have tended to be the onesin which there have been difficulties caused by thecomplexity of the case, as a result of the nature ofthe offence

100 and/or the number of potential sus-

pects involved or the conduct of the accused per-son. However, factors which make a case

particularly complex can only justify the prolonga-tion of a deprivation of liberty where the relevantauthorities have actually shown “special diligence”in conducting the proceedings.

101 Many violations of

Article 5 (3) are the result of long periods of inactiv-ity in the handling of a case prior to trial,

102 or of de-

lays caused by experts, 103

inadequate facilities orworking practices,

104 staffing difficulties

105 and prob-

lems arising from the need to protect the identity ofa witness.

106

Violations of Article 5 (3) will definitely be foundin cases where the courts extend the pre-trial deten-tion for long periods of time under the argument ofseverity of the sentence faced with full disregard ofthe pertinent facts, such as: the arrested person hasa family and a stable way of life and after the passageof time any possible danger of collusion and ab-sconding had receded. This was the case in Ilijkovv. Bulgaria, where the applicant spent three years andfour months in pre-trial detention.

107 In addition, in

this case, the Court held that the domestic findings– that there were no exceptional circumstances war-ranting the release of the applicant – were unaccept-able and shifted the burden of proof to the detainedperson. The duty to prove the grounds for prolonga-tion of the pre-trial detention stays with the authori-ties and not with the detained person.

In the complex cases, long periods of time werefound unobjectionable if the Court was satisfied thatthe investigators had carried out their inquiries with

Europe but they are stilllikely to be a startingpoint for consideration ofwhether there are factorsin a case that makes amuch longer period ofpre-trial detention unob-jectionable. Furthermore,as the reasonablenessguarantee in Article 5 (3)only applies to thosedeprived of their liberty, itis important to bear inmind that rulings of theCourt as to reasonable-ness of the length ofcriminal proceedingsunder Article 6 (1) –which applies to all pro-ceedings – should not betaken as a guide as towhat is acceptable sincethe applicants will notalways have been de-tained and more leewaymight, therefore, be al-lowed to delay. In I.A.v. France and B. v. Aus-tria, the Court found aviolation of Article 5 (3)but not of Article 6 (1).

96 Jėčius v. Lithuania (14months and 26 days).

97 Letellier v. France (2 yearsand 9 months); Punzeltv. the Czech Republic (2years and 6 months),Stögmuller v. Austria (2years and 1 day), Kudla v

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the necessary promptness and that no delay hadbeen caused by shortages or personnel or equip-ment.

108 In such cases it can be particularly signifi-

cant that a special unit has been created to deal withthe case or that additional resources have been pro-vided for existing ones expected to handle a case ofan exceptional character; but above all it will be es-sential to demonstrate that the overall length ofproceedings had been kept under review and that allpossible efforts to expedite them had been taken.The exercise of such review and the encouragementof expedition will be a particular responsibility of thecourt when considering applications for release.

A suspect is not considered by the Court to beunder any obligation to co-operate but his conduct innot doing so will be recognised as a factor in slowingthe overall progress of an investigation. Lack of co-operation, as well as actual obstruction, will thus alsobe considered in assessing whether or not the totalperiod of pre-trial detention is excessive.

109 In any

event no reliance can be placed on allegedly obstruc-tive conduct to excuse the length of pre-trial deten-tion that has already become unreasonable.

110 In

Jablonski v. Poland, 111

the domestic courts extended theapplicant’s detention beyond the statutory time-limit(three years) because he had previously inflicted inju-ries on himself and had thus obstructed the progressof the trial. The European Court found a violation ofArticle 5 (3), arguing that the national courts – whenthey decided that the applicant should be kept in de-

Poland (two years, four months and three days).98 Such a period was considered acceptable in W v. Switzerland (4 years and 3 days) but found ob-

jectionable in Clooth v. Belgium (3 years, 2 months and 4 days), Muller v. France (3 years, 11months and 27 days), Česk v. the Czech Republic (3 years, 3 months and 7 days), Trzaskav. Poland (3 years 6 months), Barfuss v. the Czech Republic (3 years, 5 months and 19 days).

99 Birou v. France, 27 February 1992 (5 years, 2 months and 27 days) (a friendly settlement); I.A.v. France (5 years 3 months) (in this case the justifications had, however, ceased to be effectivelong before the end of this period).

100 This will be particularly true of offences involving fraud but it will apply to any which entail a largevolume of documentation and many witnesses. For example, W v. Switzerland, 26 January 1993(an extensive fraud involving the management of sixty companies).

101 Although this is required in all cases, the Court saw it as particularly important in Assenov v. Bul-garia, 28 October 1998, where a minor was involved.

102 Assenov v. Bulgaria, where there was virtually no activity for a year; Punzelt v. the Czech Repub-lic, where the trial court did not deliver its second judgment until ten months after the first one hadbeen quashed; Barfuss v. the Czech Republic, where was no explanation – other than that thecase was complex – for an 11-month gap between being remanded in custody and being charged,as well as a further eight months’ delay between the quashing of a decision ordering further inves-tigations and the first substantive hearing of the case.

103 Generally the failure to submit a report within the deadline set; see Clooth v. Belgium.104 Assenov v. Bulgaria, where the Court held that time was unnecessarily lost as a result of the inves-

tigation’s being effectively suspended every time the applicant lodged an appeal for release be-cause of the practice of sending the original file rather than a copy of it to the relevant authority.

105 Stögmuller v. Austria, in terms of the level being adequate; Clooth v. Belgium and Mullerv. France, the change in persons responsible for a case arising from promotions, reassignments andretirements; Trzaska v. Poland, where proceedings came to a standstill for nine months when thecomposition of the court had to be changed after the judge rapporteur fell ill.

106 Clooth v. Belgium.107 26 July 2001.108 For example, W v. Switzerland.109 W v. Switzerland, where the applicant refused to make any statement to those investigating a fraud

arising out of his management of sixty companies.110 Stögmuller v Austria.111 21 December 2000.

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tention in order to ensure the proper conduct of thetrial – failed to consider any alternative “preventivemeasure” such as bail or police supervision.

3. Convicted offenders

Article 5 (1) (a) allows “the lawful detention of aperson after conviction by a competent court”. Forthe purpose of this provision, a conviction means thefinding of guilt for a committed offence. It clearlydoes not cover pre-trial detention or other preven-tive security measures. Along with the typical situa-tion of serving a prison sentence following aconviction for an offence, Article 5 (1) (a) will alsocover the detention in a mental institution for treat-ment as mentally disordered of a person foundguilty of committing an offence. Convictions mayfollow proceedings establishing guilt for criminal aswell as for disciplinary offences. In the Conventionmeaning, a conviction is one decided by a trial court(first instance court); and therefore detention pend-ing appeals falls under this provision. In the Wemhoffcase, the Court held that

a person convicted at first instance, whether or not hehas been detained up to this moment, is in the positionprovided for by Article 5 (1) (a), which authorises dep-rivation of liberty “after conviction”. This last phrasecannot be interpreted as being restricted to the case offinal conviction.

Further, in B. v. Austria, the Court held thatit could not be overlooked that the guilt of a person whois detained during the appeal or review proceedings hasbeen established in the course of a trial conducted inaccordance with the requirements of Article 6,meaning a trial before the first instance court.The conviction must be decided by a “compe-

tent court”, meaning a body with jurisdiction tohear the case as well as a body which is independ-ent by the executive and the parties and which pro-vides adequate judicial guarantees – although it isnot necessary that its members be jurists.

112 Deci-

sions adopted by the police, by a public prosecu-tor, by a military commander or by anadministrative body will not satisfy these require-ments. The conviction may be also be issued by aforeign court, whether that country is a party to theConvention or not. What is important for havingArticle 5 (1) (a) applied is that the convicted personserves the sentence in a country party to the Con-vention.

113 The issue of “adequate judicial guaran-

tees” in cases where conviction is ordered byforeign courts was raised in Drozd and Janousekv. France and Spain, where the Court held that unlessthe conviction ordered by courts of a non-partycountry was “the result of a flagrant denial of jus-tice”, its serving in a country party to the Conven-tion falls under Article 5 (1) (a).

114

The “lawfulness” of the detention does not re-quire a lawful conviction but a lawful detention only,

112 X v. Austria (1968 and1969); De Wilde, Oomsand Versyp v. Belgium;Engel v. the Netherlands;Eggs v. Switzerland;Neumeister v. Austria.

113 X v. the Federal Republicof Germany; Drozd andJanousek v. France andSpain, 26 June 1992.

114 In this case the applicantsserved in France a sen-tence ordered for a con-viction established bycourts in Andorra. Seealso Perez v. France,24 October 1995.

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meaning that the detention must be in accordancewith the national law and the Convention. The law-fulness requirement means that the particular prisonsentence must have a basis in a conviction by a“competent court” and that the facts to which thesentence relates constitute an offence permittingthe imposition of the imprisonment in accordancewith the domestic law at the time the offence wascommitted. Under Article 5 (1) (a), the EuropeanCourt cannot review the legality of a conviction or ofa sentence.

115 Equally, a person may not challenge

the length and the appropriateness of a prison sen-tence under this provision

116 nor the conditions of

detention.117

Article 5 (1) (a) requires a causative link – notonly a chronological one – between the convictionand the detention. Therefore, if a person convictedis sentenced by a court to a term of imprisonmentand thereafter to further detention as a result of anadministrative decision, Article 5 (1) (a) will alsocover the later detention of there is a sufficient con-nection between the administrative detention andthe initial court sentence.

