Article 5 of the ECHR: A quick Guide

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.

  1. 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.
  2. 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.
  3. 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.
  4. 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 meaning and importance of the right to liberty and security

The importance of the right to liberty and security has been recognised for centuries. It finds expression in a number of important antecedents to international human rights treaties, such as the Magna Carta of 1215, and the American and French Constitutions of the 1700s. The essential purpose of Article 5 is to guarantee the protection of the individual’s physical liberty against arbitrary detention. It is not concerned with mere restrictions on a person’s freedom of movement, which is governed by Article 2 of Protocol 4.

The right to liberty and security is guaranteed to everyone, without distinction on grounds such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property birth or other status (Article 14, see also Protocol No. 12).

The Court has stressed the importance of the right to liberty and security in a democratic society. For example, in De Wilde Ooms and Versyp v Belgium (1971), where the applicants had voluntarily given themselves into police custody, the Court held that the right to liberty and security is too important in a democratic society for a person to lose the benefit of its protection on account of having given himself up to be taken into detention.

Article 5 offers protection not only at the point when a person is first detained, but also periodically thereafter until the person is released, or is sentenced to a period of imprisonment by a criminal court.

The notion of “security of person”

The Court has made clear in a number of cases, including in the case of Altun v Turkey (2004), that the notion of security of person in Article 5 is not to be given any independent (i.e. separate) interpretation from the right to liberty. The Court noted that the primary concern of Article 5 is protection from arbitrary deprivation of liberty. The applicant in Altun alleged that he was compelled to abandon his home and village in breach of the right to the exercise of liberty and the enjoyment of security of person. The Court considered that the applicant’s insecure personal circumstances arising from the loss of his home did not fall within the notion of “security of person” under Article 5.

In other cases, the Court has suggested the notion of “security of person” can be equated to the obligation to prevent the arbitrary deprivation of liberty: see, for example, the cases of Bozano v France and Ocalan v Turkey (2005), which are both discussed below.

The right and its permissible restrictions

The first sentence of Article 5 sets out the right to liberty and security, a right guaranteed to everyone; the second sentence permits exceptions only in carefully prescribed circumstances. First, any detention must have followed a “procedure prescribed by law” and second, it must have been authorised on the basis of one of sub-paragraphs (a)–(f) of paragraph 1. The list of grounds of detention under these sub-paragraphs is exhaustive; no other basis of detention is lawful under Article 5. Accordingly, a deprivation of a person’s liberty which does not take place in accordance with a procedure prescribed by law, or on the basis of sub-paragraphs (1)(a)–(f), is arbitrary and unlawful. Authorities holding persons detained in circumstance contrary to Article 5 are under an obligation to release them immediately (as to redress before the European Court, see further Assanidze v Georgia (2004) and Ilascu and others v Moldova and Russia (2004) which are discussed below at 5.4). Persons detained in violation of any aspect of Articles 5(1) to 5(4) are entitled to compensation, by virtue of Article 5(5).

The right to liberty and security can be subject to derogation in times of national emergency in accordance with Article 15 of the Convention, providing certain procedures are followed.

Factors indicating deprivation of liberty

The Court has made a fundamental distinction between a deprivation of liberty, which attracts the protection of Article 5, and a mere restriction on movement which does not, as mentioned above. The difference between deprivation of liberty and mere restriction on a person’s movement is a question of degree or intensity rather than nature or substance (see Guzzardi v Italy (1980)). 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 following points are relevant to this assessment:

  • the degree of coercion used;
  • the area of confinement (the smaller, the more the likelihood of a finding of deprivation of liberty);
  • the degree of security with which confinement is ensured;
  • the frequency and degree of intrusiveness of the means of supervision;
the extent to which contact with the outside world is permitted, and supervised; and
  • the length of time for which such measures are applied.

Exceptions

A person can only be lawfully deprived of their liberty when this is done in accordance with law, is proportionate and carried out in the following circumstances:

  • detention following court conviction;
  • arrest or detention for failing to observe a lawful court order or to fulfil a legal obligation;
  • arrest or detention on remand – i.e. to bring a person before the courts if reasonably suspected of having committed an offence; if reasonably necessary to prevent the commission of an offence; or to prevent a person escaping justice (but not preventative detention).  Detention must be proportionate in the circumstances;
  • detention of children by lawful order for educational supervision or in secure accommodation, care etc;
  • detention which is lawful, necessary and proportionate to prevent, as a matter of last resort, the spread of infectious diseases, lawful detention on mental health grounds or other like grounds;
  • arrest or detention to prevent unauthorised entry into the country or for deportation or extradition.  Detention will cease to be lawful if proceedings for deportation or extradition are not actually in process or not carried out diligently.

 

Procedural safeguards

Article 5 also includes a number of procedural safeguards for anyone who is arrested or detained.

Reasons

Article 5(2) requires that anyone arrested must be promptly informed as to why he or she has been arrested and what the charge against them is.  This must be conveyed to them in a language which he or she understands.  The purpose of this requirement is to enable the person to challenge the lawfulness of their arrest.  This requirement is not only limited to the criminal context but also applies to detention on mental health grounds and immigration detention etc.

Lawfulness tested

Article 5(3) gives everyone arrested or detained on suspicion of having committed an offence the right to be promptly brought before a judge.  This is intended to impose a strict time limit on pre-charge detention.

There is also an entitlement to trial within a reasonable time and release on bail.  The presumption is that bail should be granted and if it is to be denied it must be justified by relevant and sufficient reasons.

Review by court

Article 5(4) provides that everyone deprived of their liberty is entitled to bring court proceedings to challenge the lawfulness of the detention.  Such a challenge must be speedily decided by a court and if the detention is ruled unlawful his or her release must be ordered.  If detention is going to continue this provision requires regular review of the lawfulness of the detention.

Victims of unlawful detention entitled to compensation

Article 5(5) provides that victims of unlawful arrest or detention have an enforceable right to compensation.

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