.

.
‘Abduction of Europa’ (Rembrandt Harmensz. van Rijn, Amsterdam - 1632 - fragment)

Thursday, 20 February 2014

This week in Strasbourg - A roundup of the European Court of Human Rights' case law - 2014 week 8


PRE-TRIAL DETENTION - In the case of Novruz Ismayilov v. Azerbaijan the Court found violations of Articles 5 § 3 and 5 § 4 The Court held that the national courts had failed to sufficiently justify his pre-trial detention, noting in particular that he had always collaborated with the investigating authorities before his arrest and that no account had been taken of his personal situation (he was a permanent resident with family ties, work references and no previous criminal record).  The Court also held that the hearings concerning the extension of his pre-trial detention had been held in his absence, that his lawyer had not been informed of the date and place of a hearing held in December 2004 and that the national courts had not addressed his specific arguments for release. The Court held in general:
“49.  A person charged with an offence must always be released pending trial unless the State can show that there are “relevant and sufficient” reasons to justify the continued detention (-). According to the Court’s established case-law, the presumption under Article 5 is in favour of release. The second limb of Article 5 § 3 does not give judicial authorities a choice between bringing an accused to trial within a reasonable time and granting him provisional release pending trial. Until conviction, he must be presumed innocent, and the purpose of the provision under consideration is essentially to require his provisional release once his continuing detention ceases to be reasonable (-).
50.  The persistence of a reasonable suspicion that the person arrested has committed an offence is a sine qua non for the lawfulness of the continued detention, but with the lapse of time this no longer suffices and the Court must then establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty. Where such grounds were “relevant” and “sufficient”, the Court must also be satisfied that the national authorities displayed “special diligence” in the conduct of the proceedings (-).
51.  The domestic courts must examine all the facts arguing for or against the existence of a genuine requirement of public interest justifying, with due regard to the principle of the presumption of innocence, a departure from the rule of respect for individual liberty and set them out in their decisions on the applications for release (-).
52.  The Convention case-law has developed four basic acceptable reasons for detaining a person before judgment when that person is suspected of having committed an offence: the risk that the accused would fail to appear for trial (-); the risk that the accused, if released, would take action to prejudice the administration of justice (-).
53.  In this connection, the Court reiterates that while the severity of the sentence faced is one of the relevant elements in the assessment of the risk of absconding, the gravity of the charges cannot by itself serve to justify long periods of pre-trial detention (-). Moreover, the risk of absconding, which may justify detention, cannot be gauged solely on the basis of the severity of the sentence faced. It must be assessed with reference to a number of other relevant factors, which may either confirm the existence of a danger of absconding or make it appear so slight that it cannot justify detention pending trial (-).
54.  The Court notes that the period to be taken into consideration for the purposes of Article 5 § 3 begins on the day the accused is taken into custody and ends on “the day when the charge is determined, even if only by a court of first instance” (-).”
BAIL - In the case of Zayidov v. Azerbaijan found a Violation of Article 5 § 3 because the national courts had failed to justify the necessity of remanding him in custody and had refused his requests for release on bail without explanation. Notably, they refused to take into account his arguments that he had no criminal record, and, being a well-known journalist in Azerbaijan where he had permanent residence and four young children, that he had never tried to abscond and had always cooperated with the investigation. The Court held in general:
“55.  A person charged with an offence must always be released pending trial unless the State can show that there are “relevant and sufficient” reasons to justify the continued detention (-). According to the Court's established case-law, the presumption under Article 5 is in favour of release. The second limb of Article 5 § 3 does not give judicial authorities a choice between bringing an accused to trial within a reasonable time and granting him provisional release pending trial. Until conviction, he must be presumed innocent, and the purpose of the provision under consideration is essentially to require his provisional release once his continuing detention ceases to be reasonable (-).
