Article 5 bail and trial within a reasonable time: shorts power points as text

PRESUMPTION OF LIBERTY
Detention, no matter how short, must be justified by the authorities (Idalov v. Russia [GC]; Tase v. Romania; Castravet v. Moldova; Belchev v. Bulgaria).
Pre-trial detention of minors only last resort; it should be as short as possible and minors should be kept apart from adults (Nart v. Turkey; Güveç v. Turkey).
Period to be considered
Begins on the day the accused is first in custody and ends on the day when the charge is determined (Solmaz v. Turkey; Kalashnikov v. Russia; Wemhoff v. Germany).
A person convicted is not regarded as being detained under 5(1)(c), but by Article 5 § 1 (a), which authorises deprivation of liberty after conviction (Belevitskiy v. Russia; Piotr Baranowski v. Poland; Górski v. Poland).

Both rights apply independently
Authorities must bring accused to trial within a reasonable time and grant provisional release pending trial.
Detention is justified only if in the public interest outweighs the presumption of liberty.
Judges responsibility that pre-trial detention does not exceed a reasonable time. Must, regard to presumption of innocence, examine the facts for or against detention and, must set out reasons in decisions.
Basis of continued detention
Reasonable suspicion that person committed offence is necessary condition.
Over time this not enough longer and court must decide whether other grounds given by continue to justify detention.
Continuing duty to review detention and to release when no longer justified.
No fixed time depends on each case (McKay v. the United Kingdom; Bykov v. Russia; Idalov v. Russia).

Criteria for detention
Arguments for and against release must not be “general and abstract” (Boicenco v. Moldova; Khudoyorov v. Russia), but must based on the facts and personal circumstances to justify detention (Aleksanyan v. Russia).
Quasi-automatic decisions about detention unlawful (Tase v. Romania).
Burden of proof never be on the detained person to demonstrate reasons for release (Bykov v. Russia [GC]).

Only reasons for refusing bail
risk that accused will not turn up for trial or
risk that the accused, if released, would:
prejudice the administration of justice;
commit further offences, or
cause public disorder
(Tiron v. Romania; Smirnova v. Russia; Piruzyan v. Armenia).

Danger of absconding (1)
Not only based on severity of sentence (Panchenko v. Russia); risk of absconding involves:
character and morals,
home,
occupation,
assets,
family ties and
other links with the country (Becciev v. Moldova).
Absence of residence not automatically a danger of flight (Sulaoja v. Estonia).
Danger of absconding (2)
Danger of flight decreases with the passages of time (Neumeister v. Austria).
Severity of the sentence faced is relevant but the gravity of the charges cannot by itself justify long periods of detention (Idalov v. Russia [GC]; Garycki v. Poland; Chraidi v. Germany; Ilijkov v. Bulgaria).
Strength of the evidence may be a serious indication of guilt but cannot alone justify lengthy detention (Dereci v. Turkey).
Obstructing proceedings
Risk of obstructing proceedings has to be supported by evidence (Becciev v. Moldova).
Risk of interfering with witnesses more powerful initial stages of the proceedings (Jarzynski v. Poland).
Risks diminish with time as inquiries and verifications are completed and statements taken. (Clooth v. Belgium).

Repetition of offences
The danger of further offences must be a plausible and detention justified, in the light of circumstances, past history and the person.
Previous convictions a ground for fear that the accused might commit new offence (Selçuk v. Turkey; Matznetter v. Austria).
However it cannot be concluded merely from the lack of a job or a family that a person will commit new offences (Sulaoja v. Estonia).
Preservation of public order
Certain offences may give rise to risk of disorder justifying detention and may be taken into account if law recognises the idea of disturbance to public order.
Must be based on facts showing that release would actually disturb public order.
Detention can only continue if public order threat continues remains actually threatened (Letellier v. France; I.A. v. France; Prencipe v. Monaco; Tiron v. Romania).

