The European Court of Human Rights (ECtHR) has reviewed existing case law in relation to pre-trial detention in the case of Buzadji v the Republic of Moldova. The decision of the Grand Chamber holds that although “reasonable suspicion” is sufficient for initial detention of an accused, further detention must be justified by “relevant and sufficient reasons” in addition to the lawful grounds already enumerated in European case law.
In Buzadji, the applicant was a businessman arrested in May 2007 and formally charged with defrauding a State company of which he was a director. He was placed in detention pending trial given the gravity of the charges against him, the complexity of the case and a risk of collusion. The detention was then extended on a number of occasions, for essentially the same reasons, until July 2007 when the national courts accepted Mr Buzadji’s request to be placed under house arrest. He remained under house arrest until March 2008 when he was released on bail.
Relying in particular on Article 5 & 3 (right to liberty and security/entitlement to trial within a reasonable time or release pending trial) of the ECHR Mr Buzadji complained that the domestic court failed to give relevant and sufficient reasons for his detention pending trial for ten months. He argued the prosecution failed to show that there was “reasonable suspicion” to detain him and that they should have taken into account his good character, permanent residence in the country and his cooperation with the investigation since 2006.
The Government argued that the decisions to detain Buzadji and prolong detention were based on “relevant and sufficient” reasons even if they did appear vague and abstract. They reiterated the arguments made in the initial case and that the decisions were based on the complexity of the case, the risk of Buzadji interfering with the criminal case and colluding with his sons.
The ECtHR examined how other Member States have decided on the issue of pre-trial detention, particularly prolonged detention. Arrest and detention periods before trial are strictly limited in time and that most of the Member States require at least one additional “relevant and sufficient” ground in addition to the initial “reasonable suspicion” for detention. The most common condition include those which were put forward by the prosecution in the initial case such as risk of absconding, ensuring presence at trial, risk of reoffending and obstruction of justice. The ECtHR therefore concluded that a “reasonable suspicion” is not sufficient to justify prolonged detention and that from the first application, “the national judicial authorities must convincingly establish the additional grounds justifying that detention.”
The ECtHR assessed the application on the basis that Article 5 of the ECHR is one of the most fundamental rights to protect a person and that one of the “most common types of deprivation of liberty is detention pending trial.” The ECtHR stated that established case law provides “the persistence of a reasonable suspicion is a condition for the validity of the continued detention but after a certain lapse of time it no longer suffices.” In deciding whether there has been a certain lapse of time, the ECHR will determine whether the grounds cited continue to justify deprivation of liberty and if these grounds are “relevant and sufficient”, did the authorities display “special diligence”.
The ECtHR acknowledged that it is the provisional detention of the accused that must not be prolonged beyond a reasonable time and it is at this “certain lapse of time” that “relevant and sufficient” reasons to detain are required. The Court acknowledged that they needed to clarify the case law in this regard. The Court differentiates between the time frames of “first limb” and “second limb” of Article 5(3) where the former requires an accused to be brought “promptly” before a judicial officer after arrest and being detained on a reasonable suspicion and the latter being that an accused be released after a “certain lapse of time” if “relevant and sufficient” grounds are not given. However, the Court states that they should be synchronised and that “it implies a requirement on a judicial officer to give “relevant and sufficient” reasons for detention – in addition to reasonable suspicion – applies already at the time of the first decision ordering detention on remand, that is to say “promptly” after arrest.”
The ECtHR noted that in the initial case, the prosecutor relied only on collusion and seriousness of the offence and that the risk of absconding and influencing witnesses were implausible. The appeal by Buzadji was dismissed without any consideration of his arguments by the courts. The ECtHR observed that the additional reasons relied on in the first place for Buzadji’s detention were not relied on when it came to prolonging his detention.
A recent report of NGO Fair Trial International observed that in the case of pre-trial detention, detention would be ordered in a situation where more weight would be given to abstract reasons such as seriousness of the offence rather than lawful grounds attributable to the specific circumstances of the accused’s case. With further clarification on the law mentioned above, it enables domestic courts to make better informed decisions on whether an accused should be detained before trial, and the fact that judicial officers must exercise “special diligence” while making these decisions improves the standards of domestic courts.
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