Protection of Individuals in the Pre-Trial Procedure
by Dr. Ranier Grote
I. Introduction
Some of the most intricate problems raised by the protection of the fair trial principle concern its implementation in the early stages of criminal proceedings. The importance of the pre-trial procedure for the implementation of the fair trial guarantee has been pointed out in most of the national reports contained in this volume. It has been shown that there are national systems of criminal justice in which the conviction of the accused is heavily based on the evidence produced and the results obtained by the police and the prosecution agencies during pre-trial investigation.(1)
But even in countries where this is not the case and where the evidence in principle has to be adduced and discussed in full before the court at the trial,(2)
statements made by the accused and by witnesses or other evidence obtained during the pre-trial procedure often carry a considerable weight.
The purpose of this survey is to discuss some of the issues that are particularly important to an effective protection of individual rights in the pre-trial procedure, to compare the approaches of the different legal systems on these issues and to assess them in the light of the standards established by the relevant provisions of the international human rights instruments, and notably by articles 9 and 14 of the International Covenant on Civil and Political Rights (ICCPR). On the basis of the national reports, three main areas can be identified which are of crucial importance to a fair treatment of the accused in the pre-trial procedure: the protection from arbitrary detention, the right to silence and the right to counsel. The following remarks try to summarize the observations that can be gathered from the national reports with regard to these issues and to deal with them in a systematical way.
The term "pre-trial procedure" as it is understood in the context of the present analysis covers the whole of the criminal proceedings from the time when the police or the prosecuting magistrate first learns of the occurrence of a crime and starts an enquiry up to the moment when the hearing on the charges before a court begins. The pre-trial procedure thus defined is not dealt with systematically by the international human rights instruments. Some aspects of pre-trial protection of individuals suspected of having committed a crime are covered by special guarantees -- like the freedom from arbitrary detention -- but others, like the right to silence or the right to counsel, are not. Their protection can thus only be derived from the general principle of fair trial as laid down in article 14 of the International Covenant and the corresponding provisions of the international human rights instruments. It is therefore important that the applicability of the fair trial principle to all stages of the criminal proceedings, at least as far as the right to silence and the right to counsel are concerned, seems to be well recognized by the organs of the international human rights instruments. The Human Rights Committee has held in several cases that the Covenant is violated when the accused is deprived of the possibility to see his lawyer and is forced to confess during pre-trial detention.(3)
Similarly, the European Court of Human Rights considers that the principle of fair trial contained in article 6 of the European Convention on Human Rights (ECHR) is not limited to the trial, but is applicable to the proceedings as a whole, of which the trial is only the culmination.(4)
The African Commission on Human and Peoples' Rights in its recent Resolution
on the Right to Recourse Procedure and Fair Trial has equally recognized
that the fair trial principle applies to the pre-trial proceedings as well
and includes, among other things, fundamental safeguards against arbitrary
detention.(5)
II. Protection from Arbitrary Detention During the Pre-trial Procedure
1. The Right of Detained Persons to be Brought Promptly before a Judge
From the perspective of the suspect, the pre-trial procedure in more serious cases usually starts in earnest with his arrest by the police. In most countries, the police is entitled to arrest persons suspected of a criminal offence, either in fulfillment of a judicial warrant or by use of their general powers of arrest, most notably in cases where the suspect has been caught in the act of committing an offence. An important safeguard against arbitrary detention at this stage is the obligation of the police to bring the persons arrested promptly before a judge or other official authorized by law to exercise judicial power. The magistrate before whom the detainee is brought must have the power to release him from detention if the legal requirements for his detention are not fulfilled.
The duty to bring the detainee promptly before a judge is designed to minimise the risk of arbitrariness by submitting interferences of the executive with the individual's right to liberty to an effective control by an independent authority.(6)
The fundamental importance of this safeguard against arbitrary detention
is underlined by the fact that it has been incorporated with almost identical
wording in the International Covenant (article 9 (3) ICCPR), the American
Convention on Human Rights (article 7 (5) AMR) and the European Convention
(article 5 (3) ECHR). Only the African Charter does not mention explicitly
the obligation to bring the detainee promptly before a judge, but the African
Commission on Human and Peoples' Rights has recognized in its recent Resolution
on the Right to Recourse Procedure and a Fair Trial that this obligation
is an integral part of the right to a fair trial guaranteed by article
7 of the Charter.(7)
According to the Human Rights Committee, the delay in bringing the arrested person before a judge under article 9 (3) must not exceed a few days.(8)
A delay exceeding eight days was deemed to be incompatible with article 9 (3) ICCPR.(9)
The European Court on Human Rights has stated that the scope for flexibility in interpreting and applying the notion of "promptness" is very limited, and that periods of detention going beyond four days fall outside the strict constraints as to time permitted by the first part of article 5 (3) of the European Convention.(10)
It would seem that similar standards apply to the construction of the promptness requirement in other international human rights norms as well.
Some countries impose strict limits on the period during which a person may be held in police custody. In the United States, for example, the Fourth Amendment requires an ex parte judicial review of probable cause before or "promptly" after any warrantless arrest; "prompt review" is interpreted as meaning no longer than 48 hours after the arrest, without exceptions.(11)
Other systems impose differing time limits depending on the time of the arrest or the time of the next court sitting. In Canada, any detainee must be brought before a judicial official without unreasonable delay and within twenty-four hours. If a judicial official is not available within that period, the detainee must be brought before him "as soon as possible."(12)
In Germany, the police "may not hold anybody on their own authority longer than the end of the day after the arrest."(13)
Some countries allow senior officers to authorize longer periods of custody than junior ones, with the intention of enabling suspects of serious crimes to be held longer than petty offenders. In England it is possible to hold a suspect for a serious offence, on the authority of senior police officers, for up to 36 hours. Any further detention must be authorized by the courts.(14)
In a number of legal systems the maximum period for which someone can be detained in police custody is longer than the international standard of 24 to 48 hours. In Spain(15)
and Morocco,(16)
for example, suspects may be held for up to 72 hours. In Tunisia, a suspect may remain under custody for up to four days; the district attorney even has the possibility to extend that period twice, for a total of up to six days(17)
.
