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An analysis of the relation and differences between Article 5 paragraph 3 ECHR and Article 5 paragraph 4 ECHR

Introduction

According the Criminal Yearbook of 1990, the Court’s judgment in Brogan and others (EHRC 29 November 1988, A. 145-b) was very important for the development of the Dutch Criminal Law. As a result of this famous judgment, the Netherlands Minister of Justice requested the Moons’ Commission to advise speedily about a necessary amendment with regard to the period of custody.[1] Why? For a good understanding, I’ve to lay out the facts of this case.

In 1984 the 4 applicants in this case were arrested in Northern Ireland under section 12 of the Prevention of Terrorism Act 1984 on reasonable suspicion of involvement in acts of terrorism. In paragraph 4 of this section is worded, that a person arrested under this section shall not be detained in right of the arrest or more than forty-eight hours after his arrest, and that the Secretary of State may, in any particular case, extend the period of 48 hours by a period or periods specified by him. Even so is worded in paragraph 5 of this section, that any such further period or periods shall not exceed 5 days in all. In this case the 4 applicants were detained respectively for a period of 5 days and 11 hours, 6 days and 16,5 hours, 4 days and 6 hours, and 4 days and 11 hours. None of the applicants was founded guilty and even so non of them was brought before a judge or judicial office during his time in custody.  Because of these facts, the applicants started a procedure before the EHRC and complained about an alleged breach of article 5 paragraphs 1, 3, 4, 5 and article 13 ECHR.[2]

In this paper I’ve to deal with the question which relations and differences exist between paragraph 3 and paragraph 4 of article 5 ECHR. First I’ll discuss the scope of these both paragraphs. In the conclusion I’ll answer the question above.

 

The scope of Article 5 paragraph 3 ECHR.

Paragraph 3 relates exclusively to the category of detainees mentioned in paragraph 1 (c) of this article: those detained on remand. However, in X v UK (EHRC 5 November 1981, A. 46) the Court stated, that this provision is no longer applicable when the accused person has been provisionally released. 

According the Court’s opinion in Schiesser (EHRC 4 December 1979, A.34) and Skoogström (EHRC 15 July 1983, A.83) the main purpose of paragraph 3, in relation to article 5 paragraph 1(c), is to afford to individuals deprived of their liberty a special guarantee, namely a procedure of judicial nature designed to ensure that no one should be arbitrarily deprived of his liberty and to ensure that any arrest or detention will be kept as short as possible. [3]

To make such a special guarantee possible, paragraph 3 of Article 5 ECHR deals with three rights:

The right to be brought promptly before a judicial authority. 

In De Jong, Baljet and Van den Brink (EHRC 22 May 1984, A.77) the Court decided that the referral to a judicial authority seven, eleven and six days respectively after the arrest wasn’t in conformity with the requirement of promptness of paragraph 3 of article 5 ECHR, but the Court refrained from developing a minimum standard. In this case the Court only stated that the issue of promptness must be assessed in each case according to its special features (§51).[4] In Brogan and others (EHRC 29 November 1988, A. 145-b) the Court had to deal with the question of promptness in case of arrest and detention, by virtue of powers granted under special legislation, of persons suspected of involvement in terrorism in Northern Ireland. Very important was the fact that none of the applicants was in fact brought before a judge or judicial officer during his time in custody ranging from 4 days and 6 hours to 6 days and a half hours. In this case the Court laid out in § 62 the opinion that the scope for flexibility in interpreting and applying the notion of promptness is very limited. In the Court’s view even the shortest of the four periods of detention falls outside the strict constraints as to time permitted by the first part of paragraph 3.  ‘To attach such importance to the special features of this case as to justify so lengthy a period of detention without appearance before a judge or other judicial officer would be an unacceptably wide interpretation of the plain meaning of the word promptly.’ The Court stated further that an interpretation to this effect would import into paragraph 3 a serious weakening of a procedural guarantee to the detriment of the individual and would entail consequences impairing the very essence of the right protected by this provision. Hence the Court concluded that none of the applicants was either brought promptly before a judicial authority or released promptly following his arrest. In the opinion of the Court the fact that the arrest and detention of the applicants were inspired by the legitimate aim of protecting the community as a whole from terrorism is not on its own sufficient to ensure compliance with the specific requirements of paragraph 3. Finally the Court concluded that there has been a breach of article 5 paragraph 3 in respect of all four applicants. [5] In Koster (EHRC 28 November 1991, A. 221) the Court laid out in §24 the opinion that whereas promptness is to be assesses in each case according to its special features, the significance to be attached to those features can never be taken to the point of impairing the very essence of the right guaranteed by article 5 paragraph 3, that is to the point of effectively negativing the State’s obligation to ensure a prompt release or a prompt appearance before a judicial authority. [