Alternatives to detention
When deciding whether a person should be released or detained, the court must consider alternative measures (Idalov v. Russia [GC]).
The right to “trial within a reasonable time or to release pending trial” and “release may be conditioned by guarantees to appear for trial” (Khudoyorov v. Russia; Lelièvre v. Belgium; Shabani v. Switzerland).

Bail: financial securities (1)
Must be designed to ensure the accused appearing at the hearing.
The amount must be assessed by reference to the accused, his or her own assets and the relationship with the person who has offered to provide the security. In other words whether security will act as a deterrent to the risk of absconding (Mangouras v. Spain [GC]; Neumeister v. Austria).

Bail: financial securities (2)
Bail required only for as long as reasons justifying detention prevail (Muşuc v. Moldova; Aleksandr Makarov v. Russia).
If the risk of absconding avoided by bail or other guarantees, the accused must be released (Vrenčev v. Serbia).
Court must take as much care in fixing bail deciding whether or not to continue detention (Piotr Osuch v.Poland; Bojilov v. Bulgaria; Skrobol v. Poland).

Article 5(3) and 5(4): short power points as text

ARTICLE 5(3) REVIEWS
Review can be by public prosecutors’ departments instead of judges in court.
But “officer” must have guarantees of “judicial” power conferred on him/her by law.
Formal, visible and specific law essential for necessary judicial authority (Hood v. the United Kingdom; De Jong, Baljet and Van den Brink v. the Netherlands).

Independence
Independence from executive and parties. Officer may be to some extent subordinate to other judges provided that they are independent.
A judicial officer who decides on detention may also carry out other duties, but impartiality must not be in doubt.
Intervention in subsequent proceedings as a representative of the prosecuting authority causes doubt (Huber v. Switzerland; Brincat v. Italy).

Hearing from the detainee
Duty to hear the detainee in person before taking the decision (Schiesser v. Switzerland; De Jong, Baljet and Van den Brink v. the Netherlands; Nikolova v. Bulgaria; Aquilina v. Malta).
Lawyer’s presence not obligatory (Schiesser v. Switzerland). But exclusion of a lawyer from hearing may adversely affect the applicant’s ability to present his case (Lebedev v. Russia).

Nature of the review (1)
The judge must review the circumstances for or against detention and decide by reference to legal criteria (Schiesser v. Switzerland; Pantea v. Romania) and to consider the merits of the detention (Aquilina v. Malta; Krejčíř v. the Czech Republic).
The initial review of arrest and detention must examine lawfulness and whether or not there is a reasonable suspicion that arrested person committed an offence (Aquilina v. Malta; McKay v. the United Kingdom; Oral and Atabay v. Turkey).
Nature of the review (2)

Review review must lawfulness and must establish whether the deprivation of the individual’s liberty is actually justified.
Judge must have the power to order release in practice (Assenov and Others v. Bulgaria, § 146; Nikolova v. Bulgaria; Niedbała v. Poland; McKay v. the United Kingdom).
ARTICLE 5(4) REVIEWS
An arrested or detained person is entitled to bring proceedings for review by a court of the procedural and substantive conditions for detention (Idalov v. Russia [GC]; Reinprecht v. Austria).
The arrested or detained person is entitled to a review of the “lawfulness” of his detention in the light not only of the requirements of domestic law but also of the Convention (Suso Musa v. Malta).