118 In order to fall under

this provision, a detention must follow a convictionin terms of time but must also “result from, followand depend on or occur by virtue of the conviction.”119

In Weeks v. the United Kingdom, the Court held thatthe causal link might eventually be broken if “a deci-sion not to release or to re-detain were based ongrounds that were inconsistent with the objectives

of the sentencing court”. In such circumstances, “adetention that was lawful at the outset would betransformed into a deprivation of liberty that was ar-bitrary and, hence, incompatible with Article 5”.

4. Extradition

Article 5 (1) (f) permits “the lawful arrest or de-tention of a person… against whom action is beingtaken with a view to deportation or extradition”. De-tention will fall under this provision even though de-portation or extradition does not in fact occur oreven in the absence of a formal request or order forextradition provided that inquiries have been made.Inquiries would amount to “action” being taken inthe meaning of Article 5 (1) (f).

This provision contains certain guaranteeswhere the authorities arrest or detain a person(most often an alien) pending a decision on his orher deportation or extradition. Thus, the arrest ordetention must be “lawful”, meaning that it must bein accordance with the domestic law and the Con-vention and must not be arbitrary.

Although the Strasbourg organs distinguishedbetween the lawfulness of the detention and thelawfulness of the extradition,

120 they also found that

in reviewing the lawfulness of the detention, thelawfulness of the extradition would often be an is-sue, in particular when the national law itself pro-

115 Krzycki v. the FederalRepublic of Germany;Weeks v. the UnitedKingdom.

116 In Weeks v. the UnitedKingdom, where the ap-plicant had been con-victed to harsh lifeimprisonment, the Courtreferred to the prohibitionof inhuman punishmentin Article 3 and not toArticle 5.

117 Bizzoto v.Greece,15 November1996, where the appli-cant complained aboutthe place and the condi-tions of detention. TheCourt held that althoughthere must be some rela-tionship between theground of permitted dep-rivation of liberty and theplace and conditions ofdetention, it found thatthe applicant’s detentionfollowed a criminal con-viction and fell thereforeunder Article 5 (1) (a). Seealso Ashingdane v. theUnited Kingdom. InBizzoto, the Courtpointed out that the placeand conditions of deten-tion may raise an issueunder Article 3.

118 Van Droogenbroeckv. Belgium, 24 June 1982.

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vides for dependency between the lawfulness of thedetention and that of the extradition. This is why itis very important to postpone the extradition or de-portation until the legality of the detention is re-viewed, since the result could affect the legality ofthe extradition or deportation itself. Moreover, inview of the guarantees provided in Article 5 (4), theextradition or deportation should always be post-poned until a court has had the opportunity to re-view the legality of the detention and, ifappropriate, order the release.

The lawfulness of the detention with a view toextradition was an issue in Bozano v. France, wherethe Court found that the applicant’s detention wasunlawful and therefore contrary to Article 5 (1) (f).The Court decided that the deportation of the ap-plicant from France to Switzerland was arbitrary:although a French court had refused Italy’s requestfor the applicant’s extradition, the French govern-ment made a deportation order against him; theauthorities waited about a month before servingthe deportation order, prevented the applicant touse any judicial avenue, to contact his wife andlawyer or to nominate a country for deportation;the applicant was forcibly taken by police acrossFrance to the Swiss border, taken into custody inSwitzerland and later extradited to Italy. The Courtfound that the circumstance of the case provedthat the applicant’s detention was a disguisedform of extradition that could not be justified

under the Convention.The lawfulness of the detention with the view to

deportation was recently examined in Dougozv. Greece, where the Court found a violation of Arti-cle 5 (1) (f). Although there was a legal basis for de-portation in the national law, the Court observedthat the expulsion was ordered by another bodythan the one provided by the national law – follow-ing the opinion of a senior public prosecutor con-cerning the applicability by analogy of a ministerialdecision on the detention of persons facing admin-istrative expulsion – and that the “public danger” re-quirement in the national law was not fulfilled. Inaddition, the Court held that the opinion of a seniorpublic prosecutor concerning the applicability byanalogy of a ministerial decision on the detention ofpersons facing administrative expulsion did not con-stitute a “law” of sufficient “quality” within themeaning of the Convention.

121

Although Article 5 (1) (f) does not set time-limitson the length of the detention, the Commissionstated that extradition or deportation proceedingsmust be conducted with “requisite diligence.” InLynas v. Switzerland the Commission made it clearthat if

the proceedings are not conducted with requisite dili-gence or if the detention results from some misuse ofauthority it ceases to be justifiable under 5 (1) (f).Within these limits the Commission might thereforehave cause to consider the length of time spent in deten-

The applicant was sen-tenced by a criminal courtto two years’ imprison-ment and was ordered tobe placed at the disposalof the Government for tenyears. After he had servedthe two-year prison sen-tence, the applicant wasdeprived of liberty on twooccasions by Governmentdecisions following hisdisappearances. TheCourt held that the sen-tence to imprisonmentand the order to beplaced at the Govern-ment’s disposal consti-tuted an “inseparablewhole”.

119 X v. the United Kingdom,5 November 1981; VanDroogenbroeck v. Bel-gium; Weeks v. theUnited Kingdom.

120 Caprino v. the UnitedKingdom (1975), wherethe Commission held thatthe outcome of the depor-tation proceedings isirrelevant for the justifica-tion of the detention, if alawful deportation proce-dure has been institutedand is being seriouslypursued.

121 6 March 2001

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tion pending extradition….122

However, if the detention pending extradition isdelayed in the interest or at the request of the per-son concerned, the latter could not claim to be avictim of a prolonged detention. For instance, in Xv. the Federal Republic of Germany

123 the 22 months of

detention pending extradition were found justifiablesince the German authorities used this time to makeattempts to obtain guarantees from the TurkishGovernment that the applicant would not be sub-jected to the death penalty once extradited. Or, in

Kolompar v. Belgium, 124

the almost three years of de-tention pending extradition were also found justifi-able as the applicant himself had in various waysdelayed or contributed to postponing the proceed-ings.

The lawfulness requirement includes the qual-ity of the national law, meaning that this should beaccessible and foreseeable, and formulated withsufficient precision. However, although such claimswere declared ill-founded,

125 this issue could be

successfully raised before the Court.

122 Appl. No. 7317/76.123 Appl. No. 9706/83. The

applicant was not extra-dited in the absence ofsuch assurances.

124 24 September 1992.125 Zamir v. the United King-

dom, Appl. No. 9174/80.

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Section III: Other justifica-tions for deprivation ofliberty

Arrest and detention may follow in circum-stances other than those involving criminal pro-ceedings. These are exhaustively listed in Article 5(1) and they have to be given a narrow interpreta-tion. The “lawfulness” requirement discussedabove

126 is equally applicable to all the situations

where the deprivation of liberty is permitted. Arrestand detention must be in accordance with thenational law and the Convention and must not bearbitrary.

1. Court order and obligationprescribed by law

Article 5 (1) (b) permits arrest or detention of aperson “for non-compliance with the lawful order of acourt or in order to secure the fulfilment of any obli-gation prescribed by law”. The first situation wherearrest and detention is allowed could follow, for in-stance, a person’s failure to pay a court fine or to un-dertake a medical examination or to appear as awitness, or failure to observe the residence restric-tions or to make a declaration of assets.

127 In all

cases, the obligation must necessarily arise from a le-gal order of the court. In Slavomir Berlinski v. Poland, theCourt found that the applicant’s compulsory place-ment in a mental hospital was carried out in the con-text of criminal proceedings against him in order tosecure the court order to examine his mental state fordetermining his criminal responsibility. Once satisfiedthat the detention followed a court order, the Courtverified the lawfulness requirement and found thatthe detention had complied with a procedure pre-scribed by law and it was not arbitrary.

128

The second categories of situations covered bythis provision appear to be less clear. However, theStrasbourg organs held that the expression “any ob-ligation prescribed by law” relates to a specific orconcrete obligation.

129 Where authorities invoke just

prevention of violation of norms in general thespecificity requirement is not fulfilled. Such a spe-cific obligation could be to carry out military or civil-ian service, to carry an identity card, to make acustoms or tax return, or to live in a designated lo-cality.

130 In Engel v. the Netherlands, where the authori-

ties invoked this provision in order to justify “strictarrest” as a provisional measure, the Court foundthat the general obligation to comply with militarydiscipline was not sufficiently specific. In Ciullav. Italy the applicant’s detention was justified by hisfailure to comply with the obligation to change hisbehaviour and that was not considered a specificand concrete obligation. In the McVeigh case the

126 Section I.2.127 Airey v. Ireland; X

v. Austria; Freda v. Italy;X v. the Federal Republicof Germany.

128 18 January 2001.129 Lawless v. Ireland, 1 July

1961; Ciulla v. Italy.130 Johansen v. Norway; B

v. France; Ciulla v. Italy;McVeigh, O’Neill andEvans v. the United King-dom.

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Commission found that a person’s obligation, whenentering the United Kingdom, to submit to an exami-nation by an officer is a specific and concrete obliga-tion and consequently, the detention to secure itsfulfilment was in principle permitted under Article 5(1) (b). In this case, the Commission framed the testto be applied to facts raising issues under this provi-sion of the Convention:

In considering whether such circumstances exist, accountmust be taken… of the nature of the obligation. It is nec-essary to consider whether its fulfilment is a matter of im-mediate necessity and whether the circumstances are suchthat no other means of securing fulfilment is reasonablypracticable.… The duration of the period of detention isalso a relevant factor in drawing such a balance.The refusal to execute a contractual obligation,

even where imposed by a civil sentence, does notfall under Article 5 (1) (b). According to Article 1 ofProtocol No. 4, deprivation of liberty for the failureto fulfil a contractual obligation is prohibited.