Most problems in this area arise from the fact that national legal systems often allow for extended periods of police custody for special categories of offenders. In France, individuals who are suspected of having committed offences related to drug trafficking or terrorism can be detained by the police -- with the consent of the public prosecutor -- up to a period of four days.(18)
Even more extreme is the case of Britain, where the police may arrest,
without warrant, any person they reasonably suspect of terrorist activities
under the Prevention of Terrorism Act and detain them for 48 hours. Moreover,
the 48 hour limit can be extended for up to five days by a simple order
of the Secretary of State. The legislation does not state the criteria
that is to guide the Minister in his decision. The European Court on Human
Rights has found, in Brogan v. United Kingdom, that the detention
periods permitted under the Prevention of Terrorism Act infringed the requirement
under article 5 (3) of the European Convention on Human Rights according
to which everybody arrested or detained shall be brought promptly
before a judge.(19)
The protection from arbitrary detention is seriously restricted by laws that accord to the prosecution authorities independent powers to order the arrest and pre-trial detention of suspected persons and limit judicial control over the warrants issued by these authorities. This appears to be the case in Morocco, for example, where the public prosecutor enjoys wide discretionary powers in ordering the arrest of suspects, including in cases in which they do not offer sufficient guarantees to appear before the court, a decision which is entirely left to the free decision of the prosecutor, since there is no control of its legality on the part of the courts.(20)
Such provisions ignore fundamental rights of the accused, because even
in countries where the prosecution is supposed to look for evidence favourable
to the suspect, it does not act with the same independence as the courts
do and does not have the review powers required by article 9 (3) of the
International Covenant and the corresponding provisions in the regional
human rights instruments.(21)
2. Limits on the Use of Pre-Trial Custody
When the suspect is brought before the court, the court -- or in some
legal systems the investigating judge -- decides whether on the evidence
presented so far pre-trial detention should be imposed or whether the suspect
can be released on bail or on his promise to appear for trial. The International
Covenant states that it shall not be the general rule that persons awaiting
trial shall be detained in custody. The Human Rights Committee, in its
General Comment on article 9, has stressed that pre-trial detention should
be an exception and as short as possible.(22)
There are two ways in which the principle that pre-trial detention should be an exception can be implemented: either by imposing strict conditions under which persons suspected of a criminal offence can be arrested or by ensuring that they will be released as quickly as possible when the original cause of their detention have disappeared. In no case, however, may pre-trial detention be used as a form of anticipated punishment of the suspect. The imposition of pre-trial detention for this purpose violates the presumption of innocence recognized by the International Covenant and the regional human rights instruments. The wording of article 9 (3) ICCPR, which provides that release from detention may be subject to guarantees to appear for trial or for execution of the judgement, suggests that pre-trial detention may only serve a limited number of purposes under the Covenant. The Human Rights Committee has interpreted this provision as meaning that the detention of a person must be not only lawful but reasonable and necessary in the circumstances.(23)
The necessity requirement is construed narrowly by the Committee which has held that custody may be justified if it is necessary to prevent flight, interference with evidence or the recurrence of crime.(24)
A similar concept has been incorporated into the European Convention on Human Rights which permits the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so (article 5 (1) (c) ECHR).
Most countries allow for the arrest of the accused or the refusal of his release from detention in cases where there is a substantial reason to believe that the accused, if he remained at liberty, would not show up at the trial or would interfere with witnesses or otherwise obstruct the course of justice.(25)
Rules of this type in general do not raise any problems with regard to the requirements previously mentioned. It should be noted, however, that even where detention is necessary to prevent flight or interference with evidence, it may not be justified in cases where only a minor offence is at stake, given the negative consequences of any deprivation of liberty for the detainee's personal and professional life. This aspect is taken into account by national systems which, like the German or the Danish system, exclude pre-trial detention when its negative consequences risk to be disproportionate to the importance of the offence and the weight of the punishment which may be imposed for its commission(26)
or, like the French system, restrict the admissibilty of pre-trial custody to certain categories of offences for which the maximum punishment is higher than a specified limit (in the French case, the maximum sentence for the offence must be at least two years imprisonment, one year in the case of "flagrant offences"(27)
). In any case, a judicial practice which is based on the general assumption that every suspect is likely to prepare his escape or to interfere with the collection of evidence and therefore routinely imposes or confirms his detention, without having regard to the specific circumstances of the case -- a practice which seems to be quite common in Latin American countries(28)
-- treats pre-trial detention not as an exception but as the rule and constitutes a clear violation of the presumption of innocence.
A number of legal systems recognize "public safety", "public order" or the "public interest" as legitimate grounds for imposing pre-trial detention.(29)
These clauses, however, have to be interpreted narrowly. The wording of article 9 (3) ICCPR indicates that pre-trial detention should be based, in principle, on criteria that serve procedural purposes. While it is widely admitted that the prevention of further crimes by the suspect may justify continued pre-trial custody,(30)
vague and unsubstantiated references to "public order" or the "public interest" do not constitute a sufficient basis for the deprivation of liberty. It is therefore highly questionable, if the public indignation or the "scandal" which the release of the suspect would allegedly provoke can be used as a legitimate grounds for continued pre-trial detention.(31)
The European Court of Human Rights has accepted in the Letellier
case that by reason of their particular gravity and public reaction to
them, certain offences may give rise to a social disturbance capable of
justifying pre-trial detention, at least for a time. But the Court restricted
the admissibility of pre-trial detention in these cases to exceptional
circumstances, in which it can be shown that the accused's release would
actually disturb the public order. In addition, detention would
continue to be legitimate only as long as public order remains actually
threatened.(32)
Equally questionable are various national laws that generally permit or even require the imposition of pre-trial detention for any offence of a certain gravity - such as murder, rape or drug-related offences - without taking into account the specific circumstances of the case at all.(33)
Provisions of this kind are based on criteria of general and special
prevention which apply to the punishment of convicted persons, but are
inapplicable to individuals awaiting trial who are presumed to be innocent.(34)
3. Right to Judicial Review
Article 9 (2) ICCPR provides that anyone who is arrested shall be informed, at the time of his arrest, of the reasons for his arrest and shall be promptly notified of any charges against him. This right to notice is important, because without sufficient information on the reasons for his or her arrest a detained suspect will hardly be able to challenge the legality of his detention successfully. Such a right to challenge is granted to the accused under article 9 (4) ICPPR according to which everybody who is deprived of his liberty shall be entitled to take proceedings before a court, in order that the court may decide without delay on the lawfulness of his detenion and order his release if the detention is not lawful. The European Convention(35)
and the American Convention on Human Rights(36)
contain similar provisions. The right to judicial review of the lawfulness
of the detention is not restricted to persons who have been arrrested on
charges of a criminal offence, but applies to every person who has been
deprived of his liberty. In criminal cases, however, this right will usually
be covered by the right to be brought promptly before a judge recognized
in article 9 (3), provided that the judge or the judicial officer mentioned
in this provision acts with independence equal or similar to that of a
court, is entitled to review the legality of the detention and has the
power, in the case of its unlawfulness, to release the suspect. The relevance
of article 9 (4) to persons accused of a criminal offence is thus restricted
to cases where either the previously stated conditions are not met or the
suspect who is kept in pre-trial detention for a longer period wants to
challenge the lawfulness of his continued detention on the ground that
the motives that originally justified his arrest are no longer valid.(37)
The right of arrested persons to be informed of the reasons for their detention, either on arrest or on their presentation to a magistrate who has to decide whether the detention is confirmed or the suspect is released, is generally recognized; in some countries it enjoys constitutional status.(38)
On the other hand the right to be informed of the nature of the criminal charges brought against them usually does not apply before the formal filing of the charges, i.e. on the first appearance of the suspects before the court,(39)
although some legal systems provide for a summary information at the time of their arrest.(40)
Some national laws provide that the decision to extend the detention or to refuse bail can only be taken by the competent judge after an adversarial hearing has been held, at which the suspect may be represented by his lawyer, who is allowed to consult the files in preparation for the hearing.(41)
The decision of the magistrate that refuses the release from detention can usually be appealed, either by way of habeas corpus or amparo or by some other sort of legal remedy.(42)
Sometimes an automatic review of the legality of the detention is prescribed if the accused is kept in pre-trial detention beyond a certain date,(43)
at least in those cases where he is not represented by a lawyer.(44)
Moreover, a number of legal systems grant the accused the right to ask
for provisional release at any time during his detention. If release is
denied by the competent magistrate, the accused may take the matter to
the court of appeal.(45)
The effectiveness of legal remedies, however, may be limited in practice as in the case of legal systems where the public prosecution enjoys independent powers of arrest or detention which are not subject to any meaningful control of legality by the courts.(46)
Similarly, the protection against arbitrary detention is limited in systems where the remedies of habeas corpus and amparo are excluded for certain types of criminal offences, e.g. for offences relating to the - broadly defined - security of the state(47)
. Finally, even where a comprehensive control of detention orders made
by the prosecution is legally guaranteed, this control does not meet the
requirements of article 9 (4) ICCPR if it is of a purely formal nature
and confines itself to routinely confirming the decision of the prosecution.(48)
4. Length of Pre-Trial Detention
Another important aspect of the protection of the individual in the pre-trial procedure concerns the duration of pre-trial detention. The international human rights instruments -- the International Covenant, the American Convention and the European Convention on Human Rights -- provide that anyone arrested or detained is entitled to a trial within a reasonable time.(49)
The Human Rights Committee has interpreted this as meaning that pre-trial detention should be as short as possible.(50)
In most countries, suspects are arrested by the police and, after a certain delay during which the police try to collect evidence by questioning the suspect or by other means, are presented to a court, if they are not released beforehand. The court then decides whether on the evidence that has been obtained so far the continued detention of the suspect is justified or whether he can be released on bail or on his promise to appear for trial. Some legal systems put a strong emphasis on pre-trial liberty. In England, for example, only about 1 per cent of all detaineees are held for a period longer than 24 hours.(51)
In other countries, a higher percentage of those arrested and charged have to await trial in prison, either because they are not eligible for bail or because the bail is granted under such unfavourable conditions that they are not able to meet them.(52)
In the latter case, the question of time limits for pre-trial detention arises.
