Lecture 3

Arrest and pre-trial detention

Criminal procedure

What is pre-trial detention?

The suspect in the eyes of the law is innocent. The topic is capturing and detaining suspect before
trial. Strictly speaking it should be pre-verdict detention. Why?
- Flagrant offence
- Safety measures as grounds for public or investigation
- To interrogate him/her: the suspect is the main source of evidence, he/she has the main to
say about the crime.
Terminology: pre-trial detention: ‘arrest’ + ‘police custody’/ ‘custodial detention’ + ‘remand in
custody’/’detention on remand’. It ends when someone is convicted and in prison either when the
person is acquitted and released.
Rights:
1. Individual liberty
a. Ultima ratio: this is a measure of last resort. Only when we have no other options
available a person can be detained.
b. Multiple safeguards: judicial reviews (frequent checks), reasoning decisions (can’t fight
a decision of the court if you don’t know what was based on), defense rights
2. Presumption of innocence
Simply being detained makes you look guilty, we need to have safeguards at place to make
sure the presumption of innocence is still at place
a. Presumption of bail: he/she should be released unless …
b. Reasonable suspicion: requirement but not the reason for detaining!!!!
c. Grounds for detention: good reasons for keeping a person locked up
Abuse of measure:
1. Grounds and frequency
Mere reasonable suspicion + serious offences = crime control mentality: factual presumption
of guilty + serious offence
2. Length of detention: Moldovia case – the guy was detained for 5 years in pre-trial detention
and at the end of the process completely acquitted.
3. Review mechanism
- Increased prison population
- Investigation ‘finished’
Article 5 ECHR
1. Everyone is entitled to the right of liberty and security of person except in case prescribed
by law ….
a. The lawful (double lawfulness: according to domestic law + domestic law in accordance
with ECHR requirement also). On ground of reasonable suspicion by the legal
competent authority for having committed an offence because it is necessary to prevent
him for offending or fleeing.
b. Reasonable time
Article 5(1)(4) ECHR: legal requirements
- Arrest 5(1)(c) first limb: reasonable suspicion + double lawfulness 5(1) and 5(19(c) + right
to be informed 5(2). + police custody maybe for further investigation in order to gather
evidence (only from few hours to few days).
- First appearance 5(3) first limb: promptly + procedural guarantees: right to be heard, right
to be present, right to bring your lawyer, access case file (case law). the judge will check if
everything was done until done was lawful: arrest- investigation …
 - Pre-trial detention 5(1)(c) second limb: first limb which is the moment from the arrest to the
first review, second limb is the moment form the first review to the second review.

Material requirements: 5(1)(c) and case law

a. Reasonable suspicion and double lawfulness (which are the ground for arrest as pre-
condition)
b. Four public interest grounds
c. Special diligence: did they worked hard enough to collect evidence?
d. Alternative measures: electronic bracelet

Procedural requirements: 5(4) and case law

a. Speedy judicial review or periodic automatic review
b. Adversarial hearing; equality of arms and access to the file

What is arrest?
1. Only possibility to bring suspect to authorities against its will
2. Arrested: detained – triggers rights. The person is a detainee now and with this different
name he has different rights: the right to a lawyer, to access information …
3. Reasonable suspicion: no witnesses only against the suspect. If a witness refuses to come to
the police station and make a statement they cannot be forced.
4. FLAGRANT CRIME: red-handed. Meaning in the process of committing a crime or shortly
afterwards. Some crimes are committed constantly: drug smuggling, every time you are in
possession of drugs you are committing a crime! It does qualify as a flagrant crime as long
as the search of the suspect was continuing and never stopped, does not matter how long it
is passed. Also, the citizens can do the arrest according to Dutch law.
a. All offences
5. NON-FLAGRANT CRIME: need of an offence that is serious enough.
b. Specific offences

