DETENTION AFTER CONCERN
STOLLENWERK v. GERMANY
B. No. 8844/12, 7 September 2017)
Under (German) domestic law, a person is detained pending conviction, not after conviction, including in appeal proceedings. Detainees can request a review of their detention (Haftprüfung) or request a stay of execution at any time, pursuant to Article 117 § 1 of the Code of Criminal Procedure. They can file an appeal against this decision to the court that has ordered their detention or the continuation of their detention under Article 304 (Haftbeschwerde) of the Criminal Procedure Code.
The Court found that the proceedings, culminating in the Court of Appeal's decision of 3 February 2011, regarding the lawfulness of the applicant's detention, were held on 8 December 2010 (see §§ 9-11 above), that is, following the District Court's judgment of 6 December 2010 convicting the applicant (see above). § 8), records that it has begun. Accordingly, Articles 5 § 1 (c) and 5 § 3 of the Convention are out of date for the applicant's detention (Wemhoff v. Germany, 27 June 1968, § 9, Series A no. 7).
Article 5 § 4 of the Convention does not normally apply to the detention regulated by Article 5 § 1 (a) of the Convention, but the grounds for detention tend to change over time (see Kafkaris v. Cyprus (dec.), no. 9644/09 , 21 June 2011) or if new issues arise that affect the lawfulness of such detention (see Gavril Yosifov v. Bulgaria, no. 74012/01, § 57, 6 November 2008). In the present case, Article 5 § 4 of the Convention applies, as it stipulates that a person remains in pre-trial detention pending his final conviction, including on appeal, and that everyone in pre-trial detention is given the same procedural rights (see § 21 above).
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While the Contracting States are not obligated to verify whether all proceedings giving rise to the conviction comply with the requirements of Article 6 (Drozd and Janousek v. France and Spain, § 110), a conviction cannot be the result of manifest unlawfulness (Ilaşcu and Others v. Moldova and Russia [GC] , § 461. If proceedings which are “manifestly contrary to the provisions of Article 6 or the principles contained in this Article” result in conviction, the resulting deprivation of liberty will not be justified under 5 § 1 (a) (Willcox and Hurford v. the United Kingdom (dec.), § 95 – Stoichkov v. Bulgaria, §§ 56-58; and Vorontsov and Others v. Ukraine, §§ 42-49, on the application of the principle to national procedures, with examples of forms of fairness implying the overt administration of justice.
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Panayiotis Agapiou Panayi KAFKARIS v. Cyprus
B. No.9644/09, 21.06.2011)
Where the reasons justifying the deprivation of liberty may change over time, the possibility of recourse to an authority that fulfills the requirements of Article 5 § 4 of the Convention is necessary. Thus, in many cases against the United Kingdom, the Court has found that article 5 § 4 is life imprisonment, as under English law, upon the expiry of the initial sentence, further detention is solely dependent on circumstances that may change, such as how dangerous the individual is deemed to be or the risk of reoffending. it secured the right to a remedy to determine the lawfulness of their detention after executing the “execution” (the punitive and deterrent part of their sentence) to convicted prisoners (see, among other judgments, Wynne v. the United Kingdom (no. 2), no.67385/01, § 24, 16 October 2003; Stafford, cited above, § 87 and Waite v. the United Kingdom, no.53236/99, § 56, 10 December 2002). (§58)
Recent amendments to the relevant domestic law have brought about important changes in the situation of prisoners, especially life prisoners. The Court observes that, in cases of willful manslaughter, although mandatory life sentences are imposed by the courts, the system currently in force allows life prisoners to apply to the Release Board after serving the minimum sentence (sections 14 A (1) and B (1) of the Prison Code). ). The applicant is already eligible to apply to the Release Board. He therefore has the opportunity to periodically review the need for his continued detention under domestic law. (§62)
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YEGER v. TURKEY
B. No.4099/12, 7 June 2022)
The Court finds that Article 5 § 1 (a) requires that the lawful detention of a person “after being convicted by a competent court” requires the Court to comprehensively scrutinize the proceedings leading up to that conviction and fully comply with all the requirements of Article 6 of the Convention. notes that it does not mean that they have to verify whether they have complied. However, although not every violation of Article 6 results in a violation of Article 5 § 1 (a), the Court further complies with the provisions of Article 6 of "conviction". or that the resulting deprivation of liberty cannot be justified under Article 5 § 1 (a) if it is the result of proceedings which are "manifestly contrary to the principles contained herein" (see quoted above,_cc781905-5cde- 3194-bb3b-136bad5cf58d_ § 51, with further references, see also Kereselidze v. Georgia, no.39718/09, § 48, 28 March 2019). What is required is a violation of the principles of fair trial which are so fundamental that the right guaranteed by Article 6 is nullified or destroyed (ibid., § 53). (§46)
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