There are comparatively few legal systems that provide for an absolute maximum term of pre-trial detention. This position has been adopted by Costa Rica, which has imposed an absolute limit of 27 months on any pre-trial custody.(53)
Most countries, however, provide for flexible limits, corresponding to the gravity of the crime in question and the severity of the punishment to be expected. In France, for example, total pre-trial detention may not exceed six months, if the maximum sentence for the offence is not higher than five years and the prior convictions of the accused are not very serious.(54)
In Argentina, the law provides that bail has to be granted when the accused has been on remand for a period equal or superior to the period of imprisonment which will probably be requested by the prosecution at the trial.(55)
Another technique is used by the German Code on Criminal Procedure which
limits pre-trial detention in principle to a period of six months but allows
for extensions when the complexity of the case so requires.(56)
The practice of pre-trial detention varies widely. In Latin American countries its length is often excessive, with suspects frequently being forced to spend several years in prison.(57)
But excessive pre-trial detention sometimes occurs in Western Europe as well,(58)
although in recent years some major efforts seem to have been made in
order to sensibly reduce the number of prisoners held in pre-trial detention.(59)
5. Right to a Separate Treatment of Pre-Trial Detainees
According to article 10 (2) of the International Covenant accused persons shall, save in exceptional circumstances, be segregated from convicted prisoners and shall be subject to separate treatment appropriate to their status as unconvicted persons. The American Convention on Human Rights contains an identical provision.(60)
The requirement of separate treatment of accused persons according to their status of unconvicted persons is of fundamental importance, because it is designed to reduce the negative effects the temporary deprivation of liberty might have on the personal and professional life of the accused and to remove from pre-trial detention any punitive character which would be incompatible with the presumption of innocence. It has to be acknowledged, however, that though most countries pay lip service to the principle of separate treatment of unconvicted persons, it is routinely ignored in practice, largely because the overcrowding in local prisons has made it impractical. There seem to be no major differences between the wealthy industrial nations and the developing countries on this account.(61)
Some countries lack a special set of rules for unconvicted prisoners. Even if specific rights of unconvicted prisoners are recognized by national legislation or executive guidelines, they are rarely put into practice, due to the lack of appropriate facilities. In most countries, effective legal remedies to challenge intolerable conditions of pre-trial detention are not available.(62)
Where they are, as in the United States, the courts are usually inclined
to respect the institutional constraints resulting from the lack of sufficient
facilities for a separate treatment of unconvicted persons.(63)
It has even been argued that in some respects pre-trial detainees are
treated even worse than convicted prisoners since the short-term nature
of pre-trial detention, combined with the fact that such detention usually
occurs in overcrowded prisons, means that fewer educational, professional
or recreational programs are available to unconvicted persons. This situation
seems bound to endure, since the position of the unconvicted prisoners,
despite the fact that they make up a considerable percentage of the total
prison population in most countries, remains weak. Usually prison systems
are geared to the "treatment and training" of sentenced prisoners.
Set against this objective, the untried are marginal.(64)
III. Right to Silence in the Pre-trial Procedure
1. International and National Guarantees of the Right to Silence
According to article 14 (3) (g) of the International Covenant, everyone
is entitled, in the determination of any criminal charge against him, not
to be compelled to testify against himself or to confess guilt. Although
the right to silence is guaranteed as part of the accused's right to a
fair trial, the Human Rights Committee did not hesitate to apply it to
the pre-trial procedure as well. In the Conteris case the Committee
held that the confession signed by a person who was kept in pre-trial detention
by the security police for several months and was subjected to various
forms of torture during this period violated article 14 (3) (g).(65)
The American Convention on Human Rights contains provisions similar to those in the International Covenant. article 8 (2) (g) explicitly recognizes the right of every person accused of a criminal offence not to be compelled to be a witness against himself or to plead guilty. Additionally, article 8 (3) of the Convention declares that a confession of guilt by the accused shall be valid only if it is made without coercion of any kind. Both provisions have been applied by the Inter-American Commisssion on Human Rights to the interrogation of suspects by police officers during the pre-trial investigation.(66)
On the other hand, the European Convention on Human Rights does not expressly provide for the right to silence. It is generally recognized, however, that the ban on torture and cruel, inhuman or degrading treatment in article 3 does prohibit the use of torture and oppression to obtain confessions or incriminating statements from the accused.(67)
Moreover, the European Court of Human Rights has explicitly confirmed
that the right to remain silent under police questioning and the privilege
against self-incrimination lie at the heart of the notion of a fair trial
procedure under article 6 ECHR. By providing the accused with protection
against improper compulsion by the authorities the immunitities contribute
in the Court's view to avoiding miscarriages of justice and to securing
the aims of article 6.(68)
In some legal systems, the right to silence is expressly recognized by the Constitution (for example, in the United States,(69)
Canada,(70)
Mexico,(71)
or Uganda(72)
). In those countries where it is not constitutionally guaranteed, the national legislation usually provides for a right to be silent before the investigating authorities and the court. The effective implementation of this principle, however, varies considerably from country to country. One of the countries which, at least in principle, ensures a comprehensive protection of the right is the United States. Prior to any interrogation of a suspect under arrest or otherwise "in custody", the suspect must be warned that he has a right to remain silent and that any statement he makes can be used in evidence against him. The accused's silence following these warnings cannot be used against him at trial. The suspect may at any time decline to answer further questions, and his decision to terminate questioning must be immediately and scrupulously honoured, although the police may, after a period of time, ask further questions.(73)
However, all these rights can be waived, and in practice routinely are.(74)
A confession that has been obtained in the absence of warnings cannot
be used in evidence against the accused, except for the purpose of impeaching
his trial testimony.(75)
It seems that in most other countries the implementation of the right to silence has been less than perfect. While the principle that the accused is under no legal obligation to answer questions during investigation is widely recognized, the accused is not always informed of his right before the questioning starts.(76)
Even where a duty to inform is explicitly provided for, its violation does not necessarily imply the inadmissibilitiy of the evidence obtained as a result of the interrogation.(77)
Whereas the American Supreme Court was distrustful of police powers during pre-trial custody when it formulated the Miranda rights, most national legislatures and national courts take a much more optimistic view of police investigations. France is a case in point. The French police are entitled to detain persons caught in the act of committing an offence or shortly thereafter (en flagrant délit) - conditions which are interpreted broadly in practice - for a period up to 48 hours. During this period the police may interrogate the detainee. There is no legal obligation on the part of the police officer conducting the interrogation to inform the suspect of his right to silence. Until 1993, there was not even a right to counsel. Even if it can be shown that the suspect did indeed invoke his right to silence and that this right has been violated during the custodial interrogation, this does not necessarily mean that the statements thus obtained may not be used against him. Although French criminal courts are theoretically entitled to nullify any police procedure that violates substantive or procedural legal rules, this power is rarely used when it comes to assessing the legality of investigative activities by the police during pre-trial custody (garde-à-vue). They are only nullified in the rare cases where it can be established that the search for the truth has been "fundamentally misled" (fondamentalement vicié) by these acts.
