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GRAND CHAMBER
CASE OF McKAY v. THE UNITED KINGDOM
(Application no. 543/03)
JUDGMENT
STRASBOURG
3 October 2006
This judgment is final but may be subject
to editorial revision.
In the case of McKay v. the United Kingdom,
The European Court of Human Rights, sitting as a Grand Chamber
composed of:
Mr C. Rozakis, President,
Mr J.-P. Costa,
Sir Nicolas Bratza,
Mr P.
Lorenzen,
Mrs F.
Tulkens,
Mr J. Casadevall,
Mrs N. Vajić,
Mr M. Pellonpää,
Mr R. Maruste,
Mr K. Traja,
Mrs S. Botoucharova,
Mr J. Borrego Borrego,
Mrs L. Mijović,
Mr E. Myjer,
Mr S.E. Jebens,
Mr J. Šikuta,
Mrs I. Ziemele, judges,
and
Mr V. Berger, Acting Registrar,
Having deliberated in private on 14 June and 13 September 2006,
Delivers the following judgment, which was adopted on the
last mentioned date:
PROCEDURE
- The case originated in an application (no. 543/03)
against the United Kingdom of Great Britain and Northern Ireland
lodged with the Court under Article 34 of the Convention for the
Protection of Human Rights and Fundamental Freedoms (“the
Convention”) by a British national, Mr Mark McKay (“the
applicant”), on 9 December 2002.
- The applicant was represented by Mr P. McDermott,
lawyer practising in Belfast. The United Kingdom Government (“the
Government”) were represented by their Agent, Mr J. Grainger of
the Foreign and Commonwealth Office.
- The applicant complained that after his arrest the
magistrate had no power to order his release on bail, invoking
Article 5 § 3 of the Convention.
- The application was allocated to the Fourth Section. It
was declared admissible by a Chamber of that Section, composed of the
following judges: Mr J. Casadevall, Sir Nicolas Bratza, Mr M.
Pellonpää, Mr R. Maruste,
Mr K. Traja, Mrs L. Mijović,
Mr J. Šikuta, and also of Mr M. O'Boyle, Section Registrar. On
17 January 2006 the Chamber relinquished jurisdiction in favour of
the Grand Chamber, none of the parties having objected to
relinquishment (Article 30 of the Convention and Rule 72).
5. The composition of the Grand Chamber was determined according
to the provisions of Article 27 §§ 2 and 3 of the
Convention and Rule 24 of the Rules of Court.
- The applicant and the Government each filed a memorial
on the merits.
- A hearing took place in public in the Human Rights
Building, Strasbourg, on 14 June 2006 (Rule 59 § 3).
There appeared before the Court:
(a) for the Government
Mr J. Grainger, Agent,
Mr D.
Perry,
Mr P.
Maguire, Counsel,
Mr I.
Wimpress,
Ms C.
Mersey, Advisers;
(b) for
the applicant
Mr J. Larkin, QC
Mr B.
Torrens, Counsel,
Mr P.
McDermott, Solicitor.
The Court heard addresses by Mr Perry and Mr Larkin and their answers
to questions put by the judges.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The applicant was born in 1983 and lives in Bangor,
County Down, Northern Ireland.
- On Saturday, 6 January 2001, at 10 p.m., the applicant
was arrested on suspicion of having carried out a robbery of a petrol
station in Bangor. On Sunday, 7 January 2001, he admitted being
responsible for the robbery. He was charged at 12.37 p.m.
- On Monday, 8 January 2001, at 10 a.m., the applicant
made his first appearance in the magistrates' court, where he
instructed his solicitors to make an application for release on bail.
The police officer gave evidence to the court stating that the
robbery was not connected with terrorism and that, subject to the
proper conditions, he would have no objection to bail. The sitting
resident magistrate refused the application, indicating that the
offence was a scheduled offence and that he therefore did not have
the power to order release (section 67(2) of the Terrorism Act 2000
and section 3(2) of the Northern Ireland (Emergency Provisions) Act
1996).
- On 8 January 2001, the applicant applied to the High
Court for bail. On 9 January 2001, the High Court heard and
granted his application.
- On 12 April 2001, the applicant pleaded guilty in the
Crown Court to an offence of robbery and was sentenced to two years'
detention in a young offenders' institution, followed by a year of
probation.
- Meanwhile on 9 January 2001, the applicant made an
application for judicial review, seeking a declaration of
incompatibility of the legislation (cited above) with Articles 5 and
14 of the Convention.
- On 3 May 2002, the High Court rejected the applicant's
application. Mr Justice Kerr held:
“There is nothing in the text of Article 5 nor in
the jurisprudence of ECHR which requires that the court before which
an arrested person must be brought should be the same court that has
power to grant him bail. He must be brought promptly before a court
or an officer authorised to exercise judicial power. He must also
have the opportunity to apply for bail. It is not necessarily the
case, however, that these two separate and distinct rights require to
be vindicated at the same time or in the same forum. Provided that
the arrested person is brought promptly before a court that has power
to review the lawfulness of his detention and that he has the
opportunity to apply without undue delay for release pending his
trial, the requirements of Article 5 § 3 are met.
The applicant was brought before the magistrates' court
promptly within 36 hours of his arrest. His appearance was automatic
and did not depend on any initiative from the applicant. Moreover,
the resident magistrate was empowered to review the lawfulness of the
applicant's detention ... Here the magistrate can review the legal
basis on which the arrested person is detained. He must be satisfied
that the arrest and continued detention are lawful. If he is not so
satisfied, he must order the release of the person detained. The
applicant in the present case was therefore entitled to a prompt
automatic examination by a competent judicial officer of the legal
basis of his arrest and continued detention. He was moreover entitled
to – and did obtain – a prompt examination by a judge of
his right to release on bail.”
