Art 5 ECHR Right to Liberty PDF

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Art 5 ECHR: Right to Liberty Guzzardi v Italy (1980) (the meaning of liberty) - whilst Article 5 is concerned with "classic notions of liberty" (traditional notions of being detained/restrained in prison), it also includes measures that are similar to such classic notions. In this case, those suspected of involvement with the Mafia could be dealt with under special legislation when there was insufficient evidence to convict. G and his family were required to live on a small island with assigned boundaries and curfews and restricted visitation rights. G argued that this punishment amounted to a restriction of his liberty. Strasbourg held that the measures G was subjected to were similar to being deprived of liberty within a prison system, and therefore A5 and its protections could apply. Because none of the exceptions set out in A5(1) could be met, his detention was not justifiable and Art 5 was breached. Georgia v Russia (2014) - whilst an exception to A5 must be in accordance with domestic procedure ascribed by law, it must also be consistent with "European notions of lawfulness" specifically, actions of deprivation of liberty must not be arbitrary. In response to the rise of the Georgian Mafia, Russia began detaining and deporting on mass-scale Georgina nationals. Despite Russia's protests, Strasbourg found that the action was a collective expulsion process. Even if these actions were lawful under Russian law, the GC found that they were not lawful for the purposes of the Convention because it was arbitrary action. They were reprisal measures that weren't being dealt with on a case-by-case basis, and so they were arbitrary. Kurt v Turkey (1998) - as well as finding a breach of A3 for the mental suffering experienced by his mother, the Court also found a breach of Art 5 as a result of a failure to account for a detainee's whereabouts and investigate claims of forced disappearances. The Court elaborated on the positive obligations found implicitly under A5(1) about what states must do to protect against these forced disappearances and, on the facts, found a breach: 1. The State must explain the detainee's whereabouts 2. There must be mechanisms in place to prevent forced detention 3. There must be an effective investigation El-Masri v Macedonia (2012) - the positive obligations imposed on states in Kurt was powerfully extended. EM was detained in Macedonia for three weeks before being handed over to the CIA, where he was taken to a black site in Afghanistan for interrogation. Strasbourg found a complete violation of the essence of A5 in the way that the Macedonian officials had treated EM, both in terms of domestic law and European expectation. Strasbourg found that, because of Macedonia's collaboration with the USA, the state was liable under A5 both for the unlawful detention carried out by its own officials and that of the CIA. Strasbourg held that Macedonia should have known what would happen to EM once he had been handed over. Weeks v UK (1987) (breaching bail conditions) - deprivation of liberty is permissible after conviction by a competent court (A5(1)(a)), and imprisonment can be reinstated after conditions are broken during parole. W was given a lengthy prison sentence and was released on license with conditions. He was then found to have breached those conditions and was imprisoned

again. He argued in Strasbourg that after being released on parole, being brought back was a violation of Art 5. Strasbourg rejected this argument, since he was a danger to society and breached bail conditions; when persons are let out early, can be 'recalled' if there is a breach of bail conditions. Gatt v Malta (2010) - the European requirements of lawfulness under A5 include that of proportionality. In this case, G was charged with serious drugs trafficking and the Maltese government imposed onerous restrictions on him for making bail (e.g. a curfew and a €23,000 charge for breach). G was charged for breach of conditions when, after a few years of still no trial, he broke his curfew, but was unable to pay the fee. He was imprisoned as a result. The Maltese government tried to rely on A5(1)(b) as justification for G's detention (i.e. non-compliance with the lawful order of a court). Strasbourg held that requirements of lawfulness don't simply require domestic legal standards to be met, but also European values. Strasbourg found that 2000 days of detention for a minor breach of bail conditions was disproportionate, and therefore breached A5(1). Fox, Campbell & Hartley v UK (1990) (reasonable suspicion) - "reasonable suspicion" for the purposes of A5(1)(c) is an objective test. Three men were arrested separately in NI as suspects of being involved in terrorist crime. The government claimed they had factual information linking them to criminal behaviour, but they couldn't share the information because it would weaken their operation against terrorism in NI. Strasbourg held that there must be facts or information that would satisfy an "objective observer" that the person has committed the offence. The Court went on to hold that, on the facts, they did not think the police had enough information to have reasonable suspicion. Guzzardi v Italy (1980) (no creative powers of arrest) - the Court rejected the argument that there was a general creative power of arrest within Art 5(1)(c) that allowed the state to arrest someone in order to prevent them from committing an offence in the future. The offence in question had to be a specific crime that the authorities knew about, rather than just general criminality. Bouamar v Belgium (1988) - an ordinary prison does not meet the requirement of A5(1)(d), which insists that a specialist youth facility be made available. In this case, a 16-year-old recidivist was detained in an ordinary prison because Belgium did not have sufficient resources to detain him in a specialist youth facility for the purposes of educational supervision. Strasbourg found in favour of B and emphasised the importance of a separate facility for the purpose of education supervision, which cannot be satisfied by an ordinary prison. Winterwerp v Netherlands (1979) (unsound mind) - the Court defined the concept of "unsound mind" for the purposes of A5(1)(e) as a term whose "meaning is continually evolving as research in psychiatry progresses". The Court attached a flexible definition that would be a reflection of contemporary medical understanding. Whilst the person in question doesn't have to be diagnosed to be of unsound mind, the person's illness does have to be one that required

