Definitions of key legal terms

Transcription

1 APPLYING FOR RELEASE PENDING TRIAL This leaflet cvers: Infrmatin abut FTI Definitins f key legal terms Infrmatin n release pending trial This bklet was last updated in February 2013

2 Abut Fair Trials Internatinal Since 1992 Fair Trial Internatinal has wrked fr the better prtectin f fair trial rights and defended the rights f peple facing criminal charges in a cuntry ther than their wn. Our visin is a wrld where every persn s right t a fair trial is respected, whatever their natinality, wherever they are accused. Fair Trials Internatinal was established t help peple arrested utside their wn cuntry t defend their right t a fair trial. Every year we help hundreds f peple and their families t navigate a freign legal system by ffering practical advice, including cntacts f lcal lawyers; guidance n key issues encuntered by peple arrested abrad; and basic infrmatin n different legal systems and lcal surces f supprt. As a charity, we d nt charge fr any f the assistance that we prvide. We believe that respect fr fundamental rights and the rule f law are the hallmarks f a just sciety and that the right t a fair trial is at the heart f this. Sadly t many shcking cases f injustice demnstrate hw, time and again, this mst basic human right is being abused. We fight against injustice by lbbying fr the legal refrms needed t ensure that the right t a fair trial is respected in practice. Wrking with ur clients and internatinal netwrks, we als campaign fr changes t criminal justice laws which are being abused and verused. T find ut mre abut hw FTI can assist yu, please cntact ur legal team (cntact details n the back cver). Fair Trials Internatinal is a registered charity (N ) and is registered with limited liability in Fair Trials Internatinal February This nte is intended fr infrmatin purpses nly and des nt cnstitute legal advice. Take lcal legal advice n yur specific situatin.

3 England and Wales (N ). We are a nngvernmental rganisatin; as such, we are a whlly separate and independent rganisatin frm the Freign and Cmmnwealth Office. If yu require this leaflet in large print, please cntact us at the address n the back cver. Fair Trials Internatinal February This nte is intended fr infrmatin purpses nly and des nt cnstitute legal advice. Take lcal legal advice n yur specific situatin.

4 Applying fr release pending trial The aim f this fact sheet is t prvide general infrmatin n alternatives t imprisnment befre and during trial and practical tips n hw t increase yur chances f being released frm custdy. It als sets ut a list f questins that shuld be discussed with a lcal lawyer. The fact sheet des nt cnstitute legal advice. Further infrmatin n lcal laws regarding detentin r release prir t yur trial is available fr sme cuntries frm Fair Trials Internatinal. Definitins Bail: This wrd can have several meanings depending n the cuntry in which yu are facing charges. Please check with yur lcal lawyer. In this nte, we use this term t mean the temprary release frm plice custdy, r prisn, frm a persn accused f having cmmitted an ffence and awaiting trial. 1 Bail applicatin: A submissin made by yu r yur lawyer (depending n hw the lcal system wrks) in which yu ask the curt fr release prir t yur trial. Pre-trial detentin: Detentin in plice custdy r in prisn which is impsed n a persn befre s/he stands trial. 1 In the USA, this term is used t describe the payment f an amunt f mney (als called security) t guarantee that a persn wh is released pending his/her trial will nt abscnd. Fair Trials Internatinal February This nte is intended fr infrmatin purpses nly and des nt cnstitute legal advice. Take lcal legal advice n yur specific situatin.

5 Remand: The perid spent in pre-trial detentin (either in plice custdy r in prisn). General infrmatin and practical tips Q1. What is pre-trial detentin and hw is it decided? Pre-trial detentin is detentin either in plice custdy r in prisn befre and during yur trial. In practice, peple arrested n suspicin f having cmmitted a criminal ffence in a freign cuntry are ften placed in pre-trial detentin but this varies a lt frm ne cuntry t anther. The prcedure fr deciding whether r nt t place a suspect in pre-trial detentin als varies frm ne cuntry t anther. Yur lcal lawyer will be able t explain hw this wrks in the cuntry where yu face charges. Fair Trials Internatinal als has basic infrmatin available n hw this wrks in a number f cuntries. Q2. Why wuld the curt rder pre-trial detentin? Peple accused f ffences shuld be treated as inncent until prven guilty (i.e. the presumptin f inncence ). Unlike a sentence impsed fllwing cnvictin, pre-trial detentin shuld nt therefre be a punishment. Fr this reasn, there needs t be a gd reasn fr keeping yu in pre-trial detentin. The precise reasns fr rdering pre-trial detentin will vary frm ne cuntry t anther s yu will need t discuss with yur lawyer. Hwever it is cmmn fr Fair Trials Internatinal February This nte is intended fr infrmatin purpses nly and des nt cnstitute legal advice. Take lcal legal advice n yur specific situatin.