- The judge also rejected the arguments under Article 14
that accused members of the security forces were treated more
favourably concerning bail than other accused persons and refused
leave to appeal.
- On 16 May 2002, the Divisional Court refused leave to
appeal to the House of Lords though certified as points of law of
general public importance whether the legislation was compatible with
the Convention and whether Article 5 required that the court before
whom an accused person was brought pursuant to Article 5 § 3
should have the power to admit him to bail.
- On 4 December 2002, leave to appeal was refused by the
House of Lords.
II. RELEVANT DOMESTIC LAW AND PRACTICE
A. Power to release on bail concerning scheduled
offences
- Section 67(2) of the Terrorism Act 2000 (which came
into force on 19 February 2001) is substantially the same as
section 3(2) of the Northern Ireland (Emergency Provisions) Act 1996
(in force at the time of the applicant's appearance), and provides as
relevant:
“Subject to subsections (6) and (7) a person to
whom this section applies shall not be admitted to bail except -
(a) by a judge of the High Court or the Court
of Appeal, or
(b) by the judge of the court of trial on
adjourning the trial of a person charged with a scheduled offence.”
- The sole jurisdiction of the High Court, Court of
Appeal and trial judge to grant bail in the case of scheduled
offences dates from 1973 and is based on the original provisions of
the Northern Ireland (Emergency Provisions) Act 1973. The rationale
derives from the Diplock Report ("Report of the Commission to
Consider Legal Procedures to Deal with Terrorist Activities in
Northern Ireland" (1972 Cmnd. 5185)) which concluded that
resident magistrates who heard bail applications were particularly
susceptible to threats and intimidation (at the relevant time one had
been shot and the homes of two others bombed). The 2000 Act provides
for the position to be annually reviewed by Parliament. Annual
reports on the working of the legislation are laid before Parliament
for this purpose.
- In the 2002 report of the Independent Reviewer, Lord
Carlile of Berriew QC recommended the return of bail applications to
the magistrates' court, noting that the requirement for all
applications in scheduled offences to go before the High Court led in
practice to some defendants spending additional days in custody and
that a significant proportion of cases were ultimately not proceeded
with, or defendants were acquitted or given non-custodial sentences.
He recommended that the power be given to a small number of specially
trained magistrates. However, in his 2004 report, he noted a
continuing danger from sophisticated terrorist crime and numerous
serious criminal offences with a strong terrorist link, and with
syndicated crime with a paramilitary connection increasing and
significant levels of intimidation remaining. In considering whether
or not to give resident magistrates the power to deal with bail
applications, he did not repeat his earlier recommendation, observing
that the security assessment was that there would be a significant
threat of intimidation and violence towards them and those close to
them. He did however agree that bail hearings should be available at
the weekends and this change was brought into force immediately.
- Robbery, insofar as it involves any explosive,
firearm, imitation firearm or weapon of offence, is specified in
paragraph 10(b) of schedule 9 to the Terrorism Act 2000 as a
scheduled offence.
B. Procedure for High Court bail applications
- This was set out in the Rules of the Supreme Court
(Northern Ireland) Order 79, supplemented by a Practice Direction
1976 No. 1. This provided for the High Court to sit every day except
Saturdays and Sundays for the purpose, inter alia, of hearing
bail applications. The Practice Direction instituted a deadline for
papers to be lodged by 11 a.m. on the day before bail applications
were heard. From October 2000, the deadline was moved to noon and the
office adopted the practice of accepting faxed applications. A bail
judge would also consider admitting a late application in a genuinely
exceptional case.
- As from 31 January 2004, the High Court also sat on
Saturdays to hear bail applications.
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 5 § 3 OF THE
CONVENTION
- The applicant complained that the magistrate before
whom he appeared after his arrest had no power to release him on
bail, invoking Article 5 § 3 of the Convention which provides:
“Everyone arrested or detained in accordance with
the provisions of paragraph 1 (c) of this Article 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.”
Insofar as relevant, Article 5 § 1 of the Convention provides:
“1. Everyone has the right to liberty and security
of person. No one shall be deprived of his liberty save in the
following cases and in accordance with a procedure prescribed by law:
...
(c) 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...”
A. The parties' submissions
1. The applicant
- The applicant submitted that there was no
justification in practice or under Strasbourg case-law for separating
the power to review the lawfulness of detention from the power to
grant bail. The latter was a much more practical facet of judicial
supervision, there being a great many cases where on first appearance
before a magistrate detention was formally lawful but where there
were no reasons against bail. The regime of scheduled offences
covered many cases, such as his, where there was not even a remote
suspicion of connection with terrorism and accordingly the Government
justification of the regime had no basis in fact or policy. Reliance
on the possible intimidation of magistrates in terrorist cases could
not logically justify the removal of their bail jurisdiction, where
they remained able to determine the lawfulness of detention and to
discharge an accused from custody.
- The applicant argued that the judge before whom an
accused appeared had to exercise a plenitude of judicial power,
jurisdiction to pronounce not merely on the bare legality of
detention but also on whether the detention was objectively justified
on the merits. The Court's case-law indicated that the review had to
be sufficiently wide to encompass the various circumstances
militating for and against detention. Even if the enquiry into formal
lawfulness logically preceded an enquiry into the propriety of bail,
it was perverse to interpret the case-law as allowing the removal of
the jurisdiction to consider bail. The unconditional obligation that
a detained person appear before such an officer fell upon the State
and such appearance had to occur promptly and automatically.
