Arrest and PTD

Question 1

Limbs of Art. 5 ECHR

Answer 1

• 1st limb: from arrest to first appearance
• 2nd limb: from first appearance to trial/final verdict

Question 2

Competing individual rights?

Answer 2

• Art. 5: right to physical liberty
• Presumption of innocence (suspect treated as if convicted of a crime)
• Art. 8: private life (socio-economic consequences of the individual, family)
• Art. 6: fair trial (restrictions on ability to prepare defence)

Question 3

Reasonable suspicion in national jurisdictions

Answer 3

• NL: Art. 27 - reasonable suspicion
• EN: reasonable, objective grounds that constable actually suspects (subjective test) and that a reasonable person would also suspect without reference to hindsight (objectvive test)
• G: higher level of suspicion for arrest (highly probable / urgent suspicion)

Question 4

Rights triggered by arrest

Answer 4

Right to silence and lawyer

Question 5

First appearance in national law

Answer 5

• NL: 3d18h from arrest (9h of arrest and 3d police custody)
• G: 47h59min (must be brought before investigating judge immediately, no later than a day after arrest; max if arrested at midnight)
• EN: 96h (max24h of custody without a charge + extension of 12h for indictable offences + extension by Magistrates’ Court up to 96h)

Question 6

Grounds for continued detention in national laws

Answer 6

• NL and G: at least one of the specific grounds
• EN: presumption in favor of bail (granted by default unless one or more of statutory grounds to refuse bail apply)

Question 7

Proportionality in national laws

Answer 7

• NL: continued detention only for specific offences + anticipation principle
• G: detention proportionate to the significance of case or penalty likely to be imposed
• EN: exception to bail if reasonable probability that suspect will get a custodial sentence if convicted (not in domestic violence / risk of physical or mental injury)

Question 8

Consideration of alternatives in national laws

Answer 8

• NL and G: same conditions as PTD
• EN: bail granted by default unless grounds for refusal

Question 9

Right within a reasonable time in national laws

Answer 9

• ECHR: no maximum but reasonable and justified
• NL: max104d until pro forma trial (14d remand in custody + 90d remand detention)
• G: max6m + extension of 6m by Higher Regional Court
• EN: depends on offence (56d for summary only; 70d for either-way; 182 for indictable-only)

Question 10

Review of pre-trial detention in national laws

Answer 10

• NL: first judicial review 14d after continued detention orderd in first appearance / Chamber of Court decides detention up to 90d (remand detention) / automatic judicial reviews in pro forma trials
• G: automatic judicial review (by Higher Regional Court 6m after arrest) + upon request (1. file a complaint only once / 2. request judicial review repeatedly and at any stage)
• EN: no formal right to request, but multiple opportunities to apply for release on bail (at first appearance in MC, at second hearing in MC 8d after, at each hearing the court should consider if remains in custody, further bail application if change of circumstances, apply for bail to Crown Court, judicial review every 8d (MC))