II. THE RIGH T T O R E L EAS E P ENDING T RIAL I N R EAS O N ABL E C IR CUMSTANCES
As noted earlier, Article 5(3) continues to apply after the detainee's initial appearance before the judge or 'other officer'. During this phase of detention a decision must be taken whether it is appropriate to release the detainee, on conditions if necessary. The deci- sion must be made by an official with the characteristics and functions of the judge or other officer under Article 5(3) as noted earlier, except, of course, he must have the power to award bail if necessary. The first decision whether to order conditional release must take place with 'due expedition' (if not 'promptly').486 Further decisions should take place from time to time thereafter, the domestic courts being required to 'review the continued detention of persons pending trial with a view to ensuring release when circumstances no longer justify continued deprivation of liberty'.487
Before the qualified right to bail488 is considered in detail, the following points should be noted. First, the different roles of the national courts and the Strasbourg authorities in the application of the right to bail in Article 5(3) have been explained by the Court as follows. When the national courts take their decision 'they must examine all the facts arguing for and against the existence of a genuine requirement of public interest jus- tifying, with due regard to the principle of the presumption of innocence, a departure from the rule of respect for individual liberty and set them out in their decisions on the applications for release'.489 It is then 'essentially on the basis of the reasons given in these decisions [plus, where relevant, appeals] and of the true facts mentioned by the applicant'
when pursuing his remedies for release at the national level that the Strasbourg authori- ties must make their judgment.490 So the reasons must be those relied upon by the domes- tic authorities at the time, not new arguments put forward belatedly at Strasbourg.491 The Court is quite willing to disagree with the national court's assessment of the need for detention on rema.nd.
Secondly, there is the matter of the stages of the criminal process to which Article 5(3) applies. In
Wemhojf v Germany ,
492 it was held that Article 5(3) covers the period from the arrest of the accused on suspicion ofhavingcommitted a criminal offence to his acquittal or conviction by the trial court.493m Bezicheri v Italy. See also Assenov v Bulgaria 1998-VIII; 28 EHRR 652 para 162.
486 McKay v UK 2006-X; 44 EHRR 827 para 46 GC. This leading case implies that the 'bail hearing' does
not need to be automatic; it may follow the detainee's application or the judge's order, see para 46.
m McKay v UK, pa.ra 45.
m The qualified right to release is not easily identified under Article 5(3); however, this was the approach adopted by the Court in Wemhoff v Germany, A 7 (1968); l EHRR 55 (see Harris, 44 BYIL 87 (1970)).
m Letellier'' France A 207 (1991); 14 EHRR 83 para 35. 1he Court also emphasized that in a case in which the final decision is taken on appeal, the appeal court should state 'clear and specific' reasons for reversing a decision to release by a lower court that is in a better position to assess the facts and the personality of the accused: para 52.
00 Letellier v France. Cf Neumeister v Austria A 8 (1968); l EHRR 91 para 5.
491 Trzaska v Poland hudoc (2000) para 66.
492 A 7 (1968); I EHRR 55 paras 6-9. See also Kalashnikov v Russia 2002-VJ; 36 EHRR 587.
493 Wemhoff v Germany A 7 (1968); l EHRR 55 para 9 and see B v Austria A 175 (1990); 13 EHRR 20. Hence Article 5(3) docs not cover detention pending appeal, it is not possible under that provision to challenge the grounds for detaining a convicted person during his appeal or to question the 'diligence' with which appeal
