4. Personal liberty and security under Article 5

Question 1

What is art 5?

Answer 1

Personal liberty and security

Question 2

What does the paragraph say?

Answer 2

o Art 5(1): Right not to be deprived of liberty, subject to specific exceptions o Art 5(2): Right to be informed promptly of reasons for arrest
o Art 5(3): Right to be brought promptly before court or judge (for 1(c))
o Art 5(3): Right to trial within reasonable time or release pending trial (for
1(c))
o Art 5(4): Right to have lawfulness of detention decided speedily by court o Art 5(5): Right to compensation for violation of Art.5.

Question 3

What is the object of art. 5?

Answer 3

The object of art. 5 is to guarantee liberty of person, and in particular to provide guarantees against arbitrary arrest or detention, and to limit detention to strictly necessary situation. It is a complex and confusing provision which must be interpreted narrowly in favour of detainees.

Question 4

Is the right under art. 5 absolute?

Answer 4

Clearly the right under Art. 5 is not an absolute right

Question 5

Which exception is there to art. %?

Answer 5

It contains exceptions –

(1) lawful detention of a person by a competent court;
(2) state detention if the person fails to secure an obligation of law;
(3) deprivation of liberty of a minor for the purpose of education;
(4) detention in order to prevent the spread of diseases, persons of unsound mind, vagrants (not having a fixed abode; the homeless);
(5) detention for the purposes of immigration and extradition. The exceptions here, however, form an exhaustive list (unlike Arts 8-10) and there are only 6 exceptions (a to f) as well as Art 15’s derogation in times of emergency

Question 6

The primary focus is liberty, what its the focus of 2. limb?

Answer 6

the second limb; ‘security’ only applies when talking about disappearance of people (Bozano case)

Question 7

when is there a deprivation of liberty

Answer 7

Arrest and detention in police custody or detention in a prison are clear examples of deprivation of liberty. But deprivation may take a number of other forms, less than complete detention. In order to decide whether there is a deprivation, the
concrete situation must be taken into account. The distinction between deprivation and restriction of liberty (Art 2 in P4) is only a matter of intensity.

Question 8

The 2 elements in the notion of deprivation of liberty

Answer 8

Objective: A person’s confinement in a particular restricted space for a relevant time-period (excluding prison discipline – this is under art. 3). Subjective: The person has not validly consented to the confinement in question.

Question 9

What amounts to a deprivation of liberty

Engel v The Netherlands [1976]

Answer 9

Soldier Engel was sentenced under military law to be punished for breach of discipline and confined to barracks. Men were not allowed to ‘walk out’ until their training was well advanced. The confinement to barracks constitute a deprivation of liberty?

ECtHR Held: The particular circumstances of military life must be considered, yet military discipline does not fall outside of the scope of Art 5(1). To determine whether C has been ‘deprived of his liberty’:

1) The concrete situation is considered. Each Contracting Party is competent to organise its own system of military discipline and enjoys a certain margin of appreciation. The nature, duration, effects and manner of execution of the measure must be taken into account.
2) Light arrest: there was NO deprivation of liberty of Engel. Although confined to their dwellings for 4 days, they are not locked up. They remain more or less within the ordinary framework of their army life. Aggravated arrest: Engel may not leave in order to visit the canteen, cinema or recreation rooms, but was not kept under lock and key. Hence, there was NOT deprivation of liberty. Strict arrest: served by day and by night locked in a cell and excluded from the performance of normal duties. This involved deprivation of liberty. Committal to a disciplinary unit: 3-6 months, locked in cell, most severe penalty. There was deprivation of
3) The Art 5(1)(a) – (f) exceptions are to be narrowly construed

Question 10

What amounts to a deprivation of liberty

Guzzardi v Italy [1980] (island exile)

Answer 10

Italian law could order someone who is suspected of belonging to mafia-type organisations to reside in a specified district. G was put under special police supervision and was sent to the island of Asinara where he was, among other things, confined in a small island of 2.5 km2, obliged to report to the supervisory authorities twice a day and whenever called upon to do so; not return to his residence later than 10 p.m. and not go out before 7 a.m.; not frequent bars or night-clubs and lead an honest and law- abiding life.

