Week 3 Flashcards
(23 cards)
difference between arrest and pre-trial detention
arrest: short term detention
pre-trial detention: long term
Types of detention in Netherlands
- Police arrest (with/without warrant)
- Custody (remains at station for questioning)
- Pre-trial detention (brought before judge, declared by her)
Types of detention in Germany
- Temporary arrest wo warrant: effected by any member of the public, used immediately for flagrancy
- Arrest w warrant: can be used to bring any suspect to justice to face trial (must be issued on same conditions as a potential pre-trial detention)
- Judge may immediately order pre-trial detention
Types of detention in England
- Police arrest does not require judicial authorisation (but suspect cannot stay longer than 24h without charge)
- If not charged: has to be liberated
- if charged: further detention is permitted but he must be immediately brought to a judge
–> judge then decides to grant bail or continue detention
what is the right to first appearance
right to see a judge after initial capture by the police (Art 5(3) ECHR)
when can someone be arrested in England
police has power to effect arrests without judicial authorisation
citizen may also arrest only when it’s impractical for police to act
when can someone be arrested in Netherlands
may be done with or without warrant depending on the flagrancy of the offence
= offence must be ‘fresh’ (close temporal and spatial connection btw arrest & the completion of offence)
–> efforts of capturing the suspect must be uninterrupted
when can someone be arrested in Germany
may be done with or without warrant depending on the flagrancy of the offence
= suspect must be caught in the immediate vicinity of the offence (although police doesn’t have to maintain visual/auditory connection with victim
what is reasonable suspicion in Netherlands
“a suspect is someone against whom, on the basis of facts and circumstance, reasonable suspicion of guilt of a criminal offence arises”
= objective facts + circumstances suggesting the individual has committed an offence
what is reasonable suspicion in England
“must be some reasonable, objective grounds for the suspicion, based on known facts & information”
= objective: reasonable person in possession of the same facts would also suspect
Subjective: police officer carrying out the arrest has suspicion
what is reasonable suspicion in Germany
requires high level of suspicion for arrest, namely urgent suspicion
= based on the results of investigation, it is reasonable + highly probable that the individual is the perpretrator/accomplice
when is ‘reasonable’ determined?
ex ante: at the time of arrest, based on the information at the time. later inaccuracies in evidence do not make the arrest unlawful retroactively
what is the anticipation principle in NL
authority must ensure detention doesn’t exceed the expected imprisonment if convicted
First appearance/habeas corpus
- soon after arrest, suspect must be brought before judge
- In inquisitorial systems, closed hearing
- in UK, public hearing, where the suspect is charged
Time limit of police Custody
ECHR (Brogan + McKay): less than 4 days & 6hours
Germany: shall be presented before judge immediately (max 1 day after arrest)
Netherlands: 1st appearance max 3 days 18h after arrest
England: max 4 days (24h max without a charge) (extension of 96h max)
Rights during police custody
remain silent / access to lawyer / legal advice / legal aid / interpretation / translation…
A ‘letter of rights’ is a printed list of rights of the suspect upon arrival at the station
Police bail
in England, the suspect can be freed if he complies with some bail requirements
what is pre-trial detention
a judicial detention order given by the judge, which can be reviewed or extended and may be ended if conditions are no longer met
Pre trial detention in NL
- “serious suspicion”
- only allowed for specific offences
- max 104 days (and up to 2 years once trial begins)
Pre trial detention in Germany
- “strong suspicion”
- no general limitation based on offence (unless it’s a petty offence)
- max 6 months (extension allowed if case is exceptionally complex, investigation is of unusual scope, or other serious reason)
Pre trial detention in England
- no heightened suspicion for pre-trial detention beyond initial reasonable suspicion
- limited to imprisonable offences
- bail is granted by default unless specific refusal grounds apply!!!
- summary offences: max 56 days
- indictable offences: 182 days
What are the ECHR grounds/approach of pre-trial detention from the Buzadji case?
Art 5(3): right to be brought promptly + right to release pending trial (synchronisation principle)
general principles
- reasonable suspicion of having committed a crime is necessary but not sufficient for prolonged pre-trial detention
- additional grounds must be relevant and sufficiently reasoned
- justifications must not be stereotypical/abstract and must engage with specific facts of the case
- authorities must consider less intrusive alternatives
Additional grounds
- risk of absconding
- obstruction of justice
- risk of reoffending
- disruption of public order
How was the risk of absconding described in Buzadji
Nationality
Residence status
How integrated the suspect is (family, community ties…)
Character (past behavior)
Compliance with prior judicial measures
Availability of alternative measures
Assets
Employment/financial situation
Possession of travel documents
Expressed intention to flee
