The Guarantees of Jndicial Control with Respect to Deprivation of Liberty

under Article 5 of the European Convention of Human Rights

The Guarantees of Judicial Control with Respect to Deprivation

of Liberty under Article 5 of the European Convention of
Human Rights: An Overview of the Strasbourg Case-Law*
Despina Chatzivassiliou**

I. Introductory remarks

Article 5 of the European Convention of Human Rights (hereinafter "the

Convention") affords two sets of guarantees of judicial control with respect to
deprivation of liberty: on the one hand, through its paragraph 4, guarantees
applicable to all forms of deprivation of liberty authorised by its first paragraph
whatever the purpose of this deprivation and whatever the procedural mechanism
through which it is operated at the domestic level might be (below under II.); on
the other, through its paragraph 3, guarantees exclusively applicable to a
deprivation of liberty authorised by its sub-paragraph 1 (c): pre-trial deprivation
of liberty, including police custody and detention on remand (below under III.).

At the same time, both sets of guarantees are applicable only to cases of
deprivation of liberty, and not to cases involving mere restrictions of the physical
liberty of the person and in particular of the liberty of movement (covered
mainly by Protocol No. 4 to the Convention). Therefore, before analysing in
more detail the guarantees afforded by article 5 w4 (below under II., 2.) and the
more special ones afforded by Article 5 w3 (below under III., 2.), there is a need
to look briefly into the way the European Court of Human Rights (hereinafter
"the Court" or "ECHR") has interpreted, on the one hand, the notion of
"deprivation of liberty" as compared to mere restrictions (below under II., 1.)
and, on the other, the notion of a deprivation of liberty authorised under Article
5 w 1 (c) (below, under III., 1.).

II. Judicial control with respect to all forms of deprivation of liberty

1. Deprivation of liberty vis-d-vis mere restrictions within the meaning of
Article 5w of the Convention
The Convention does not give a definition of what a deprivation of liberty is. At
the same time, the notion as used therein has an autonomous meaning. It is thus
for the Court to assess whether or not a measure constitutes a deprivation of
liberty, regardless of the definition given by the national legislature or the
domestic courts. This is all the more so in view of the variety and diversity of the
terms used in the various member States. Terms such as "arrest", "police

* This paper is based on research carried out by the author for her PhD thesis on Pre-trial Deprivation of Liberty
under the European Convention of Human Rights: A Critical Appraisal of the Strasbom'g Case-Law, European
University Institute, Department of Law, Florence, September 1994; see also document CM/Monitor (2001)14
Part I, declassified on 19 December 2001, on the website of the Monitoring Department of the Directorate of
Strategic Planning of the Council of Europe: http://www.dsp.coe.int/monitoring. The author wishes to thank
Ms Aliki Terzix for helping her in the research of recent case law.
** Despina Chatzivassiliau, Doctor in Law (European University Institute, Florence), Deputy Head of the
Monitoring Department of the Directorate of Strategic Planning of the Council of Europe, The views expressed
in this paper are those of the author alone and in no way commit the organisation for which she works. 499
 Despina Chatzivassiliou

custody", "detention on remand", "pre-trial detention", "provisional arrest",

"provisional detention", "administrative detention" etc. may be used with
different meanings in different legal systems. Article 5 of the Convention itself
uses the terms "arrest" and "detention" without any clear distinction (see also
below). But what counts for the applicability of the guarantees of Article 5 is to
establish that there has been a deprivation of liberty, regardless of the term used.

In order to determine whether there has been a deprivation of liberty and thus
whether the guarantees of Article 5 are applicable, the Court has taken as a
starting point the concrete situation of the person concerned. It has also taken
account of a whole range of criteria such as the type, duration, effects andmanner
of implementation of the measure in question. 1 Certain borderline cases may be
detected in the Strasbourg case law such as the following: a curfew imposed at
night constitutes a mere restriction on freedom of movement but house arrest
constitutes a deprivation of liberty? In the Guzzardi case, a measure of police
supervision, combined with an enforced stay for over sixteen months on an island
where freedom of movement was limited at night to a few buildings and in the
daytime to a small area of the island, and where possibilities of social contact
were limited, was considered by the Court to constitute a deprivation of liberty?
In the Vittorio and Luigi Mancini case, a delay of at least three days had occurred
in substituting the applicants' detention in prison with the less severe measure of
house arrest. The Court held that although house arrest still constituted a
deprivation of liberty, this substitution resulted in a change of the nature of the
place of detention (from a public to a private place) so that during these three
days the applicants were illegally deprived of their liberty?

Of particular interest in this context is the Amuur judgment in which, contrary to

the majority of the Commission, the Court concluded that "airport detention" of
asylum seekers for 20 days was equivalent in practice, in view of the restrictions
suffered, to a deprivation of liberty and that consequently the guarantees of Article
5 were applicable. The Court rejected the argument of the respondent Government
- shared by the majority of the Commission - that the applicants could at any time
have removed themselves from the sphere of application of the restrictive measures
applied in the international zone of the airport. The mere fact that it is possible for
asylum seekers to leave voluntarily the country where they wish to take refuge can
involuntarily restrict their right of liberty. Furthermore, in the Court's view, "this
possibility becomes theoretical if no other country offering protection comparable
to the protection they expect to find in the country where they are seeking asylum
is inclined or prepared to take them in"?
' See ILL. v. the United Kingdom, no 45508199, para. 89, judgment of 5 October 2004, unreported, and the
authorities cited therein.
2 Cyprus v. Turkey, Commission report of 10 July 1976, para. 235 and para. 286.
3 Guzzardi v. Italy, para. 92, judgment of 6 November 1980, Series A, No. 39.
4 Vittorio and Luigi Mancini v, Italy, paras. 19 and 26, judgment of 2 August 2001.
5 Amuur v. France, para. 48, judgment of 25 June 1996, Reports 1996-111, No. 11; see also Recommendation 1475
(2000) of the Council of Europe Parliamentary Assembly on "arrival oJ asylum seekers at European airports",
adopted on 26.9.2000, and the Recommendation of the Council of Europe H u m a n Rights Commissioner
concerning "'the rights" o f foreigners wishing to enter a Council o f Europe member State's territory and the
500 enforcement o f expulsion orders"', sent to all Council of Em'ope member States on 19.9.2001.
 The Guarantees of Judicial Control with Respect to Deprivation of Liberty
under Article 5 of the European Convention of Human Rights

From the case law, it appears that the dividing line between deprivation of liberty
and other restrictions of liberty is not clear-cut and it is always possible that a
measure considered by the national legislature or judge as a mere restriction will
eventually be considered by the Court as a deprivation of liberty to which the
guarantees of Article 5 are applicable.

2. The guarantees of judicial control aflbrded by Article 5 w4 of the Convention

Article 5 w4 E C H R guarantees a procedural right, that is the right of a person
who is deprived of his or her liberty "to take proceedings" by which the lawfulness
of his [or her] detention shall be decided speedily by a court and his release ordered
if the detention is not Icmful." This is in fact the remedy of habeas corpus'
originating from English law. In this respect, Article 5 w 4 constitutes a lex
specialis in relation to the more general requirements of Article 13 ECHR. 6

a. Applicability of the guarantees

As indicated above, the procedural right ensured by Article 5 w4 is granted to a
person deprived of his or her liberty whatever the purpose of this deprivation
and whatever the procedural mechanism through which it is operated at the
domestic level might be: for instance, detention as a coercive measure in civil
proceedings, detention on remand, detention of a minor for educational
supervision purposes, detention of persons of unsound mind or "vagrants",
detention of asylum seekers or detention pending a decision on deportation or
extradition (Article 5 w 1 (b), (c), (d), (e) and (f) respectively).