- The applicant submitted therefore that in his case it
was a breach of Article 5 § 3 that the magistrate had no power
to consider bail and that he was required, of his own motion, to make
an application for bail. Such a requirement could impact particularly
upon the most vulnerable of detained persons, such as the mentally
weak or ill, those subjected to ill-treatment in custody or those
unable to speak the language of the court.
2. The Government
- The Government submitted that the purpose of Article 5
§ 3 was to provide a safeguard against arbitrary detention by
providing an independent scrutiny of the reasons for an accused's
detention and to ensure release if continued detention was not
justified. The judicial officer concerned had to be independent with
the power to order release. However, nothing in the text of Article 5
or in the Court's jurisprudence required that the court before which
an arrested person was to be brought had to be the same court that
had the power to grant bail. The detained person had to be brought
promptly before a court or officer authorised to exercise judicial
power; he also had to have the opportunity to apply for bail. Only
the first required to be automatic; the second, the question of bail,
only came into play when the arrest and detention were lawful and did
not necessarily form part of the prompt automatic review of the
merits.
- The Government submitted that Article 5 § 3 was
therefore complied with in the applicant's case. The magistrate was
able to review the legal basis on which the applicant was detained,
and had to be satisfied that the arrest and detention were lawful and
therefore not arbitrary; if he had not been so satisfied, he would
have been obliged to order the applicant's release. Thus the
applicant obtained a prompt examination by a judge of the legal basis
of his arrest and continued detention. He was also entitled to and
did obtain a prompt examination by a judge of the High Court of his
right to release on bail. Referring to the margin of appreciation,
they concluded that the legislation represented a fair balance
between individual rights and the requirements of defending society
against a continuing danger from terrorist crime and a high level of
intimidation and was entirely consistent with the aims and objectives
of the Convention in promoting the rule of law.
B. The Court's assessment
1. General principles
- Article 5 of the Convention is, together with Articles
2, 3 and 4, in the first rank of the fundamental rights that protect
the physical security of an individual (see, for example, its link
with Articles 2 and 3 in disappearance cases e.g. Kurt v.
Turkey, judgment of 25 May 1998, Reports of Judgments and
Decisions 1998-III, § 123) and as such its importance is
paramount. Its key purpose is to prevent arbitrary or unjustified
deprivations of liberty (see e.g Lukanov v. Bulgaria, judgment
of 20 March 1997, Reports 1997 II, § 41;
Assanidze v. Georgia [GC], no. 71503/01, § 171, ECHR
2004 II, § 46; Ilaşcu and Others v. Moldova and
Russia [GC], no. 48787/99, § 461, ECHR 2004 VII).
Three strands in particular may be identified as running through the
Court's case-law: the exhaustive nature of the exceptions, which must
be interpreted strictly (e.g. Ciulla v. Italy, judgment
of 22 February 1989, Series A no. 148, § 41) and which do not
allow for the broad range of justifications under other provisions
(Articles 8-11 of the Convention in particular); the repeated
emphasis on the lawfulness of the detention, procedurally and
substantively, requiring scrupulous adherence to the rule of law (see
Winterwerp v. the Netherlands, judgment of 24 October 1979,
Series A no. 33, § 39); and the importance of the promptness or
speediness of the requisite judicial controls (under Article 5
§§ 3 and 4).
- Article 5 § 3 as part of this framework of
guarantees is structurally concerned with two separate matters: the
early stages following an arrest when an individual is taken into the
power of the authorities and the period pending eventual trial before
a criminal court during which the suspect may be detained or released
with or without conditions. These two limbs confer distinct rights
and are not on their face logically or temporally linked (see T.W.
v. Malta, no. 25644/94, judgment of 29 April 1999, § 49).
a. The arrest period
- Taking the initial stage under the first limb, the
Court's case-law establishes that there must be protection of an
individual arrested or detained on suspicion of having committed a
criminal offence through judicial control. Such control serves to
provide effective safeguards against the risk of ill-treatment, which
is at its greatest in this early stage of detention, and against the
abuse of powers bestowed on law enforcement officers or other
authorities for what should be narrowly restricted purposes and
exercisable strictly in accordance with prescribed procedures. The
judicial control must satisfy the following requirements.
i. Promptness
- The judicial control on the first appearance of an
arrested individual must above all be prompt, to allow detection of
any ill-treatment and to keep to a minimum any unjustified
interference with individual liberty. The strict time constraint
imposed by this requirement leaves little flexibility in
interpretation, otherwise there would be a serious weakening of a
procedural guarantee to the detriment of the individual and the risk
of impairing the very essence of the right protected by this
provision (Brogan and Others v. the United Kingdom, judgment
of 29 November 1988, Series A no. 145 B, § 62,
where periods of more than four days in detention without appearance
before a judge were in violation of Article 5 § 3, even in the
special context of terrorist investigations).
ii. Automatic nature of the review
- The review must be automatic and cannot depend on the
application of the detained person; in this respect it must be
distinguished from Article 5 § 4 which gives a detained
person the right to apply for release. The automatic nature of the
review is necessary to fulfil the purpose of the paragraph, as a
person subjected to ill-treatment might be incapable of lodging an
application asking for a judge to review their detention; the same
might also be true of other vulnerable categories of arrested person,
such as the mentally frail or those ignorant of the language of the
judicial officer (e.g. Aquilina v. Malta [GC], no.
