Personal liberty and security under Art. 5

Question 1

What rights does Art. 5 secure?

Answer 1

The right not to be deprived of ones liberty
- subject to certain limitations (1)(a-f))

The right to be informed promptly of reasons for arrest (2)

The right to be brought promptly before at judge (3)

The right to a trial within reasonable time or release pending trial (3)

The right to have lawfulness of detention speedily decided by a court (4) - habeas corpus

The right to compensation for violation of Art 5 (5)

Question 2

What is the purpose of Art. 5?

Answer 2

To protect individuals personal liberty and prevent arbitrary arrests or detentions

Question 3

Is the right to physical liberty absolute (unqualified)?

Answer 3

No, subject to specific limitations in §1 (a - f)

Possible to derogate under Art. 15

Question 4

When can a person be lawfully detained?

Answer 4

Exhaustive list in §1 + possibly of derogation under Art. 15

a) lawful detention of a person by competent court
b) state detention of person who fails to secure obligation provided by law
c) detention for the purpose of bringing a person before a court, who is reasonably suspected of having committed a crime and detention is necessary to secure continued presence (flight risk)
d) deprivation of minor fro educational purposes
e) detention in order to prevent spreading of diseases, alcoholics ect. (OBS: Witold Litwa v Poland - term “alcoholics” shall not be interpreted in accordance with the ordinary notion, i.e., people addicted to alcohol,, but as encompassing any person who is drunk and present a danger to himself or others (intentionalism)
f) detention for the purposes of immigration and detention

Question 5

What does term “autonomous concept” mean?

Answer 5

When the Court gives a term the same meaning across member states when interpreting the ECHR, in order to prevent states from circumventing rights by giving terms their own meaning.

Question 6

Example of a term given an autonomous meaning by the Court?

Answer 6

The term “criminal charge”.
The applicability of Art. 6 (criminal limb) presupposes that the applicant is faced with a criminal charge, so in order to avoid Art. 6 (criminal limb) requirements, the State could just decide that something is not classified as “criminal” under domestic law.

This prevents states from classifying an offence, that is clearly criminal in nature, as a disciplinary offence and thereby avoid Art. 6 requirements during trial.

Question 7

What does Art. 5 protect?

Answer 7

Physical liberty (like Art. 2, 3 and 4)

Question 8

What aspect of detention does Art. 5 concern?

Answer 8

The very existence of detention (conditions of detention is mainly regulated by Art. 3)

Question 9

What protection does Art. 5 provide?

Answer 9

Gives the Court remedies if there is an illegal detention;

• ongoing detention: court can order for the detention to end
• previous detention: court can only order some sort of compensation

Question 10

When is Art. 5 applicable?

Answer 10

Only if there is a deprivation of liberty

Question 11

What is the difference between deprivation of liberty (Art. 5) and restriction of movement (Art. 2 of Protocol 4)?

Answer 11

Difference is merely a level of intensity, i.e., duration ect.

Restriction of movement is less severe

Detention is the most severe form of deprivation of liberty

Question 12

What are some examples of deprivation of liberty?

Answer 12

Being confined to a small island with other residents, open hospital ward with escorted access to outside, transit zone of airport, 24 hrs. house arrest

Question 13

When does house arrest amount to deprivation of liberty?

Answer 13

Depends on the area, reporting requirements, curfew, if social relationships are allowed or not

Question 14

Is it deprivation of liberty if you have the option of leaving?

Answer 14

Depends on if the possibility is rendered theoretical

If people are being detained at an airport denied entry into the country, but technically have the option of flying back to the country they came from, it can still constitute deprivation of liberty.

This depends on whether or not the persons are at risk of ill - treatment if they go back and whether or not they have another safe country they can go to (bound by refugee convention)
If not, the possibility of leaving is rendered theoretical.

OBS: not applicable to any border case

Question 15

What is the allowed duration of administrative detention?

Answer 15

No absolute time limit, but general rule says maximum 3 hours

Question 16

When does the purpose of the deprivation of liberty matter?

Answer 16

Generally: only when deciding whether or not the deprivation was justified - the existence of deprivation does not depend on the purpose

Exception: Austin v UK
2000 people in a public square were detained during a demonstration in a police cordon (“kettling technique”), due to public safety. The detention lasted several hours, where people were gradually released.

