CM(2006)122 Addendum 30 August 20061
974 Meeting, 27 September 2006
10 Legal questions
10.2 European Committee on Crime Problems (CDPC)
c. Draft Recommendation Rec(2006)… of the Committee of Ministers to member states on the use of remand in custody and its explanatory memorandum
Rules on the use of remand in custody, the conditions in which it takes place and the provision of safeguards against abuse
I. Definitions and general principles
1. ‘Remand in custody’ is defined in a way that excludes any period in the custody of the police or other law enforcement officers following an initial short deprivation of liberty by them or by anyone else entitled to effect such a measure (e.g., under a power of citizen’s arrest) for the purpose of questioning before charge as well as any prolongation of that detention approved by a judicial authority. Remand in custody will thus be ordered by a judicial authority at a later stage in the criminal justice process and it may also be ordered in respect of someone who has not actually been deprived of his or her liberty by the police or other law enforcement officers or anyone else so entitled to act. The need for the imposition of this loss of liberty to be ordered by a judicial authority reflects the combined requirements of Articles 5(1)(c) and (3) of the European Convention on Human Rights. These provisions envisage that the competent legal authority for this purpose should be ‘a judge or other officer authorised by law to exercise judicial power’2. In some legal systems persons awaiting either sentence or the confirmation of conviction or sentence may continue to be treated as unconvicted persons and the fact that the Convention left such a discretion to High Contracting Parties has been recognised by the European Court of Human Rights3. It is thus considered appropriate for the rules governing remand in custody to remain applicable to them.
Remand in custody will generally include detention similarly ordered by a judicial authority pursuant to rules (including national implementation measures) for judicial co-operation and extradition (including the European Arrest Warrant) but the provisions of this Recommendation are not intended to prejudice the specific requirements of those rules. Furthermore it is clear that the provisions of the recommendation can apply to cases of international judicial co-operation to the extent that they are pertinent. It may be recalled here that Article 5 (1)(f) of the European Convention of Human Rights expressly refers to extradition proceedings and consequently paragraphs 2 and 4 of Article 5 also apply in such cases.
2. The list of ‘alternative measures’ is illustrative and not exhaustive and a State is thus free to use any procedures which can facilitate the administration of justice and safeguard public order without involving a deprivation of liberty or an unjustified infringement of the other human rights of the persons concerned. Electronic monitoring is instanced as an example of the ways in which technological advances may afford new means of satisfactorily addressing legitimate concerns about a suspected offender without the need for a deprivation of liberty. It should also be noted that placements with relatives, foster parents or other forms of supported accommodation are specified as alternatives to remand in custody for juvenile suspects in Recommendation Rec (2003) 20 of the Committee of Ministers to member states concerning new ways of dealing with juvenile delinquency and the role of juvenile justice (Article 17). The need to make provision ‘for a sufficient number of suitably varied’ measures is recognised in Appendix 2 to Recommendation Rec (2000) 22 of the Committee of Ministers to member states on improving the implementation of the European rules on community sanctions and measures. The choice of measures in a particular case is likely to be determined by its circumstances so that, e.g., a restriction on associating with others may be needed to prevent collusion, a reporting obligation may be needed to avert a risk of flight and a bar on continuing in a job or profession may be needed to forestall interference with evidence, the commission of further offences or the outbreak of serious disorder. The importance of account being taken of the circumstances of the person concerned where measures are imposed is recognised in Rule 6 of the European rules on community sanctions and measures (Recommendation No R (92) 16). The inclusion of the possibility of alternative measures being imposed in co-operation with another State reflects the increase in mutual recognition arrangements being made by States. Although their imposition might not be practicable in the circumstances of a given case, the necessary legal framework for the implementation of agreements permitting this should be adopted so that they can be imposed wherever this would be appropriate.
3. The insistence on the exceptional character of resort to remand in custody when dealing with persons suspected of having committed an offence before their trial and on it only being imposed in individual cases where this is strictly required by their particular circumstances reflects the effect of requirements in Articles 5(1) and 6(2) of the European Convention on Human Rights, as elaborated by the European Court of Human Rights and the former European Commission of Human Rights. This case law has, in particular, established that a decision to remand someone in custody cannot be based solely on the past record of the suspected offender or the fact that certain offences have allegedly been committed4. Encouragement for ‘the widest possible use to be made of alternatives to pre-trial detention’ is also found in the Appendix to Recommendation No. R (99) 22 of the Committee of Ministers to Member States concerning Prison Overcrowding and Prison Population Inflation (Article 10). The fact that remand in custody is intended to facilitate the administration of justice and to safeguard public order means that it should not be used for punitive reasons. It should thus be noted that Recommendation Rec(2003)20 of the Committee of Ministers to member states concerning new ways of dealing with juvenile delinquency and the role of juvenile justice (Article 17) provides that ‘Custodial remand should never be used as a punishment or form of intimidation or as a substitute for child protection or mental health measures’.