Article 5(4)
If a person is detained under Article 5 § 1 (c), the “court” must examine whether or not there is sufficient evidence reasonable suspicion that he or she has committed an offence.
Where the justification the person’s deprivation of liberty change over time, there must be access to court complying with Article 5 § 4 (Kafkaris v. Cyprus).
Review by court
A detainee is entitled to apply to a “court” having jurisdiction to decide “speedily” whether or not his deprivation of liberty has become “unlawful” in the light of new factors (Abdulkhanov v. Russia; Azimov v. Russia).
Nature of the court
It must have “judicial character” with procedural guarantees and independent from the executive and the parties (Stephens v. Malta (no. 1)). But “court” does not have to be a court of the classical kind Weeks v. UK).
Court must comply with substantial and procedural rules and be conducted with the aim of the protection against arbitrariness (Koendjbiharie v. the Netherlands).
The “court” must have the power to order release; a mere power of recommendation is insufficient (Benjamin and Wilson v. the United Kingdom).
Hearings and presence of detainee
Not necessary for that all Article 6 guarantees to apply but must have judicial character and provide guarantees appropriate deprivation of liberty (A. and Others v. the United Kingdom [GC]; Idalov v. Russia [GC]).
Does not require that a detained person be heard every time he appeals a decision extending detention, but the right to be heard needs to occur at reasonable intervals (Çatal v. Turkey; Altınok v. Turkey).

Adversarial and equality of arms (1)
The proceedings must be adversarial and ensure “equality of arms”(Reinprecht v. Austria; A. and Others v. the United Kingdom [GC]).
This may require witnesses to give evidence relevant for the justification for the detention (Ţurcan v. Moldova).
Equality of arms breached if detainee is denied access to documents in the investigation file (Ovsjannikov v. Estonia; Fodale v. Italy; Korneykova v. Ukraine).
Adversarial and equality of arms (2)
It may be necessary for the individual concerned to have the opportunity to be heard in person as well as the effective assistance of his lawyer (Cernák v. Slovakia).
The principle of adversarial proceedings and equality of arms must be respected in the proceedings before the appeal court (Çatal v. Turkey).
Speedy judicial review
The right to a “speedy” decision is determined in the light of the circumstances (Rehbock v. Slovenia) but it must be provided soon after the person is taken into detention then at reasonable intervals (Molotchko v. Ukraine).
Where a initial decision taken by a non-judicial authority, court review must be prompt (Shcherbina v. Russia delay of sixteen days in the judicial review of the applicant’s detention order issued by the prosecutor was found to be excessive).
Time period for review (1)
Starting point the moment that the application for release was made. The relevant period comes to an end with the final determination of the legality of the applicant’s detention, including any appeal (Sanchez- Reisse v. Switzerland; E. v. Norway; Hutchison Reid v. the United Kingdom; Navarra v. France).

Time period for review (2)
Strict standards (Kadem v. Malta, seventeen days was excessive, and in Mamedova v.Russia, twenty-six days, was found to be in breach in relation to time for appeal).
Where complex issues involved – such as the detained person’s medical condition – this may be taken into account.
The State needs to explain the reason for any delay (Musiał v. Poland [GC]; Koendjbiharie v. the Netherlands).
Excessive workloads and vacations can not justify delay (E. v. Norway; Bezicheri v. Italy).

Article 5 the right to liberty: short power points as text

INTRODUCTION: THE RIGHT TO LIBERTY

Aim to ensure that no-one is deprived of their liberty in an arbitrary fashion.

Article 5(1)(a) – (f) an exhaustive list of reasons.

Paragraphs (2), (3) and (4) provide minimum procedural safeguards and paragraph (5) the right to compensation.

What is lawful detention?
Detention?: possibility of leaving area, degree of control, and extent of isolation and social contacts.
Secret detention: negation of fundamental rights and grave violation
‘Lawful’ detention: must conform to the substantive and procedural rules of national law, legal certainty required, and conditions for deprivation of liberty must be clearly defined and the law foreseeable.
Detention in criminal cases Article 5(1)(c)
Article 5(1)(c) – object to bring the person before legal authority because:
necessary to prevent the commission of an offence or;
reasonable suspicion of having committed an offence or fleeing after having done so.
“Effected for the purpose of bringing him before the competent legal authority”
‘Reasonable suspicion’ – facts or information that person committed offence.

