Engel and others v. Netherlands
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. Military service, as encountered in the Contracting States, does not on its own in any way constitute a deprivation of liberty under the Convention, since it is expressly sanctioned in Art. 4 para. 3 (b). In addition, rather wide limitations upon the freedom of movement of the members of the armed forces are entailed by reason of the specific demands of military service so that the normal restrictions accompanying it do not come within the ambit of Art. 5 either.
Each State is competent to organise its own system of military discipline and enjoys in the matter a certain margin of appreciation. The bounds that Art. 5 requires the State not to exceed are not identical for servicemen and civilians. A disciplinary penalty or measure which on analysis would unquestionably be deemed a deprivation of liberty were it to be applied to a civilian may not possess this characteristic when imposed upon a serviceman. Nevertheless, such penalty or measure does not escape the terms of Art. 5 when it takes the form of restrictions that clearly deviate from the normal conditions of life within the armed forces of the Contracting States. In order to establish whether this is so, account should be taken of a whole range of factors such as the nature, duration, effects and manner of execution of the penalty or measure in question.
Fox, Campbell and Hartley v. UK
The "reasonableness" of the suspicion on which an arrest must be based forms an essential part of the safeguard against arbitrary arrest and detention which is laid down in Article 5 § 1 (c). The Court agrees with the Commission and the Government that having a "reasonable suspicion" presupposes the existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offence. What may be regarded as "reasonable" will however depend upon all the circumstances.
Certainly Article 5 § 1 (c) of the Convention should not be applied in such a manner as to put disproportionate difficulties in the way of the police authorities of the Contracting States in taking effective measures to counter organised terrorism. It follows that the Contracting States cannot be asked to establish the reasonableness of the suspicion grounding the arrest of a suspected terrorist by disclosing the confidential sources of supporting information or even facts which would be susceptible of indicating such sources or their identity.
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The fact that Mr Fox and Ms Campbell both have previous convictions for acts of terrorism connected with the IRA, although it could reinforce a suspicion linking them to the commission of terrorist-type offences, cannot form the sole basis of a suspicion justifying their arrest in 1986, some seven years later.
The fact that all the applicants, during their detention, were questioned about specific terrorist acts, does no more than confirm that the arresting officers had a genuine suspicion that they had been involved in those acts, but it cannot satisfy an objective observer that the applicants may have committed these acts.
The aforementioned elements on their own are insufficient to support the conclusion that there was "reasonable suspicion". The Government have not provided any further material on which the suspicion against the applicants was based. Their explanations therefore do not meet the minimum standard set by Art. 5 § 1 (c) for judging the reasonableness of a suspicion for the arrest of an individual.
Koniarska v. UK
The applicant had been diagnosed as suffering from a psychopathic disorder, and there is no suggestion that, at the time of the making of the secure accommodation orders, that disorder no longer existed. Further, the applicant's detention was found, at the making of each order, to be needed as there was a danger of her injuring herself or other persons. There could thus be said to be both medical and social reasons for her detention.
The Court next notes that the applicant had passed the school leaving age, and apart from the secure accommodation orders could not have been required to attend continuing education. However, the relevant parts of Art. 5 § 1 (d) of the Convention are limited to the detention of “minors”, and not to the detention of persons below the official school leaving age. The mere fact that the applicant, aged 17, could no longer have been required to attend ordinary school does not taint her detention under a specific order, provided that the detention was indeed “for the purpose of educational supervision”.
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The Court considers that, in the context of the detention of minors, the words “educational supervision” must not be equated rigidly with notions of classroom teaching. In particular, in the present context of a young person in local authority care, educational supervision must embrace many aspects of the exercise, by the local authority, of parental rights for the benefit and protection of the person concerned.
Winterwerp v. Netherlands
The Convention does not state what is to be understood by the words "persons of unsound mind". This term is not one that can be given a definitive interpretation: as was pointed out by the Commission, the Government and the applicant, it is a term whose meaning is continually evolving as research in psychiatry progresses, an increasing flexibility in treatment is developing and society’s attitude to mental illness changes, in particular so that a greater understanding of the problems of mental patients is becoming more wide-spread.