6 curts 2 t impse pre-trial detentin where they believe that, if yu are released, yu will: Fail t appear at the next curt hearing, e.g. because yu have fled the cuntry (this assumptin is ften made when the evidence against a persn is strng and s/he faces a lengthy prisn sentence); Cmmit anther ffence; Interfere with witnesses r tamper with evidence; r Be in danger f thers r yurself. Q3. Hw and when can I apply fr bail? As the rules vary frm cuntry t cuntry, yu will need t ask yur lawyer fr infrmatin and advice n hw t apply fr bail in the cuntry where yu have been arrested. These are questins yu may want t ask yur lawyer: Yu may have questins abut hw and when applicatins fr release shuld be made: D I have t be represented by my lawyer r can I make an applicatin n my wn? Wh shuld I infrm that I want t apply fr release? 2 Please be aware that, depending n the cuntry where yu are facing charges, the decisin n pre-trial detentin may be taken by an authrity ther than a curt. In sme cuntries, the decisin will be taken by a single judge, in thers a curt cmpsed f a panel f judges. In sme cuntries such decisins can be made by the plice, at least fr shrt perids f detentin. Fair Trials Internatinal February This nte is intended fr infrmatin purpses nly and des nt cnstitute legal advice. Take lcal legal advice n yur specific situatin.

7 Des the applicatin have t be made rally, r in writing? When is a gd time t make an applicatin fr release? Shuld I d it immediately fllwing arrest r shuld I wait until I see a judge? Hw ften can I apply fr release? Is the curt ging t review my detentin n a regular basis even if I d nt make new applicatins fr release? If the curt rejects my applicatin fr release, can I appeal against that decisin? It may be sensible t clarify the fllwing issues: Is there a risk that the trial curt will think that I am guilty f the ffence if I am held in pre-trial detentin? If it seems bvius that I will be cnvicted and will have t serve a prisn sentence, shuld I accept pre-trial detentin and will this time served in prisn be deducted frm my verall sentence? Yu may als want t cnsider the fllwing financial questins: D I have t pay my lawyer if s/he helps me with my applicatin fr release? What are his/her fees? Will s/he charge a ne-ff fee r a fee fr each applicatin? Fair Trials Internatinal February This nte is intended fr infrmatin purpses nly and des nt cnstitute legal advice. Take lcal legal advice n yur specific situatin.

8 In rder t assist yur lawyer t btain yur release under the mst favurable cnditins, it is very imprtant that yu infrm him/her f the fllwing: Where yu wuld like t be until yur trial takes place; Infrmatin abut yur family situatin (and yur family s whereabuts); Yur emplyment situatin; Any ther ties (including activities such as studying, vlunteering, etc.) yu may have, either in the cuntry f yur arrest r in yur hme cuntry; Whether yu have enugh mney t pay a security, r if yu knw peple wh wuld agree t pay a security fr yu; Any relatives r friends in the cuntry where yu have been arrested wh wuld agree t accmmdate yu until yur trial starts; Any health cnditins which require medicatin r hspital treatment. Q4. What can I d if my lawyer tells me that it is pintless t apply fr release but I think s/he is wrng? Even if yu are allwed t apply fr release, yur lawyer may advise yu nt t d s, r t wait until yu d it. S/he may have very gd reasns t give yu this advice, e.g. it is pssible that s/he is trying t get yu ut f prisn in anther way, r s/he is waiting fr a change in yur situatin that will increase yur chances f being released. Fair Trials Internatinal February This nte is intended fr infrmatin purpses nly and des nt cnstitute legal advice. Take lcal legal advice n yur specific situatin.

