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,
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).
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).