2. Limits to the Right to Silence
In theory no legal sanctions attach to the refusal of the accused to
speak to the police or other investigating authorities. In reality, however,
the courts may often draw negative inferences from the accused's silence
when pondering their final judgement. It has even been said that in some
countries the courts will take the accused's silence for an implicit confession
of guilt.(78)
The English legislature has recently tried to define the situations in which the court may draw an inference from the accused's silence during the police interrogation and at trial. Historically, English criminal law has always recognized a right to silence.(79)
Its protection, however, has never been absolute, since the questioning carried on between an accused and an accuser who are considered to stand on an even footing may, where the accused remains silent, give rise to an inference against him that he accepts the substance of what is being said.(80)
The Criminal Justice and Public Order Act 1994 places further restrictions on the right to silence. A court can now draw such inferences as appear proper if the accused relies on a fact at the trial which he or she could reasonably have mentioned, but did not, during police questioning. Inferences may only be drawn, however, if the prosecution has otherwise provided substantial evidence linking the accused with the offence.(81)
Although these rules put the accused under considerable psychological pressure when it comes to the decision whether to testify or to remain silent,(82)
the European Court of Human Rights has held them to be compatible with
the privilege against self-incrimination protected by article 6 of the
European Convention. According to the Court, the right to silence is not
absolute in the sense that its exercise by the accused cannot under any
circumstances be used against him at trial. It does not exclude that common-sense
inferences are drawn from his silence in situations where the prosecutor
has established a prima facie case against him and the evidence presented
calls for an explanation which the accused ought to be in a position to
give. The Court characterized the relevant provisions in the Criminal Evidence
Order 1988 for Northern Ireland, which were similar to those incorporated
later into the Criminal Justice and Public Order Act, as a formalised system
which aims at allowing common-sense implications to play an open role in
the assessment of evidence and thus does not infringe upon the privilege
against self-incrimination granted by article 6.(83)
3. Scope of the Right to Silence with Regard to Violent and Non-Violent Methods of Interrogation
Under the provisions of most legal systems, statements or confessions made by the accused during pre-trial interrogation can only be used against him if they were made voluntarily. The law usually prohibits all coercive methods of interrogation, thus excluding all forms of torture, inhuman or degrading treatment and the use or threat of violence. In principle, any statement obtained in direct violation of the prohibition of coercion is inadmissible at trial. Thus confessions extracted by violent means are generally excluded.
It is a matter of controversy, however, whether any further evidence which is discovered as a result of such a confession -- i.e. physical evidence, prosecution witnesses, subsequent statements repeating or expanding upon the initial statement -- is admissible against the defendant. The American legal practice has developed the "fruit of the poisonous tree" doctrine according to which such derivative fruits from unlawfully obtained confessions are, at least in principle, inadmissible. The "fruit of the poisoned tree" doctrine seems to be accepted, as far as evidence resulting indirectly from torture or other violent means of interrogation is concerned, in other legal systems as well. Among Islamic jurists, for example, the majority opinion strictly exculdes any coerced admissions by the accused, even if they lead to the recovery of the victim of a murder or of stolen goods in a robbery.(84)
However, even in this limited version the "fruit of the poisoned tree" doctrine appears to be far from being followed unanimously. English law, for example, explicitly provides that the fact that a confession is wholly or partially excluded because it has been obtained by torture or other oppressive means shall not affect the admissibility in evidence on any facts discovered as a result of the confession.(85)
The same appears to be true in other countries,(86)
some of which allow the use of further information at least in cases where this information was otherwise lawfully obtained or could have been obtained lawfully.(87)
It is submitted, however, that only the rigid exclusion of any evidence which might result from a confession obtained by means of actual or threatened physical abuse is in accordance with the standards established by the International Covenant. The Human Rights Committee recognized as much when it stated, in its General Comment on article 14, that in order to compel the accused to confess or to testify against himself, frequently methods which violate the ban on torture and on cruel and inhuman treatment are used. Therefore the law should require that evidence provided by means of such methods or any other form of compulsion is wholly unacceptable.(88)
If one accepts that the protection of the accused against torture and
inhumane treatment during custodial interrogation is of fundamental importance
to the effective implementation of human rights in the field of criminal
justice, the best way to achieve this purpose is the total exclusion of
any statement of the accused which has been obtained by such means and
of any further evidence which is derived from it.(89)
The restrictions imposed on the manipulation of the accused by non-violent methods of pre-trial interrogation in national legal systems seem to be much less severe. Most laws prohibit promises of leniency as a means to extract a confession.(90)
On the other hand, deception as such is not generally prohibited.(91)
Even where it is, this does not necessarily mean that a statement or a confession obtained by means of deception will be inadmissible at trial.
In most legal systems, including those that formally prohibit certain methods of interrogation, the decisive test in deciding on the admissibility of a confession or a statement by the accused is whether it was made voluntarily or not.(92)
The general trend seems to be to provide for the strict inadmissibility of the confession in cases involving physical abuse, and to grant a considerable degree of discretion to the judge in all other cases. This approach is typical of, but not restricted to the common law countries. In England, the Police and Criminal Evidence Act 1984 provides that a confession that has been obtained as the result of torture or inhuman or degrading treatment or in circumstances that are likely to detract from its veracity must be excluded. In other cases, the judge has the general power to exclude any kind of evidence if it appears to him that its admission would have an adverse effect on the fairness of the proceedings.(93)
Misleading the accused falls under the discretionary power to exclude contained in the Police and Criminal Evidence Act.(94)
Similarly, in the United States the judge has to assess the "voluntariness" of the statement under the totality of the circumstances of the case. Only actual physical harm or threats of physical abuse are per se sufficient to make a confession involuntary.(95)
In Israel, only in cases where the pressure brought to bear upon the accused was particularly severe, especially in cases of torture, a confession is automatically disqualified; in all other cases the court is free to examine whether the disqualified methods of interrogation did indeed prejudice the accused's free will. This examination is said to be extremely complex, and in most cases the court will come to the conclusion that the free will was not adversely affected.(96)
In sum, the survey of national legal systems shows that in most countries the investigating authorities, apart from the use of physical violence, enjoy a considerable degree of freedom in the choice of the appropriate interrogation methods.