4. It is recognised that the objective of ensuring that remand in custody is exceptional and is only imposed when strictly necessary can only be achieved where judicial authorities are in a position to deal effectively with potentially serious risks to the due administration of justice and public order through the use of less restrictive measures relating to the conduct of a suspected offender. This requires a State to establish the widest possible range of alternative measures and to ensure that these can actually be employed where required by the circumstances of a particular case.
5. It is important that the legal status of remand prisoners is fully reflected in the way in which they are treated and managed and in the conditions in which they are held. They are presumed to be innocent until they are found guilty and they are not being held in prison as a punishment. The administrations of remand institutions must ensure that remand prisoners are treated without any unnecessary restrictions and with full recognition of the fact that their presumed innocence may be confirmed when their cases are finally decided by the court. This requires as a minimum the observance not only of the European Prison Rules - both the rules of general application and the ones specifically applicable to untried prisoners - but also of the additional standards set out in Part III.
II. The use of remand in custody
6. The exceptional character of remand in custody means that the deprivation of liberty entailed by it should generally only be warranted where the offence in respect of which it is sought can itself lead to a term of imprisonment following a conviction. Furthermore it should be noted that in some countries remand in custody is never permitted in respect of offences that are not imprisonable.
7. The conditions in a. - d. governing the use of remand in custody reflect the case law of the European Court of Human Rights and are cumulative so that it cannot be imposed or continued if any one of them is absent or ceases to be operative. The requirement of reasonable suspicion entails the existence of evidence objectively linking the person concerned to a suspected offence. It need not be sufficient to secure a conviction but it should be sufficient to justify further investigation or the initiation of a prosecution and the longer that remand in custody lasts the greater should be the difficulty in establishing the reasonableness of a suspicion5. Remand in custody cannot be justified where it is clear that a prosecution will not or cannot be pursued6. The four concerns instanced in b. as potential justifications for remand in custody – which are insufficient in the absence (whether at the outset or after the lapse of time) of a reasonable suspicion7 - reflect those recognised in the case law of the European Court8. However, there is no requirement that all of them should actually be invoked in a particular State. Concern about public order – which is probably only ever going to be justified where there is substantial evidence of a reaction to a grave crime such as murder - in particular is not considered a sufficient justification in some States. Although any one of these concerns may justify the use of remand in custody in respect of a suspected offender, the exceptional nature of such a measure necessarily requires consideration first being given as to whether the concerns underlying them can be satisfactorily addressed through the use of measures that do not entail a deprivation of liberty9 and an unduly restrictive view of their potential effectiveness will be inappropriate10. It is thus likely that remand in custody would be a wholly disproportionate response both to the alleged commission of many offences and apprehensions about what the suspected offender might do in the future. Furthermore it needs to be borne in mind that the ground relating to public order envisages a particularly grave situation and is not one which the release of most suspected offenders could be expected to engender. It is essential that remand in custody be a measure that forms part of the criminal process with a trial being the ultimate objective, although this does not mean that the remand in custody will lose its legal validity if the prosecution is eventually for a different
offence or if no trial is held since grounds for suspicion may ultimately prove insufficient or unfounded and there may be other reasons why a particular prosecution is not warranted. However, remand in custody cannot be used merely as a preventive procedure unrelated to a possible trial11.
8. A decision to use remand in custody rather than an alternative measure must be well-founded and for this to be feasible the judicial authority will need to have at its disposal techniques for assessing whether or not there is a risk that one of the four concerns in Rule 7 b would arise if the suspected offender were released (or not remanded in custody) and whether or not it would be impossible to allay them satisfactorily through the use of alternative measures. This entails the elaboration of the factors -both positive and negative- that should be weighed in making an assessment of a possible risk -notably those set out in the following paragraph- and of their relative significance in demonstrating whether or not a particular risk exists and whether or not it can be allayed through the use of alternative measures. Making such an assessment may necessitate the use of some form of objective evaluation in respect of any of the possible factors found to exist as a way of calculating the overall degree of risk. It will also require suitably trained personnel being made available to assist the judicial authority in gathering and evaluating the evidence in a given case in a timely fashion. Amongst the evidence that might be considered relevant will be that provided by the persons affected by the alleged offence and the community in which the suspected offender lives. In view of the presumptions in favour of innocence and liberty, the responsibility for making a case for remand in custody must lie on the prosecution or the investigating judicial authority. Furthermore, with regard to juveniles, there is a requirement in Recommendation Rec (2003) 20 of the Committee of Ministers to member states concerning new ways of dealing with juvenile delinquency and the role of juvenile justice, Article 18 to ‘undertake a full risk assessment based on comprehensive and reliable information on the young person’s personality and social circumstances’. It will be impermissible for the prosecution or the investigating judge to be treated as having discharged the responsibility concerning risk assessment by reference only to the gravity of the offence or for the latter to justify a requirement that the suspected offender demonstrate that there was not even a hypothetical danger that could ensue from his or her remaining at liberty or being released12.
