Article 5 | Right to liberty and security of the person
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 corresponding provision in the EU charter, Article 6, is much shorter:
Everyone has the right to liberty and security of the person.
The explanatory notes on the Charter state that the rights in Article 6 have the same meaning and scope as Article 5 ECHR. The limitations which may be imposed on them may not exceed those permitted by the ECHR. The liberty of the subject is within the competence of the EU institutions and engages EU law ever since immigration and aspects of criminal justice have come within the jurisdiction of the European Court of Justice. Furthermore, member states may also arrest and detain persons pursuant to EU law, most often in the fields of immigration and asylum and cross-border cooperation in criminal proceedings. Any domestic proceedings under the European Arrest Warrant will necessarily engage the Charter and its rights.
The right to liberty cannot be absolute and although most of this Article is dedicated to a 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. It is important to note that this list is exhaustive, i.e. there are no other permissible derogations to the right to liberty of the person.
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. As far as detention of people of “unsound mind” is concerned (Article 5(1) (e)), proof of an established mental disorder is not required at the initial taking into detention. For an initial period of assessment, it may be enough that there is some medical evidence, and genuine concern that the person is of risk to themselves or others (SR v Netherlands, Application no. 13837/07) 28 December 2012). Detention for unsound mind will only be lawful under Article 5(1)(e) if effected in a hospital, clinic or other appropriate institution (Aerts v Belgium, 1998 29 EHRR 58).
Those parts of Article 5(1)(d) – (f) that deal with types of administration detention that do not follow a court order, makes it all the more important that the individual has a right to examine the legality of that detention under Article 5(4). Note however that the Strasbourg Court has held that Article 5(1)(f) is distinct from the other forms of detention permitted under (a) – (e) in that detention may not be “necessary” or “proportionate” to secure the deportation or extradition of someone detained in a signatory state, nor to prevent their illegal entry (Chahal v United Kingdom (1997)). The Court needs to retain its legitimacy in the eyes of signatory states by respecting their sovereign right to control their borders and refuse aliens the same general rights to liberty enjoyed by their citizens (Saadi v United Kingdom 2008).
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 review of detention under Article 5(4) was held not to have been breached by the UK government in having so called “closed” procedures when information about a terrorist suspect is not available either to the individual concerned or their lawyers. The special advocate performed “an important role” in counterbalancing the lack of full disclosure and the lack of an open adversarial by putting arguments on behalf of the detainee in the closed hearings. Although in the same case (A v United Kingdom (2009) No. 3455/05) the Grand Chamber found, in respect of some of the applicants, that the closed procedure could not be fair when decisive evidence was contained in the closed material that they had no chance to challenge.