The Italian government argued that G was given sufficient freedom. ECtHR Held: the aim of Art 5(1) is to ensure that no one should be dispossessed of his physical liberty of the person in an arbitrary fashion. To determine whether there is a deprivation of liberty:

1) G’s concrete situation, and whole range of criteria (e.g. type, duration, effects of the implementation of the contested measure) must be taken into account
2) The difference between deprivation of liberty and restriction upon liberty is merely one of degree of intensity, NOT of nature or substance!
3) Here, there were few opportunities for social contacts available to Guzzardi. He was subject to permanent supervision etc. Cumulatively and in combination, these factors raise an issue under Art 5. The detention here resembles detention in an open prison. There is a deprivation of liberty!
4) Next the justifications are considered. The measure was a prevent measure taken on the strength of indications of a propensity to crime, and therefore it did NOT constitute detention ‘after conviction by a competent court’. There was a breach of Art 5!

Question 11

What amounts to a deprivation of liberty

Austin v UK [2012] (kittling – exceptional case)

Answer 11

The police had also anticipated a real risk of serious injury, even death, and damage to property if the crowds were not effectively controlled. ECtHR Held: there had been NO violation of Art 5! In determining whether there is violation of Art 5, these principles must be followed:

1) “living instrument” = intrepretation in the light of the day.
2) Interpreted harmoniously
3) context in which the measure in question had taken place was relvevant.
4) necessary to avert a real risk of serious injury or damage,
5) wide margin of appreciation.

Question 12

The positive obligations

Answer 12

Early pronouncements of the Court indicated that there were no, or very limited, positive obligations arising under art. 5. However, dynamic case law has changed that.

The State is obliged to take measures providing effective protection of vulnerable persons, including reasonable steps to prevent a deprivation of liberty of which the authorities have or ought to have knowledge. In Stock v Germany, the police had assisted in her return to a private clinic when she had escaped from being deprived of her liberty.

The court has further developed procedural obligations under art. 5, especially the need for investigations in cases involving disappearances.

Question 13

The court has further developed procedural obligations under art. 5, Which one especially??

Answer 13

the need for investigations in cases involving disappearances. Where there is an arguable claim that an applicant has been taken into custody and has not subsequently been seen, it is incumbent on the state to carry an effective investigation. In other words, where complaints are made of unacknowledged detentions, there is a positive obligation on the state to conduct an investigation to determine the whereabouts of the missing person.

Question 14

The lawfulness of the deprivation of liberty + when is there a breach of art. 5?

Answer 14

A deprivation of liberty which does not fall within one of the six categories listed in Article 5(1) will breach the Convention.

The deprivation must also be ‘lawful’ and be carried out ‘in accordance with a procedure prescribed by law’.

Question 15

What is the concept of arbritrainess?

Answer 15

The essence of art. 5 is to protect the individual against arbitrary detention. Even a detention which is lawful under national law will violate art. 5 if it is arbitrary. Such situations will arise where the authorities have acted in bad faith or used deception.

Conka v Belgium – Roma families were tricked into presenting themselves at a police station with the promise that their asylum applications would be completed, only to be served with deportation papers and taken into immediate custody.

Question 16

Permitted grounds under Art 5(1)

Art 5 (1)(A) – Detention after conviction by a competent court

Answer 16

It is the ‘detention’ that must be lawful, not the ‘conviction’. Although many applications to the court allege that they have been convicted of crimes they did not commit, the court has no power under art 5(1)(a) to examine whether the evidence adduced before the national courts was sufficient for finding a guilt.

Question 17

Permitted grounds under Art 5(1)

Art 5 (1)(B) – Detention of a person for failure to comply with an obligation by law

Answer 17

“Non-compliance with the lawful order of a court” is the first limb of the permission. This can mean, inter alia, arrest to secure attendance in court following a failure to comply with summons, or imprisonment for failure to pay a fine, or to comply with an injunction or a child custody or maintenance order.

“In order to secure the fulfilment of any obligation prescribed by law” is the second limb. This can for example be an imprisonment for failing to pay local taxes. There must be an unfulfilled, specific, and concrete obligation incumbent on the person concerned and the detention must be for the purpose of securing its fulfilment and not punitive in character. As soon as the relevant obligation has been fulfilled, the basis for detention ceases to exist.

