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