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.
• Applies to all people detained for whatever reason
• The promptness of reasons depends upon the circumstances of the case. Prompt does not necessarily mean immediate: a few hours might suffice in terrorist cases (Murray v UK ( 28.10.1994 ) ; DANOV v. BULGARIA (26 October 2006), par.67-70 )
• Reasons enable anyone arrested to challenge the lawfulness of their detention (Fox, Campbell and Hartley v UK ( 30.08.1990 ) )
• Reasons need not be writing
• It will be insufficient just to refer to a formal statutory provision
• Must be more than informing someone that they have been detained under emergency legislation
The Strasbourg court has not objected to intervals of between 2 and 19 hours (Dikme v Turkey (11 July 2000); Danov v. Bulgaria (26 October 2006), par.67-70). Although a 10 day delay (Van der Leer v Netherlands (21/02/1990)) in a mental health case was held to violate Article 5(2).
The age and mental state of the detained person is also relevant. It may be that a responsible third person must be informed promptly of the reasons for the detention.
Article 5(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 a trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
• Delay before being brought before a judge should be no more than is genuinely required to process a suspect
• A delay or four days, six hours is too long even when made under terrorist legislation (Brogan v UK ( 29.11.1988 ) )
• The judge must have power to order release
• A power to recommend release is insufficient (Ireland v UK ( 18.01.1978 ) )
Justifications for delay in bringing detained suspects before a court have been very heavily scrutinised by the European Court of Human Rights, and shortages of judges or holidays are not justification for delay.
It must be emphasised that in Brogan v UK (29 November 1988) it was held that to detain somebody for four days and six hours before bringing them before the competent legal authority was too long, even where national security and suspected terrorist activity were involved.
In Aksoy v Turkey (18 December 1996) delays of 14 to 23 days were unlawful even in an emergency.
Who is ‘an officer authorised by law’ is controversial. To satisfy this test, the officer must be independent of the Executive and be impartial. In Brincat v Italy (26 November 1992), detention was confirmed by a public prosecutor who subsequently concluded that he did not have territorial jurisdiction of the case. The case was then handed over to another prosecutor in the appropriate district. In finding the detention unlawful, the Strasbourg Court held that doubts as to the impartiality of the officer were raised immediately the detention was confirmed. It was immaterial that he later lacked jurisdiction.
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In Niedbala v Poland (4 July 2000) the Strasbourg Court found the role of the Polish prosecutor to breach Article 5(3), even though it was possible to judicially review the decision to detain. However, access to judicial review was not automatic. See also HB v Switzerland (5 July 2001) and the recent judgment Estrikh v. Latvia (18 January 2007), par.124.
Article 5(4) - Habeas Corpus
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
• Fixed-term sentences incorporate 5(4) protection
• Indeterminate sentences require 5(4) proceedings to determine release
• The degree of scrutiny required varies with the context but must be able to review the lawful detention
• Must be independent and impartial and able to take binding decisions, but not necessarily in public
• Principles of equality of arms apply, which implies adversarial proceedings
• Detaining authority must prove legality
• It may be necessary to provide legal assistance/legal aid
The notion of speedily is not the same as the promptness requirement in Article 5.
In relation to ongoing detention it should be possible to challenge the detention at reasonable intervals.
A court examining an appeal against detention must provide guarantees of a judicial procedure. The proceedings must be adversarial and must always ensure “equality of arms” between the parties, the prosecutor and the detained person (see, among many other authorities, the Sanchez-Reisse v. Switzerland judgment of 21 October 1986, par.51). In the case of a person whose detention falls within the ambit of Article 5, par.1 (c), a hearing is required (see, among many other authorities, Assenov and Others v. Bulgaria, judgment of 28 October 1998, par.162). Although it is not always necessary that the procedure under Article 5, par. 4 be attended by the same guarantees as those required under Article 6, par. 1 of the Convention for criminal or civil litigation, it must have a judicial character and provide guarantees appropriate to the kind of deprivation of liberty in question. In the Nešťák case (See Nešťák v. Slovakia (27 February 2007), par.77-83) questions of the applicant’s detention were decided in private sessions by the national courts and according to the applicable provisions of the national law it was open to the prosecution service to be present at any of these sessions and they in fact availed themselves of this opportunity whereas neither the detained nor his lawyer were present. In this connection even appearances may be of a certain importance or, in other words, “justice must not only be done, it must also be seen to be done” . That is why in this Nešťák case, Court has found a violation of Art.5, par.4.
