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Reply to Recommendation | Doc. 14020 | 18 April 2016
Abuse of pretrial detention in States Parties to the European Convention on Human Rights
1. The Committee of
Ministers has carefully examined Parliamentary Assembly Recommendation 2081 (2015)
on “Abuse of pre-trial detention in States Parties to the European
Convention on Human Rights”, which it has transmitted to the Steering
Committee for Human Rights (CDDH) and the European Committee on
Crime Problems (CDPC), for information and possible comments and
to the Council of Europe Commissioner for Human Rights for information.
2. The Committee of Ministers draws attention to paragraph 1
of Article 5 of the European Convention on Human Rights, which guarantees
the right to liberty and security of person. It recalls that the
purpose of this article is to prevent arbitrary or unjustified deprivations
of liberty and that the right to liberty and security is of the
highest importance in a democratic society. Although possible limitations
to this right are set out in paragraph 1, the Committee recalls
Article 18 of the Convention, which prohibits the restrictions permitted
to the Convention’s rights and freedoms from being applied for any
purpose other than those for which they have been prescribed.
3. The Committee of Ministers also draws attention to paragraph
3 of Article 5 of the European Convention on Human Rights, which
states that “everyone arrested or detained … shall be entitled to
trial within a reasonable time or to release pending trial”. Pre-trial
detention in States Parties to the European Convention on Human
Rights must therefore meet this standard, interpreted in the light
of the case law of the European Court of Human Rights. Furthermore,
everyone detained has the right, under paragraph 4 of Article 5,
to take proceedings by which the lawfulness of his/her detention
shall be decided speedily by a court and his release ordered if
the detention is not lawful. In particular, persons detained pending
trial must be presumed innocent until such time as they are convicted
and any pre-trial detention must not exceed a reasonable time.
4. Based on well-established case law, numerous judgments of
the European Court of Human Rights have revealed violations of these
requirements of the Convention. Following these judgments, reforms
are in progress in several member States under the supervision of
the Committee of Ministers. The Committee of Ministers also recalls
that based on the Court’s judgments, several member States have
undertaken successful reforms to tackle systemic issues identified
by the Court in respect of the detention on remand, which have resulted
in the Committee of Ministers closing the supervision of execution
of judgments in respect of those States.
5. Furthermore, the Committee of Ministers recalls its Recommendation Rec(2006)13 to member States on the use of remand in custody, the
conditions in which it takes place and the provision of safeguards
against abuse, and its Recommendation Rec(2006)2 to member States on the European Prison Rules, the appendix to
the latter providing detailed information on the minimum standards
for the treatment of all prisoners. It notes that the Council of
Europe Annual Penal Statistics (SPACE Statistics) are also an important
tool in monitoring pre-trial detention, in particular regarding
the representation of foreign nationals.
6. The Committee of Ministers recalls that continued consideration
of the conformity of national systems with the requirements of the
Convention generally, and through the process of execution of judgments
in particular, provides important opportunities to integrate European
standards with national law and practice. On this issue, it refers
to its Recommendation Rec(2004)5 to member States on the verification on the compatibility of
draft laws, existing laws and administrative practice with standards
laid down in the European Convention on Human Rights.
7. The Committee of Ministers welcomes the recent research report
regarding pre-trial detention in the European Union, co-authored
by a member of the CPT. In line with the Assembly recommendation,
it encourages the relevant bodies of the Council of Europe to co-operate
with the European Union on these and related issues on the basis
of the standards laid down in the European Convention on Human Rights.
8. The Committee finally notes that the CDPC is currently in
the process of finalising a White Paper on prison overcrowding which
will reflect the actual situation in Europe, including regarding
the excessive use of pre-trial detention. It includes proposals
for action and measures to be taken by national authorities.