Handbook_European_Convention_Police_ENG

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three hours in the police station without being given any explanation for his arrest, but the majority of the Commission considered that there had been no deprivation of liberty since the police action had been prompted by humanitarian considerations, no physical force had been used, and the applicant had remained free to walk about the police station.136

Question 2: was the deprivation of liberty‘lawful’

and‘in accordance with a procedure prescribed by law’?

Any deprivation of liberty must comply with the law. The text of Article 5 makes this clear, first by requiring that any detention must be ‘in accordance with a procedure prescribed by law’, and secondly, by qualifying each of the six sub paragraphs in paragraph 1 outlining the justifiable grounds for deprivation of liberty to the effect that any arrest or detention must be ‘lawful’.

It is vital to appreciate that the lawfulness of any deprivation of liberty is tested both in respect of domestic law and also against European expectations that require that domestic law has not been applied in an arbitrary manner, for ‘the very purpose of Article 5 [is] to protect the individual from arbitrary detention.’137 There must also have been compliance with procedures laid down by domestic law, for failure to adhere to procedural steps or safeguards laid down in national law will result in a finding of a breach of Article 5, and it will not be possible retroactively to rectify procedural improprieties in the deprivation of liberty. As far as domestic procedures are concerned, the importance of properly maintained custody records is crucial. Police officers must be able to show through documentary or other means that that an apprehension and subsequent detention were in accordance with domestic procedures.138

Some further discussion of the‘lawfulness’of a deprivation of liberty is helpful.139 As noted, domestic law will inevitably confer wide authority upon police officers,­

136Guenat v Switzerland, Commission decision of 10 April 1995 ((1995) DR 81, 130 at 134).

137Akdeniz and Others v Turkey, judgment of 31 May 2001 at paragraph 106.

138Thus Article 5 imposes a duty upon states to ensure the accurate administrative recording of the details of and grounds for detention: Çakıcı v Turkey, judgment of 8 July 1999 at paragraph 105. See also Timurtaş v Turkey, judgment of 13 June 2000 at paragraphs 99-106

(the disappearance of the applicant’s son during an unacknowledged detention disclosed a particularly grave violation of Article 5 in particular because of the lack of a prompt and effective inquiry into the circumstances of the disappearance and the lack of accurate and reliable records of detention of persons taken into custody by police officers).

139The question of‘lawfulness’of a deprivation of liberty may also involve scrutiny of the issue of whether a suspect brought to a country from another was done so in circumstances suggesting the use of irregular procedures, but this falls outside the scope of this discussion.

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but the European Convention on Human Rights requires that such powers are consciously exercised upon a case-by-case basis in order to protect against arbitrariness in the application of the law. Therefore domestic law must itself be defined with sufficient precision to protect against arbitrary application of detention powers by the police, and thus substantive provisions of domestic law must not only be‘adequately accessible’, but also‘formulated with sufficient precision’to permit individuals to regulate their behaviour accordingly.140 The particular relevance for police officers is that any deprivation of liberty must be shown to be strictly justified in the particular circumstances and to have been made in good faith.

First, and most obviously, there will be a breach of Article 5 where a detention has taken place without legal foundation in domestic law,for example, where police officers have failed to respect the limits of their authority to detain an individual (but minor clerical flaws in a detention order will not necessarily render the period of detention unlawful as long as the detention is based upon a judicial authorisation).141

■ In K.-F. v Germany, the maximum period that police officers could detain an individual to check his identity was twelve hours. However, the individual had not been released for some forty-five minutes after the expiry of this period. This had resulted in a breach of Article 5: the Strasbourg Court considered that the absolute nature of the permissible length of detention had placed police officers under a duty to take all necessary precautions to ensure compliance with the law.142

Secondly, police officers may not seek to deprive a person of his liberty purportedly for one purpose when the real purpose is different and improper.

■ In Bozano v France, the applicant had been sentenced in his absence to life imprisonment in Italy on kidnapping and murder charges. He had been subsequently arrested in France on unconnected matters. An extradition request had been turned down by the French courts since trial in absentia was regarded as contrary to the rules of French public policy. A month or so after

See Sanchez Ramirez v France Commission decision of 24 June 1996 (concerning ‘Carlos the

Jackal’) and Öcalan v Turkey, judgment of 12 May 2005 (concerning the leader of the PKK).