9. In assessing the existence of risk that could justify the imposition of remand in custody certain considerations are identified as particularly weighty but the significance of these is still not such that it should automatically be concluded that such a measure is actually required in a given case. The need to question prejudices about the risks posed by suspected offenders is underlined by the requirement to be open to the possibility that someone is not likely to flee simply because he or she is a foreign national. The fact that he or she has no links with the State where the offence is supposed to have been committed could certainly be a factor that may be taken into account when weighing the risk of flight13.
10. Maintaining the bond between parents and infants is likely to be in the best interests of the latter in most cases. Moreover, in at least some instances, the existence of parental responsibility for the care of an infant will be an important consideration militating against the conclusion that there is any sort of risk that could justify the use of remand in custody with regard to the parent. However, where such a risk continues to exist, the need to maintain the parent-infant bond and the best interests of the child may require that the persons remanded in custody be allowed to bring their infants with them into the remand institution.
11. Particular emphasis is placed on ensuring that the approach to the appraisal of the need for remand in custody takes full account of the way in which the circumstances of a case can change14. An entirely fresh evaluation of the arguments for and against its imposition thus needs to be taken on each occasion the matter comes before a judicial authority and past justifications for it should not be simply reiterated.
Some sanction is likely to be appropriate where the requirements involved in alternative measures are breached but the conditions governing the use of remand in custody should still be observed and this is also recognised in Rule 10 of the European rules on community sanctions and measures (Recommendation No. R (92) 16). A breach of those requirements will, therefore, only justify remand in custody where it is of sufficient gravity to establish that the situation is now such that the use of alternative measures (including different or additional ones to those breached) would no longer be enough to allay legitimate concerns about the person concerned remaining at liberty.
13. In most instances it can be expected that the judicial authorisation required for remand in custody and alternative measures will be provided by a court but the wider term ‘judicial authority’ is being used as the European Convention on Human Rights recognises that the function can also be performed by other officers so long as they meet the requirements of independence and impartiality as elaborated in the case law concerning Article 6(1). It is also essential that the judicial authority concerned should actually have the power to order the release of a person for whom remand in custody (or its continuation) is not justified15. Any delay in executing a release decision should be kept to a minimum and be a matter of hours rather than days16.
14. The specification of a forty-eight hour period for the initial determination of whether custody should be continued or whether alternative measures should be imposed reflects the evolving interpretation of the requirement of Article 5(3) of the European Convention on Human Rights that this occur ‘promptly’. However, no particular period has been prescribed by the European Court of Human Rights17 but one day has been accepted as ‘prompt’18 and such a period is prescribed in some countries19. Moreover a forty-eight hour limit to the detention of juveniles in police custody, with every effort being made to reduce this time further for younger offenders, is specified in Recommendation Rec (2003) 20 of the Committee of Ministers to member states concerning new ways of dealing with juvenile delinquency and the role of juvenile justice, Article 15. It is also important to appreciate that forty-eight hours is often likely to be the upper limit of delay before it is feasible to bring a suspected offender before the judicial authority. Just as the individual circumstances of a case may justify a longer period so it should be possible for the appearance to occur much earlier in a particularly straightforward case. It is up to the judicial authority to set a specific time/date for the first habeas corpus hearing, which is sufficiently “prompt” within the limits of the case law of the ECHR and provisions of the national law. It is important to appreciate that the submission to judicial control entailed by this process is quite distinct from the determination of whether there is a sufficient basis for undertaking a prosecution. It is thus possible that it could be justifiably concluded at this stage that remanding someone in custody is appropriate even though it later appears that a prosecution is not warranted20 and there is, therefore, no basis for delaying the appearance until it is considered that a prosecution is likely. Furthermore any delay in the first appearance before the judicial authority is something that can only ever be justified by the particular circumstances of the case; problems affecting the organisation of law enforcement, prosecution and judicial services will never be admissible excuses for non-compliance with the promptness requirement21. While factors such as the need to preserve evidence, the health of the suspect, adverse weather conditions and the distance between where a person was initially deprived of liberty by the police or law enforcement officer or other authorised person and the location of the judicial authority (particularly in the case of an arrest abroad) might be relevant to determining whether the promptness requirement was met, their actual impact on time taken before his or her first appearance before a judicial authority will need to be demonstrated22.
