Right to Liberty and Security

Introduction

Article 5 of the European Convention on Human Rights provides the right to liberty and security of person. On of the most fundamental concepts is the right to our own self and ability to be free in a society. The right to liberty and security is made up of five specific rights and concepts, Article 5(1) states:

Article 5(2) states:

Article 5(3) states:

Article 5(4) states:

Article 5(5) states:

Article 5 is one of the most cited rights under the Convention and is one of the rights, along with Articles 3, 8 and 14, most claimed to have been breached by the state. This is because Article 5 is engaged by default anytime the state exercises any element of control over a persons physical autonomy (such as being arrested by the police, detained in hospital, sent to prison or being under a court ordered deprivation of liberty). With over 600,000 arrests by police in 2022, over a quarter of a million new DoLS authorisations in 2022, 80,000 individuals detained in prisons and over 50,000 new detentions under the Mental Health Act in 2021, it is clear to see the sheer importance of this right.

Meaning of “Deprivation of Liberty”

In the case of Engel v the Netherlands (1976), the European Court of Human Rights (ECtHR) held that liberty:

In De Tommaso v Italy (2017), the ECtHR Grand Chamber restated that:

In the simplest explanation, a deprivation is more than just a mere or transient restriction on ones own physical liberty, though a very lengthy or extreme restriction could amount to a deprivation. An example of a restriction that does not amount to a deprivation, would be the police stopping your car from continuing on the motorway whilst they deal with an emergency situation or cordoning off a large area in a public space due to a bomb threat. Such situations, so long as they are “unavoidable as a result of circumstances beyond the control of the authorities and are necessary to avert a real risk of serious injury or damage, and are kept to the minimum required for that purpose”[1], cannot amount to a deprivation of liberty.

In Starck v Germany (2005), the ECtHR noted that there are two stages to assessing a deprivation of liberty. Firstly, there must be an objective confinement of some kind and, secondly, there must be a subjective lack of consent to that confinement. That being said, the use of handcuffs, a cell or other physical restraint is not a necessary factor for there to be a deprivation of liberty.

A deprivation of liberty will arise in the following circumstances:

• Arrest
• Detention in a prison
• Being sectioned under the Mental Health Act
• Being subject to DoLS
• Being transported by paramedics and police to hospital
• Confinement in airport transit zones
• Confinement in land border zones
• Police questioning in a police station
• Placement in a police car/van in numerous circumstances
• Police stop and searches
• House searches
• Police escorts
• Public order crowd control measures (commonly known as ‘kettling’)
• Being under house arrest
• National lockdowns due to a pandemic

Breach of Article 5(1)

Notwithstanding Article 5 being engaged in the above mentioned circumstances, this does not mean there has been a breach of these rights. There are clear provisions within Article 5(1) that provide for lawful restrictions on this right. Article 5(1) is in place to prevent any arbitrary or unjustified deprivations of liberty, where such a deprivation occurs, there is almost certainly a breach, but not all deprivations are arbitrary or unjustified.

Further, any deprivation must comply with a procedure that has been prescribed by law. This most commonly refers to the national law of the country where the deprivation occurs, however, it can also mean international and supranational law such as EU law (such as would be the case where Europol or ICC arrest warrants are concerned). An example of where there would be a breach of Article 5(1) under the legal compliance head, would be where the police have detained a suspect for 24 hours and then continue to detain that suspect for longer without applying for formal extension under s.42 PACE Act 1984. Further, just because the deprivation complies with the black letter of the legal procedure, that does not mean it complies with the substance of the Convention and so would still be a breach.

The deprivation of liberty but also have a certain basis in law, that being a clear definition and foreseeable application of such a deprivation. Clearly defined does not necessarily mean understandable by anybody, even in cases where the law is complex, so long as legal advice could clear up any confusion, this would still be considered to be clear and defined for the purposes of the ECHR. A clear example of where Article 5(1) would be breached under this head, would be for a person to be arrested for a crime that does not exist or is not recognised in that country. A breach would also occur where there is a legal basis, but this is applied without any sense of foreseeability, for example, if the law states that ‘any person on an aeroplane can be detained if they are suspected of smoking’, it would be a breach to then arrest somebody who was smoking and stepped on a paper aeroplane, as this situation is so absurd that nobody reading that law would assume it to mean a situation such as this.