140Steel and Others v the United Kingdom, judgment of 23 September 1998 at paragraph 75.

141Ječius v Lithuania, judgment of 31 July 2000 at paragraphs 65-69 (regardless of the possible flaws in the wording of the order, its meaning must have been clear to the applicant). But minor clerical errors in detention orders, etc., may in certain circumstances be overlooked: Douiyeb v the Netherlands, judgment of 4 August 1999 at paragraphs 39-55.

142K.-F. v Germany, judgment of 27 November 1997 at paragraphs 71-73.

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being released on bail in respect of the other charges, he had been arrested by French police purporting to execute a deportation order and taken to a pre arranged rendezvous with Swiss police at the border. The Swiss courts thereafter had extradited him to Italy where he began serving his sentence. The Court ruled that the actions of the French authorities in detaining the applicant could not be brought within Article 5 in view of the secrecy surrounding, and the manner of, the arrest.‘Lawfulness’, said the Court, implies a lack of arbitrariness. Here, the detention was‘a disguised form of extradition’designed to get around the adverse court decision, and was not therefore detention ‘in the ordinary course of ‘action … taken with a view to deportation’’.143

Thirdly, a police officer must show that not only was the deprivation of liberty authorised by, and in accordance with, domestic law, but that it was also necessary in the particular circumstances. Deprivation of liberty is ‘only justified where other, less severe measures have been considered and found to be insufficient to safeguard the individual or public interest which might require that the person concerned be detained’.144 This is of fundamental importance to ensure that there is no appearance of arbitrariness in the application of the law.

■ In Witold Litwa v Poland, the detention of the applicant in a‘sobering-up’ centre had been in accordance with Polish domestic procedures. However, the Strasbourg Court nevertheless found a violation of Article 5 on account of considerable doubts that the applicant had been posing a danger to himself or to others. In any event, no adequate consideration had been given to making use of other available alternatives, and the police could have taken the applicant either to a public care establishment or even back to his home. In other words, while detention was authorised by domestic law, it had been the most extreme of the measures available to deal with an intoxicated person.145

Question 3: does the deprivation of liberty fall within one of the recognised grounds justifying loss of liberty?

Article 5 recognises a number of grounds that may justify the use of deprivation of liberty. Several of these grounds are of relevance to police officers, and are discussed here. Many permit the use of detention with a view to securing

143Bozano v France, judgment of 18 December 1986 at paragraph 60.

144Witold Litwa v Poland, judgment of 4 April 2000 paragraph 78; see also Varbanov v Bulgaria, judgment of 5 October 2000 at paragraph 46.

145Witold Litwa v Poland, judgment of 4 April 2000 at paragraphs 72-80.

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an individual’s compliance with legal obligations, and in particular, in respect of observance of the criminal law. However, detention may also promote the interests of individuals who are vulnerable or at risk, as with detention for the educational supervision of minors or of vagrants, persons of unsound mind, alcoholics and drug addicts.

In order to secure the fulfilment of a prescribed legal obligation (Article 5(1)(b))

This provision is likely to be of relevance in cases where police officers are required to deprive individuals of their liberty for short periods of time in order to carry out, for example, a personal search or to check their identities.146 But this ground cannot be given too loose an interpretation as this could undermine the aim of the Convention in protecting against arbitrary loss of liberty, and thus any such obligation must be of a ‘specific and concrete nature’.147

■In Novotka v Slovakia, the detention of the applicant for one hour following his refusal to show police officers his citizen’s card (which would have allowed his identity to be checked) was not considered to have given rise to any issue which could raise a violation of Article 5, even though he alleged that his identity had been confirmed by two neighbours.148

■In McVeigh, O’Neill and Evans v the United Kingdom, it was accepted that the duty imposed by British anti-terrorist legislation to ‘submit to further examination’ was a specific and concrete obligation to provide information for the purpose of permitting officials to establish status at the point of entry into the United Kingdom and not (as claimed by the applicants) in substance merely an obligation to submit to detention.149

However, the imposition of a deprivation of liberty must also be a proportionate response to the situation. For example, while detention to ascertain an individual’s identity may fall within the scope of this heading where domestic law imposes an obligation to carry an identification card and to produce this

146But note Harris, O’Boyle and Warbrick, Law of the European Convention on Human Rights

(2nd ed., 2009), at p 142: ‘[This limb] provides a means of justifying various powers of temporary detention exercisable by the police (e.g. random breath tests, road blocks, powers of stopping and searching), to enforce obligations of the criminal law to which Article 5(1)(c) would not extend’.

