IHRL does not recognize as such a right to bail or to release pending trial. Rather, it recognizes the right to have a court decide on the lawfulness of a suspectÕs detention promptly after arrest264 in order to verify if this detention is necessary. Except for the AfCHPR, all the three conventions require a judicial control. The ICCPR stipulates that Ôanyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial powerÕ.265 The AmCHR holds that Ôany person detained shall be brought promptly before a judge or other officer authorized by law to exercise judicial powerÕ.266 Similarly, the ECHR provides that Ôeveryone arrested or detained in accordance with
263 Council of Europe Recommendation (CoE) Rec(2006)13 on the use of remand in custody, the conditions in
which it takes place and the provision of safeguards against abuse.
264 Davidson (n8) 13. 265 Art. 9¤3 of the ICCPR. 266 Article 7¤5 of the AmCHR.
the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial powerÕ.267 The lack of such provision in the AfCHPR is compensated by the fact that the African Commission provides for it in its Resolution on Fair Trial.268
The bodies interpreting these instruments provide more details. According to the ECtHR, this judicial control of the detention must be automatic, notably because arrested persons who have been subjected to ill-treatment or are vulnerable persons such as the mentally weak or those who do not speak the language of the judicial officer might be incapable of lodging an application.269 The necessity of the automatic character is also recognized by the HRC.270 The ECtHR adds that the detention Ômust be regularly reviewedÕ.271 This necessity of a regular control stems logically from the fact that the detention must remain necessary. Regarding the requirement of promptness, namely the delay in which the detainee has to appear before a judge, the ECtHR has always refused to fix a precise time limit and insists that Ôthe question whether or not the requirement of promptness has been satisfied must be assessed in each case according to its special featuresÕ.272 This is also the position adopted by the HRC.273 It must be noted that, for the ECtHR, this control would not cease to apply at the beginning of a trial.274
267 Article 5¤3 of the ECHR.
268 AfCmHPR, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa (2003), Section
M 3(a).
269 ECtHR, Judgment, T.W. v. Malta (App. No. 25644/94), 29 April 1999 ¤43; ECtHR, Judgment, McKay v. The
United Kingdom (App. No. 543/03), 3 October 2006 ¤34.
270 HRC, Zhanna Kovsh (Abramova) v. Belarus (Comm. No. 1787/2008), CCPR/C/107/D/1787/2008, 27 March
2013 ¤7.3; HRC, O. Pichugina v. Belarus (Comm. No. n¡1592/2007), CCPR/C/108/D/1592/2007, 17 July 2013 ¤7.3.
271 ECtHR, Judgment, Bezicheri v. Italy (App. No. 11400/85), 25 October 1989;
See also UN General Assembly Res 43/173 (9 December 1988) UN Doc A/RES/43/173 Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, Principle 11(3).
272 ECtHR, Judgment, De Jong, Baljet and Van den Brink v. the Netherlands (App. Nos. 8805/79, 8896/79,
9242/81), 22 May 1984, ¤¤52, 49 and 41 in D. Chatzivassiliou, ÔThe guarantees of judicial control with respect to deprivation of liberty under Article 5 of the European Convention of human rights: An overview of the Strasbourg case-lawÕ (2004)5(4) ERA- Forum 499-519.
273 HRC, McLawrence v. Jamaica (Comm. No. 702/1996), CCPR/ C/60/D/702/1996, 18 July 1997; HRC,
Kurbanov v. Tajikistan (Comm. No. 1096/2002), CCPR/C/79/D/1096/2002, 6 November 2003; See also L. Doswald-Beck, Human Rights in Times of Conflict and Terrorism (OSAIL, 2011) 287.
According to the ECtHR,275 the HRC,276 and the AfCmHR,277 this control has to be done by an authority offering guarantees of independence from the executive and the parties. In addition, in order to guarantee the effectiveness of the right to challenge the lawfulness of the detention, this authority must have the power to order the release of the detainee.278 This is one of the reasons why the ECtHR does not accept a system of mandatory detention for a certain type of offences.279 The other reason is that, according to the ECtHR, Ôthe need to continue the deprivation of liberty cannot be assessed from a purely abstract point of view, taking into consideration only the gravity of the offenceÕ.280 This was clearly expressed by the former European Commission on Human Rights regarding the former section 25 of the United Kingdom Criminal Justice and Public Order Act 1994, which precluded the possibility of pre-trial release for those charged with one among a list of enumerated crimes if previously convicted of one of those crimes.281 Similarly, the ECtHR condemned Malta because the magistrate before whom the applicant had appeared had no power to order his release.282 The HRC followed a similar reasoning.283 The same principle can be inferred from the Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa. It prescribes that the purpose of the judicial review includes giving Ôthe detainee the opportunity to challenge the lawfulness of his or her detention and [to secure] release if the arrest or detention violates his or her rightsÕ.284 If this power to order release is not expressly prescribed in the American human rights system, this
275 ECtHR, Judgment, Neumeister v. Austria (App. No. 1936/63), 27 June 1968 ¤9; ECtHR, Judgment, Assenov and
Others v. Bulgaria (App. No. 90/1997/874/1086), 28 October 1998 ¤148.
276 HRC, Kulomin v Hungary (Comm. No. 591/1992), CCPR/C/50/D/521/1992, 22 March 1996 ¤11.3; HRC, A.
Smantser v. Belarus (Comm. No. 1178/2003), CCPR/C/94/D/1178/2003, 23 October 2008 ¤10.2.
277 AfCmHPR, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa (2003), Section
M 3(a).
278 ECtHR, Judgment, T.W. v. Malta (App. No. 25644/94), 29 April 1999 ¤48; ECtHR, Judgment, Caballero v. UK
(App. No. 32819/96), 8 February 2000 ¤30; ECtHR, Judgment, Medvedyev and others v. France (App. No. 3394/03), 29 March 2010 ¤125.
279 ECtHR, Judgment, Ivan Atanasov v. Bulgaria (App. No. 12853), 2 December 2010. 280 ECtHR, Judgment, Govorushko v. Russia (App. No. 42940/06), 25 October 2007.
281 ECtHR, Judgment, Schiesser v. Switzerland (App. No. 7710/76), 4 December 1979 ¤31; ECtHR, Judgment,
Caballero v. UK (App. No. 32819/96), 8 February 2000 ¤45, ¤54; Fairlie (n9) 1101-1178.
282 ECtHR, Judgment, T.W. v. Malta (App. No. 25644/94), 29 April 1999 ¤48.
283 HRC, A vs. Australia (Comm. No. 560/1993), CCPR/C/59/D/560/1993, 3 April 1997 ¤9.5.
284 AfCmHPR, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa (2003), Section
prescription stems from the need to interpret the convention in order to make its rights effective.285 Indeed, why provide for judicial control if this control could not lead to the release of the accused?
It can therefore be concluded that it is internationally recognized that an independent officer with the power to order the release of the accused has to control the necessity of his or her detention automatically and regularly.