Right to liberty and security

The right not to be deprived of personal liberty without lawful cause is one of the keystones of the Convention system. So Article 5 strongly asserts a presumption in favour of liberty at the outset, both positively and negatively: "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…".

 

Loss of liberty has two elements: confinement in a particular place for a non-negligible length of time, and lack of consent by the detainee. It does not require being physically locked up. At the same time, some instances of control of large numbers of people for safety reasons do not amount to deprivation of liberty under the article, for example, control of crowds at sporting events or on motorways following an accident. The Court has also found, on the particular facts, that Article 5 did not apply when demonstrators, including some violent elements, were for public safety reasons confined by a police cordon in a narrow city area for some hours (Austin and others v. the United Kingdom).

 

The Court has stressed that protection from arbitrariness is at the core of Article 5, which gives a right to security as well as liberty and requires that in all cases procedures prescribed by law be followed. So, where a foreign national wanted for murder in State A could not for legal reasons be extradited there, the police arrested him and forcibly took him by car to the border with State B, from where he could be extradited. The Court found the arrest, which was designed to get round the requirements of the extradition law, was arbitrary and contrary to Article 5 (Bozano v. France).

 

In contrast to Article 3, the right to liberty is not absolute; there are obviously legitimate reasons why society may need to deprive people of their liberty in the general interest, especially where their actions pose a danger to themselves or others. So the right is subject to six specific exceptions, set out in paragraph 1, sub-paragraphs a to f, which are exhaustive. Officials responsible for law enforcement and especially those with powers of arrest and detention have an especially important role to observe strictly the limits set by sub-paragraphs a to f, and submit their actions and decisions promptly to judicial control.

 

The six exceptions where deprivation of liberty is permitted are:

  • (a) A person can be detained following conviction by a court with authority to decide the case.
  • (b) A person can be detained for non-compliance with the order of a court or to secure the fulfilment of any obligation prescribed by law.
  • (c) A person can be arrested and detained in order to bring him or her before a court on reasonable suspicion of having committed a criminal offence, or when reasonably necessary to prevent him from committing an offence or fleeing after having done so.
  • (d) A minor (i.e. under 18) can be detained to ensure he or she receives education or pending non-criminal court proceedings (e.g. to commit the minor into care; criminal proceedings are covered by sub-paragraph c).
  • (e) Persons with infectious diseases, persons of unsound mind, alcoholics, drug addicts and vagrants may be detained.
  • (f) A person may be arrested or detained to prevent unauthorised entry into the country or for the purposes of deportation or extradition.

In all six situations there is a specific requirement that the detention be lawful. That means not only that it must conform to domestic law and procedure which are both accessible and foreseeable, but also the application of that law must conform to the Convention, i.e. be for a purpose sanctioned in sub-paragraphs a to f.

 

Detention to secure the fulfilment of a legal obligation (sub-paragraph b) covers such things as submitting to a road block, a random breath test or an identity check, and other common exercises of police powers. Any detention must be as a last resort, after the person has been given the opportunity to comply voluntarily. It must also be proportionate, and with the aim of securing compliance, not of punishment.

 

Arrest and detention on suspicion of committing a crime (sub-paragraph c) is the most common exceptional situation, and the one where problems most often arise. Arrest must be on reasonable suspicion with an intention to bring charges rather than to fish for information, which might lead to charges. But the Court accepts that a period of time for interrogation is permissible, which can be longer in some cases, for example, where terrorism acts are suspected, because of the difficulty of obtaining hard evidence on which to base charges.

 

The Court has not defined "unsound mind" (sub-paragraph e), because medical opinion and practice is always evolving. The only safe course for officials, therefore, is only to detain people (and keep them in detention) on authoritative, objective and recent medical advice. The place and conditions in which such persons are held must also be appropriate to their situation. Placing a person of unsound mind in a social care home can also amount to a deprivation of liberty.