The right to be brought before a judge or other officer authorised by law to exercise judicial power.

In Schiesser (EHRC 4 December 1979, A.34) the Court laid down in §31 the following criteria for the determination of whether a person can be regarded as such an officer: 1) The officer is obliged to himself hear the individual brought before him; 2) The officer is obliged to review ‘the circumstance militating for or against detention, and to decide by reference to legal criteria, whether there are reasons to justify detention and if this is not the case to order the release of the person.’ 3) The independence of the executive and of the parties. [7]In Bricat (EHRC 26 November 1992, A. 249-A) the Court laid down in §19 a fourth condition, namely the impartiality of this authority. [8]

The right to be tried within a reasonable time or otherwise to be released pending trial, if necessary subject to certain guarantees for his appearance at the trial

A period has to be taken in to consideration for the determination on whether the trial has taken place within a reasonable time. In Wemhoff (27 June 1968, A. 7) the Court has taken the position that this is the period between the moment of the arrest and that of the judgment at first instance. The Court laid out the opinion that if that judgment implies acquittal or discharge from further prosecution, at all events it will have to be followed by release, while in the case of conviction henceforth it is a matter of detention of a person after conviction in the sense of article 5 paragraph 1(a), to which the provisions on detention on remand no longer apply.[9] Indeed it is possible to judge conform article 5 paragraph 4 the lawfulness of a detention in the sense of article 5 paragraph 1(a).[10]

The scope of Article 5 paragraph 4 ECHR.

Paragraph 4 grants to everyone who is deprived of his liberty by arrest or detention the right to take proceedings by which the lawfulness of such deprivation of liberty will be reviewed speedily by a court and his release ordered if the latter decides that the detention is unlawful. In fact this is the remedy of Habeas Corpus, originating from English law.  According §40 of Brogan and others (EHRC 29 November 1988, A. 145-b), Habeas Corpus is a procedure whereby a detained person may make an urgent application for release from custody on the basis that his detention is unlawful. The court hearing the application doesn’t sit as a court of appeal to consider the merits of the detention, but is confined to a review of the lawfulness of the detention. The scope of this review isn’t uniform and depends on the context of the particular case and the terms of the relevant statute under which the power of detention is exercised. The review will encompass compliance with the technical requirements of such a statute and may extend to an inquiry into the reasonableness of the suspicion grounding arrest. A detention that is technically legal may also be reviewed on the basis of an alleged misuse of power in that the authorities may have acted in bad faith, capriciously or for an unlawful purpose. For the guarantee of this remedy four points are obligate:

  1. The Applicability of the judicial review.

The provision of paragraph 4 ceases to be applicable once a detainee has been released from detention.  If he is not detained any more, paragraph 4 can only be still invoked in relation to the complaint that the decision concerning release was not taken ‘speedily’.  In Landloperij – Cases (EHRC 18 June 1971, A.12) the Court held that the provision of paragraph 4 doesn’t apply to those cases of detention on which one already based on a judicial decision, provided that such a decision is the outcome on proceedings, which provide adequate guarantees. In Van Droogenbroek (EHRC 24 June 1982, A. 50) the Court held, that the resulting deprivation of liberty occurred ‘after conviction’ in accordance with article 5 paragraph 1(a), but it considered paragraph 4 to be applicable, which required in the instant case: ‘an appropriate procedure allowing a court to determine speedily whether the Minister of Justice was entitled to hold that detention was still consistent with the object and purpose of the 1964 Act.’ In Weeks (EHRC 2 March 1987, A. 114) the same line of reasoning was followed.[11] In Brogan and others (EHRC 29 November 1988, A. 145-b) the remedy of habeas corpus was available, tough the applicants chose not to avail themselves of it. Hence, the Court decided that there wasn’t a breach on the habeas corpus provision in paragraph 4. In Toth (EHRC 12 December 1991, A. 224) the Court held that paragraph 4 didn’t cover proceedings instituted by an investigating judge for the extension of the pre-trial period.[12]

