article 5 eval Flashcards
what are the 5 eval points
Important as it makes sure we are protected by the government
Violations of article 5 are high
Distinction drawn between deprivation ad restriction
Treatment in detention centers questions fairness on those seeking asylum
Vunerable claimants
right to challenge detention is secured under article 5(4)
Important as it makes sure we are protected by the government dev
Protects us as it says detention can only occur for legal reasons (5(1)(a)-(f))
Needs to be within good reason
e.g PACE for arrests
Winterwerp for mental health issues
Chesire west v p for care situations
Important as it makes sure we are protected by the government extra
However, flexibility offered by ECtHR for special cases such as terrorism or national security- and these could be considered arbitrary (based on personal choice not reason)
Violations of article 5 are high dev
second only to article 6 (across all nations), shows states are attempting to restrict the right
3982 violations found between 1959-2019, Russia being highest
Violations of article 5 are high extra
Shows that protecting rights needs to be a priority
Violations of article 5 are high extra point
every state has a criminal justice system that actively takes away the freedom of those who commit crimes- so chances of a breach are high, therefore protection needs to be too such as prison systems
Distinction drawn between deprivation ad restriction dev (case)
Deprivation of liberty is required under article 5(1), a restriction alone is not enough
Guzzadi v Italy says there is a difference between a deprivation and something which is just a restriction (so not a breach) and it depends on the degree and intensity of the measures
This protects the public as decisions are made on a case-by-case basis and are therefore more likely to be fair
Distinction drawn between deprivation ad restriction extra
However, it does lead to a lack of clarity about what is/isn’t a deprivation
Distinction drawn between deprivation ad restriction extra point
However in Cheshire West v P the test of being “under continuous supervision and control and not free to leave” was put in place which is an objective test and therefore should allow fairness/effectiveness/consistency
Treatment in detention centers questions fairness on those seeking asylum dev
article 5(1)(f) allows for detetnion whilst awaiting decicisions on immigration
However, detention centers are much like prisons and due to failures within the system some offenders can spend months or even years in these
Panorama documentary into brook house detention centers uncovered evidence of brutality and ill treatments of residents
Treatment in detention centers questions fairness on those seeking asylum extra
Napier barracks fire in 2021 fire leads to days w/ out food, water or heating- when many residents had contracted covid 19
Treatment in detention centers questions fairness on those seeking asylum extra point
Saadi v uk 7 day delay was not held as a deprivation of liberty, but if a uk citizen had been held in a police cell without reason for 7 days this would be a clear violation
Vunerable claimants dev
Questions have been raised about whether vunerable claimants with certain severe disabilities or mental health issues should be given the same level of rights as those with out these issues
Cheshire west v p- lady hale discussed at length whether the fact the claimant required extra care and assistance for their day to day life meant they must be deprived of their liberty a little more than usual to accommodate this
Vunerable claimants extra
The decision in the case was no- vunerable claimants should have the exact same rights as everyone else
Vunerable claimants extra point
This shows strength of the ECHR standing up for the vunerable
right to challenge detention is secured under article 5(4) dev
Protects the public as it puts positive obligation on the state to ensure that everyone who I detained (whether at a police station or psyc hospital or in care) an challange that release if its found to be unlawful
right to challenge detention is secured under article 5(4) extra
Also extends to parole hearings (James v UK) and Mental health review tribunals (under Mental Health Act) to ensure nobody is arbitrarily detained
right to challenge detention is secured under article 5(4) extra point
However due to issues with delays and the difficulty in having a case heard in the ECtHR, sometimes the claimant will be detained unlawfully for a period of time whilst awaiting an order (and will get compensation for this under article 5(5))
