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35 Cards in this Set
- Front
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Article 5: Right to Liberty |
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Meaning of Liberty |
Guzzardi v Italy - liberty is broader than just physical liberty. Restricting Guzzardi to this island, the strict curfew and the rules on who he could visit/how much contact he could have was equivalent to being in an open prison and there was a deprivation of liberty and therefore a breach of Article 5. |
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Amuur v France |
Somali's arrived in France with false passports were not allowed past the international transit barriers so they were effectively imprisoned in the airport. Did amount to deprivation of their right to liberty. "In accordance with the law" meant the provision had to be openly available law and these immigration rules were secret administrative rules so there was a breach. |
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Protection against forced disappearances |
Kurt v Turkey - under article 5, having assumed control over an individual the authorities must “take effective measures to safeguard against the risk of disappearance and to conduct a prompt effective investigation into an arguable claim that a person has been taken into custody and not been seen since”. |
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El-Masri v Macedonia |
Macedonia was working with the CIA but were liable for E’s period of detention in Macedonia and the subsequent detention by the CIA as they’d handed him over knowing he’d be flown somewhere else and probably tortured so there was a breach of Article 5. |
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5(1)
(a) After conviction by a competent court |
Weeks v UK - decisions to revoke parole can be justified under Article 5(1)(a)
Van Droogenbroeck v Belgium - there has to be a "sufficient connection" between the last decision of the court and the deprivation of liberty at issue. |
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(b) For non-compliance with the lawful order of a court/to secure the fulfilment of any obligation prescribed by law |
Gatt v Malta - Strasbourg accepted that the payment of the guarantee for breaking bail conditions was lawful under Maltese law but then implied their own European elements into the lawfulness and said it had to be a proportionate measure and was not.
Vasileva v Denmark - requiring her to give her details was a legal requirement but Strasbourg found that keeping her overnight was a disproportionate measure and there was a breach of Article 5(1)(b). |
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(c) For the purpose of bringing a person before the competent legal authority on reasonable suspicion of having committed an offence |
Fox, Campbell & Hartley - "reasonable suspicion" is an objective test, and “having a ‘reasonable suspicion’ presupposes the existence of facts or information which would satisfy an objective observer that the person concerned may have committed an offence”. The respondent state must show the evidence to satisfy this objective test and in this case the British Government had not provided sufficient facts as simply suspects having previous convictions is not enough for reasonable suspicion of other offences so there was a breach of their Article 5 right. |
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Margaret Murray v UK |
Showing that she had two brothers in the USA who had been convicted of attempting to transport guns to NI and she had visited them after their conviction was sufficient to detain her for 2 hours, so no breach. |
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Brogan v UK |
Article 5(1)(c) may justify an arrest or detention even though no criminal proceedings are eventually brought, provided there was a “reasonable suspicion” that an offence had been committed when the arrest was made. |
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Guzzardi |
His detention for over a year could not be justified by preventative purposes as this is to power to arrest someone to prevent a specific crime. So breach of 5(1)(c). |
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(d) Detention of minors for the purpose of educational supervision |
Bouamar v Belgium - he was sentenced to two weeks detention in facilities with educational supervision but he was put in an ordinary prison where there was no education so it was a breach, could not come under 5(1)(d). |
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(e) Detention of...persons of unsound mind |
Winterwerp v Netherlands - Strasbourg couldn't define "unsound mind" as it is constantly evolving so said it has to be based on medical or scientific assessment and must be so serious that an individual has to be detained for their own or public safety. |
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Alcoholics |
Litwa v Poland - court said that people “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”. It was not a proportionate response for Poland to take Litwa to the sobering up centre and have him there for 6 and a half hours as he could have just been taken home and sobered up so there was a breach. There was a wide concept of alcoholics but the state response must still be proportionate. |
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Infectious diseases |
Enhorn v Switzerland - court said the detention of people who are HIV positive or have other infectious diseases had to be the last measure taken by the authorities - if they have tried all the other measures available to them to prevent the spread. |
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Vagrants |
De Wilde, Ooms & Versyp v Belgium - if you had no way of feeding or housing yourself you could surrender to the police and the magistrates could decide if you were a vagrant and put you in special detention for up to 2 years. Strasbourg endorsed Belgium's view that if you had no money, no job or home then you are a vagrant so the people in this case were and therefore could be detained under Belgium's rules. |