2. Detention of minors

Article 5 (1) (d) permits “the detention of a minorby lawful order for the purpose of educational super-vision” or “his lawful detention for the purpose ofbringing him before the competent legal authority.”Under the Convention, the term “minor” has an au-tonomous meaning and covers all persons under 18.

The first ground of detention applies in caseswhere a court or an administrative body decides by alawful order to place a minor under supervision com-bined with a restriction of liberty such as an enforcedstay in a reformatory institution or in a clinic. InBoumar v. Belgium

131 the Court held that the detention

of a minor in a reformatory institution or in a prisonprior to his speedy transfer to a reformatory was au-thorised under Article 5 (1) (d). However, the Courtfound a breach of this provision since the minor – aseriously disturbed and a delinquent boy – was con-fined nine times in a remand prison for a total of 119days in less than one year. The Court held that theauthorities were under an obligation to provide forappropriate facilities in order to achieve the educa-tional objectives; the detention of a juvenile

in conditions of virtual isolation and without the as-sistance of staff with educational training cannot be re-garded as furthering any educational aim.In Nielsen v. Denmark the Court held that the de-

tention of a child in a psychiatric hospital against hiswill but following the request of his mother was nota deprivation of liberty but a “responsible exerciseby his mother of her custodial rights in the interestsof the child”.

132 In Suzie Koniarska v. the United King-

dom, where the orders to place the minor in secureaccommodation were made by the courts, theCourt found that the applicant had been deprivedof her liberty as the courts did not have custodialrights over the applicant. However, the Court found

131 29 February 1988.132 28 November 1988.

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that the detention had been ordered “for the pur-pose of educational supervision” and was thereforein accordance with Article 5 (1) (d) since the appli-cant – a minor suffering from a psychopathic dis-order – was sent to a specialist residential facility forseriously disturbed young people with a seriouseducational programme.

133

The second ground is concerned with the de-tention of minors for the purpose of bringing thembefore a court to secure their removal from harmfulsurroundings. This situation will not cover the de-tention of a minor suspected of or charged with acriminal offence. It will cover, however, the deten-tion of a minor accused of a crime during the psy-chiatric observation and preparation of the reportrecommending a decision with regard to the minoror the detention during the court proceedings plac-ing the minor in child care.

134

3. Detention of persons of un-sound mind, alcoholics, drugaddicts, vagrants or in order toprevent the spread of infectiousdiseases

Article 5 (1) (e) permits the lawful detention of“persons for the prevention of the spreading of in-fectious diseases, of persons of unsound mind, al-

coholics or drug addicts or vagrants”. For the reasonwhy persons belonging to some of these categoriesmay be detained, the Court held “not only that theyhave to be considered as occasionally dangerous forpublic safety but also that their own interests maynecessitate their detention.”

135

With regard to the meaning of “persons of un-sound mind” the Court held that this term may notbe given a “definitive interpretation” following thecontinuing development of the medical under-standing of mental disorder.

136 Definitely, a person

may not be detained under this provision “simplybecause his views or behaviour deviate from thenorms prevailing in a particular society”.

137 Whether

a person is of unsound mind or not shall be deter-mined in accordance with the national law, its appli-cation in a particular case and the currentpsychiatric knowledge.

However, the detention must be “lawful”,meaning that it has to be in accordance with the law,including both substantive and procedural norms,with the Convention and must not be arbitrary. Inthe Winterwerp case the Court laid down the criteriato be fulfilled in order to qualify the detention of aperson of unsound mind as “not arbitrary”:i. the mental disorder must be established by ob-

jective medical expertise;ii. the nature or degree of the disorder must be

sufficiently extreme to justify the detention;iii. detention should only last as long as the medi-

133 12 October 2000.134 X v. Switzerland (1979)

and respectively Bouamarv. Belgium.

135 Guzzardi v. Italy (personsof unsound mind, alco-holics and drug addicts).

136 Winterwerp v. the Neth-erlands, 24 October1979.

137 Idem.

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cal disorder and its required severity persist;iv. in cases where the detention is potentially in-

definite, periodical reviews must take place by atribunal which has to power to discharge;

v. detention must take place in a hospital, clinic orother appropriate institution authorised to de-tain such persons.

138

The first condition does not apply in emergen-cies. For instance, the applicant in the Winterwerpcase was taken to a psychiatric hospital by a burgo-master, without prior medical advice, after he hadbeen found lying naked in a police cell.

139 However, it

is expected that while some circumstances might al-low the emergency detention, a medical confirma-tion, at least provisional, must be obtained in a veryshort time following the detention. In Varbanov v. Bul-garia the applicant was detained pursuant to a pros-ecutor’s order which had been issued withoutconsulting a medical expert. The Court found thatthe detention was unlawful as the applicant “was notreliably shown to have been of unsound mind”. TheCourt reached this conclusion after observing that inthe instant case “a prior appraisal by a psychiatrist,at least on the basis of the available documentaryevidence, was possible and indispensable”. TheCourt noticed that there was no claim that the caseinvolved an emergency, that the applicant did nothave a history of mental illness and had apparentlypresented a medical opinion that he was mentallyhealthy. Under these circumstances, the Court

found unacceptable the applicant’s arrest and de-tention based on the views of a prosecutor and apolice officer on the applicant’s mental health, inthe absence of an assessment by a psychiatrist.

140

It is also important to note that Article 5 (1) (e)does not carry with it an implied “right to treatment”as claimed by the applicant in the Winterwerp case,who had argued that appropriate treatment was im-plied “in order to ensure that he is not detainedlonger than absolutely necessary”. In the Ashingdanecase, however, the Court held that there must be“some relationship between the ground of permit-ted deprivation of liberty relied on and the placeand conditions of detention”, meaning that the ex-ecution of the order depriving a person of unsoundmine of his or her liberty is also part of the lawful-ness requirement. However, the failure to providemedical treatment to a person of unsound mind de-tained could well raise an issue under the prohibi-tion of “inhuman treatment” in Article 3.

The issue of vagrants came before the Court inthe case of De Wilde, Ooms and Versyp v. Belgium. TheCourt accepted in principle, for the meaning of Arti-cle 5 (1) (e), the definition of vagrants in the BelgianPenal Code: “persons who have no fixed abode, nomeans of subsistence and no regular trade or pro-fession”. In Guzzardi v. Italy the Court rejected thegovernment’s claim that suspected members of themafia lacking identifiable sources of income fellunder the term of “vagrants”. In the Belgian case,

138 See also X v. the UnitedKingdom (1981);Ashingdane v. the UnitedKingdom (1985).

139 Although the Court foundthis emergency detention“legal”, Dutch law hasbeen changed in thesense that prior medicaladvice is needed.

140 5 October 2000.

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where the applicants were detained further to theirown wish, the Court held that the right of libertymay not be given up and a judicial decision wasneeded even where the detainee consented to dep-rivation of liberty.

Although there have been few complaints re-lated to detention of drug addicts, alcoholics or inorder to prevent the spread of infectious diseases,it is implicit that the Court adopts an approach simi-lar to that of persons of unsound mind where evalu-ating the validity of detention. Determining themeaning of “alcoholics” for the purpose of Article 5(1) (e), in the case of Witold Litwa v. Poland, the Courtheld that

persons who are not medically diagnosed as “alcohol-ics”, but whose conduct and behaviour under the influ-ence of alcohol pose a threat to public order orthemselves, can be taken into custody for the protection

of the public or their own interests, such as their healthor personal safety.However, the Court also held that this does not

mean that “the detention of an individual merely be-cause of his alcohol intake” is permitted under Arti-cle 5 (1) (e). Further, the Court found that theapplicant’s detention in a sobering-up centre was ar-bitrary as his behaviour had not been shown to posea threat to the public or to himself, and that the al-ternative measures provided for by the domestic lawfor an intoxicated person were not considered. TheCourt observed that in accordance with the domes-tic law “an intoxicated person does not necessarilyhave to be deprived of his liberty since he may wellbe taken by the police to a public-care establish-ment or to his place of residence”. Concluding, theCourt found the applicant’s detention in a sobering-up centre unlawful.

141

141 4 April 2000.

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Section IV: Duty to givereasons promptly for arrest

Paragraph 2 of Article 5 contains a key safeguardagainst abuse of power to deprive someone of his orher liberty: everyone who is arrested shall be in-formed promptly, in a language which he under-stands, of the reasons for his arrest and of any chargeagainst him. This should enable the person affectedto understand what is happening to him or her and toconsider the appropriate challenge of this measure. Inmany cases of justified deprivation of liberty an expla-nation may have the beneficial effect of making itclear that resistance is not appropriate and therebyfacilitate the task of the officials involved. In addition,the need to explain why such a measure is beingtaken is likely to encourage public officials to considerwhether they are acting within the limits of their pow-ers and to avoid taking action for which no adequatejustification can be given. Certainly the reasons given– or the lack of them – will ultimately be a significantfactor for the judicial body called to decide on the ac-ceptability of the deprivation of liberty. In fulfilling theobligation to give reasons, the key considerations arethe circumstances in which the duty arises, the natureof the explanation that must be given, the extent towhich this explanation must be intelligible to the per-son actually affected and the amount of time that canelapse before it is given.