As regards more specifically detention on remand, the Court has held that
fulfilment of the procedure prescribed in para. 3 of Article 5, first part, may
affect compliance with para. 4 of the same Article. Thus, in cases where (initial)
detention is ordered or confirmed ("promptly") by a "court", the judicial control
of lawfulness required by para. 4 is incorporated in this initial decision. However,
the guarantee of para. 4 is of a different order from, and additional to, that
provided by para. 3, in particular in the sense that the judicial control of
detention envisaged in para. 4 must be renewed "at regular intervals" during the
whole period of detention on remand. 7

In a number of cases against the United Kingdom concerning detention of

discretionary life prisoners, ~ or detention "during her Majesty's Pleasure",
imposed automatically upon juveniles convicted for murder, 9 the Court found
violations of Article 5 w 4 E C H R due to the absence of a judicial review of

6 See, for instance, Brannigan and McBride v. the United Kingdom, judgment of 26 May 1993, Series A, No. 258-
13.; see also Chahal v. the United Kingdom, para. 126, judgment of 15 November 1996, Reports 1996-V, and
Ocalan v. Turkey, no 46221/99, para. 86, judgment of 10 March 2003, unreported.
7 See De Jong, Baljet and Van den Brink v. the Netherlands', judgment of 22 May 1984, Series A, No. 77.
See Weeks v. the United Kingdom, judgment of 2 March 1987, Series A, No. l l4, and Thynne, Wilson and Gunnel
v. the United Kingdom, judgment of 25 October 1990, Series A, No. 190-A.
9 See Hussain v. the United Kingdom and Singh v. the United Kingdom, judgments of 21 February 1996, Reports
1996-1, as well as T. v. the United Kingdom [GC], no 24724/94, and E v. the United Kingdom [GC], no 24888/94,
judgments of 16 December 1999, Reports 1999-IX. 501
 Despina Chatzivassiliou

lawfulness of detention offering the guarantees satisfying this provision. The

Court held that, in these cases, the decisive ground for the applicants' continued
detention was their dangerousness to society, a characteristic susceptible to
change with the passage of time. Accordingly, new issues of lawfulness may arise
in the course of detention and the applicant is entitled under Article 5 w4 to take
proceedings to have these issues decided by a court at reasonable intervals.

On the contrary, in the Wynnecase, with respect to the detention of a mandatory

life prisoner sentenced for murder, the Court considered that the automatic
imposition of the mandatory sentence was perceived as pursuing a punitive
purpose and did not include any indeterminate element based on a characteristic
of the offender, such as dangerousness, liable to change over time. In such a case,
the Court concluded that the requirements of Article 5 w 4 were met by the
original trial and appeal proceedings. 1~

Eight years later, in a landmark judgment rendered by its Grand Chamber in the
StafJord case, the Court, taking into account legal developments which had
occurred in the United Kingdom, notably the entry into force of the Human
Rights Act 1998 on 2 October 2000, departed froln its previous case law to
conclude that mandatory life prisoners were entitled to the same guarantees as
discretionary life prisoners, including a judicial review of the lawfulness of their
post-tariff detention, offering the guarantees of Article 5 w4. II

b. The requirement of "lawfulness"

The notion of "lawfulness" under paragraph 4 of Article 5 has the same meaning
as in paragraph 1, so that the detained person is entitled to a review of his or her
detention in the light not only of the requirements of domestic law but also of
the text of the Convention, the general principles embodied therein and the aim
of the restrictions permitted by Article 5 w l. '2 Moreover, the accessibility and
precision of the domestic law may be reviewed. 13In the Ocalan case, the Court
reiterated that the "existence of a remedy must be sufficiently certain, not only
in theory but also in practice, failing which it will lack the accessibility and
effectiveness required for the purposes of Article 5 w4". 14

c. Decision by a "court"
Regarding the requirement that the lawfulness of the deprivation of liberty be
decided by a "court", the Strasbourg case law has made it clear that the "court"
referred to in this provision does not necessarily have to be a court of law of the

~o Wynne v. the United Kingdom, judgment of 18 July 1994, Series A, No. 294-A.
~ Staf~)rd v. the United Kingd~m [GC~,judgment ~f 28 May 2 ~ 2 , E C H R 2~2~IV; see a~s~ Sudre~ E, Margdnau d
J - P , Andriantsimbazovina, ~, Gouttenoire, A., Levinet, M., Les grands arr~ts de la Cour europ~enne des droits
de rhomme, Presses Universitaires de France, 2003, pp. 153-154.
~2 See inter alia." Chahal v. the United Kingdom, para. 127; Hutehison Reid v. the United Kingdom, no 50272, para.
65, judgment of 20 February 2003, E C H R 2003-1V; H.L.v. the United Kingdom, para. 135.
13 As regards more specifically, the requirement of accessibility in the case of asylum seekers, see the Amuur
judgment, para. 50.
502 ,4 See Ocalan ~ Turkey, para. 69, and the authorities cited therein.
 The Guarantees of Judicial Control with Respect to Deprivation of Liberty
under Article 5 of the European Convention of Human Rights

classic kind, i n t e g r a t e d within the s t a n d a r d j u d i c i a l architecture o f the country.

T h e t e r m d e n o t e s " b o d i e s which exhibit n o t only c o m m o n f u n d a m e n t a l features,
o f which the m o s t i m p o r t a n t is i n d e p e n d e n c e o f the executive a n d the p a r t i e s to
the case...," but also the g u a r a n t e e s o f a j u d i c i a l p r o c e d u r e a p p r o p r i a t e to the
k i n d o f d e p r i v a t i o n o f liberty in q u e s t i o n ? s I n o t h e r words, the g u a r a n t e e s
a t t a c h e d to the p r o c e d u r e u n d e r Article 5 w 4 are to be j u d g e d by the
circumstances o f each case, in p a r t i c u l a r the consequences resulting there f r o m
for the p e r s o n c o n c e r n e d ~6 a n d need n o t necessarily be the same as those
p r e s c r i b e d in Article 6 w 1 for a "fair trial"/7

T h e C o u r t has m a i n l y c o n s i d e r e d that the p r o c e d u r e u n d e r Article 5 w 4 s h o u l d

offer the following g u a r a n t e e s : the c o m p e t e n t a u t h o r i t y m u s t be i n d e p e n d e n t
f r o m b o t h the e x e c u t i v e a n d the p a r t i e s to t h e case; TM the d e t a i n e d p e r s o n m u s t be
h e a r d in p e r s o n or, if necessary, t h r o u g h a r e p r e s e n t a t i v e ; ~ a c o u n s e l s h o u l d be
a p p o i n t e d to assist the d e t a i n e d p e r s o n in the p r o c e e d i n g s if need be; ~~f r e e
l i n g u i s t i c a s s i s t a n c e m u s t be g r a n t e d to an alien (e.g. in cases o f a s y l u m seekers); 2~
the p r o c e e d i n g s s h o u l d be t r u l y adversaria122 a n d m u s t a d e q u a t e l y ensure
" e q u a l i t y o f a r m s " between the parties, n a m e l y the p r o s e c u t o r a n d the detainee; 23
the c o m p e t e n t a u t h o r i t y m u s t have t h e p o w e r to o r d e r r e l e a s e ? 4 Moreover,
a l t h o u g h A r t i c l e 5 w 4 does n o t require a p p e a l proceedings, if there are such
proceedings, they s h o u l d afford the same g u a r a n t e e s as those at first instance. 25

d. E x t e n t o f the j u d i c i a l review

T h e extent o f the j u d i c i a l review afforded u n d e r Article 5 w 4 is n o t identical for

every k i n d o f d e p r i v a t i o n o f l i b e r t y envisaged in A r t i c l e 5 w 1.5~ It is thus clear
that Article 5 w 4 does n o t g u a r a n t e e a right to j u d i c i a l review o f such b r e a d t h as
to e m p o w e r the court, on all aspects o f the case including questions o f p u r e
expediency, to substitute its own discretion for that o f the d e c i s i o n - m a k i n g
authority. T h e review should, however, be wide e n o u g h to b e a r o n those
c o n d i t i o n s which are essential for the "lawful" d e t e n t i o n o f a p e r s o n a c c o r d i n g
to A r t i c l e 5 w 1.27 This m e a n s that, for instance, in case o f arrest a n d d e t e n t i o n

