Art. 5 ECHR

Question 1

First case in which the courts sought to define the meaning of liberty

Answer 1

Guzzardi v Italy (1980)
- Strasbourg wasn’t able to define liberty for the purpose of art 5 but said it could say that its notion of liberty involved physical liberty, don’t just have to be incarcerated.

FACTS - Guzzardi and his family under anti-mafia legislation in Italy were forced to live on a part of an island with lots of restrictions imposed on them. This was held to be equivalent to being held in open prison (prisoners often live in these near the end of their sentences)

Question 2

Case which questioned the use of the word ‘lawful’ in Art 5 ECHR

Answer 2

Georgia v Russia (2014)
- Important because this is the 3rd interstate case to reach a full court judgment

FACTS - Diplomatic relations between Georgia and Russia collapsed, the Russian state severed all communications e.g. planes and trains, and then a few weeks later the Russian govt. authorities started arresting and deporting thousands of Georgians living in Russia. Georgia claimed this was punishment even though it was technically lawful under Russian law.

HELD - Even if it was lawful under Russian law in Georgia the Strasbourg courts apply European standards so they were held to be arbitrary so were in breach of art.5 and were ordered to pay reparations

Question 3

Case which stated the purpose of art.5

Answer 3

Georgia v Russia (2014)
- Grand chamber held that the whole point of art 5 was to protect people from arbitrary action under European standards. Key purpose is to guarantee and protect arbitrary infringement of their liberty.

Question 4

TWO cases on protection against forced disappearances

Answer 4

1. Kurt v Turkey (1998)

2. El-Masri v Macedonia (2012)

Question 5

First case of people being forcibly disappeared

Answer 5

Kurt v Turkey (1998)

FACTS - court created a number of positive procedural obligations on states to prevent false disappearances - Must have proper record keeping of people held under art.5 ECHR, must protect people and if there is a claim that someone was not seen since being taken into custody there must be a prompt and effective investigation

Question 6

Case which further developed positive propagations for people held under Art.5 ECHR - in terms of the global war on terrorism

Answer 6

El-Masri v Macedonia (2012)

FACTS - El-Masri was a german national who travelled to Macedonia. He was detained there and disappeared. He was held in a hotel for several weeks and then handed over to Americans who beat him, stripped him and put him on a plane to Afghanistan where he was held and questioned for several months. Eventually they found he had no information so flew him back and left him in Albania

ECtHR HELD - Macedonia were liable for the unlawful detention in the hotel room AND the unlawful detention by the CIA because they had collaborated with them.

Question 7

Landmark case which found an ECHR state liable for supporting the US’s extreme actions for the first time

Answer 7

El-Masri v Macedonia (2012)

Question 8

Various grounds on which states can justify their actions under art.5 ECHR

Answer 8

Art.5(1) ECHR

Question 9

Authority which extended the justification under Art.5(1)(a) ECHR to include when a prisoner is on parol

Answer 9

Weeks v UK (1987)
- the conditions on parol can be justified i.e. when they’re released from prison

FACTS - Weeks was given a discretionary life sentence for armed robbery, after a few years of imprisonment he is given parol subject to conditions. After his release the authorities thought he contravened with those conditions so was sent back to prison

HELD - this was justified under Art.5(1)(a) ECHR

Question 10

Leading authority for both grounds in Art.5(1)(b) ECHR

Answer 10

Gatt v Malta (2010)

FACTS - Gatt violated his bail so had to pay 23,000 euros. He claimed to the court he didnt have that so they held he would be detained for 2,000 days instead which was lawful in Maltese law.

HELD - Even if it is lawful in national law there is European standards of proportionality –> they found that 2,000 days for not paying 23,000 euros was a disproportionate measure

Question 11

What are the most commonly used justifications under article 5(1) ECHR?

Answer 11

Art.5(1)(a) and Art.5(1)(c)

Question 12

Which justification under article 5(1) ECHR is for the common arrest power in criminal law

Answer 12

Art.5(1)(c) ECHR

Question 13

Case which developed the objective test for a states use of the justification under Art.5(1)(c) ECHR

Answer 13

Fox, Campbell; Hartley v UK (1990)

FACTS - 3 applicants arrested separately by police in N.Ireland under suspicion of terrorist related crimes based on previous convictions. They challenged that at Strasbourg and the UK govt. said they had more evidence/intelligence but couldn’t disclose it because to do so would threaten an anti-terrorist operation

HELD - States must be able to establish sufficient evidence that an impartial 3rd person looking at the evidence would justify it –> objective test
- the war on terrorism isn’t justification for having insufficient evidence. past convictions aren’t enough of a reason to arrest someone.

Question 14

Recent case on preventative detention under the Art.5(1)(c) ECHR justification

Answer 14

S, V and A v Denmark (2018)

FACTS - About football hooliganism. Before the match police officers saw the 3 individuals trying to incite violence so they arrested and detained S, V and A. The police didn’t intend to charge or bring criminal proceedings against them they were simply trying to stop them causing violence that day. Released them 8hrs later after people had left.

