Buzadji v. the Republic of Moldova: a welcome development in pre-trial detention case law

Guest post by Catherine Van de Heyning (Dr. LL.M.), researcher at the University of Antwerp and visiting professor of criminal law at UC Leuven-Limburg.

In the Buzadji v. the Republic of Moldova judgment of 5 July 2016 the ECtHR took the opportunity to clarify its case law on the requirement on a judge to give relevant and sufficient reasons for detention. In its established case law, the Court has already developed criteria for the justification of arrest and detention on remand of suspects pending trial. The Court has found a reasonable suspicion to suffice for the initial detention of a suspect. However, the Court has held that after “a certain lapse of time” reasonable suspicion no longer suffices (a.o. Letellier v. France and Idalov v. Russia). Further detention must be justified in addition on one of the other lawful grounds for detention as enumerated in the ECtHR case law and these grounds must constitute relevant and sufficient reasons. The Court requires “special diligence” from the courts reviewing whether these reasons are provided when deciding on the further detention (a.o. Labita v. Italy and Ilijkov v. Bulgaria).

Due to the lack of a more precise time indication and delineation of relevant and sufficient reasons, the impact of the Strasbourg case law on the domestic practice of pre-trial detention has remained limited. In the Buzadji judgment the Grand Chamber indicated that on two points it felt compelled to further develop its case law. As such, this case is a principled outlining of the Strasbourg case law on pre-trial detention and an important guideline to take into account in practice.

Principled clarification of criteria for relevant and sufficient reasons

The case concerned the detention of a businessman pending the criminal investigation for an unsuccessful attempt of fraud. His initial detention on remand was extended several times. During this time the detention in prison was altered to house arrest upon request of the applicant. After ten months of detention he was released on bail. The applicant was finally exempted of all charges for which he had been detained. Buzadji complained that his right under article 5 § 3 ECHR to liberty and a trial or release pending trial within a reasonable time had been violated given that the domestic courts justified further detention on an incoherent and abstract reasoning.

The Court in the first place assessed the vague notion of “after a lapse of time”. The Court mentioned that this is to be understood as the first judicial control of detention on remand. The ECtHR has already established that this review is to occur promptly after the arrest. As such, the fact that a reasonable suspicion against the suspect exists will only suffice to justify the initial arrest. At the occasion of the first judicial control of the detention on remand relevant and sufficient reasons are to be provided. From the comparative research conducted by the Court it appeared that only in six countries reasonable suspicion would in itself justify detention on remand (Belgium, Serbia, Germany, Austria, Switzerland and Turkey). This practice is therefore no longer compatible with the ECtHR case law.

Second, the Court reminded that the form of detention, whether in prison or house arrest, is immaterial to the requirement to provide sufficient reasons. The fact that Buzadji had requested house arrest instead of detention in prison cannot be equated to a waiver of the right to liberty. Given the general wording of the Court on this point the same reasoning should apply to any form of limitation of liberty pending a trial, including detention by means of an electronic bracelet. Concurring judges Spano and Dedov criticised the judgment for suggesting that a person in detention can waive his right to liberty under article 5 ECHR, even though the Court found on this occasion that the request for house arrest by Buzadji did not equate to such a waiver. The result would be that if such a waiver would be found lawful, the detained person would not be able to rely on the rights afforded by article 5 ECHR (including the right to review). The concurring judges in our opinion correctly assessed that the nature and substance of the right to liberty under article 5 ECHR is not amenable to any kind of “waiver of rights” analysis.

Having clarified these principled points of law, the Court applied its established case law to examine whether the domestic court had provided “relevant and sufficient reasons” to justify the further pre-trial detention of the applicant. This requirement is violated if the decision to prolong detention is based on stereotyped, abstract or inconsistent reasons. The judge or court has to show how the grounds for detention apply concretely to the specific circumstances of the case. In the case of Mr. Buzadji the Court found article 5 ECHR violated as the reasoning of the several judgments to prolong detention were unsubstantiated and inconsistent. The Court highlighted that the national judges had not made any assessment of the person’s character, morals, assets, and links with the country or behaviour during the previous time of the criminal investigation. Moreover, the Court held that collusion with his sons could no longer be upheld after several months of detention as in this period he would have had sufficient time to collude with his sons if he had wanted. As such, the judicial review of the detention on remand did not satisfy the requirement of relevant and sufficient reasons and thus violated article 5 § 3 ECHR.

Clarified standards are a step forward

A recent report of the NGO Fair Trial International brought to attention that not only detention was frequently ordered by national courts on unlawful grounds such as the seriousness of the offense but also that insufficient attention was paid to the specific circumstances of the defendant or concrete risk of flight, interference of evidence, or reoffending. Moreover, the report found that in the actual practice abstract and standard reasoning are frequently applied to justify detention on remand. Even more problematic, several prosecutors in national jurisdictions were of the opinion that the ECtHR case law was not relevant to the domestic context. A clear-cut and better communicated case law of the Strasbourg case law on the criteria justifying pre-trial detention is necessary to improve the domestic standards of judicial review. The clarifications in the Buzadji judgment are therefore a welcome intervention.

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