3 June 1994

Doc. 7094

1403-30/5/94-1-E

REPORT

on the detention of persons pending trial

(Rapporteur: Mr ROKOFYLLOS,

Greece, Socialist Group)

Summary

      Is detention pending trial a violation of the principle of presumption of innocence as guaranteed by the European Convention on Human Rights and by most of the national laws of member states?

      In what circumstances can detention pending trial be used and according to what modalities?

      These are the questions raised by the Rapporteur who makes proposals to answer them which take the form of recommendations to the Committee of Ministers.

I. Draft recommendation

1.       Despite the fact that the detention of persons pending trial may be described as provisional, it can give rise to irreversible or even irreparable damage, especially for prisoners who, having being tried, are found to be innocent or are discharged. These consequences may include:

      i.       loss of reputation of the unconvicted prisoner and sometimes even of persons closely connected to him or her;

      ii.       the severing of family ties;

      iii.       the loss of work, company insolvency or the jeopardising of a career;

      iv.       the undermining of the prisoner's health and mental balance.

2.       Moreover, one should take into consideration that this measure, which is, by its very nature, compelling and damaging, is taken in respect of a person who should be considered innocent at this stage of the procedure, as is laid down clearly in Article 6 Section 2 of the European Convention on Human Rights.

3.       Over the last few years conditions of detention have deteriorated and problems linked to detention pending trial have increased owing to a considerable rise in the number of prisoners, especially persons awaiting trial, who, in some countries, may make up 50% of all prisoners.

4.       Attention should be drawn to Committee of Ministers Recommendation No. R (80) 11 concerning custody pending trial, which contains principles which the member states are invited to apply, especially the principle that such a measure shall be regarded as exceptional.

5.       Since the adoption of the recommendation, eleven states have joined the Council of Europe.

6.       As detention pending trial cannot be abolished entirely given the fact that in some cases it is indispensable or even inevitable for the carriage of justice, it is highly advisable to submit its application to appropriate and efficient guarantees. It is with this in mind that the Assembly recommends that the Committee of Ministers:

i.       supplement Recommendation No. R (80) 11 with the following principles:

      a.       custody pending trial, which must always be optional and regarded as exceptional, should be ordered only when the minimum sentence in question is substantial;

      b.       minors may be placed in custody pending trial only if absolutely necessary;

      c.       no court may order detention on remand unless it has first held proceedings involving the participation of the public prosecutor and the person in question (accused or defendant) who must, in this case, be assisted by a legal representative who has had access to the entire file and who has talked freely to him or her;

      d.       non-residents and aliens must under no circumstances be discriminated against;

      e.       a distinction must be drawn between imprisonment and custody pending trial, in particular untried prisoners must be detained in separate sections of prisons in accordance with the prison rules contained in Committee of Ministers Recommendation No. R (87) 3, so that they have all necessary facilities for preparing their defence and does not totally deprive them of social and occupational contacts;

      f.       the law must establish an upper limit on the duration of custody pending trial, which must not exceed one year for lesser offences and two years for serious offences; these periods may not be extended for any reason whatsoever; as a result of this measure, cases in which one or more accused persons have been remanded in custody will have to be given priority and investigated rapidly;

      g.       whenever it comes to light retroactively through a final decision (dismissal of charges or acquittal) that detention on remand was wrongful, full compensation must be awarded for the material and non-material damage; a state founded on the rule of law which deserves this epithet thus honours its most elementary obligations to human beings who have been unjustly imprisoned;

ii.       invite member states to scrupulously ensure the application of the principles contained in Recommendation No. R (80) 11, thus supplemented.

II. Explanatory memorandum

by Mr ROKOFYLLOS

I. Importance of the subject

1.       The detention of persons pending trial, that is to say the taking into custody, albeit only on remand (provisionally or for preventive reasons), of a person suspected of having committed an offence or of having been an accomplice in its perpetration, is a matter of the utmost gravity for a variety of reasons:

A.       The effects of custody pending trial

2.       Firstly because although such detention may be provisional or preventive it may cause irreversible or irreparable damage.

3.       Untried prisoners of a sensitive nature, unable to endure the humiliation of this stain on their honour, have been known to commit suicide without waiting to prove their innocence before the competent court or even the indictments chamber; others, overcome by an all too understandable excess of grief, distress, anger and indignation over their wrongful detention, have contracted painful, serious and sometimes incurable physical and in many cases mental illnesses. Aside from these exceptionally serious cases, we should not overlook the frequent cases of shattered academic careers, professional lives in ruins, companies made hopelessly insolvent as a result of the loss of reputation suffered by individuals forcibly uprooted from their social environment and imprisoned on suspicion of being the perpetrators of a crime or accomplices in an offence that lays them open to the moral censure and social opprobrium of a public whose opinion is swayed by the fact that a person has been deprived of liberty.

4.       Moreover, the prisoner's family members and their reputation may suffer similar abuse and most certainly dire consequences. The suspicion engendered by an act as serious as imprisonment reaches beyond the person charged with an offence, spreading almost automatically to anyone closely connected to the suspect.