25642/94, § 49, ECHR 1999 III).
iii. The characteristics and powers of the
judicial officer
- The judicial officer must offer the requisite
guarantees of independence from the executive and the parties and he
or she must have the power to order release, after hearing the
individual and reviewing the lawfulness of, and justification for,
the arrest and detention (e.g. Assenov v. Bulgaria,
judgment of 28 October 1998, Reports 1998-VIII, § 146).
As regards the scope of that review, the formulation which has been
at the basis of the Court's long-established case-law dates back to
the early case of Schiesser v. Switzerland (judgment of 4
December 1979, Series A no. 34, § 31):
“.... [U]nder Article 5 § 3, there is both a
procedural and a substantive requirement. The procedural requirement
places the 'officer' under the obligation of hearing himself the
individual brought before him (see, mutatis mutandis the
above-mentioned Winterwerp judgment, p. 24, § 60); the
substantive requirement imposes on him the obligations of reviewing
the circumstances militating for or against detention, of deciding,
by reference to legal criteria, whether there are reasons to justify
detention and of ordering release if there are no such reasons
(above-mentioned Ireland v. the United Kingdom judgment, p. 76, §
199).”
More recently, this has been expressed by saying “(i)n other
words, Article 5 § 3 requires the judicial officer to consider
the merits of the detention” (T.W. v. Malta, cited
above, § 41; Aquilina, cited above, § 47).
- However, an examination of these cases gives no ground
for concluding that the review must, as a matter of automatic
obligation, cover the release of the applicant pending trial, with or
without conditions, for reasons aside from the lawfulness of the
detention or the existence of reasonable suspicion that the applicant
has committed a criminal offence. The Schiesser case cited
above made no reference to bail and although it attributes the
general statement of principle above, which on its face appears
capable of encompassing bail-type considerations, to Ireland v.
the United Kingdom (judgment of 18 January 1978, Series A no. 25,
§ 199), no basis for such statement appears in that
judgment. Nor indeed was release on bail in issue in Schiesser,
which was principally concerned with the question whether the
District Attorney offered the guarantees of independence inherent in
the notion of an officer authorised by law to exercise judicial power
(§§ 33-35). There is nothing therefore to suggest that,
when referring to “the circumstances militating for or against
detention”, the Court was doing more than indicating that the
judicial officer had to have the power to review the lawfulness of
the arrest and detention under domestic law and its compliance with
the requirements of Article 5 § 1(c).
- As regards the Maltese cases (see T.W. and
Aquilina, cited above), the phrase “merits of the
detention” must be read in their context. In both, the
applicants appeared promptly before the judicial officer but, as
found by the Court, neither the magistrate before whom the applicants
first appeared nor any other judicial officer had the power to
conduct a review, of his or her motion, of whether there had been
compliance with the requirements of Article 5 § 1(c). According
to the Government of Malta, release might have been ordered if the
detained person faced charges which, according to Maltese law, did
not even allow for detention. However the Court held that, even if
this were the case, the scope of such powers of review was clearly
insufficient to satisfy the requirements of paragraph 3 of Article 5,
since, as the Government conceded, the judicial officer had no power
to order release if there was no reasonable suspicion that the
detained person had committed an offence. Further, the fact relied on
by the Government that the applicants could request bail equally did
not satisfy paragraph 3 since it depended on a previous application
being made by the detained person, whereas the judicial control of
the lawfulness and proper basis of the detention under the first limb
of paragraph 3 had to be automatic.
- This reading of the Grand Chamber's judgments is
supported by the subsequent case of Sabeur Ben Ali v. Malta
(no. 35892/97, judgment of 29 June 2000) where the Court,
examining the compatibility with Article 5 § 3 of a similar
arrest and detention of an applicant, quoted the relevant passage
from Aquilina (§ 47, cited above) and found that this
requirement had not been complied with since “the applicant
could not obtain an automatic ruling by a domestic judicial authority
on whether there existed a reasonable suspicion against him”.
- Nor, on examination, does the case of S.B.C. v. the
United Kingdom (no. 39360/98, 19 June 2001) provide
persuasive authority for finding that the first obligatory appearance
before a judge must encompass the power to grant release on bail.
This case concerned the Criminal Justice and Public Order Act 1994,
which provided that persons charged with a serious offence such as
murder, manslaughter or rape and who had previously been convicted of
a similar offence were excluded from the grant of bail under any
circumstances. This removal of judicial control throughout the period
of pre-trial detention was found to violate Article 5 § 3 of the
Convention. This denial of any access to bail clearly offended
against the independent right which is conferred in the second limb
of paragraph 3. Insofar as it may be suggested that the power to
grant bail was a power which the magistrates had to be able to
exercise on the first court appearance of the detained person after
arrest, the Grand Chamber is unable to agree with this
interpretation.
- The initial automatic review of arrest and detention
accordingly must be capable of examining lawfulness issues and
whether or not there is a reasonable suspicion that the arrested
person had committed an offence, in other words, that detention falls
within the permitted exception set out in Article 5 § 1(c). When
the detention does not, or is unlawful, the judicial officer must
then have the power to release.
b. The pre-trial or remand period
- The presumption is in favour of release. As
established in Neumeister v. Austria (judgment of 27 June
1968, Series A no. 8, p.37, § 4), the second limb of Article 5 §
3 does not give judicial authorities a choice between either bringing
an accused to trial within a reasonable time or 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.