As stated above, if the deprivation is arbitrary, this will amount to a breach. Arbitrariness, however, does not mean arbitrary under domestic law, rather, under the Convention itself. As such, the law could be perfectly clear and unambiguous, but if it applied by a literal roll of the dice (imagine the government spinning a wheel with 100 different characteristics on it and then only detaining those who the wheel lands on despite all technically being covered by the law). Whilst such a circumstance is a very far fetched example, it illustrates the type of arbitrariness the court use. The ECtHR have held deprivation to be arbitrary where:

• There is bad faith or deception by the authorities in detaining a person
• Where the detention did not conform to the purpose of the exceptions in Article 5(1)
• Where a person is detained in a place that is not reasonably foreseeable despite the ground of detention being lawful (such as a mental health patient being detained in a Category A prison)
• Where a person is disproportionately detained despite the ground of detention being lawful (such as a person detained for the purpose of a mental health assessment being transported in a police van to a hospital 5-hours away when there are much closer ones available)
• A judicial decision to detain a person which fails to reference any legal provision for the detention

A breach of Article 5(1) can occur where, following an entirely lawful detention, there is sufficient delay in bringing this to an end. Notably, this would occur where a person has served a prison sentence and is then detained in custody longer than that sentence permits. That being the case, there are exceptions for small delays that inevitably occur, however, these must be kept to an absolute minimum. The ECtHR have held that delays of up to 7 hours (in contextual circumstances) are acceptable, but delays of 11 hours (again in contextual circumstances) are not.

It would, however, still be a breach of Article 5, even if all elements above were complied with, if the detention was not for one of the specific reasons authorised within Article 5(1) as follows below.

Article 5(1)(a) Detention After Conviction

The first of the authorised reasons is the detention of a person following a conviction by a competent court. This head can be broken down into three sub-requirements: (i) the existence of a conviction; (ii) conviction by a competent court; and (iii) the detention follows the conviction.

(i) Existence of a conviction

The word conviction does not necessarily mean a criminal punishment, there is no distinction made in law between a criminal conviction or a disciplinary measure of some other kind. It includes both a finding of guilt and the imposition of a penalty/measure that involves a deprivation of liberty/

In Khamtokhu and Aksenchik v Russia [2017], the ECtHR stated that:

As such, the length or severity of the sentence imposed is not a matter that falls under Article 5.

Interestingly, a country can detain somebody following a conviction by a foreign judicial body. This is the case even if the state has not verified the judicial proceedings in the foreign jurisdiction were compatible with Article 6 (the right to a fair trial), though there is an extreme limitation that the conviction cannot be completely bare of justice. However, this does present the position that a person can lawfully be detained in Britain for a conviction that was in breach of the right to a fair trial.

(ii) Competent court

A court must be a body which exhibits the fundamental features of such a judicial body, most important of which is independence. Additionally, a court must also be a body which guarantees judicial procedure.

Any body must be more than advisory in nature and must have competence to decide the lawfulness of the deprivation of liberty and have the ability to discharge that deprivation if it is found to be unlawful.

The body must be one which is established by law.

(iii) Detention following conviction

The detention not only has to be after the conviction in time, but rather it must be a consequence of the conviction. In James, Wells and Lee v the UK [2012], the ECtHR held that:

What this means is that there exists a situation where enough time passes between the initial cause of detention and the actual detention, that this causal link can be broken. The courts have held this to be the case where a preventative detention is extended to a degree where the initial aim (that being to prevent something) becomes perverse and Article 5 breached.

In Klinkenbuss v Germany (2016), the ECtHR held that, where a prisoner is continually detained on the grounds that they present a risk of reoffending if they are released, but, there is no sufficient facility by which the prisoner can prove their suitability, such as through a suitable course or application of therapy, then there will likely be a breach. This raises interesting questions in respect of prisoners in the UK who are serving IPP sentences.