1. When the duty arises

In imposing the obligation to give reasons, Arti-cle 5 (2) refers to a person who is “arrested” and tothe existence of a “charge”. This wording should notlead to the conclusion that the need to give reasonsonly arises in the context of criminal proceedings. Itis now well established that reasons must be givenin any situation where someone has been deprivedof his or her liberty. A person cannot exercise theright to challenge the lawfulness of any and everydeprivation of liberty without being aware of thereasons for it. Furthermore, it should be kept inmind that the duty is applicable to each and everydeprivation of liberty so that the reimposition ofsuch a measure after some form of provisional re-lease – whether in the form of bail or the release of aconvicted offender on licence – would require anexplanation, even though the original deprivationhad been explained.

142

2. The nature of the explanation

In Fox, Campbell and Hartley the Court empha-sised that the explanation must offer the personconcerned the essential legal and factual groundsfor the deprivation of liberty which would then allowthe person to apply to a court in order to challengethe lawfulness of the arrest or detention. Therefore

142 See Appl. No 4741/71, Xv. Belgium, 43 CD 14(1973). The Court did notfind it necessary to ruleon this point in X v. theUnited Kingdom, 5 Nov-ember 1981, but it didemphasise the importanceof an explanation for theeffective exercise of theright under Article 5 (4) tochallenge the legality ofany deprivation of liberty.

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it would be insufficient simply to refer to the formalstatutory provision authorising a deprivation of lib-erty as initially occurred in Fox, Campbell and Hartley.There is a need to give some indication of the sub-stantive basis for using that provision, since this willindicate whether the particular circumstances comewithin its ambit and whether or not its use in thespecific context is arbitrary. In Fox, Campbell andHartley the requirements of Article 5 (2) were ulti-mately satisfied in the view of the Court because thereasons were regarded as having been made clearthrough the applicants’having been questionedabout specific criminal acts and suspected member-ship of a proscribed organisations. The ruling in thiscase underlined that a degree of specificity is re-quired in order to satisfy Article 5 (2). Without someindication of the particular conduct which forms thebasis for a deprivation of liberty, the person affectedis unlikely to be able to determine whether there hasbeen a justifiable use of the power being invoked.

143

In many instances the explanation is perhaps bestgiven by a direct statement to the person affectedby the official depriving him or her of his liberty. Forexample, telling the person that he or she has beensuspected of involvement in the theft of somethingfrom a particular house on a given day.

In a criminal case the duty to give reasons islikely to entail some information being given bothabout the offence of which the person is suspectedand the way in which he or she is involved in its com-

mission. Similarly, where the deprivation is based on aperson’s mental illness, there would have to be someindication of his or her behaviour considered to giverise to concern and the diagnosis regarded as justify-ing the course of action which is being taken. Equally,in the case of detention prior to extradition, the per-son affected would need to be apprised of the par-ticular offence involved and the existence of arequest for this by a particular country.

The obligation under Article 5 (2) is more lim-ited than the duty imposed by Article 6 (3) (a) to in-form an accused person of the nature and cause ofthe accusation against him; much more detail is re-quired in the latter situation because this will be es-sential for the preparation of a defence at theforthcoming trial.

3. The intelligibilityof the explanation

It is important that the explanation be worded innon-technical language. Many people deprived of theirliberty will not have either the intellectual capacity orprofessional experience to disentangle the complexi-ties of the law. The overriding consideration is that theperson affected must understand what is happening tohim or her and therefore there will always be a need totake into account the specific capacities of an indi-vidual. Such an objective may be achieved where offi-

143 Cf Raišelis v. Lithuania,where it was alleged thateither no reasons weregiven or that referencewas made to a number ofstatutory provisions butno concrete offences;2 March 1999 (admissibil-ity decision) and 29 Feb-ruary 2000 (friendlysettlement).

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cial documents – such as a warrant or court order –authorising deprivation of liberty are expressed in lan-guage that is generally intelligible. However, this is notalways feasible and, since no precise form of communi-cation is required by Article 5 (2), clarifications by offi-cials relying on the official documents can be entirelyacceptable. Of course, this may sometimes require ex-tra efforts by them to communicate in straightforwardand simplified language. In cases where effective com-munication is not possible because of a person’s ageor mental state, the explanation ought to be given to aperson having custody over him or her – such as a par-ent in the case of a very young child – or someone oth-erwise authorised to represent the interests of theperson concerned.

Where the person deprived of liberty does not un-derstand the official language, the explanation must begiven in a language that the person understands (thiswould include Braille or signing). This should not, how-ever, be problematic in most cases since the explana-tion need not be given at the initial moment ofapprehension and there will thus be an opportunity tofind someone who can give an explanation in a lan-guage that the person does understand.

144

4. Timing

Article 5 (2) stipulates that that the reasonsmust be given “promptly” rather than “immedi-

ately”. A failure to give an adequate explanationwhere one is possible might in itself be sufficient forthe deprivation of liberty to be seen as arbitrary andthus unlawful for the purposes of Article 5.

The acceptability of the interval between theinitial apprehension and the moment when an ad-equate explanation is given will depend very muchon the circumstances of the particular case. In caseswhere the subsequent questioning of a suspect hasbeen found to have been enough for someone tounderstand the reasons for being deprived of lib-erty, the Court has not objected to intervals lastingbetween two and nineteen hours. The former oc-curred in Murray v. the United Kingdom and the latterwas the period in Dikme v. Turkey.

145 However, in these

and other cases the Court has emphasised that theinterval was just a few hours.

146 It is unlikely that in-

tervals of more than a day would now be acceptablein most cases. However, it is conceivable that alonger period might be acceptable where there arepractical difficulties in effecting communication,such as where an interpreter cannot readily be ob-tained. Nevertheless there is no reason to assumethat, outside of the criminal process, greater lati-tude will be allowed when interpreting “promptly”;certainly in Van der Leer v. the Netherlands a ten-daydelay in informing someone of the reasons why shewas being confined in a mental hospital was readilyregarded as unacceptable. Certainly the reasons forknowing why one has been deprived of liberty are

144 See Appl. No. 2689/65,Delcourt v. Belgium,10 YB 238 (1967), wherethe warrant under whicha French-speaking personwas arrested was inDutch, but the subse-quent interrogation wasconducted in French.

145 11 July 2000.146 See Fox, Campbell and

Hartley (seven and a halfhours) and Kerr v. theUnited Kingdom (admissi-bility decision).

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just as pressing even if criminal proceedings are notinvolved and the right to challenge the legality ofsuch a measure is equally applicable. However, nospecial efforts at communication will be requiredwhere the person being deprived of liberty – forwhatever reason – has made it impossible to givehim or her an explanation; thus in Keus v. the Nether-lands

147 no violation of Article 5 (2) was established

where a mentally disordered person had abscondedbefore being told about the decision to confine himin a hospital. The reasons for the confinement wereconsidered as being adequately communicatedwhen he telephoned the hospital concerned andthere was no additional duty laid on the authoritiesto notify his lawyer before this that such a decisionhad been taken.

147 25 October 1990.

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Section V: Duty to bringdetained persons promptlybefore a judicial officer andfor trial within a reasonabletime or release

Paragraph 3 of Article 5 incorporates a numberof essential guarantees in order to make deprivationof liberty an exception to the rule of liberty and toensure that judicial supervision over arrest and de-tention is in place. This paragraph is only concernedwith detention pursuant to Article 5 (1) (c).

The obligation in Article 5 (3) to ensure that ju-dicial supervision is exercised over arrest and deten-tion comprises three elements: the character of theperson exercising that supervision; the authority tobring that detention to an end, in other words to re-lease the person concerned; and the timelinesswithin which the supervision occurs.

1. The character of the competentlegal authority

Article 5 (3) firstly requires that a person ar-rested or detained in accordance with the provisionof paragraph 1 (c) shall be brought promptly beforea judge or other officer authorised by law to exer-cise judicial power. While the term “judge” does notraise questions, the expression “officer authorisedby law to exercise judicial power” obliged the Courtto identify such an “officer” who is someone otherthan a judge.

There is no doubt that many people, when theConvention was initially adopted, thought that this“officer” could be the prosecutor. This was, after all,the practice in a number of Council of Europe coun-tries and concern was given to ensuring that the po-sition of the prosecutor satisfied the criterionspecified in Article 5 (3), namely, that the prosecutorbe a person “authorised to exercise judicial power”.Particular emphasis was placed on ensuring that theoffice of prosecutor had the same sort of independ-ence from the executive as that enjoyed by a judge.

However, in practice, it has proved impossiblefor prosecutors to be able to play this role consist-ently with the requirements of the Convention. Thecondition that the “officer” must be able to exer-cise judicial power means that the respective “of-ficer” is independent of the executive as well asimpartial. This approach has led the Court to find

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that the conferment on a prosecutor of the powerto decide whether a suspect’s detention should becontinued at any point prior to trial was not com-patible with Article 5 (3). The problem has alwaysarisen out of the possibility of the prosecutor –who decides on the issue of detention – subse-quently having a role in the prosecution of the per-son concerned. In the Court’s view the twofunctions of investigation and prosecution couldnot be performed by the same person. The basicproblem is that the prosecutor is a party to theproceedings and the person taking that role couldnot, therefore, be expected to be impartial whenperforming a judicial function in the same case.The important concern is whether or not there is apossibility of the prosecutor’s later becoming in-volved in the actual prosecution of the case. Thiswas sufficient in Huber v. Switzerland for the Court toconclude that the district attorney in Zurich didnot satisfy the requirements of Article 5 (3). Simi-larly in Brincat v Italy,

148 a violation of Article 5 (3)

occurred in a case where the detention of the ac-cused had been confirmed by a prosecutor whosubsequently concluded that he did not have terri-torial jurisdiction over the case and it was handedover to the prosecutor in another district. TheCourt emphasised that, as the objective appear-ance when the first prosecutor confirmed the de-tention was that he might intervene in thesubsequent proceedings, doubts about his impar-

tiality were justified and it was immaterial that itlater became clear that he lacked jurisdiction. Thefact that the prosecutor did not become one of theparties was purely fortuitous and the ruling led tothe removal from the Italian code of procedure ofthe power of prosecutors to order or confirm de-tention.