147Lawless v Ireland (No 3), judgment of 1 July 1961 at paragraph 9.

148Novotka v Slovakia, Court decision of 4 November 2003.

149McVeigh and Others v the United Kingdom, Commission decision of 18 March 1981 at paragraphs 168-175.

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when requested, the prolonged detention of an individual is likely to constitute arbitrary deprivation of liberty.

■ In Vasileva v Denmark, the detention in a police station of an elderly bus passenger for over 13 hours after she had refused to disclose her identity to a ticket inspector during the course of a dispute as to the validity of a ticket was seen as a disproportionate response to the situation.150

Arrest or detention of a person suspected of breaching the criminal law: Article 5(1)(c)

This ground for deprivation is of obvious importance to police officers. The text provides that a police officer may deprive an individual of his liberty ‘for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence’. This provision is thus of relevance in the initial stage of a criminal process, and must be read alongside the entitlement in Article 5(3) to‘be brought promptly before a judge or other officer authorised by law to exercise judicial power and … to trial within a reasonable time or to release pending trial’.

The key issues of interpretation are as follows:

ffthe detention may be based upon judicial authorisation, but a police officer is also likely to have powers to arrest and detain an individual without judicial warrant. The offence may be an offence under the criminal law or the administrative code.

ffthe ‘offence’ must have constituted a crime at the time when the offence was alleged to have occurred.

ffthe purpose of detention in such cases is to help confirm or dispel the suspicion that an individual has committed a crime or offence, and thus the detention must be for this sole purpose and not for any extraneous aim (such as to exert moral pressure upon a detainee).151

ffa police officer must always be able to show there has been ‘reasonable suspicion’. This presupposes the existence of facts or information which would satisfy an objective observer that the arrested person may have committed an offence.152

150Vasileva v Denmark, judgment of 25 September 2003 at paragraphs 32-43.

151Giorgi Nikolaishvili v Georgia, judgment of 13 January 2009 at paragraphs 60-67.

152Fox, Campbell and Hartley v the United Kingdom, judgment of 30 August 1990 at paragraphs 32-36.

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ffwhat may be regarded as ‘reasonable suspicion’ will depend upon all the circumstances. ‘There may thus be a fine line between those cases where the suspicion grounding the arrest is not sufficiently founded on objective facts and those which are’.153 That a suspicion is honestly held is insufficient to satisfy the standard: the suspicion must be ‘reasonable’, but need not be any higher at this stage of the investigation: ‘facts which raise a suspicion need not be of the same level as those necessary to justify a conviction or even the bringing of a charge, which comes at the next stage of the process of criminal investigation.’154

ffdetention should cease as soon as the suspicion ceases to be ‘reasonable’.155 This is to ensure that the continuation of the deprivation of liberty is not arbitrary. It follows that the fact that a person detained ‘on reasonable suspicion’ is not ultimately brought before a judge or is not subjected to criminal charges does not bring the detention beyond the scope of the sub-paragraph as long as the relevant level of suspicion existed at the outset of detention.

Arrest or detention of a person to prevent the commission of an offence: Article 5(1)(c)

This purpose is interpreted restrictively and only applies to detention to prevent the commission of a ‘concrete and specific offence’,156 for too broad an interpretation would mean that ‘anyone suspected of harbouring an intent to commit an offence could be arrested and detained for an unlimited period on the strength merely of an executive decision’.157

■ In Ječius v Lithuania, domestic law permitted detention with a view to preventing the commission of offences. The applicant had been taken into custody to prevent his involvement in three specific offences of ‘banditism’, criminal association and terrorising a person. A month later, he was again charged with murder, a charge which had earlier been dropped. The Strasbourg

153O’Hara v the United Kingdom, judgment of 16 October 2001 at paragraph 41.

154Murray v the United Kingdom, judgment of 28 October 1994 at paragraph 55.

155Stögmüller v Austria, judgment of 10 November 1969 at paragraph 4; cf De Jong, Baljet and

Van den Brink v the Netherlands, judgment of 22 May 1984 at paragraph 44: ‘whether the mere persistence of suspicion suffices to warrant the prolongation of a lawfully ordered detention on remand is covered, not by [this sub paragraph] as such, but by Article 5(3), which forms a whole with Article 5(1)(c) ... to require provisional release once detention ceases to be reasonable ...’

