Criminal Justice in Europe: A Comparative Study

which comes into force in October 1994 the habeas corpus check by the investigating judge will be shifted from the second to the third day of police custody. In this manner the proposal will remain within the 'safe' margin which the Commission has accepted and thus it will also block access to the European Court.

At first glance it seems remarkable that Brogan, which related to the United Kingdom, has led to far fewer developments in that country than is the case in the Netherlands. But on closer inspection, it is less surprising, bearing in mind the British treatment of the Convention (see Chapter 4). Precisely through the direct application of particular Convention obligations and their interpretation by the Strasbourg authorities, the Brogan case has resulted, in the Dutch legal system, in substantial activity in the area of judicial decisions, policy, and legislation. After more than four years of drafting this process will be completed in the near future. The United Kingdom on the other hand has used the situation in Northern Ireland as a justification for a derogation from its obligations under the Convention--a position which has now been accepted by the Court of Human Rights. While non-terrorist suspects in the United Kingdom are protected by PACE, which restricts detention without judicial scrutiny to thirty-six hours, well within the Convention limits of 'promptness', suspected terrorists are still governed by a system of detention which is subject to severe criticism and which may continue to be tested before the Convention institutions for a long time to come.

It is, however, disappointing that the Dutch legislature is apparently busy seeking to place a policy-favourable 'spin' on the Brogan decision. While the Court of Human Rights sought to improve the legal position of suspects--even terrorist suspects--with respect to the duration of police custody, it would appear that their position is more likely to be worsened by the current proposed Bill. The maximum duration of police custody, for example, will be extended from four to six days, something which constitutes a worsening of the position for suspects who thereafter are not subjected to detention on remand. In addition, appearance before an investigating judge on the second day will be reduced to the constitutional guarantee for an examination of the lawfulness of the detention, something which appears to satisfy the habeas corpus requirements of the Constitution and Article 5(4) of the Convention, but does not meet the right to an unrestricted judicial review of all factors and relevant interests, as intended in Article 5(3) and (1)(c), of the expediency of that detention.

Given that the previously mentioned recent decisions of the European

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