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Pre-trial detention in light of the jurisprudence of the European Court of Human Rights

Written By Sashka Bakalova


During the pre-trial phase of the criminal process, a suspect might be detained for the purposes of the investigative process and to ensure that the individual will be brought to trial. This detention is a measure that interferes with the individual’s right to liberty under Article 5 European Convention on Human Rights (“ECHR”). This essay discusses why it is important that the detention is procedurally safeguarded – that is, it has the potential of affecting the presumption of innocence. This is where pre-trial detention can create problems – continuously detaining a suspect suggests they have already been convicted of a crime without this having been established in a fair trial.

Articles 5(1) and 5(3) ECHR: Requirements

In the case law of the European Court of Human Rights (“the ECtHR”; “the Strasbourg court”), pre-trial detention can be divided into two limbs, each having its own requirements: 1) police custody following arrest and preceding the suspect’s first appearance in court, and 2) detention pending trial, which takes place after the first appearance and ending with the final verdict[1]. For the purposes of this essay, “pre-trial detention” refers to the second limb.

The requirements laid out in Article 5(1)(c), (2)-(4) are of both a substantive and procedural nature.[2] One of the elements of the wording of Article 5(3) ECHR is the requirement that an individual is brought “promptly before a judge”. That means that an individual who is arrested can remain under police custody for no more than four days regardless of the severity of the charge against them (even in cases of terrorism)[3]. As far as the meaning of “promptly”, the Court has not established a specified time limit by which the individual is entitled to appear before a judicial authority. The judge or “other officer authorised by law to exercise judicial power” must be able to grant conditional release according to national laws.[4] This is also known as “first appearance”. However, it has been held that the first hearing should be automatic[5], and the judicial officer should be able to determine the lawfulness of the arrest and the detention and be able to order alternative means for ensuring that the suspect appear for trial[6] (e.g., they could order bail).

The Requirements in Practice

In its case law, the ECtHR has continually highlighted the presumption in favour of release.[7] If mere reasonable suspicion is enough for arrest and detention prior to first appearance, with the passage of time there will need to be further circumstances which increase the level of reasonable suspicion.[8] In Czarnecki v. Poland, the Court held that “[t]he persistence of reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but after a certain lapse of time it no longer suffices. In such cases, the Court must establish whether the other grounds given by the judicial authorities continued to justify the deprivation of liberty.”[9]This was also confirmed in the later case of Buzadji v. Moldova[10]. Consequently, in order to justify pre-trial detention, two things need to be satisfied: (1) one of the established public interest grounds applies, and (2) alternative measures cannot safeguard the risk in the case at hand. Furthermore, in order to safeguard the procedural guarantees under Article 5(3) the Court has established a list of public interest grounds that need to be satisfied in order for continued pre-trial detention to be justified. In later case law, the ECtHR developed those public interest grounds to include danger of absconding, the risk that if released the suspect would interfere with the course of justice, or commit further offences, the preservation of public order, and the protection of the suspect. In Buzadji v Moldova, the Court determined that further detention after the first appearance must not only be justified by reasonable suspicion, but also by one or more of the public interest grounds. Additionally, the need for pre-trial detention must not be based on “general and abstract” arguments, but on concrete and specific facts relating to the circumstances of the case at hand.[11]

Alternatives to pre-trial detention

Due to the established presumption in favour of release, continued detention can only be considered as a measure of last resort and, as such, state authorities must first consider alternative measures. Alternatives to pre-trial detention are milder measures whose content varies widely across jurisdictions (spanning from unconditional freedom on remand to electronic monitoring). They are meant to offer a less strict option in dealing with the defendant pending investigation and trial.[12]The Committee of Ministers of the Council of Europe, in Recommendations No. R (99) 22 and Rec (2006)13, have called on member states to impose alternative means to detention as extensively as possible. In Ambruszkiewicz v Poland, the Strasbourg court held that “detention of an individual is such a serious measure that it is only justified where other, less stringent measures have been considered and found to be insufficient to safeguard the individual or the public interest which might require that the person concerned be detained. That means that it does not suffice that the deprivation of liberty is in conformity with national law, it also must be necessary in the circumstances”.[13]

The Presumption of Innocence

Another issue of continued detention is its relationship with the presumption of innocence. “To detain a suspect is to deprive him from his liberty without having a judge establish his guilt within a fair trial. A pre-trial detainee may turn out to be innocent in the end. Therefore, when pre-trial detention is perceived to be applied too easily, too often or too long, it is alleged that pre-trial detention practice should be more in keeping with the presumption of innocence”.[14] The presumption of innocence protects the individual from arbitrary and excessive state action – it contains the concept that pre-trial detention should not be aimed at or amount to an actual punishment.[15] It has been argued that detention on remand draws its legitimacy from serving a purpose and potentially producing certain consequences.[16] Additionally, it has also been argued that pre-trial detention is a risk-oriented measure aiming at the prevention of risks, which may vary across jurisdictions[17] – some states provide for a maximum amount of time an individual can remain in detention (in Italy it is 6 years, and for Spain it is 4 years), while others do not provide such limits and, technically, in those jurisdictions pre-trial detention can continue and renewed for undetermined periods (the Netherlands, Germany).[18]Furthermore, studies[19] have shown that continued detention affects different groups disproportionately and may be influenced by factors such as nationality, ethnicity, and race.[20] Due to its preventative nature, continued detention could have the effect of indirectly targeting specific groups of individuals[21], such as non-nationals who are at risk of further discriminations.[22]