., See Hutchison Reid v. the United Kingdom, para. 64, and the authoritiescitedtherein.
16 See De Wilde, Ooms and Versyp v. Belgium (" Vagrancy" cases),judgment of 18 June 1971, SeriesA, No. 12.
~7 Pantea v. Romania, no 33343196, para. 249, judgment of 3 June 2003, ECHR 2003-VI.
'~ Neumeister v. Austria, judgementof 27 June 1968, SeriesA, No. 8.
,9 See Winterwerp v. the Netherlands, para. 60, judgment of 24 October 1979, Series A, No. 33; Grauzinis v.
Lithuania, paras. 31-33,judgment of 10 October2000; Ocalan v. Turkey, para. 69.
20 See the case of Megyeri ~. Germany, judgment of 12 May 1992, SeriesA, No. 237-A,wherethe applicanthad
spent more than lbur yearsin a psychiatrichospital;see also the case of Bouamar ~ Belgium, judgment of 29
February 1988,SeriesA, No. 129, wherethe applicantwas a juvenile.
2~ See the Amuurjudgment, para. 50.
2_, See Toth v. Austria, judgmentof 12December1991,SeriesA, No. 224;Hussain v. the UnitedKingdom and Singh
v. the United Kingdom, paras. 60 and 68 respectively;Grauzinis v. Lithuania, para. 31.
23 llijkov v. Bulgaria, para. 103,judgment of 26 July2001, unreported.
'~ Curley v. the UnitedKingdom, para. 32,judgment of 28 March2000, unreported;Stajfbrd v. the United Kingdom
[GC], para. 89, ECHR 2002-IV;Oealan v. Turkey, para. 75.
~5 See the Toth judgement,para. 84, and Grauzinisjudgment, para. 32.
2, See,inter alia, the Bouamarjudgment, para. 60, and the Chahaljudgment, para. 127.
~ See the Chahaljudgement. 503
 c:'/
Despina Chatzi~assiliou

under Article 5 w 1 (c), the competent court has to examine not only the
compliance with the procedural requirements set out in domestic law but also the
reasonableness of the suspicion grounding the arrest and the legitimacy of the
purpose pursued by the arrest and the ensuing detention. 28

e. The onus of proof

In the case of Hutchison Reid v. the United Kingdom, the Court held that there
was no direct Convention case law governing the onus probandi in Article 5 w 4
proceedings. It was, however, for the authorities to prove that an individual
satisfied the conditions for both the initial and the continued compulsory
detention, rather than the converse: This was implicit in the case law on Article
5 w 1. The Court thus concluded that "in so far as the burden of proof was placed
on the applicant in his appeal to establish that his continued detention did not
satisfy the conditions of lawfulness", the proceedings were not compatible with
Article 5 w4 of the Convention? 9

f. Judicial review "at reasonable intervals"

According to established case law, Article 5 w 4 guarantees the right to take
proceedings to review the lawfulness of the detention "at reasonable intervals "g~
and this "at any rate where there is no automatic periodic review of a judicial
character". 31 The Court has also distinguished between an initial decision to
detain someone and ensuing periods of detention in which new issues or facts
may be relevant. In the case of De Jong, Baljet and Van den Brink v. the
Netherlands' ("Dutch" cases), 32 the Court found a violation of Article 5 w 4
because the applicants were deprived of their liberty during eleven, seven and six
days respectively without any remedy against their deprivation of liberty. In the
case of Igdeli v. Turkey, the Court considered that the inability of the applicant
to challenge the lawfulness of his detention in police custody for seven days was
in breach of Article 5 w 4, even in the context of investigation of terrorist
o f f e n c e s . 33 At the same time, Article 5 w4 is not applicable to detentions of a very
short duration, i.e. of a few hours only) 4

With respect to ensuing periods of detention, in the Bezicheri case, 35 the Court
argued against the position of the Respondent Government that a period of one
month between the first judicial review of detention on remand and an application

~8 See Brogan and Others ~: the United Kingdom, para. 65, judgment of 29 November 1988, Series A, No. 145-B;
Ilijkov judgment, para. 94; Yankov v. Bulgaria, no 39084197, para. 184, judgment of 11 December 2003,
unreported; Butkevicius v. Lithuania, no 48297/99, para. 43, judgment of 26 March 2002, E C H R 2002-11.
2,, Ibidem, paras. 69-74.
3o Bezicheri v. Switzerland, judgment of 25 October 1989, Series A, No. 164.
31 Y v. the United Kingdom j u d g m e n t of 5 November 1981, Series A, No. 46; M e g y e r i j u d g m e n t , para. 22.
~2 Judgment of 22 May 1984, Series A, No. 77.
23 Igdeli v. Turkey, no 29296/95, paras. 34-36, judgment of 20 June 2002, unreported.
34 See admissibility decision of the former European Commission of H u m a n Rights, hereinafter cited as "Dec.
Adm.", no 7376/76, X and Y v. Sweden, D & R 7 (1977) where a detention pending deportation of less than 2
hours was at stake.
504 35 Ibidem.
 c:// The Guarantees of Judicial Control with Respect to Deprivation of Liberty
under Article 5 of the European Convention of Human Rights

for release was n o t unreasonable, considering that "detention o n r e m a n d calls for

short intervals". I n the case of H e r c z e g f a l v y v. A u s t r i a , concerning the automatic
judicial review of detention of persons of u n s o u n d mind, intervals of fifteen
m o n t h s a n d two years respectively between two judicial decisions were n o t
considered as "reasonable intervals", whereas a period of nine m o n t h s was n o t
criticised by the Court and therefore apparently met the requirements of Article 5 w4. 36

g. Decision t a k e n "speedily"

P a r a g r a p h 4 explicitly requires that the judicial review shall take place " s p e e d i l y " .
I n the P a n t e a v. R o m a n i a case, the C o u r t n o t e d that a speedy judicial control o f
the lawfulness o f the d e t e n t i o n is a n i m p o r t a n t safeguard against ill-treatment o f
the i n d i v i d u a l ?~

C o m p l i a n c e with the r e q u i r e m e n t o f "speediness" m u s t be assessed in the light

o f the specific circumstances o f the c a s e : I n this assessment, factors m a y be
taken into c o n s i d e r a t i o n which are c o m p a r a b l e to those which play a role with
respect to the r e q u i r e m e n t of a "trial within a reasonable time" u n d e r Article 5
w 3 or u n d e r Article 6 w 1 (see below): for instance, the c o n d u c t of the a p p l i c a n t
a n d the way the authorities have h a n d l e d the case? ~

With regard to the period that has to be taken into consideration, the C o u r t has
taken as the starting p o i n t the day the application for release has been made. T h e
relevant period comes to a n e n d o n the day the c o u r t has given j u d g m e n t , 4~or the
day that the a p p l i c a n t has been released p r i o r to a judicial decision o n
detention. 4~ I f the proceedings have been c o n d u c t e d at two levels o f j u r i s d i c t i o n
a n overall assessment m u s t be m a d e in order to d e t e r m i n e whether the
"speedily" r e q u i r e m e n t has been complied with. 42

The n o t i o n of "speedily" indicates a l e s s e r u r g e n c y t h a n that of " p r o m p t l y " in

Article 5 w 3 E C H R . 43 T h a t said, the C o u r t has j u d g e d a period of 31 days
between the lodging o f a request for release a n d a decision thereon as n o t
satisfying the r e q u i r e m e n t of "speediness". 4~

