Art. 5 ECHR Flashcards
First case in which the courts sought to define the meaning of liberty
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)
Case which questioned the use of the word ‘lawful’ in Art 5 ECHR
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
Case which stated the purpose of art.5
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.
TWO cases on protection against forced disappearances
- Kurt v Turkey (1998)
2. El-Masri v Macedonia (2012)
First case of people being forcibly disappeared
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
Case which further developed positive propagations for people held under Art.5 ECHR - in terms of the global war on terrorism
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.
Landmark case which found an ECHR state liable for supporting the US’s extreme actions for the first time
El-Masri v Macedonia (2012)
Various grounds on which states can justify their actions under art.5 ECHR
Art.5(1) ECHR
Authority which extended the justification under Art.5(1)(a) ECHR to include when a prisoner is on parol
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
Leading authority for both grounds in Art.5(1)(b) ECHR
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
What are the most commonly used justifications under article 5(1) ECHR?
Art.5(1)(a) and Art.5(1)(c)
Which justification under article 5(1) ECHR is for the common arrest power in criminal law
Art.5(1)(c) ECHR
Case which developed the objective test for a states use of the justification under Art.5(1)(c) ECHR
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.
Recent case on preventative detention under the Art.5(1)(c) ECHR justification
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.
Case in which the courts addressed the definition of arbitrariness - but still didn’t come up with comprehensive definition
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