  1. The Lawfulness of the detention has to be the subject of the judicial review.

The subject of the judicial review is the lawfulness of the detention. In X v. UK (EHRC 5 November 1981, A.46) and Brogan and others (EHRC 29 November 1988, A. 145-b) the Court respectively laid out in §57 and §65 that lawfulness has to be explained on the same wise as it’s explained in paragraph 1 of article 5 ECHR. This means that the explanation has to be conform the domestic law and the principles of the convention. [13] 

  1. The judicial review has to occur by a Court.

The judicial review has to occur by a Court. According the Court’s opinion in Neumeister v. Austria (EHRC 27 June 1968, A. 8), Landloperij – Cases (EHRC 18 June 1971, A.12), Weeks (EHRC 2 March 1987, A. 114), X v. UK (EHRC 5 November 1981, A.46) and Bezicheri (EHRC 25 October 1990, A. 146) the term court implies only that the authority called upon to decide an issue for the purpose of paragraph 4 must possess a judicial character, that is to say be independent both of the executive and of the parties to the case. [14]In no way does it relate to the procedure to be followed. [15] In Weeks (EHRC 2 March 1987, A. 114) the Court attached to this the requirement of impartiality. [16]

  1. The Speedily of the judicial review.

According the Court’s opinion in Sanchez – Reisse (EHRC 19 September 1986), the notion of speedily refers to the period within which the detained person must be able to take proceedings and to the period within which his action must be dealt with (§54).[17] In this case the Court also laid out the opinion that time cannot be defined in the abstract. It has to be determined in the light of the circumstances of the case (§55).

Conclusion

There’re quite a lot of differences between the paragraphs 3 and 4 of article 5 ECHR.  At first, paragraph 3 guarantees certain rights to persons arrested or detained in accordance with the provisions of Paragraph 1(c): those detain on remand; on the other hand paragraph 4 covers all forms of arrest and detention.[18] Secondly, the notion of speedily (paragraph 4) indicates a lesser urgency than that of promptly (paragraph 3). [19] Thirdly, paragraph 3 comprises the right to be brought promptly before a judicial authority. This judicial authority deals with the question whether  it should release or try further the suspect.  On the other hand paragraph 4 requires a court. The term court implies only that the authority called upon to decide an issue for the purpose of paragraph 4 must possess a judicial character, that is to say be independent both of the executive and of the parties to the case. [20]In no way does it relate to the procedure to be followed. [21] Fourthly, in the case of conviction henceforth it is a matter of detention of a person after conviction in the sense of article 5 paragraph 1(a), to which the provisions on detention on remand (paragraph 3) no longer apply.[22] Indeed it is possible to judge conform article 5 paragraph 4 the lawfulness of a detention in the sense of article 5 paragraph 1(a).[23]  Fifthly, in the situation that a decision about the release wasn’t speedily taken, paragraph 4 is still applicable. Paragraph 3 on the other hand not.

There’re also relations between both paragraphs. At first, the provisions of both paragraphs are no longer applicable when the accused person has been provisionally released, except the situation that a decision about the release was not taken speedily enough.  In that situation paragraph 4 is applicable. Secondly, according paragraph 4 decisions have to be taken speedily. This implies a period of time, which can only be determined in the light on the circumstances of the case. Even so the stipulation of the reasonable time in paragraph 3 will be determined in the light on the circumstances of the case. [24]


[1] Wiewel,  P., Voortgezette modernisering, Crimineel Jaarboek 1990, Verslag over 1988 en 1989, Uitgeverij Papieren Tijger – 1990, p.29.

[2] Schokkenbroek, J.G.G., J. van der Velde, Brogan en anderen,  NJCM 14 (1989) 1, p. 88.

