Basis for Arrest
There must be a criminal offence. It must be definite in accordance with national law. The nature of the proceedings and the offence are relevant. Criminal law includes military law for this purpose (Hood v. United Kingdom).
The provisions of the Convention do not generally allow preventative detention. Where the proviso is relied on, there must be evidence that there is a risk of commission of a specific offence or preparation for an offence.
The requirement for reasonable suspicion requires objective facts on which it may be so based. It need not involve proof to a criminal standard. In Fox, Campbell and Hartley v. United Kingdom, the court confirmed that a lower standard of reasonable suspicion might suffice in the context of combating terrorism. There must, however, be some objective and honestly held basis for detention.
In Labita v. Italy hearsay or the uncorroborated evidence of an anonymous informant was insufficient. In O’Hara v. United Kingdom, there was found to be reasonable suspicion that the detention for almost a week under terrorism-type legislation was based on a number of separate informants.
Article 5(1)(c) of the European Convention on Human Rights allows that “the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so.”
It is provided in Article 5(3) that “everyone arrested or detained in accordance with the provisions of [the above] shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.”
As with other aspects of the Convention and the guarantee of personal liberty, the arrest must be lawful. It must have a sufficient basis in law.
The independent judicial officer must afford due process. This includes representations at an oral hearing and reference to lawful criteria to justify the legality of the detention. If it is not lawful the detention, the judge or judicial officer must order release. The judicial officer/judge must consider whether there is a reasonable suspicion.
A person in detention is presumed innocent and has the presumptive right to be released pending trial. Detention pending trial must be strictly necessary. A person may be detained where there is a risk of failing to appear or interfering with evidence or witnesses. A person may be detained where there is a specific risk of committing further crimes.
The detention must be justified and necessary throughout its duration. This duration must not of itself be unreasonable. Detention may become unjustified if it continues beyond that which is necessary. The fact that a person is reasonably suspected of having committed an offence does not justify prolonged detention.
The courts must assess the need for continued detention with the reference to the possible basis in the particular circumstances. In Caballero v. United Kingdom, the automatic refusal for bail for persons who were charged with having committed serious violence or crime was held to breach Article 5.
Access to a Lawyer
Pakshayev v. Russia The applicant was convicted of murder and sentenced to ten years’ imprisonment. He applicant complained that he had been denied access to a lawyer during is questioning and first few days of police custody in May 1997. He submitted that during the questioning he had been threatened by the investigator that if he did not confess he would be raped by his cellmates. The applicant then confessed to the murder but retracted his confession during the trial when represented by a lawyer. The Court held that there had been a violation of Article 6.1 and 3 of the Convention, finding that the use of his confession statement made without the benefit of legal advice for the applicant’s conviction undermined the fairness of the proceedings as a whole.
Blaj v. Romania The applicant, who was suspected of accepting a bribe, had been placed under police surveillance. A third party who had been cooperating with the police came to meet him and left an envelope containing money on his desk. The police officers intervened immediately and caught the applicant red handed. The applicant complained in particular that he had not been informed of his right to silence and legal representation at the time when he was “caught in the act”. The Court held that there had been no violation of Article 6 §§ 1 and 3 of the Convention in respect of the lack of assistance from a lawyer during the applicant’s questioning by the police under the flagrante delicto procedure. r. In all his statements, the applicant had maintained his innocence and had never contested the statements contained in the procès-verbal. The Court therefore found that the use of those statements at trial could not be said to have prejudiced the fairness of his trial.
Dvorski v. Croatia This case concerned the refusal by the police to allow a lawyer hired by the applicant’s parents to represent him while he was being questioned at a police station on suspicion of multiple murder, armed robbery and arson. The applicant confessed to the offences after signing a power of attorney authorising another lawyer to represent him.
The Court held that there had been a violation of Article 6.1 and 3 of the Convention. It found in particular that the police had not informed the applicant either of the availability of the lawyer hired by his family or of the lawyer’s presence at the police station. During questioning the applicant had confessed to the offences with which he was charged, and his confession had been admitted in evidence at his trial. The Court observed that the national courts had not properly addressed that issue, and in particular had failed to take the necessary measures to ensure a fair trial.
Borg v. Malta This case mainly concerned the complaint by a convicted offender of not having had any legal assistance during questioning in police custody, resulting from the absence of any provisions under Maltese law in force at the time allowing for legal assistance during pre-trial investigation and questioning by the police. The Court held that there had been a violation of Article 6 § 3 in conjunction with Article 6 § 1 of the Convention, finding in particular that the applicant had been denied the right to legal assistance at the pre-trial stage as a result of a systemic restriction applicable to all accused persons. This fell short of the requirement under Article 6 that the right to assistance of a lawyer at the initial stages of police interrogation might only be subject to restrictions if there were compelling reasons.
Lawyer Access Exception
Ibrahim and Others v. the United Kingdom On 21 July 2005 four bombs were detonated on the London transport system but failed to explode. The perpetrators fled the scene and a police investigation immediately commenced. The case concerned the temporary delay in providing the applicants with access to a lawyer, in respect of the first three applicants, after their arrests, and, as regards the fourth applicant, after the police had begun to suspect him of involvement in a criminal offence but prior to his arrest; and the admission at their subsequent trials of statements made in the absence of lawyers.