It should be emphasised that the problem ofimpartiality can also affect the position of judges;there is an extensive body of case-law concernedwith whether a judge’s involvement in pre-trial deci-sions is such that he or she lacks objective impartial-ity to preside over the trial; and this will invariably bethe case where some judgment has to be formed asto whether the detained person is or is not guilty.

However, the problem of objective impartialityis likely to be much more acute given the structureof prosecution systems and it is not surprising thatmany countries have followed the example of Italy,since it is hard to guarantee in advance that a persontaking a detention decision will not subsequently beinvolved in the prosecution. If there is certainty thatthis is not going to be a problem, then there will alsobe a need to ensure that the prosecutor is truly in-dependent and that means not only from politicalpressures but also from superiors. In some circum-stances, subordinates may be expected to followtheir superior’s instructions regarding an individualcase and they will not, therefore, have the requisiteindependence.148 26 November 1992.

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In Assenov and Others v. Bulgaria the applicant wasbrought before an investigator who questioned him,formally charged him and took the decision to detainhim on remand. The investigator’s decision was ap-proved by a prosecutor and other prosecutors de-cided the continuation of the detention. The Courtheld that since any of these prosecutors could subse-quently have acted against the applicant in criminalproceedings they were not sufficiently independentor impartial for the purpose of Article 5 (3).

149

The prosecutor’s powers were extensively ex-amined and discussed by the Court in the case ofNiedbala v. Poland. The Court firstly observed thatunder Polish law at the material time, the tasks ofthe prosecution during criminal proceedings werecarried out by prosecutors. The latter were subordi-nated to the Prosecutor General who at the sametime carried out the function of the Minister of Jus-tice. This made it indisputable that prosecutors, inthe exercise of their functions, are subject to super-vision of an authority belonging to the executivebranch. The Court also held that their role as guard-ians of the public interest – invoked by the Polishgovernment – cannot be regarded as conferring onthem a judicial status. Since the prosecutors per-formed investigative and prosecuting functions,they must be seen as a party to the criminal pro-ceedings. Consequently, the Court found that theprosecutor – in the Polish legal system – was not an“officer authorised by law to exercise judicial

power”. The fact that the persons arrested and de-tained by the prosecutors’ orders could lodge anapplication with a judge against the detention wasnot seen as a remedy to the shortcoming that thedetention orders were made by prosecutors. TheCourt argued that the judicial review was not auto-matic as it depended on the application lodged withthe court by the applicant. In addition, the Courtnoted that Polish law did not offer any safeguardsagainst the risk that the same prosecutor who de-cided on the applicant’s detention on remand mightlater take part in the prosecution.

150

2. The role of the competentlegal authority

The judge before whom the person is to bebrought should be responsible for determiningwhether his or her detention can be continued (sub-ject to the requirement that anyone in detention betried within a “reasonable time”) or should be termi-nated. Any order on this matter must have bindingeffect. This is a critical point: Article 5 (3) estab-lishes a choice between release or trying the de-tained person within a reasonable time, but eventhe prolongation of detention will only be justifiedso long as there are relevant and sufficient reasonsfor it (such as the risk of flight, interference with thecourse of justice, re-offending or public distur-

149 28 October 1998.150 4 July 2000.

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bance). Although one or more of these reasons mayexist when the person is initially detained, they maybecome less pressing with the passage of time andin such circumstances the person concerned shouldbe released.

151

Furthermore, even if there is a justifiable rea-son for continuing a person’s detention, there is stillan overall requirement that the period of pre-trialdetention should not be unreasonable. This is to bejudged by the complexity of the proceedings butalso the degree of activity in preparing the case.Prolonged inactivity, as in the case of Toth v. Austria,will inevitably lead to a finding of a violation; thesame judgment underlines the judicial responsibilityfor ensuring that a case is brought to trial withoutdelay. In order to fulfil this responsibility the judgemust be prepared to scrutinise closely both the ba-sis on which the initial detention took place – it mayturn out to have been wholly inappropriate – andthe reasons submitted for its continuation. Fearsabout judicial supervision often stem from a mis-taken belief that it will necessarily lead to criminalsbeing released before trial and thus free to under-mine it, escape or commit further crimes. However,there should be nothing automatic about release,and the role of the judge is to test the case for de-tention and to authorise it if valid and well-sup-ported reasons are submitted. It is not enough for itto be claimed that there is a fear of flight or interfer-ence with witnesses; evidence of this possibility has

to be brought forward and like all evidence its co-gency must be examined. Thus interference with wit-nesses is a scarcely credible reason where swornstatements have already been taken. Moreover thereasoning given by the judge must be real and not aritual incantation of a formula,

152 demonstrating that

no consideration was given to the merits of the ap-plication for release. Automatic refusal and well asunreasoned decisions are therefore not acceptable.

3. The time-frame for supervision

A key part of the requirement of judicial super-vision is that its initial exercise should occur“promptly”. This term comes from the overarchingprohibition of any arbitrariness with respect to a per-son’s detention. The promptness requirement setsan outer limit to the interval between the initial de-taining act and the point at which this is first sub-jected to judicial supervision. It also suggests thatinternational standards require the detainingauthorities to accord the courts an opportunity toexercise that supervision at the earliest practicableopportunity within the maximum interval permitted.In other words, the outer limit must be applied withdue regard to circumstances of the individual case.

There have been some cases where the deten-tion concerned lasted far longer than could ever rea-sonably be regarded as acceptable. Thus there was

151 Letellier v. France;Tomasi v. France.

152 As in Mansur v. Turkey,8 June 1995.

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no hesitation on the part of the European Court infinding a violation in McGoff v. Sweden, where fifteendays had elapsed between the accused being takeninto custody and first being brought before a court.The lapse of three months before judicial supervi-sion in Assenov and Others v. Bulgaria and in Jėčiusv. Lithuania were thus held to violate the promptnessrequirement. A violation was also found in Van derSluijs, Zuiderveld and Klappe v. the Netherlands, wherethe delay ranged from eleven to fourteen days (thiswas a case of breach of military orders and allow-ances had been made for the exigencies of militarylife and justice). However, violations of the obliga-tion will arise where the intervals are not quite soextreme. Thus it has been impossible to persuadethe European Court that delays of five and six dayscould be acceptable

153 and it is also notable that

there was a friendly settlement following a complaintabout a six-day delay in bringing someone before acourt in Skoogström v Sweden.

The leading case on the setting of a time-limiton judicial supervision is the case of Brogan v. theUnited Kingdom, which not only found a period of fourdays and six hours to be too long, but also shedsome useful light on the very objective underlyingthe obligation that a person should be brought be-fore a court following his or her initial detention. Thearrest in the Brogan case concerned a suspected ter-rorist and although the Court accepted that the spe-cific circumstances of the fight against terrorism

could have an impact on the length of detentionprior to its being subjected to judicial supervision, itfound under the particular circumstances of thecase a violation of the promptness requirement.The Court was prepared to show some appreciationof the need to respond to certain problems, such asthe difficulties faced in gathering admissible and us-able evidence, the time needed for certain forensictesting and the sensitivity of the information in-volved. But it was willing to do so only to a limitedextent because of its understanding both of the no-tion of “promptness” and the significance of this re-quirement. The Court said that

to attach such importance to the special features of thiscase as to justify so lengthy a period of detention with-out appearance before a judge or other judicial officerwould be an unacceptably wide interpretation of theplain meaning of the word “promptly”.An interpretation to this effectwould import into Article 5 (3) a serious weakening ofa procedural guarantee to the detriment of the indi-vidual and would entail consequences impairing thevery essence of the right protected by this provision.It was thus not surprising that, in another case

concerning the problems posed by terrorists the Courtconsidered detention for twelve to fourteen days with-out judicial supervision to be unacceptable.

154

In cases involving the detention of soldiers formilitary offences, although the Court has madesome allowances for the exigencies of military life,

155

153 Koster v. the Netherlandsand De Jong, Baljet andVan den Brink v. theNetherlands, respectively.

154 Sakık and Others v. Tur-key, 26 November 1997.

155 As in the cases of De Jong,Baljet and Van den Brink,Koster, Van der Sluijs,Zuiderveld and Klappev. the Netherlands.

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it still held to the importance of the promptness re-quirement.

