Reply to Recommendation 1245 (1994) on the detention of persons pending trial

19 September 1995

Doc. 7388

COMMUNICATION FROM THE COMMITTEE OF MINISTERS

Reply to Recommendation 1245 (1994)

on the detention of persons pending trial

(adopted by the Committee of Ministers on 11 September 1995

at the 543rd meeting of the Ministers' Deputies)

The Committee of Ministers, after having received the opinions of the Steering Committee for Human Rights (CDDH) and of the European Committee on Crime Problems (CDPC), wishes to inform the Parliamentary Assembly that it fully shares the aim set out in its Recommendation 1245 (1994) on the detention of persons pending trial, i.e. the legal protection of the persons concerned and the submission of the application of a measure of custody to appropriate and efficient guarantees. It recalls in this respect that Recommendation No. R (80) 11 of the Committee of Ministers states that this measure should be reduced "to the minimum compatible with the interests of justice".

As regards paragraph 6.i.a. of the Recommendation, the Committee of Ministers notes that its Recommendation No. R (80) 11 concerning custody pending trial -which the Parliamentary Assembly suggests to supplement - refers, in its general principle I.1 and in its principle 4. to the exceptional nature of that detention. The approach laid down in this Recommendation is based on the idea that all relevant factors in a specific case have to be taken into account in order to conclude whether custody pending trial is justified. It is, in the opinion of the Committee of Ministers, the approach which provides the maximum guarantee that custody pending trial will only be applied when strictly necessary.

As regards paragraph 6.i.b. of the Recommendation, the Committee of Ministers shares the opinion of the Parliamentary Assembly that juveniles should not, in principle, be placed in custody; it notes however that the significant increase of violent crime among young offenders does not allow the total ban on custody from the arsenal of available coercive measures for juveniles. Furthermore, as regards the separate detention of minors, the Committee of Ministers recalls that Rule 11 (4) of the European Prison Rules of 1987 states that "young prisoners shall be detained under conditions which as far as possible protect them from harmful influences and which take account of the needs peculiar to their age".

As regards paragraph 6.i.c. of the Recommendation, the Committee of Ministers shares the preoccupations of the Parliamentary Assembly concerning the fundamental importance of a fair procedure when decisions have to be made about the deprivation of a person's liberty pending trial. It recalls in this respect that Articles 5 and 6 of the European Convention on Human Rights, as well as the case law of the control organs of the Convention relating to them provide sufficient guarantees. Recommendation No. R (80) 11 also provides for entitlement to legal assistance, appeal against decisions on custody pending trial and information about their rights for persons against whom custody is ordered. Furthermore, a draft Protocol to the European Convention on Human Rights, which provides certain additional rights to persons deprived of their liberty, is under consideration.

As regards paragraph 6.i.d. of the Recommendation, the Committee of Ministers fully subscribes to the principle laid down by the Parliamentary Assembly and recalls that member states are under an obligation to respect this principle as a result of Article 5, in conjunction with Article 14, of the European Convention on Human Rights.

As regards paragraph 6.i.e. of the Recommendation, the Committee of Ministers recalls that the European Prison Rules of 1987 do not provide for a strict separation of different categories of detainees. Although in principle untried prisoners are to be detained separately from convicted prisoners, exceptions to this principle are permitted. As regards the proposal to provide persons held in custody with the necessary facilities for the preparation of their defence, it goes without saying that the latter must be available, as laid down in Article 6 of the European Convention on Human Rights and of the European Prison Rules. As regards the proposal not totally to deprive persons in custody of social and occupational contacts, the Committee of Ministers shares the views of the Assembly, while stressing that this may not always be appropriate in view of the intended primary purpose of pre-trial custody, i.e. to prevent the person concerned absconding, his influencing witnesses or committing offences.

As regards paragraph 6.i.f. of the Recommendation, the Committee of Ministers welcomes the point that the duration of pre-trial detention should be limited. However, in the light of the differences in national legal systems, it appears difficult to establish a uniform, rigid, maximum limit for custody. It should be recalled in this respect that the established case law of the organs of the European Convention on Human Rights acknowledges that the particular circumstances of a criminal case may justify the maintaining of a person in custody over a long period of time. Furthermore, a system of strict time limits would not be sufficiently able to take into account the specific circumstances of each case and thereby ensure that custody pending trial is only applied when it is strictly necessary.

As regards paragraph 6.i.g. of the Recommendation, the Committee of Ministers recalls that under Article 5, paragraph 5 of the European Convention on Human Rights, compensation may be obtained if the arrest or detention is executed in contravention of the provisions of Article 5, paragraphs 1 to 4. Furthermore, just satisfaction may be afforded under Article 50 of the European Convention on Human Rights to those whose damage was only partially remedied in internal law. In cases where a person has been held in custody pending trial, but the trial does not lead to a conviction, the Committee of Ministers recalls that, in its judgment of 25 August 1993 in the case of Sekanina, the European Court of Human Rights established that Article 6, paragraph 2, of the Convention did not guarantee a right to compensation for detention on remand imposed in conformity with the requirements of Article 5. It also notes in this respect that regulations concerning compensation in the event of the acquittal of a person who has been held on remand differ widely in member states. This makes it difficult to envisage general guidelines on the subject. Therefore, the Committee of Ministers is not in favour of the proposal of the Parliamentary Assembly that whenever a final decision of justice establishes a dismissal of charges or acquittal, full compensation must be awarded for the material and non-material damage. It recalls in this respect that this principle was examined during the elaboration of Recommendation No. R (80) 11 and that on this occasion it was not retained.

In conclusion, the Committee of Ministers wishes to assure the Parliamentary Assembly that it fully shares the preoccupations expressed in its Recommendation 1245 (1994) but it considers that the provisions of the European Convention on Human Rights, of Recommendation No. R (80) 11 and of other legal international instruments already enable the achievement of the objective of legal protection of the persons pending trial and of the submission of the application of a measure of custody to appropriate and efficient guarantees. Consequently, the Committee of Ministers does not deem it advisable to supplement Recommendation No. R (80) 11 with the principles laid down in Recommendation 1245 (1994).