Liberty [ECHR]

Article 5 Protection

On many occasions, the European Court of Human Rights has emphasised the importance of Article 5, protection of personal liberty. The court stresses the fundamental importance of the guarantees contained in Article 5 for securing the rights of individuals in a democracy to be free from arbitrary detention at the hands of the authority.

It has stressed in that connection that any deprivation of liberty must not only have been effected in conformity with the substantive and procedural rules of national law but must equally be in keeping with the very purpose of Article 5, namely to protect the individual from arbitrary detention.

In order to minimise the risks of arbitrary detention, Article 5 provides a corpus of substantive rights intended to ensure that the act of deprivation of liberty be amenable to independent judicial scrutiny and secures the accountability of the authorities for that measure.”

Article 5.2 to 5.4 provides rights for persons who are in detention. Article 5.3 applies to persons detained pending trial in criminal matters.

Deprivation of Liberty

A deprivation of liberty includes imprisonment as such, but also less formal detention. It is to be distinguished from the freedom of movement as such and the right to leave a country or move freely within it, which are protected by protocol 4 Article 2.

There may be a matter of degree and interpretation as to whether there has been a deprivation of liberty or a denial of freedom of movement. The court looks at the entirety of the circumstances in terms of interpreting whether there is a deprivation of liberty.

In Baisuev and Anzoroz v. Georgia, there was found to be a deprivation of liberty where applicant refugees had been held by the police for several hours. A similar defence to that above was claimed in that the detention was carried out due to the prevailing security situation.

The court did not consider whether there was a deprivation, but it made clear that the concept was to be interpreted narrowly. “If detention does not come within [Article as interpreted by the Court], it cannot be made fit by an appeal to the need to balance the interests of the state against those of the detainee”.

In Guzzardi v. Italy, the applicant was required to remain on a small island in a context of a mafia investigation, which was approximately two-and-a-half square kilometres containing a village but inhabited only by persons subject to the same restriction order. He had to remain in the property at night and report to the police twice daily. His family lived with him, but the accommodation was unsuitable. The court held that there was a deprivation of liberty as the position was analogous to an open prison.

Crowd Control

In Austin v. United Kingdom, there had been disorder and the police cordoned off an area temporarily so that those within were not free to leave for some hours. One applicant was protestor, while others were simply caught in the demonstration. The court found that there was no deprivation of liberty. There was effectively an emergency situation with a risk of violence and injury.

“That measure was imposed to isolate and contain a large crowd in volatile and dangerous conditions. . . the police decided to make use of a measure of containment to control the crowd rather than to resort to more robust methods which might have given rise to a greater risk of injury to people within the crowd.”

Dissenting opinions in the case held that there was a deprivation of liberty in accordance with previous case law. The majority indicated that the position was exceptional. The minority indicated that it appeared dangerous in that it “leaves the way open for carte blanche and sends out a bad message to police authorities

Relative Confinement

In Shimovolos v. Russia, there was found to be deprivation of liberty when a person was taken for questioning for a period of 45 minutes in a police station.

In Amuur v. France, the applicants were refugees from  Somalia who had falsified passports. Before being deported, they were kept by the police in a nearby hotel, led to the authorities and the airport lounge. The court did not accept that they were detained as they were free to return from where they came.

In Engel v. Netherlands, the court considered different degrees of internal disciplinary punishment within the army. There could be confinement to barracks or stricter confinement to cells. The former did not comprise a deprivation of liberty, while the latter did. However, this court held that different considerations arose in relation to those in military service, even where they had been conscripted.

Consent

Consent negates detention in this context. However, the consent must be free and real. In HL v. United Kingdom, the applicant was severely autistic and was detained in a hospital for over three months informally without legal detention on the basis that he did not object.

The court did not accept that fact that he never sought to leave as sufficient to negate detention. He was subject to the control of the staff concerned and was not in substance free to leave, as it appeared that he would have been subject to compulsory detention if he had attempted to do so. There was therefore a deprivation of liberty.