Article 5 (2) Reasons for arrest and detention
Any person arrested needs know why he or she is being deprived of his liberty
Enables exercise of right to challenge the lawfulness of the detention
‘Promptly’ – a few hours after arrest will suffice.
Necessary to give factual grounds and specific legal basis in order to understand whether its application was reasonable.
Article 5(3) Right to be brought promptly before a judge
Judicial control crucial safeguard against arbitrary detention.
‘Prompt and automatic’ in excess of 4 days is too long
Shorter periods apply if no special difficulties.
Judicial control must be automatic.
Must hear from detainee and their lawyer (if necessary).
Must be reasons for the detention, including reasonable suspicion and consider all circumstances for or against detention
Article 5(3) Trial within a reasonable time and release pending trial

The authorities cannot choose between trial within a reasonable time and release, both rights apply

Reasonable period: depends on the circumstances of the case – the arguments for and against release must not be “general and abstract” and reasoned public decision why continued detention is necessary must be given.
Grounds for continued detention
The risk that the accused will fail to appear for trial; and/or

the risk that the accused, if released, would take action:

to prejudice the administration of justice,
commit further offences, or
cause public disorder.

Risk of absconding
Assessed not solely on the basis of the severity of the sentence if convicted but:
in light of the accused’s character, home, occupation, assets, family ties and other links;
mere absence of a fixed residence not bar to release;
risk decreases with time spent in detention; and
must consider alternative measures of ensuring appearance at trial.
Article 5(4) Right to have detention examined by a Court

Court must be a body of “judicial character” offering appropriate procedural guarantees.
The review must comply with the substantial and procedural rules of the national legislation and Article 5.
Must consider relevant facts relevant to the conditions essential for the “lawfulness,”of the detention.
Must have the power to order release.
Procedural guarantees & speedy determination
A hearing is always required,
proceedings must be adversarial,
must be “equality of arms” between the parties;
detainee must be able to challenge the allegations against him, including requiring the court to hear witnesses or be given access to documents.
The detainee must be able to institute proceedings speedily, and receive a speedy determination by the court.
Period between reviews
Article 5(5) Victims of unlawful detention entitled to compensation

Article 3 and the need for investigations: short power points

Obligation to Respect Human Rights
Article 1:
“The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention.”
A positive duty to ensure that the rights in the rest of the ECHR are respected.

Key principles of human rights law

States have an obligation to protect people from human rights violations;
Obligation particularly applies to the most vulnerable and must be complied with without discrimination;
Any serious human rights abuses must always be investigated effectively.

Duty to investigate
There must be an effective official investigation into deaths and alleged violations resulting from the use of force. This investigative obligation is known as the ‘procedural aspect’ of Article 2 and 3 (and 4 and 8).
Purpose of an investigation
“… to secure the effective implementation of the domestic laws safeguarding the right to life and, in those cases involving state agents or bodies, to ensure their accountability for deaths occurring under their responsibility…
Purpose of an investigation
“…not only the actions of the state agents who directly used lethal force but also all the surrounding circumstances, including such matters as the planning and control of the operations in question, where this is necessary in order to determine whether the state complied with its obligation…”.

Independent investigation of law enforcement officials
It is necessary for the persons responsible for carrying out the investigation to be independent from those implicated in the events. This requires a lack of hierarchical or institutional connection as well as a practical independence.”

Transparency
In both Article 2 and 3 cases: although the inquiry should be transparent the degree of public scrutiny may vary from case to case,
it is necessary in all cases for the victim or his or her next of kin to be involved to the extent required to safeguard their legitimate interests.
Duty to investigate: Article 3

“…the authorities must always make a serious attempt to find out what happened and should not rely on hasty or ill-founded conclusions to close their investigation or as the basis of their decisions.”

Independent investigations: Article 3
Where an individual raises an arguable claim that he or she has been ill-treated by the police or other agents of the state unlawfully there must be an effective official investigation.
The investigation should be capable of leading to the identification and punishment of those responsible.

Injured in custody
If victims provide evidence that they were injured at the time of release from custody but healthy at the time that they were taken into custody the burden is on the detaining authorities to provide a plausible explanation.
Judges and supervisors of such investigations should be particularly vigilant for flaws in the investigative process.