5.       A further point to be borne in mind is the enormous and sometimes insurmountable practical difficulties encountered by untried prisoners in organising their defence (for example finding witnesses and gathering other evidence). We may add to this the weight of suspicion attaching to a person led away in handcuffs to a hearing by the police.

6.       Lastly, in certain obscure or doubtful cases the person charged with an offence is sentenced far more readily to prison terms not exceeding the duration of custody pending trial. There is every reason to believe that if the individual in question had not been in prison, he/she would have been found innocent, if only through being given the benefit of the doubt. Courts are sometimes inclined to veer in that direction on the grounds that the person charged will in any case be released when the period of detention on remand is deducted from the length of the prison sentence imposed. None of this reflects discredit on the investigating judge who ordered the detention or the other judicial authorities who continued it.

7.       The pernicious consequences of the detention of a suspect tend to spread, and the situation is considerably exacerbated by the fact that the media bring the matter to the attention of all and sundry. The slur cast on the individual's honour and self-respect becomes public knowledge. The fact of the matter is that from then on little doubt remains in the public mind as to the guilt of the unfortunate suspect, a certainty that nothing can shake thereafter — still less annul — for the simple reason that most people will never hear of the suspect's acquittal, a development that goes unnoticed because, save in exceptional cases, its media impact is, in the nature of things, much weaker. Moreover, there is nothing to link the two events in people's minds. And even if the link is sometimes made, doubts very frequently remain regarding the circumstances surrounding and the motives underlying the subsequent release, which may very easily be attributed to indulgence on the part of the victim, shortcomings of the law enforcement system, the shrewdness of the accused or the wiliness of his/her legal advisers! It is unfortunately very rare in daily life to find people willing to accept in all fairness and humility the explanation that a decision to place a person in custody pending trial was quite simply a mistake. We should therefore, to my mind, recognise the wisdom of the general opinion that anyone who has served time in prison, even if he/she is subsequently found to be innocent, remains tarnished and discredited.

B.       The presumption of innocence

8.       In addition, it should be noted that custody pending trial is a flagrant violation of the basic principle underlying any modern democratic system of law enforcement, namely the presumption of innocence. According to that principle, proclaimed most emphatically in Article 6, paragraph 2, of the European Convention on Human Rights, everyone shall be presumed innocent until definitively found guilty by the competent court in a judgment at last instance delivered after a fair trial. But custody pending trial occurs during the investigation stage, that is to say before the trial in question has even started!

9.       The task of reconciling the two notions and resolving the obvious contradiction is a demanding one but has to be addressed at the highest level, especially since the presumption of innocence, introduced relatively recently, has made unquestionable progress compared with the old system. From time immemorial, accused persons had been "quite naturally" presumed guilty simply by virtue of having been charged, so that the onus was on them to establish their innocence by every means available, including the most harsh (for example the ordeal by fire, "legally" imposed torture etc.), which was also the least convincing inasmuch as guilt was decided by the ability of the accused to endure certain forms of physical ill-treatment or to resist pain inflicted as a test.

10.       Human self-respect put a stop to these barbaric practices and introduced concern for the sound administration of investigative practices. People realised that suspects were often wrongly found guilty on the basis of preliminary information and evidence that did not always match the truth being sought through the investigation. In addition, those conducting the inquiry in order to unearth the truth sometimes tend to take their theories or their desire for proof, however noble the motivation, for serious and cogent evidence or even irrefutable proof. This unconscious slide into error by drawing conclusions hastily and prematurely may actually be encouraged by the behaviour of suspects who, panic-stricken by an accumulation of unfavourable appearances, often make mistakes that add to the suspicion surrounding them and the case for their defence.

11.       People have to realise once and for all that the risk of an incorrect decision is far greater, indeed more "natural", in the secluded and hurried context of a criminal investigation than at the end of adversarial legal proceedings conducted calmly in public. It is therefore the most basic common sense to insist on the presumption of innocence, a presumption that now exists in the legislation of almost all member countries of the Council of Europe (only Turkish law, to my knowledge, states that a person charged with an offence is "neither innocent nor guilty"; see Mirjam Berg's excellent report "Waiting for Justice", part 2, page 3, September 1985). This, of course, is a principle beyond dispute. At the same time, there are obviously cases in which it is extremely important, even vital, to arrest the persons concerned and take them into custody. The risk of their absconding and frustrating the course of justice, the risk of their committing other offences such as destroying evidence, terrorising or eliminating witnesses, or slaking their thirst for crime with virtual impunity (given the seriousness of the initial offence), or, lastly, the possibility of exposing the accused to acts of revenge by the victim, those closely associated with the victim or even society itself (lynching) are some of the factors that argue convincingly for a relaxation or even temporary waiving of the principle of presumed innocence.

12.       The sharp contradiction described above and the need to resolve it for purposes of reconciliation, a task that is risky by definition but indispensable in practice — all these factors we have mentioned make it absolutely essential to control and regulate custody pending trial.