9 Understanding the advice given by yur lawyer is imprtant as it will help develp yur trust in his/her judgment. If yu think s/he is wrng r if yu have nt understd why s/he gives yu sme specific advice, d nt hesitate t ask him/her t explain the reasns why s/he gave yu such advice. Yur lawyer may als think that there is n chance that yu will be released because yu are a freigner. If this is the case, yu shuld encurage him/her t read this nte, and the appendix with infrmatin n the human rights standards n pre-trial detentin. This may help him/her t argue fr yur release in curt. Yu can als ask him/her t cntact Fair Trials Internatinal t further discuss yur case. If yu are still nt satisfied yu may wish t cnsult anther lawyer. Q5. What are the prs and cns f applying fr release? Only yu can decide whether t apply fr release. These are sme f the things yu shuld bear in mind: Prs: If yu are released: Yu will be able t maintain cntact with yur family mre easily; Yu may be able t keep yur jb; Yu will nt have t spend time in prisn befre yur trial; Fair Trials Internatinal February This nte is intended fr infrmatin purpses nly and des nt cnstitute legal advice. Take lcal legal advice n yur specific situatin.

10 The trial curt (i.e. the curt that will make the decisin n yur guilt r inncence) may regard favurably the fact that yu were free until yur trial. This is especially true in cuntries where the authrity deciding whether r nt t place yu in detentin prir t yur trial will cnsider the strength f the evidence against yu. Cns: If yu are free, the curt may decide that yur case is less urgent and it may take lnger t g t trial (this varies frm cuntry t cuntry s yu need t discuss this with yur lawyer); The curt may impse cnditins n yur release which may make it difficult fr yu t earn mney (e.g. if yu have t travel t sign in at a plice statin every ther day) and yu may find it difficult t pay fr fd and accmmdatin, in particular if yu are arrested in a cuntry which is nt yur hme cuntry and a cnditin f yur release is that yu d nt leave the cuntry. IMPORTANT If yu admit yur guilt and yu face a prisn sentence, yu may want t start serving yur sentence as sn as pssible. Yu shuld ask yur lawyer t cnfirm whether time spent in pre-trial detentin will be deducted frm the verall prisn sentence. Similarly, if yu are awaiting extraditin and think that the prisn cnditins will make yur detentin harsher in the cuntry seeking yur extraditin, yu may want t start serving yur sentence while the decisin n yur extraditin is being made. Again, it is very imprtant that yu check with yur lawyer that the time spent befre Fair Trials Internatinal February This nte is intended fr infrmatin purpses nly and des nt cnstitute legal advice. Take lcal legal advice n yur specific situatin.

11 extraditin will be deducted frm the time yu have t serve. Q6. Hw can I increase my chances f being released until my trial? Freign defendants are much mre likely t be placed in detentin prir t their trial than natinals. This seems t be because, as they tend t have fewer ties with the cuntry f arrest, judges think that they are very likely t flee and g back t their hme cuntry. Judges als ften cnsider that smene wh faces a lengthy prisn sentence is mre likely t flee. Hwever, in many cuntries it is pssible fr a defendant (even if s/he is a freigner) t be released subject t cnditins. These alternatives t detentin are wrth cnsidering and yu shuld discuss them with yur lawyer. Yur lawyer shuld help yu identify the reasns why the judge may nt be willing t release yu. Once yu have identified the reasns, yu can start thinking f the best way t reassure the judge that yu can safely be released. The table belw gives an verview f cnditins that are cmmnly applied t peple as alternatives t pre-trial detentin. The left clumn shws the things that the judge might be wrried abut and the right clumn suggests ways t deal with these cncerns. Please nte that these are examples nly and may nt be available in yur cuntry f arrest. Fr advice n what alternatives t detentin exist in yur cuntry f arrest, yu need t speak t yur lcal lawyer. Fair Trials Internatinal February This nte is intended fr infrmatin purpses nly and des nt cnstitute legal advice. Take lcal legal advice n yur specific situatin.

