Nowak v Poland  ECHR 18390/02; Owczar v Poland  ECHR 34117/02; Michalak v Poland  ECHR 16864/02
Three recent cases from the European Court of Human Rights consider the principles to be applied in determining whether continued detention is lawful. This case note considers the potential impact of these decisions on the interpretation of ss 21(5) and (6) of the Charter of Human Rights and Responsibilities Act 2006 (Vic).
The cases concerned the complaints of three applicants about the excessive length of their detention on remand. The men were arrested in 1999 on suspicion of, among other things, repeated group rape with aggravated cruelty as members of an organised criminal gang. They were convicted of the charges in July 2002 after being held on remand for two years and seven months (Mr Nowak) and three years and 11 days (Mr Owczar and Mr Michalak).
The applicants relied in particular on art 5(3) of the European Convention on Human Rights:
Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
In the current cases, the European Court noted that there were three main grounds that the domestic court had used to justify the period of detention: the serious nature of the offences; the severity of the potential penalties; and the need to secure the proper conduct of the proceedings, including the risk that the accused might go into hiding.
In interpreting the obligations under art 5(3), the European Court made the following observations:
- Article 5(3) requires an accused to be provisionally released once his or her continuing detention ceases to be reasonable.
- Continued detention will only be reasonable if there are specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighs the rule of respect for individual liberty.
- Although it is necessary that a reasonable suspicion persists that an accused committed an offence in order for his or her continued detention to remain lawful, with the lapse of time this will no longer be sufficient on its own.
- Even if there are other grounds that are held to be ‘relevant’ and ‘sufficient’ to justify the deprivation of liberty, the relevant authorities must display ‘special diligence’ in the conduct of the proceedings.
- Whether or not a period of detention is ‘reasonable’ must be assessed in each case according to its special features; there is no fixed time-frame that applies.
In the cases of Owczar and Michalak, the European Court found the reasons given by the domestic court had become less relevant over time and were not sufficient to justify detaining the men for three years and 11 days. In particular, the Court commented that it had not been explained why the applicants’ release, which was granted pending their appeal, had not been considered at an earlier stage. On this basis, the Court found that there had been a violation of art 5(3) in relation to both men.
In the case of Nowak, the Court noted that the seriousness of the accusations, which included charges of being the leader of the organised criminal gang, justified the defendant being held in custody for two years and seven months. The Court found that the domestic authorities had shown ‘special diligence’ in handling Nowak's case, based on the complexity of the case and the fact that the prosecuting authorities had completed the investigation relatively quickly. On this basis, the Court concluded that the grounds given for Nowak’s pre-trial detention were ‘relevant’ and ‘sufficient’ to justify holding him in custody and found that there had been no violation of art 5(3).
Application to the Victorian Charter
The relevant Convention provisions are very similar to s 21 of the Victorian Charter, which enshrines the right to liberty and security. Of particular relevance are ss 21(5) and (6), which provide:
(5) A person who is arrested or detained on a criminal charge;
(a) must be promptly brought before a court; and
(b) has the right to be brought to trial without unreasonable delay; and
(c) must be released if paragraph (a) or (b) is not complied with.
(6) A person awaiting trial must not be automatically detained in custody, but his or her release may be subject to guarantees to appear:
(a) for trial; and
(b) at any other stage of the judicial proceeding; and
(c) if appropriate, for the execution of judgment.
Under s 32(2) of the Victorian Charter, the jurisprudence of the European Court may be used to interpret these provisions of the Charter. The considerations outlined by theEuropean Court in this case may be particularly relevant inVictoria in the future given increasing attention upon terrorism and the creation of legislation that allows for extended periods of preventative detention and detention without trial. In particular, the cases are authority for the proposition that any pre-trial detention must be justified by ‘relevant and sufficient’ reasons and, further, that the reasons must take adequate account of the defendant’s individual circumstances. A blanket policy, such as a policy that all persons charged with terror-related offences be remanded in custody, will not satisfy this test. The case is further authority for the principle that prolonged pre-trial detention must be regularly and freshly reviewed with particular scrutiny. In light of the decisions above, Victorian courts would do well to consider the real and positive force that theEuropean Court and other courts have given to these rights associated with liberty and security, and read s 21 broadly.
The decisions are available at http://www.echr.coe.int/ECHR/EN/Header/Case-Law/HUDOC/HUDOC+database.
Alison Dodd is a lawyer with DLA Phillips Fox