1
Class 4: Pre-Trial Detention & Presumption
of Innocence
Lecture & Literature
Article 5 ECHR
Protects the right to liberty & security regarding arrest and detention for the
purpose of enforcing the criminal law
The article covers various ‘sorts’ of detention:
o Pre-trial detention (sub c + par 3)
o Detention after a conviction (sub a)
o Failure to comply with a legal obligation or court order (sub b)
o Detention of minors (sub d)
o Detention of people of unsound mind (sub e)
o Immigration of extradition related detention (sub f)
Different rules apply for every sort of detention!
o E.g. for minors, immigration, unsound mind.
Pre-Trial Detention: Two Phases
While the criminal proceedings are underway the liberty of individuals can be
restricted if placed in pre-trial detention.
Pre-trial detention is the most coercive measure to limit personal liberty and
freedom of movement of suspects and defendants, whilst criminal proceedings
are pending.
There are several reasons for imposing pre-trial detention.
o It may be necessary if there is a high risk of escaping prosecution, of
threatening witnesses or otherwise tampering with the evidence, or of
committing further serious crimes.
Imprisonment may have also a symbolic effect. The application of pre-trial
detention may be at variance with the presumption of innocence.
Basically you can distinguish two phases:
1. Arrest and initial days of detention
2. Judicial review and subsequent pre-trial detention
Class 4: Pre-Trial Detention & Presumption
of Innocence
Lecture & Literature
Article 5 ECHR
Protects the right to liberty & security regarding arrest and detention for the
purpose of enforcing the criminal law
The article covers various ‘sorts’ of detention:
o Pre-trial detention (sub c + par 3)
o Detention after a conviction (sub a)
o Failure to comply with a legal obligation or court order (sub b)
o Detention of minors (sub d)
o Detention of people of unsound mind (sub e)
o Immigration of extradition related detention (sub f)
Different rules apply for every sort of detention!
o E.g. for minors, immigration, unsound mind.
Pre-Trial Detention: Two Phases
While the criminal proceedings are underway the liberty of individuals can be
restricted if placed in pre-trial detention.
Pre-trial detention is the most coercive measure to limit personal liberty and
freedom of movement of suspects and defendants, whilst criminal proceedings
are pending.
There are several reasons for imposing pre-trial detention.
o It may be necessary if there is a high risk of escaping prosecution, of
threatening witnesses or otherwise tampering with the evidence, or of
committing further serious crimes.
Imprisonment may have also a symbolic effect. The application of pre-trial
detention may be at variance with the presumption of innocence.
Basically you can distinguish two phases:
1. Arrest and initial days of detention
2. Judicial review and subsequent pre-trial detention
