Liberty

Article 5 ECHR

Everyone has the right to liberty and security of the person. The essence of the protection is that the detention should not be arbitrary.

No one is to be deprived of this liberty save in the following cases and in accordance with a procedure prescribed by law:

• lawful detention of a person after conviction by a competent court;
• the lawful arrest or detention of a person for non-compliance with the lawful order of a court in order to secure the fulfilment of the obligation;
• the lawful arrest or detention of a person effected for the purpose of bringing him before a competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
• the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before a competent legal authority;
• the lawful detention of persons for the prevention and spreading of infectious diseases of persons of unsound mind, alcoholics, drug addicts or vagrants;
• the lawful arrest and detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

If there is no right to compensation under national law, there is a right established under the Convention itself, to which effect must be given for breach of the Convention.

Arrest

Every person who is arrested must be informed in a language which he understands of the reason for his arrest and any charge against him.  Every person arrested for the purpose of bringing him before a court must be brought promptly before a judge or officer authorised by law to exercise judicial power and shall be entitled to a trial within a reasonable time or release pending trial.  Release may be conditional on guarantees to appear at trial.

A person deprived of his liberty by arrest shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if his detention is not lawful. Everyone who has been the victim of arrest or detention in contravention of the provisions of the Article must have a right to compensation.

Deprivation of Liberty

The deprivation of liberty must be lawful in that it is in accordance with law and principles of legality as provided in other Articles of the Convention.  National law must be precise and must be implemented.

A person may be detained even though he is not in a confined space.  If a person is confined to a particular area or to particular hours so that his freedom of movement is substantially restricted, he may be deprived of liberty for the purpose of the Article.

A person may be deprived of his liberty if he is effectively controlled without formal detention.  A person who is in a hospital who can’t technically or legally leave but, due to particular control and dominance, is not in fact in a position to make a valid decision to do so may be held to be detained.

No Arbitrary Detention

The freedoms in Article 5 are designed to protect personal liberty and prevent arbitrary detention. The article is focused on the deprivation of liberty, whether in a criminal or civil context.  It limits the permissible bases for deprivation of liberty.

Substantive laws must have relevant mechanisms so that depravations of liberty are subject to prompt scrutiny by independent judges and so that the authorities are accountable for their actions under the law.

Detention must not be in bad faith.  It must be proportionate to the subject matter or reason for it.  A State must have mechanisms in order to protect the liberty of the citizen.  It must protect vulnerable persons appropriately.

Procedural Aspects

A person must know the reason for his detention.  The content and promptness of the required communication will depend on the circumstances.

The law must contain clear provisions such that a person knows his status.  There must be a mechanism for the review of legality, which is prompt.  This might equate to agreeing to habeas corpus proceedings in common law.

The deprivation of liberty must be lawful from a substantive and procedural perspective.  A minor procedural defect would not be sufficient. The objectively permissible grounds for the detention are set out.

Criminal

A person may be arrested for the purpose of bringing him before a court.  In this event, he must be brought promptly before a judge and is entitled to trial within a reasonable time. Excessive periods of detention prior to the charge would breach the Convention.

In a number of cases involving the United Kingdom, the provision for periods of questioning for a number of days was held invalid and the UK government filed derogations based on there being an emergency threatening life of the nation.

A person may be detained after conviction, provided that there has been a conviction by a competent court. The court must follow fair procedures.  The court must form part of a judicial system. Detention must be proportionate to the objective.  Where the offence is trifling, detention may not be justified.

Civil Detention

Minors may be detained in a number of contexts.  School attendance is a legitimate objective.  The age varies between the states.

Persons who are vulnerable by reason of mental incapacity may be detained. Persons detained on account of mental illness must only be so detained in accordance with proper procedures.

There must be objective evidence that they are of unsound mind.  The person must be a danger to himself and others.  The detention must be justified periodically.

A person may be lawfully detained to prevent the spreading of infectious diseases.  However, the restriction must be no more than necessary and must be a last resort.  Broad principles similar to those applicable to mental health would apply.

Civil Detention Basis

There is considerable scope for the deprivation of liberty and or detention in the context of immigration, extradition and deportation. Detentions for such purposes must be carried out in good faith.  They must be necessary and closely connected with the prevention of unauthorised entry of persons.

The place of detention should be appropriate.  The fact that the person has not been found guilty of an offence must be reflected in the conditions of accommodation.

The length of the detention should not be longer than that required for the relevant purpose. It is not necessary that the person be shown to be a risk of absconding or committing a crime.