36 Judgmentof 24 September1992,SeriesA, No. 244;see also Hurst v. the United Kingdom, judgmentof 24 July
2001, in which delays of 21 months and two years respectivelybetweentwo reviews of the lawfulnessof
detentionof a discretionarylifeprisonerwerenot consideredas "reasonableintervals".
37 Pantea v. Romania, para. 256.
3~ See,for instance,Sanchez-Reissue v. Switzerland, para. 55, judgmentof 21 October1986,SeriesA, No. 107.
39 See,for instance,Luberti v. Italy, judgmentof 23 February 1984, SeriesA., No. 75 and Van der Leer v. the
Netherlands', judgmentof 21 February1990,SeriesA, No. 170.
,o Bezicheri judgment, para. 22.
~ Fox, Campbell and Hartley ~ the United Kingdom, judgmentof 30 August1990,SeriesA, No. 182;Slivenko v.
Latvia, no 48321199,para. 158,judgmentof 9 October2003, unreported.
42 See Hutchison Reid v. the United Kingdom, para. 78, and the authoritiescitedtherein.
~ Navarra v. France, para. 28,judgmentof 23 November1993,SeriesA, No. 273-B.
Sanchez-Reisse ~ Switzer~and; see a~s~ G B. and M. B. ~ Switze~and~ judgments ~f 3~ N~vember 2 ~ unrep~rted;
see also the caseof Magalhaes Pereira ~ Portugal, no 44872/98,para. 49,judgmentof 26 February2002,ECHR
2002-I,wherethe Courtconsideredthata delayof oneyearand eightmonthsbetweenthe preparationof a medical
report and the subsequentdecisionon the continuationof the applicant'sdetentionon the basis~nter alia of this
report was "in itselfcapableof runningcounterto the principleunderlyingArticle 5 of the Convention,namely
the protectionof individualsagainstarbitrarinessas regardsany measuredeprivingthemof theirliberty". 505
 Despina Chatzivassiliou f~K--

III. Judicial control with respect to pre-trial deprivation of liberty

1. The scope of application of Article 5 w 1 (c) read together with Article 5 w3
Since paragraph 3 of Article 5 only applies to a deprivation of liberty governed
by paragraph 1 (c) of the same Article, before analysing the procedural
guarantees that the former provision offers, the scope of application of the latter
should be briefly explained. This is all the more important, given the stronger
character of the procedural guarantees provided for by paragraph 3 compared
to those provided for by paragraph 4 of Article 5. Article 5 w 1 (c) permits:

"the lawful arrest or detention of a person efJectedJbr the purpose of bringing him
before the competent legal authority on reasonable suspicion of having committed
an oflbnce or when it is reasonably considered necessary to prevent [him .from]
committing an offence or [from]fleeing [the jurisdiction] after having done so".

In the words of Trechsel, paragraph 1 (c) of Article 5 "can probably claim the
sad record of being the most inadequately drafted provision of the whole
Convention". 45Indeed, the provision refers to "arrest or detention" and sets out
a list of conditions without distinguishing between them. It could thus appear
that the same conditions might authorise arrest and police custody (initial or
judicially unauthorised deprivation of liberty), as well as continuing detention,
namely detention on remand (or judicially authorised detention). Moreover, in
listing these conditions, the said provision lacks clarity: it seems that for a
deprivation of liberty to be authorised by Article 5 w 1 (c), it must be "lawful"
and "effected for the purpose of bringing [the person] beJore a competent legal
authority", but then three conditions which follow are listed as alternatives (on
reasonable suspicion.., or ...to prevent committing an offence or fleeing after
having done so...), whereas the meaning of the "competent legal authority" is not
at all clear.

a. The purpose of bringing the person before the "competent legal authority"
The first reaction of the Court, in the Lawless case, was to interpret the
expression "for the purpose of bringing the person before the competent legal
authority" as requiring in the alternative either a judicial examination of the
lawfulness of the deprivation of liberty or a trial on the merits of the criminal
charge. 46 In the Ireland v. the UK case, 47 the Court interpreted the expression
"competent legal authority" in Article 5 w 1 (c) as a synonym for the "judge or
other officer authorised by law to exercise judicial power" of paragraph 3 of

~ S. Trechsel, "Liberty and security of person", in R . S t . J Macdonald, E Matscher, H. Petzold, (eds.), The
European system for the protection of human rights, Dordrecht/BostonlLondon, Nijhofi, 1993, p. 302. For
JE. C~ Fawcett, The application of the European Convention of Human Rights, Oxford, Clarendon Press, 1987,
p. 88, the provisions of paragraphs 1 (c) and 3 of Article 5 need redrafting. See also Jacobs and White, The
European Convention of Human Rights, Oxford University Press, 2002, p. 138; P van Dijk, and G ~ H . van
Hooj; Theory and Practice of the European Convention of Human Rights, Deventer, Kluwer Law and Taxation
Publishers, 1998, pp. 356-357.
46 Lawless v. Ireland para. 14, judgment of 1 July 1~961, Series A no. 3.
47 See para. 199, judgment of 18 January 1978, Series A, No. 25; see also Schiesser v. Switzerland, para. 29,
506 judgment of 4 December 1979, Series A, No. 34.
 The Guarantees of Judicial Control with Respect to Deprivation of Liberty
under Article 5 of the European Convention of Human Rights

Article 5 who should review "promptly" the lawfulness of detention. In both

cases, the meaning assigned to the "competent legal authority" was not relevant
to the conclusion that there was a violation of Article 5 w 1, since the measures
of deprivation of liberty complained of did not allow for any judicial review
whatsoever. However, in more general terms, on the basis of the interpretation
made by the Court, it could be argued that Article 5, para. 1 (c) authorises a
deprivation of liberty, provided that a judicial review of the lawfulness of the
measure takes place promptly, even in the absence of any intention to charge the
person and bring him or her to trial. A merely preventive detention or detention
for questioning purposesf could thus be permissible under the Convention,
provided that its "lawfulness" be judicially reviewed.

A turning point was marked almost two decades after the Lawless judgment in
the Guzzardi case, where the Court held that in authorising detention "reasonably
considered necessary to prevent [the person from] committing an offence", Article
5, paragraph 1 (c) of the Convention "was not adapted to a policy of general
prevention against an individual or a category of individuals who, like mafiosi,
present a danger on account of their continuing propensity to crime", but did no
more than "afford the Contracting States a means of preventing a concrete and
specific offence". ~9The Court made its position even more clear and put an end
to any ambiguities in this respect in its Ciullajudgment, when it affirmed that the
"competent legal authority" in Article 5 w 1 (c) was to be understood as the trial
court within the meaning of Article 6 w1 ECHR. Thus, the Court underlined that
sub-paragraph 1 (c) of Article 5 permits deprivation of liberty "only in
connection with criminal proceedings"? ~ This link with criminal proceedings
(either in the course of or intended) must be present even if the ground for
detention is to "prevent" the commission of a criminal offence, 51in which case
what is to be prevented is the commission of a new offence. Thus, Article 5 w 1
(c) clearly covers only an arrest or detention effected for the purpose of charging
and bringing the person to trial for a judgment on the merits: pre-trial
deprivation of liberty. Any forms of detention for questioning purposes
("information gathering") or preventive grounds are excluded from the scope of
application of this provision.

b. Grounds justifying the deprivation of liberty

Moreover, the Court solved the problem related to the enumeration of
conditions for "arrest or detention" in a single provision through an
interpretation of paragraph 1 (c) of Article 5 in connection with paragraph 3 of
the same Article, whereby it is provided that the length of detention on remand
cannot exceed a "reasonable time". The Court had since its early judgments held
4~ See in this respect Hi Cook, Preventive detention. International standards and the protection of the individual,
in Preventive detention. A comparative and international law perspective, Frankowski, s., D. Shelton,
Dordrecht/Boston/London, Nijhoff 1992, pp. 1-52.
49 Guzzardi v. Italy, paras. 38 and 39, emphasis added.
~~ Ciulla v. Italy, para. 38,judgment of 22 February 1989, Series A, No. 148, emphasis added; see also Brogan and
Others, para. 53, judgment of 29 November 1988, Series A, No.145-B.
5~ Ciulla judtgnent, para. 40. See also Je~ius v. Lithuania, no. 34578197, judgment of 31 July 2000, ECHR 2000-VII. 507
 ~5:,//
Despina Chatzivassiliou

that the two provisions form "a whole". 52 According to the Court's
interpretation, the existence of a reasonable suspicion that the person has
committed an offence can justify initial deprivation of liberty (arrest and police
custody) under Article 5 w 1 (c). But, whereas the persistence of such a reasonable
suspicion is a condition sine qua non for the validity of the continued detention,
after a certain lapse of time, it no longer suffices to justify prolonged detention on
remand. Other grounds, such as risk of repetition of the offence or risk of
tampering with evidence etc., invoked by the domestic courts, must be relevant
and sufficient to justify - in addition to the "reasonable suspicion" - continuing
detention on remand which otherwise exceeds the reasonable-time requirement
guaranteed by Article 5 w 3. 53

c. The requirement of a "reasonable suspicion"

Finally, as regards the condition mentioned in Article 5 w 1 (c) which must be
present upon arrest and throughout the whole period of detention, namely the
existence of a reasonable suspicion, the Court has clarified that having such a
suspicion pre-supposes "the existence of facts" or inJormation" which would
satisfy an objective observer that the person concerned may have committed the
offence". 54 As a rule, the onus probandi lies with the Respondent Government
which should provide the facts and information in question.