After conviction does not mean after ‘final’ conviction, as such, a person can be detained following their conviction in a Magistrates’ or Crown Court, even if they have significant appeal routes left open and even if those appeals appear (and eventually prove) to be successful.

Detention following conviction includes detention in a secure hospital under Part III of the Mental Health Act 1983.

Article 5(1)(b) Detention for Non-Compliance with Court Order or Legal Obligation

The second of the authorised reasons is the detention of a person following breach of a court order or in order to secure the fulfilment of a legal obligation. This head is made up of two separate limbs: (i) non-compliance with a court order; and (ii) to secure fulfilment of a legal obligation.

(i) Non-compliance with a court order

This head is purposefully distinct to (a), that being detention following a conviction, as it assumes that the person must have had an adequate opportunity to comply with the order of the court or could have made a choice not to breach the order.

A key requirement under this head is that the person must have been informed of the court order against them, as such, a person who has an ex parte order made against them and is either not notified, or there is a significant delay in notification during which time that person breaches the order, then there can be no lawful detention of that person due to a breach of the order.

There is a balancing test under Article 5(1)(b)(i), the order of the court must have a proportionate purpose, feasibility of compliance, and duration. It may be best to see this as a form of a reasonableness test, in that, the deprivation of liberty that may follow ought to be a reasonable consequence considering the context of the order. For example, it would likely breach Article 5(1)(b) if a family court, as part of an injunction or non-molestation order, required a party to move 250 miles from their home and then, understandably in breach of that order, that party fails to do this and is indefinitely detained in prison.

The court have held that Article 5(1)(b)(i) is engaged (but not necessarily breached) in the following circumstances:

• Imprisonment after failing to pay a very minor court fine (breach)
• Detention for a psychiatric exam as part of a civil suit (no breach)
• Use of force to transport a person to a medical facility to have a blood test against their will for the purpose of a paternity test (no breach)
• Detention for a failure to observe residence conditions/occupation order (no breach)
• Detention for a failure to hand over children to their parent (no breach)
• Detention for a failure to abide by an order to pay a sum into court as part of a criminal process (no breach)
• Detention following breach of bail conditions (no breach)
• Confinement into a psychiatric hospital (breach and no breach depending on the circumstances)

(ii) To secure fulfilment of a legal obligation

This head evidently requires that there is a legal obligation that has gone unfulfilled by the person in question and that their deprivation of liberty is for the purpose of securing said fulfilment. As this is a very confined head, the deprivation is also confined solely to the fulfilment of the obligation and, as soon as this is satisfactorily fulfilled, the deprivation must cease.

The principles for this legal obligation are similar to the overarching Article 5(1) principles discussed above, including the lack of arbitrariness and prescribed for by law. But further to this, the ECtHR in Ciulla v Italy (1989) ruled that the obligation must be of a specific and concrete nature. They went further in several more recent cases, ruling that where there was a wide interpretation of the legal obligation, this would not be specific and concrete and therefore would be incompatible with the rule of law; consequently resulting in a breach of Article 5(1)(b).

The court have held that Article 5(1)(b)(ii) is engaged (but not necessarily breached) in the following circumstances:

• Detention to submit to a security check on entry to a country following non-compliance (no breach)
• Lengthy detention to ascertain a person’s identity following refusal (breach)
• Lengthy detention in a psychiatric hospital to obtain a psychiatric report following failure to consent (breach)
• Lengthy detention in police custody having failed to leave a specified area when asked (breach)
• Lengthy detention in police custody having failed to provide a witness statement (breach)

What is extremely important to note about these cases, is that the length of the detention is the deciding factor in the vast majority of them, the court have consistently noted that, had the periods of detention in the above matters been a much more reusable time, there would not have been a breach despite the exact same circumstances.

Article 5(1)(c) Detention in Custody on Remand

The third of the authorised reasons, whilst simply referred to as remand, specifically allows for detention to secure a person’s attendance at court where there is reasonable suspicion that they have committed an offence. This head has two distinct elements, both of which must be present: (i) the detention is for the purpose of bringing the person before a lawful authority; and (ii) there is reasonable suspicion that person committed the offence alleged.