- Continued detention therefore 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
laid down in Article 5 of the Convention (see, among other
authorities, Kudła v. Poland [GC], no. 30210/96, § 110
et seq, ECHR 2000 XI ).
- The responsibility falls in the first place to the
national judicial authorities to ensure that, in a given case, the
pre-trial detention of an accused person does not exceed a reasonable
time. To this end they must, paying due regard to the principle of
the presumption of innocence, examine all the facts arguing for or
against the existence of the above-mentioned demand of public
interest justifying a departure from the rule in Article 5 and must
set them out in their decisions on the applications for release. It
is essentially on the basis of the reasons given in these decisions
and of the established facts stated by the applicant in his appeals
that the Court is called upon to decide whether or not there has been
a violation of Article 5 § 3 (see, for example, Weinsztal v.
Poland, no. 43748/98, judgment of 30 May 2006, § 50).
- The 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 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
(see, amongst other authorities, Letellier v. France, judgment
of 26 June 1991, Series A no. 207, § 35; Yağcı
and Sargın v. Turkey, judgment of 8 June 1995, Series A no.
319 A, § 50).
- In sum, domestic courts are under an obligation to
review the continued detention of persons pending trial with a view
to ensuring release when circumstances no longer justify continued
deprivation of liberty. For at least an initial period, the existence
of reasonable suspicion may justify detention but there comes a
moment when this is no longer enough. As the question whether or not
a period of detention is reasonable cannot be assessed in the
abstract but must be assessed in each case according to its special
features, there is no fixed time-frame applicable to each case.
- The Court's case-law has not had occasion to consider
the very early stage of pre-trial detention in this context,
presumably as, in the great majority of cases, the existence of
suspicion provides a sufficient ground for detention and any
unavailability of bail has not been seriously challengeable. It is
not in doubt however that there must exist the opportunity for
judicial consideration of release pending trial as even at this stage
there will be cases where the nature of the offence or the personal
circumstances of the suspected offender are such as to render
detention unreasonable, or unsupported by relevant or sufficient
grounds. There is no express requirement of “promptness”
as in the first sentence of paragraph 3 of Article 5. However, such
consideration, whether on application by the applicant or by the
judge of his or her own motion, must take place with due expedition,
in order to keep any unjustified deprivation of liberty to an
acceptable minimum.
- In order to ensure that the right guaranteed is
practical and effective, not theoretical and illusory, it is not only
good practice, but highly desirable in order to minimise delay, that
the judicial officer who conducts the first automatic review of
lawfulness and the existence of a ground for detention, also has the
competence to consider release on bail. It is not however a
requirement of the Convention and there is no reason in principle why
the issues cannot be dealt with by two judicial officers, within the
requisite time-frame. In any event, as a matter of interpretation, it
cannot be required that the examination of bail take place with any
more speed than is demanded of the first automatic review, which the
Court has identified as being a maximum four days (see Brogan and
Others, cited above).
2. Application in the present case
- The Court recalls that the applicant was arrested on 6
January 2001, at 10 p.m. on suspicion of having carried out a robbery
of a petrol station. He was charged at 12.37 p.m. the next day. On
8 January 2001, at 10 a.m., the applicant made his first appearance
in the magistrates' court which remanded him in custody. It is not in
dispute that the magistrate had the competence to examine the
lawfulness of the arrest and detention and whether there were
reasonable grounds for suspicion and moreover that he had the power
to order release if those requirements were not complied with. That
without more provided satisfactory guarantees against abuse of power
by the authorities and ensured compliance with the first limb of
Article 5 § 3 as being prompt, automatic and taking place before
a duly empowered judicial officer.
- The question of release pending trial was a distinct
and separate matter which logically only became relevant after the
establishment of the existence of a lawful basis and a Convention
ground for detention. It was, in the applicant's case, dealt with
some 24 hours later, on 9 January 2001, by the High Court which
ordered his release. No element of possible abuse or arbitrariness
arises from the fact that it was another tribunal or judge that did
so nor from the fact that the examination was dependent on his
application. The applicant's lawyer lodged such an application
without any hindrance or difficulty; it is not apparent, nor falls to
be decided in this case, that the system in operation would prevent
the weak or vulnerable from making use of this possibility.
- While it is true that the police had no objection to
bail and that if the magistrate had had the power to release on bail,
the applicant would have been released one day earlier, the Court
nonetheless considers that the procedure in this case was conducted
with due expedition, leading to his release some three days after his
arrest.
- There has, accordingly, been no violation of Article 5
§ 3 of the Convention.
FOR THESE REASONS, THE COURT
Holds by sixteen votes to one that there has been no violation
of Article 5 § 3 of the Convention.
Done in English and in French, and delivered at a public hearing in
the Human Rights Building, Strasbourg, on 3 October 2006.
Christos Rozakis
President
Vincent Berger
Registrar
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the following opinions are annexed to
this judgment:
(a) Common separate opinion of Mr Rozakis, Mrs Tulkens,
Mrs Botoucharova, Mr Myjer and Mrs Ziemele;
(b) Separate opinion of Mr Borrego Borrego;
(c) Dissenting opinion of Mr Jebens.
C.L.R.
V.B.
JOINT SEPARATE OPINION OF JUDGES ROZAKIS, TULKENS,
BOTOUCHAROVA, MYJER AND ZIEMELE
Although we agree with the outcome of the case, we disagree with the
reasoning of the majority in reaching that conclusion.