12 THE PERCEIVED RISK Yu will flee the cuntry and return hme. POSSIBLE SOLUTIONS Yu may be able t: Offer t surrender yur passprt t the authrities; Offer t live at a mutually agreed address; Request electrnic tagging; Offer t sign in at regular intervals at yur lcal plice statin, (r, if yu want t stay in anther cuntry than in the cuntry f arrest, ffer t sign in at the embassy f yur cuntry f arrest); Pay mney as security (i.e. a sum f mney which will be frfeited if yu abscnd); 3 Have smene yu knw stand as surety (i.e. smene wh says s/he has enugh influence ver yu t ensure yu will nt abscnd and s/he will pay mney if yu d); and If yu are arrested in a Eurpean cuntry that is part f the Eurpean Unin (EU cuntry) and yur hme cuntry 4 is anther EU cuntry, yu may be able t persuade the curt t use the Eurpean Supervisin Order. 5 There als are legal means t ensure that peple are available t face trial r serve a prisn sentence: 3 Nte that this is nt likely t be accepted by the curt if there is a risk that the mney is the prceeds f a crime (e.g. if yu are charged with mney laundering r drug trafficking) 4 This means the EU cuntry where yu lawfully and rdinarily reside 5 This allws the curt t rder yur release back t yur hme cuntry where the authrities will mnitr any cnditins which have been impsed n yu. Ask yur lawyer fr mre infrmatin. Please nte that the Eurpean Supervisin Order will nly cme int frce n 1 December Fair Trials Internatinal February This nte is intended fr infrmatin purpses nly and des nt cnstitute legal advice. Take lcal legal advice n yur specific situatin.

13 Fleeing the cuntry wuld nt prevent yu frm facing trial r serving a prisn sentence as yu wuld eventually be arrested and extradited back t the cuntry where yu face charges. This argument is especially true within the Eurpean Unin, where a streamlined extraditin system (the Eurpean Arrest Warrant) allws fr prmpt surrender between EU cuntries. Yu will interfere with witnesses r tamper with evidence. Yu may be able t: Offer t stay away frm designated witnesses r frm the alleged victim(s); Offer t surrender yur passprt t the authrities; Offer t live at a mutually agreed address; Request electrnic tagging; and Offer t sign in at regular intervals at yur lcal plice statin, (r, if yu want t stay in anther cuntry than in the cuntry f arrest, ffer t sign in at the embassy f yur cuntry f arrest). Yu will cmmit anther ffence. Yu may be able t: Offer t stay away frm designated witnesses r frm the alleged victim(s); Offer t surrender yur passprt t the authrities; Offer t live at a mutually agreed address; Request electrnic tagging; and Offer t sign in at regular intervals at yur lcal plice statin, (r, if yu want t stay in anther cuntry than in the cuntry f arrest, ffer t sign in at the embassy f yur cuntry f arrest). Yu shuld als let the judge knw if yu d nt have a criminal recrd (i.e. yu have never been cnvicted f cmmitting a criminal ffence). Fair Trials Internatinal February This nte is intended fr infrmatin purpses nly and des nt cnstitute legal advice. Take lcal legal advice n yur specific situatin.

14 Yu will harm yurself r thers may harm yu. Yu may be able t: Receive adequate health treatment (e.g. cunselling); Offer t undertake treatment against addictins; Abstain frm the use f alchl and drugs; r Stay in accmmdatin away frm thse seeking t harm yu. Q7. What will happen if I d nt respect my cnditins f release? The cnsequences f vilating yur cnditins f release will vary frm ne cuntry t anther and can be very serius. This is smething yu shuld discuss with yur lawyer. If yu breach yur cnditins f release it is cmmn fr the curt t impse harsher cnditins r t rder yu t be held in pre-trial detentin. In sme cuntries vilating yur cnditins cnstitutes a separate criminal ffence. This can lead t a cnvictin, criminal recrd and sentence separate frm the main ffence with which yu have been charged. Q8. Will the time spent in pre-trial detentin be deducted frm a prisn sentence? In many cuntries, time served in prisn prir t yur trial will be deducted frm the time yu have t spend in prisn as a result f yur cnvictin. Whether such deductins exist and hw they perate in practice varies frm cuntry t cuntry. This is smething yu shuld discuss with yur lawyer. Fair Trials Internatinal February This nte is intended fr infrmatin purpses nly and des nt cnstitute legal advice. Take lcal legal advice n yur specific situatin.