Reasonable suspicion
‘facts that would satisfy an objective observer that a person may have committed a crime’ normally
is the reasonable person.
a. Concrete information linking the person to the criminal offence
b. Less than to convict or charge (level of suspicion not too high)
Undisclosed/ anonymous sources
How can we know if it is true?
- Fox Campbell and Hartley case, they have to give the facts in order to check if was true.
- O’Hara case, more than one independent source of information

Informed of reasons:
- Article 5(2) ECHR
- Murray case: adequate details
- Rights to silence and also counsel: there is no legal basis on article 5

Arrest NL (non-flagrant arrest)

a. Reasonable suspicion
b. PP authorization article 54 DCCP + urgency
c. Only offences of pre-trial detention art 76-67a DCCP
d. Time line: 9 hours (during the night does not count)
e. Decide whether police custody necessary
Police custody
 a. Only serious offences (art 58)
b. PP
c. Grounds: investigation and interrogation article 57 DCCP
d. Time 3 days + urgent= 6 days
e. Within 3 days= first appearance
f. Arrest + custody: 3 days and 18 h (plus possible extension of 6 days and 18h)
1 Appearance
st

a. Important safeguard: no exception! Automatic why? If you are the right person + checking
the physical conditions of the suspect. If you have been abused. Judge is impartial, it would
not been enough a prosecutor because he won’t be impartial. The judge has the power to
release him and check everything was lawful.
b. Promptly(?): how long can that maximum be? EU court said that 4 days and 6h is too long
(Brogan case), the law is that it should be LESS THAN 4 DAYS. It is calculated form the
arrest, depending on the circumstances, offence, prior custody periods (para 78 Magee).
The circumstances have to justify 4 days. Especially when we are talking of minors.
According to the Dutch law: art 59a and 63 DCCP 3 days and 18h from arrest but also 3
days of extended police custody possible, this has no influence of the moment of the first
review! The period of extension has to happen after the moment of the first review. The
Dutch law is always within the limit of the set of the court of the human right.
c. Procedural
d. Substantive
e. Safeguards: access to files …

Pre-trial detention-ECHR (they mean a detention after the first moment of review, in Dutch law is
custody on remand – detention after the first appearance) =
Detention from 1st appearance art 133 DCCP
- According to article 5 ECHR there is presumption for release
- There is no upper limit!!!! Every period is justified. As long as the court can justify it, it is
not unreasonable.

Material requirements:
1. Reasonable suspicion and double lawfulness
2. From four public interest grounds (Czarnesky para 37)
a. Risk of absconding: flee away – the seriousness of the crime is not a reason good
enough. In the case it is stressed out, you have to base on the character or a huge bank
account in the Caribbean or some means abroad. This is assumed far too easily purely
based on seriousness of the crime. You need to factually substantiate that there is this
risk.
b. Risk of obstruction of justice: destroy evidence and colluding with co-defendants,
threatening witnesses.
c. Risk of re-offending. Not simply refer to the past can predict the future!!
d. Preservation of public order: quiet often abused. The reason to believe that people will
get angry if you would be released. Should be normally difficult to demonstrate, in the
NL is far easily assumed.
3. Special diligence of investigation: the authorities worked fast enough to solve the crime,
they cannot be inactive for long period of time, they cannot delay.
4. Available alternatives: if you can prevent a person of tampering evidence in a different way
you have to do it.

Buzadij case para 100-102:

How long the grounds are needed? Initially it was said ‘after a certain lapse of time’. By now one,
the court has to synchronize everything: the moment of 1st appearance is the last moment where
reasonable suspicion will do. Afterwards you always need one of the 4 grounds.

Procedural requirement
1. Judicial review of decision: article 5(4)
a. Judicial character
b. Periodic and speedy (can be different in systems as the suspect asking for it or being
down automatically every 30 days: reasonable intervals)
c. Every review has to be anew assessment of the situation
d. Power to release
2. Adversarial trial, equality of arms

Prolonged detention
- All 4 grounds diminish with time e.g. escaping
- Alternative measures: more likely
- Special diligence: more pressing
- Judicial decisions: check anew