4. Burden of Proof
An aspect of the problem of admissibility of unlawfully obtained statements which is of practical importance concerns the question who should bear the burden of proof in cases where it is disputed whether illegal methods of interrogation have been used or not. In principle, it should be the responsibility of the prosecution to show that the evidence it relies upon to convict the accused has been obtained lawfully. This is the position adopted by English law,(97)
which provides that in any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, the court may of its own motion require the prosecution to prove that the confession was not obtained by the use of oppressive means, but also of other legal systems.(98)
In general, however, the chances of an accused being able to show that his confession was obtained by disqualified methods are not particularly good. The observations which have been made with regard to the practice observed in Israel(99)
seem to apply to other countries as well. The accused does not normally
have witnesses to corroborate his allegations of torture or ill-treatment,
he is not able to write or document the details of the interrogation, and
when he testifies in court he will often give inaccurate factual descriptions
of the interrogation. The interrogators, on the other hand, can document
the interrogation, coordinate testimonies among themselves and often are
believed more readily by the courts than the accused. An effective means
to prevent the worst abuses seems to be the mandatory video recording of
police interrogations at least in more serious cases.(100)
IV. Right to Counsel During the Pre-trial Procedure
The right to counsel is crucial to any effective protection of the rights of the individual in the pre-trial procedure. Most suspects are ignorant of their rights and of the implications of the allegations or evidence placed against them. A suspect is in need of reliable information including on such matters as how long the police may detain him or her, what inference a court may draw from a refusal to answer questions and whether the questions asked by the police are fair or biased. Therefore the right to consult a lawyer at an early stage of the proceedings is important and may act as a check on improper investigative methods used by the prosecution. On the other hand, the investigating authorities, especially the police, will often argue that the right to consult a lawyer during the pre-trial procedure is likely to hamper the effectiveness of the investigation and that a truly innocent person has no need of a lawyer at this stage of the proceedings.
1. Guarantees of the Right to Counsel under International and National Law, Especially During Police Interrogation
The International Covenant on Civil and Political Rights guarantees in article 14 (3) (b) the right of the accused to have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing. Additionally, article 14 (3) (d) recognises his right to defend himself through legal assistance of his own choosing, to be informed of this right, if he does not have legal assistance, and to have legal assistance assigned to him at no cost if he does not have the necessary means to pay for it whenever the interests of justice so require. The wording of these provisions leaves it unclear whether this right applies only to the trial procedure or to the criminal proceedings as a whole. The Human Rights Committee held, however, in a case where a Uruguayan citizen indicted by a military tribunal was not allowed to see his defense lawyer for two years that denying the accused's right to see his attorney during this period violated his right under article 14 (3) (b).(101)
This decision suggests that the accused has a right to see an attorney at all times during the pre-trial period.
As to the regional human rights instruments, article 8 (2) (c) - (e) of the American Convention grants similar rights to every person accused of a criminal offence. The Inter-American Commission on Human Rights has made it clear that detainees have a right to be assisted by counsel from the time of their arrest on.(102)
The right to defence is also guaranteed by the African Charter on Human Rights, although in fairly general terms.(103)
The African Commission has recognized in its Resolution on the Right to Recourse Procedure and Fair Trial the right of individuals charged with criminal offences to communicate in confidence with counsel of their choice as an essential component of the fair trial principle.(104)
Under the European Convention the right to counsel applies to all stages of criminal proceedings including the preliminary investigation if and so far as the fairness of the trial is likely to be prejudiced by an initial failure to comply with the requirements of article 6.(105)
The European Court of Human Rights has pointed out that the application
of article 6 depends on the special features of the proceedings involved
and on the circumstances of the case. It has held that the concept of fairness
enshrined in article 6 requires that the accused has the benefit of the
assistance of a lawyer already at the early stages of police interrogation
in situations that carry the risk that the rights of the defence may be
irretrievably prejudiced. According to the jurisprudence of the Court,
this is the case when the rules on criminal procedure provide for the possibility
that the silence of the accused during police interrogation is used against
him at the trial, because such a scheme confronts him already at the beginning
of the police interview with a fundamental dilemma which calls for qualified
advice by a lawyer.(106)
The scope of the right to counsel recognized in individual legal systems seems to vary considerably. In the United States, the accused enjoys a fairly comprehensive access to legal advice during the pre-trial procedure. Under the Miranda rules every person suspected of a criminal offence who is subjected to interrogation during police custody has the right to have an attorney present and to be informed of this right. Any statement obtained in direct violation of these rules is inadmissible at trial (except for impeaching the accused's trial testimony).(107)
Apart from the cases falling under the Miranda rules, the accused
has a right to counsel under the Sixth Amendment to the U.S. Constitution.
This right applies once a suspect has been formally charged with a crime
or taken to court and arraigned on police-filed charges. It is restricted
to the critical stages of the criminal prosecution where important rights
of the accused may be irretrievably lost, such as interrogation or identification
procedures involving the display of the accused person to one or more witnesses.