15 Appendix fr lawyers If yu are facing charges in a Eurpean cuntry, yu shuld shw this dcument t yur lawyer. It will give him/her an verview f human rights standards n pretrial detentin, particularly case-law frm the Eurpean Curt f Human Rights (Eurpean Curt). Thse cases can be used in frnt f the lcal curt t strengthen yur applicatin fr release pending trial, and they are als useful if yur lawyer cnsiders challenging the decisin made in yur case in frnt f the Eurpean Curt. 1. A number f internatinal laws enshrine the right t liberty and the imprtance f aviding arbitrary and unnecessary detentin. Article 11 f the Universal Declaratin f Human Rights states: Everyne charged with a penal ffence has the right t be presumed inncent until prved guilty. This is eched in Article 48 f the Charter f Fundamental Rights, while Article 5 f the Eurpean Cnventin n Human Rights (Eurpean Cnventin) states: Everyne has the right t liberty and security f persn. Article 9 f the Internatinal Cvenant n Civil and Plitical Rights (ICCPR) states: It shall nt be the general rule that persns awaiting trial shall be detained in custdy. Article 5 f the Eurpean Cnventin prtects the right t liberty and sets ut when detentin is acceptable and the safeguards that must accmpany it. 2. The Eurpean Curt has made a range f findings in relatin t pre-trial detentin. These decisins represent a set f minimum standards which all Cnventin signatries shuld bserve. Set ut belw are the general principles regarding pretrial detentin established by the Eurpean Curt. Fair Trials Internatinal February This nte is intended fr infrmatin purpses nly and des nt cnstitute legal advice. Take lcal legal advice n yur specific situatin.

16 3. Article 5 Eurpean Cnventin states: Everyne has the right t liberty and security f the persn. An exceptin t this right t liberty is lawful pretrial detentin. Article 5(1)(c) states that a persn s arrest r detentin may be effected fr the purpse f bringing him befre the cmpetent legal authrity n reasnable suspicin f having cmmitted an ffence r when it is reasnably cnsidered necessary t prevent his cmmitting an ffence r fleeing after having dne s. 4. Article 5(3) cntains a prtectin fr pre-trial detainees, stating that anyne detained in accrdance with Article 5(1)(c) must be brught prmptly 6 befre a judge r ther fficer authrised by law t exercise judicial pwer. The Eurpean Curt has stated that such autmatic expedited judicial scrutiny prvides an imprtant measure f prtectin against arbitrary behaviur, incmmunicad detentin and ill-treatment. 7 A pre-trial detainee shall be entitled t trial within a reasnable time r t release pending trial. Release may be cnditined by guarantees t appear fr trial Anyne deprived f liberty under the exceptins set ut in Article 5 shall be entitled t take prceedings by which the lawfulness f her/his 6 The limit f acceptable preliminary detentin has nt been defined by the Eurpean Curt, hwever in Brgan and thers v UK [1988] Eurpean Cnventin 24, the curt held that perids f preliminary detentin ranging frm fur t six days vilated Article 5(3) 7 Medvedyev and thers v France [2010] Eurpean Cnventin 384, Para Article 5(3) Fair Trials Internatinal February This nte is intended fr infrmatin purpses nly and des nt cnstitute legal advice. Take lcal legal advice n yur specific situatin.

17 detentin shall be decided speedily by a curt and his/her release rdered if the detentin is nt lawful (Article 5(4)). 6. The Eurpean Curt has stressed the fundamental imprtance f the guarantees cntained in Article 5, which cntains a crpus f substantive rights intended t ensure that the act f deprivatin f liberty is amenable t independent judicial scrutiny and secures the accuntability f the authrities fr that measure. 9 We set ut belw a detailed analysis f the key decisins f the Curt. Release pending trial 7. During the pre-trial perid there is a presumptin in favur f release; cntinued detentin can be justified in a given case nly if there are specific indicatins f a genuine requirement f public interest which, ntwithstanding the presumptin f inncence, utweighs the rule f respect fr individual liberty laid dwn in Article 5 f the Cnventin. 10 The Curt has never set ut a cmprehensive list f factrs justifying pre-trial detentin. 8. The burden is n the state t shw why the defendant cannt be released: Shifting the burden f prf t the detained persn in such matters is tantamunt t verturning the rule f Article 5 f the Cnventin Bazrkina v Russia [2006] ECHR 751, Para McKay v UK [2006] ECHR 820 Para Ilijkv v Bulgaria [2001] ECHR 489, Para 85 Fair Trials Internatinal February This nte is intended fr infrmatin purpses nly and des nt cnstitute legal advice. Take lcal legal advice n yur specific situatin.