HELD - there is a separate preventative power of detention, provided that detention is for a short period of time. As long as the state protects individuals from arbitrariness.

Question 15

Case in which the courts addressed the definition of arbitrariness - but still didn’t come up with comprehensive definition

Answer 15

S, V and A v Denmark (2018)

Said there isn’t a comprehensive definition but said it would include the notion of bad faith on the part of the state

Question 16

Leading case for justification under Art.5(1)(d) ECHR

Answer 16

Bouamar v Belgium (1988)

FACTS - 16yr old boy was continually convicted for crimes and ordered to be detained for up to 2 weeks in special educational detention for young people. But, there were no special places available so he just went to normal prisons

HELD - this was a violation, state had to provide the form of special detention

Question 17

Leading case for justification under Art.5(1)(e) ECHR

Answer 17

Winterwerp v Netherlands (1979)

FACTS - Local town had statutory emergency powers to detain him, it was sent to the Dutch court and they held that Winterwerp should continue to be detained as they found he would be a danger to himself or others. But didnt define what an ‘unsound mind’ was

HELD - “37. . . .it is a term whose meaning is continually evolving as research in psychiatry progresses. . .”
- it depends on medical evidence/knowledge and seriousness of an individual’s condition

So the Netherlands were justified as he did have a medical condition –> ECtHR was ahead of its time in its approach to mental health

Question 18

Authority for the definition of the ECtHR’s approach to alcoholics for the purposes of art.5(1)(e) ECHR

Answer 18

Litwa v Poland (2000)

• Court ruling as a matter of law was that it doesn’t only apply to people that are medically defined as alcoholics – it extends to people who on one occasion binge and become a danger to themselves or others.

BUT… must pass the proportionality test under european standards as well –> this is why this case failed on its facts

Question 19

4 types of cases under art.5(1)(e) ECHR

Answer 19

1. mentally ill persons
2. alcoholics
3. infectious disease
4. vagrants

Question 20

Authority for whether detaining persons with infectious diseases can be justified under art.5(1)(e) ECHR

Answer 20

Enhorn v Sweden (2005)

FACTS - Enhorn found out he was HIV positive and that he had unintentionally infected someone. so authorities made him go to regular check-ups and meetings. He stopped going to them after a while so the court ordered his detention where he took compulsory medication.

HELD - no comprehensive definition of infectious diseases because it would depend on a medical determination on a case by case basis BUT… have to apply the proportionality test
- have to consider all other avenues first so Sweden were found in breach

Question 21

Only authority on the justification of detaining vagrants under art.5(1)(e) ECHR

Answer 21

De Wilde, Ooms; Versyp v Belgium (Vagrancy cases) (1971)
- one of the earliest court judgments given by the original court

FACTS - there was no social welfare system in Belgium at the time so if you didnt have money or a home you could turn yourself into the police and the local court could make a ruling that you are a vagrant and so they would order you to go into detention for a few years where you’re looked after. was this lawful?

HELD - were willing to accept the concept that they were deemed to be vagrants –> was justified (won the case under art.5(4) considered later)

Question 22

Authority for the justification under art.5(1)(f) ECHR

Answer 22

Bozano v France (1986)

FACTS - He fled from Italy, the trial continued in absentia and he was convicted. Fled to France so Italy sought his extradition, they refused because they took the view that under French law he hadn’t had a fair trial because he wasn’t present. 3 weeks later France issued a deportation order and sent him back. was this lawful under art.5(1)(f) ?

HELD - NO - because they had refused to extradite him they classified the French govt deportation order as an arbitrary action and so wasn’t lawful at European standards

Question 23

Authority for the application of Art.5(2) ECHR in criminal proceedings

Answer 23

Fox, Campbell; Hartley v UK (1990)

“40. . . .by virtue of paragraph 2 any person arrested must be told, in simple non-technical language that he can understand, the essential legal and factual grounds for his arrest”

Question 24

Case which expanded the meaning of “arrest” under Art.5(2) ECHR

Answer 24

Van der Leer v Netherlands (1990)
- The court interpreted the term ‘arrest’ in Article 5(2) broadly arguing that it encompassed any deprivation of liberty.

Question 25

Authority which expanded the application of Art.5(2) ECHR to cover both criminal and civil proceedings

Answer 25

Van der Leer v Netherlands (1990)

FACTS - She voluntarily entered a psychiatric hospital to receive treatment. A month later, a judge confined her to the hospital for six months without holding a hearing. The applicant was not notified of this order and discovered her confinement by accident. Govt. tried to argue that Art.5(2) doesn’t apply because this was civil proceedings not criminal.