The accused must be specifically advised of this right, including his right
to receive appointed counsel paid by the state, if he is indigent.(108)
Other jurisdictions allow legal advice only after an initial interrogation of the accused by the police. In Morocco, the law does not give the accused the right to a lawyer during the time when he is held in police custody (the garde-à-vue period). The right of the accused to a lawyer starts only to apply with the first interrogation before the investigating judge or the public prosecutor.(109)
This is crucial, since the statements produced by judicial police officers play a very important role in the conviction of the accused in a considerable number of criminal cases (i.e. the "infraction" and "correctionelle" cases).(110)
Until 1993, French legislation only allowed legal advice to be given after questioning by the police which may take place in the 48 hour period before the suspect is brought before a judge. Since the reform of 1993 came into force, the accused is entitled to have a conversation of thirty minutes with his lawyer before the police interrogation starts. The lawyer has the right to make written observations which are placed on file, but he is not permitted to be present at the interrogation.(111)
Similarly, in Senegal the suspect does not have the right to be assisted
by his lawyer during the interrogation at the police station.(112)
Germany puts restrictions on legal representation during the first interrogations at the police station, too. In principle, the lawyer is not entitled to be present at police interrogations of the accused. The accused may, however, compel the police to accept the presence of a lawyer by refusing to testify in his absence.(113)
In England, the suspect who has been arrested has to be informed immediately on his arrival at the police station that he has a right to legal advice. However, the police may delay calling a legal adviser as requested if the suspect is detained in connection with a serious arrestable offence and if the competent police officer reasonably believes that the exercise of the right would lead to interference or to the alerting of other suspects or hinder the recovery of the proceeds of the crime.(114)
Israel has adopted a similar approach. The police officer may decide to delay the meeting between the accused and his lawyer -- to which the former is entitled once he has been arrested -- for a number of hours if there is reason to believe that such a meeting would prejudice the investigation or prevent the arrest of additional suspects.(115)
Even in countries where the right to consult a lawyer before the first police interrogation starts is constitutionally recognized, this right has not always been effectively implemented. In Mexico, the accused has the right to the presence of counsel at all stages of the proceedings(116)
and shall be allowed to communicate personally or by phone with his lawyer. In practice, however, this right is frequently denied before the first statement of the accused under arrest.(117)
Moreover, the implementation of the right to a lawyer during the pre-trial
procedure is often hampered by the fact that there exists no binding obligation
on the part of the investigating authorities to inform the accused of this
right. In Malaysia, for example, the right to counsel begins at the time
of the arrest, but it is usually not before the start of trial that the
accused is informed of this right.(118)
Frequently special provisions apply to the right to counsel of certain categories of suspects. In Israel, the police may delay the meeting between the suspect and his lawyer in the case of an alleged crime against the security of the State for a period of seven days, which may be extended to fifteen days.(119)
In France, the right to legal advice during police custody (garde-à-vue) can be suspended for persons suspected of particularly grave offences for a period up to 35 hours.(120)
Similarly, the British legislation provides for the delay of communication with the outside world, including a lawyer, for persons suspected of drug-trafficking and individuals detained under the Prevention of Terrorism Act.(121)
Even more severe are the anti-terrorist and anti-drug laws which have
been enacted in a number of Latin American countries and which allow for
extended periods of solitary confinement of persons arrested under these
provisions.(122)
2. Right to Receive Counsel Paid for by the State
To the extent to which a right to counsel is recognized during the pre-trial procedure, accused persons who cannot afford counsel generally have a right to receive counsel paid for by the state. In some legal systems, this right seems to apply regardless of the nature of the crime of which the accused is suspected once he has been arrested. This is obviously the case in the U.S.(123)
and in Mexico.(124)
In general, however, the right to have legal assistance assigned at no cost is restricted to criminal cases of a certain gravity. Most legal systems opt for an approach that guarantees the right to counsel whenever "the interests of justice" so require, an approach that has also been adopted by the International Covenant on Civil and Political Rights and the European Convention on Human Rights. The "interests of justice" normally require legal representation at no cost to the indigent suspect whenever he faces a particularly severe punishment: capital punishment, long imprisonment, loss of livelihood.(125)
The complexity of the factual and legal issues involved and the personal characteristics of the accused, i.e. his ability to defend himself properly, are also taken into account.(126)
In some countries, however, the "interests of justice" seem to have received an exceedingly narrow interpretation and are limited to capital cases (as in Malaysia(127)
and Uganda(128)
). Appointed counsel usually receive a remuneration well below the amount which a private lawyer could expect in a similar case.(129)
There are countries where the appointed lawyer does not receive any fees by the state and even has to pay for his expenses himself.(130)
Not surprisingly, the quality of the legal advice given by appointed
counsel is often said to be very poor.(131)
V. Conclusion : The Need for a Strenghtening of the Protection of Individual Rights in the Pre-trial Procedure
This survey has identified several sectors in which the standards established by the international human rights instruments, and notably by the International Covenant on Civil and Political rights, have not yet fully been met in state practice.
To begin with, national legislation governing pre-trial detention does not always comply with the presumption of innocence, i.e. the principle that a person should be considered innocent until proven guilty. This principle is ignored by criminal law provisions that recognize the disturbance of public order as legitimate grounds for detention, or that permit the competent authorities to impose pre-trial detention on petty recidivists in order to protect public security. The presumption of innocence is also violated by laws that declare pre-trial detention to be obligatory in the case of particularly serious crimes or particularly serious offenders, regardless of the specific circumstances of the case. Furthermore, it is incompatible with any statutory rule or legal practice which take into account the requirement of special and general prevention when deciding on the admissibility of pre-trial detention. The previously mentioned types of legislation blur the boundaries between pre-trial detention and anticipated punishment by imprisonment and thus strip the presumption of innocence of any substantial meaning. This danger can only be avoided if the use of pre-trial detention is restricted, in accordance with the cautious approach adopted by the Human Rights Committee, to cases where it is necessary to prevent flight, interference with evidence or the recurrence of crime.
One of the worst problems in relation to pre-trial detention is created by the lack of adequate prison facilities for unconvicted inmates. It seems that the rule contained in article 10 (2) of the International Covenant, according to which accused persons shall, save in exceptional circumstances, be subject to separate treatment appropriate to their status as unconvicted persons, is largely ignored in practice, due to the frequent overcrowding of prisons, the absence of a specific prison policy for unconvicted persons and the lack of proper funding for remand centres. This situation is particularly disturbing because it implies that the practical effects of pre-trial detention will often closely resemble those of imprisonment after conviction, thus emphasizing its character of punishment in anticipation and this is incompatible with the presumption of innocence.
The implementation of the right to silence during the pre-trial procedure in the national legal systems raises some serious doubts about its effectiveness. While it is generally recognized that the right to silence applies to the early stages of criminal proceedings, police strategies designed to circumvent the practical implications of this right -- for example, by not informing the accused of his right to silence or by continuing with the interrogation once he has made it clear that he does not want to answer the questions -- are rarely penalized. In recent times, some countries like Britain or Zimbabwe have even started to impose formal limits on the right to silence by statute. It is a matter of particular concern that even in the case where a confession has been extracted by means of physical abuse of the accused, there is no general agreement on the question whether any evidence which has been discovered as a result of such an extracted statement may be used at trial or not. It is difficult to believe, however, that anything short of a comprehensive ban on evidence discovered directly or indirectly by means of physical abuse could eliminate the danger of any further use of such methods as an efficient means of conviction in practice.
Finally, this survey indicates that the right to counsel is insufficiently protected at the early stages of the proceedings in numerous legal systems which do not permit the consultation of a lawyer before the end of the initial interrogation of the accused by the police, which is often crucial to the outcome of the proceedings as a whole. While the absence of legal advice in the early stages of the prosecution may increase the pressure on the accused to cooperate with the police, it also puts him at a severe disadvantage in comparison to the investigating authorities, since most defendants do not know their rights and are not able to properly assess the significance of the allegations placed against them. Therefore a legal obligation should be imposed on the police and the public prosecutor to allow the presence of a lawyer at all "critical stages" of the pre-trial procedure, i.e. at all stages of the proceedings where importants rights of the defendant may be irretrievably lost. Moreover, indigent defendants should have the right to have legal assistance assigned to them before the first interrogation in all cases in which they face a severe punishment if convicted, i.e. in cases in which they are charged with crimes carrying a prison sentence.
1This seems to be the case notably in Latin countries; for a description of the Spanish criminal procedure see Eur. Court H.R., Barberà, Messegué and Jabardo Judgement of 6 December 1988, p.21/22; for Mexico Miguel Sarre/Fernando Arturo Figueroa, Perspectives on the Right to a Fair Trial, p. 1, 10; for France Holger Barth/Birgit Koch, Frankreich, in: Walter Perron (ed.), Die Beweisaufnahme im Strafverfahrensrecht des Auslands, 1995, p. 107/108.