- The Court has consistently held that the fact that an
arrested person had access to a judicial authority is not sufficient
to constitute compliance with the opening part of Article 5 § 3
(see Pantea v. Romania, no. 33343/96, § 231, ECHR
2003-VI). The judicial officer must offer the requisite guarantees of
independence from the executive and the parties and must have the
power to order release, after hearing the individual and reviewing
the lawfulness of, and justification for, the arrest and detention
(see, for example, Assenov and Others v. Bulgaria, judgment of
28 October 1998, Reports of Judgments and Decisions 1998-VIII,
p. 3298, § 146: “... the officer must have the power to
make a binding order for the detainee's release”; Nikolova
v. Bulgaria [GC], no. 31195/96, § 49, ECHR 1999-II; H.B.
v. Switzerland, no. 26899/95, § 55, 5 April 2001; Shishkov
v. Bulgaria, no. 38822/97, § 53, ECHR 2003-I; and
Rahbar-Pagard v. Bulgaria, nos. 45466/99 and 29903/02, 6
April 2006, § 49).
As regards the scope of that review, there is a long-established line
of case-law to the effect that:
“... under Article 5 § 3, there is both a
procedural and a substantive requirement. The procedural requirement
places the 'officer' under the obligation of hearing himself the
individual brought before him (see, mutatis mutandis,
[Winterwerp v. the Netherlands, judgment of 24 October 1979,
Series A no. 33], p. 24, § 60); the substantive requirement
imposes on him the obligations of reviewing the circumstances
militating for or against detention, of deciding, by reference to
legal criteria, whether there are reasons to justify detention and of
ordering release if there are no such reasons ([Ireland v. the
United Kingdom, judgment of 18 January 1978, Series A no. 25], p.
76, § 199).” (see Schiesser v. Switzerland,
judgment of 4 December 1979, Series A no. 34, pp. 13-14, §
31)
More recently, this has been expressed by saying that “in other
words, Article 5 § 3 requires the judicial officer to consider
whether detention is justified” (see Pantea, cited
above, § 231 in fine: “... que le magistrat se
penche sur le bien-fondé de la détention”, in
the French version), that is, “to consider the merits of the
detention” (see T.W. v. Malta [GC], no. 25644/94, §
41, 29 April 1999, and Aquilina v. Malta [GC], no.
25642/99, § 47, ECHR 1999-III).
These statements are clearly wide enough to encompass considerations
not only of lawfulness and the existence of reasonable suspicion as
required by Article 5 § 1 (c) but also whether or not continued
detention is justified or necessary in the circumstances of the
individual case.
- This reading is supported by S.B.C. v. the United
Kingdom (no. 39360/98, 19 June 2001), which provides
persuasive authority for finding that the first obligatory appearance
before a judicial officer must encompass bail. The case concerned the
Criminal Justice and Public Order Act 1994, which provided that
persons charged with a serious offence such as murder, manslaughter
or rape who had previously been convicted of a similar offence should
not be granted bail under any circumstances. This removal of judicial
control from the moment of arrest was found to violate Article 5 §
3 of the Convention.
Further, the Court's case-law which deals with the length of
pre-trial detention generally underlines the presumption in favour of
release. As first held in Neumeister v. Austria (judgment of
27 June 1968, Series A no. 8, p. 37, § 4), the second
sentence of Article 5 § 3 does not give judicial authorities a
choice between either bringing an accused to trial within a
reasonable time or granting him provisional release. 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 (see Jablonski v. Poland, no. 33492/96, §
83, 21 December 2000). Continued detention can therefore 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, outweigh the rule of respect for individual liberty
laid down in Article 5 of the Convention (see, among other
authorities, Kudła v. Poland [GC], no. 30210/96, §§
110 et seq., ECHR 2000-XI).
- It is true that the Court has not had previous occasion
to consider the very early stage of pre-trial detention in the
context of a bail request, presumably as, in the vast majority
of cases, the existence of suspicion and possible risk to the ongoing
investigation has provided a ground for detention and any
unavailability of bail has not been seriously challengeable.
Nonetheless, it cannot be in doubt that there must be an opportunity
for judicial consideration of release pending trial at even this
stage as there will be cases where the nature of the offence, the
state of the investigation or the personal circumstances of the
suspected offender are such as to render (further) detention
unreasonable or unsupported by relevant or sufficient grounds.
The interpretation of the Convention, and more particularly of
Article 5 § 3, to include the obligation on a judge to
release a detained person either of his or her own motion or at the
detained person's request serves better the fundamental purpose of
protecting individual liberty. Interpreting the third paragraph in a
restrictive manner which would deny the judge acting under that
paragraph the power to release a person whenever the circumstances
allowed would frustrate one of its main safeguards, namely that of
reducing to a minimum undue restrictions on liberty through the
promptness and speediness of judicial control.
- Accordingly, in order to ensure that the right
guaranteed is practical and effective, not theoretical and illusory
(see Artico v. Italy, judgment of 13 May 1980, Series A no.
37, pp. 15-16, § 33, which first laid down this guiding
principle of interpretation of the Convention), the judicial officer
who conducts the first automatic review of lawfulness and the
existence of a ground for detention must have full jurisdiction,
that is, must also have the competence to consider release, with or
without conditions.
While the question of release pending trial is therefore a distinct
and separate matter which logically only becomes relevant after the
establishment of the existence of a lawful basis and a Convention
ground for detention, it must also fall within the scope of the first
automatic appearance before a judicial officer. So, in our view, the
judge before whom the arrested individual appears must in principle
not only have the power to order an accused's release when the
detention is not lawful or when there is no – or no longer any
– reasonable suspicion, but also when he considers that further
deprivation of liberty is, for other reasons, no longer justified or
necessary.