In cases in which the arrested person is suspected of terrorism, the Court has
accepted that the "reasonableness" of the suspicion justifying such an arrest
cannot always be judged according to the same standards as are applied in
dealing with conventional crimes. States could not be asked to establish the
reasonableness of the suspicion governing the arrest of a suspected terrorist by
disclosing the confidential sources of supporting information or even facts
which would be susceptible of indicating such sources or their identities.
Nevertheless, the respondent Government has to furnish "at least some facts or
information capable of satisfying the Court that the arrested person was reasonably
suspected of having committed the alleged offence. This is all the more necessary
where [... ] the domestic law does not require reasonable suspicion, but sets a lower
threshold by merely requiring honest suspicion.'55

2. The special guarantees of Article 5 w3

a. Judicial control of police custody under Article 5 w3, first part
The first part of Article 5 w3 requires that

"Everyone arrested or detained in aceordance with the provisions of paragraph

1 (c) of this' article shall be brought promptly before a judge or other officer
52 See, for instance Lawless v. Ireland.
,3 W e m h o f f v. Germany and Neumeister v. Austria, judgments of 27 June 1968, Series A, No. 7 and 8 respectively;
see also below.
~4 Fox, Cambell andHartley ~ the United Kingdom, pars. 32, judgment of 30 August 1990, Series A, No. 182; emphasis
added; see also O'Hara ~ the United Kingdom, pars. 34, no 37555/97,judgment of 16 October 2001, E C H R 2001-X.
508 55 Fox, Cambell and Hurtley v. the United Kingdom, pars. 32, and O'Hara v. the United Kingdom, pars. 35.
 The Guarantees of Judicial Control with Respect to Deprivation of Liberty
under Article 5 of the European Convention of Human Rights

authorised by law to exercise judicial power..."

In so doing, Article 5 w 3 qualifies the permissible length of police custody (or

detention prior to judicial control) under the Convention. The purpose of the
guarantee, according to the Court, is to ensure "prompt and automatic" judicial
control of police or administrative detention ordered in accordance with the
provisions of para. 1 (c)". ~6It thus constitutes a more specific expression of the
purpose of Article 5 as a whole, which "enshrines a fundamental human right,
namely the protection of the individual against arbitrary interferences by the State
with his right to liberty"? 7It also affords protection against possible abuses by the
police authorities, including ill-treatment, which may occur upon arrest or at the
initial stage of police custody?~

However, the text of the Convention does not specify any precise time-limit on
police custody. It merely requires that the appearance before a judicial authority
take place "promptly" ("aussitdt"). Thus, it was for the Strasbourg case law to
determine the meaning, on the one hand, of the expression "'other officer
authorised by law to exercisejudicial power" and, on the other, of the requirement
of "promptness". The two requirements are closely interlinked. On the one hand,
only an appearance of the detainee before an officer who satisfies the
requirements of Article 5 w3 marks the end of the period which must be assessed
in order to determine whether the requirement of promptness was satisfied; a
control which might have intervened earlier but was effected by an authority not
satisfying the Convention requirements is not relevant and, thus, for the
purposes of the Convention, the period to be assessed continues to run. On the
other hand, the requirement of promptness is satisfied as long as the arrestee was
released "promptly", before any judicial control of his or her detention would
have been feasible. 59

(1) The "other officer authorised by law to exercise judicial power"

The meaning of this expression was dealt with at length in the Schiesser case.
The Court held that "the 'officer' is not identical with the 'judge' but must
nevertheless have some of the latter's attributes, that is to say must satisfy certain
conditions each of which constitutes a guarantee for the person arrested". 6~The
Court laid down the following conditions:

(a) Independence of the executive and of the parties (or impartiality, according to
subsequent case law);

56 De Jong, Baljet and Van den Brink v. the Netherlands, para. 51, emphasis added.
27 Brogan and Others v. the United Kingdom, para. 58, judgment of 29 November 1998, Series A, No. 145-B,
emphasis added.
'~ In the case of Pantea v. Romania, para. 240, the Court held that the scope of flexibility in interpreting and
applying the notion of promptness is "very limited" as prompt judicial review is also an important safeguard
against ill-treatment of the individual.
59 De ,long, Ballet and Van den Brink ~ the Netherlands', para, 52.
~o Schiesser v. Switzerland, judgment of 4 December 1979, Series A, No. 34, para. 31 509
 ~y
Despina Chatzivassiliou

0o) a procedural requirement, namely the obligation of the "officer" to hear the
individual brought before him/her in person;

(c)a substantive requirement, namely the obligations of reviewing the

circumstances militating for or against the detention, deciding by reJerence to
legal criteria whether there are reasons to justify the detention, and ordering
release if there are no such reasons.

In the Schiesser case, in assessing whether the Zurich District Attorney

("Bezirksanwalt") - who is part of the public prosecutor's office, in charge of the
investigation and may, in certain cases, be called upon to exercise prosecuting
functions - satisfied the requirements of the first part of Article 5 w 3, the Court
considered that a literal analysis of the term "officer authorised by law" etc.
would also include "offi'cials in public prosecutors' departments"; 6~ as to the
condition of the independence of the parties, it concluded that, in the case
brought before it, this condition was met since the officer in question who
reviewed the lawfulness of the detention, had not acted as a prosecutor in the
same case at a later stage. 62

However, in a series of judgments concerning military proceedings, the Court,

following the former Commission, 63 realised that members of the prosecutor's
office are, or are as a rule liable to become, one of the parties to the proceedings
and, in view of this mere possibility, they cannot be regarded as independent of
the parties regardless of whether or not in a specific case they have later
performed prosecuting functions? 4 In subsequent cases, the Court replaced the
requirement of independence of the parties with the requirement of
"impartiality" within the meaning of Article 6, w 1 and quoted case law relating
to the latter provision. 6~Thus, following a clear shift in its case law, almost ten
years later, the Court found that the same authority who was at issue in the
Schiesser judgment - the Zurich District Attorney did not meet the
requirement of impartiality that is inherent in the notion of "officer authorised
by law to exercise judicial power"? ~

This ruling was confirmed in subsequent cases. 67It has thus been made clear that
members of the Prosecutor's Office or any oJfi'cer who might exercise prosecuting
functions at a later stage of the proceedings does not satisfy the requirements" of the

~' ibidem, para. 28.

