Detention will only be lawful if it is permitted under Article 5(1)(a) to 5(1)(f)
Article 5
Right to liberty and 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 non-compliance 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.
Art. 5 is concerned with the deprivation of liberty. It is not engaged by mere restrictions on liberty (Engel v Netherlands (8 June 1976)). In determining whether a the level of restraint involved amounts to a detention, regard should be had to a whole range of criteria, including the type of detention, its duration, its effects and the manner of implementation (Guzzardi v Italy (6 November 1980)).
|
|
|
Article 5 § 1 of the Convention contains a list of permissible grounds of deprivation of liberty, a list which is exhaustive.
General principles
n Governs all elements of loss of liberty – for whatever reason – from initial detention to release
n Protects against arbitrary detention –
n Any limits or restrictions to the right to liberty must be interpreted narrowly
n T he right to liberty is given a purposive interpretation and an autonomous meaning
n Any deprivation of liberty should be:
• exceptional
• objectively justified
• of no longer duration than absolutely necessary
• the justification for loss of liberty must be closely scrutinised
n As such, the judge should start with the proposition that the person should be free
Art. 5 is a two-limbed provision:
A) It is a test for the legality of the detention
b) It provides a set of procedural safeguards for detainees
The starting point is:
• Any loss of liberty MUST be systematically recorded from the start
The State must keep a record for the loss of liberty. The absence of detention records, noting such matters as the date, time and location of detention, the name of the detainee as well as the reasons for the detention and the name of the person effecting it, must be seen as incompatible with the very purpose of Art. 5 (Bazorkina v. Russia (27 July 2006), par.147).
• There is a presumption in favour of liberty
• The burden of proof is on those taking away liberty
• It is expressed in absolute terms, but with defined limitations
• A derogation is permissible in time of war or public emergency threatening the life of the nation
• Detention will only be lawful if it is permitted under Article 5(1)(a) to 5(1)(f)
Loss of liberty
Firstly, the right to security does not mean protection from attack by others. The right to liberty is only concerned with physical liberty. Art. 5 is engaged when there is any loss of liberty. This will occur even when a law enforcement officer obliges a person to stay somewhere or to go elsewhere. Compulsion is required even if surrender is voluntary.
|
|
|
Two issues arise in relation to loss of liberty:
The nature of the confinement: In Ashingdane v UK (28 May 1985) an individual was detained in a mental hospital even though he could freely walk around the building. Similarly, in Guzzardi v Italy a requirement to live on part of an island amounted to a loss of liberty.
The status of the person affected will also be relevant. For example, members of the armed forces can be treated differently from civilians (Engel v Netherlands)
Prescribed by Law
This requires compliance with both national law and Convention law (Bazorkina v. Russia (27 July 2006), par.146; Kurt v. Turkey (25 May 1998), par.122-123). National law must be accessible and foreseeable (A.S. v. Poland (20 June 2006), par.73). There must also be a continued legal basis for the detention(Belevitskiy v. Russia (1 March 2007),par.97-103). In K-F v Germany (27 November 1997), the applicant was detained for 12 hours and 40 minutes, and the German law only permitted detention under those circumstances for 12 hours. There must also be a clear legal basis for the detention and legal certainty. Therefore procedures which have evolved over time may not be sufficient to guarantee legal certainty (Jecius v Lithuania (31 July 2000)).
An arrest warrant will indicate that the arrest is lawful and detention starts for the purposes of Art. 5 following a lawful apprehension of the individual (Akdeniz v. Turkey (31 May 2005)).
Detention will only be lawful if it is permitted under Article 5(1)(a) to 5(1)(f)
a) The lawful detention of a person after conviction by a competent court;
• A competent court is one with jurisdiction to try the case
• A competent court must be independent of the Executive and the parties ÖCALAN v. TURKEY (12 May 2005), par.112-118
• The fact that a conviction is overturned on appeal does not necessarily affect the lawfulness of detention pending appeal; Article 5(1)(a) does not require a lawful conviction, only lawful detention (Douiyeb v Netherlands ( 04.08.1999 )
|
|
|
• Although there will be a breach where the conviction had no basis in domestic law (Tsirlis and Kouloumpas v Greece ( 29.05.1997 ) )
• A conviction must be the cause of detention (Weeks v UK ( 02.03.1987 ) )
• Includes confinement in a mental institution for treatment and detention as an alternative to any original sentence
• The fact that a sentence is passed abroad does not in itself make detention unlawful (Drozd and Janousek v France and Spain ( 26.06.1992 ) )
b) The lawful arrest or detention of a person for non compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
Lawful Order of a Court
• Authorises detention to effect an order of the court where there has been a hindrance or obstruction, for example:
- to take a blood test
- to take an affidavit
- to obtain psychiatric opinion
- to deliver up property
- to pay a fine
• If the court order itself breaches the ECHR, detention pursuant to it will not be lawful (K v Austria ( 02.06.1993) )
Obligation Prescribed by law
• Detention is not permitted unless and until the individual has had the opportunity, but failed to fulfil the obligation in question
• The obligation must be specific and concrete, such as failure to carry out military service or failure to carry an ID card
In relation to detention following the lawful order of a court, detention is only permitted for as long as is necessary to carry out the court’s order.