The Court stated that the police enjoy a certain discretion when maintaining their job of securing public order and safety and that the context must be taken into account. The “kettling technique” was used to secure public safety, which led the Court to conclude that there had been no deprivation of liberty.

Question 17

Can the Court’s reasoning in Austin v UK generally be applied to Art. 5 cases?

Answer 17

No, the case is confined to its own facts.

It should not be interpreted as setting a precedence after which there is no deprivation of liberty as long as the State has a good purpose for detaining people.

The aim of the detention should generally only be taken into account when assessing the proportionality of the deprivation, NOT in assessing whether or not there has been a deprivation of liberty.

Subsequent case law has followed this rule and not the argumentation of Austin v UK.

Question 18

Does coercion have an influence on the existence of a deprivation of liberty?

Answer 18

Yes.

If a person is detained using coercion being used, it can indicate a deprivation of liberty, even if the duration of the detention is short (under 3 hours)

Coercion can be;

• handcuffs
• use of force
• search of person

Question 19

Does the access to social links have an impact on whether there is a deprivation of liberty or not?

Answer 19

Yes.

It matters if the detained is able to maintain social relationships

Question 20

Requirements of justification of deprivation of liberty?

Answer 20

If it has been established that there has been a deprivation of liberty, next step is to find out if the deprivation was justified

3 requirements:

• lawful under domestic law
• not arbitrary
• fall within one of the grounds listed in §1 (a - f) (exhaustive list)

Question 21

What does requirement of “lawfulness” entail?

Answer 21

The deprivation must have basis in domestic law.

Court is limited in its scope of review of domestic legislation by the logic of the system of safeguards established by the ECHR, BUT domestic law must not be contradictory or confusing

Question 22

What does requirement of no arbitrariness entail?

Answer 22

This requirement adds a subjective element to the assessment and imposes a requirement of “good faith” on behalf of the State authorities

Question 23

When is a deprivation of liberty arbitrary?

Answer 23

Saadi v UK.
Asylum seeker detained for 7 days at UK border pending being granted access. The detention was due to the reason of preventing “unauthorized entry” into the country, but seeing as the applicant was only informed of this reason 76 hours into the detention, the State had violated Art. 5 (2).

Court stated that a detention will be arbitrary when there has been a element of “bad faith” on part of the authorities and the purpose of the detention does not genuinely conform with one of the purposes listed i §1, i.e., the detention has a different real purpose.
Furthermore, the detention must be necessary (proportionality between detention reason and conditions)

Also, if the detention is grounded in §1 (b) there must a proportional relationship between right to liberty and the obligation not fulfilled

Question 24

What are the grounds listed in §1 (a - f)

Answer 24

a) Prison sentence
b) Breach of court order
c) Pre - trial detention
d) Detention of pupils for educational purposes
e) Medical isolation
f) Detention of illegal immigrants/asylum seekers

Question 25

Does Art. 5 allow for preventive detention?

Answer 25

No.

There has to ben an intention of bringing criminal charges within a reasonable time when detaining someone, i.e., the State must have some evidence of criminal acts

Question 26

Case law on preventive detention?

Answer 26

Al - Jedda v UK.
Case concerned extraterritorial application of Art. 5 during the UK’s occupation of Iraq.
The UK argued that they were obliged to undertake preventive detention under a Security Council Resolution, which takes precedence over other instruments of international law, including the ECHR.
This argument could in theory be true, but the Court came to the conclusion that the the resolution did in fact not impose such obligation on the UK. Since Art. 5 does not allow for preventive detention the UK had violated Art. 5

Question 27

Is preventive detention never possible?

Answer 27

Not under Art. 5, but during derogation under Art. 15 it can be possible

Question 28

When can a person be detained pre - trial?

Answer 28

§1 (c)
Must be for the purpose of bringning the accused before a court - there must therefore be a genuine intention to bring the detainee before a court upon detention

Detention must be pursuant to a reasonable suspicion that the accused has:

• committed a crime
• is about to commit a crime (preparatory acts)
• is about to flee having committed a crime (flight risk)

Question 29

What does “reasonable suspicion” entail?

Answer 29

The information has to satisfy an objective observer that the person may have committed the crime

The requirement to the evidential information becomes stronger the higher the burden of proof is

Art. 5 burden of proof is “reasonable suspicion” - a very lax standard

Question 30

Is the requirement to the “reasonableness” of the evidential foundation for pre - trial detention the same in terrorism cases?

Answer 30

Fox, Campbell and Hartley v UK
Terrorism falls within a special category. Due to the difficulties in investigating and danger in revealing sources of reliable evidence to the suspect, the Court has stated that the “reasonableness” of the suspicion justifying pre - trial detention in these cases, cannot always be judged according to the same standards applied in dealing with conventional crime

Question 31

What rights does §3 afford pre - trial detainees?

Answer 31

Only applies to people detained under §1 (c)

1) To be brought promptly before an (independent) judge (or other officer authorized to exercise judicial power)
2) Trial within a reasonable time
3) Possibility of being released on bail

Question 32

What are the rules regarding judicial review of detention?

Answer 32

§3 - automatic judicial review for pre - trial detainees at beginning of detention

§4 - habeus corpus
Judicial review during any point of detention for anyone deprived of liberty pr. their own request

Question 33

Right to judicial review under §3

Answer 33

Review must be automatic and cannot depend on the detainees own request

The purpose of the review is to supervise the detention and ensure that the detainee is not being held incommunicado

The hearing must be adversarial and ensure equality of arms

Question 34

What is “prompt” under §3?

Answer 34

Golden rule - 4 days (in absence of any exceptional circumstances)

Can be deviated from during derogation under Art. 15, but even then there is a time limit
- Court has previously held 2 weeks to be too long during derogation

Question 35

Special circumstances that can justify a longer period before judicial review under §3?

Answer 35

French case.
Ship with applicants onboard was intercepted at high seas, where they were put under arrest. The ship escorting the applicants took 13 days to reach France. Nothing indicated that this time was excessive. The Court therefore looked at how much time had passed from when the applicants arrived in France to when they were put before a judge.
The exceptional circumstances meant that the Court did not look at the period between arrest and time of judicial review. The applicants were put before a judge less than 24 hours after arriving in France. No violation

Question 36

Whats the difference between Art. 5, §3 and §6, §1, which both secure the right to a trial within a reasonable time?

Answer 36

The temporal and personal jurisdictions of the rules are different

Art. 6, §1

• Personal jurisdiction: anyone awaiting trial, also persons at large
• Temporal jurisdiction: from the moment a person is subject to a criminal charge until final ruling (including appeal)

Art. 5, §3

• Personal jurisdiction: anyone in police custody awaiting trial
• Temporal jurisdiction: from arrest until release/conviction

Question 37

What constitutes trial “within a reasonable time” under §3?

Answer 37

No specific time limit - depends on the complexity of the case, conduct of accused ect.

In especially serious and complicated cases the Court has allowed pre - trial detention for over 5 years

Question 38

Does anyone have the right to be released on bail under §3?

Answer 38

No, but national legislation has to allow for the possibility and the court must always consider the option.

The presumption should always be that you can be released on bail (presumption of innocence) and there has to specific reasons for denying bail

Release on bail has to be allowed when the reasons for detention are no longer present - pre - trial detention is only allowed when necessary!

Question 39

Does §3 prohibit automatic rejection of bail applications?

Answer 39

Yes.

Every bail application must be assessed on it’s own facts

Question 40

Does the requirement to the evidence the detention is based on increase over time?

Answer 40

Yes.

The longer the detention, the stronger the evidence for continued detention must be

Question 41

What are the recognized grounds for denying bail?

Answer 41

• Flight risk
• Interference with the course of justice (witness tampering, destruction of evidence)
• Prevention of crime
• Preservation of public order

Question 42

When can bail be denied?

Answer 42

When less restrictive measures have been considered (i.e., police supervision, curfew ect.) and has been found to be insufficient

Must always be the last option

Question 43

Does §3 require any financial aspects to be considered by domestic courts when setting bail?

Answer 43

Yes, the domestic courts must take into consideration the financial means of the detainee when setting bail

If bail were allowed to be set unreasonably high, seen in relation to the detainees financial situation, the right to release on bail would be rendered illusionary

The severity of the crime must also be taken into consideration - petty theft and murder should not be set at same bail

Question 44

What are the right secured by §2?