13.       On the favourable or unfavourable outcome of this endeavour depend nothing more nor less than human freedom and dignity, the triumph of justice and the quality of democracy itself.

14.       We are clearly confronted with a basic problem lying at the very heart of the modern State, the rule of law and the workings of justice.

II. The notion of custody pending trial in the countries

of the Council of Europe

15.       It emerges clearly from the foregoing that custody pending trial must be viewed as a highly exceptional measure that is resorted to only in cases of extreme necessity and is always hedged around with safeguards designed to minimise the associated risks or redress their consequences.

16.       This basic principle has been set forth in the most categorical terms in Recommendation No. R (80) 11 of the Committee of Ministers to the member states of the Council of Europe, which states explicitly in paragraph 11, under the heading "General principles":

      "Being presumed innocent until proved guilty, no person charged with an offence shall be placed in custody pending trial unless the circumstances make it strictly necessary. Custody pending trial shall therefore be regarded as an exceptional measures and it shall never be compulsory nor be used for punitive reasons."

III. The principles which should govern the application

of custody pending trial

17.       The conditions governing the detention of persons awaiting trial, as established and shaped by legislation, case law and practice in the different countries concerned, are extremely varied and becoming even more so as new countries join the Council of Europe.

18.       Amid this profusion, the Council of Europe has always tried to play a unifying role to ensure more effective protection of human rights and fundamental freedoms. The relevant articles of the Convention, Recommendation No. R (80) 11 of the Committee of Ministers referred to above concerning custody pending trial, Recommendation No. R (87) 3 on European prison rules, and the case law of the Commission and Court of Human Rights in Strasbourg are of key importance in this connection.

19.       At the same time, legislation, case law and theory are constantly changing in most member countries.

20.       In the light of the very notion of detention pending trial, of the experience that has been accumulated, especially during the forty-year period since the entry into force of the Convention on Human Rights, of existing ideas and proposals, and of the criticism that has come from different quarters, we can, to my mind, already establish certain principles that must unconditionally govern the implementation of decisions concerning custody pending trial. These are principles rooted in European legal consciousness and its associated culture. I would define them as follows:

A.       Who can order the placement of a person in custody pending trial?

21.       The body empowered to order the placement of a person in custody pending trial cannot be anyone other than the judge, as a rule the judge conducting the investigation (investigating judge) or any other judge (one or more sitting together in chambers or at a public hearing) vested with such purely judicial authority.

22.       The seriousness of the decision, with its grave implications for the person charged with an offence, make this the only possible option. Admittedly, the Convention on Human Rights (Article 5, paragraph 3) mentions "a judge or other officer authorised by law to exercise judicial power", a formula reproduced in Recommendation No. R (80) 11 of the Committee of Ministers. In the Schiesser case (December 1979), the European Court considers that "Article 5, paragraph 3 leaves the Contracting Parties a choice between two categories of authorities ... the Convention ... presupposes that these authorities fulfil similar functions ... To sum up, the 'officer' is not identical with the 'judge' but must nevertheless have some of the latter's attributes, that is to say he must satisfy certain conditions each of which constitutes a guarantee for the person arrested ...". Clearly the Court is rightly attempting to fill a gap left open by the text of the Convention.

23.       There is every reason to believe that the question of the competent authority is crucial. I think it is at present vitally necessary to state in the most categorical terms that the judicial authority (investigating judge, indictments chamber or court) and that authority only — excluding the public prosecutor, the police or any other administrative or extrajudicial body — should be empowered to take a decision on custody pending trial. It is high time to put an end, once and for all, to any equating of categories in a field of such high sensitivity in terms of the safeguarding of human rights. It is interesting to note that, under Slovak law, the judge deciding the placement of a person in custody pending trial is excluded from further proceedings and cannot decide about the guilt of that person.

B.       The procedure to be followed

24.       It is essential that a purely judicial procedure be followed for the placement of a person in custody and for the review and continuation of any such measure. This procedure should provide, as a minimum, for the following to ensure that the rights of the person charged with an offence are effectively safeguarded:

      i.       Custody may not be ordered before the person concerned has been heard by the competent authority. To that end, the system introduced in France through Act No. 84-576 of 9 July 1984 and Act No. 89-461 of 6 July 1989 seems to be the most effective as a basic minimum. Under this legislation, the following two conditions must be fulfilled:

      Firstly, "the investigating judge who is contemplating the placement of the accused in custody pending trial shall inform the latter of his right to be represented by a counsel of his choice or one appointed by the court; he shall also inform him of his entitlement to a period of time to prepare his defence".

      Secondly, "the investigating judge shall rule on the matter at a hearing in chambers following an adversarial debate in which he hears the arguments of the public prosecutor's department, the observations of the accused and, where appropriate, those of his counsel".

      ii.       It goes without saying that the accused and his/her lawyer must be entitled to take cognisance of the entire file and to communicate freely with each other.