The presumption of innocence has been argued to be a normative assumption – a moral and political principle based on the concept of how in a democratic society the powers to investigate, prosecute, try, and punish should be exercised with regard to the individual’s autonomy and dignity.[23] Therefore, the presumption of innocence should protect the individual from any state action that could be considered arbitrary or excessive, and despite the punitive element inherent in pre-trial detention, this detention should not amount to actual punishment.[24]

Czarnecki v. Poland

This was an application alleging a violation of Article 5(3) of the Convention. This case highlights several key issues discussed in this essay: proportionality, justification of detention based on reasonable suspicion, and the possibility of ordering alternatives to pre-trial detention. On 3 January 1996 the applicant was arrested by the police. On 5 January 1996 the Lublin District Prosecutor charged the applicant with homicide and larceny and remanded him in custody. The court extended the applicant's pre-trial detention multiple times. On 15 December 1998 the court again prolonged the applicant's detention relying on strong suspicion that the applicant committed the crime and on the gravity of charges. On 10 September 2001 the prosecutor dropped the charges of homicide against the applicant, but still convicted him of larceny.

Here, it was held that under the Court's case law, whether it is reasonable for an accused to remain in detention must be assessed in each case according to its special features. The Court also applied a proportionality assessment by holding 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, outweighs the rule of respect for individual liberty.

The Court further held that persistence of reasonable suspicion that the person arrested has committed an offence is a condition sine qua non for the lawfulness of the continued detention, but after a certain lapse of time it no longer suffices. Here, the authorities first relied on the reasonable suspicion that the applicant had committed the offences with which he had been charged, the very serious nature of these charges and the need to secure the proper conduct of the proceedings. They repeated those grounds in all their decisions. The Court did not consider that these grounds could suffice to justify the entire period in issue.

Furthermore, in this case there was no express indication that during the entire period of the applicant's pre-trial detention the authorities envisaged the possibility of imposing on him other preventive measures. The Court emphasised that under Article 5(3) the authorities, when deciding whether a person would be released or detained, are obliged to consider alternative measures of ensuring his appearance at the trial.

The Court concluded that the grounds given by the domestic authorities were not “sufficient” and “relevant” to justify the applicant's being kept in detention for five years and one month. There was therefore a violation of Article 5(3) of the Convention.

Buzadji v Moldova

This is another relevant case in which the applicant was a minority shareholder in and the CEO of a liquefied gas supply company, in which the State owned 82% of the shares. He was accused of having devised a scheme involving the importation of liquefied gas from Kazakhstan and Ukraine, as a result of which the company had sustained major financial losses. The applicant was arrested and formally charged. On the same date the prosecutor applied for a 30-day detention warrant. These 30 days became 10 months, due to the fact that the prosecutor in charge asked multiple times for a prolongation of the applicant’s detention. The Comrat District Court decided to release the applicant on bail, observing that he had been detained for over ten months and had never breached any of the restrictions imposed on him. The applicant was acquitted by the domestic court of the charges for which he had been detained.

The applicant maintained that at the time of the events there had been a practice of placing accused persons in pre-trial detention automatically, without any justification and solely on the basis of stereotyped and repetitive reasons. He also cited the then Government Agent who had admitted that pre-trial detention was a rule rather than an exception.

In this case, the Court confirmed the principles already established in Czarnecki v Poland for the justifications of reasonable suspicion[25] and that the presumption is always in favour of release.[26] On the question of whether there were relevant and sufficient reasons for the detention in this case, the Court held that there was no indication in the judgements that the national courts took into account factors such as the applicant’s behaviour[27], thus reinforcing the requirement for a non-abstract and non-arbitrary detention. The Court concluded that the decisions of the domestic courts cited the grounds for detention without showing how they applied to the applicant’s circumstances. Domestic courts had acted inconsistently due to the fact that “on some occasions they dismissed as unsubstantiated and implausible the prosecutor’s allegations about the danger of the applicant’s absconding, interfering with witnesses and tampering with evidence. On other occasions they accepted the same reasons without there being any apparent change in the circumstances and without explanation.”[28] Moreover, where such an important issue such as the right to liberty is in question, domestic authorities were obliged to “convincingly demonstrate that the detention is necessary”.[29]Consequently, there was a violation of Article 5(3) ECHR.