15. It is recognised that an emergency situation in accordance with Article 15 of the European Convention on Human Rights may affect the feasibility of bringing someone suspected of an offence before a judicial authority for the first time but the longer deadline specified reflects the period that has generally been considered acceptable by the European Court of Human Rights in such cases23. However, the character of emergencies can vary and the need for any extended interval before this first appearance before a judicial authority must be capable of being justified.
16. The need for promptness is seen as applying not only to the appearance of the person concerned before the judicial authority but also to the determination of whether the imposition of remand in custody or alternative measures is justified.
17. The recognition that the circumstances of a case can change – see Rule 11 - necessitates a periodic review by a judicial authority as to whether the imposition of remand in custody or alternative measures continues to be justified and the responsibility for initiating such a review is placed on the prosecuting authority or the investigating judicial authority since the burden of proving that there is still a sufficient justification for either measure rests with that authority. Although a monthly interval between such reviews ought to be observed, it is recognised that the objective of such reviews can be fulfilled by the existence of a possibility for a person remanded in custody to apply to a court for release him- or herself at any point during his or her remand. It is also recognised that the authorities may provide for restrictions on the ability to apply for release on account of the shortness of the time elapsing from a previous application or the failure to adduce any new basis for ordering his or her release.
18. Appropriate provision should be made to enable decisions concerning the imposition of remand in custody or alternative measures to be appealed to a higher judicial authority and to ensure that the person concerned is apprised of this possibility so that it can be invoked at the earliest opportunity. Such an appeal could be effected by judicial control that allows all relevant issues to be addressed. This obligation goes beyond the requirements of Article 5 of the European Convention on Human Rights24.
19. The responsibility of the prosecuting authority or the investigating judicial authority for ensuring that there is a periodic review of the imposition of remand in custody ought not to be confused with the independent right that any person deprived of his or her liberty has under Article 5(4) of the European Convention on Human Rights to challenge the lawfulness of such action. This provision is unambiguous in requiring that the challenge be heard and determined by a court. Such a challenge can be more wide-ranging than the existence of grounds justifying remand as Article 5(4) requires that the judicial review encompass all the conditions essential for the lawfulness of the particular deprivation of liberty25. It might even extend to considering the compatibility of the offence which the person concerned is suspected of having committed with either constitutional provisions or rights that he or she may have under the Convention. However, it is recognised that in certain cases the periodic review may be of sufficient scope to preclude the need for a separate lawfulness challenge at a particular time26. Such a challenge should initially be possible within a matter of weeks of the initial detention and thereafter on a periodic basis27. The possibility of making a challenge will be regarded as having been impeded if the person remanded in custody is kept in total isolation and is not allowed the assistance of a lawyer28. The judicial authority must have the power to order the release of the person concerned if the remand in custody is found to be unlawful29.
20. Although an emergency situation in accordance with Article 15 of the European Convention on Human Rights permits some derogation from the standards applicable in normal conditions, the rights stipulated here are ones that should continue to be available and indeed have been recognised as essential safeguards against the possible misuse of power30.
21. Compliance with the requirement that decisions be reasoned and that these reasons be provided in a timely manner is essential for the effective exercise of the right of appeal against the imposition of remand in custody or alternative measures, as well as for ensuring that the legitimacy of such a measure in a given case can be recognised. Moreover the reasoning must demonstrate that real consideration has been given to the merits of an application for release rather than embody a ritual incantation of a formula31. The exceptional circumstances referred to in paragraph 2 could arise in juridictions where an application for release made to a court following a decision to remand a person in custody is heard ab initio and is not a review of the initial remand decision.
22. The requirement that remand in custody must be strictly necessary means that if any of the justifications for its imposition cease to be applicable it must be terminated – see Rule 11 - unless some other justification arises. It is the role of the judicial authority to determine whether such a justification continues to exist or has arisen. However, even where remand in custody can be justified, the seriousness of such an interference with liberty and the non-punitive character of such a measure necessitate that its length should not normally be disproportionate to the penalty that can be imposed on the suspected offender concerned. A further limitation on the overall length of remand in custody is the requirement in Article 5(3) of the European Convention on Human Rights to ensure that anyone remanded in custody is tried within a reasonable time and this requires that the proceedings in such cases be handled in an especially expeditious manner. No maximum length of remand in custody has ever been prescribed by the European Court of Human Rights when considering what is ‘reasonable’ - periods of both under and just over a year have been found objectionable32 while ones in excess of four years have been considered both acceptable33 and objectionable34 but it is evident from the case law that very special features need to be present for a lengthy period to be justified and that a short duration is all that should be needed in most cases, although the need even for the latter must be convincingly demonstrated. It should also be noted that the Committee of Ministers have recommended that ‘When, as a last resort, juvenile suspects are remanded in custody, this should not be for longer than six months before the commencement of the trial. This period can only be extended where a judge not involved in the investigation of the case is satisfied that any delays in the proceedings are fully justified by exceptional circumstances’, Recommendation Rec(2003)20 of the Committee of Ministers to member states concerning new ways of dealing with juvenile delinquency and the role of juvenile justice, Article 16. The fact that a period of remand in custody will subsequently be deducted from any sentence of imprisonment that must be served – see Rule 33 - is not relevant to the determination of its reasonableness.