Lawfulness

In Baranowski v. Poland, the court found that the practice in Poland of holding persons in detention pending trial after lodgement of the indictment lacked any sufficient legislative or case law basis. In the absence of rules, it was insufficiently foreseeable and certain and was found to breach the Convention.

The deprivation must be lawful. This requires that it is undertaken in accordance with the procedure prescribed by law.

In Amuur v France, the method of holding asylum seekers pending deportation in the international zone of an airport was set out in internal circulars, which were not available to asylum seekers or their legal representatives. There was no mechanism to ensure against arbitrary detention or to procure judicial review. It was held that the law was insufficiently clear to constitute lawful detention.

Procedural Safeguards

A deprivation is not lawful simply because it is formally in accordance with the relevant law if the law provides for arbitrary deprivation of liberty or arbitrary or excessive detention. In Erkalo v. Netherlands, the applicant was held detained in a mental institution under a court order.

It expired or was not renewed for some period through inadvertence, during which the detention continued. Whilst the detention was not in itself unlawful, the lack of safeguards and procedures to show the lawful basis of the detention breached Article 5.

Link to Grounds

In James, Wells and Lee v. United Kingdom, detention was held to be arbitrary because there was no access to treatment courses which were part of the express rehabilitative purpose of the detention. The detention was thereby arbitrary.

In Conka v. Belgium, Romany families were deceived into coming to a police station on the basis that their asylum application would be completed, whereupon they were subject to deportation orders and were immediately detained. It was found that the authorities had acted in bad faith and breached the Convention.

In Saadi v. United Kingdom, the court emphasised that the detention order and its execution must be in conformity with its purpose in accordance with the grounds in the Convention. There must be a clear relationship between the deprivation of liberty and the grounds on which it was effected.

Detention must be necessary for the purpose. Detention should be a last resort and less drastic measures must be considered and found to be insufficient in the circumstances to protect the interests of the public.

The court’s review of the necessity for detention is applicable in the pre-conviction stage. After conviction, the matter is primarily one for the court and national law.

Positive Measures

In Storck v. Germany, the applicant had been detained for most of her life in psychiatric institutions. including two years’ detention in a locked psychiatric ward which was enforced by the police in a private institution. The court found the State liable because of the police’s roles and the State\’s positive obligations to ensure compliance with the Convention’s obligation.

“Article 5.1 must be considered as laying down a positive obligation on the state to protect the liberty of its citizens. Any conclusion to the effect that it was not the case would not only be inconsistent with the court\’s case law, notably under Articles 2, 3 and 8 of the Convention.

It would moreover leave a sizeable gap in the protection from arbitrary detention, which would be inconsistent with the importance of personal liberty in a democratic society. The State is therefore obliged to take measures providing effective protection of vulnerable groups including reasonable steps to prevent the deprivation of liberty of which the authorities have or ought to have knowledge.”

In Rantsev v. Cyprus and Russia, states were held responsible for the deprivation of liberty by human traffickers.

State Accountability

In Varnava v. Turkey, the court indicated that where a person has been, appeared to have been taken into custody and was subsequently disappeared, the State had an obligation to effectively investigate the circumstances.

The court has emphasised the obligation of the authorities to exercise their powers to control and prevent crime in a manner which fully respects due process and other guarantees which legitimately place restraints on the scope of their activities, including the guarantees in Article 5 (Jendrowski v Germany).

Unacknowledged deprivations of liberty and the failures of a state to account for the whereabouts of persons in their custody may comprise serious breaches of the Convention. The person should be formally identified, and information retained on their location, date and duration of detention.

“The unacknowledged detention of an individual is a complete negation of these guarantees and is the gravest violation of Article 5 . . . States must take effective measures to safeguard against the risk of disappearance and conduct a prompt and effective investigation into an arguable claim that a person has been taken into custody and has not been seen since.