Chapter 5 • Human Rights and Arrest, Pre-Trial and Administrative Detention Risk of relapse into crime: The risk of repetition of offences is another ground that may justify detention on remand, and in the case of Toth this ground, as well as the danger of the applicant’s absconding, constituted “relevant and sufficient” grounds for justifying his detention on remand, which lasted a little more than two years and one month.157 The European Court noted that the “contested (domestic) decisions took account of the nature of the earlier offences and the number of sentences imposed as a result”, and concluded “that the national courts could reasonably fear that the accused would commit new offences”.158 Prejudice to public order: The European Court has accepted that, “by reason of their particular gravity and public reaction to them, certain offences may give rise to public disquiet capable of justifying pre-trial detention, at least for a time”. In explaining this view, it stated that “in exceptional circumstances – and subject, obviously, to there being sufficient evidence ... – this factor may therefore be taken into account for the purposes of the Convention, in any event in so far as domestic law recognises ... the notion of prejudice to public order caused by an offence. However, this ground can be regarded as relevant and sufficient only provided that it is based on facts capable of showing that the accused’s release would actually prejudice public order. In addition, detention will continue to be legitimate only if public order remains actually threatened; its continuation cannot be used to anticipate a custodial sentence...”.159 In the case of Tomasi – who was accused of participation in a terrorist attack killing one person, although finally acquitted – the Court accepted that it was “reasonable to assume that there was a risk of prejudice to public order at the beginning [of the detention], but [that] it must have disappeared after a certain time”.160 The question arises, however, whether, in a democratic society governed by the rule of law, pre-trial detention, however brief, can ever be legally justified on the basis of a legal notion so easily abused as that of public order. Pressure on witnesses and risk of collusion: A further ground justifying pre-trial detention is the risk of pressure being brought to bear on the witnesses and of collusion between co-accused; however, although such risk is genuine at the outset of the detention, it may gradually diminish, or even disappear altogether.161 It will be for the national courts and ultimately the European Court of Human Rights to assess such risks. 157 Eur. Court HR, Case of Toth v. Austria, judgment of 12 December 1991, Series A, No. 224, p. 19, paras. 69-70 and 73. 158 Ibid., p. 19, para. 70. 159 Eur. Court HR, Case of Tomasi v. France, judgment of 27 August 1992, Series A, No. 241-A, p. 36, para. 91. 160 Ibid., loc. cit. 161 Ibid., pp. 36-37, paras. 92-95. 194 Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers