Article 5: Right to Liberty Flashcards
The Right to Liberty
Article 5(1) = limits the circumstances in which state may lawfully deprive a person of his/her liberty
Article 5(2), (3), (4), and (5) = ancillary protections
Article 5(1)
“[N]o one shall be deprived of his liberty”
Exceptions (a) - (f)
+ “in accordance with procedure prescribed by law”
What constitutes a “deprivation of liberty”?
The dividing line between a deprivation of liberty and a mere restriction of freedom of movement is narrow and imprecise.
Assessment of individual case facts to see whether cumulative restrictions imposed = deprivation of liberty.
- HL v. UK
- Amuur v. France
- Guzzardi v. Italy
- ZA v. Russia
- Terhes v. Romania
HL v UK (2005)
initially contesting to detention does not prevent violation
Ammur v. France (1996)
The Somali applicants were confined to an airport and a nearby hotel by the French authorities while their application for asylum was pending.
Guzzardi v. Italy (1996)
The applicant was suspected to be a member of the mafia, and was confined to an area measuring 2.5 km squared on the island of Assinara
(movements and activities were severely restricted)
ZA v. Russia
Four applicants were refused entry to Russia upon arrival - remained in an international transit zone while awaiting outcome of asylum applications for 5 - 22 months
Court has to take a practical and realistic approach:
- the migrant’s individual situation and choices
- the applicable legal regime and whether it has appropriate safeguards
- the duration of the stay in the transit zone
- the nature and degree of the restriction
–> lack of domestic legal provisions + no practical possibility of them leaving the transit zone = deprivation of Liberty, Article 5 engaged
Terhes v. Romania
whole population under Covid-19 lockdowns
applicant was not subject to individual surveillance, was not forced to live in cramped space, had not been deprived of all social contact
No deprivation of liberty
Article 5(1)(a)-(f)
Exceptions where the State will be found to have lawfully deprived the applicant of their liberty
Article 5(1)(a) - Lawful detention after conviction by a competent court
TWO ISSUES:
- whether the person was convicted by a competent court
competent = domestic law gives it the power to convict demonstrates the usual characteristics required of such a body: judicial character, fair procedures etc. Ilascu v. Moldova and Russia (2005) = did not display the proper characteristics of a court, behaved in arbitrary and unfair manner
- whether the detention was a lawful consequence of the conviction
Stafford v. United Kingdom (2002) = applicant had served sentence for murder but was then convicted for fraud. Life sentence for murder was reimposed.
Article 5(1)(a) - Lawful detention after conviction by a competent court
TWO ISSUES:
- whether the person was convicted by a competent court
competent = domestic law gives it the power to convict demonstrates the usual characteristics required of such a body: judicial character, fair procedures etc. Ilascu v. Moldova and Russia (2005) = did not display the proper characteristics of a court, behaved in arbitrary and unfair manner
- whether the detention was a lawful consequence of the conviction
Stafford v. United Kingdom (2002) = applicant had served sentence for murder but was then convicted for fraud. Life sentence for murder was reimposed.
Article 5(1)(a) - Lawful detention after conviction by a competent court
Issue 1/2:
Whether the person was convicted by a competent court
competent = domestic law gives it the power to convict
demonstrates the usual characteristics required of such a body: judicial character, fair procedures etc.
Ilascu v. Moldova and Russia (2005) = did not display the proper characteristics of a court, behaved in arbitrary and unfair manner
Article 5(1)(a) - Lawful detention after conviction by a competent court
Issue 2/2:
Whether the detention was a lawful consequence of the conviction
Stafford v. United Kingdom (2002) = applicant had served sentence for murder but was then convicted for fraud. Life sentence for murder was reimposed.
Reimposition was violation of Article 5(1) as it was unconnected to the original conviction for murder.
Article 5(1)(b)
- Must be linked to the individual
- Must not involve preventive detention
- “in order to secure the fulfilment of any obligation prescribed by law”
Article 5(1)(c)
- Arrest / Detention must be lawful
- Must be “for the purpose of bring a person before the competent legal authority”
3.