[3] Dijk, Prof. Mr. P. van, Prof. Mr. G.J.H. van Hoof, Theory and practice of the ECHR, p. 369.

[4] Dijk, Prof. Mr. P. van, Prof. Mr. G.J.H. van Hoof, Theory and practice of the ECHR, p. 370.

[5] Cleiren en Nijboer, Tekst en Commentaar Strafvordering, aantekening van Den Hartog bij artikel 6 EVRM, p. 1648; Schokkenbroek, J.G.G., J. van der Velde, Brogan en anderen,  NJCM 14 (1989) 1, p. 88; Nowbray, Cases and materials on the European convention on human rights, p. 194.

[6] Myer, E., De Miliatire rechter, zijn oefeningen en zijn vrije weekend, NJCM 17 (1982) 5, p. 558-559; Cleiren en Nijboer, Tekst en Commentaar Strafvordering, aantekening van Den Hartog bij artikel 6 EVRM, p. 1648

[7] Dijk, Prof. Mr. P. van, Prof. Mr. G.J.H. van Hoof, Theory and practice of the ECHR, p.  372; Cleiren en Nijboer, Tekst en Commentaar Strafvordering, aantekening van Den Hartog bij artikel 6 EVRM, p. 1648.

[8] Cleiren en Nijboer, Tekst en Commentaar Strafvordering, aantekening van Den Hartog bij artikel 6 EVRM, p. 1648; T &C EVRM, aanvuling 5-4’99, Artikel 5 3-5, p. 45.

[9] Dijk, Prof. Mr. P. van, Prof. Mr. G.J.H. van Hoof, Theory and practice of the ECHR, p.  375.

[10] Cleiren en Nijboer, Tekst en Commentaar Strafvordering, aantekening van Den Hartog bij artikel 6 EVRM, p. 1649.

[11] Dijk, Prof. Mr. P. van, Prof. Mr. G.J.H. van Hoof, Theory and practice of the ECHR, p.  382-383.

[12] Dijk, Prof. Mr. P. van, Prof. Mr. G.J.H. van Hoof, Theory and practice of the ECHR, p.  384.

[13] Cleiren en Nijboer, Tekst en Commentaar Strafvordering, aantekening van Den Hartog bij artikel 6 EVRM, p. 1644.

[14] Dijk, Prof. Mr. P. van, Prof. Mr. G.J.H. van Hoof, Theory and practice of the ECHR, p.  386; Cleiren en Nijboer, Tekst en Commentaar Strafvordering, aantekening van Den Hartog bij artikel 6 EVRM, p. 1651; T &C EVRM, aanvuling 5-4’99, Artikel 5 3-5, p. 50; Key extracts European Court of Human Rights, September 1998, p. 59.

[15] Key extracts European Court of Human Rights, September 1998, p. 59.

[16] Cleiren en Nijboer, Tekst en Commentaar Strafvordering, aantekening van Den Hartog bij artikel 6 EVRM, p. 1651.

[17] Key extracts European Court of Human Rights, September 1998, p. 59.

[18] F.G. Jacobs en R.C.A. White, The European Convention on Human Rights, Oxford, 1996, p. 88 and 112.

[19] Dijk, Prof. Mr. P. van, Prof. Mr. G.J.H. van Hoof, Theory and practice of the ECHR, p.  388.

[20] Dijk, Prof. Mr. P. van, Prof. Mr. G.J.H. van Hoof, Theory and practice of the ECHR, p.  386; Cleiren en Nijboer, Tekst en Commentaar Strafvordering, aantekening van Den Hartog bij artikel 6 EVRM, p. 1651; T &C EVRM, aanvuling 5-4’99, Artikel 5 3-5, p. 50; Key extracts European Court of Human Rights, September 1998, p. 59.

[21] Key extracts European Court of Human Rights, September 1998, p. 59.

[22] Dijk, Prof. Mr. P. van, Prof. Mr. G.J.H. van Hoof, Theory and practice of the ECHR, p.  375.

[23] Cleiren en Nijboer, Tekst en Commentaar Strafvordering, aantekening van Den Hartog bij artikel 6 EVRM, p. 1649.

[24] T &C EVRM, aanvuling 5-4’99, Artikel 5 3-5, p. 63.

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