Condensed: Anyone (a) arrested or detained on a criminal charge, (b) shall be brought within a few days (c) before a judge or a judicial officer, (d) who is independent, objective and impartial. Promptness is determined on a case-by-case basis, but judicial review of detention should not exceed a few days. Three or four days is the maximum period a person can be held without being brought before a judicial officer even in complex cases such as alleged terrorism. Comprehensive: Article 9(3) of the ICCPR provides that anyone ‘arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within reasonable time or to release.’[1] The right to be brought promptly before a judge is also provided for in regional human rights treaties. The ECtHR held in Brogan v UK that ‘if the arrested person is not released promptly, he is entitled to a prompt appearance before a judge or judicial officer.’[2] Promptness is determined on a case-by-case basis.[3] While there is no definite time limits, the HRC has interpreted 'promptly' to mean not exceeding a 'few days'.[4] In Van der Houwen v Netherlands, the HRC held that 73 hours of detention without being brought before a judge was not in violation of the state party's obligation under article 9(3).[5] In the more recent case of Borisenko v Hungary, the applicant had been detained for three days before being brought before a judicial officer. In the absence of an explanation from the defendant on the necessity to detain the applicant for this period, the HRC found a violation.[6] The ECtHR has held that detention without judicial review exceeding four days violates the ECHR, even in complex cases dealing with terrorism.[7] The judge or judicial officer must be independent and impartial. In Kulomin v Hungary the HRC held that a public prosecutor could not ‘be regarded as having the institutional objectivity and impartiality necessary to be considered an “officer authorized to exercise judicial power” within the meaning of article 9(3).’[8] In Assenov and Others v Bulgaria, the ECtHR held: The 'officer' must be independent of the executive and the parties. In this respect, objective appearances at the time of the decision on detention are material: if it appears at that time that the ‘officer’ may later intervene in subsequent criminal proceedings on behalf of the prosecuting authority, his independence and impartiality may be open to doubt … The ‘officer’ must hear the individual brought before him in person and review, by reference to legal criteria, whether or not the detention is justified. If it is not so justified, the ‘officer’ must have the power to make a binding order for the detainee’s release.[9] (Cf *Trial by competent, independent and impartial tribunal*) According to the ACHPR, the hearing before the judicial officer shall consider:[10] § the lawfulness of the arrest; § the necessity for detention; § the possibility of release and attendant conditions; § the safety and welfare of the detainee The ECtHR has held that ‘the initial automatic review of arrest and detention … must be capable of examining lawfulness issues and whether or not there is a reasonable suspicion that the arrested person has committed an offence … When the detention does not, or is unlawful, the judicial officer must then have the power to release.’[11] (See *arbitrary arrest and detention*; *torture or cruel, inhuman or degrading treatment or punishment*). Budgetary constraints can be a factor that might lead to delay in bringing the accused person before a judge in a few days as required by law. In Fillastre and Bizouarn v Bolivia,[12] the HRC held that 'while not unsympathetic to the State party's claim that budgetary constraints may cause impediments to the proper administration of justice in Bolivia, the Committee concludes that the right … under article 9, paragraphs 2 and 3, have not been observed'. In that case a period of 10 days was deemed incompatible with the ICCPR. [1] ACHR art 7(5); ECHR art 5(3). The ACHPR has no specific provision addressing this issue. However, see Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa (2003).
[2]Brogan v UK application 11386/85 (ECtHR 1988) para 58.
[3]McLawrence v Jamaica communication 702/1996 (HRC 1997) para 5.6.
[5] Van der Houwen v Netherlands communication 583/1994 (HRC 1995) para 4.2. A violation was also not found in Portorreal v Dominican Republic communication 188/1984 (HRC 1987) para 9.2 and 11 (50 hours).
[6] Borisenko v Hungary communication 852/1999 (HRC 2002) para 7.4. See also Freemantle v Jamaica communication 625/1995 (HRC 2000) para 7.4 (four days); Nazarov v Uzbekistan communication 911/2000 (HRC 2004) para 6.2 (five days).
[8] Kulomin v Hungary communication 521/1992 (HRC 1994) para 11.3.
[9]Assenov and Others v Bulgaria application 24760/94 (ECtHR 1998) para 146. In this case the accused persons were only brought before the officer after 3 months of detention, 'before' a prosecutor who possessed a high likelihood to deal with the same matter in subsequent stages.
[10] Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa (2003) para M(3)(b).
[11]McKay v UK application 543/03 (ECtHR (GC) 2006) para 40.
[12]Fillastre and Bizouarn v Bolivia communication 583/1994 (HRC 1995) para 5.