Deprivation of liberty prior to judicial authori-sation for its continuance should not last any longerthan is genuinely required for the purpose ofprocessing of a suspect. The principal elements in-volved in such processing will be the need to: bringperson to a police station when he or she has beendetained elsewhere; gather any relevant forensicevidence from his or her person; carry out an inter-view to confirm his or her identity and to seewhether initial suspicions can be satisfactorily al-layed, as well as establish the location of evidencewhich is at risk of otherwise being destroyed; pre-vent other suspects about to be detained from be-ing alerted and thus escaping; and bring him or herto the court from the police station. Although theprecise time taken by such preliminaries (as op-posed to the full investigation) will vary with the cir-cumstances of the individual case, it should befeasible in the general run of cases for all of them tobe dealt with in at most one or two days and this isreflected in the use of this sort of period as thedeadline in criminal procedure laws, as well as bythe European Commission having regarded the pro-duction of a detainee before a court within this peri-od as unproblematic.

156

The fact that the interval in a given case be-tween detention and judicial supervision has ex-ceeded this period will not automatically lead to a

breach of the international standard but the extratime taken would have to be shown to be a neces-sary consequence of its particular circumstances inorder for it to be viewed as acceptable. Such a situa-tion might be regarded as having arisen where thedetention occurred in some place that was morethan a day’s travel to the nearest police station

157 or

where there was a particularly complex arrest opera-tion involving many suspects or where the recoveryof vital evidence from a suspect required a consider-able time (such as where it has been swallowed) orwhere the illness of the defendant made impossibleto bring him before a judge during his hospitalisa-tion.

158 Nevertheless, the sense of immediacy recog-

nised as critical by the European Court would clearlybe lost in the overwhelming majority of cases if thedelay in producing someone before a court ex-ceeded forty-eight hours by more than a few hoursand the latter period ought to be the norm by whichthe need for any flexibility ought to be determined.

It is important to bear in mind that the practi-calities of processing a case will not be consideredto have been justifiably prolonged by institutional orprocedural obstacles which could, with appropriateplanning and reorganisation, have been sur-mounted. Thus in Koster v. the Netherlands a violationof Article 5 (3) was found even though it had beenclaimed that military manoeuvres had prevented thedetainee from being brought before a military courtfor five days. The Court was emphatic that manoeu-

156 X v. the United Kingdom,X v. Belgium.

157 See Rigopoulos v. Spain.158 X v. Belgium.

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vres were not unexpected but took place atperiodical intervals and were thus foreseeable, they inno way prevented the military authorities from ensur-ing that the Military Court was able to sit soon enoughto comply with the requirements of the Convention, ifnecessary on Saturday or Sunday.The same response would undoubtedly arise if a

shortage of judges were invoked as an excuse, unlessthis was a temporary matter caused by illness (such asa flu epidemic). It also means that the occurrence of apublic holiday cannot be used to prolong the lapse oftime before a detainee is brought before a court. TheCourt’s explicit reference to the holding of hearings atweekends makes it abundantly clear that a State has aresponsibility to ensure that a judge can be madeavailable to exercise supervision over detention dur-ing the general closure of the courts. This reasoning isequally applicable to the timing of a detention; thefact that it begins after the normal close of businessin the courts could not in itself be a justification forpostponing the bringing of the person concerned be-fore them to the second working day thereafter. Insuch a case there would have to be judges available tosupervise the detention the following evening ornight. Even budgetary considerations cannot provideany justification for the absence of sufficient judgesto exercise supervision over detention.

4. Emergencies

The situation in which the detention giving riseto the Brogan case occurred was an undeclared emer-gency and thus it could not be argued that any failureto meet the requirements of Article 5 (3) could be ex-cused by reference to a derogation under Article 15of the European Convention. However, the Broganruling led the United Kingdom to make such a dero-gation and its effectiveness was subsequently scruti-nised by the European Court in Brannigan and McBridev. the United Kingdom.

159 The intervals between deten-

tion and judicial supervision in this case had rangedfrom four days, six hours and twenty-five minutes tosix days and fourteen and a half hours. The Court didaccept both that there was a genuine emergency andthat detention for up to seven days without judicialsupervision could fall within the acceptable limits of aderogation. In doing so it was particularly influencedby the United Kingdom’s concerns regarding the sen-sitive nature of the information that might have to bedisclosed in any judicial supervision of the detentionand the risk that judicial involvement in any exten-sion of detention might undermine public confidencein the independence of the judiciary, not least be-cause it was small in numbers and vulnerable to ter-rorist attack. The acceptability of the derogation inthis case was also justified by the continued availabil-ity of habeas corpus (which would not require disclo-sure of the same details as to the basis on which 159 26 May 1993.

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someone was being detained) and the absolute rightof access to a lawyer after forty-eight hours of deten-tion. Although this ruling was opposed by vigorousdissents from four of the Court’s judges, it demon-strates that there are circumstances in which auto-matic judicial supervision of detention can bedeferred for such a significant period. Neverthelessthe exceptional nature of such a step is underlinedboth by the need to demonstrate that an emergencyactually does exist – which itself must be susceptibleto judicial supervision – and the importance attachedto the existence of other safeguards against potentialabuse of the vulnerability of those who are detained.Furthermore the ruling did not authorise an unlimitedsuspension of judicial supervision; seven days wasthe maximum permitted. The importance of this limitwas demonstrated in subsequent cases where thenature and scale of a terrorist threat were not, de-spite a derogation under Article 15, sufficient to jus-tify detention without judicial control for periodsranging from fourteen to twenty-three days.

160 In

both cases the Turkish government submitted thatthe investigation into terrorist activities posed spe-cial problems for the authorities but the Court foundthat no actual explanation had been offered as towhy any investigation would be prejudiced by judicialscrutiny of the detentions concerned. A further basisin both cases for not allowing Turkey to invoke thederogation as an excuse for not complying with Arti-cle 5 (3) was the absence of adequate alternative

safeguards; the detainees had no access to lawyersand doctors (except on a very limited basis in Demir)or to relatives and friends and there was no realisticpossibility of testing the legality of their detention inthe courts. Although in Demir there was the possibilityof a complaint being lodged by the applicants’ lawyer,this was understandably rejected as a guaranteeagainst arbitrary treatment since the detainees werebeing held incommunicado and were thus deprived ofall contact with him. In any event it is very unlikelythat even the presence of safeguards such as thosefound in Brannigan and McBride would have justifieddetention without judicial supervision for the ex-tended periods involved in these two cases; thelonger the absence of scrutiny endures the greaterthe risk of arbitrary treatment and the less likely thatsuch detention will in itself red to be essential conse-quence of the state of emergency no matter howgrave that may be.

Judicial scrutiny plays a significant role in ensur-ing that the risk of arbitrary detention is minimised.Arbitrariness is a necessary characteristic of any de-tention that cannot be objectively justified and thiswould not be possible where the detaining authori-ties have completed all the appropriate preliminar-ies so that they are in a position to put their case forits continuation to a judge but then fail to do so forsome time. This conclusion would be equally appli-cable where their handling of a case has been clearlydilatory and as a consequence the time taken to

160 Aksoy v Turkey, 18 De-cember 1996 and Demirand Others v. Turkey,23 September 1998.

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bring the case before a court is much longer thanthat required for comparable cases processed in aregular fashion.

This view is reinforced by the European Court’srecognition that the need for judicial supervision willonly arise if there is a wish on the part of the authori-ties to continue the detention. As it made clear in DeJong, Baljet and Van den Brink v the Netherlands, therewould be no violation of Article 5 (3) if the detainedperson were “released ‘promptly’ before any judicialcontrol of his detention would have been feasible”.Similarly in Brogan v. the United Kingdom, the Courtunderlined that the State had an obligation either“to ensure a prompt release or a prompt appearancebefore a judicial authority”. There is no need for re-lease to receive judicial approval. This effectivelymeans that there is a continuing obligation on thedetaining authorities throughout the period of de-tention to consider whether its continuation is reallyjustified and, if not, to release the person concernedthere and then. Furthermore this approach is ech-oed in that taken with respect to the reasonablenessof continuing someone’s detention on remand, i.e.,after the initial judicial supervision. As we have al-ready seen, prolongation of detention prior to trialcan only be justified so long as there are relevantand sufficient reasons for it. As the overriding re-quirement is to prevent unnecessary detention, itfollows that there will be a breach of the specific ob-ligation to bring someone before a court “promptly”

where the detaining authorities conduct themselvesin such a way that this occurs later than was feasiblein the particular circumstances of the case. Just as acase which is particularly complex or involves themilitary might require a little more time than an av-erage one, so should less time be needed where thecase is extremely simple and there are no practicalconsiderations which might otherwise prevent theperson concerned from being brought to courtstraightaway.

Observance of the “promptness” requirementremains a vital guarantee against detention which iseither arbitrary from its outset or becomes so withthe passage of time and changing circumstances.There is no requirement that the detaining authori-ties rush a case through the preliminaries before thedetained person’s appearance in court but there isunquestionably a duty of due diligence, namely, toensure that it takes place as soon as is practicableand certainly no later than the outer limit alreadydiscussed.

5. Continuing supervision

A final point on this aspect of judicial supervi-sion is the periodical review where the judge de-cides that continued detention is justified. Thisnecessarily follows from the point already madethat circumstances can change and, while grounds

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for detention may exist in the early stages of an in-vestigation, these may no longer be compelling at alater stage. It is incumbent on the detaining authori-ties, therefore, to submit the case for detention tojudicial supervision at regular intervals and theseought not to exceed a month or two. Without thiscontinuing supervision – which must be as rigorousas that at the initial examination – a person could bekept in detention when this is not compatible withthe Convention. In Jėčius v. Lithuania the only reas-

ons given for the applicant’s detention on remandwere the gravity of the offence and the strength ofevidence against him in the case file. The Court heldthat the suspicion against the applicant of havingcommitted murder may initially have justified his de-tention but it could not justify the applicant’s cus-tody for almost fifteen months, particularly whenthe suspicion was proved unsubstantiated by thetrial court which acquitted the applicant, and there-fore found the applicant’s detention as excessive.