2This is the case particularly in the Anglo-Saxon legal systems; for England see Barbara Huber, England und Wales, in: Perron (note 1), p. 43/44; for the United States Stephen C. Thaman, USA, in : Perron, op. cit., p. 508.
3Conteris v. Uruguay, Report of the Human Rights Committee. Official Records of the General Assembly (hereinafter : Report), Fortieth session (A/40/40), Annex XI; Manera Lluberas v. Uruguay, Report. Thirty-ninth session (A/39/40), Annex XII.
4Eur. Court H.R., Imbrioscia v. Switzerland Judgement of 24 November 1993, Series A no. 275, p. 13; John Murray v. the United Kingdom Judgement of 8 February 1996, p. 26.
5The Resolution was adopted at the 11th ordinary Session of the African Commission on Human and Peoples' Rights in Tunis, 2-9 March 1992. The Resolution states, inter alia, the following principles: "The African Commission . . . bearing in mind article 7 of the African Charter . . . considers . . . that the Right to fair trial includes, among other things, the following . . . B. Persons who are arrested shall be informed, at the time of arrest, in a language which they understand of the reasons for their arrest and shall be informed promptly of any charges against them. C. Persons arrested or detained shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or be released." For a detailed account of the resolution see Ibrahim Ali Badawi El-Sheik, Preliminary remarks on the Right to a Fair Trial under the African Charter on Human and Peoples' Rights, p. 3/4.
6Eur. Court H.R., Brogan and Others Judgement of 29 November 1988, Series A. no. 145-B, p. 32.
7Point C of the Resolution of March 1992 (note 5).
8Human Rights Committee, General Comment 8, article 9, in: Cherif Bassiouni, The Protection of Human Rights in the Administration of Criminal Justice. A compendium of United Nations Norms and Standards, 1994, p. 63.
9Alfred de Zayas, The United Nations and the Guarantees of a Fair Trial in the International Covenant on Civil and Political Rights and the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, p. 13.
10Eur. Court H.R., Brogan and Others (note 6), p. 33.
11Richard Frase, Fair Trial Standards in the United States of America, p. 16.
12Kent Roach/ M.L. Friedland, The Right to a Fair Trial in Canada, p. 10.
13Article 104 (2) of the Basic Law.
14Sect. 42 Police and Criminal Evidence Act 1984.
15Alberto Jarabo Calatayud, The Right to a Fair Trial in Spain, p. 11.
16Abdelaziz Nouaydi, The Right to a Fair Trial in the Moroccan Criminal Procedure, p. 12.
17Akila Jarraya, A Fair Trial for Defendant and the Protection of his Basic Rights in the Tunisian Legal System, p. 4.
18Martine Mérigeau, France, in: Frieder Dünkel/Jon Vagg (ed.), Waiting for trial, vol. I, 1994, p. 231.
19Above note 6, p. 33. Britain has subsequently derogated from article 5 (3) of the Convention.
20Nouaydi (note 16), p. 17, 23.
21For a critical appraisal of the situation in Mexico, where the public prosecutor -- the Ministerio Público -- enjoys the status of an impartial and neutral authority during the pre-trial investigation, see Sarre/Figueroa (note 1), p. 2.
22General Comment 8, article 9 (Sixteenth session, 1982), in: Bassiouni (note 8), p. 63.
23V. Alphen v. the Netherlands, Report. Forty-fifth session (A/45/40), vol. II, Annex IX.M.
24Id.
25Andrzej Rzeplinski, The Right to a Fair Trial in Poland, p. 7; Peter Garde, The Right to a Fair Trial in the Kingdom of Denmark, p. 5/6; Erich Samson, Questionnaire on the Right to a Fair Trial, p. 2; Frase (note 11), p. 14; Dato' Mahadev Shankar, The Right to a Fair Trial in Malaysia, p. 13; Gamal Attia, Interpretative Memo Attached to the Questionnaire of "Right to Fair Trial", p. 9.
26Claus Roxin, Strafverfahrensrecht, 24. Aufl., 1995, S. 223; Peter Garde (note 25), p. 6.
27Mérigeau (note 18), p. 227.
28Javier Llobet R., Central and South-American States, in: Dünkel/Vagg (note 18), p. 342.
29For example in countries like France or Uganda, see Répertoire Dalloz Procédure pénale, Détention provisoire et contrôle judiciaire, n 62; Alfred P. W. Nasaba, The Right to a Fair Trial in Uganda, p. 9. In Canada, a statutory authorization to continue detention when necessary in the public interest was struck down by the Supreme Court as excessively vague, see Roach/Friedland (note 12), p. 11.
30Van Alphen v. the Netherlands (note 23).
31This practice seems to be quite common in some Latin American states, see Llobet (note 28), p. 346.
32Eur. Court H.R., Letellier Judgment of 26 June 1991, Series A no. 207, p. 21
33Rules of this kind are fairly common, see Llobet (note 28), p. 345; Avigdor Feldman, The Right to a Fair Trial in Israel, p. 13.
34Llobet (note 28), p. 371.
35Article 6 (2), (4) ECHR.
36Article 7 (5), (6) AMR.
37See Mark Villiger, Handbuch der Europäischen Menschenrechtskonvention (EMRK), 1993, p. 216, on the corresponding provisions of the European Convention on Human Rights.
38Sect. 10 (a) of the Canadian Charter of Rights and Freedoms; Sect. 25 (1) (a) of the Interim Constitution of South Africa; Article 104 (3) of the Basic Law of Germany.
39Frase (note 11), p. 16; Sarre/Figueroa (note 1), p. 5.
40Feldman (note 33), p. 11; José Lluis de la Cuesta/José Francisco Exteberria/Iñaki Esparza, Spain, in: Dünkel/Vagg (note 18), p. 611.
41Répertoire Dalloz (note 29), n 124.
42Frase (note 11), p. 15; Roach/Friedland (note 12), p. 12; Sarre/Figueroa (note 1), p. 5; Jarabo Calatayud (note 13), p. 15.
43This is the case in Canada, see Roach/Friedland (note 12), p. 12.
44 117 Abs. 5 German Code on Criminal Procedure.
45Répertoire Dalloz (note 29), n 133, 135; Nouaydi (note 16), p. 16.
46Nouaydi (note 16), p. 23.
47Dato' Mahadev Shankar, (note 25), p. 14.
48This seems to be the case in Mexico, see Sarre/Figueroa (note 1), p. 5.
49Article 9 (3) ICCPR; article 5 (3) ECHR; article 7 (5) AMR.
50General Comment 8, article 9 (Sixteenth session, 1982), in: Bassiouni (note 8), p. 63.
51Brice Dickson, The Right to a Fair Trial in England and Wales, p. 15.
52This problem arises frequently in Latin American countries, see Llobet (note 28), p. 350.
53Llobet (note 28), p. 351.
54Mérigeau (note 18), p. 228. For the situation in Tunisia see Jarraya (note 17), p. 5.
55Llobet (note 28), p. 352.
56 121 Abs. 1 German Code on Criminal Procedure (Strafprozeßordnung).