      They shall also be entitled to take copies of the decision regarding custody pending trial, the record of which must in all cases state the reasons underlying the decision. It also goes without saying that the person charged with an offence must be informed of his/her rights.

      iii.       A right of appeal to a higher judicial authority (the indictments chamber or the court itself) against the decision concerning custody must be recognised in all cases so that the legality and also the appropriateness (merits) of the decision can be verified at a higher judicial level.

C.       The grounds for custody pending trial

25.       Custody pending trial can be ordered by the competent judicial authority only if, following the appropriate procedure described above as one of these basic rules, it concludes that there is grave, serious or overwhelming evidence giving rise to strong suspicion etc, to use the terms frequently used in national legislation, of a person having committed or participated in a criminal offence of some seriousness.

26.       This conviction is, of course, one of strong probability and not of certainty with regard to the guilt of the person being prosecuted.

27.       It should, however, be noted that, although certainty cannot be demanded (as in the case of the proceedings before the trial court), the competent judge is not authorised to use discretionary powers lightly, inappropriately or rashly or with a view to obtaining confessions through intimidation and the anxiety that such a coercive measure may generate.

28.       The offence that the person is charged with should not be just any offence but an offence of some seriousness that may justify depriving him/her of liberty at an early stage. In some cases national legislation makes no provision for a minimum sentence (for example Germany, United Kingdom, Ireland). However, there seems to be a general tendency to allow custody pending trial only if a person is suspected of having committed a criminal offence of some seriousness, making him/her liable to a minimum sentence of, for example, three months (Belgium, Greece)1, six months (Norway), two years (France) or four years (Netherlands). On the other hand, some legislation (for example, Austria, Denmark, Germany) states explicitly that custody pending trial should not be resorted to in cases where it would be disproportionate to the seriousness of the offence or the probable sentence. It should also be noted that although the legislation in some cases (Belgium, Luxembourg, Netherlands) establishes a minimum, in principle, with respect to the seriousness of the offence, it allows custody pending trial for any criminal offence when the suspect has no fixed abode in the country or refuses to identify him/herself. The Scandinavian countries authorise custody pending trial in the case of non-residents if they are considered likely to abscond (see Mirjam Berg's excellent report on custody pending trial, September 1985, part 1, pages 8 and 9).

29.       On this point, Recommendation No. R (80) 11, referred to above, mentions proportionality indirectly but clearly in connection with the sentence likely to be served in the event of conviction so that custody may be discontinued (Section II, 13). Needless to say, if such disproportionality exists from the outset, judges should not consider themselves authorised to order custody.

30.       Under present circumstances, I find it important to recommend:

      a.       That the minimum penalty incurred to which the person concerned is liable should be of considerable severity (say a prison term of at least one year);

      b.       That the proportionality rule should be applied over and above this requirement in the case of offences exceeding the minimum established;

      c.       That all provisions that discriminate against non-residents or foreigners should be proscribed in the case of offences falling beneath the minimum established.

31.       It is particularly important to stress that the foregoing conditions are necessary but not sufficient. There must also be serious reasons for believing that one or more of the following grounds exist:

      —da       nger of the person concerned absconding;—

      —da       nger of his/her interfering with the course of justice;—

      —da       nger of his/her committing a serious offence.(S

(See Recommendation No. R (80) 11, II.3).

32.       Some national legislation implies that there is a presumed danger of suspects absconding if they are foreign or non-resident or if the offence involved is of some seriousness. But the Court of Human Rights does not consider that the seriousness of the offence alone warrants detention based on the danger of absconding. Other factors, especially those relating to "the character of the person involved, his morals, his home, his occupation, his assets, his family ties and all kinds of links with the country ..." must also be taken into account (Neumeister case).

33.       Some countries add other grounds to those mentioned in the recommendation; for example, they authorise custody pending trial if it is necessary to keep the peace (Belgium, France, Portugal), to protect the suspect (France) or to complete a report on the suspect and his/her character (United Kingdom) or in serious and exceptional circumstances (Belgium).

34.       Similar provisions are made under national legislation when the suspect is "dangerous" (for example in Italy or in Turkey, where such a presumption of absconding existed as regards persons accused of serious crimes punishable by a sentence of more than ten years' imprisonment; the new Law No. 3842/1.12.1992 also requires the existence of serious reasons to think that the person concerned would try to abscond); this is not really a separate case but simply a combination of the danger of interference and that of committing a further serious offence. There may also be an element of what French law describes as "keeping the peace".

35.       Under some national legislation, no grounds are required if the offence is very or particularly serious (Belgium, Denmark, France, Finland, Italy; see also Recommendation No. R (80) 11, II.4) or if the suspect is a non-resident (for example Belgium and Luxembourg).

36.       I think that we should firmly insist, as the Parliamentary Assembly of the Council of Europe, that in all cases without exception the judge should infer the combination of such dangers from the facts and circumstances of each case, leaving out of account all legal fictions or presumptions.

