Ed Cape Professor of Criminal Law and Practice

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 Everyone has the right to liberty and security, and they cannot be deprived of it except in accordance with Article 5(1)  An arrested person must be promptly informed of the reason for arrest, or of any charge, in a language he understands (Art 5(2))  A person arrested or detained in criminal proceedings must be promptly produced before a judge or judicial officer, and tried within a reasonable time or released pending trial (Art 5(3))  A person deprived of their liberty must be able to take proceedings to test the lawfulness of his detention, and if unlawful must have an enforceable right to compensation (Art 5(4) and (5) 3

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 a competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent him from committing an offence or fleeing after having done so. … Article 5(1)(c) 4

 Applies to deprivation of liberty rather than restriction of movement Austin v UK 5 March 2012, Nos /09, 40713/09, 41008/09  Must be in accordance with national law Medvedyev v France 29 March 2010, No. 3394/03  Art 5(1)(c) is confined to ‘criminal’ offences Engels v Germany ( ) 1 EHRR 706  ‘Reasonable suspicion’ means the existence of facts or information which would satisfy an objective observer that the person may have committed the offence Fox, Campbell and Hartley v UK (1991) 13 EHRR 157 5

Whether a breach of national laws entails a breach of Article 5  Administrative detention of a person on the grounds of intoxication Djundiks v Latvia 15 April 2014 No 14920/05 6

Whether domestic law is in compliance with Article 5  No legal basis for detention Corbet v France 19 March 2015 Nos 7494/11, 7493/11, 7989/11 Starokadomskiy v Russia 13 March 2014 No 27455/06  Inadequate laws governing detention Yaikov v Russia 18 September 2015 No 39317/05 Grabowski v Poland 30 September 2015 No 57722/12 Chanyev v Ukraine 9 January 2015 No 46193/13 7

 Arbitrary and unlawful detention Navalnyy and Yashin v Russia 20 April 2015 No 76204/11  Lack of record of detention Fartushin v Russia 8 October 2015 No 38887/09  Lack of reasoning Kotiy v Ukraine 5 June 2015 No 28718/09 8

Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him 9

 The detained person must be told in ‘simple, non-technical language that he can understand, the essential legal and factual grounds for his arrest’ Fox, Campbell and Hartley v UK (1991) 13 EHRR 157  No recent ECtHR cases, but note EU Directive on the Right to Information Directive 2012/13/EU 10

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. 11

 Prompt production  Judge or judicial officer  Right to be present and to participate  Trial within a reasonable time  Conditional release 12

 Judge or judicial officer must– ◦ Be independent of the executive ◦ Have the power to review the lawfulness of the detention ◦ Have the power to order release Assenov v Bulgaria 28 October 1998, Reports 1998-VIII  Whether judge had power to review, and power to release Magee v UK 12 August 2015 Nos 26289/12, 29062/12, 29891/12 13

The decision must be reasoned, and made in concreto Buzadji v Moldova 16 December 2014 No 23755/07 Dubinskiy v Russia 3 October 2014 No 48929/08 Urtans v Latvia 28/12/2015 No 16858/11 14

The length of detention Amirov v Russia 20 April 2015 No 51857/13 Ereren v Germany 6 February 2015 No 67522/09 Margaretic v Croatia 13 October 2014 No 16115/13 15

 Action to test legality Margaretic v Croatia 13 October 2014 No 16115/13 Sher v UK 20 October 2015 No 5201/11 Yegorov v Slovakia 2 September 2015 No 27112/11  Right to compensation Kotiy v Ukraine 5 June 2015 No 28718/09 16

The presumption of innocence 17

Everyone charged with a criminal offence shall be presumed innocent until proved guilty by law  Responsibilities of judicial authorities and public official  Burden of proof on the prosecution  Right to information about the accusation  Privilege against self-incrimination and the right to silence 18

 Declaration of guilt in extradition proceedings Eshonkulov v Russia 1 June 2015 No 68900/13  Declaration of guilt before arrest Mammadov v Azerbaijan 13 October 2014 No 15172/13  Filming an arrest Natsvlishvili v Georgia 9 September 2014 No 9043/05 19