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The national competent court has to examine not only the compliance with the procedural requirements set out in domestic law but also the reasonableness of the suspicion grounding the arrest and the legitimacy of the purpose pursued by the arrest and the ensuing detention (see Belevitskiy v. Russia (1 March 2007), par.108, 104-112).
Article 5(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
• The detainee does not need to establish bad faith on the part of the authorities, however an error within jurisdiction does not necessarily give rise to a claim
• Proof of damage is not contrary to 5(5) if damage includes moral damage
• Even if detention is lawful in domestic law, if it is unlawful under the ECHR the right to compensation exists (Fox et al. v UK ( 30.08.1990 ) )
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• Article 5(5) gives a right to compensation, an ex gratia payment is insufficient
The Court must always establish whether or not national law afforded the applicant an enforceable right to compensation for the breaches of Article 5 of the Convention in his/her case. When the right to compensation according to the national law has only been applied in cases where the criminal proceedings have been terminated on the basis that the charges were unproven or where the accused has been acquitted, and when the applicant's detention on remand was considered by the national courts as being in full compliance with the requirements of national law, but at the same time it has been in violation of Article 5 of the Convention and the national law did not afford the applicant an enforceable right to compensation always there will be a violation of Article 5, par.5 of the Convetion (see Radoslav Popov v. Bulgaria (2 November 2006), par.51-55 and Chitayev and Chitayev V. Russia (18 January 2007) par.192-196).
Guzzardi v. Italy
The Court recalls that in proclaiming the "right to liberty", paragraph 1 of Art. 5 is contemplating the physical liberty of the person; its aim is to ensure that no one should be dispossessed of this liberty in an arbitrary fashion. As was pointed out by those appearing before the Court, the paragraph is not concerned with mere restrictions on liberty of movement; such restrictions are governed by Art. 2 of Protocol No. 4 which has not been ratified by Italy. In order to determine whether someone has been "deprived of his liberty" within the meaning of Art. 5, the starting point must be his concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question.
The difference between deprivation of and restriction upon liberty is nonetheless merely one of degree or intensity, and not one of nature or substance. Although the process of classification into one or other of these categories sometimes proves to be no easy task in that some borderline cases are a matter of pure opinion, the Court cannot avoid making the selection upon which the applicability or inapplicability of Art. 5 depends.
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Whilst the area around which the applicant could move far exceeded the dimensions of a cell and was not bounded by any physical barrier, it covered no more than a tiny fraction of an island to which access was difficult and about nine-tenths of which was occupied by a prison. Mr. Guzzardi was housed in part of the hamlet of Cala Reale which consisted mainly of the buildings of a former medical establishment which were in a state of disrepair or even dilapidation, a carabinieri station, a school and a chapel. He lived there principally in the company of other persons subjected to the same measure and of policemen. The permanent population of Asinara resided almost entirely at Cala d’Oliva, which Mr. Guzzardi could not visit, and would appear to have made hardly any use of its right to go to Cala Reale. Consequently, there were few opportunities for social contacts available to the applicant other than with his near family, his fellow "residents" and the supervisory staff. Supervision was carried out strictly and on an almost constant basis. Thus, Mr. Guzzardi was not able to leave his dwelling between 10 p.m. and 7 a.m. without giving prior notification to the authorities in due time. He had to report to the authorities twice a day and inform them of the name and number of his correspondent whenever he wished to use the telephone. He needed the consent of the authorities for each of his trips to Sardinia or the mainland, trips which were rare and, understandably, made under the strict supervision of the carabinieri. He was liable to punishment by "arrest" if he failed to comply with any of his obligations. Finally, more than sixteen months elapsed between his arrival at Cala Reale and his departure for Force
It is admittedly not possible to speak of "deprivation of liberty" on the strength of any one of these factors taken individually, but cumulatively and in combination they certainly raise an issue of categorisation from the viewpoint of Art. 5. The Court considers on balance that the present case is to be regarded as one involving deprivation of liberty.
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