In any event, sub-paragraph (e) of Art. 5 para. 1 obviously cannot be taken as permitting the detention of a person simply because his views or behaviour deviate from the norms prevailing in a particular society. To hold otherwise would not be reconcilable with the text of Art. 5 para. 1 which sets out an exhaustive list, exceptions calling for a narrow interpretation. Neither would it be in conformity with the object and purpose of Art. 5 para. 1, namely to ensure that no one should be dispossessed of his liberty in an arbitrary fashion. Moreover, it would disregard the importance of the right to liberty in a democratic society.
Witold Litwa v. Poland
The Court observes that the word “alcoholics”, in its common usage, denotes persons who are addicted to alcohol. On the other hand, in Art. 5 § 1 of the Convention this term is found in a context that includes a reference to several other categories of individuals, that is, persons spreading infectious diseases, persons of unsound mind, drug addicts and vagrants.. It is therefore legitimate to conclude from this context that a predominant reason why the Convention allows the persons mentioned in paragraph 1 (e) of Art. 5 to be deprived of their liberty is not only that they are dangerous for public safety but also that their own interests may necessitate their detention.
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This ratio legis indicates how the term “alcoholics” should be understood in the light of the object and purpose of Art. 5 § 1 (e) of the Convention. It indicates that the object and purpose of this provision cannot be interpreted as only allowing the detention of “alcoholics” in the limited sense of persons in a clinical state of “alcoholism”. The Court considers that, under Art. 5 § 1 (e) of the Convention, persons who are not medically diagnosed as “alcoholics”, but whose conduct and behaviour under the influence of alcohol pose a threat to public order or themselves, can be taken into custody for the protection of the public or their own interests, such as their health or personal safety.
That does not mean that Art. 5 § 1 (e) of the Convention can be interpreted as permitting the detention of an individual merely because of his alcohol intake. However, the Court considers that in the text of Art. 5 there is nothing to suggest that this provision prevents that measure from being applied by the State to an individual abusing alcohol, in order to limit the harm caused by alcohol to himself and the public, or to prevent dangerous behaviour after drinking. On this point, the Court observes that there can be no doubt that the harmful use of alcohol poses a danger to society and that a person who is in a state of intoxication may pose a danger to himself and others, regardless of whether or not he is addicted to alcohol.
On this basis, the Court concludes that the applicant's detention fell within the ambit of Art. 5 § 1 (e) of the Convention.
Enhorn v. Sweden
The Court found that the essential criteria when assessing the “lawfulness” of the detention of a person “for the prevention of the spreading of infectious diseases” were whether the spreading of the infectious disease was dangerous for public health or safety, and whether detention of the person infected was the last resort in order to prevent the spreading of the disease, inasmuch as less severe measures had been considered and found to be insufficient to safeguard the public interest. When those criteria were no longer fulfilled, the basis for the deprivation of liberty ceased to exist.
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In the case under review, it was undisputed that the first criterion was fulfilled, in that the HIV virus was and is dangerous for public health and safety. It thus remained to be examined whether the applicant’s detention could be said to be the last resort in order to prevent the spreading of the virus, because less severe measures had been considered and found to be insufficient to safeguard the public interest.
The Court noted that the Government had not provided any examples of less severe measures which might have been considered for the applicant in the period from 16 February 1995 until 12 December 2001, but had turned out to be insufficient to safeguard the public interest.
In those circumstances, the Court found that the compulsory isolation of the applicant was not a last resort in order to prevent him from spreading the HIV virus after less severe measures had been considered and found to be insufficient to safeguard the public interest. Moreover, by extending over a period of almost seven years the order for the applicant’s compulsory isolation, with the result that he had been placed involuntarily in a hospital for almost one and a half years in total, the authorities had failed to strike a fair balance between the need to ensure that the HIV virus did not spread and the applicant’s right to liberty.
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