Chapter 5 • Human Rights and Arrest, Pre-Trial and Administrative Detention
Comparing the English and French texts of the provision, the Court
concluded that
“the degree of flexibility attaching to the notion of ‘promptness’ is limited,
even if the attendant circumstances can never be ignored for the purposes
of the assessment under paragraph 3. Whereas promptness is to be
assessed in each case according to its special features ... the
significance to be attached to those features can never be taken to the
point of impairing the very essence of the right guaranteed by
Article 5 § 3, that is to the point of effectively negativing the State’s
obligation to ensure a prompt release or a prompt appearance before a
judicial authority”.124
In the case of Brogan and Others, which concerned the arrest and detention by
virtue of powers granted under special legislation of persons suspected of involvement
in terrorism in Northern Ireland, the issue to be decided by the Court was whether,
“having regard to the special features relied on by the Government, each applicant’s
release can be considered as ‘prompt’ for the purposes of” article 5(3); it is clear that
none of the applicants had been brought before a judge or judicial officer during his
time in custody.125 The Court did accept that
“subject to the existence of adequate safeguards, the context of terrorism
in Northern Ireland has the effect of prolonging the period during which
the authorities may, without violating Article 5 § 3, keep a person suspected
of serious terrorist offences in custody before bringing him before a judge
or other judicial officer”.126
However, the difficulties of judicial control invoked by the Government
could not “justify, under Article 5 § 3, dispensing altogether with ‘prompt’ judicial
control”,127 because “the scope for flexibility in interpreting and applying the notion of
‘promptness’ is very limited”.128 It followed that “even the shortest of the four periods
of detention, namely the four days and six hours spent in police custody” by one
applicant, fell “outside the strict constraints as to time permitted by the first part of
Article 5”. In the words of the Court,
“to attach such importance to the special features of this case as to justify
so lengthy a period of detention without appearance before a judge or
other judicial officer would be an unacceptably wide interpretation of the
plain meaning of the word ‘promptly’. An interpretation to this effect
would import into Article 5 § 3 a serious weakening of a procedural
guarantee to the detriment of the individual and would entail consequences
impairing the very essence of the right protected by this provision. The
Court thus has to conclude that none of the applicants was either brought
‘promptly’ before a judicial authority or released ‘promptly’ following his
arrest. The undoubted fact that arrest and detention of the applicants were
124 Ibid., pp. 32-33, para. 59; emphasis added.
125 Ibid., p. 33, para. 60.
126 Ibid., para. 61.
127 Ibid., loc. cit.
128 Ibid., p. 33, para. 62.
188
Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers
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