- In our opinion the reasoning of the majority in
concluding that no automatic bail review is required on the first
appearance before a judicial officer is not in conformity with the
very purpose of Article 5 § 3 of the Convention: to protect,
through prompt judicial control, an individual who has been arrested
or detained on suspicion of having committed a criminal offence and
to have him immediately released once it is established that there is
no – or no longer any – reasonable suspicion justifying
the arrest or further deprivation of his liberty, or that there are
no – or no longer any – grounds justifying or
necessitating the further deprivation of his liberty, or that these
grounds can also be addressed by less far-reaching measures than
deprivation of liberty, such as release on bail. Or, to put it in
other words: the majority place insufficient emphasis on the
principle laid down in Article 5 § 1 read in conjunction with
Article 5 § 3: at the pre-trial stage an arrested person has the
right to prompt and full judicial control and the right to be set
free immediately unless there are (still) sufficient grounds to keep
him in custody.
- In the present case, the applicant – who is a
young offender – was arrested on 6 January 2001 at 10 p.m. on
suspicion of having carried out a robbery of a petrol station. It
should be noted that the offence he committed was without any link to
terrorist activity. He was charged at 12.37 p.m. the next day. On 8
January 2001, at 10 a.m., the applicant made his first appearance in
the magistrate's court, which remanded him in custody. It is not in
dispute that the magistrate had the competence to examine the
lawfulness of the arrest and detention and whether there were
reasonable grounds for suspicion and, moreover, that he had the power
to order release if those requirements were not complied with.
However, he did not have the power to order release on bail,
even though there was no police or other objection to such a course,
with the result that the applicant was, without any justification,
retained in custody. In that respect, therefore, the applicant's
appearance before the magistrate did not comply with the requirements
of Article 5 § 3 of the Convention.
However, it is nonetheless the case that, following his application
to the High Court, which was heard on 9 January 2001, the applicant
was released. As this occurred less than 36 hours after his arrest,
within the maximum period of four days laid down in Brogan and
Others v. the United Kingdom (judgment of 29 November 1988,
Series A no. 145-B), the applicant cannot complain that there was a
failure to provide him with the requisite judicial control of his
arrest and detention. In the circumstances, the requirements of
promptness and speediness, which are, in our view, of
paramount importance, have been satisfied. This is the reason why,
accordingly, we came to the conclusion that, in this case, there has
been no violation of Article 5 § 3 of the Convention.
SEPARATE OPINION OF JUDGE BORREGO BORREGO
(Translation)
I voted in favour of finding that there had been no violation.
However, in my opinion this application should have been declared
inadmissible as being manifestly ill-founded (Article 35 § 3 of
the Convention).
Was it open to the Grand Chamber to declare the application
inadmissible? Without a shadow of a doubt. In the Azinas v. Cyprus
judgment of 28 April 2004 (no. 56679/00, § 32, ECHR 2006-...),
for instance, the Grand Chamber held that “the Court [could]
reconsider a decision to declare an application admissible...”.
More recently, in the Blečić v. Croatia judgment of
8 March 2006 (no. 59532/00, § 65, ECHR 2006-...) the Grand
Chamber reaffirmed the possibility of “reconsider[ing] a
decision to declare an application admissible ... at any stage of the
proceedings” in accordance with Article 35 § 4 of the
Convention.
The composition of the Grand Chamber which examined the present case
was determined by Rule 24 § 2 of the Rules of Court.
Accordingly, the members of the Chamber that had relinquished
jurisdiction after declaring the application admissible were also
members of the Grand Chamber. However, where a case is referred to
the Grand Chamber under the procedure laid down in Article 43 of the
Convention, the Grand Chamber, as provided in Rule 24 § 2 (d),
does not, save for the exceptions listed in the Rule, include any of
the judges who sat in the original Chamber that delivered the
judgment or ruled on the admissibility of the application.
It would therefore seem easier to reconsider the admissibility of an
application where it is referred to the Grand Chamber under Article
43 of the Convention than where it is referred under Article 30,
since in the latter case the Grand Chamber also includes the members
of the Chamber that relinquished jurisdiction after the admissibility
stage. However, this difference in the composition of the Grand
Chamber according to the origin of its intervention (which I might
perhaps describe as illogical) does not preclude the Court from
declaring an application inadmissible “at any stage of the
proceedings”.
Was this application manifestly inadmissible? In my opinion, it was.
As is pointed out in paragraph 47 of the judgment, in Brogan and
Others v. the United Kingdom (Series A no. 145-B, judgment of 29
November 1988) the Court identified a maximum period of four days for
detention without appearance before a judge. In the present case,
less than three days elapsed between the applicant's detention (on a
Saturday evening) and his release by order of a judge. In general,
where the period in question is so short, as in this instance, the
application is declared inadmissible by a Committee.
However, in the present case the Grand Chamber decided to examine
whether the magistrate before whom the applicant first appeared had
the power to order his release.
I should like to make two points here. Firstly, the Court “is
not required to examine the impugned legislation in abstracto,
but must confine itself to the circumstances of the case before it”
(see Brogan and Others, cited above, pp. 29-30, § 53). In
my view, the judgment in the present case is precisely an example of
a review in abstracto of domestic law.