 

In dealing with persons of unsound mind, alcoholics, vagrants and drug addicts (sub-paragraph e), the Court requires a proportionate response to the person's behaviour. In a case where someone who was intoxicated got into an argument in a post office, the police took him to a sobering-up centre and kept him there for over six hours. There was no evidence that he was a danger to others or himself, nor did he have a history of alcoholism. There were other options open to the police (for example, taking him home to sober up). The Court said, "detention of an individual is such a serious matter that it is only justified where other, less severe measures have been considered and found insufficient to safeguard the individual or public" (Witold Litwa v. Poland).

 

Detention pending deportation or extradition (sub-paragraph f) can be in a detention centre specially set up for fast-track processing of such cases, but only for a short period (seven days was ruled acceptable in (Saadi v. the United Kingdom). Detention can take place outside any recognised place of custody: a breach was found where asylum seekers were confined to a transit zone in an airport for twenty days, after which they were deported. In theory, they were free to leave but in practice they had nowhere to go and no legal or social assistance. The guarantees of Article 5 had not been applied (Amuur v. France).

 

Paragraph 2 of Article 5 requires that a person who is arrested must be informed promptly, in a language he or she understands, of the reasons for his or her arrest and any charge against him or her. It is an elementary safeguard for a person to be told why he or she has been arrested, in simple and non-technical language, so that he or she can deny the offence or challenge his or her detention, if necessary in court (see Article 5(4) below). The understandable language required may be a foreign language or, for example, sign language if the arrested person is deaf. What satisfies the "promptly" requirement can vary according to the circumstances of the case, but the Court has indicated it will expect the information to be given to the detainee "within a few hours of his arrest". Similarly, the degree of detail required can vary: in some cases of suspected terrorism, the Court has accepted that the reasons can be brief and less specific than in normal cases, to avoid disclosing too much of what is known and not known to the authorities. In rare cases, the information may be given to the arrested person's representative (for example, where that person's mental state precludes their understanding).

 

Paragraph 3 requires that a person arrested on suspicion of committing an offence be brought promptly before a judge or other judicial officer and shall be entitled to trial within a reasonable time or to release pending trial. This must happen automatically; the detainee does not have to apply for it (unlike paragraph 4, below). The person before whom the detainee is brought can be a judge or magistrate, or another judicial officer provided that person is independent of the authorities and the parties and is impartial. The point is that the person have competence to conduct a review on the merits, ascertain the reasons for arrest and detention are sufficient and order release if they are not. What satisfies "promptly" can again vary, but normally it should be the next day. The Court has treated four days as a maximum, although shorter periods may also be contrary to the Convention. The decision on bail may be taken then or shortly thereafter. The Court requires that detention pending trial be shown to be necessary (for example, if there is a serious risk of the detainee absconding), based on proper examination of the circumstances of each individual case in accordance with the general presumption in favour of liberty. Getting the case to trial within a reasonable time will involve prosecutors and the courts as well as the police. All of them have to work together to that end.

 

Paragraph 4 is the "habeas corpus" provision of the Convention, giving a person arrested or detained the right "to take proceedings by which the lawfulness of their detention shall be decided speedily by a court and his release ordered if the detention is not lawful". This right cannot be used to contest imprisonment as part of a criminal sentence (Article 5(1)(a)). The proceedings have to be adversarial and the two sides must have equality of arms, which implies that detained persons and their representatives must have access to the core documents, on which basis detention is requested. "Speedily" implies that there should be no undue delay in bringing proceedings to the court (for example, delay in translating the documents used in court proceedings). If detention has been ordered by a court, that will usually satisfy this right. The right normally entails a right periodically to initiate a review of the lawfulness of detention.

 

Paragraph 5 guarantees a right to compensation for everyone who has been the victim of arrest and detention in contravention of the provisions of Article 5. Ensuring this right will fall to others than the officials whose job includes powers of arrest and detention, but it is a powerful incentive to those officials to respect the rights given by Article 5. Failure to do so can cost the State a lot of money.

 

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