detention, and a genuine mental disorder (and not disagreement with the Soviet regime). On the facts, it was held that W was suffering from a mental illness that required him to be detained. Litwa v Poland (2000) - Strasbourg did not take a narrow medical definition of "alcoholic" and rather said that people who were under the influenced (even if they weren't diagnosed alcoholics) could be taken into custody under A5(1)(e) if they posed a risk to the public or their own safety. However, on the facts, Strasbourg held that detaining an elderly drunken man who was at the post office was disproportionate. They could have taken him home, as there was no suggestion that he was a danger to himself. Enhorn v Sweden (2005) - infectious diseases should also be defined as against contemporary medical standards. In this case, E was required to comply with continual medical follow-up after he unintentionally infected a sexual partner with HIV. After some months, he stopped attending appointments and was detained in a medical facility for around seven years (although his detention rules were slack, meaning he could come and go). Strasbourg held that, even though HIV was an infectious disease, detaining patients for treatment for HIV should be a measure of last resort, and therefore Sweden's treatment of E was disproportionate and a violation of A5. De Wilde, Ooms & Versyp v Belgium (1971) ("vagrant") - a vagrant is someone with no resources and no home. At this time, there was no social welfare provision available in Belgium. Instead, the state provided that people could submit themselves to the police and, after a brief court hearing, the Magistrates could order detention of that "vagrant" (homeless person) for up to 2 years to be "cared for" in specialist institutions - but, in reality, they were detained. A number of people took their case to Strasbourg. The Court accepted Belgium's definition of people who didn't have any resources or homes as being "vagrants". Bonzano v France (1986) - Italy applied to France for extradition of B, but France determined that it would be unlawful under their domestic law. About three weeks later, the French Minister served a deportation order on B who was handed to the Swiss and then to Italy. Strasbourg held this was disguised extradition - despite not being lawful, the French authorities had seemingly made a deal with the other states and disguised B's extradition through deportation. The Court held that, even if it had been a legitimate deportation order, it was arbitrary and therefore unlawful. Fox, Campbell & Hartley v UK (1990) (must be informed "promptly" of reasons for arrest) - being informed "promptly" of the reasons for arrest under 5(2) can mean "fairly soon". The three people arrested of suspected terrorist activity in NI complained that the police officer hadn't provided sufficiently specific details pertaining to their arrest as required by Art 5(2). However, Strasbourg held that details do not have to be provided at the actual time of arrest; it is sufficient for further details to be provided within a few hours. Murray (Margaret) v UK (1994) - being informed simply of the legal basis upon which you have been arrested is insufficient, unless further are details are provided "promptly" (i.e. fairly soon after arrest - Fox, Campbell & Hartley). In this case, whilst the applicant, who was suspected of