(i) Purpose of bringing the person before a lawful authority

Article 5(1)(c) only applies to criminal proceedings and where the person is to be brought before a competent criminal authority (most often a court). A pre-trial detention can be justified under this heading on the grounds that there is a reasonable suspicion (see below).

Article 5(1)(c) does apply to a situation where a person is detained in order to prevent them from committing an offence. The court have been very careful to state this does not allow for any policy or general application, rather, it is a power which exists for those genuine cases where there is a concrete and specific offence that is being targeted. In S, V and A v Denmark (2018), the Grand Chamber of the ECtHR noted that it:

This does not require that the police have enough evidence to bring charges at the time of arrest, rather, enough evidence to justify questioning and investigation in such a manner.

Any detention on remand must be a necessary one, as such, the authorities must prove that the person needs to be detained pending trial. In the UK, there are three main heads used to argue such a remand detention: i) risk of further offending; ii) risk of interfering with witnesses; iii) risk of absconding. If a less severe measure exists, such as electronic tagging, this must be implemented rather than detention.

(ii) Reasonable suspicion

In Selahattin Demirtaş v. Turkey (no. 2) [2020], the Grand Chamber stated in regards to reasonable suspicion that:

It therefore stands that, should the authorities fail to make genuine inquiries into the facts of the case with a view to establishing whether the complaint is legitimate, a violation of Article 5(1) will have occurred. However, the ‘degree’ of reasonable suspicion required is lower than that needed to convict or bring a charge and so is not a high bar to pass. Though it is worth noting, the suspicion must be continual and if at any point it becomes apparent that there is no longer such suspicion, the person can no longer be detained.

An example of how much the facts of the case influence reasonable suspicion can be seen by contrasting the cases of Labita v Italy (2000) and Talat Tepe v Turkey (2004), in the former, an anonymous witness gave hearsay evidence against the defendant and this was found not to meet the bar of reasonable suspicion; however, in the later, statements that were several years old and subsequently withdrawn by the suspects, was still held to meet the bar.

Article 5(1)(d) Detention of a Minor

The fourth reason authorised under Article 5 is to allow for the detention of a minor for the purpose of educational supervision or (similar to reason (c) above) to bring that minor before a competent authority. This reason is more easily understood when considered in three heads (i) general requirements; (ii) educational supervision; and (iii) competent legal authority.

(i) General Requirements

In Koniarska v the UK (2000), it was held (though had long been convention within many European states) that the definition of a minor was any person under the age of 18.

(ii) Educational Supervision

Most cases dealt with under Article 5(1)(d) concern educational supervision. This is quite a low bar and the threshold test is simply whether the deprivation is in the best interests of the minor, notwithstanding that the minor may not have committed any offences or that they are not an ‘at risk’ child. “educational supervision” is not so rigidly understood to mean teaching within a classroom, though, it does require a similar understanding of an exercise of parental responsibility by the education authority for the benefit of the minor (DG v Ireland (2002)).

It is not permissible under Article 5(1)(d) to detain a minor in order to correct behaviour or to seek to prevent delinquency or anti-social behaviour as was held by the Grand Chamber in Blokhin v Russia [2016]. It is permissible to detain a minor in an interim custody if this is speedily followed by detention (or application for detention) within a sufficient education facility – There is no standard time that is acceptable, in DK v Bulgaria (2020), a period of two-days detention in a crisis centre was held lawful under Article 5(1)(d).

Educational supervision does not require an isolated or prison like facility and such an institution must be one of absolute last resort in order to prevent serious risk to the development of the minor.

In Ichin v Ukraine (2010), the court held that a juvenile holding facility itself does not constitute educational supervision, there has to be educational activities provided for it to come within this scope.

(iii) Competent Legal Authority

The third limb, similar to (c) above, is in respect of lawful detention to be brought before a competent authority, however, it is aimed solely to be utilised where the minor needs to be detained to be brought before civil or administrative authorities. If the authority is criminal, only reason (c) above can be utilised.