Law enforcement officials failures
To protect individuals from violations and to investigate effectively allegations made by vulnerable or abused groups:
Prisoners and others detained
Lesbian, gay, bisexual and transgendered people
Ethnic minorities
Women and those subject to domestic violence or sexual assault
People with disabilities
Victims of trafficking

Article 3: short power points

ARTICLE 3
The protection against torture, inhuman or degrading treatment or punishment is fundamental to the Convention.
It contains both substantive obligations and procedural obligations, such as the obligation to investigate alleged breaches.
Article: severity
Article 3 can be broken down into 5 elements: torture, inhuman, degrading, punishment and treatment.
The conduct must attain “minimum level of severity” for each category (Ireland v UK).

Threshold of ill-treatment
Relevant factors:
duration of the treatment,
physical or mental effects,
purpose of the treatment (to humiliate or debase the victim?)
sex, age and state of health of the victim -see for example Jalloh v Germany and Price v UK

Definition of torture (1)
The prohibition on torture also part of customary international law and many international instruments.

A high threshold applies because a special stigma attached to deliberate infliction of inhuman treatment causing very serious and cruel suffering.

Definition of torture (2)
The definition in UNCAT:

The infliction of severe mental or physical pain or suffering;
The intentional or the deliberate infliction of the pain;
The pursuit of a specific purpose (gaining information, punishment or intimidation).

Adopted for ECHR Akkoc v Turkey

The Dividing Line?
Ireland v UK : the five techniques of
wall-standing,
hooding,
subjection to noise,
deprivation of sleep, and
deprivation of food and drink
During the interrogating suspected terrorists was inhuman and degrading treatment but not torture.
Treatment on arrest or in custody
In custody the threshold for inhuman treatment is lowered.
Any recourse to physical force in respect of a person deprived of his liberty not strictly necessary is an infringement of Article 3 because it has the effect of diminishing the human dignity of the individual involved – Ribitsch v Austria.

In custody
Bouyid v Belgium, a slap in custody is breach:
“diminishes human dignity constitutes a violation… [and the] use of physical force against an individual where it is not made strictly necessary by his conduct, whatever the impact on the person in question.”
Deliberately cruel acts may be inhuman treatment: Selcuk & Asker v Turkey , Dulas v Turkey & Bilgin v Turkey

Discrimination and Article 3
Discrimination against an individual or group of individuals may amount to a violation of Article 3 – East African Asians v UK Comm Report, Cyprus v Turkey

Onus on state
State must provide an explanation for an injuries caused to a detainee in police custody and demonstrate that they were necessary and that no more force than was necessary was used (Tommasi v France).
Arrest and Art 3: Examples

Use of force must be strictly necessary and proportionate (Tzekov v Bulgaria).

Strip search in own home because it was invasive and debasing and not necessary and justified for security reasons – Weiser v Austria .

Restraint (1)
Handcuffing during the course of an arrest in general will not reach the minimum level of severity necessary to amount to degrading treatment, provided the arrest is lawful and does not involve any more force or public exposure than is necessary in the circumstances -Raninen v Finland .
Restraint (2)

Where handcuffs are used in the course of an unlawful detention or arrest or goes beyond what is necessary in the circumstances there may be a violation.
Gordiyenko v Ukraine violation where Court “not convinced that it was indispensable to use the force against the applicant, including his handcuffing”

Restraint (3)

Restraint accompanied by beating likely to be violation – Rehbock v Slovenia.
Handcuffing and mechanical restraint must not be used as punishment (Tyrer v UK).