Question 18

Permitted grounds under Art 5(1)

Art. 5 (1)(C) – Permitted pre-trial detention

Answer 18

According to this art. 5(1)(C), (1) arrest or detention must be lawful, (2) must be for the purpose of bringing him/her before the competent legal authority, (3) and detainee must either reasonably be suspected of having committed an offence, about to be committing an offence, or feeling after having done so. No preventive detention is allowed. Furthermore, the arrest or detention must be a proportionate measure to achieve the stated aim.

Arrested or detained persons are safeguarded by art. 5(3), which adds that arrested or detained persons shall (1) be brought before a court promptly before a competent legal authority, (2) and shall be entitled to trial within a reasonable trial or to release a pending trial.

Mere suspicion is not enough – there must be reasonable grounds for suspicion. ‘Reasonably’ presupposes the existence of fact or information which would satisfy an objective observer that the person concerned may have committed an offence. It depends on all the circumstances of the case – lower standard of reasonably suspicion is allowed in terrorism cases, but some objective ground is still needed. Standard of proof is lower in arrest situations than for a criminal charge.

Question 19

Permitted grounds under Art 5(1)

Art. 5 (1)(C) – Permitted pre-trial detention

Fox, Campbell and Hartley v United Kingdom (Objective test of reasonable suspicion)

Answer 19

The applicants were detained in Northern Ireland as suspected terrorists. They argued there was no reasonable suspicion, and that the purpose of the arrest was to gain information, not to charge them with offences.
ECtHR Held: the reasonable suspicion test is an objective test: would an objective observer be satisfied that the applicants may have committed the offence depending on the circumstances? States need not disclose confidential sources of information to indicate the source of their reasonable suspicion, but objective evidence (some facts or information) must be produced. Acting bona fide, the applicant’s honest belief on the part of the arresting officer will not constitute reasonable suspicion if there are no objective facts or information to support that belief!

Question 20

Permitted grounds under Art 5(1)

Art. 5 (1)(C) – Permitted pre-trial detention

O’Hara v United Kingdom (reasonable suspicision)

Answer 20

O’Hara v United Kingdom (reasonable suspicision) – The applicant was arrested by the government on the strength of information obtained independently from 4 informers that the applicant had been involved in a specific murder. ECtHR: there was reasonable suspicion. Confirming Fox, even in cases involving terrorist offences, where special difficulties arise from disclosure of evidence, the authority must produce some facts or information to satisfy the Court that the arrested person was objectively reasonably suspected of having committed the offence.

Question 21

Arrest period – art. 5(3) first limb

Brogan v United Kingdom (terror suspects, 4.5 day is a violation)

Aksoy v Turkey (even in state of emergency and derogation)

Answer 21

Every person arrested on suspicion of having committed a criminal offence has the right to be brought ‘promptly’ before a judicial authority. The court has never put a finite limit on the acceptable length of preliminary detention, since it considers that this must depend on the circumstances in each case.

Brogan v United Kingdom (terror suspects, 4.5 day is a violation) – The applicants were detained as minimum of 4 days and six hours. They were terror suspects and had been trained in counter-interrogation techniques. Even taking into account of the particular situation at the time in Northern Ireland, the court regarded all cases as violations.

Aksoy v Turkey (even in state of emergency and derogation) – The applicant was arrested on suspicion of involvement with the PKK, and detained incommunicado for 14 days under emergency provisions. Turkey had filed an art. 15 derogation. Nevertheless, the court ruled that taking into account everything, 14 days was too long to hold a suspect without judicial supervision and without access to a lawyer or doctor.

Question 22

Right to release pending trial and trial within reasonable time – art. 5(3) second limb

Answer 22

The court has never elaborated an exhaustive list of grounds which could justify pre-trial detention. The ground most frequently relied upon by national courts is the risk of absconding or re-offending. But the risk must be substantiated in each case. Nevertheless, there is always a presumption in favour of release. The prosecution must ensure that the pre-trial detention is not unnecessarily prolonged – therefore, a ‘special diligence’ is required.

• re- offending

Other grounds which have been accepted by the Court are the risk of suppression of evidence, and of collusion, that is contacting other defendants or witnesses to agree on a false version of events.

