Length of periods on remand
01 January 1991
Length of periods on remand
bacdoc September=1992
Kemmache v France (27.11.91) Series A, Vol 218
European Court of Human Rights
Facts
The applicant underwent a number of periods on remand, totalling
nearly three years.
Decision
An arrest based on reasonable and continuing suspicion that the
person has committed an offence is initially sufficient to
justify detention. But, after a lapse of time, other grounds are
necessary. Serious indications of guilt are undoubtedly relevant,
but cannot justify such long periods of detention. The
seriousness of an offence also justifies detention, as does the
risk of interference with witnesses, but such risks decline over
time. The danger of repetition of the offence is also relevant.
Lastly, the risk of the suspect absconding is a factor, but this
must be based on an assessment of the real risk. Of course, the
length of proceedings is often also affected by the complexity
of the case. The period in this case breached article 5(3).
The total period that the proceedings had lasted by the time the
court considered the case was 8 1/2 years, including appeals
relating to bail. The court concluded that, although it had taken
16 months 2 weeks for the investigating judge to forward the file
to the prosecuting authorities, this period was not excessive,
but the later periods breached the right to trial within a rea-
sonable period.
Comment
There have been a number of other cases demonstrating the court's
view of article 5(3). Periods of pretrial detention of 2 years
1 month (in Toth v Austria (12.12.91)) and 3 years 2 months (in
Clooth v Belgium (12.12.91)) have also been held to violate
article 5(3).
The significant delays which occur in some other European systems
mean that pre-trial delays in Britain and Northern Ireland are
unlikely, in most cases, to breach the European Convention.
Right to liberty
EC Europe Law Civil liberties
Legal Action, John Wadham (legal officer Liberty)