Right to liberty and security

Question 1

What is the structure of the article?

Answer 1

1. Scope - Was there an interference?
2. Does the situation fall under ‘permitted grounds’?
3. Double-lawfulness test:
   - (i) In abstracto - Legal basis and quality of law
   - (ii) In concreto - Compliance with domestic law
4. Proportionality:
   - Not arbitrary
   - Good faith
   - Causal link between act and detention
   - Ultima ratio
   - Duration of detention
   - Necessity of the detention for the stated aim

Question 2

5(1)a - Detention after conviction by a competent court

Answer 2

1. The detention must be lawful, not the conviction
2. The detention must be lawful from the beginning until the end of the sentence (no prolonged detention)
3. What is a ‘competent court’? - Independent and impartial
4. What is ‘conviction’? - Finding of guilt
5. There must be a causal link between the conviction and the detention (no preventive detention)

Question 3

5(1)b - Failure to comply with an obligation prescribed by law

Answer 3

1. Non-compliance with the lawful order of a court
2. Proportionality of the detention:
   - Right to liberty v. importance of the aim
3. Not applicable for contractual defect! (Protocol 4, Art. 1)

Question 4

5(1)c - Pre-Trial Detention

Answer 4

1. Reasonable suspicion:
   - Objective evidence must satisfy an objective observer
2. 5(3) applies - Arrest period:
   - Arrest period starts from the moment of arrest
   - Promptly brought before judge - Must be automatic - A few days
   - Does it have to be a proper judge? Not but that person must exercise judicial power
   - Impartial and independent
3. Right to release pending trial:
   - Grounds - Risk of absconding justice, re-offending, tempering evidence, collision with defendants/applicants (not exhaustive)
   - Continued detention must be lawful
   - Reasonable grounds diminish through time
   - Reasonable suspicion of committing an offense is a reasonable ground at first but only for a short period!
   - ‘Promptly’
   - Special diligence to priority and expediency

Question 5

5(1)e - Vulnerable groups

Answer 5

Whom? Vagrants, mentally-ill, infectious diseases

1. Infectious diseases, alcoholics, drug addicts:
2. Was there an interference?
3. Legitimate aim - ‘Prevention of the spreading…’
4. Lawfulness:
   (i) Legal basis and quality of law,
   (ii) absence of arbitrariness (necessity, subsidiarity, individual rights v. public interest),
   (iii) is it dangerous to the public? and
   (iv) last resort.

Question 6

Case law - Detention of HIV infected individual

Answer 6

Enhorn v. Sweden:

1. Applicant had complied with the doctors’ orders
2. Government failed to consider less intrusive means
3. Not last resort!
4. No fair balance

Question 7

What about home arrest?

Answer 7

De Tommaso v. Italy:

1. After 3 years, you must be able to review
2. Need for sufficiently relevant grounds