HELD - “arrest” and “charge” should be interpreted “autonomously”.
Neither the manner in which she was informed nor the time it took to communicate this info to her corresponded to the requirements of Article. 5(2)

Question 26

Case in which the court deduced that the right of a defendant to obtain a speedy trial of hearing under Art.5(4) ECHR applies to both criminal arrests and psychiatric detentions

Answer 26

Van der Leer v Netherlands (1990)

highlighted the link between Art.5(2) and art.5(4) because speedy proceedings are not effective unless the defendant is promptly and adequately informed of the proceedings and the reasons for the detention or arrest.

Question 27

Case which held that promptness has to be first consideration under art.5(3) ECHR

Answer 27

Brogan; Others v UK (1988)

FACTS - Northern Irish law allowed the police to detain terrorist subjects for questioning for 7 days - some were held until just short of 7hrs. breach of art.5(3) ECHR?

HELD - yes - even though they were terrorist suspects, this right is so important that promptness must be the first consideration

BUT… didnt specify a time period

Question 28

Case which clarified a maximum period an individual can be held before it is a breach of Art.5(3) ECHR

Answer 28

Nikolov v France (2016)
- the ECtHR verified a general rule of a maximum of 4 days of detention – before this states may provide good reasons for it taking that long

in this case Nikolov was held for 3 days and 23hrs so there wasn’t a breach

Question 29

Case which clarified what a ‘judge or other officer authorised by law to exercise judicial power’ is for the purposes of Art.5(3) ECHR

Answer 29

Assenov v Bulgaria (1998)

FACTS - Under Bulgarian law they an officer called the ‘investigator’ who had the power to authorise the detention of people suspected of crimes. Held Assenov should be detained.

HELD - ECtHR upheld Assenov’s challenge to the authority of the ‘investigator’, holding that they weren’t sufficiently independent

Question 30

Do citizens who are subject to criminal proceedings have a right to bail under Art.5(3) ECHR?

Answer 30

Yes but it’s a qualified right

Question 31

Example of the old approach the courts had to the two-part test for determining whether it was a breach of Art.5(3) ECHR for someone to be refused bail

Answer 31

Wemhoff v Germany (1968)

FACTS - Businessman suspected of corporate fraud, was arrested and detained. The prosecution authorities refused bail for 4yrs because they felt that it was likely he would flee the country because of his connections and resources

Applied a two part test -

1. Obligation on the state to justify the decision with good reasons?
2. is the length of time bail is refused reasonable?

HELD - it was justified and 4yrs was reasonable

Question 32

Example of contemporary application of the two-part test for determining whether it was a breach of Art.5(3) ECHR for someone to refused bail

Answer 32

Kalashnikov v Russia
- stricter approach

developed the rule that the longer the state refuses bail the more difficult it becomes to give reasons and the time they refuse bail must be reasonable

HELD - they were justified in refusing his bail at the beginning when they thought he was tampering with evidence but that became less justified as time went on, and 4yrs was an unreasonable amount of time to refuse bail

Question 33

Example of the requirements under Art.5(4) ECHR

Answer 33

Belgian Vagrancy Cases (De Wilde, Ooms; Versyp v Belgium) -

“76. . . .must provide the fundamental guarantees of procedure applied in matters of deprivation of liberty.”

• Because people are being subject to a loss of liberty and that is such a fundamental right - where the decision depriving a person of his liberty is one taken by an administrative body, there is no doubt that article 5(4) obliges the contracting states to make a right of recourse to a court available to the detainee.

Question 34

Case which held that issues of national security will be considered under Art.5(4) ECHR on a case by case basis

Answer 34

A and others v UK (2009)

FACTS - UK govt set up an independent body called the Special Immigration Appeals Commission to deal with foreign nationals that were deemed to be a security threat. 9 individuals who were indefinitely detained and threatened with deportation without trial on the basis that there was some evidence that the individuals posed a national security threat

HELD - depended on the individual proceedings BUT… mainly the proceedings must be adversarial and must always ensure ‘equality of arms’ between the parties.

Question 35

Case in which a country was held in violation of Art.5(4) ECHR by failing to provide mental patients with the ability to challenge their detention

Answer 35

Winterwerp v Netherlands

HELD - cases where the circumstances justifying detention might change over time required periodic review of the continued need for detention , such as mental health cases.
- As the relevant Dutch legislation authorizing Winterwerp’s detention did not require such reviews, the Netherlands was in violation of article 5(4).

Question 36

Case on review of parole under Art.5(4) ECHR

Answer 36

Weeks v UK
FACTS - discretionary life sentence reviewed by parole board
- The Parole Board’s jurisdiction did not satisfy the requirements of Article 5(4) as the Board did not have the competence to direct release if the detention had become unlawful.

Question 37

Case which held there is a requirement for periodic review of discretionary life sentences under Art.5(4) ECHR

Answer 37

Stafford v UK (2002)
- held that once the punishment element of the sentence had been satisfied (i.e. the tariff), the grounds for continued detention must be based upon considerations of risk and dangerousness –> i.e requires periodic review