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 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).
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).