57Llobet (note 28), p. 352/353.
58This case is illustrated by Letellier v. France (note 28), in which the defendant was found to be in breach of article 5 (3) of the Convention for having held a suspect in pre-trial detention for two years and nine months.
59Jon Vagg/Frieder Dünkel, Conclusions, in: Dünkel/Vagg (note 18), p. 929/ 930. On recent efforts to limit the use of pre-trial detention in France see André Vitu, Die Grundzüge des französischen Strafverfahrens, in: Heike Jung (ed.), Der Strafprozeß im Spiegel ausländischer Verfahrensordnungen, 1990, p. 37.
60Article 5 (4) AMR.
61For the industrialized countries see Frase (note 11), p. 13 (U.S.A.); Rod Morgan, England/Wales, in: Dünkel/Vagg (note 18), p. 203 - 205. For the developing countries see, among others, Nouaydi (note 16), p. 30 (Morocco); Sény Diagne, The Right to a Fair Trial. The Case of Senegal, p. 10; Ziyad Motala, The Right to Fair Trial Procedures in South Africa, p. 10; Shankar, (note 25), p. 12.
62Roach/Friedland (note 12), p. 12; Sarre/Figueroa (above note 1), p. 5; Nasaba (note 25), p. 10.
63In the United States it had been argued that unconvicted persons, because they had to be considered as innocent until proven guilty, should have all the rights of ordinary citizens except those limited by the detention setting. The Supreme Court, however, decided otherwise. It held that unless jail practices applied to unconvicted persons could be shown to be punitive in intent or by social acceptance, they could be justified as regulatory. In other words, detainees were not different from convicted inmates, see Patrick McAnany, Pre-trial detention in the USA, in: Dünkel/Vagg (note 18), p. 778/779.
64Morgan (note 61), p. 205.
65Conteris v. Uruguay (note 3).
66Juliane Kokott, Fair Trial -- the Inter-American System for the Protection of Human Rights, p. 6.
67Leonard Leigh, The Right to a Fair Trial and the European Convention on Human Rights, p. 14.
68Eur. Court H.R., Funke v. France Judgement of 25 February 1995, Series A no. 256-A, p. 22; John Murray v. United Kingdom (note 4), p. 20.
69Fifth Amendment to the U.S. Constitution.
70Sect. 11 (c) of the Canadian Charter of Rights and Freedoms.
71Article 20 II of the Mexican Constitution.
72Sect. 25 (3) (d) of the Interim Constitution of South Africa.
73Frase (note 11), p. 8/9.
74Id., p. 8.
75Id., p. 10.
76Rzeplinski (note 25), p. 6.
77Frase (note 11), p. 10.
78Sarre/Figueroa (note 1), p. 3.
79Dickson (note 51), p. 10.
80Chandler, [1976] 1 W.L.R. 585.
81Dickson (note 51), p. 10. Similar rules can be found in S242A of the Criminal Procedure and Evidence Act of Zimbabwe, see Andrew R. Chigovera, The Right to a Fair Trial in Zimbabwe, p. 6.
82Chigovera (note 81), p. 7.
83Eur. Court H.R, John Murray v. the United Kingdom (note 4), p. 20-24.
84Awad M. Awad, The Rights of the Accused under Islamic Criminal Procedure, in Bassiouni (ed.), The Islamic Criminal Justice System, 1982, p. 107.
85Sect. 76 (4) Police and Criminal Evidence Act.
86See Garde (note 25), p. 4 (Denmark); Sarre/Figueroa (note 1), p. 4 (Mexico); Feldman (note 33), p. 8 (Israel).
87Shankar (note 25), p. 7/8.
88Bassiouni (note 8), p. 138.
89Awad (note 84), p. 107.
90Feldman (note 33), p. 4; Rzeplinski (note 25), p. 6; Samson (note 25), p. 2; Shankar (note 25), p. 6; Chigovera (note 81), p. 12.
91Sarre/Figueroa (note 1); Shankar (note 25), p. 8; Feldman (note 33), p. 8.
92Frase (note 11), p. 9; Shankar (note 25), p. 7, 10; Motala (note 61), p. 8/9; Chigovera (note 81), p. 12.
93Sect. 76, para. 2, 8, 78 Police and Criminal Evidence Act 1984.
94Dickson (note 51), p. 11.
95Frase (note 11), p. 9.
96Feldman (note 33), p. 4.
97Sect. 76 (3) Police and Criminal Evidence Act 1984.
98See Chigovera (note 81), p. 12; Motala (note 61), p. 9, who points out that in former times the South African legal system placed the burden upon the accused to prove that the confession was not made freely and voluntarily.
99Feldman (note 33), p. 5.
100 Such a law is currently being debated in the Israeli Parliament, see Feldman (note 33), p. 5. In England, all interviews at police stations must now be tape-recorded, see Dickson (note 51), p. 12.
101Manera Lluberas v. Uruguay (note 3).
102Kokott (note 66), p. 13.
103Article 7 (1) (c) of the Charter guarantees the accused the "right to defence, including the right to be defended by counsel of his choice".
104Point E 1 of the Resolution (note 5).
105Eur. Court H.R., Imbroscia v. Switzerland (note 4), p. 13.
106Eur. Court H.R., John Murray v. the United Kingdom (note 4), p. 26 - 28.
107Frase (note 11), p. 8, 10.
108Id., p. 20/21. The right to counsel is not applicable in very minor cases, i.e. in cases where only a non-custodial penality is imposed, see id., p. 19.
109Nouaydi (note 16), p. 30.
110Id. (note 16), p. 29.
111Répertoire Dalloz Procédure pénale, Enquête préliminaire, n 69.
112Diagne (note 61), p. 5.
113Roxin (note 26), p. 131.
114Sect. 58 (8) of the Police and Criminal Evidence Act 1984.
115Feldman (note 33), p. 14.
116Article 20 IX of the Mexican Constitution.
117Figueroa/Sarre (note 1), p. 9.
118Shankar (note 25), p. 20.
119Feldman (note 33), p. 14.
120Mérigeau (note 18), p. 232.
121Sect. 58 (8A), (13) Police and Criminal Evidence Act 1984.
122Peru allows solitary confinement for 10 days, Colombia for eight days, see Kai Ambos, Vorläufige Festnahme in Kolumbien, Peru und Bolivien unter besonderer Berücksichtigung der Terrorismus- und Drogengesetzgebung, in: Dünkel/Vagg (note 18), p. 380 - 384.
123Frase (note 11), p. 22.
124Figueroa/Sarre (note 1), p. 10.
125Roach/Friedland (note 120), p. 15; Dickson (note 51), p. 19; Nasaba (note 29), p. 14; Shankar (note 25), p. 22; Motala (note 61), p. 13.
126Leigh (note 67), p. 33/34; Villiger (note 37), p. 299.
127Shankar (note 25), p. 22.
128Nasaba (note 29), p. 15.
129Frase (note 11), p. 22; Sarre/Figueroa (note 1), p. 9; Shankar (note 25), p. 22.
130In Morocco and Senegal, for instance, see Nouaydi (note 16), p. 42, and Diagne (note 61), p. 8.
131Sarre/Figueroa (note 1), p. 9; Nouaydi (note 16), p. 42.