37.       We must come to realise, in my view, that custody pending trial should never be used for punitive reasons, to quote the excellent formula used in Recommendation No. R (80) 11, I.1. It should not represent an instalment deductible from the expected prison sentence; on the contrary, it should be ordered only if it is unequivocally useful and necessary for the smooth progress of the proceedings to ensure that justice is done, and it should be ruled out whenever justice can be done without hindrance in spite of the suspect being at liberty.

38.       It is clear at all events that, as a matter of course and because of the relativity of the notion of danger, investigating judges have wide discretionary powers in the matter, enabling them to order custody pending trial in virtually all cases in which they consider such coercive action to be appropriate. They should not be propelled further in that direction by being forced to act even in cases where their conscience tells them it would be wrong to resort to detention.

39.       Lastly, it should be very strongly emphasised that even where all the factors mentioned above concur, custody pending trial should never be mandatory. Before ordering it, the competent judicial authority should consider whether custody pending trial can be avoided by employing one or more alternative measures.

40.       A comparatively long list of alternative measures may already be found in Recommendation No. R (80) 11 of 27 June 1980 (Section III.15). It would seem useful to reproduce the text here in its integrality:

      "When examining whether custody pending trial can be avoided, the judicial authority shall consider all available alternative measures, which may include the following:

      —a        promise of the person concerned to appear before the judicial authority as and when required and not to interfere with the course of justice,—

      —a        requirement to reside at a specified address (for example the home, a bail hostel, a specialised institution for young offenders, etc.) under conditions laid down by the judicial authority,—

      —a        restriction on leaving or entering a specified place or district without authorisation,—

      —an       order to report periodically to certain authorities (for example court, police, etc.),—

      —su       rrender of passport or other identification papers,—

      —pr       ovision of bail or other forms of security by the person concerned, having regard to his means,—

      —pr       ovision of surety, —

      —su       pervision and assistance by an agency nominated by the judicial authority.Su

      Such measures shall be notified in writing and shall be clearly explained to the person concerned, who shall also be warned that he might be taken into custody if he fails to comply with them.

      A person on whom any alternative measure is imposed shall, in so far as that measure requires, have the benefit of the same safeguards as are accorded under the present recommendation to a person placed in custody pending trial."

D.       The duration of custody pending trial

41.       The question of the duration of custody pending trial — once it has been ordered in the light of the criteria set out above — is a major problem, since the longer it lasts the greater the difficulties encountered by suspects vis-ā-vis their work, their families, preparation of their defence, maintenance of nervous or mental balance, loss of reputation etc.

42.       This question has lost none of its urgency for the simple reason that there is unquestionably a general upward trend in average duration. Far too many suspects spend long periods in prison awaiting a sentence that in many cases merely coincides with the duration of custody, as eloquently and astutely noted in the conclusion to the "draft report on the conditions under which people are detained pending trial" of 10 October 1990, page 17.

43.       The case law of the European Court and Commission of Human Rights has not succeeded in arresting or effectively containing this trend. In the absence of a clear-cut provision in the Convention, the Court and Commission have made do with abstract and unavoidably general or even vague phraseology. Article 5, paragraph 3 of the European Convention on Human Rights states that "Everyone arrested or detained ... shall be entitled to trial within a reasonable time or to release pending trial".

44.       Given this wording, the European Commission and Court of Human Rights have always refused to set a mandatory time limit beyond which deprivation of liberty would cease to be compatible with the Convention. In the absence of such a limit, European judges have had to work out a method of establishing, on a case-by-case basis, whether the duration of custody has been excessive.

45.       The assessment technique adopted takes into account, in particular:

      —Ab       normal delays in the investigation procedure, in preparing the bill of indictment or in preparing the trial and hence the unsoundness of the grounds adduced;—

      —Th       e complexity of the case, which may serve as an excuse for the extension of custody;—

      —Th       e danger of the suspect absconding and the risk of destruction of evidence;—

      —Th       e conduct of the suspect and its possible role in delaying progress in the investigation of the case;—

      —Th       e particular dispatch demanded of the judicial authorities in proceedings involving persons in custody pending trial.46

46.       As far as national legislation is concerned, I feel it should be noted that while provision is generally made for judicial control in the case of an extension, the lawmakers in member countries rarely set an absolute time limit for custody pending trial. I wish to make special mention in this connection of Greece, whose Constitution itself imposes an upper limit that may not be exceeded under any circumstances. Article 6, paragraph 4 of the Greek Constitution makes the following explicit provision:

      "The law shall establish a time limit in respect of custody pending trial, which shall not exceed one year for serious offences and six months for lesser offences. In very exceptional cases, the time limits may be extended for six and three months respectively by a ruling of the competent indictments chamber."

47.       It follows that the duration of custody can never exceed eighteen months for serious offences and twelve months for lesser offences. On expiry of these time limits, the competent prosecutor must order the immediate release of the person held in custody (Article 287, paragraph 3 of the Greek Code of Criminal Procedure).

