European Court of Human Rights Considers Principles Relevant to Pre-Trial Detention and Remand
Melnikova v Russia [2007] ECHR Application No 24552/02 (21 June 2007)
Summary
The European Court of Human Rights has held that pre-trial custody will only be lawful if there are ‘relevant and sufficient’ grounds for detaining a person. Prolonged pre-trial detention must be regularly reviewed and will only be justifiable in exceptional circumstances.
Facts
The applicant, Yelena Melnikova, was detained on suspicion of fraud and was held in custody for 18 months pending trial. Repeated court applications for release were denied. She claimed that this detention amounted to a violation of art 5(1)(c) of the European Convention of Human Rights. This article relevantly provides that everyone has the right to liberty and security of person and that no one shall be deprived of liberty other than in accordance with a procedure prescribed by law for the purpose of ensuring that he or she is brought 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.’ Article 5(3) further provides that ‘Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of the 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.’
Melnikova argued that her pre-trial detention was not lawful within the meaning of art 5(1)(c) as it was not sanctioned by a proper authority in accordance with the procedure prescribed by law. She also complained under art 5(3) that there had been no reasonable grounds for her lengthy pre-trial detention.
Decision
The Court stated that detention must be ‘lawful’ and ‘in accordance with a procedure prescribed by [domestic] law’, and further, be compatible with the purpose of art 5(1) (namely, to prevent persons being arbitrarily deprived of their liberty). The court also held that the conditions for deprivation of liberty under national law must be clearly defined, and that such law itself must be foreseeable in its application.
The Court found that holding a defendant in custody solely on the basis that a criminal case against him or her has been referred to a court amounts to a violation of art 5(1). Keeping defendants in detention without a specific legal basis or clear rules regulating the situation – with the result that they may be deprived of their liberty for an indefinite period without judicial administration – is incompatible with principles of legal certainty and protection from arbitrariness.
The Court also stated that decisions that deny an application for release are not the equivalent of a lawful decision to extend a term of detention. Applications for release filed by defendants do not exempt domestic authorities from authorising a person’s detention ‘in accordance with a procedure prescribed by law’ (such as issuing a formal detention notice). Finding otherwise would place the burden to ensure a lawful basis for their continued detention on the defendant rather than the authorities.
In regard to art 5(3), the Court held that a person charged with an offence must always be released pending trial, unless the prosecution can show there are ‘relevant and sufficient’ reasons to justify prolonged detention. Further in this regard, the Court stated that:
- ‘Lack of permanent residence’ of a defendant may legitimise continuing detention, but only during the initial stages of an investigation – ‘danger of flight necessarily decreases with the passage of time spent in detention’.
- The ‘gravity of the charge(s)’ and the ‘severity of [a] potential sentence’ will not in itself legitimise prolonged detention.
- The state must ‘scrupulously examine’ and address ‘evolving circumstances’ in order to legitimise the continued deprivation of liberty of a defendant. ‘Mere repetition’ of earlier rationales in the ‘later stages of investigation’ will not justify continued detention.
- Issues such as state of health, dependent children, and the availability of alternative preventative measures may also be features relevant to the lawfulness of pre-trial detention.
In the present case, the Court considered that while the applicant’s detention may have been justifiable in the initial stages of the investigation, her continued detention was not justified by ‘relevant and sufficient’ reasons. The Court further held that the applicant’s ongoing detention was not reviewed with the ‘special diligence’ required to justify ongoing detention.
Implications for the Victorian Charter
Section 32(2) of the Charter permits Victorian Courts to use the judgements of foreign courts to assist in the interpretation of Charter rights. This judgment of the European Court may be relevant to the interpretation of s 21 of the Charter, which enshrines the right to liberty and security of the person and freedom from arbitrary arrest or detention. In particular, it is authority for the proposition that any pre-trial detention must be justified by ‘relevant and sufficient’ reasons and, further, that the reasons must take adequate account of the defendant’s individual circumstances. A blanket policy, such as a policy that all persons charged with terror-related offences be remanded in custody (as seems to be the case with the ‘Melbourne 13’), will not satisfy this test. The case is further authority for the principle that prolonged pre-trial detention must be regularly and freshly reviewed with particular scrutiny.
The decision in available at http://www.echr.coe.int/ECHR/EN/Header/Case-Law/HUDOC/HUDOC+database.
Anthony Capone is a volunteer law student with the Human Rights Law Resource Centre.