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(f) Arrest/detention to prevent unlawful immigration of persons against whom action is being taken with a view to deportation/extradition |
Bozano v France - arbitrary use of the deportation power when he was handed over to the Swiss and then into Italy where he had absconded from while his criminal trial had taken place. B won his case as it was an arbitrary use of power. |
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Quinn v France |
Strasbourg implied an obligation on the court to take reasonable speed in extradition/deportation procedures. |
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Chahal v UK |
No breach of the due delay requirement when his case took 3 and a half years –there had been reasonable speed it was just because he had brought so many challenges that his extradition took so long. |
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5(2) |
Fox, Campbell & Hartley - “…any person arrested must be told, in simple non-technical language that he can understand, the essential legal and factual grounds for his arrest…” In this case, the fact that within a few hours of arrest they were questioned about specific offences was enough for them to understand what they were arrested for, despite only being told they were suspected terrorists when originally arrested. Quite a pro-state decision. |
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Van der Leer v Netherlands |
She went as a voluntary patient to a mental hospital but while she was there her husband successfully applied for compulsory detention of her and she was not told of this for a few days so she went to Strasbourg and that 5(2) applied to her as the purpose of it was to protect people being detained by the state (under both civil and criminal powers) and therefore it applied to her situation. Protective of individuals. |
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5(3)
Be brought promptly before a judge/judicial officer |
Brogan & Others v UK - court said states can only detain someone for a very short period of time before bringing them to a judge, and they found a breach in all the cases here, despite the terrorist context. “Prompt” must be less than 4 days 6 hours (the shortest one here) in a complex terrorist case. No definitive answer as to how much time would be a breach due to the different national criminal justice systems in the 47 MSs. |
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Assenov v Bulgaria |
"Investigators" in this case were not sufficiently independent and their decisions could be overridden by state prosecutors so they were not sufficiently independent to be judicial officers. |
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Bail |
Wemhoff v Germany - states have an obligation under 5(3) to provide good reasons for why they refused bail, and they must also justify the length of time that the person has been refused bail for. Strasbourg accepted the “flight risk” justification in this case and found that four years was not an undue amount of time. |
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Kalashnikov v Russia |
He was arrested for attempting to obstruct their investigation and was held for about four years before his trial. Strasbourg found that there were good reasons when he was first remanded but these reasons did not continue for the whole four years – once they had got all the information they needed he could have been released as he would no longer have been able to interfere. The good reasons must extend to the entire time period so there was a breach here. |
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5(4) |
Right of a detainee to go before a court and have a domestic court rule on the lawfulness of their detention. |
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De Wilde, Ooms & Versyp v Belgium (the Vagrancy cases) |
Potential vagrants had no legal representation before the magistrate - it wasn't sufficiently robust or protective of people. The procedure "must provide the fundamental guarantees of procedure applied in matters of deprivation of liberty". The longer you might be detained for, the more robust and elaborate the procedure will need to be. Procedural breach here. |
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A and others v UK |
5(4) may require more than one challenge before a domestic court. |
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Winterwerp |
With people who are detained because of serious mental health diseases or injuries, their condition is changeable and so 5(4) requires more than one review. W had a right to regular reviews. |
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Van Droogenbroeck v Belgium |
He had been released and recalled to prison several times and Strasbourg said he had a right for a judicial body to review his detention. |
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Stafford v UK |
Judge should decide under 5(4) whether mandatory lifers can be released after they’ve served a punishment period. |
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5(5) |
Right to compensation for victims of breaches of Article 5 |
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Brogan v UK |
Rejected a restrictive view that 5(5)would only apply where there is a breach of national law. |
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Wassink v Netherlands |
Applicants must be able to show that they have suffered damage as a consequence of breaches of Article 5 rights if they are to be entitled to compensation under 5(5). |
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In accordance with a procedure prescribed by law |
Ocalan v Turkey - "in accordance with law" demands that the States comply with both national and international law where appropriate when regarding the detention of persons. They must not act in an “arbitrary” manner as that would be contrary to the purpose of Article 5 (to protect individuals from arbitrariness). |