156Guzzardi v Italy, judgment of 6 November 1980 at paragraph 102.

157Lawless v Ireland (No 3), judgment of 1 July 1961 at paragraph 14.

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Court observed that detention under the sub-paragraph could only take place within the context of criminal proceedings for alleged past offences, and thus preventive detention of the nature applied to the applicant was incompatible with Article 5.158

■ In Eriksen v Norway, the applicant had developed a tendency to become aggressive after suffering brain damage, and over a period of years had been detained in prison or in mental hospitals. Shortly before the expiry of authorisation granted by a trial court to use ‘security measures’ to detain the applicant, the police sought and were given approval to keep him in detention for several additional weeks to allow an up-to-date medical report to be obtained. The Court accepted that this period of detention fell within the scope of both sub-paragraphs (a) and (c). The former heading applied since the extension was directly linked to the initial conviction and imposition of ‘security measures’ on account of the applicant’s likely risk of re-offending even though the authority for these had expired. Sub-paragraph (c) also justified detention because of the applicant’s previous mental history and record of assaults, which had provided substantial reasons for believing he would commit further offences if released.159

Arrest or detention of a person to prevent the fleeing of a criminal suspect Article 5(1)(c)

A police officer may also detain an individual to prevent him absconding after having committed an offence. The danger of flight must be considered carefully in each case: such factors as the ease of leaving the jurisdiction, the possibility of a heavy sentence and the lack of domestic ties will all be relevant in assessing its likelihood and thus the‘reasonableness’of any State detention.160

Detention of minors for educational supervision or for bringing minors before competent legal authorities: Article 5(1)(d)

These grounds for detention have generated little case law. These are two distinct purposes, and the reference to detention of a minor ‘by lawful order

158Ječius v Lithuania, judgment of 31 July 2000 at paragraphs 50-52.

159Eriksen v Norway, judgment of 27 May 1997 at paragraphs 78-87.

160Cf Wemhoff v Germany, judgment of 27 June 1968 at paragraphs 13-15. But see Harris, O’Boyle and Warbrick, Law of the European Convention on Human Rights (2nd ed., 2009), at p 147:‘the third ground of Article 5(1)(c) appears redundant since a person who is‘fleeing after having’ committed an offence can in any event be arrested under the first limb.

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... for the purpose of bringing him before the competent legal authority’ suggests approval of domestic schemes to divert minors from the ordinary criminal process.161

Detention of persons of unsound mind, vagrants, alcoholics, drug addicts, etc.: Article 5(1)(e)

This heading justifies a deprivation of liberty both on public safety grounds as well as to further the well-being of the individual who is detained. Yet certain safeguards against arbitrary detention are implicit. For example, the definition of ‘vagrant’ is primarily a matter of domestic law, as long as this reflects the generally accepted meaning of the term for the purposes of the Convention.162 Mental health detention cannot be considered as justified if the opinion of a medical expert has not been sought, although in cases of urgency such an opinion may be obtained after the start of the loss of liberty.163 In relation to policing, the detention of ‘alcoholics’ and ‘drug addicts’ may give rise to particular considerations.

■In Witold Litwa v Poland, the applicant, who had been behaving offensively while drunk, had been taken to a ‘sobering up’ centre where he had been detained for six-and-a-half-hours. While the normal meaning of an‘alcoholic’ implied addiction to alcohol, the Court clarified that the term was used in Article 5(1)(e) in a context which includes reference to other categories of individuals who may be deprived of their liberty both to protect public safety and for their own interests, and thus the detention of ‘alcoholics’ could not be restricted merely to persons medically so diagnosed, but had to include detention of individuals ‘whose conduct and behaviour under the influence of alcohol pose a threat to public order or themselves’, and where detention is ‘for the protection of the public or their own interests, such as their health or personal safety’.164

■In Hilda Hafsteinsdóttir v Iceland, the applicant had been arrested and held overnight in custody on six occasions on account of intoxication, agitation and aggressive behaviour towards police officers. Although the Court accepted that the detentions were covered by the sub-paragraph as her behaviour had been under the strong influence of alcohol and could reasonably have been

161Bouamar v Belgium, judgment of 29 February 1988 at paragraph 48.