18 9. Suspicin that the defendant has cmmitted an ffence is nt enugh in itself t justify cntinuing detentin, n matter hw serius the ffence and the strength f the evidence against him. 12 The Curt has repeatedly held that the gravity f the charges cannt by itself serve t justify lng perids f detentin n remand Release pending trial is ften refused by natinal curts n the grunds that there is a risk that the persn will abscnd prir t trial. 14 The Eurpean Curt has fund that the mere absence f a fixed residence des nt give rise t a danger f flight. 15 Althugh such a danger may exist where the sentence faced is a lng term f imprisnment, the risk f abscnding cannt be gauged slely n the basis f the severity f the sentence faced. 16 Where such a risk is deemed t exist, the authrities are under a duty t cnsider alternatives t detentin which will ensure the defendant appears at trial When release pending trial is refused n the basis that the defendant may cmmit further ffences prir t trial 18 the natinal curt must be satisfied 12 Tmasi v France [1992] ECHR 53, see als Caballer v UK [2000] ECHR Ilijkv v Bulgaria [2001] ECHR 489, Para Smething specifically envisaged by Article 5(1)(c) 15 Sulaja v Estnia [2005] ECHR 104, Para Muller v France [1997] ECHR 11, Para 43, see als Barfuss v Czech Republic [2000] ECHR Wemhff v Germany [1968] ECHR 2 18 Again, a grund set ut in Article 5(1)(c) Fair Trials Internatinal February This nte is intended fr infrmatin purpses nly and des nt cnstitute legal advice. Take lcal legal advice n yur specific situatin.

19 that the risk is substantiated. A reference t the defendant s antecedents des nt suffice t justify cntinued detentin n the grunds that there is a danger s/he will re-ffend. 19 Instead, there must be evidence f the prpensity t re-ffend. A danger f re-ffending in n way suffices t make pre-trial detentin lawful where it is a matter slely f a theretical and general danger and nt f a definite risk f a particular ffence. 20 Furthermre, it cannt be cncluded frm the lack f a jb r a family that a persn is inclined t cmmit new ffences When it cmes t fixing a financial surety as a cnditin fr release pending trial the natinal authrities must take as much care in fixing apprpriate bail as in deciding whether r nt the accused s cntinued detentin is indispensable. 22 The amunt set must take int accunt the defendant s means. 23 Review f pre-trial detentin 13. As discussed abve, Article 5(4) requires that the lawfulness f detentin must be subject t review. The curt referenced in Article 5(4) must be a bdy f judicial character ffering fundamental guarantees f prcedure applied in matters f 19 Muller v France [1997] ECHR 11, Para Matznetter v Austria [1969] ECHR 1, cncurring pinin f Judge Balladre Pallieri, Para 1 21 Sulaja v Estnia [2005] ECHR 104, Para Manguras v Spain [2010] ECHR 1364, Para Ibid. Para 80 Fair Trials Internatinal February This nte is intended fr infrmatin purpses nly and des nt cnstitute legal advice. Take lcal legal advice n yur specific situatin.

20 deprivatin f liberty. 24 This bdy must be independent bth f the executive and f the parties t the case. 25 Furthermre, it must have the ability t rder the defendant s release if detentin is deemed unlawful. 26 The curt must give reasns fr its decisin regarding the detentin and must nt use identical r steretyped frms f wrds The review must be able t be initiated by the defendant, 28 and shuld be wide enugh t bear n thse cnditins which are essential fr the lawful detentin f a persn accrding t Article 5(1). 29 It must be an adversarial ral hearing. 30 In prceedings in which an appeal against a detentin rder is being examined, equality f arms between the parties, the prsecutr and the detained persn must be ensured. 31 In this cntext the pprtunity f challenging prsecutin arguments against release may, in certain instances, require that the defence be given access t the case file De Wilde, Oms and Versyp v Belgium [1971] ECHR 1, Para Neumeister v Austria [1968] ECHR 1, Para Singh v UK [1996] ECHR 9 27 Yagci and Sargin v Turkey 1995 ECHR Rakevich v Russia [2003] ECHR E v Nrway [1990] ECHR 17, Para Assenv v Bulgaria [1998] ECHR Wlch v Pland [2000] ECHR 504, Para Ibid. Para 127 Fair Trials Internatinal February This nte is intended fr infrmatin purpses nly and des nt cnstitute legal advice. Take lcal legal advice n yur specific situatin.

