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Article 5 European Convention on Human Rights - Right to Liberty

 
 
Article 5 Right to Liberty & Security
 
 
"1 Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: 
 
(a) the lawful detention of a person after conviction by a competent court; 
 
(b) the lawful arrest or detention of a person for noncompliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law; 
 
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the 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; 
 
(d) 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 the competent legal authority; 
 
(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants; 
 
(f) the lawful arrest or 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. 
 
 
2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him. 
 
3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial. 
 
4. Everyone who is deprived of his liberty by arrest or detention 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 the detention is not lawful. 
 
5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation."
 
 
 
 

Deprivation of liberty

 
HM v Switzerland [2002] ECHR 157       Case summary
 
On the meaning of deprivation of liberty:
 
 
“In order to determine whether there has been a deprivation of liberty, the starting point must be the specific situation of the individual concerned and account must be taken of a whole range of factors such as the type, duration, effects and manner of implementation of the measure in question. The distinction between deprivation and restriction is merely one of degree or intensity and not one of nature or substance" 
 
Deprivation of liberty is therefore decided on a case by case basis looking at the individual circumstances. Art 5 is concerned with deprivation of liberty and not merely restriction of liberty. Restriction is covered by Art2 of Protocol 4.
 

Case examples considering the meaning of deprivation of liberty

 
 
Deprivation is not confined to classic case of detention following arrest or conviction but may take numerous other forms:
 
 
Guzzardi v Italy [1980] EHRR 333
 
 
Deprivation of liberty and detention for mental health:
 
 
HL v UK [2004] ECHR 471                  Case summary
 
 
Deprivation of liberty and detention of asylum seekers:
 
 
Amuur v France [1996] ECHR 25         Case summary
 
 
 
Deprivation of liberty at airport:
 
 
Kasparov v Russia No 2 [2016] ECHR 1098    Case summary
 
 
 
Police questioning:
 
 
 
Shimovolos v Russia [2011] ECHR 987          Case summary
 
 
 
 
'Kettling' by police:
 
 
 
 Austin v UK [2012] ECHR 459                   Case summary
 
 

Positive duty

 
Art 2 imposes a positive duty on the state to ensure liberty and security of persons. This means not only must the state not deprive individuals of their liberty but they must take steps to ensure others do not deprive them of their liberty also. 
 
 
Storck v Germany [2005] ECHR 406
 
 
This can be seen in the criminal law protecting individuals from kidnapping, human trafficking, forced labour and false imprisonment.
 
 
 
Rantsev v Cyprus & Russia [2010] ECHR   Case summary
 
 
 

In accordance with a procedure prescribed by law

 
For a deprivation of liberty to be justified on any of the grounds specified in Art 5 (1), it must be in accordance with a procedure prescribed by the domestic law in the Member State. 
 
The deprivation must not be arbitrary. The practice of indeterminate prison sentences were challenged in Stafford v UK:
 
 
Stafford v UK [2011] ECHR 1659          Case summary
 
 
The principle of legal certainty applies:
 
 
 
Khlaifia v Italy [2016] ECHR 1124           Case summary
 
 
 

Justifications

 
Deprivation of liberty may be justified on one of the following grounds:
 
Art 5 (1)(a) lawful detention following conviction by a competent court;
Art 5 (1) (b) lawful arrest or detention for non compliance with a court order;
Art 5 (1) (c) lawful arrest or detention where there is a reasonable suspicion of crime.
 
 
 

Art 5 (1)(a) lawful detention following conviction by a competent court

 
Continued detention can not be arbitrary and must be linked to the conviction:
 
 
Stafford v UK [2011] ECHR 1659          Case summary
 


Art 5 (1) (b) lawful arrest or detention for non compliance with a court order

 
 
If the court acts in excess of its jurisdiction the detention may be unlawful:
 
 
Lloyd v UK [2005] ECHR 147   Case summary
 
 
 

Art 5 (1) (c) lawful arrest or detention where there is a reasonable suspicion of crime

 
 
There must be some facts or information to cause the suspicion, a genuine or honest suspicion is not enough:
 
 
Fox, Campbell & Hartley v UK [1991] ECHR 27    Case summary
 
 
An honest suspicion must be based on reasonable grounds:
 
 
Murray v UK [1994] ECHR 39                  Case Summary
 
 
 
 
 

Right to be informed of reasons for arrest

 
 
 
Art 5 (2). Everyone who is arrested shall be informed promptly, in a language which they understand, of the reasons for the arrest and of any charge against them. 
 
 
A delay of 7 hours was acceptable:
 
 
Fox, Campbell & Hartley v UK [1991] ECHR 27    Case summary
 
 
 

Trial within a reasonable time 

 
Art 5 (3) Everyone arrested or detained shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial. 
 
This provision includes:
 
1. Right to an independent judicial officer authorised by law
2. Right to release on bail unless custody is justified
3. Right to be tried within a reasonable time