Procedural Protections (1)
Judges play key role to guarantee rights to:
have the fact of detention notified to family, friend or consulate;
confidential access to a lawyer, visited by lawyer and right for lawyer presence during interrogation; and
access to doctor and medical examination, out of hearing and preferably out of sight of police officers.
(2nd General Report of CPT, Korobov v. Ukraine)

Detention
Detention conditions violate Article 3 where they degrade the prisoner (Peers v Greece; Kalashnikov v Russia).
In assessing conditions consider:
age,
sex,
health,
danger they pose,
any special needs that require special care,
and whether unconvicted prisoner.
Police Custody
cell should be reasonable size for the number of people,
adequate lighting and ventilation,
a means of rest,
clean mattress and blanket,
clean toilet facilities and access to washing,
regular food and one full meal a day and other refreshment (CPT standards).

Prison conditions: factors
length of detention,
overcrowding,
absence of sleeping facilities (Dougouz v Greece),
sanitary conditions,
natural light,
access to outdoors,
short periods in bad conditions may be violation (Fedotov v. Russia,Sizarev v Ukraine)
Solitary confinement

Solitary confinement should not be prolonged,
not imposed on a remand or juvenile prisoner,
sensory and social isolation combined are unjustifiable as these can destroy personality(X v Denmark).
Access to care in prison

Absence of healthcare could result in a violation (McFeeley v UK, Keenan v UK).
Kudla v Poland: Conditions detention should not exceed level of suffering in inherent in detention and health and well being need to be secured by provision of medical attention.

Other Conditions
Force-feeding an individual may amount to inhuman or degrading treatment (X v Germany).
Nevmerzhitsky v Ukraine force feeding on hunger strike only if necessary to save life.
Handcuffing of prisoners with terminal illnesses to a hospital bed can amount to a violation of Article 3 (Henaf v France).

Female detainees

access to sanitary and washing facilities,
provision of female hygiene items, and
safe disposal arrangements blood-stained articles.
Medical staff should have training in women’s health issues (CPT, Third General Report).

Sexual assaults in custody
Rape of detainee by official amounts to torture Aydin v Turkey.
Obligation to protect detainees from sexual and other assaults by other prisoners.
Women should be held in separate accommodation.

Searches

Intimate & Strip searches may constitute degrading treatment
must be conducted in an appropriate manner which did not unnecessarily diminish the detainees human dignity (Valasinas v Lithuania).

Treatment in detention – special needs

Price v UK and D.G. V Poland keeping a prisoner, a wheelchair user, and/or detaining for 18 months in prison that was unsuitable for persons with physical disabilities was violation.
Article 6 issues (1)

Evidence obtained by torture will not be admissible in court under any circumstances, even where it does not constitute crucial or decisive key evidence against the accused (Yusuf Gezer v. Turkey).
Article 6 issues (2)
Evidence obtained against the will of the accused may need to be excluded by Article 6 – but not where the evidence on which the conviction was based was not related to the coercion.
Use of evidence discovered by threats of ill-treatment not contrary to Article 6 where the defendant admitted his guilt later (Gäfgen).

Dignity in custody: a slap and a violation

Case analysis: see more detailed article in European Human Rights Law Review (forthcoming), summary below 

Bouyid v Belgium (App. No. 23380/09), Grand Chamber judgment of September 28, 2015

http://hudoc.echr.coe.int/eng#{“languageisocode”:[“ENG”],”documentcollectionid2″:[“GRANDCHAMBER”],”itemid”:[“001-157670”]}

This case concerns Article 3 and the precise threshold of the nature of what kinds of ill-treatment will constitute inhuman or degrading treatment on arrest and in detention. The Grand Chamber overturned the Chamber judgment in this case and declined to follow previous established case law, concluding that an unjustified and unnecessary “slap” on the face by a police officer of a person arrested or detained is sufficient to cross that threshold. Such an assault is no longer “in principle” a violation of Article 3 but is not subject to any exceptions. Three judges dissented from the majority of the Grand Chamber on this point.

The Court, unanimously, also found a violation of the procedural duty in Article 3, the duty to ensure there is an independent and effective investigation into the allegation of ill-treatment in custody. The lowering of the threshold and the nature of the relatively new procedural duty combined may require an extension of the mandate and practice of police complaints and oversight bodies.