23. Although the fulfilment of the requirements regarding the duration of remand in custody may be facilitated by the specification in legislation of a maximum period of remand in custody, the need to consider the particular circumstances of a given case means that such a period should not be automatically applied to all cases where remand in custody is justified. In many instances the circumstances of a case will be such that it should be possible to bring the case to trial before the expiry of such a period; thus remand in custody for the three-year period allowed by law was found by the European Court of Human Rights to be in violation of Article 5(3) of the European Convention on Human Rights where special diligence had not been shown in the conduct of the proceedings.35
24. The particular responsibility recognised for the prosecuting authority or the investigating judicial authority with regard to the handling of a case, so that remand in custody is continued no longer than is justifiable and so that the bringing to trial of a person remanded in custody is especially expeditious, reflects its unrivalled access to information concerning a case and its capacity to advance its examination by the courts. Many violations of Article 5(3) are attributable to long periods of inactivity in the handling of a case prior to trial36 and the European Court of Human Rights clearly expects an effective response to factors such as the late submission of reports by experts, illness and staffing shortages.
Assistance by a lawyer, presence of the person concerned and interpretation
25. The obligation to inform promptly someone who is actually detained in police custody or is remanded in custody and in an understandable language about an intention to seek or to continue his or her remand in custody and the reasons for so doing is intended to ensure that he or she is in a position to seek appropriate legal advice and to prepare arguments against the imposition of such a measure, as well as to prepare his or her family for the possibility that it might be imposed. It thus goes beyond the similar obligation imposed by Article 5(2) of the European Convention on Human Rights when a deprivation of liberty actually occurs. Such notification should normally be straight after the decision to seek or to continue remand in custody but a longer interval would be justified where the person concerned is not in custody at the time or the assistance of an interpreter is required. The seriousness of the consequences of being remanded in custody makes it essential that a person whose remand in custody will be sought, should be legally assisted and should have a lawyer to be provided at public expense where the person cannot afford one. The requirements concerning the provision of information about the right to be assisted by a lawyer and adequate time for consultation are intended to ensure that this right can be of real benefit for a person at risk of being remanded in custody. This right also entails the detaining and/or prosecuting authority or the investigating judicial authority taking appropriate steps to ensure that the person concerned is actually able to contact a lawyer and this may necessitate making available the details of lawyers so that they can be contacted and using interpreters both to explain the right of consultation and representation and to assist in its exercise. It will also entail appropriate facilities for consultation with a lawyer being made available. The provisions of the present Rule relate to the right of assistance by a lawyer in relation to remand proceedings. They do not relate to the actual presence of a lawyer during investigation. Although an emergency situation in accordance with Article 15 of the European Convention on Human Rights permits some derogation from the standards applicable in normal conditions, the rights stipulated here are ones that should continue to be available and indeed have been recognised as essential safeguards against the possible misuse of power37. However, in an emergency the period of time which may be allowed to elapse before someone should be allowed to have legal advice and assistance for the purpose of arguing against the decision to seek his or her remand in custody will inevitably reflect the delay permitted in Rule 20 before he or she must first be brought before a judicial authority in remand proceedings.
26. Disclosure of documentation to the lawyer of someone whose remand in custody will be sought (or sought to be continued) is essential for that lawyer to be in a position to respond effectively to submissions as to justifications for the imposition of such a measure38. Although some restrictions on disclosure may be justifiable, particularly in order to secure the administration of justice or to protect national security, they must not have a substantial impact on the ability to make a case against remand in custody39.
27. This requirement seeks to ensure the fulfilment of obligations under Article 36 of the Vienna Convention on Consular Relations and their importance is also recognised in Articles 14-18 of the Appendix to Recommendation No. R (84) 12 of the Committee of Ministers to Member States concerning Foreign Prisoners. The importance of these obligations for non-nationals suspected of offences has been underlined by the International Court of Justice40. Although those obligations do not extend to the provision of consular protection for dual nationals with respect to a country whose nationality they hold, it is recognised that the existence of family and property interests in the second country of which they are nationals may make it desirable for access to be granted to the consular officials of that country. The decision about contacting a consul should be taken by the person whose remand in custody will be sought (or sought to be continued), unless he or she is not legally competent to take such a decision when the responsibility for facilitating such contact will lie on the judicial authority in the remand proceedings. This right does not create any obligation for the authorities to seek to prove the nationality of the remand prisoner. A state may chose to consider a person who has the nationality of that state as well as the nationality of another state(s) as being its national.