Secondly, in a judgment the only reasoning that has the force of res
judicata is the ratio decidendi. In the present case it is
clear that the ratio decidendi for the finding that there had
been no violation was the short period between the applicant's arrest
and his release on bail. Even if the rest of the judgment is
important, not least because it is a Grand Chamber judgment, anything
that does not constitute the ratio decidendi is merely an
expression of an opinion and becomes superfluous. Similarly, while I
agree about the importance of procedure, I consider that repeatedly
magnifying the procedural aspect at all times and for all purposes
creates the risk of turning procedure into a new golden calf to be
venerated. That, in my view, would be taking things too far.
I do not think that it would be easy to explain to the general
public, to the European citizen, that the Grand Chamber of the
European Court of Human Rights has devoted all its attention and time
to the examination of a complaint submitted by an applicant who was
found guilty of robbery and was released on bail three days after
being arrested. Hence my separate opinion.
DISSENTING OPINION OF JUDGE JEBENS
I respectfully disagree with the majority as to the scope of the
review provided for in the first limb of Article 5 § 3, and also
with the minority when it comes to the consequences of the fact that
the sitting magistrate did not have the power to order release on
bail. I will explain this in the following paragraphs, first by
outlining the requirements in Article 5 § 3, then by
highlighting some factual elements, and finally by discussing whether
there has been a violation.
Article 5 § 3 describes the initial review of detention in
criminal cases in its first limb, by stating that the “judge or
other officer” before whom the arrested person is to be
“brought promptly” must be “authorised by law to
exercise judicial power”. The wording implies that the judicial
officer must have the power to order release, but does not in itself
define the scope of the review. However, the Court has sought to
clarify this in its case-law. It has stated that the judicial officer
must review “the circumstances militating for or against
detention” (see Schiesser v. Switzerland, judgment of 4
December 1979, Series A no. 34, pp. 13-14, § 31); “consider
the merits of the detention” (see T.W. v. Malta, no.
25644/94, § 41, judgment of 29 April 1999, and Aquilina v.
Malta, [GC], no. 25642/94, § 47, ECHR 1999-III); and, in a
recent judgment, “consider whether detention is justified”
(Pantea v. Romania, no. 33343/96, § 231, ECHR 2003-VI).
In my opinion, this strongly indicates that the judicial officer
cannot limit the scope of the review to the lawfulness of the
detention and the question of reasonable suspicion. Moreover, such a
limited scope would not be sufficient in a great number of cases,
where the question at issue is not primarily whether there exists a
reasonable suspicion, but whether detention is justified because of
the danger of absconding or collusion, or the need to preserve
evidence, prevent crime or maintain public order. Circumstances which
are related to the person in question, such as very young or old age,
illness or frailness, must also be considered. A review which is
limited to the lawfulness of the detention and the question of
reasonable suspicion could therefore, in my opinion, easily lead to
unjustified detentions.
It follows from this that the initial review must be broad and
automatic. However, release on bail cannot be ordered by the judicial
officer unless it is an actual and realistic alternative in the
circumstances of the case. Therefore, release on bail must be subject
to a submission by the person detained or the defence lawyer.
Accordingly, it cannot normally be included in the automatic review.
In the present case, however, the applicant had instructed his
solicitors to apply for release on bail, and a request to that effect
was actually put before the magistrate. Furthermore, the police
officer who appeared in the magistrates' court had no objection to
bail, provided that proper conditions
were set. The applicant's release on bail was nevertheless refused
because the resident magistrate was not empowered to grant it, on
account of the special rules applicable for scheduled offences in
Northern Ireland.
The fact that release on bail was not considered by the judicial
officer before whom the applicant was brought implies that the
applicant was deprived of his right to a full review, which is
secured in the first limb of Article 5 § 3. It remains to be
discussed, however, whether the fact that the applicant was released
one day later, by a decision of the High Court, remedied this
deficiency.
The minority have taken the view that the applicant cannot complain
that there was a failure to provide him with the requisite judicial
control of his arrest and detention because he was released within
the maximum period of four days laid down in Brogan and Others v.
the United Kingdom (judgment of 29 November 1988, Series A no.
145-B, pp. 33-34, § 62). In my opinion, this is not relevant,
for the following reasons.
The first limb of Article 5 § 3 contains two rights for persons
who are detained on reasonable suspicion of having committed a
criminal offence. The first requires that the person be “brought
promptly before a judge or other officer”, while the second
requires that the judicial officer be “authorised by law to
exercise judicial power”. These rights are linked to each
other, notably because they refer to the same judicial officer.
Still, they are separate rights in that they refer respectively to
the requirements of promptness and automaticity and the thoroughness
of the initial judicial control. Deficiencies as to one of the rights
can therefore not be remedied by securing the other right.
Turning to the present case, it is undisputed that the applicant was
brought before the magistrates' court within the time-limit permitted
by the first limb of Article 5 § 3. He was, however, denied
release on bail by the sitting resident magistrate, notably not
because of the merits of the case, but because the resident
magistrate did not have that power. In order to be released on bail
the applicant had to appeal to the High Court. He was, in other
words, obliged to invoke the right to continuous judicial
supervision, which is secured in Article 5 § 4 and applies to
all deprivations of liberty, in order to obtain a decision as to his
release on bail.
Neither the fact that the High Court granted the applicant release on
bail, following his appeal, nor the fact that the decision was given
one day after the applicant had appeared in the magistrates' court
can therefore in my opinion remedy the deficiency of the initial
judicial review. I accordingly consider that there has been a
violation of Article 5 § 3 of the Convention.