~" ibidem, para. 34.
~3 See Skoogstrgm v. Sweden, Report of i5 July 1983, Series B, No. 68-A.
64 De Jong, Baljet and Van den Brink v. the Netherlands', van der Slu#~, Zuidervald and Klappe v. the Netherlends and
Duinhof and Du~tf v. the Netherlands. (hereinafter referred to as "'Dutch' cases"), judgments of 22 May 1984,
Series A, Nos. 77, 78 and 79, respectively.
~5 See, for instance, eauwels v. Begium, para. 38, judgment of 26 May 1988, Series A, No. 135; see also Hood v. the
United Kingdom, paras. 57-58, judgment of 18 February 1999, Reports 19994.
~ Huber v. Switzerland, judgment of 23 October 1990, Series A, No. 188.
6, See, for instance, Brincat v. Italy, judgment of 26 November 1992, Series A, No. 249-A, where reference is made to
the criterion of "impartiality"; Assenov v. Bulgaria, para. 146, judgment of 28 October 1998, Reports 1998-VIII,
where reference is made to the criterion of "independence o f the parties" as in the Schiesser judgment; see also Pantea
510 v. Romania, para. 236, where reference is made to both criteria ("independence of the parties" and "impartiality").
 c:/ The Guarantees of Judicial Control with Respect to Deprivation of Liberty
under Article 5 of the European Convention of Human Rights

opening part of Article 5w Of course, this conclusion does not question the
various national legal provisions of member States which vest the Public
Prosecutor with the power to arrest or even authorise prolonged custody for a
limited period of time. The Convention does not exclude that members of the
PuNic Prosecutor's Office have such powers as tong as the arrested or the
subsequently detained person is brought "promptly" before a judge or other officer
satisfying the requirements of Article 5 w 3. Usually, the intervention of the
prosecutor takes place immediately after arrest effected by the police without a
warrant and can provide an initial guarantee especially when the Prosecutor can
order immediate release. But this intervention remains irrelevant for the purposes
of Article 5 w3 (see also above).

As regards the procedural requirement that the "officer" must satisfy, the following
more specific conditions must be met according to the Strasbourg case law:

(a) the powers envisaged by the opening part of Article 5 w 3, must be exercised
personally by the persons authorised by the Article to do so and there can be
no full or partial delegation of these powers; 68

(b)the arrestee must be brought automatically before the officer in question, no

initiative of the arrestee being required; 69 thus it is not sufficient that the
arrestee has the right to file a request to meet the authority in question and be
heard; it is not sufficient either that the arrestee is actually brought before the
authority in question if this takes place only at his or her own request;

(c) the officer must actually "hear" what the detainee has to say about the
lawfulness of his or her detention or the merits of the case, a simple
appearance of the detainee before the officer not being sufficient5~

Finally, as regards the substantive requirement that the "officer" must satisfy, a
control effected by an authority which does not have the power to order the
release of the detainee clearly does not satisfy the requirements of Article 5 w3Y
Moreover, the condition that the decision on whether there are reasons to justify
further detention be made "by reference to legal criteria" implies that the officer
in question must indicate in his or her decision the specific circumstances which
justified the existence of such reasons in a concrete case 72and not simply repeat
the wording of the law (e.g. by stating that there exists a danger of flight, without
referring to any special circumstances which justify this danger). Regarding the
requirement that the officer be authorised by "law" to exercise judicial power, the
Court has stressed the importance of "formal, visible requirements stated in the
"law" as opposed to standard practices in determining whether a national
~ Skoogstr6m report, para. 80.
69 "'Dutch" cases, paras. 51, 46, and 36, respectively; Niedbala v. Poland, judgmem of 4 July 2000, para. 50.
~o Skoogstr6m report, para. 80.
'~ Ireland v. the UK, para. 199; Schiesser v. Switzerland, par~. 31; van der Stujis, Zuiderveld and Ktoppe v. the
Netherlands, paras. 42, 43 and 48.
7~ See Hood v. the United Kingdom, para. 60, 51 1
 Despina Chatzivassiliou

procedure for deciding on the liberty of an individual satisfies the requirements

of Article 5 w 3. 73

(2) "promptly"

The Strasbourg case law has made it clear that "promptly" must be understood
in a broader sense than "aussit6t" which "literally means immediately". TM It has
also been made clear that the period to be assessed in order to verify whether the
requirement of promptness has been satisfied starts with arrest and ends with the
first appearance before an authority satisfying the requirements' of '~/udge or other
officer authorised by law to exercise judicial power" (see above). It may be inferred
from the case law that, for the purpose of defining the period under
consideration, arrest is understood in the sense of the moment at which the
person is for the first time put under restraint by the police and thus deprived of
his or her liberty within the meaning of Article 5 w 1 - regardless of whether or
not such an arrest is lawful. 75This point is important since, in various member
States precise time-limits set for the appearance of the arrestee before a judicial
authority start running from events subsequent to the moment of arrest in the
above-mentioned sense, for instance from arrival of the arrestee at the police
station or the drafting of the verbatim record on arrest by the police. Thus, time
spent in detention before these acts take place may not be taken into
consideration by the domestic law and courts but is definitely taken into
consideration by the Strasbourg Court.

The case law has been less clear as to the actual meaning of the requirement of
promptness. The Commission had initially fixed in its case law a time limit of
four days, as a rule, and of five days, in exceptional circumstances, as the
maximum permissible length of police custody, i.e. of detention prior to
appearance before a judicial authority. 76 The Court, for its part, has always
refused to fix a precise time limit and insisted that "the question whether or not
the requirement of promptness has been satisfied must be assessed in each case
according to its special features". 77

But it was only in the Brogan and Others" case that the Court had the occasion to
pronounce itself on the validity of the time limits fixed by the Commission. In this
case, the applicants had been detained, without having been brought before a judicial
authority, for periods ranging from four days and six hours to six days and sixteen
hours, under special legislation concerning persons suspected of involvement in
terrorism in Northern Ireland. The Commission, in the light of its previous case law
and the exceptional character of the circumstances of the case, concluded that periods
of detention shorter than five days were compatible with Article 5 w 3, whereas it
7~ "Dutch" cases, ibidem; see also Hood v. the United Kingdom, para. 60.
74 Ireland v. the UK, para. 199; Brogan and Others" v. the U~ited Kingdom, para. 59.
72 See, for instance, Skoogstr6m report, ibidem.
7~ See for instance, Dec. Adm., Appl. 2894/66, 3L v. the Netherlands', Yearbook IX (1966); Dec. Adm., Appl.
4960171, X~ v. Belgium, Coll. 42 (1973).
512 ~7 "Duteh'" cases, paras. 52, 49, and 41, respectively, emphasis added.
 The Guarantees of Judicial Control with Respect to Deprivation of Liberty
under Article 5 of the European Convention of Human Rights

found a violation of this provision with respect to those exceeding five days.TM

The Court, though, following a textual and contextual interpretation of the first
part of Article 5 w 3, underlined that the degree of flexibility attached to the
notion of "promptness" is limited: "the significance to be attached to [specific]
features can never be taken to the point of impairing the very essence of the right
guaranteed by Article 5 w 3, that is to the point of effectively negativing the
State's obligation to ensure a prompt release or a prompt appearance before a
judicial authority".79 The Court accepted that "subject to the existence of
adequate safeguards, the context of terrorism in Northern Ireland has the effect
of prolonging the period which the authorities may, without violating Article 5 w
3, keep a person suspected of serious terrorist offences in custody before
bringing him before a judge or other judicial officer". Howevel, the Court
concluded that even the shortest of the periods of detention under
consideration, namely four days and six hours, "Jell outside the strict constraints
as to time permitted by the first part of Article 5 w3. To attach such importance
to the special features of the case as to justify so lengthy a period of detention
without appearance before a judge or other judicial officer would be an
unacceptable interpretation of the plain meaning of the word 'promptly' [...]
[which] would import a serious weakening of" a procedural guarantee to the
detriment of the individual ...,,?o Moreover, the Court considered that there was
no call to determine "whether in an ordinary criminal law case any given period,
such as 4 days, in police or administrative custody would as a general rule be
capable of being compatible with the first part of Article 5 w3"? 1

The obvious implication of the Brogan and Others judgment is that, unless there is a
valid derogation under Article 15 ECHR, 82any excess of four days of police custody,
even in the most exceptional circumstances, including the fight against terrorism,
constitutes' a violation of Article 5 59 3? 3 The Court confirmed its finding in
subsequent cases linked to the investigation of terrorist offences. Thus, in the Ocalan
case, the Court reiterated that the fact that the investigation of such offences presents
the authorities with special problems "does not mean that the investigating
authorities have carte blanche under Article 5 to arrest suspects for questioning, free
from effective control by the domestic courts and ultimately, by the Convention
supervisory institutions, whenever they choose to assert that terrorism is involved". 84

