| Chapter 2: | Investigative Detention and International Human Rights Law |
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right to a fair trial; the prohibition on punishment without law; the right to marry; the right to an effective remedy; the prohibition on discrimination; the right to education and the right to free elections; and the prohibition on the death penalty.55
The primary article impacting investigation detention under the ECHR is article 5―the fountainhead for the right to liberty and security of the person.56 This article provides that everyone has the right to liberty and security of person. It goes on to state that no one shall be deprived of his liberty except in certain enumerated cases, such as lawful detention after conviction by a competent court; the lawful arrest or detention of a person for noncompliance with the lawful order of a court; and
This article has generated a fair amount of jurisprudence, which has had significant effects on the investigative detention regimes of European countries.
Commentators note that the purpose of article 5 is to limit detention to those circumstances where it is strictly necessary in the public interest and to provide guarantees against arbitrariness.58 Article 5(1)(c) of the ECHR allows 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 offense.”59 The European Court of Human Rights (“ECtHR”), in interpreting this provision, has held that the test of “reasonable suspicion” is an objective one that “presupposes the existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offense.”60
Further, article 5(3) of the ECHR requires that those arrested and charged with any offense be brought “promptly” before a court.61 In interpreting this provision, the “ECtHR” has held that the initial arrest and