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Section VI: Challenging thelegality of the detention

In addition to the judicial supervision underArticle 5 (3) which must come from the detainingauthorities, Article 5 (4) guarantees the option of thedetainee to bring proceedings challenging the law-fulness of the detention before a court, which mustdecide speedily and order the release if the deten-tion is found unlawful. The requirement in Article5 (4) is that there be something comparable to ha-beas corpus so that the legality of one’s detention canbe tested. The crucial elements of the obligation inthis provision are that the supervision must be by acourt, must entail an oral hearing with legal assist-ance in adversarial proceedings, must address thelegality of the detention in the widest sense, andmust take place speedily.

The obligation in Article 5 (4) applies whateverground for detention is given. The domestic authori-ties must provide recourse to courts in all cases in-cluding in those justified under Article 5 (1).

161

1. The need for a court

The express reference to a court in Article 5 (4)excludes any debate as to whether this is a matterthat can be determined by a prosecutor. In

Vodenicarov v. Slovakia the Court held that the possi-bility open to the applicant to seek redress beforethe public prosecutor does not meet the require-ments of Article 5 (4) as the “procedure followed bya prosecutor lacks judicial character.”

162 In Varbanov

v. Bulgaria, the applicant’s detention was ordered bya district prosecutor, who then became a party tothe proceedings against him seeking the applicant’spsychiatric internment. The district prosecutor’s or-der was subject to appeal to higher prosecutorsonly. Here the Court found that the applicant wasdeprived of his right to have the lawfulness of hisdetention reviewed by a court, contrary to Arti-cle 5 (4).

163

It is essential that the proceedings be before ajudge and meet all the fair trial requirements inArticle 6, but particularly those relating to inde-pendence and impartiality. The independence re-quirement will obviously not be satisfied if thereview is carried out by a body which in some way isanswerable to the executive. The impartiality re-quirement will be doubtful if the judge has in someway had a previous involvement with the case, forexample, by agreeing that the person’s remand incustody after his initial apprehension was war-ranted. This has not led the Court to find unaccept-able the performance of this role by an investigatingjudge even though there might seem to be a conflictbetween such a judge’s interest in carrying out theinvestigation effectively and being open to a claim

161 However, its applicationto Article 5 (1) (f) and (a)is limited.

162 21 December 2000.163 5 October 2000.

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that the accused should be released. In any event,whatever the nature of the court, it must be onethat has the power to order a person’s release; if itis restricted to making recommendations or provid-ing other remedies for the illegal detention (such asin Van Droogenbroeck v. Belgium, where a criminal pen-alty could be imposed on the official responsible),then it will not satisfy the requirements of Arti-cle 5 (4). The whole point of this provision is that aperson should be able to secure his or her release ifthe detention is shown to be unlawful.

2. Personal appearance

As has already been indicated, one of the ben-efits of judicial supervision is that abuses other thanillegal detention can be discovered and this flows inparticular from the requirement that a detained per-son should normally be brought before the court inorder to determine whether the detention is lawful.Thus a violation of Article 5 (4) was found inKampanis v. Greece, where a person detained in cus-tody in connection with an alleged fraud had notbeen allowed to appear before the court when thiswas possible under the criminal procedure code.The Court emphasised the importance of the de-tainee being able to resist the submissions of theprosecutor regarding his detention, because the de-tainee is seeking to allege that the detention was in-

compatible with the law and because the personalappearance before a court diminishes the potentialfor abuse in detention.

3. Access to legal advice,adversarial proceedings andequality of arms

In making the case for release it is more thanlikely that the basis for the claim will involve diffi-cult legal issues, and most detainees are unlikely tobe in a position to prepare all the necessary argu-ments. It is, therefore, an inevitable consequencethat a detainee should be allowed access to legalassistance for the purpose of mounting a chal-lenge. Where the detainee cannot afford a lawyerthe expense will have to be borne by the State. InWoukam Moudefo v. France the Court found a breachof Article 5 (4) because the accused was not allo-cated a lawyer for his appeal to the Court of Cassa-tion for release when the appeal involved points oflaw. Or, in Megyeri v. Germany the Court held that aperson detained as being mentally disordered wasentitled to legal representation at the hearings un-less there were particular circumstances suggestingotherwise. Moreover, the Court said that the per-son concerned should not be required to take theinitiative for obtaining legal assistance.

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The need for assistance goes well beyond thepreparation of a claim and entails representation inthe court proceedings. These proceedings must alsobe adversarial and observe the requirements ofequality of arms which the Court has elaboratedwhen applying Article 6: that is to say the personseeking release must be aware of the submissionsmade to justify detention, including the supportingevidence, and have an adequate opportunity to re-spond to them. It is entirely unacceptable, as oc-curred in Toth v. Austria, for the court to hear from theprosecuting authority in the absence of the de-tainee. A violation of Article 5 (4) was similarly estab-lished in Lamy v. Belgium, where the State’s lawyerhad access to the official file in preparing the casebut the detainee did not. A fair opportunity forpreparation also means that the detainee must havethe necessary time for this purpose; if the possibilityof challenge is too speedy then the remedy might bemore apparent than real. Similarly the detainee mustbe allowed access to facilities needed to prepare hisor her case; this might mean providing legal books,the opportunity to prepare submissions (whichcould affect the way in which the prison regime isapplied) and, of course, the opportunity to discussthe case with his lawyer out of the hearing of the de-taining authorities.

In Niedbala v. Poland the Court held that althoughit was not always necessary that the procedureunder Article 5 (4) be attended by the same guaran-

tees as those required by Article 6 (1), it must never-theless “have a judicial character and provide guar-antees appropriate to the kind of deprivation ofliberty in question”. The Court further said that

in particular, in the proceedings in which an appealagainst detention order is being examined, “equality ofarms” between the parties, the prosecutor and the de-tained person must be ensured.

164

In the case of Niedbala the Court found that thelaw in force at that time did not entitle the applicantor his lawyer to attend the court session and it didnot require that the prosecutor’s submission sup-porting the applicant’s detention be communicatedto the applicant or his lawyer. Consequently, the ap-plicant did not have the opportunity to commenton the prosecutor’s arguments. Moreover, while theapplicant or his lawyer were not entitled to attendthe courts’ session in which the court examined thelawfulness of the detention, the law in force at thattime allowed the prosecutor to do so. Therefore,the Court found a breach of Article 5 (4).

165

In Ilijkov v. Bulgaria the Court recalled theproceedings by which an appeal against deten-tion is examined “must be adversarial and mustadequately ensure ‘equality of arms’ betweenthe parties, the prosecutor and the detained.”Since in the proceedings before the SupremeCourt the prosecution authorities had the privi-lege of addressing the judges with argumentswhich were not communicated to the applicant,

164 See also Nikolova v. Bul-garia, 25 March 1999.

165 4 July 200. Similar find-ings in Trzaska v. Poland,11 July 2000; Kawkav. Poland, 9 January2001.

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those proceedings were not adversarial and vio-lated Article 5 (4).

166

4. Determining legality

In judging whether the requirements of Arti-cle 5 (4) are fulfilled, the concept of legality is alwaysone of compatibility with the Convention standards.The detained person must have the opportunity toquestion whether his detention is consistent withnational law and the Convention and is not arbitrary.Thus if someone is being detained for a statementwhich is said to be criminally libelous, there wouldhave to be an openness to consideration of argu-ments that, as the offence is inconsistent with theright to freedom of expression under the Conven-tion, the detention prior to a prosecution for thatoffence could not be justified. This thus goes a longway beyond being able to allege that there is nopower of detention or that the power has been exer-cised in an improper way. Furthermore, it is also es-sential that the procedure enable the detainee tochallenge the reasonableness of any suspicionsabout his or her having committed an offence.

In Jėčius v. Lithuania the Court recalled that Arti-cle 5 (4)

entitles arrested and detained persons to a review bear-ing upon the procedural and substantive conditionwhich are essential for the “lawfulness”, in Convention

terms, of their deprivation of liberty. This means thatthe competent court has to examine not only the com-pliance with the procedural requirements of domesticlaw but also the reasonableness of the suspicion under-pinning the arrest and the legitimacy of the purposepursued by the arrest and the ensuing detention.In this case the Court noted that the courts au-

thorising the applicant’s remand in custody madeno reference to the applicant’s grievances about theunlawfulness of his detention. Moreover, the highercourts, although they acknowledged that the lawful-ness of the applicant’s detention was open to ques-tion, failed to examine his complaints by referenceto the statutory bar then in force.

In the recent case of Ilijkov v. Bulgaria the Courtheld that while Article 5 (4) does not require thatjudges address every argument in the applicant’ssubmission when they examine the lawfulness of adetention, the right in Article 5 (4) will be deprived ofits substance if the judge disregards or treats as irrel-evant concrete facts invoked by the detainee whichare capable of placing a doubt on the existence ofthe conditions essential for the “lawfulness” in themeaning of the Convention. In the instant case thecourts had refused to consider the applicant’s argu-ments and the supporting evidence concerning thepersistence of a reasonable suspicion against him,arguing that if they would comment on these issuesthey would pre-judge the merits of the criminal caseand thus become partial. Under the Bulgarian law166 26 July 2001.