48.       Of course, this system carries the risk of early release of dangerous criminals well before trial, and such cases have actually occurred — on very rare occasions — in Greek legal practice. On the other hand, this Draconian rule in reverse is a precious safeguard for persons in custody, be they Greeks or foreigners, civilians or members of the armed forces. Greek judges are thus required to give absolute priority to cases involving custody pending trial so that the trial on the merits takes place before the above-mentioned time limits expire. It seems to me that this is only fair: the expeditious procedure from which the suspects benefit counterbalances the fact that they have been placed in custody on grounds of probability and in spite of their presumed innocence!

49.       This constitutional provision means that legislators are not even empowered to extend the time limits in question; they may, on the other hand, shorten them further.

50.       In addition to the Greek case, mention should also be made of Austria (the law sets a limit of six months, extendable to two years), Scotland (a maximum of 110 days prior to the beginning of the trial), Spain (three months to four years) and Portugal (up to four years and six months). Under Slovak law, the maximum period of detention pending trial may not exceed two years; however, if the release of the accused may threaten the life or health of other persons or violate fundamental rights and freedoms of citizens, the period of custody may be prolonged by the Supreme Court of Slovakia.

51.       Aside from these somewhat exceptional cases, legislation in most countries fails to mention any time limits. In practice, however, such restrictions as more frequent hearings and stricter controls before ordering an extension may be encountered. Some countries (for example Germany and Switzerland) have introduced a rule whereby the duration of custody should not be disproportionate to the sentence that will probably be handed down or that is prescribed by law. Others (for example France) impose a time limit for lesser offences (two years, Article 145-1 of the French Code of Criminal Procedure) but leave scope for indefinite annual extensions in the case of serious offences (Article 145-2 of the French Code of Criminal Procedure). It may be noted in passing that France was recently convicted by the European Court for having extended a period of custody beyond five years (in the case of a suspect held for criminal offences relating to the nationalist struggle in Corsica).

E.       The conditions under which people are detained pending trial

52.       The preventive nature of custody pending trial, which is based on the assumption that suspects will probably be found guilty, in other words the fact that such custody occurs before the judgment on the merits and affects persons presumed innocent who subsequently may well be acquitted or have the charges against them dismissed, should have an across-the-board impact on the conditions under which those persons are detained. The purpose of custody pending trial cannot be anything other than to keep them within reach of the law. Steps must be taken, moreover, to prevent — or at least minimise — the various kinds of abuse to which such custody may give rise. The rules governing it must therefore serve the foregoing purpose. It follows that custody pending trial should differ in a great variety of respects from imprisonment on grounds of a criminal conviction:

      —Pl       aces of detention separate from prisons so as to avoid any mixing of persons detained on remand and convicted prisoners and any confusion in people's minds as to the real nature of custody pending trial;—

      —A        regime in these places of detention that allows inmates to wear civilian clothes, facilitates the preparation of their defence and permits contacts (visits, telephone calls, fax transmissions etc.) that allow them to help run their office, shop, company or other occupational activity and to continue their family life as far as possible.53

53.       In practice, various constraints, due in particular to the constantly growing numbers of detainees, have unfortunately impeded the application of this special regime, even where it is a legal or statutory requirement, and led to a deterioration of prison conditions in general. For example, the Parliamentary Assembly of the Council of Europe, in its motion for a resolution dated 5 May 1987 (Doc. 5732), states that it is "shocked and dismayed at the continuing poor conditions for prisoners awaiting trial in member states, described in the aforementioned report [the report of the Quaker Council for European Affairs, 'Waiting for Justice'] as 'generally worse than those for people already convicted and serving a sentence'".

54.       Given that the situation has not improved in the meantime, quite the contrary, I think that the Assembly should take up the matter again in the light of the present report!

F.       Compensation in the event of wrongful detention

55.       Considering that the decision to place a person in custody pending trial is based on evidence rather than proof, that is to say on a line of argument concerning the probable guilt of the suspect, it is normal, indeed statistically certain, that in a number of cases detention will prove to have been inappropriate and hence unjust. These are cases in which the charges will subsequently be dismissed or the detainee will be acquitted by the court. This development retroactively contradicts the assumption of guilt made by the judicial authorities responsible for the investigation when the suspect was taken into custody. In other words, the risk that is undoubtedly built into a system that permits suspects to be taken into custody — for eminently practical reasons — without incontrovertible proof of their guilt becomes a reality. It is certainly a risk inherent in any investigation, hence an unavoidable or perhaps even a normal risk.

56.       The fact remains, however, that it is a risk that has produced bitter fruit, poisoning the lives of individuals snatched from their family and their social and occupational environment and deprived of their freedom and their good name for an indefinite period. All these sacrifices are inflicted on them in the name of justice, which must be allowed to run its course. So be it! But when these sacrifices are found to have been wrongfully imposed on innocent people, it becomes absolutely necessary for the state to compensate in full for the material damage and moral injury occasioned by wrongful detention.

57.       It is for this reason that all or almost all modern legislation provides in principle for such compensation. In practice, however, narrow self-interest tends to prevail. The innocents who are vindicated are few and far between. In some cases, they are told that their detention was not unjustified because of the weight of evidence against them at the time. The investigating judge who ordered the detention was therefore not at fault. In other cases, some false step on their part is said to have led to their detention or had an influence on the decision, and so on and so forth!

