The requirement of procedural fairness under Article 5(4) does not impose a uniform, unvarying standard to be applied irrespective of the context, facts and circumstances.
The existence of the remedy required by Article 5(4) must be sufficiently certain, not only in theory, but also in practice. The accessibility of a remedy implies, inter alia, that the circumstances voluntarily created by the authorities must be such as to afford applicants a realistic possibility of using the remedy. The remedies must be made available during a person’s detention with a view to that person obtaining speedy judicial review of the lawfulness of his detention capable of leading, where appropriate, to his release. The review should, however, be wide enough to bear on those conditions which are essential for “lawful” detention. Article 5(4) does not guarantee a right to judicial review of such a scope as to empower the court, on all aspects of the case including questions of pure expediency, to substitute its own discretion for that of the decision-making authority. The general principles applied by the Court in this regard are set out in M.A. The possibility of detention for a maximum period of 18 months in EU member states, established by Article 15 of the ‘Return Directive’ in 2008, has rendered even more evident the need for an effective, speedy judicial review in immigration and asylum cases.Īrticle 5(4) ECHR entitles a detainee to institute proceedings challenging the procedural and substantive conditions upon which his deprivation of liberty is based. The grounds of these violations related to the lack of an effective judicial review mechanism, and, in the majority of the cases, to national procedures that did not respect the speediness requirement of Article 5(4) ECHR. 
In 2013, the European Court of Human Rights continued to find violations of Article 5(4) of the Convention for the Protection of Human Rights and Fundamental Freedoms (“ECHR”) by various state parties and even rendered a quasi-pilot judgment in the case of Suso Musa v. Detention has been highlighted in recent years by a number of international and non-governmental organisations as an ineffective and inefficient tool of migration control employed by a large number of states.
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