28. This right reflects the importance of the person whose remand in custody will be sought (or sought to be continued) being in a position to respond to submissions as to justifications for the imposition of such a measure41. It is recognised that in some instances (particularly security considerations or the distance involved) this objective can be realised without the person concerned actually being physically brought before the judicial authority. However any video link being used must be such that the possibility both of communicating with/by him or her and of assessing his or her physical and mental well-being is just as effective as if he or she were physically present. Moreover being present is a right which some persons may decide they do not wish to exercise.
29. The obligation to provide interpretation recognises that the ability of a person whose remand in custody will be sought (or sought to be continued) to take part in proceedings may be impeded by language difficulties. However, this obligation only arises where the person’s capacity to speak or understand the language of the proceedings is inadequate and does not extend to an entitlement to the use of a preferred alternative where this is not the case.
30. Persons appearing before the judicial authority susceptible to order their remand in custody should be given the opportunity of presenting themselves as well as possible at any appearance before such a judicial authority. In respect of personal hygiene this means that they should have the opportunity to wash before such an event and male remand prisoners should be allowed to shave, unless, of course, such would fundamentally change their normal physical appearance. This requirement reinforces Rules 20.4, 68.2 and 97 of the European Prison Rules.
31. The foregoing requirements are equally applicable to any proceedings in which a decision to continue remand in custody may be taken and they are reinforced by the provisions in Rules 23.1, 23.2, 37.1-4, 98.1 and 98.2 of the European Prison Rules.
Informing the family
32. The imposition of remand in custody will affect the family of the person concerned and the obligation to inform the family reflects the right that both he or she and his or her family members have under Article 8 of the European Convention on Human Rights, as well as the importance of such contact as a safeguard against the possibility of abuse. A delay in informing the family would only be capable of being justified in exceptional circumstances where the administration of justice or national security could be prejudiced (e.g. a risk of collusion). The responsibility that parents have for juveniles could be an instance justifying the disregard of a suspect’s wishes as regards informing his or her family. ‘Family member’ should be understood in the wide sense used by the European Court of Human Rights42 rather than by reference to legally prescribed relationships. The family could be informed directly or through the lawyer of the person concerned. The right to have family members informed about forthcoming remand proceedings does not necessarily mean that they will have the right to be present at them.
Deduction of pre-conviction custody from sentence
33. The non-punitive nature of remand in custody requires that the periods so spent should be deducted from any sentence of imprisonment that is imposed: if at all, deviations from this deduction should be permissible only in isolated cases and for specific reasons, for which the national law allows corresponding discretion in creating exceptions. The character of the regime in the place where the person was remanded should not have any limiting effect in the calculation of the deduction required. As a sentence of imprisonment may not be imposed on a person convicted of an offence after having spent some time remanded in custody, consideration of the possibility of taking that period into account when setting the terms of a non-custodial penalty could also be appropriate. This will be particularly desirable for alternatives to remand in custody that still involve a significant restriction on individual freedom. Thus in Portugal a prison sentence will be reduced where house arrest has been used as an alternative to remand in custody. A number of States also deduct from an eventual prison sentence periods of time spent in custody while awaiting extradition.
34. A further consequence of the non-punitive character of remand in custody is that consideration should be given to compensating persons who are not convicted of the offence in respect of which they were remanded for the losses resulting from the deprivation of their liberty. This possibility is distinct from the duty under Article 5(5) of the European Convention on Human Rights to compensate someone remanded in custody where there was no legal basis for the remand. The exception specified in respect of this possibility recognises that in some instances the behaviour of such persons may have had a significant influence on the decision to remand them in custody. However, the Rule also leaves States a discretion as to the other circumstances in which compensation will be required. Although the damage suffered in many cases will require financial compensation, other forms of reparation may be more appropriate where the damage is of a moral character.
III. Conditions of remand in custody
35. The European Prison Rules cover all prisoners but it is also recognised that the status of remand prisoners requires the observance of some additional rules.
For the following aspects of remand in custody, the specified rules in the European Prison Rules are particularly relevant:
Admission – 14, 15 and 16;
Clothing and bedding - 20, 21 and 97;
Complaints procedures - 70
Contact with the outside - 17, 24 and 99;
Discipline and punishment - 56-62;
Health care - 15.1e, 15.1f, 16a and 39-48;
Information about rights, regulations and other matters - 15.2, 30 and 38.3;
Inspection and monitoring - 92 and 93;
Nature and size of accommodation - 18.1-7, 18.10 and 96;
Personal hygiene - 19.3-7;
Preparation of defence and access to legal advice - 23 and 98;
Religion and beliefs - 29;
Sanitary arrangements - 19.1-3;
Separation of categories - 11.1, 11.2, 18.8 and 18.9;
Staff - 71-81 and 89
Time out of cell and regime activities - 25, 27 and 101;
Use of establishments other than a remand institution - 10.3b
Welfare assistance - 16d;
Work and education - 26, 28 and 100.
