RIGHT TO LIBERTY AND SECURITY Art. 5 ECHR Elizabeta Ivičević Karas Faculty of Law, University of Zagrebu

Right to liberty the physical liberty of the person protection against arrest or detention difference in degree and intensity: limitation of the right to freedom of movement (art. 2 par. 1 of the Protocol 4 to the ECHR)

The right to liberty and security of person protection from arbitrary interference by a public authority with an individual’s personal liberty protection from abuse of possible exceptions to the right to liberty of person

Fundamental human right not absolute can be derogated

Purpose of proclamation Any interference of the state authorities with the liberty of person Any interference of the state authorities with the liberty of person in accordance with the law / prescribed by law (predictable and accessible) pursue the legitimate aim pursue the legitimate aim necessary in a democratic society? principle of proportionality

Deprivation of liberty Art. 5 par. 1 ECHR 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: 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:

Deprivation of liberty method of autonomous interpretation method of evolutive interpretation analysis of cases in concreto

Deprivation of liberty Criteria (Guzzardi v. Italy, 1980): Space: island Time: 16 months CoercionSupervision Social contacts

Exceptions 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.

Exceptions in accordance with the law – the law must itself be in conformity with the ECHR must pursue one of the legitimate aims (listed in the paragraph)

Detention on remand Art. 5 par. 1 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

Detention on remand police verifying the identity of a person? police inspection / search of a person? police detention? detention on remand – in various phases of the procedure detention on remand – in various phases of the procedure

Reasonable suspicion degree of probability (Murray v. UK, 1994) uncertainty? it must be based on facts

Grounds Deprivation of liberty – necessary to prevent a person: committing an offence or fleeing after having committed an offence;

Grounds Accepted grounds for the detention (in the jurisprudence of the ECrtHR): the risk of collusion protection of public order the need to protect the applicant Not accepted grounds for detention: the seriousness of the offence alone the requirements of the inquiry

The rights guaranteed to all persons deprived of their liberty Art. 5 par. 2 ECHR Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him. information on essential legal and factual grounds for his arrest provides the possibility to challenge the lawfulness of the arrest (art. 5 par. 4) similar with the right from art. 6 par. 3 a) (more detailed  efficient defence at the trial) promptly – depending on circumstances of each case (Murray v. U.K.)

The right to habeas corpus proceedings 4. 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. independent tribunal “fair trial” procedure authority to order release (Winterwerp v. The Netherlands, 1979) (Winterwerp v. The Netherlands, 1979)

The right to habeas corpus proceedings 4. 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. the procedural rights (Garcia Alva v. Germany, 2001): requirement of speediness the right to an oral hearing (public?) equality of arms and adversarial proceedings (limited) the right to access the file the right to legal assistance

Right to compensation 5. Anyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation. within national legislations

Special rights of persons detained on remand 3. 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.

Special rights of persons detained on remand Right to be brought before a judge protection of the individual against arbitrary interferences by the state authorities with his right to liberty protection against ill-treatment

Special rights of persons detained on remand or other officer Right to be brought before a judge - or other officer authorized by law to exercise judicial power independence and impartiality of the authority must have power to order release promptly – the time limit? Up to 4 days (violation in Brogan et al. v. UK, 1989)

Special rights of persons detained on remand right to be released within reasonable time – reasonable time? obligation of national authorities to consider alternatives to detention

RIGHT TO LIBERTY AND SECURITY Art. 5 ECHR Elizabeta Ivičević Karas Faculty of Law, University of Zagrebu