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