162De Wilde, Ooms and Versyp v Belgium (‘Vagrancy cases’), judgment of 18 June 1971 at paragraph 68.

163E.g. Herz v Germany, judgment of 12 June 2003 at paragraphs 43-56.

164Witold Litwa v Poland, judgment of 4 April 2000 at paragraphs 60-63.

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considered to entail a threat to public order, the quality of domestic law was considered insufficient to meet the tests under Article 5. Domestic law was not sufficiently precise as to the type of measures that the police were authorised to take in respect of a detainee, nor was the maximum authorised duration of detention specified. While internal police instructions elaborated more detailed rules on the discretion which a police officer enjoyed in ordering detention, the instructions did not permit detention in cases of mere intoxication if an alternative measure could be used. The key issues were that the exercise of discretion by the police, and the duration of the detention, had thus been governed by administrative practice rather than by a settled legal framework. As a result, the law was neither sufficiently precise nor accessible enough to avoid the risk of arbitrariness, and thus the applicant’s deprivation of liberty had not been ‘lawful’.165

Illegal immigration, deportation and extradition: Article 5(1)(f)

Article 5(1)(f) provides for‘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’. There are thus two ‘limbs’ to the provision. Detention must be shown to fall under either the first limb (that is, unauthorised entry) or the second (deportation or extradition) and not merely to prevent flight or for any other covert aim.166

Question 4: has a detained person been accorded the required procedural safeguards?

The remainder of the text of Article 5 provide a range of guarantees to ensure that an individual can challenge the lawfulness of his loss of liberty, and therefore protect against arbitrary loss of liberty. The key issue is that they require certain positive steps to be taken by police officers, including a general requirement to protect against unwarranted deprivation of liberty by ensuring that the continuation of detention is, at all times, justified.

A crucial aspect of the guarantee is the availability of procedural safeguards such as the rights to have notification of the reasons adduced by the authorities and to commence proceedings to test the legal basis of the detention. Where the deprivation of liberty involves suspicion of having committed an offence or where it is reasonably considered necessary to prevent the commission of

165Hilda Hafsteinsdóttir v Iceland, judgment of 8 June 2004 at paragraphs 51-56.

166Bozano v France, judgment of 18 December 1986 at paragraphs 53-60.

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an offence or the flight of a perpetrator, the article additionally guarantees the right to be brought promptly before a judge or other judicial officer who must consider whether there are reasons which would justify the continuation of the detention rather than ordering release on bail; if release pending trial is refused, the detainee has the right to challenge the continuation of detention at subsequent intervals and ultimately to trial within a reasonable time. These rights are positive entitlements which State authorities must specifically provide, whether or not a detained person so requests.167

The right to be informed promptly of the reason for the detention: Article 5(2)

Where a person is taken into custody, Article 5(2) provides a person arrested must be‘informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.’This at first glance appears to overlap with the provisions of Article 6(3)(a) which provides that a person charged with a criminal offence must be ‘informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him’. But the interpretation of each provision is influenced by its particular aim; and since the ultimate purpose of Article 5 is the protection from arbitrary loss of liberty,168 Article 5(2) seeks to allow the lawfulness of the deprivation of liberty to be tested (rather than as with Article 6(3)(a) which requires a detainee is provided with ‘sufficient information as is necessary to understand fully the extent of the charges against him with a view to preparing an adequate defence’).169

ffit is important to appreciate that the words used by the drafters have a meaning not dependent upon domestic law: the reference to ‘arrest’ extends to all deprivations of liberty and not just to a person suspected of committing an offence.170

ffthe giving of information must be assessed independently of its utility: in other words, the fact alone that information is not in practice sufficient to allow applicants to lodge appeals does not mean that the requirements of paragraph 2 have not been satisfied.171

167Aquilina v Malta, judgment of 29 April 1999 at paragraph 47.

168K.-F. v Germany, judgment of 27 November 1997 at paragraph 63; and Erkalo v the Netherlands, judgment of 2 September 1998 at paragraph 56.

169Mattoccia v Italy, judgment of 25 July 2000 at paragraph 60.

170X v the United Kingdom, judgment of 5 November 1981 at paragraph 66.

171Čonka and Others v Belgium, judgment of 5 February 2002 at paragraphs 50-52.