78 Brogan and Others v. the United Kingdom, Report of the Commission of 14 May 1987, Series A, 145-B.
79 Brogan and Others' v. the United Kingdom, judgment of the Court of 29 November 1988, para. 59.
~~ Ibidem, para. 62, emphasis added.
8~ Ibidem.
82 See for instance Brunnigan and McBride v. the United Kingdom, judgment of 26 May 1993, Series A, No. 258-B.
83 See, for instance, Dec. Adm., Appl. 14671189, MeConnell ~ the UK, in which the Commission felt obliged to
abandon its 5-day maximum time limit in exceptional circumstances. In the Koster v. the Netherlands case,
judgment of 28 November 1991, Series A, No. 221, the Court also made it clear that, in assessing the permissible
length of police custody, both working days and holidays (weekends etc.) are to be taken into consideration.
84 See Ocalan v. Turkey, no 46221/99, para.106, judgment of 10 March 2003, unreported; see also Igdeli v. Turkey,
para. 28, Filiz and Kalkan v. Turkey, no 34481/97, para. 24, 20 June 2002, unreported; O'Hara v. the United
Kingdom, para. 46; Demir, Kaplan and Siisin v. Turkey, para. 41, judgment of 23 September 1998, Reports' 1998-
VI; Saktk and others' v. Turkey, para. 44, judgment of 26 November 1997, Reports 1997-vn; Murray v. the United
Kingdom, para. 58, judgment of 28 October 1994, Series A, No. 300-A_. See also the Guidelines of the Committee
of Ministers of the Council of Europe on human rights and the fight against terrorism, adopted on 11 July 2002. 513
 Despina Chatzivassiliou

What remains to be tested is whether the extreme limit of police custody is to be

set at Jour days or less in "ordinary criminal law cases". So far, the Court has not
been faced with such an "ordinary" case involving a police custody of less than
four days. That said, the national legislation of many Member states have set a
4-day limit on police custody on the basis of what is considered to be the
Strasbourg case law.

b. Judicial control of detention on remand under Article 5 w 3, second part

The second part of Article 5 w 3 requires that

"Everyone arrested or detained in accordance with the provisions of paragraph 1 (c)

of this' article [...] shall be entitled to trial within a reasonable time or to release
pending trial. Release may be conditioned by guarantees to appear for trial."

(1) Period to be taken into consideration

The period to be taken into consideration for the determination of whether the
trial has taken place "within a reasonable time" usually starts with the arrest of
the suspect. 85 But if the suspect has already been deprived of his or her liberty
for other reasons, for example, in another country pending extradition, time
spent in that context does not fall under Article 5 w 3. 8~

According to established case law, the period to be taken into consideration

under Article 5 w 3 ends when the detainee is either released or convicted atfirst
instance. And this, independently of the provisions of the domestic legal system,
which may consider the relevant period ending earlier or later: earlier, in cases in
which the national law imposes time limits on "pre-trial detention" in the sense
of "detention awaiting trial", i.e. detention pending investigation and before trial
starts; later, in cases in which, if the person concerned files an appeal, he/she
remains, under national law, "detained on remand" pending definitive conviction
as the first instance judgment is not executory. 87After conviction at first instance,
continuing detention is covered, for the purposes of the Convention, by Article
5 w 1 (a) (detention after conviction) and no longer by Article 5 w 1 (c) to which
only Article 5 w 3 refers. Finally, the period can be interrupted for various
reasons: for instance, the suspect may, during the period of his or her detention,
serve a prison sentence 88 or spend some time in liberty before being rearrested? 9
Such time has to be deducted from the period between the start and the end of
the detention on remand.

~5 See para. 32
8~ Dec. Adm., Appl. 5078/76, Coll. 46 (1974).
57 See, for instance, B v. Austria, para. 35 ft, judgment of 28 March 1990, Series A, No. 175; Kalashnikov v. Russia,
no 47095/99, para. 110, judgment of 15 July 2002, E C H R 2002-VI.
~ Toth v. Austria, para. 66, judgment of 12 December 1991, Series A, No. 224.
514 ~ Letellier v. France, judgment of 26 June 1991, Series A, No. 207, para. 34.
 The Guarantees of Judicial Control with Respect to Deprivation of Liberty
under Article 5 of the European Convention of Human Rights

(2) Grounds justifying continued detention: from the "reasonableness of the

length" to the "reasonableness of the detention"

As to the content of the guarantee provided by the second part of Article 5 w3,
the Court has clearly stated that, despite its formulation, this provision cannot
be understood as giving the judicial authorities a choice between either bringing
the accused person to trial within a reasonable time or granting him or her
provisional release, even subject to guarantees. Until conviction the accused
person must be presumed innocent, and the purpose of the provision under
consideration is essentially to require his or her provisional release once
continuing detention ceases to be reasonable. 9~ In the Court's view, it is
inconceivable that the contracting States should have intended to permit the
judicial authorities, at the price of release of the accused, to protract proceedings
beyond a reasonable time. This would, at any event, be flatly contrary to the
provision in Article 6 w 1.91

The Court has held that it is not feasible to translate the concept of "reasonable
time" in Article 5 w3 into a fixed number of days, weeks, months or years, or into
various periods depending on the seriousness of the offence.92 The basis of the
Court's assessment is rather the grounds given by the national authorities to
justify continued detention on remand. In fact, the Court has held that, whereas
the existence of a reasonable suspicion that the person has committed an offence
can justify initial deprivation of liberty and its persistence is a condition sine qua
non for the validity of the continued detention, after a certain lapse of time, it no
longer suffices to justify prolonged detention on remand.

Thus, the Court is called upon to establish whether the other grounds cited by
the judicial authorities continued to justify the deprivation of liberty, that is
whether such grounds were "relevant" and "sufficient" to show that detention
was not unreasonably prolonged and thus contrary to article 5 w 3. It is
essentially on the basis of "the reasons given in [the] decisions [made by the
national judicial authorities] and of the true facts mentioned by the detainee in
his application for release and his appeals" that the Strasbourg Court is called
upon to determine whether or not there has been a violation of Article 5 w 3. 93

It is thus not excluded that even a relatively short period of detention on remand
be found contrary to Article 5 w 3, if there were no relevant and/or sufficient
grounds to justify it. It is equally possible that, in applying this approach, a long
period of detention on remand may still be deemed acceptable. Thus, in the
W. v. Switzerland case, a detention on remand exceeding four years was found
compatible with Article 5 w3, whereas in the Toth case a period of two years and
one month exceeded the requirement of reasonableness.
~o Neumeister v. Austria, judgment of 27 June 1968, Series A, No. 8.
9~ Wemhoff v. Germany, judgment of 27 June 1968, Series A, No. 7.
~2 St6gmiiller v. Austria, j u d g m e n t of 10 November 1969, Series A, No. 9, para. 4.
93 See, for instance, W. v. Switzerland, para. 30, judgment of 26 January 1993, Series A, No. 254; Tomasi v. France,
para. 84, judgment of 27 August 1992, Series A, No. 24; Kalashnikov v. Russia, para. 114. 51 5
 Despina Chatzivassiliou

In the case of S m i r n o v a v. Russia, the Court examined not only whether the total
time the applicants spent in custody was reasonable - two years and fifteen days
for the first applicant and one yea~; six months and sixteen days for the second -
but also whether the repetitiveness of their detention complied with Article 5 w
3. The Court concluded that the repeated re-detaining of the applicants in the
course of one criminal investigation on the basis of insufficiently reasoned
decisions amounted to a violation of Article 5 w167and 3.

