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CM/Inf/DH(2009)53 ………….. 22 December 2009
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Round Table on “Detention on remand: General Measures to comply with the European Court’s judgments”

Conclusions of the Round Table held in Warsaw, 9-10 December 2009

Document prepared by the Department for the execution of judgments of the ECHR (Directorate General of Human Rights and Legal Affairs)
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“Detention on remand:
General Measures to comply with the European Court judgments”
Round Table
Warsaw, 9-10 December 2009

CONCLUSIONS

In numerous judgments the European Court of Human Rights (the Court) found violations of Article 5 of the Convention, in particular on account of unlawful detention and/or excessive length of detention on remand. There is still a continuous flow of similar applications to the Court.

Recalling that the findings of violations by the European Court impose a legal obligation on competent state authorities to adopt, beyond individual measures to grant applicants appropriate redress, general measures to prevent new, similar violations,

The participants of the Round Table

    - Acknowledged the particular seriousness of the problems revealed by the Court and their often systemic character;
    - Expressed their satisfaction with the possibility of exchanging their experience in elaborating and adopting general measures required by the judgments of the Court concerning detention on remand;
    - Noted that despite the measures already adopted, a number of problems continue to persist, in particular as regards the implementation of the legal framework;
    - Stressed in this respect the necessity of further measures to be taken to tackle the outstanding problems.

The participants underlined the need to ensure that the use of remand in custody is always exceptional and is always justified, considering the fundamental importance of the presumption of innocence and the right to liberty.

They further noted that while the primary responsibility for ensuring the above principle lies with judges, the prosecuting authorities play a key role, as they should provide the judge with adequate and exhaustive material and explanation allowing the judge to make an objective evaluation of the situation and to take a well-founded decision.

The participants focused their consideration on three main aspects:
- Measures to ensure the lawfulness of detention on remand (Article 5§1 of the Convention);
- Measures to respect the right to release pending trial (Article 5§3 of the Convention);
- Measures to ensure the speedy examination of requests for release in a procedure observing the principle of equality of arms (Article 5§4).
The participants outlined the following avenues for solving the problems revealed by the Court’s judgments:

    1. Ensuring a clear, strict and Convention-compatible legislative framework governing detention on remand;
    2. Ensuring that adequate alternatives to deprivation of liberty are provided by the legislation and that these alternatives are duly considered before resorting to deprivation of liberty.
    3. Implementing domestic legislation in line with the Convention requirements and with due account to the Court’s case-law, in particular with regard to relevant and sufficient reasons for ordering detention on remand and for its extension. In this respect, instructions to prosecutors by Prosecutor Generals and guidelines by Supreme/Constitutional Courts, where they have this power, on the implementation of the relevant provisions are of particular importance.

    4. Introducing appropriate mechanisms with a view to identifying and correcting practices incompatible with the Convention requirements.
    5. Ensuring judicial review of the lawfulness and length of detention on remand (habeas corpus) in respect of every person detained on remand.
    6. Ensuring awareness of the Convention requirements by targeted training and wide dissemination of the Court’s judgments, including judgments rendered against other states.

The participants agreed that the above avenues should be taken into account in the Action Plans to be submitted by the states concerned to the Committee of Ministers in the framework of the supervision of the execution of the relevant judgments of the Court, and that judges and prosecutors should be involved in the elaboration of such Action Plans.



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