56.  The persistence of a reasonable suspicion that the person arrested has committed an offence is a sine qua non for the lawfulness of the continued detention, but with the lapse of time this no longer suffices and the Court must then establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty. Where such grounds were “relevant” and “sufficient”, the Court must also be satisfied that the national authorities displayed “special diligence” in the conduct of the proceedings (-).
57.  The domestic courts must examine all the facts arguing for or against the existence of a genuine requirement of public interest justifying, with due regard to the principle of the presumption of innocence, a departure from the rule of respect for individual liberty and set them out in their decisions on the applications for release (-).
58.  The Convention case-law has developed four basic acceptable reasons for detaining a person before judgment when that person is suspected of having committed an offence: the risk that the accused would fail to appear for trial (-); take action to prejudice the administration of justice if released (-); commit further offences (-); or cause public disorder (-).
59.  In this connection, the Court reiterates that, while the severity of the sentence faced is one of the relevant elements in the assessment of the risk of absconding, the gravity of the charges cannot by itself serve to justify long periods of detention (-). Moreover, the risk of absconding, which may justify detention, cannot be gauged solely on the basis of the severity of the sentence faced. It must be assessed with reference to a number of other relevant factors which may either confirm the existence of a danger of absconding or make it appear so slight that it cannot justify detention pending trial (-).
60.  The Court further observes that under Article 5 § 3 the authorities, when deciding whether a person should be released or detained, are obliged to consider alternative measures to ensure his appearance at trial. Indeed, that Article lays down not only the right to “trial within a reasonable time or release pending trial” but also provides that “release may be conditioned by guarantees to appear for trial” (-). Whenever the danger of absconding can be avoided by bail or other guarantees, the accused must be released, it being incumbent on the national authorities to always duly consider such alternatives (-).”
PSYCHIATRIC DETENTION - In the case of Ruiz Rivera v. Switzerland the Court held, by a majority, that there had been insufficient evidence to assess the dangerousness of a man who killed his wife with a view to keeping him in psychiatric detention, because of the refusal by the courts to order a further psychiatric report and hold an adversarial hearing before the Zürich Administrative Court. The Court found that the domestic authorities, not having ordered a third independent medical opinion, had not been in possession of sufficient evidence to enable them to establish that the conditions for releasing the applicant on probation were not met. It also held that the Zürich Administrative Court should have held a hearing in order to hear submissions from the applicant in person. The Court held in general (French only):
“59.  En ce qui concerne la privation de liberté des personnes atteintes de troubles mentaux, un individu ne peut passer pour « aliéné » et subir une privation de liberté que si les trois conditions suivantes au moins se trouvent réunies : premièrement, son aliénation doit avoir été établie de manière probante ; deuxièmement, le trouble doit revêtir un caractère ou une ampleur légitimant l’internement ; troisièmement, l’internement ne peut se prolonger valablement sans la persistance de pareil trouble (-). A ce propos, aucune privation de liberté d’une personne considérée comme aliénée ne peut être jugée conforme à l’article 5 si elle a été décidée sans que l’on ait demandé l’avis d’un médecin expert. Toute autre approche reste en deçà de la protection requise contre l’arbitraire (-). Concernant les qualifications du médecin expert, la Cour considère en général que les autorités nationales sont mieux placées qu’elle pour en apprécier (-), mais elle a déjà relevé que, dans certains cas particuliers, et notamment lorsque la personne internée n’avait pas d’antécédents de troubles psychiques, il était indispensable que l’évaluation fût menée par un expert psychiatre (-).
60.  En outre, l’expertise doit être suffisamment récente pour permettre aux autorités compétentes d’apprécier la condition clinique de la personne concernée au moment où la demande de libération est prise en considération. Dans l’affaire Herz c. Allemagne (-), par exemple, la Cour a considéré qu’une expertise psychiatrique datant d’un an et demi ne suffisait pas à elle seule pour justifier une mesure privative de liberté (-).”

Texts build on the press releases of the European Court of Human Rights. 
This selection covers categories 1 and 2 judgments. 

No comments:

Post a Comment