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Human Rights, Terrorism and Police Custody:
II.
This case raises at least three distinct but interrelated issues: the maximum permissible length of police custody (or, in Convention terms, the interpretation of the adverb "promptly" contained in Article 5.3), the proper role of judicial authority in this field, and the degree to which special circumstances such as the occurrence of terrorist acts, influences our answers to the first two questions.12 Two aspects of this last question are particularly interesting. First, does terrorism justify a state attempt to interpret Article 5 flexibly? Second, if Article 5 is indeed interpreted flexibly, what would be the consequences, for the European system of protection of Human Rights?
It is regarded as part of the settled case-law of the Court that the adverb "promptly" - which has a more elastic meaning than the corresponding French term "aussitôt" - does not mean "immediately"; rather it must be interpreted according to the circumstances of each case.13 Moreover, while there have been cases where the Court held that the length of police custody was excessive,14 the Court has never clearly specified the maximum limit acceptable under the Convention.15
In contrast, the Commission which has its own case-law on the matter has determined that a four day time limit (two days plus two), currently in force in most Member States, is compatible with the Convention. Moreover, on one occasion it deemed acceptable a period of five days due to exceptional circumstances (the arrestee was hospitalized and thus could not be brought before the judge).16
In the Brogan case the Commission and the Court disagreed exactly on the maximum duration of the custody period. In accordance with its previous case-law, the Commission focused on the actual length of detention and on the special situation created by the terrorist threat, maintaining that in normal circumstances the police should not detain anyone for more than four days without judicial control. Nonetheless, in its Brogan opinion the Commission suggested that slightly longer periods could be accepted in situations justifying greater restrictions on individual rights and thus requiring greater sacrifice on the part of individuals.17 Hence, according to the Commission, the limit of four days applies only in normal cases; a different (possibly longer) limit applies to special cases. Moreover, the Commission seems to take it for granted that the existence of a danger to society and democratic institutions is in itself sufficient to justify a limitation on individual rights. It does not seem to require proof that the limitation proposed is indeed effective in countering the threat (or, to put it differently, on whether the same goal could not as efficiently be pursued by other means, while fully applying the Convention's provisions).
The Court did not adopt the Commission's line of reasoning. Instead, it said that the flexibility inherent in the concept of "promptness" is very limited since too broad an interpretation would undermine the very right protected. This was deemed particularly true in the instant case because the goals allegedly to be achieved by a longer detention could be attained just as well by imposing - with appropriate procedural precautions - judicial control over the detention.18
The Court thus clearly rejected the Commission's view. In essence, it asserted that even though the term "promptly" can be elastically construed, there is a maximum period of detention compatible with the Convention and that any extension beyond the maximum limit violates individuals' right to personal freedom. And while the Court declined to fix the maximum detention period, it unequivocally stated that it must be conceived of as an absolute, not as an average period applicable only in normal circumstances. This means that in normal cases the authorities should stay well below that limit; the limit should only be reached when strictly necessary.19
The Court did not offer a detailed explanation as to why it did not share the Commission's view. Some useful comments can, however, be made. The application of the concept of "special circumstances" to Article 5 clearly shows that the Commission regards it preferable to allow states a greater freedom in the choice of the measures they deem appropriate to counter terrorism, rather than have them resort to Article 15. By interpreting Article 5 flexibly, that is, by creating a distinction between normal and special cases, the Commission gives states this freedom. In so doing, the Commission seeks to ensure the integral application of the Convention wherever and whenever possible (including in states facing difficult situations), even if at the cost of a relative strain on some of its provisions. In other words, in the opinion of the Commission, in situations of terrorism or risks to institutional stability it is better to have all of the Convention's provisions in force, even if this means guaranteeing some rights (the right to personal freedom, in the present case) in a somewhat attenuated form, than for some of these rights to be suspended outright.
There are some difficulties, in my opinion, with this view: I will try to point them out, and to explain why, apart from the difficulties, it is not a desirable view and has rightly been rejected by the Court.
I have already mentioned that, in a previous case, the Commission had accepted a period of detention of five days because at some point during the detention period the arrestee had to be hospitalized. In the Brogan case this precedent enabled the Commission to assert that the limit of four days only applies to normal cases, whereas in the present case the existence of a special situation, which "requir[ed] a particular measure of sacrifice by each citizen in order to protect the Community as a whole," justified the application of a slightly longer limit. The natural extension of this line of reasoning is that, if each abnormal situation permits the application of a different maximum limit, every individual must expect, owing to some change of circumstances, either a limitation or an enlargement of his or her rights and freedoms under the Convention.
I think it is unwarranted, on the basis of the hospitalization case, to distinguish, in the context of Article 5, between "normal" and "special" cases and to apply to the latter a looser deadline. It is one thing to note the exceptional character of one case, and to create an exception due to the specific features of that case, where the exception remains limited, its future application to other cases improbable. It is entirely another thing to make the exception depend upon the circumstances, such as the political climate, in which the case is situated. What makes this case exceptional is not its special features but its being situated in those circumstances (e.g. terrorism). Applying a longer limit to an entire category of cases, all falling under that exceptional situation, would amount in practice to a modification of the norm.20 Such an interpretation is incompatible with the structure of Article 5, which includes an exhaustive list of the admissible exceptions to the right to personal freedom and makes no distinction as regards special situations.