In its Ilijkov judgment, the Court reiterated that continued detention can be
justified in a given case only if there are specific indications of a genuine
requirement of public interest which, notwithstanding the presumption of
innocence, outweigh the rule of respect for individual liberty. Any system of
mandatory detention on remand is p e r se incompatible with Article 5 w 3 of the
Convention2 ~ Moreover, the Court has found a violation of Article 5 w3 in cases
in which the law provides for an automatic denial of bail, thus rendering
detention on remand obligatory2 ~

In applying this approach, the Court, while accepting the circumstances and
"true facts" as they result from the national judicial decisions and the
applications for release and appeals of the applicant, conducts an independent
assessment of whether or not, on the basis of these factors, the prolongation of
detention was reasonable. It has, thus, for instance, examined in detail, and
rather strictly, whether a danger of absconding persisted; whether there was a
risk of repetition of the offence; whether there was a risk of pressure being
brought upon witnesses or of evidence being tampered with in other ways. 96

As regards in particular the danger of absconding (often invoked to justify

prolonged detention on remand), the Court has held that it cannot be gauged
solely on the basis of the severity of the sentence risked; it must be assessed with
reference to other facts such as the character of the person, his or her moral
sense, assets and contacts abroad. 97 If the danger of absconding is the only
remaining reason for continued detention, the detainee must be released pending
trial if it is possible to obtain from him or her guarantees that will ensure his or
her appearance for trial2 s

Moreovel, the Court has repeatedly held that the gravity of the charges cannot
by itself serve to justify long periods of detention on remand. 99 Where the law
provides for a presumption that detention on remand is necessary, for instance,
in view of the severity of the sentence risked, the existence of the concrete facts

94 Ilijkov v. Bulgaria, para. 84, in which previous case-law is extensively quoted; see also Smirnova v. Russia, para. 61.
~' S.t~ C v. the United Kingdom, judgment of 19 June 2001, paras. 16-24; see also Caballero v. the United Kingdom,
judgment of 8 February 2000.
9~ See, for instance, Smirnova ~'. Russia, para. 60.
'~' ~ v. Switzerland judgment, paras 16-17.
~ W e m h o / f v. Germany, para. 15.
9,, See, for instance, llijkov v. Bulgaria, para. 81; Je~ius v. Lithuania, para. 94. See also Smirnova v. Russia, paras. 69
516 and 70.
 The Guarantees of Judicial Control with Respect to Deprivation of Liberty
under Article 5 of the European Convention of Human Rights

outweighing the rule of respect for individual liberty must nevertheless be

convincingly demonstrated.l~176

Finally, the Court has held that it is incumbent on the authorities, and not on the
detained person, to establish the facts which are relevant for assessing whether
continued detention on remand is justified: shifting the burden of proof to the
detained person is tantamount to overturning the rule of Article 5, a provision
which makes detention an exceptional departure from the right to liberty,
permissible only in exhaustively enumerated and strictly defined cases. 1~

(3) The requirement of "special diligence"

Where the Court finds that "relevant" and sufficient" grounds existed to justify
continued detention on remand, it must also ascertain whether the competent
national authorities displayed "special diligence" in the conduct of the
proceedings. The Court has, in fact, stated that an accused person held in
custody is entitled to have his or her case given priority and conducted with
special diligence, so that some delays may constitute violations of Article 5 w 3,
while remaining compatible with Article 6 w 1.'~ In particular, the Court's review
aims at detecting any unjustified delays or periods of inactivity. 1~ It is rather
reluctant to criticise the way the investigation is generally organised.

(4) Release on bail

Although Article 5 w3 does not guarantee an absolute right to release on bail, the
possibility of demanding bail laid down therein entails for the judicial
authorities the obligation to ascertain whether by means of such a guarantee the
same purpose can be achieved as is aimed at by detention on remand (see above
regarding cases in which the law provides for the automatic denial of bail). If
there are sufficient indications for this, but this possibility is not offered to the
detainee, the detention loses its reasonable character. This is in particular the
case if the only ground for detention is the risk of flight (see above). If the
detainee declines the offer without suggesting an acceptable alternative, he or she
cannot complain of the prolongation of the detention. 1~

On the other hand, the guarantee demanded for release must not impose heavier
burdens on the person than are required for obtaining a reasonable degree o f
security. A proportionality test must be conducted. If, for instance, the amount
required as bail is too high for the detainee to pay, while a lower sum would also
provide adequate security for his or her appearance to trial, the prolongation of
the detention is unreasonable. The financial situation of the person concerned

~~ Ilijkov j u d g m e n t , para. 84.

,o~ Ilijkov v. Bulgaria, para. 85.
,~ M a t z n e t t e r v. Austria, para. 12, judgment of 10 November 1969, Series A, No. 10.
,~ See, for instance, Toth v. Austria, para. 76.
,o4 W e m h o f f v. Germany. 517
 Despina Chatzivassiliou

and/or his or her relation to the person who stands bail for him or her, must also
be taken into consideration. '~ The accused must provide the requisite
information about this, but this does not relieve the authorities from the duty of
making an inquiry into it themselves in order to be able to decide on the
possibility of releasing him on bail. '~

IV. Concluding remarks

The case law of the Strasbourg Court on Article 5 has significantly strengthened
the guarantees of judicial control which, on the face of it, were somewhat weak
or at least unclear (the provision is poorly drafted). Especially as concerns
guarantees granted to individuals in police custody or detention on remand, the
case law on Articles 5 w167 1 (c) and 3 has gone far beyond the letter of these
provisions and practically redrafted them.

To recapitulate some of the "highlights" of its case law, the Court has:

excluded the possibility of detention for merely preventive grounds or

information-gathering;

insisted that, whereas the existence of a reasonable suspicion that the person
has committed an offence and its persistence is a condition sine qua non for
the validity of the continued detention, after a certain lapse of time, it no
longer suffices to justify prolonged detention on remand;

introduced an objective test to assess the existence of a "reasonable suspicion"

and placed the burden of proof on the Respondent Government, including in
the context of investigation of terrorist offences;

decided that the review of police custody or continued detention by a member

of the Prosecutor's Office or an officer exercising prosecuting functions does
not satisfy the Convention requirements;

insisted on the limited degree of flexibility attached to the requirement of

"promptness" in the judicial review of police custody, and refused to accept
any excess of four days of police custody, even in the most exceptional
circumstances, including the fight against terrorism;

in reviewing the length of detention on remand, moved from a consideration

of the reasonableness of the length of detention - to which the letter of Article
5 w 3 refers to a review of the reasonableness of the detention itself, on the
basis of an independent assessment as to whether the grounds given by the
domestic courts to justify prolonged detention were "relevant" and
"sufficient";

~5 N e u m e i s t e r v. A u s t r i a .
51 8 1~ S c h e r t e n l e i b Commission report of 11 December 1980, D&R 23 (1981).
 The Guarantees of Judicial Control with Respect to Deprivation of Liberty
under Article 5 of the European Convention of Human Rights

repeatedly held that the gravity of the charges cannot by itself serve to justify
long periods of detention on remand and that if the danger of absconding is
the only remaining reason for continued detention, the detainee must be
released pending trial if it is possible to obtain from him or her guarantees
that will ensure his or her appearance for trial;

refused to accept any system of mandatory detention on remand or automatic

denial of bail;

made clear that, by virtue of Article 5 w4, any person deprived of his or her
liberty is entitled to a speedy review of the lawfulness of his or her deprivation
of liberty by a judicial body offering certain guarantees and, notably,
empowered to order release, and this at regular intervals;

recognised that the procedural right under Article 5 w 4 is also granted to

discretionary and mandatory life prisoners, with respect to their post-tariff
detention, as well as to juveniles in detention "during Her Majesty's Pleasure"
in the criminal justice system of the United Kingdom.

This dynamic interpretation of the Convention by the Strasbourg Court has so

far led to significant changes in the law and practice of many member States of
the Council of Europe, both old and new ones, regarding, for instance, the role
and powers of the Prosecuting authorities, the length of police custody, the
grounds for detention on remand, the judicial review of detention of persons of
unsound mind or the permissible restrictions to the afforded guarantees in the
context of the fight against terrorism. Further changes are expected as a result
of the control effected by the Committee of Ministers of the Council of Europe
over the execution of the more recent judgments of the Court,

519