Emerging Voices: Reasonableness at the European Court of Human Rights

[Sabina Garahan is a doctoral candidate at the Human Rights Centre at the University of Essex.]

The law is replete with references to reasonableness. Although the concept is a familiar one, however, its significance in the field of pre-trial detention is yet to be understood. My doctoral project seeks to address this gap by analysing the theory and use of the reasonableness concept at the pre-trial stage by domestic criminal justice systems across the Council of Europe and the European Court of Human Rights (“the Court”). This post will broadly outline and introduce the issues raised by the use of the concept in Article 5 of the European Convention on Human Rights through a focus on the term “reasonable suspicion” in Article 5 § 1 (c) and what it reveals about the challenges in ascribing content to the term “reasonable” on the international plane.

An exploration of reasonableness and the manner in which the Court operationalises the concept is crucial in determining the extent to which many other Convention rights are being protected, including: the right of access to a lawyer under Article 6; family contact under Article 8; conditions of detention under Article 3, whether on account of material conditions of detention, isolation, lack of healthcare provision, or lack of separation from the general prison population; and Article 3 as regards torture at the pre-trial stage. Without an attempt to clarify the content of the Article 5 terms reliant on reasonableness, their application by the Court risks perpetuating societal injustices in the same manner as the reasonable person notion (on this see, for example, Mayo Moran, “Introduction: ‘Personal’ Problems: Rethinking the Reasonable Person” in Mayo Moran, Rethinking the Reasonable Person: An Egalitarian Reconstruction of the Objective Standard (Oxford: Oxford University Press, 2003), and Dolores A. Donovan and Stephanie M. Wildman, “Is the Reasonable Man Obsolete: A Critical Perspective on Self-Defense and Provocation” (1981) 14 Loyola of Los Angeles Law Review 435).

Assessing the reasonableness of a suspicion, of a length of time and of pre-trial detention involves value judgements inevitably interwoven in varying social experiences and attitudes. Language has a key role to play here – it is central to the adjudication of law and in the consideration of reasonableness. Yet words do not always carry one sole meaning, which can moreover vary in accordance with the setting; as Hart recognised in the context of answering the question “what is law?”, definitions – and thus words – can sometimes obfuscate rather than clarify concepts (H.L.A. Hart, The Concept of Law, 15). On Wittgenstein’s private language argument, for statements to maintain coherency and convey meaning, it must be possible to verify them publicly (Ludwig Wittgenstein, Philosophical Investigations (translated by G.E.M. Anscombe), 89). The way words are used to describe experiences cannot be based on a personal, and therefore private, association of an experience with the word. Thus when discussing reasonableness, the views of judges as to what constitutes a reasonable suspicion or time must be objectively verifiable and removed from any prior held predilections. As will be discussed below, reliance on the private language of reasonableness in this context in fact obscures and renders incoherent any meaning given to the term (Ludwig Wittgenstein, Philosophical Investigations (translated by G.E.M. Anscombe), 226).

Applying this in the context of Article 5 § 1 (c), which allows for the arrest or detention of an individual on “reasonable suspicion” of having committed an offence, “reasonable suspicion” presupposes “the existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offence” (Ilgar Mammadov v. Azerbaijan, no. 15172/13, § 88). The use of the “objective observer” standard reflects issues arising in the use of the “reasonable person” standard in criminal law, namely, that the characteristics of the objective person are unclear; applying Wittgenstein’s private language argument, judicial interpretations of the “objective observer” standard are not subject to objective verification. There is thus a risk that inequalities and prejudices prevalent in society may be reflected in the interpretation of who the reasonable person is and which characteristics they possess. While in the criminal law setting, the application of the reasonableness standard may result in an unjust sentence for an individual, the use of the “objective observer” standard by the Court may lead to an applicant failing to obtain appropriate redress, hence entailing an adverse impact on individual human rights. In the same way as the reasonable person standard risks subjugating minority groups in society, an “objective observer” may make observations in a manner that is prejudicial towards certain groups in society, thereby reflecting general and endemic prejudices. In this way, the standard of the “objective observer” risks replicating, and thus aggravating, at the European human rights level the patterns that grant minority groups only unequal access to justice at the domestic level.

Moreover, it is difficult to conceive of how facts or information could be objectively perceived in a manner capable of public verification. In the specific context of terrorist crime, the Court has clarified that (Fox, Campbell and Hartley v. the United Kingdom, nos. 12244/86, 12245/86 and 12383/86, § 32):

terrorist crime falls into a special category. Because of the attendant risk of loss of life and human suffering, the police are obliged to act with utmost urgency in following up all information, including information from secret sources. Further, the police may frequently have to arrest a suspected terrorist on the basis of information which is reliable but which cannot, without putting in jeopardy the source of the information, be revealed to the suspect or produced in court to support a charge.

Here, the Court appears to be ascribing certain characteristics to the objective observer, who in fact becomes the objective member of the police force with an appreciation of the particular gravity of certain types of crime and the appropriate response to be accorded to them. At the Council of Europe level, determining which other categories of crime would be generally considered by 47 Contracting States as falling into a “special category” raises some difficulties; issues arise relating to the extent of the margin of appreciation to be allotted to states who are alone (or in a minority) in considering certain types of crime to be particularly egregious, as a result of their own particular domestic context. Fortunately, the Court clarifies that “the exigencies of dealing with terrorist crime cannot justify stretching the notion of ‘reasonableness’ to the point where the essence of the safeguard secured by Article 5 § 1 (c) … is impaired” (Fox, Campbell and Hartley v. the United Kingdom, nos. 12244/86, 12245/86 and 12383/86, § 32). This therefore delimits the mandate of the objective observer – once they no longer observe in a manner that secures Article 5 protections, they shed their title. Yet while the statement that the “very essence” of the right must not be impaired (Brogan and Others v. the United Kingdom, nos. 1209/84; 11234/84; 11266/84; 11386/85, § 59) is commendable in principle, it does not delineate the boundaries of impairment in a manner capable of grounding proper challenge or scrutiny – an essence of a safeguard cannot be objectively established, again highlighting the problems in employing “private” language in this sphere.