58.       I think it is high time for the Assembly to raise its voice to ensure that these shocking situations become a thing of the past. Whenever it comes to light retroactively through the final decision of a court of law (dismissal of charges or acquittal) that an innocent person has been placed in custody, that person must be fully compensated. It is the only way for a state that claims to be founded on the rule of law to honour its basic obligations to the human beings who, although innocent, have been — rightly or wrongly -humiliated and scorned, literally sacrificed so that investigative procedures become or seem to be effective.APPENDIX I

Summary of replies to the questionnaire2

on detention of persons pending trial

sent to national delegations

1.       The following countries have answered the questionnaire: Austria, Bulgaria, Belgium, Cyprus, Czech Republic, Slovakia, Denmark, Finland, Germany, Greece, Hungary, Ireland, Iceland, Italy, Liechtenstein, Luxembourg, Norway, Netherlands, Poland, Portugal, San Marino, Spain, Sweden, Switzerland, Turkey and United Kingdom.

2.       The authority empowered to order detention on remand is the investigating judge in all countries except the Czech Republic and Sweden, where the State Counsel General has authority; in Bulgaria it may be the investigating judge or the prosecutor. In the United Kingdom it is a court. In virtually all countries the accused may have the assistance of a lawyer. This is mandatory in Portugal, Sweden and France.

3.       Substantive grounds for detention on remand

      Detention on remand is ordered where there is substantial evidence of guilt and/or risk of absconding, destroying evidence or reoffending.

      However, fulfilment of these conditions does not suffice in several countries, where the detainee must be liable to a prison sentence of at least one year (Belgium) to ten years (Bulgaria).

      Other grounds are invoked for ordering detention on remand, the most common being uncertain identity or foreign nationality (Portugal, Sweden).

      Detention on remand is hardly ever mandatory, except in Bulgaria in cases where the applicable penalty is at least ten years' imprisonment, and likewise in Portugal (at least eight years' imprisonment).

      Most legislations prescribe alternatives to detention on remand, in particular bail accompanied by further conditions such as restriction on freedom of movement (Finland), surrender of passport, etc.

      In Switzerland, the situation varies between the cantons. However, detention on remand can be described as more or less the rule where the stipulated conditions are fulfilled.

      In Liechtenstein, it is mandatory in certain cases.

      It is an exceptional measure in Slovakia, Greece and Hungary. In the Netherlands it is not exceptional, but neither is it mandatory.

4.       The duration of detention on remand is limited in most countries except Belgium, Finland and Iceland. In Luxembourg the law does not prescribe any limitation, but a principle of proportionality has been established by court practice.

      As regards Turkey, the recent Law No. 3842, published in the Official Gazette on 1 December 1992, provides that detention on remand must not exceed two years, except for offences falling within the jurisdiction of the security courts.

      Duration varies according to the country and the nature of the charges warranting remand:

      One week in Sweden

      Four weeks in Norway and Hungary (one month before the indictment)

      Three months: Cyprus

      Six months: Germany, Switzerland

      One year: Czech Republic, Greece

      Two years: Austria, Portugal, Slovakia, Spain (where the applicable penalty is a long prison sentence).

5.       Places of detention

      In the vast majority of countries the principle is that persons detained on remand are held separately from convicted persons, but in practice over-population prevents separation from being maintained. The sole exceptions are Luxembourg, where remand prisoners are kept in remand centres, and Sweden.

      Minors are remanded only as an exceptional measure in certain countries (Denmark, Finland, Liechtenstein, Luxembourg, Netherlands, Sweden, Switzerland). They are assigned to special establishments. Minors below eighteen years of age are not remanded in Finland, Norway, Cyprus, Sweden and Switzerland.

      The minimum age is seventeen in the United Kingdom (with some exceptions for youths over fifteen years of age), sixteen in Ireland and fifteen in Turkey.

6.       Numbers of persons detained on remand and persons given prison sentences during the last five years

 

Number of remand prisoners over five years

Number of convicted prisoners

over five years

Austria

       42 300

       39 700

Bulgaria

       19 982

       8 479

Belgium

       48 896

       21 729

(23 223 other categories)

Cyprus (4 years)

       584

       366

Czech Republic

       50 050

       99 363

Slovakia

       15 453

       13 682

Denmark

       27 536

      unknown

Finland

      11 592

(police custody excluded)

      unknown

Germany

      139 147

       99 007

Greece

?

      ?

Hungary

      285 077

      ?

Liechtenstein

       1 868

       188

(serious cases)

Luxembourg

       1 795

       1 041

Norway

       16 246

       49 562

Netherlands

       64 485

       79 646

Portugal

       13 675

       17 222

Spain

       32 869

       71 643

Sweden

       unknown

(4 years: 63 977)

Switzerland

      5 947 (4 years)

18 112 (5 years)

7.       Average duration of detention on remand

      In many countries it is not possible to distinguish according to whether detainees are charged with serious or lesser offences.