However, in X v Switzerland (1979), the court held that sub-paragraph (d) can be used to detain a minor who has been accused of a crime for the purpose of the preparation of a psychiatric report. It therefore appears that quasi-criminal matters can fall within the remit of this head.

Article 5(1)(e) Detention for Medical or Social Reasons

The penultimate authorised reason under Article 5 is for medical or social reasons, this is a broad heading and can be utilised in numerous situations for the public benefit. This reason can be explored under four distinct heads (i) preventing infectious disease; (ii) detention of persons of unsound mind; (iii) detention of addicts; and (iv) preventing vagrancy.

(i) Prevention of the Spreading of Infectious Diseases

Prior to covid, this head was utilised more sporadically, however, it became exceptionally relevant with the implementation of numerous national lockdowns from 2019 to 2021. The key case on this matter is Enhorn v Sweden (2005), in which a man who had contracted HIV had severe restrictions placed on his liberty, including eventual detention in isolation for several years, so as to prevent him from engaging in unprotected sex with others and risking the spreading of the virus.

The court found that:

The Swedish government argued that they attempted several voluntary measures to prevent the spread of the disease, including requiring the applicant to notify any partner of his condition and requiring him to use condoms, some of the more unusual requirements included the applicant being unable to get drunk. Nonetheless, the court held that indefinite detention of the applicant was not a measure of absolute last resort and his Article 5(1) rights had been violated.

In Terhes v Romania (2021), Article 5(1)(e) was considered in the sense of national covid lockdowns. In the case, several restrictions on movement were implemented in Romania, including ordinance issued against being in public at certain times and later at all times with some limited exceptions. The court held that:

(ii) Detention of Persons of Unsound Mind

One of the most engaged heads second to detention following conviction. A “person of unsound mind” is not precisely defined. It does not require so high a bar such that the person is beyond all criminal responsibility (insanity), however, it must also be such that the person is not just simply deviating from societal norms (engaging in taboo behaviour).

In Ilnseher v Germany [2018], the Grand Chamber concluded that a person who is of unsound mind cannot be deprived of their liberty unless the following three conditions are met:

• the individual must be of unsound mind as demonstrated by a reliable and objective medical expert (unless an emergency detention is required);
• the cause of the unsoundness of mind must be of such a severity or kind as to require confinement;
• the cause of the unsoundness of mind must be present throughout the detention.

It would be a breach of Article 5 to deprive a person of their liberty due to suspected unsoundness of mind without first consulting a medical expert. Where there is no other possibility, such as if the person does not cooperate with an assessment, an assessment must nonetheless be carried out on the facts as known such as medical records or prior detentions.

A person can, in theory, be detained lawfully even where no medical treatment is envisaged or possible (N v Romania (2017)), but this can only occur in the most severe of cases and is a situation that some states do not allow to occur despite it being acceptable under the Convention. Recently, the court held that there must be a therapeutic purpose of detention, whilst this does not require treatment, it does require that there will be some purpose aimed at alleviating their condition (Rooman v Belgium [2019]).

There is no requirement for the state to take into account acts committed by the person in considering their unsoundness of mind i.e. a person without any past history is perfectly capable of being deprived of their liberty, however, past acts can be utilised as evidence. Further, it was held in Luberti v Italy (1984) that, despite any past acts or lack thereof, where evidence points to recovery, deprivation of liberty cannot continue for purely administrative reasons.

A matter of increasing relevance in many states is that of availability of resources. Detention must be within a hospital or clinical environment and not within a traditional prison estate, and, if there is a lack of space or resources in such institutions, a person cannot lawfully be detained within a prison (Sy v Italy (2022)). Temporary detention in a non-specialised facility is permissible if it is not for an excessively long period.

It is essential that any person whose liberty is at risk or is being restricted has access to a judicial mechanism in order to challenge their detention or deprivation of liberty. It is therefore implied, that any such person must have the right to receive legal assistance in respect of these matters.

(iii) Detention of Alcoholics and Drug Addicts

Any person, even those not medically diagnosed as having an addiction, whose conduct or behaviour under the influence of a substance is such that it poses a threat to any other person or themselves, can be detained for the protection of the public and their own health and wellbeing.

That being said, the converse is also true, in Petschulies v Germany (2016), the court stated that:

As such a person who is an alcoholic or a drug addict cannot be detained or deprived of their liberty simply by virtue that they are an alcoholic or drug addict. There must be some necessary reason that makes deprivation of liberty a proportionate response.

(iv) Prevention of Vagrancy

As with some provisions under the Convention, considering it was drafted in 1950, this is one which has become quite outdated, resulting in a scarcity in case law. It is lawful for a person to be deprived of their liberty if they are a) of no fixed above, b) without means of subsistence, and c) with no regular trade (De Wilde v Belgium (1971)). However, it is likely that, considering the social elements in respect of lawfulness, necessity, and proportionality required under any deprivation, that this head will unlikely be utilised by many states.

Article 5(1)(f) Detention for the Purpose of Preventing Illegal Immigration

The final reason under which a deprivation of liberty may be authorised under Article 5 is in aid of the control of unlawful immigration. This reason is separated into two distinct heads (i) preventing unlawful entry; and (ii) enabling deportation.

(i) Detention to Prevent Unauthorised Entry into Country

States have control over the liberty of foreign nationals within the context of immigration. A person may be detained if they are an asylum seeker or other immigrant prior to the determination by the state as to whether that person have their entry authorised, however, the detention must not be arbitrary.

In order to be free from arbitrariness, it was held in Saadi v the UK [2008] that:

Whilst it is not expressly against Article 5, the court has stated reservations about automatic detention of any asylum seeker without an individual assessment of needs. However, where there are mass arrivals at State borders, limited periods of mass confinement are permissible on the grounds that this is likely necessary to examine the applications of all those seeking asylum speedily (ZA v Russia [2019]).

(ii) Detention with a View to Deportation or Extradition

This head is solely concerns with deportation, as such, there is no requirement for the reason for deportation itself to be justifiable under domestic law or under the Convention (Chahal v the UK (1996)). Domestic law may however still require necessity.

Detention can still be considered inappropriate by the court, particularly in the case of those who are ill or of a vulnerable age. Where a child is concerned, the deprivation must be so as to secure the family’s removal and the detention of the child must be a measure of last resort – It was held in AB v France (2016) that there is a positive obligation on the state to explore other measures.

In Khlaifia v Italy [2016], the court held that:

There must be a consideration as to whether deportation is realistic, for example, it is likely to be unlawful to detain a person with a view to deportation if that person has a very strong claim under the Refugee Convention.

In its assessment of whether domestic law provides sufficient procedural safeguards against arbitrariness, the Court may consider the existence or absence of time-limits for detention as well as the availability of a judicial remedy. However, Article 5(1)(f) does not require States to establish a maximum period of detention pending deportation or automatic judicial review of immigration detention. The case-law demonstrates that compliance with time-limits under domestic law or the existence of automatic judicial review will not in themselves guarantee that a system of immigration detention complies with the requirements of Article 5(1)(f).

In respect of extradition, Article 5 contains no provision as to the procedure for the extradition. As such, provided the extradition is agreed via cooperation between States and there is a legal basis for the arrest (even an atypical one) Article 5 is unlikely to be breached (Ocalan v Turkey [2005]). The requirement for cooperation between the States is more so prominent where one State is not a signatory to the Convention.

In Gebremedhin v France (2007), the court held that:

Meaning that, even if the State decides not to extradite the person, they may still continue to be deprived of their liberty.

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Conclusion

In short, Article 5 is an extremely broad Convention right, as such, it is often one of the most cited Articles and will almost always play a part in cases concerning the detention or specific restrictions of a person, whether this be in a criminal, educational, or healthcare context. It establishes crucial safeguards for individual liberty and freedom and sets out the fundamental right to security of person, protecting individuals from arbitrary arrest, detention, and unlawful deprivation.

Its significance lies in the fact that it establishes clear limitations and conditions under which restrictions on personal freedom can be imposed, emphasising the principles of legality, necessity, and proportionality. This article acts as a fundamental guarantee against abuses of power, promoting the values of justice, fairness, and human dignity.

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