il libro - Silvio Riondato

68 L. Pasculli, C. Candiotto, S. Riondato
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thermore, special provisions are made – as we are about to see – for cases of crimes
committed collectively.
In general, the intervention of a court is always required: even when the restriction
is not imposed directly by order of a court, it must be upheld by the subsequent
decision of a judge. In particular, apprehension of a person without a decision by
a judge shall be resorted to, at the conditions dened by law, only in cases when a
person is caught in the act of committing an oence or when delay is likely to thwart
the course of justice. e person arrested or detained shall be brought before a judge
within forty-eight hours and in the case of oences committed collectively within at
most four days, excluding the time taken to send the individual to the court nearest
to the place of arrest. No one can be deprived of his or her liberty without the decision
of a judge after the expiry of the above-specied periods. ese periods may be
extended during a state of emergency, under martial law or in time of war.
One of the rights of defence ensured during the procedures of arrest and detention
is the right of information, which surely is a crucial condition for the exercise
of an eective defence. Individuals arrested or detained shall be promptly notied,
and in all cases in writing (or orally, when the former is not possible) of the grounds
for their arrest or detention and the charges against them; in cases of oences committed
collectively this notication shall be made, at the latest, before the individual
is brought before a judge (Art. 19, para. 4). Moreover, the arrest or detention of a
person shall be notied to next of kin immediately (Art. 19, para. 5). Such notication
allows the relatives of the person concerned to contact a lawyer and arrange
everything should come useful for the defence and the protection of the rights of the
arrested or the detained.
Yet an express armation of the other rights of defence proclaimed, amongst
others, by the European Convention on Human Rights and by the European Charter
of Fundamental Rights (the right of the accused to adequate time and facilities
for the preparation of his defence; the right to defend himself in person or through
legal assistance of his own choosing or, if he has not sucient means to pay for legal
assistance, to be given it free when the interests of justice so require; the right to examine
or have examined witnesses against him and to obtain the attendance and examination
of witnesses on his behalf under the same conditions as witnesses against
him; the right to have the free assistance of an interpreter if he cannot understand or
speak the language used in court) 55 is missing.
Persons under detention shall have the right to request trial within a reasonable
time or to be released during investigation or prosecution. Release may be made
conditional to the presentation of an appropriate guarantee with a view to securing
55 Art. 6, para. 3, ECHR and, with regard to legal assistance, Art. 47, para. 2 and 3, and, more generally,
Art. 48, para. 2 CFRUE.