The Court held that there had been no violation of Article 6 §§ 1 and 3 (c) (right to a fair trial and right to legal assistance) of the Convention in respect of the three first applicants and that there had been a breach of those provisions in respect of the fourth applicant. In respect of the three first applicants the Court was convinced that, at the time of their initial police questioning, there had been an urgent need to avert serious adverse consequences for the life and physical integrity of the public, namely further suicide attacks. There had therefore been compelling reasons for the temporary restrictions on their right to legal advice. The Court was also satisfied that the proceedings as a whole in respect of each of the first three applicants had been fair.
Simeonovi v. Bulgaria The applicant, who is currently serving a sentence in Sofia Prison, alleged in particular that he had not been assisted by a lawyer during the first days of his detention. The Grand Chamber held that there had been no violation of Article 6 §§ 1 and 3 (c) (right to a fair trial and right to legal assistance) of the Convention, finding that the Bulgarian Government had presented relevant and sufficient evidence to demonstrate that they had not irremediably infringed the fairness of the criminal proceedings taken as a whole on account of the lack of legal assistance during the first three days of the applicant’s police custody. In particular, the Court noted that no evidence capable of being used against the applicant had been obtained and included in the criminal file during that period; that the applicant, assisted by a lawyer of his own choosing, had voluntarily confessed two weeks after being charged, when he had been informed of his procedural rights, including the privilege against self-incrimination; that the applicant had actively participated in all stages of the criminal proceedings; that his conviction had not been based solely on his confession but also on a whole body of consistent evidence; that the case had been assessed at three judicial levels and that the domestic courts had provided adequate reasons for their decisions in both factual and legal terms and had properly examined the issue of respect for procedural rights.
Beuze v. Belgium The applicant, sentenced to life imprisonment for intentional homicide, complained that he had been denied access to a lawyer while in police custody, had been insufficiently informed of his right to remain silent and not to incriminate himself, and had also been deprived of legal assistance when he was questioned, or subjected to other investigative acts, during the judicial pre-trial investigation.
Doyle v. Ireland case concerned the applicant’s complaint that his right of access to a solicitor was restricted during questioning on suspicion of murder. Although the applicant could consult with his solicitor prior to the first interview and thereafter, police practice at the time meant solicitors were not permitted to be present during police questioning. The Court held that there had been no violation of Article 6 §§ 1 and 3 (c) (right to a fair trial and right to legal assistance of own choosing) of the Convention. It noted in particular that very strict scrutiny had to be applied in cases where, as here, there had been no compelling reasons to justify restricting the applicant’s right of access to a lawyer. However, when examining the proceedings as a whole, the Court found that the overall fairness of the trial had not been prejudiced.
Akdağ v. Turkey The applicant alleged that she had confessed to being a member of an illegal organisation after being threatened and ill-treated by the police, without access to a lawyer in police custody.
The Court held that there had been a violation of Article 6 §§ 1 and 3 (c) of the Convention. Although it rejected as inadmissible the applicant’s complaint about her conviction on the basis of police statements taken under duress because of lack of evidence of ill-treatment, it found that the Turkish Government had failed to show that a printed “X” next to “no lawyer sought” on her statement form had amounted to her validly waiving her right to a lawyer during custody.
In point of fact, as soon as she had had access to a lawyer at the end of her custody, she had retracted her statements. Nor was the Court satisfied with the national courts’ response to the applicant’s complaint. They had neither examined the validity of the waiver nor the statements she had made to the police in the absence of a lawyer. Such lack of scrutiny had not been remedied by any other procedural safeguards, and the overall fairness of the proceedings against her had therefore been prejudiced.
Absence of an Interpreter
Baytar v. Turkey concerned the questioning in police custody, without the assistance of an interpreter, of an individual who did not have a sufficient command of the national language. The Court held that there had been a violation of Article 6 § 3 (e) (right to the assistance of an interpreter) taken together with Article 6 § 1 of the Convention. It found in particular that, without the possibility of having the questions put to her interpreted and of forming as accurate an idea as possible of the alleged offences, the applicant had not been put in a position to appreciate fully the consequences of waiving her right to keep silent and the right to legal assistance.
Before Competent Authority
An arrest must be for the purpose of bringing the person concerned before a competent legal authority. The person concerned must be reasonably suspected of having committed an offence or be about to commit an offence or of having committed an offence.
A competent legal authority has been held to mean a judge or other officer of a state authorised by law to exercise judicial power. It has long been held, including in the early Irish case of Lawless v. Ireland 1961 that the power does not permit internment or preventative detention. A person may not be detained for a crime which he may commit.
A person need not ultimately be brought before a court, provided the intention to do so was there at the time of detention. If too long a period passes without being brought before a judge or judicial officer, then there may be a breach.
An arrested person has the right to be brought promptly before a judge or equivalent officer exercising judicial power. What is required in terms of crime is dependent upon the circumstances. In Brogan v. United Kingdom, the period should be a number of days at most. In Brogan v. United Kingdom, detention for four and a half days and six days in another case without being brought before a court was held to violate the Convention.
In Medvedyev v. France, a thirteen-day period was compliant as the applicants were at sea, intercepted at sea for drug smuggling at a considerable distance from France in poor weather.
The officer must be a judge or a person exercising judicial authority. The most important factor is that he is independent of the state. In Schiesser v. Switzerland, it was held that if he may intervene in the case at an earlier or at later stage, his independence may be open to question. In Assenov v. Bulgaria, a prosecutor was held to be insufficiently independent.
In military disciplinary regimes, whereby the military commander played a judicial role was incompatible with the Convention. Hood v. United Kingdom.
In İpek v. Turkey, the applicants who were minors were held for less than four days. There was held to be a violation, in particular with reference to the fact that the applicants as minors, required additional protection.