Due to the fact that the Court has been presented with the opportunity to set out more specific definitions and time limits for “promptly” and “in reasonable time”, but has continuously refused to do so, a few assumptions can be inferred. Firstly, the Court wants to ensure that states have a certain margin of appreciation based on the circumstances of the case. However, this is problematic because, as it has already been established by the Court’s case law, the margin appears to be quite wide, allowing for an individual to remain in detention for anywhere between a few days, to 10 months, or even 2-3 years. This has further implications for the presumption of innocence. If a person is forced to remain detained for months, and then have their conviction quashed, that could amount to a serious violation of their right to liberty. Secondly, it leads to uncertainties as to what the law is for these types of issues. This, again, can refer to the discretion given to state authorities and the implications for arbitrariness and lack of accountability.


The case of Buzadji v Moldova[30] is merely an example of the common practice in many states. That is, state authorities abusing the margin of appreciation afforded to them by the ECtHR by using the same justifications for unreasonably prolonging detention of suspects. Coupled with the statistics showing the heightened risk of particular groups of people, such as immigrants and the economically deprived, this practice has become the rule rather than the exception. The Council of Europe’s annual penal statistics show that in several European countries pre-trail detainees largely contribute to the total prison population and that the rates of untried prisoners continue to rise rather than decline.[31] This clearly illustrates the common practice in the majority of domestic courts – suspects are considered a risk, and the way to manage that risk is to put them in detention and not consider any other alternatives apart from imprisonment. Clearly, this significantly hinders the presumption of innocence – if an individual is automatically placed in detention and is treated as if their guilt has already been established in a trial, this makes the presumption of innocence practically non-existent.

[1] Elvira Loibl, Arrest and Pretrial Detention. in Klip & Peristeridou, Comparative Criminal Procedure, 2022 forthcoming [2] W. Schabas,The European Convention on Human Rights:A Commentary (Oxford:Oxford University Press, 2015) pp.227–250. [3] Brogan and others v United Kingdom App no11209/84;11234/84;11266/84;11386/85(ECtHR,29 November 1988),paras62;33; [4] Magee and others v. United Kingdom App nos 26289/12,29062/12,29891/12(ECtHR,12 May 2015),para101 [5] McKay v United Kingdom App no543/03(ECtHR,30 November 2004) [6] Buzadji v Moldova App no23755/07(ECtHR,5 July 2016),para 99 [7] Michalko v. Slovakia App 35377/05,(ECtHR,21 December 2010),para 145 [8] Supra note4 [9] Czarnecki v Poland App no75112/01(ECtHR,28 July 2005),para 39 [10] Supra note5 [11] Smirnova v Russia App 46133/99,48183/99,(ECtHR,24 July 2003),para 63 [12] Adriano Martufi and Christina Peristeridou,'The Purposes of Pre-Trial Detention and the Quest for Alternatives'(2020) 28(2) European journal of Crime,Criminal Law,and Criminal Justice < 10.1163/15718174-bja10002>accessed 14 November 2022 [13] Ambruszkiewicz v Poland App 38797/03(ECtHR, 4 May 2006),para 31 [14] Lonneke Stevens,'Pre-Trial Detention: The Presumption of Innocence and Article 5 of the European Convention on Human Rights Cannot and Does Not Limit its Increasing Use'[2009]17(2) European Journal of Crime,Criminal Law,and Criminal Justice < 10.1163/157181709X429132>accessed 14 November 2022 [15] Ibid. [16] Supra note10 [17] Ibid. [18] Ibid. [19] Heard C., Fair H.(2019) Pre-trial detention and its over-use: Evidence from ten countries Institute for Crime & Justice Policy Research.Available at oads/pre-trial_detention_final.pdf. [20] Adriano Martufi and Christina Peristeridou,'Towards an Evidence-Based Approach to Pre-trial Detention in Europe'[2022]28(3) European Journal on Criminal Policy and Research<DOI: 10.1007/s10610-022-09526-6> accessed 14 November 2022 [21] L Stevens, Incapacitation by pre-trial detention. in M Malsch and MJA Duker(eds),Incapacitation:Trends and New Perspectives(Ashgate 2012)97-108 [22] Hilde Wermink and others,'Pretrial Detention and Incarceration Decisions for Foreign Nationals:a Mixed-Methods Approach'[2022]28(3) European Journal on Criminal Policy and Research <> accessed 14 November 2022 [23] Andrew Ashworth,'Four Threats to the Presumption of Innocence'[2006] 10(4)The International Journal of Evidence & Proof<>accessed 16 November 2022 [24] Supra note14 [25] Supra note 5,para 87 [26] Ibid,para 89 [27] Ibid,para 117 [28] Ibid,para 122 [29] Ibid. [30] Supra note 6 [31] Supra note 12,p. 167

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