Austria: 70-80 days.

Bulgaria: 2-6 months.

Belgium: 539 days for serious offences, 78 days for lesser offences.

Slovakia: 250 days for serious offences, 110 days for other offences, 56 persons were detained for trial for over 5 years.

Finland: about 2 months. Detention on remand exceeded a term of several years for 2 or 3 persons per year. 1 to 7 of the persons detained for trial were acquitted.

Germany: 1-12 months.

Greece: 5-16 months.

Hungary: about 70 days. Detention on remand exceeded 1 year for 14 to 23 persons

Iceland: 25 days.

Liechtenstein: 2-6 months. Nobody was detained for more than one year.

Luxembourg: 5-7 months. 15 persons were compensated for groundless detention on remand.

Netherlands: about 70 days.

Portugal: about 9 months.

Sweden: no figures. Between 200 and 300 persons per year are compensated after groundless detention on remand.

Switzerland: about 45 days.

United Kingdom: 8 weeks. 50 persons were remanded for over 2 years.

8.       In all countries, there is provision for compensating persons who have been wrongfully detained. Only in Liechtenstein is this automatic. Elsewhere, legal proceedings are required.

APPENDIX II

Questionnaire3

on the conditions under which people

are detained pending trial

1.       What are the grounds on which detention on remand may be ordered?

      a.       Perpetration of an offence of some seriousness (how serious?);

      b.       Existence of substantial evidence of the accused's guilt;

      c.       Risk of abscondence, destruction of evidence, recidivism.

2.       Is detention compulsory when the above conditions, in particular conditions a. and b. are fulfilled, or is it an exceptional measure?

3.       Who is empowered to take the decision (investigating judge, indictments chamber, other authority)?

      a.       By what procedure?

      b.       Is a lawyer appointed automatically and is a discussion in the presence of both parties (public prosecutor's department and the defence) compulsory?

4.       What alternatives are there to a detention on remand (for instance, is there provision for bail?)

5.       Is the duration of detention on remand limited under the Constitution or by law?

      If not, what is the judicial practice?

6.       Is there provision for compensation for people who have been wrongly detained?

      a.       Is such compensation automatic or are legal proceedings necessary?

      b.       What are the criteria for the award of such compensation?

7.       Are people detained on remand held with convicted persons or separately?

8.       What conditions apply to the detention on remand of minors.

9.       How many people have been detained on remand and how many have been given prison sentences during the last five years?

10.       What is the average duration of detention on remand

      a.       in the case of persons accused of serious offences?

      b.       in the case of persons accused of lesser offences?

11.       In how many cases have people been detained on remand for more than a few years?

12.       What percentage of people detained on remand are acquitted?

13.       How many people have been compensated for wrongful detention on remand?       Reporting committee: Committee on Legal Affairs and Human Rights.

      Budgetary implications for the Assembly: none.

      Reference to committee: Doc 6949 and Reference No. 1903 of 4 November 1993.

      Draft recommendation adopted by the committee on 17 May 1994 with 21 votes in favour, 2 against and 9 abstentions.

      Members of the committee: Lord Kirkhill (Chairman), MM. Schwimmer, Jansson, (Vice-Chairmen), Amaral, Andriukaitis (Alternate: Bobelis), Arnalds (Alternate: Björn Bjarnason), Bentkowski, Berti, Bindig, Borg (Alternate: Attard Montalto), Bučar, Candal, Columberg, Croze, Deasy, Espersen, Fogaš, Franck, Frunda, Fry, Fuhrmann, Galanos (Alternate: Hadjidemetriou), Guenov, Guzzetti, Hagård, Mrs Haller, Mrs Holand, MM. Hunault, Inönü, Mrs Jaani, MM. Jaskiernia, Karas, Karcsay, Kempinaire, Mrs Lentz-Cornette, MM. Loutfi, van der Maelen, Maginas, Polli, Rathbone, Robles Fraga, Rodotā, Rokofyllos, von Schmude, Severin, Mrs Soutendijk-van Appeldoorn, MM. Soysal (Alternate: Mimaroğlu), Stoffelen (Alternate: Jurgens), Tabajdi, Trojan, Vinįon (Alternate: Jeambrun), Vogel, Mrs Wohlwend, Mr Zapatero.

      N.B.       The names of those members who took part in the vote are printed in italics.

      Secretaries to the committee: Mr Plate, Ms Coin and Ms Kleinsorge.

1 1In Greece the very recent Law No. 2207/1994 (published on 25 April 1994) raises this minimum to one year (Article 2, paragraph 1); it also specifies that if the accused is not an adult this minimum would be ten years' imprisonment (Article 2, paragraph 4).

2 1See Appendix II.

3 1Approved by the committee on 27 May 1991 and sent to all chairmen of national delegations for reply and to be returned to the secretariat of the Committee on Legal Affairs and Human Rights before 15 September 1991.

      Copy to Secretaries of national delegations.