Absence from remand institution
36. The Council of Europe’s Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (the CPT) is of the opinion that it is preferable for further questioning by the police after a person has been remanded in custody to take place within the remand institution concerned rather than on police premises. The return of remand prisoners to police custody should only occur if they have expressly consented to it or if such removal is absolutely unavoidable and has been authorised by a judge or prosecutor. The duration of such a temporary removal should be clearly specified by the judge or prosecutor. On return to the remand institution, a thorough physical examination should be carried out if the prisoner so requests. The timing of such an examination should always be prompt and will need to be especially speedy if there are any evident signs of injury or ill treatment.
Continuing medical treatment
37. The prison medical officer should make arrangements, as soon as a remand prisoner has been examined on admission, to ensure that he or she can continue with any necessary medical treatment that was in progress at the time when he or she came into custody. The decision as to the necessity shall be taken by the prison medical officer who shall also supervise the treatment. Similar arrangements should be made in respect of other treatment that was in progress, such as dental treatment, fertility and hormonal treatment, where delay would be highly prejudicial to the remand prisoner concerned. The possibility of being visited by their own doctor or dentist is again a natural consequence of the legal status of remand prisoners and should exist when a medical or dental necessity as determined by the prison doctor so requires. However, it should not be the responsibility of the administration of the remand institution to pay for the attendance of such personnel
38. In general the reasons for which restrictions may be justified ought not to be applicable to the volume of correspondence between remand prisoners and their families and friends.
39. Since, in accordance with Rule 3, remand prisoners are to be held in conditions appropriate to their legal status and treated without restrictions other than those necessary for the administration of justice, the security of the institution, the safety of prisoners and staff and the protection of the rights of others, there can be no justification for denying them the right to vote in local, national and European elections that occur during the period of remand in custody. A failure to allow remand prisoners to vote may result in a violation of Article 3 of Protocol 1 to the European Convention on Human Rights43.
40. The protection of remand prisoners’ education from disruption or interference is in accordance with their legal status and the need to treat them without unnecessary restrictions and the importance of all prisoners having access to education is recognised in Recommendation No. R (89) 12 of the Committee of Ministers to Member States on Education in Prison and Rules 28.3 and 35.2 of the European Prison Rules. Appropriate educational provision for remand prisoners may include making arrangements so that examinations can be taken.
Discipline and punishment
41. Disciplinary punishment procedures should be avoided as far as possible in respect of remand prisoners and it is particularly important that they should not have an adverse effect on a remand prisoner’s ability to prepare his or her defence or have the consequence of prolonging the period of remand in custody ordered by a judicial authority.
42. If solitary confinement is imposed as a punishment, the denial of association with other prisoners should be the extent of the punishment. There must therefore be no interference with access to legal representatives and there should be at least a minimum level of contact with the family. Moreover there should be no supplementary punishments, such as inferior bedding or hygiene, shorter exercise, less access to reading material or the denial of meetings with approved religious representatives.
The dispositions of this Rule are not intended to regulate cases where measures are taken to protect the life and health of the person concerned, or other persons; nevertheless, such measures should not result in the remand prisoner being treated in an inferior manner.
43. This Rule emphasises that working with remand prisoners requires special qualities and training in order to ensure that the different status and different needs of such prisoners are fully recognised and that they are treated in accordance with their status and needs. The training should include instruction in operating a regime with few restrictions, enabling remand prisoners to be out of their cells engaged in purposeful activities for a reasonable part of the day, and assisting with tasks such as making bail applications, finding a lawyer and maintaining family ties. The training should also focus on enabling staff to deal appropriately with special categories of remand prisoners.
44. From time to time remand prisoners are likely to perceive an element of unfairness in the way they are treated, either individually or as a group. This will happen even in the best managed remand institution. It is important that there should be a set of procedures, which allow remand prisoners to register any complaints that they have and that this can be done in a manner guaranteed to preserve confidentiality. A speedy resolution of complaints is of particular importance for remand prisoners as their detention should normally be only for a short period.
Note 1 This document has been classified restricted at the date of issue. It was declassified at the 974th meeting of the Ministers’ Deputies (27 September 2006) (see CM/Del/Dec(2006)974/10.2).