Detention pursuant to secure the fulfilment of any obligation prescribed by law requires specificity.
In Ciulla v Italy (22 February 1989) the Italian authorities could not rely on Art. 5(1)(b) to justify the detention of a suspected mafioso who had failed to change his behaviour. This failure was not considered to be a specific and concrete obligation.
Therefore, Art. 5(1)(b) cannot be used to justify preventative detention. As such, when considering when it is lawful to detain under Art. 5(1) (b) this provision must be interpreted narrowly and it cannot be used to justify detention which would otherwise not comply with the other justifications for detention under Art. 5(1). Therefore to stress, the detention will only be justified if there are specific and concrete reasons for it.
|
|
|
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;
• Reasonable suspicion requires objective justification but can be based on anonymous informants (Doorson v Netherlands ( 26.03.1996 ) )
• Honesty and good faith required (Fox, Campbell&Hartleyv UK (30.08.1990 ) )
• Pre-trial detention on the basis of accomplice evidence should be treated with caution (Labita v Italy ( 06.04.2000) )
• Not necessary for sufficient evidence to charge if detention is justified to further investigations (Brogan v UK ( 29.11.1988 ) )
• The longer the deprivation of liberty, the higher the level of suspicion required (Murray v UK ( 28.10.1994 ) )
• Blanket arrests are unlikely to be proportionate (Ozgur Gundem v Turkey ( 16.03.2000 ) )
• Preventative detention is not permitted – i.e. must be reasonable suspicion of a concrete and specific offence (Guzzardi v Italy ( 06.11.1980 ) )
Art. 5(1)(c) governs the circumstances where it is permissible to detain someone who is suspected of having committed an offence or where someone is considered likely to commit and offence. For the detention to be lawful under 5(1)(c) the following three-stage test must be met:
The offence must exist in national law. In Lukanov v Bulgaria (20 March 1997) the detention of the former prime minister violated Art. 5(1)(c) because the activity that he was accused of carrying out was not unlawful.
The objective must be to bring the individual before the competent legal authority.
There must be reasonable suspicion. The fact that an individual has past convictions is not enough.
Art. 5(1)(c) cannot be used to authorise a general policy of preventative detention on the basis of a propensity to commit offences. For Art. 5(1)(c) to be relied upon the offence in issue needs to be a specific one.
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; (A minor for the purposes of Art. 5(1)(d) is someone who is under the age of 18)
• Parental rights have been used to justify the unnecessary detention of a 12-year-old boy in a psychiatric institution, on the basis that the aim is legitimate and genuine but parental authority cannot be unlimited and the State must provide safe guards against abuse (Nielsen v Denmark ( 28.11.1988 ) )
• Short periods of detention for educational supervision can be justified; prolonged periods without any real education cannot (Bouamar v Belgium ( 29.02.1988 ) )
e) The lawful detention of persons for the prevention of the spreading of infectious diseases, or persons of unsound mind, alcoholics or drug addicts or vagrants;
• Detention will not be necessary unless the authorities can show that other measures short of detention were considered but rejected as insufficient (Litwa v Poland ( 04.04.2000 ) )
• Detention will be justified only where an individual poses a threat to others or to him or herself
• The term ‘vagrant’ is not defined (De Wilde, Ooms and Versyp v Belgium ( 18.06.1971 ) )
In De Wilde (De Wilde, Ooms and Versyp ("vagrancy") v. Belgium (merits) (18 June 1971)), the Court accepted the Belgian penal code definition of a vagrant as someone of no fixed abode, with no trade or profession and no means of subsistence. In Guzzardi v Italy the Italian government sought to rely on Article 5(1)(e) to detain suspected mafiosi, however, the Strasbourg court rejected Italy’s suggestion that the Mafia fell within the definition of ‘vagrant’.
In Litwa v Poland (4 April 2000) it was held that it would be lawful to detain a drunk person only if there was a further reason to detain other than simply that the individual was drunk.
In Winterwerp v Netherlands ( 24.10.1979 ) five-stage test for detaining persons of unsound mind:
1. The mental disorder must be established by objective medical expertise
2. The nature and degree of the disorder must be sufficiently extreme to justify the detention
3. Detention should only last as long as the medical disorder and its required severity persists
4. In cases where detention is potentially indefinite, periodical reviews must take place by a tribunal which has powers to discharge
5. Detention must take place in a hospital, clinic or other appropriate institution authorised to detain such persons
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.
• Can only be justified if deportation or extradition proceedings are in progress
• If deportation or extradition is impossible, 5(1)(f) cannot justify detention (Ali v Switzerland ( 05.08.1998 ) )
• Although a different test to 5(1)(c), for the purposes of 5(1)(f) it is immaterial whether the underlying decision to expel can be justified under national or Convention law (Chahal v UK ( 15.11.1996 ) )
Procedural safeguards
Article 5(2)
Дата добавления: 2019-02-22; просмотров: 192; Мы поможем в написании вашей работы! |
Мы поможем в написании ваших работ!