Pre-Trial Detention: The Presumption of Innocence and Article 5 of the European Convention on Human Rights Cannot and Does Not Limit its Increasing Use

Abstract

These days the use of pre-trial detention in Europe seems to be ever increasing. This is in spite of the fact that the the presumption of innocence tells authorities to be restrictive in pre-detaining suspects. It also seems contrary to the starting point of the European Court of Human Rights. Basing itself on the presumption of innocence the Court holds that a suspect should await his trial in freedom. For obvious reasons, the presumption of innocence and the European case-law are often invoked to either state that today’s pre-trial detention practices are in violation of both presumption and case-law or to say that pre-trial detention practice should take them more into account. In this article I am concerned with the question whether the presumption of innocence and the case-law of the European Court really make an argument against all too enthousiastic use of pre-trial detention. I will answer that question in the negative. For that I will firstly discuss the claimed pre-trial detention increase in paragraph 2. Secondly, in the third paragraph, I will elaborate on the meaning of the presumption of innocence and I will argue that the presumption cannot be invoked to effectively curtail the use of pre-trial detention. Paragraph 4 then discusses the case-law of article 5 of the European Convention European Journal of Crime, Criminal Law and Criminal Justice 17 (2009) 165–180