Note 2 See, e.g., Schiesser v Switzerland, 4 December 1979, Huber v Switzerland, 23 October 1990, Brincat v Italy, 26 November 1992, Nikolova v Bulgaria, 25 March 1999, Pantea v Romania, 3 June 2003 and (in respect of officers in the armed forces) Hood v United Kingdom, 18 February 1999.
Note 3 In Monnell and Morris v United Kingdom, 2 March 1987.
Note 4 See, e.g., Caballero v United Kingdom, 8 February 2000.
Note 5 See, e.g., Fox, Campbell and Hartley v United Kingdom, 30 August 1990, Murray v United Kingdom, 28 October 1994, Erdagöz v Turkey, 22 October 1997, Wloch v Poland, 19 October 2000 and O’Hara v United Kingdom, 16 October 2001.
Note 6 See Gusinskiy v Russia, 19 May 2004
Note 7 See Jecius v Lithuania, 31 July 2000.
Note 8 See, e.g., Letellier v France, 26 June 1991,Assenov v Bulgaria, 28 October 1998, W v Switzerland, 26 January 1993 and I A v France, 23 September 1998.
Note 9 See, e.g., Smirnova v Russia, 24 July 2003.
Note 10 See, e.g., Iwańcuk v Poland, 15 November 2001.
Note 11 See Ciulla v Italy, 22 February 1989 and Jecius v Lithuania, 31 July 2000.
Note 12 See, e.g., Ilijkov v Bulgaria, 26 July 2001 and Shishkov v Bulgaria, 9 January 2003.
Note 13 See, e.g., Punzelt v Czech Republic, 25 April 2000.
Note 14 See, e.g., I A v France, 23 September 1998 (where the European Court of Human Rights found that it had ceased to be reasonable to suppose that release would give rise to a risk of collusion.
Note 15 T W v Malta, 29 April 1999.
Note 16 See, e.g., Mancini v Italy, 2 August 2001.
Note 17 See Brogan v United Kingdom, 30 May 1989.
Note 18 See T W v Malta, 29 April 1999.
Note 19 Eg, Belgium, Bosnia and Herzegovina, Bulgaria, Cyprus, Denmark, Germany, Luxembourg, Romania and “the former Yugsolav Republic of Macedonia”.
Note 20 See Brogan v United Kingdom, 30 May 1989.
Note 21 See Koster v Netherlands, 28 November 1991.
Note 22 See Ocalan v Turkey, 12 March 2003.
Note 23 See, e.g., Brannigan and McBride v United Kingdom, 26 May 1993, Aksoy v Turkey, 18 December 1996 and Demir v Turkey, 23 September 1998.
Note 24 See Grauzinis v Lithuania, 10 October 2000.
Note 25 See Nikolova v Bulgaria, 25 March 1999.
Note 26 See De Jong, Baljet and Van Den Brink v Netherlands, 22 May 1984.
Note 27 See, e.g., Bezicheri v Italy, 25 October 1989, Rehbock v Slovenia, 28 November 2000 and G B v Switzerland, 30 November 2000.
Note 28 See Ocalan v Turkey, 12 March 2003.
29 See Van Droogenbroeck v Belgium, 24 June 1982.
Note 30 See, e.g., Brannigan and McBride v United Kingdom, 26 May 1993, Aksoy v Turkey, 18 December 1996 and Demir v Turkey, 23 September 1998
Note 31 See, e.g., Mansur v Turkey, 8 June 1995 and Smirnova v Russia, 24 July 2003.
Note 32 Less than eight months in Shishkov v Bulgaria, 9 January 2003 and fourteen months in Jecius v Lithuania, 31 July 2000.
Note 33 W v Switzerland, 26 January 1993.
Note 34 Debboub alias Husseini Ali v France, 9 November 1999.
Note 35 Ceský v Czech Republic, 6 June 2000.
Note 36 See, e.g., Clooth v Belgium, 12 December 1991, Assenov v Bulgaria, 28 October 1998 and Punzelt v Czech Republic, 25 April 2000.
Note 37 See, e.g., Brannigan and McBride v United Kingdom, 26 May 1993, Aksoy v Turkey, 18 December 1996 and Demir v Turkey, 23 September 1998.
Note 38 See, e.g., Shishkov v Bulgaria, 9 January 2003.
Note 39 See, e.g., Garcia Alva v Germany, 13 February 2001.
Note 40 In the cases of LaGrand (Germany v United States of America), 27 June 2001 and Avena and Other Mexican Nationals (Mexico v United States of America), 31 March 2004.
Note 41 See Grauzinis v Lithuania, 10 October 2000.
Note 42 See, e.g., X, Y and Z v United Kingdom, 22 April 1997.
Note 43 See Labita v Italy, 6 April 2000 and Hirst v United Kingdom (No 2), 6 October 2005.