Answer 44

The right for anyone arrested to be informed promptly of the reason for the arrest and the charges against him

Question 45

Who can invoke §2?

Answer 45

Anyone detained under §1

Question 46

What is the purpose of §2?

Answer 46

To allow the detainee to challenge the lawfulness of the detention under §3 and §4

Question 47

What does “prompt” under §2 mean?

Answer 47

Not like typical Miranda rights, which have to be read upon arrest

You can be arrested, put in detention and THEN explained your charges

No more than a few hours later typically

Question 48

When is it possible to detain immigrants or asylum seekers?

Answer 48

§1, (f) allows detention in two scenarios:
For the prevention of unauthorized entry into the country (first limb) or detention with a view to deportation or extradition (second limb)

Question 49

What are the possible scenarios for detention under §1 (f)?

Answer 49

During the effectuation of deportation order or while application for permission to stay is being processed

Question 50

Does immigrant detention have to be necessary?

Answer 50

No, necessity is not a requirement, i.e., the state does not have to justify the detention

Question 51

Are there any requirements to the States deportation proceedings?

Answer 51

Yes, the State must pursue the deportation/extradition proceedings actively, i.e., there must be some progress, but there is no specific time limit

The proceedings can be more or less complicated and therefore take longer in certain cases, which is allowed, as long as the state is actively pursuing the proceedings

Question 52

Case on immigrant detention pending deportation?

Answer 52

A v UK
Several foreign nationals were detained on suspicion of being terrorists under domestic legislation, which allowed for the detention of foreign nationals suspected of terrorism, pursuant to a derogation under Art. 15. The Court acknowledged that the UK was in a state of emergency following the 9/11 attacks in the US and enjoyed a wide margin of appreciation in determining what constitutes a threat no national security.
Measures must still be proportional, even in times of derogation.

The applicants could not be deported due to risk of torture in violation of Art. 3 (absolute right), so they could not be detained on the basis of pending deportation proceedings.

The Court ruled that the legislation violated the Convention as it only applied to foreigners, which was disproportional and irrational even during a derogation, seeing as the aim of the law was to prevent terrorism, but there was no reason that UK could not pose a terrorist threat as well.

The Court found the law to be excessive, even during a derogation and that it was in violation of Art. 5

Question 53

Case on detention at the border (preventing unauthorized entry)?

Answer 53

Saadi v UK.
Iraqi national claimed asylum at UK border. He was eventually granted asylum on appeal, and had been detained 14 days altogether since his arrival at the UK border.

Court ruled that presenting oneself at the border claiming asylum STILL constitutes unauthorized entry and that detention is therefore allowed under §1 (f).

However, detention is only allowed as long as proceedings are pursued with due diligence and is not arbitrary (good faith), the detention period was not excessively long and the facilities are appropriate.

Question 54

What right does Art. 5, §4 protect?

Answer 54

“Habeas Corpus” - like proceeding

While you are being detained a judicial body should keep supervision with the lawfulness of the administrative decision

Question 55

What is the personal jurisdiction of §4?

Answer 55

Everyone deprived of their liberty according to §1

Question 56

Does the Habeas Corpus review happen automatically like §3 - review?

Answer 56

No.

§4 supervision only happens on the detainees own initiation

Question 57

What is the point of §4?

Answer 57

• To examine lawfulness of detention
• To examine if the grounds for detention are still present
• Examine whether bail has been denied legitimately
• Examine whether asylum/immigration application is being pursued diligently
• Examine whether deportation proceedings are being pursued diligently

Question 58

When is §4 applicable?

Answer 58

After you have been put before a judge in accordance with §3 or if you have not been put before a judge at all

Question 59

Does the body hearing perditions under §4 have to be a traditional court?

Answer 59

No, but it must offer same procedural safeguards as a court

• independent and impartial
• power to order release

Question 60

Can a public prosecutor or an advisory panel be a “court” under §4?

Answer 60

No.

Question 61

What are the rules regarding use of undisclosed material as evidence?

Answer 61

General rule - equality of arms

The Government may be allowed to keep some elements of evidence from detainee regarding matters of national security.

However, the Government must ensure that there is some sort of supervision with this, e.g., by using special advocates that review the undisclosed material on behalf one the applicant