Chapter 5 • Human Rights and Arrest, Pre-Trial and Administrative Detention
The same argument was invoked, among others, in a case where
approximately two months elapsed between the institution of proceedings and the
delivery of the judgement. Part of this delay was caused by administrative problems due
to the vacation period. However, in addition to the above-mentioned reasoning, the
Court also emphasized that
“it is incumbent on the judicial authorities to make the necessary
administrative arrangements, even during a vacation period, to ensure that
urgent matters are dealt with speedily and this is particularly necessary
when the individual’s personal liberty is at stake. Appropriate provisions
for this purpose do not appear to have been made in the circumstances of
the present case.”223
The five weeks that elapsed between the filing of the application for judicial
review and the additional three weeks that were required to write the judgement did not
comply with the notion of “speedily” in article 5(4) which, consequently, had been
violated.224
Everyone deprived of his or her liberty has the right to challenge the
lawfulness of his or her arrest or detention before a court so that the court
may decide without delay/speedily on the lawfulness of the
detention or order the person’s release if the detention is not lawful.
This right applies to all forms of deprivation of liberty, including
administrative detention.
This judicial remedy must be effectively available to the detainee.
Incommunicado detention is not a valid ground for refusing a
detainee the right to challenge the lawfulness of his or her detention before
a court of law.
The legality of the detention must be determined by a court which is
independent and impartial. Appeals to government ministers do
not constitute a sufficient remedy for the purposes of challenging the
lawfulness of deprivations of liberty.
The court must have the power to review both the procedural and
substantive grounds for the deprivation of liberty and be empowered to
make a binding order for release of the detained person in the event that
his or her deprivation of liberty is unlawful.
Every person deprived of his or her liberty is entitled to have the
lawfulness of the continued detention subjected to periodic reviews
for the purpose of testing whether the reasons for the deprivation of liberty
remain valid; the exception to this rule is detention pursuant to a
criminal conviction by a competent court.
223 Eur. Court HR, Case of E. v. Norway, judgment of 29 August 1990, Series A, No. 181, p. 28, para. 66.
224 Ibid., p. 28, paras. 65-67.
Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers
207
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents