Article 5

Article 5 | Right to liberty and security of the person

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Art.5 of the European Convention on Human Rights provides as follows:

(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 fulfillment 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.

(2) 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.

(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.

(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.

(5) 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 first part of Art.5 governs all situations where people are deprived of their physical liberty; this can extend from detention for less that two hours for the purpose of deportation (X & Y v Sweden Application No.00007376/76) to the holding of a patient in an open ward of a mental hospital (Ashingdane v United Kingdom (1985) 7 EHRR 528), as well as the more obvious situations involving arrest for criminal offences.

The reference to the “liberty and security of the person” means simply that the arrest must not be arbitrary; individuals should be “secure” from the unexplained and unlawful actions of the State: Bozano v France (1986) 9 EHRR 297.

The right to liberty cannot be absolute and the rest of the Article is dedicated to an exhaustive list of conditions under which a person’s liberty can lawfully be curtailed. Each of these permissible forms of detention depends for its legitimacy on the availability of review. In other words, there must be periodic scrutiny of the legality of the detention by an independent court or tribunal