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the decisions on the accused’s detention were en-trusted to the same trial judge who will examine themerits of the case. The Court held that

the mere fact that a trial judge has made decisions ondetention on remand cannot be held as in itself justify-ing fears that he is not impartial. Normally questionswhich the judge has to answer when deciding on deten-tion on remand are not the same as those which are de-cisive for his final judgement. When taking a decisionon detention on remand and other pre-trial decisions ofthis kind the judge summarily assesses the availabledata in order to ascertain whether the prosecution haveprima facie grounds for their suspicion; when givingjudgment at the conclusion of the trial he must assesswhether the evidence that has been produced and de-bated in court suffices for finding the accused guilty.Following this argument the Court found a vio-

lation of Article 5 (4), since the authorities’ concernto protect the principle of impartiality could not jus-tify the limitation imposed on the applicant’s rightunder this provision.

5. Decisions must be takenspeedily

Given the presumption against deprivation ofliberty already discussed, it is not surprising that Arti-cle 5 (4) also requires that any determination as towhether detention is lawful should take place “speed-

ily”. This is undoubtedly not intended to be as per-emptory as the promptness requirement in Arti-cle 5 (3), and this is not surprising since the legalissues can be more complex where Article 5 (4) is in-voked. Thus there is little doubt that an interval of aweek or two between an application and its determi-nation would be considered acceptable in manycases. However, there is likely to be particular con-cern about the length of the interval where the chal-lenge to the legality is made at the outset of thedetention and there has also been a failure to complywith the promptness requirement of Article 5 (3).

Although there is greater leeway in decidingwhat is an acceptable interval between initial deten-tion and judicial supervision under Article 5 (4), it isclear from a vast array of cases that – notwithstand-ing any allowance that should be made for a particu-larly complex case – the time taken should still beno more than a matter of weeks. Periods exceedinga month have been condemned on numerous occa-sions, such as in the cases of Bezicheri v. Italy andSanchez-Reisse v. Switzerland. Delays attributable tofactors such as a judge’s being on holiday or havingan excessive workload are not acceptable. On theother hand, delays attributable to the detained per-son will not count: examples are Navarra v. France,where the applicant took his time to file an appeal,and Luberti v. Italy, where the detained person actu-ally disappeared. It is also important to note that,should a decision on legal aid be required for the

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detained person to be provided with legal assist-ance, this must also be dealt with quickly; sevenweeks was understandably seen as far too long inZamir v. the United Kingdom.

For the purpose of Article 5 (4) the time beginsto run when the proceedings challenging the lawful-ness of the detention are instituted, and ends whenthe final decision on the detention is made. How-ever, there may be a violation of Article 5 (4) when adetained person has to wait for a period of time be-fore a remedy is available.

As has been explained, the decision on thespeedy proceedings depends on the particular cir-cumstances of the case. In Ilowiecki v. Poland theCourt held that the complexity of medical or otherissues involved in the determination of the lawful-ness of the detention can be a factor which may betaken into account. The Court further stated that

this does not mean, however, that the complexity of agiven dossier – even exceptional – absolves the nationalauthorities from their essential obligation under thisprovision.In this case the Court found that even the un-

disputed need to obtain medical evidence in thecourse of the proceedings to assess the lawfulnessof the detention could not explain their overalllength which was from about three to seven monthsfor each of the applicant’s claims for release.

167

The complexity of the medical issues involvedin the decision on the continuation of the detention

was also raised in Baranowski v. Poland. While theCourt accepted that this could be a factor to betaken into account when deciding the speediness, itobserved that the courts needed some six weeks toobtain a report from a cardiologist, a further monthto obtain evidence from a neurologist and a psychia-trist and another month to obtain some unspecifiedevidence. In the Court’s view these lengthy intervalsdid not appear to be consistent with the “specialdiligence” in the conduct of the proceedings andamounted to a breach of Article 5 (4).

168

Complexity was not an issue in the case ofJablonski v. Poland, where the Court found that a peri-od of forty-three days to decide on the lawfulness ofthe detention was, in the particular circumstances ofthe case, contrary to the speediness requirement.The argument of the Polish Government that the Su-preme Court (which was called to decide on the mat-ter) had an excessive workload was not accepted bythe Court.

169 Moreover, in the case of Rehbock

v. Slovenia the Court found that two periods oftwenty-three days for deciding on the two applica-tions for release filed by the detainee did violate thespeediness requirement.

170

6. Link with Article 5 (3)

As has been seen, the requirements of Arti-cle 5 (4) are more exacting than those of Arti-

167 4 October 2001.168 28 March 2000.169 21 December 2000.170 28 November 2000.

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cle 5 (3), notably as regards legal representation andthe adversarial procedure, but if the judicial supervi-sion provided by the State of its own motion fulfilsthese requirements then that supervision will alsobe regarded as having fulfilled the obligation underArticle 5 (4), at least at that point in time. This pointis made because the possibility of challenging thelegality of one’s detention is not a once and for allopportunity; as circumstances change so does thepossibility that a previous legal justification for a de-tention is no longer applicable. It follows, therefore,that there must be a continuing possibility ofmounting a challenge so long as one is in detention.This does not mean, however, that the detaineemust be able to bring proceedings at any and everymoment; that could obviously lead to paralysis inthe criminal justice system. The Court has, there-fore, come to the conclusion that the possibility ofchallenge should exist at reasonable intervals. Thisin itself is a variable context and periods of up to a

year have been found acceptable where a person wasbeing detained on account of being of unsound mind.That should not, however, be taken as a guide to thesituation of someone being detained pending trial andthe case law points to much shorter intervals being ap-propriate in this situation. Thus there was no objectionto an interval of one month in the Bezicheri case andshorter periods than that will obviously be regarded asacceptable. The crucial thing is that the court is put ina position to test the justification for a person’s deten-tion where that person is likely to have grounds for ar-guing that it is improper and, prior to conviction, this isincreasingly likely as the weeks pass by.

The two forms of judicial supervision are com-plementary and they are both fundamental require-ments of the Convention’s guarantee of personalliberty. Without them the scope for abuse is great.They are not inimical to an effective criminal justicesystem as this will always work best where it re-spects the rule of law.

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171 Wassink v. the Nether-lands.

172 Ciulla v. Italy.173 Idem.

Section VII: Compensation

Article 5 (5) requires that those who have beenthe victim of arrest or detention in breach of theother provisions of this article should have an en-forceable right to compensation. The absence ofsuch a right will inevitably give rise to liability in pro-ceedings before the European Court. Like Arti-cle 5 (4), this provision is a specific manifestation ofthe more general obligation in Article 13 of the Con-vention to provide an effective remedy where any ofthe guaranteed rights and freedoms have been vio-lated.

The terms of Article 5 (5) do not leave a Stateany discretion as to the body from which the rem-edy of compensation is to be obtained. Article 5 (5)requires a remedy before a court, meaning that theremedy must be awarded by a legally binding deci-sion. With regard to the form of the legal procedureby which the right to compensation can be vindi-cated, the national authorities enjoy a fair amountof latitude. A remedy by other bodies (such as theombudsman) or an ex gratia payment by the govern-ment is not sufficient for the purpose of Arti-cle 5 (5).

In practice, the remedy will normally consist infinancial compensation. There is scope for nationalvariations as to the assessment of the amount ofcompensation that is payable but not as to the pre-

cise elements of loss that should be recognised inmaking an award. Prior to deciding the compensa-tion, the national authorities may require evidenceof the damages which had resulted from the breachof Article 5. The Court held that although a personmay be a victim of an Article 5 breach, “there can beno question of ‘compensation’ where there are nopecuniary or non-pecuniary damages to compen-sate”.

171

An Article 5 (5) remedy is required only wherethe alleged victim had been arested or detainedcontrary to any of the provisions in Article 5 para-graphs 1 to 4. A claim under Article 5 (5) alone willbe exceptional in the absence of a prior decisionfinding a non-compliance with Article 5 at thenational or the Convention level. Most often, theCourt will consider a claim under Article 5 (5) only ifit finds that another paragraph of Article 5 hasbeen violated.

172 Moreover, when doing this, the

Court will not require the victims to exhaust the lo-cal remedies in order to find out whether theycould obtain a remedy before the national authori-ties. However, if a state can show “with a sufficientdegree of certainty” that a remedy of the type re-quired by Article 5 (5) is available to the victim, theCourt will find no violation of this provision.

173 In

Rehbock v. Slovenia, where the national law reservedthe right to compensation to cases where the dep-rivation of liberty was unlawful or resulted from anerror, the Court found a violation of Article 5 (5)

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since the applicant’s right to compensation deriv-ing from the infringement of Article 5 (4) – the de-tainee’s right to bring proceedings challenging thelawfulness of the detention before a court, whichmust decide speedily and order the release if thedetention is found unlawful – was not ensured witha sufficient degree of certainty.

174

174 28 November 2000.

In countries where the Convention has been in-corporated into the national law, the courts must beempowered to award such compensation wherethey find a violation of Article 5 and they must beprepared to exercise this power; any failure on theirpart will only further compound the violation ofArticle 5 that has occurred.

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Directorate General of Human RightsCouncil of EuropeF-67075 Strasbourg Cedex

http://www.humanrights.coe.int

These human rights handbooks are intended as a very practicalguide to how particular articles of the European Convention onHuman Rights have been applied and interpreted by the Euro-pean Court of Human Rights in Strasbourg. They were writtenwith legal practitioners, and particularly judges, in mind, but areaccessible also to other interested readers.

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