Anyone (a) arrested or detained on a criminal charge, (b) shall be brought within a few days (c) before a judge or a judicial officer, (d) who is independent, objective and impartial. Promptness is determined on a case-by-case basis, but judicial review of detention should not exceed a few days. Three or four days is the maximum period a person can be held without being brought before a judicial officer even in complex cases such as alleged terrorism.
Comprehensive:
Article 9(3) of the ICCPR provides that anyone ‘arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within reasonable time or to release.’[1] The right to be brought promptly before a judge is also provided for in regional human rights treaties. The ECtHR held in Brogan v UK that ‘if the arrested person is not released promptly, he is entitled to a prompt appearance before a judge or judicial officer.’[2]
Promptness is determined on a case-by-case basis.[3] While there is no definite time limits, the HRC has interpreted 'promptly' to mean not exceeding a 'few days'.[4] In Van der Houwen v Netherlands, the HRC held that 73 hours of detention without being brought before a judge was not in violation of the state party's obligation under article 9(3).[5] In the more recent case of Borisenko v Hungary, the applicant had been detained for three days before being brought before a judicial officer. In the absence of an explanation from the defendant on the necessity to detain the applicant for this period, the HRC found a violation.[6] The ECtHR has held that detention without judicial review exceeding four days violates the ECHR, even in complex cases dealing with terrorism.[7]
The judge or judicial officer must be independent and impartial. In Kulomin v Hungary the HRC held that a public prosecutor could not ‘be regarded as having the institutional objectivity and impartiality necessary to be considered an “officer authorized to exercise judicial power” within the meaning of article 9(3).’[8] In Assenov and Others v Bulgaria, the ECtHR held:
The 'officer' must be independent of the executive and the parties. In this respect, objective appearances at the time of the decision on detention are material: if it appears at that time that the ‘officer’ may later intervene in subsequent criminal proceedings on behalf of the prosecuting authority, his independence and impartiality may be open to doubt … The ‘officer’ must hear the individual brought before him in person and review, by reference to legal criteria, whether or not the detention is justified. If it is not so justified, the ‘officer’ must have the power to make a binding order for the detainee’s release.[9]
(Cf *Trial by competent, independent and impartial tribunal*)
According to the ACHPR, the hearing before the judicial officer shall consider: [10]
§ the lawfulness of the arrest;
§ the necessity for detention;
§ the possibility of release and attendant conditions;
§ the safety and welfare of the detainee
The ECtHR has held that ‘the initial automatic review of arrest and detention … must be capable of examining lawfulness issues and whether or not there is a reasonable suspicion that the arrested person has committed an offence … When the detention does not, or is unlawful, the judicial officer must then have the power to release.’[11]
(See *arbitrary arrest and detention*; *torture or cruel, inhuman or degrading treatment or punishment*).
Budgetary constraints can be a factor that might lead to delay in bringing the accused person before a judge in a few days as required by law. In Fillastre and Bizouarn v Bolivia,[12] the HRC held that 'while not unsympathetic to the State party's claim that budgetary constraints may cause impediments to the proper administration of justice in Bolivia, the Committee concludes that the right … under article 9, paragraphs 2 and 3, have not been observed'. In that case a period of 10 days was deemed incompatible with the ICCPR.
[1] ACHR art 7(5); ECHR art 5(3). The ACHPR has no specific provision addressing this issue. However, see Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa (2003).
[2] Brogan v UK application 11386/85 (ECtHR 1988) para 58.
[3] McLawrence v Jamaica communication 702/1996 (HRC 1997) para 5.6.
[4] HRC General Comment 8 para 2.
[5] Van der Houwen v Netherlands communication 583/1994 (HRC 1995) para 4.2. A violation was also not found in Portorreal v Dominican Republic communication 188/1984 (HRC 1987) para 9.2 and 11 (50 hours).
[6] Borisenko v Hungary communication 852/1999 (HRC 2002) para 7.4. See also Freemantle v Jamaica communication 625/1995 (HRC 2000) para 7.4 (four days); Nazarov v Uzbekistan communication 911/2000 (HRC 2004) para 6.2 (five days).
[7] Brogan v UK para 62.
[8] Kulomin v Hungary communication 521/1992 (HRC 1994) para 11.3.
[9] Assenov and Others v Bulgaria application 24760/94 (ECtHR 1998) para 146. In this case the accused persons were only brought before the officer after 3 months of detention, 'before' a prosecutor who possessed a high likelihood to deal with the same matter in subsequent stages.
[10] Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa (2003) para M(3)(b).
[11] McKay v UK application 543/03 (ECtHR (GC) 2006) para 40.
[12] Fillastre and Bizouarn v Bolivia communication 583/1994 (HRC 1995) para 5.