being involved with the IRA, was only initially told of the section in the Act under which she had been arrested, the fact that the reasons for her arrest were sufficiently brought to her attention a few hours later meant that 5(2) had been complied with overall. Van der Leer v Netherlands (1990) - the requirement under 5(2) that those arrested shall be informed promptly, in a understood language, of the reasons for arrest and charges against them extends to people who are detained under civil law powers. Mrs V had been detained under 5(1)(e) with serious mental health problems, but was not told she was a compulsory detainee until several days afterwards. Strasbourg found a breach by the Dutch authorities in not telling Mrs V of her compulsory detention promptly enough. Brogan & Others v UK (1988) - the requirement to be brought prompt before a judge under Art 5(3) is interpreted to mean a "short period of time". In this case, B and others had been detained in NI for suspected terrorist involvement and were detained for between 4 days & 6 hours and 7 days. The British government argued that the requirement should very depending on the nature of the charge, and terrorist-related charges should be longer. Strasbourg recognised the complexity of terrorist crimes, but it had to take a strict view of the requirement that detainees should be brought promptly before a judge (based in part on the fact that the French word used in the Convention for "promptly" was even stronger). Strasbourg didn't provide a clear timeframe, but held that even the shortest detention time here (4 days and 6 hours) was not prompt enough to satisfy Art 5(3). Medvedyev and others v France (2010) - being brought promptly before a judge means that an applicant must not wait any longer "than is necessary". This depends on the circumstances, including the conditions of detention and what evidence or proof the police already has. Whilst the rule in Nikolov holds that there is a maximum of four days to satisfy promptness under 5(3), it might not be a breach if, as in this case, there is a physical impossibility of transporting the detainee any more quickly (here, suspected drugs traffickers were detained aboard their ship and the sail back to France took 13 days). Nikolov v France (2016) - Strasbourg held that it was now applying a maximum of four days to satisfy the Art 5(3) requirement of promptness. N was a French national, involved in trafficking, who was arrested in Germany and handed over to France. However, because of the poor weather conditions, it had been 3 days, 23 hours and 11 minutes before he saw a judge. Strasbourg held that this fell within the 4-day maximum rule and therefore there was no breach. Assenov v Bulgaria (1998) - under A5(3), a judge or judicial officer must be independent. An "investigator" who was hierarchically lower than state prosecutors and were subject to orders from the prosecution cannot be judicial officers, because they are not sufficiently independent. Wemhoff v Germany (1968) - there is a two-fold obligation imposed on states that refuse bail: they must justify the reasons for the refusal of bail, and they must justify the length of time for which that person is refused bail. In this case, W was a businessman who as suspected of involvement in complication international frauds and was arrested. The Court held that the

German police had provided good reason for the refusal of bail (fear that the applicant would escape from Germany and interfere with the investigation), and the Court found that the length of time for which bail was refused was appropriate given the complexity of the case. A minority rejected this, arguing that there is always ways and means of avoiding unreasonably long delayed trials. Cabellero v UK (2000) - automatic refusal of bail because of a blanket policy is a breach of A5(3). This case dealt with a piece of legislation that refused to grant bail to certain offenders if they had certain criminal histories, which was declared incompatible with A5(3). Cases must be dealt with on a case-by-case basis. Kalashnikov v Russia (2002) - states must show reasons that persist throughout the entirety of time spent remanded in custody. This was the case that concerned K, the businessman, who was released but then later subjected to detention on remand for 4 years. When he was convicted, those 4 years were deducted from his prison sentence. However, the Court found that Russia hadn't provided good reason for refusing bail throughout the entirety of his remand detention (a breach of the Wemhoff reason justification). Further, delays in the proceedings of national courts made the time period for denying bail unreasonable because the state was taking an unjustified amount of time to completely proceedings (and therefore a breach of the Wemhoff time justification). De Wilde, Ooms & Versyp v Belgium (1971) (robust procedures) - where someone is being detained, domestic courts must have sufficiently robust procedures under A5(4) in order to determine the lawfulness of detention. In this case, the so-called "vagrants" under Belgium law challenged the lawfulness of their detention. It was held that the procedures under national law did not meet the requirements of A5(4) due to serious procedural failings. People who were detained up to 2 years required more severe procedural safeguards A and Others v UK (2009) - what is required for a "sufficiently robust procedure" under Art 5(4) depends upon assessment on a case-by-case basis. In this case, it was held that a specific procedure created to address the breach found in Chalal would only be compatible with A5(4) if sufficient information is disclosed to the detainee that enables him to mount an effective challenge to his detention. The special procedure had a two-stage process: open proceedings where the government provided information to the foreign national, and a closed session that dealt with highly sensitive national security information in which the foreign national was not allowed to participate. For some of the applicants in this case, a sufficiently rigorous examination had existed, but for others, it wasn't sufficiently robust (e.g. because much more information was introduced at the second stage/closed session). Winterwerp v Netherlands (1979) (regular judicial scrutiny) - the Court held there needs to be regular judicial scrutiny to satisfy the requirements of A5(4). In this case, W had been detained on mental health grounds because he was thought to pose a danger to himself or others. W argued that it was necessary to have more than one national court ruling for his years worth of

detention, because his medical condition could change or improve. Strasbourg agreed and found a breach. Weeks v UK (1987) (review of incarceration) - the requirement to have regular review of people detained was extended to long-term prisoners. However, the Court would not extend this regular review process to people convicted of murder in the UK. Stafford v UK (2002) - the Court eventually extended the Weeks (that there needs to be a regular review of people detained) to convicted murderers. This case was pre-Vinter. However, whole-life sentences were not inconsistent with this ruling, because V was a case that concerned serial murderers. S had not been sentenced to a whole-life tariff; rather, he was permitted regular review because he was an "ordinary murderer"....