21 15. Article 5(4) requires that the lawfulness f detentin shall be decided speedily. Whether this has been cmplied with is determined n the facts f each case. In straightfrward cases, the Curt has held that a three week perid between initial detentin and an applicatin fr release 33 pending trial was t lng. Where the justificatin fr detentin is liable t vary ver time, Article 5(4) enables the defendant t apply fr review f the legality f detentin at regular intervals. 34 Length f pre-trial detentin 16. The right t trial within a reasnable time under Article 5(3) can nly be invked by thse in pretrial detentin. In determining whether a 35 reasnable time has elapsed, natinal curts must cnsider whether the pre-trial perid has impsed a greater sacrifice than culd, in the circumstances f the case, reasnably be expected f a persn presumed t be inncent Article 5(3) implies that there must be special diligence in the cnduct f the prsecutin f pretrial detainees cases. 37 A detained persn is entitled t have the case given pririty and 33 Rehbck v Slvenia (App /95) 28 Nvember De Jng, Baljet and van der Brink v Netherlands [1984] ECHR 5 35 Once release pending trial is granted the situatin is gverned by Article 6(1) 36 Wemhff v Germany [1968] ECHR 2, Para 5 f As regards Article 5(3) f the Cnventin 37 Stgmuller v Austria [1969] ECHR 25, Para 5 f As t the law Fair Trials Internatinal February This nte is intended fr infrmatin purpses nly and des nt cnstitute legal advice. Take lcal legal advice n yur specific situatin.

22 cnducted with particular expeditin. The Eurpean Curt has fund perids f pre-trial detentin lasting between tw and a half years 39 and almst five years 40 t be excessive Wemhff v Germany [1968] ECHR 2 39 Punzelt v Czech Republic [2000] ECHR PB v France (App /97) 1 August 2000 Fair Trials Internatinal February This nte is intended fr infrmatin purpses nly and des nt cnstitute legal advice. Take lcal legal advice n yur specific situatin.

23 This leaflet was last updated in February The infrmatin cntained in this dcument is prvided fr infrmatin purpses nly and is nt intended as legal advice, nr des it cnstitute legal advice. Whilst we endeavur t keep the infrmatin up t date and crrect, Fair Trials Internatinal makes n representatins r warranties f any kind, express r implied abut the cmpleteness, accuracy, reliability, suitability r applicability t individual cases f the infrmatin cntained in this leaflet. Any reliance yu place n such material is therefre strictly at yur wn risk. Fair Trials Internatinal disclaims any liability t the fullest extent permissible by law fr any lss r damage f any kind arising frm the use f the infrmatin prvided. Yu shuld always seek prfessinal legal advice frm a lawyer qualified t practice in the jurisdictin yu are in. If yu think that an imprtant questin is nt cvered in this fact sheet, please let us knw. Fair Trials Internatinal February This nte is intended fr infrmatin purpses nly and des nt cnstitute legal advice. Take lcal legal advice n yur specific situatin.

24 Wrking fr a wrld where every persn s right t a fair trial is respected, whatever their natinality, wherever they are accused THANK YOU Fair Trials Internatinal wuld like t thank the law firms and individual practitiners, bth in the UK and abrad, wh have generusly given their time and expertise t help prduce these legal guidance ntes. Fair Trials is grateful t all f its funders, including: C-funded by the Eurpean Unin Fr a full list f ur funders see Fair Trials Internatinal T: + 44 (0) /7 Temple Chambers F: + 44 (0) Temple Avenue casewrk@fairtrials.net Lndn EC4Y 0HP United Kingdm Fair Trials Internatinal February This nte is intended fr infrmatin purpses nly and des nt cnstitute legal advice. Take lcal legal advice n yur specific situatin.