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Ilijkov v. Bulgaria

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Continued detention could be justified in a given case only if there were specific indications of a genuine requirement of public interest which, notwithstanding the presumption of innocence, outweighed the rule of respect for individual liberty. The gravity of the charges could not by itself serve to justify long periods of detention on remand. Any system of mandatory detention on remand was per se incompatible with Article 5, Section 3 of the Convention.

The guarantees of Article 5, Section 4 would be deprived of their substance if the judge could treat as irrelevant, or disregard, concrete facts invoked by the detainee and capable of putting into doubt the existence of the conditions essential for the “lawfulness”, in the sense of the Convention, of the deprivation of liberty.

A State which instituted a system of appeals of applications for release from detention must in principle afford the detainees the guarantees of a judicial procedure. Thus, the proceedings must be adversarial and must adequately ensure “equality of arms” between the parties, the prosecutor and the detained.


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