Question 23

Art. 5 (1)(D) – Detention of minors

Koniarska v United Kingdom

Answer 23

Koniarska v United Kingdom – the Court held that the applicant was a minor until the age of 18 and that Article 5(1)(d) permitted her detention for educational supervision up to that age, even though the school-leaving age in the United Kingdom is 16. Thus, the court gave the word ‘minor’ an autonomous meaning.

In the same case, the applicant, who was a 17-year-old girl, had been diagnosed as suffering from a psychopathic disorder and was placed in a specialist, secure, residential facility for seriously disturbed young people. The Court held that the words ‘educational supervision’ should not be equated rigidly with notions of classroom teaching but could also be seen as embracing other aspects of local authority case, particularly where, as was the case with the applicant, an extensive range of classes was made available. Thus, ‘educational supervision’ is not only classroom teaching but it has a broader meaning.

The second limb allows minors to be put before non-criminal judicial/administrative authority which can rule whether to detain – e.g. juvenile courts in non-criminal cases.

Question 24

Art. 5 (1)(E) – Vulnerable groups

Answer 24

People of these vulnerable groups may be deprived of their liberty either in order to be given medical treatment or because of considerations dictated by social policy, or on both medical and social grounds.

• vagrants
• mental illnes
• alcoholics
• Those suffering from infectious diseases

Question 25

Art. 5 (1)(F) Detention in connection with deportation or extradition

Answer 25

The first limb is for the prevention of an unauthorised entry into the country, and the second is where detention is required where action is being taken to deport or extradite someone.

Question 26

Art. 5 (1)(F) Detention in connection with deportation or extradition

Saadi v United Kingdom (unauthorised entry)

Answer 26

Saadi v United Kingdom (unauthorised entry) – The asylum seekers were in detention for 7 days. The court stated that a detention in order to avoid being branded as arbitrary such detention must be carried out in good faith; it must be closely connected to the purpose of preventing unauthorised entry of the person to the country, the place and conditions of detention should be appropriate. The length of the detention should not exceed that reasonably required for the purpose pursued. Applying these principles, the court found no violation.

In order to comply with the second limb, the detained person must be the object of action ‘with a view to deportation or extradition’. There is no demand that the detention is reasonably considered necessary to prevent crime or absconding. The state must take steps to allow for deportation or they must communicate in order to extradite a person. Detention cannot be justified if deportation is no longer feasible.

Question 27

Art. 5 (1)(F) Detention in connection with deportation or extradition

A and others v United Kingdom –

Answer 27

A and others v United Kingdom – The court was not satisfied that the detention of a number of applicants fell within art. 5(1)(F), as claimed by the respondent state, since it could not be said that they were being detained with a view of deportation or extradition.

Question 28

4. Notification for the reasons of arrest or detention under Art 5(2)

Answer 28

Article 5(2) embodies the elementary safeguard that those deprived of their liberty should know why. Consequently, any person arrested or detained must be told promptly and in simple language the essential factual and legal basis for the detention. This will enable detainees to apply to challenge the lawfulness of the detention if they so wish. This provision applies in respect of everyone who is arrested or detained, notwithstanding the criminal charge against them.

Murray v United Kingdom – The question of the timing of notification was raised. The court noted that whether the content and promptness of the information given to the detainee was sufficient depended on the special features of each case. Thus, individual assessment is sufficient.

Question 29

5. Testing the legality of detention under Art 5(4)

Answer 29

The right to judicial review under Article 5(4) covers all forms of arrest and detention. Everyone who is deprived of his liberty shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

The ‘court’ does not have to be a court of the classic and standard kind but must be a body of judicial character that is independent both of the executive and of the parties to the case.
In each case, the question whether the review has been completed sufficiently ‘speedily’ depends on all the circumstances. In a case of a straightforward bail application by a man detained on suspicion of drug-trafficking, for example, the Court held that 3 weeks was too long. Longer periods might be acceptable in more complex cases – for example, where it is necessary to seek medical reports in respect of a detained mental patient – but, given the importance of the right to liberty, there is still a pressing obligation on the authorities to deal quickly with such applications for release.

Question 30

What can you say about the enforceable right to compensation under Art 5(5)

Answer 30

Everyone who has been the victim for arrest or detention in contravention of the provisions shall have an enforceable right to compensation. It is not clear why there is an independent right to compensation under Art. 5 and not under other rights guaranteed by the Convention.