A differentiation between "normal" and "special" situations also strikes at the very ratio of the regulation concerning police custody in the Convention. The limited duration of police custody under the Convention embodies a compromise between the police's need to detain suspects in order to verify the well-foundedness of their suspicions, and individuals' right not to be unduly detained.21 Its factual premise is a "reasonable suspicion" which may nonetheless prove unfounded. A strict limitation on these powers enables the police to make the necessary checks while insuring that, where suspicions prove groundless, the arrestee is not taxed too heavily.22 The increased gravity of the suspected offence does not increase the likelihood that the suspect has committed it. The right of persons to have their position speedily defined, or be released, should be the same regardless of the crime at issue since a factual uncertainty, being the crux of the matter, has no relation to the gravity of an offence. Admitting longer police custody for those suspected of terrorist offences would alter the balance in favour of the police authorities, conferring on them more sweeping powers and the authority to decide when to use them. In practice the police - this is to say one of the parties to the compromise - would have the power to decide, exclusively upon their own evaluation of the facts, whose freedom to restrict more and whose less before being subjected to an external check. This is precisely what the provision contained in para. 3 is meant to avoid.
In theory anyone could be arrested on the basis of a suspicion which later proves unfounded. This has led the Commission to say that the presence of a terrorist threat requires a greater sacrifice of everybody's freedom.23 According to the Commission, if an individual is arrested, he or she should accept being detained a little longer before being brought before a judge, even though innocent, for the sake of a more effective struggle against terrorism. But, it is precisely in these situations, when the police are likely to arrest more people purely on suspicion, that guarantees to personal freedom should be strengthened, rather than weakened. This would lower the risk of abuses, and reduce the stress for a greater number of innocent people who inevitably end up being arrested.24
12 In para. 48 of the Judgment the Court said:
"Examination of the case must proceed on the basis that the Articles of the Convention in respect of which complaints have been made are fully applicable. This does not, however, preclude proper account being taken of the background circumstances of the case. In the context of Article 5, it is for the Court to determine the significance to be attached to those circumstances and to ascertain whether, in the instant case, the balance struck complied with the applicable provisions of that Article in the light of their particular wording and its overall object and purpose."
13 See Ireland v. United Kingdom, 18 January 1978 A/25, para. 199.
14 See, e.g., the following cases: De Jong, Baljet and Van den Brinck, 22 May 1984, A/77, paras. 52-53; Van der Sluijs, Zuiderveld and Klappe, 22 May 1984, A/78, paras. 46 and 49; Duinhof and Duijf, 22 May 1984, A/79, paras. 36 and 41; McGoff, 26 October 1984, A/83, para. 27.
15 See case of Brogan, supra note 1, para. 60: "There is no call to determine in the present judgment whether in an ordinary criminal case any given period, such as four days, in police or administrative custody would as a general rule be capable of being compatible with the first part of Article 5 para.3."
16 See Decision of the Commission, Appl. 2894/66, 6 October 1966, 9 Yb ECHR 564. A period of five days was deemed acceptable in Decision 19 July 1972, Appl. 4960/71, 42 Coll. Decision, 49. The Commission stated: "ceci n'est dû qu'à des circonstances indépendantes des autorités judiciaires ou de la police" (p. 55).
17 "The Commission has assessed these periods against the background of its case-law according to which a person should not be detained in normal cases for more than four days without being brought before a judicial authority. The Commission is aware, however, that it must strike a fair balance between the interests of the individual and the general interest of the community. ... In so doing, the Commission takes into account that the struggle against terrorism may require a particular measure of sacrifice by each citizen in order to protect the community as a whole against such crimes..." Rep. of the Comm., para. 106.
18 See case of Brogan, supra note 1, para. 61.
20 See in this sense, mutatis mutandis, Soulier, `Lutte contre le terrorisme et droits de l'homme - De la Convention à la Cour Européenne des Droits de l'Homme', 3 Revue de Science Criminelle et Droit Penal Comparé (1987) 663. He adopts the same reasoning to criticize the Commission's position in the McVeigh case.
21 See, with reference to English criminal procedure for ordinary cases, C.J. Hemmins, A Practical Approach to Criminal Procedure (3rd edition) (1985) 354.
22 The corollary of this point is that the police are obliged to release the arrestee if the arrest is not confirmed by the competent authorities (even when they are convinced of his guilt) but cannot be held responsible for the arrest in cases where the suspicions prove unfounded. See, in this sense, Appl. 7033/75 - 12 October 1977 (unpublished) `Digest of the Case-law' at 388: "Whereas, however, in determining what is a reasonable suspicion of having committed an offence permitting arrest or detention of a person under Article 5.1(c) regard must be had to the circumstances of the case as they appeared at the time of the arrest and detention and not as they may appear at some later date."
23 Rep. of the Comm., para. 106 supra note 15. In the McVeigh case, the Commission reasoned in the same way with reference to a general obligation of individuals to accept being detained for more than one day even in absence of suspicions against them, para. 188, supra note 3.
24 See, in this sense, the partly dissenting opinion to the Rep. of the Comm. by MM. J.A. Frowein, S. Trechsel, H.G. Schermers and Mrs. G.H. Thune:
"In the opinion of the majority, the struggle against terrorism justifies that all citizens should accept the risk of being detained for some time beyond four days without being brought before a judge. We cannot accept this position. It is precisely in situations where wider powers of arrest are conferred on the authorities to cope with an organised terrorist threat that the need for judicial control against the abuse of power is greatest. It cannot be said that the need for judicial control is less than in respect of detention for ordinary criminal offences. The Government has alluded to special problems which exist when suspected terrorists are arrested and detained... We agree that account must be taken of these problems but it has not been shown that they exclude judicial control of detention." (pp. 24-5).
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