Views
6 months ago

EuropeanConventionHandbookForPolice

Deprivation of liberty

Deprivation of liberty Page 45 no less onerous alternatives (that is, not involving loss of liberty) available? Furthermore, this question requires to be asked periodically, for the original justification may soon cease to exist. Article 5 thus imposes accountability for actions of police officers who have deprived an individual of his liberty through scrutinising the lawfulness both of the initial decision to detain and of the continuance of deprivation of liberty. Article 5 refers to ‘liberty and security of person’. But the words ‘and security’ are essentially superfluous, as Article 5 is concerned with loss of personal freedom through detention, that is, ‘freedom from arbitrary arrest or detention’. 124 (The notion of personal ‘security’, though, is not entirely absent, for certain recognised grounds for deprivation of liberty indeed specifically involve detention justified for the benefit of the individual as with detention of the mentally ill, or of alcoholics, or of drug addicts, while other guarantees call upon police officers to take reasonable steps to provide protection against real and imminent threats posed by individuals 125 or counter-demonstrators, 126 or to ensure the effective operation of criminal sanctions to deter assaults. 127 ) Article 5 both specifies the circumstances in which deprivation of liberty can take place, and also provides complementary rights to ensure by means of independent judicial scrutiny that the detention is indeed justified. ■ First, any deprivation of liberty must be lawful or in accordance with the law, and further fall within one of the circumstances prescribed in the six sub-paragraphs of paragraph 1. These make provision for some 15 separate grounds justifying detention, grounds which the text ‘save in the following circumstances’ makes clear are exhaustive. 128 Not all of the grounds will be of relevance to police officers as the text is designed to cover the whole range of circumstances in which State officials may feel compelled to deprive an individual of his liberty. As discussed, certain provisions allow loss of liberty with the aim of protecting the public and at the same time furthering the interests of vulnerable individuals (including detention for the educational supervision of minors, for the prevention of the spread of infectious diseases, 124 See Menteş and Others v Turkey, judgment of 28 November 1997, at paragraphs 78-82 (the applicants withdrew their complaints that the right to security had been violated on account of state action necessitating their leaving their homes after it was established that they had not been deprived of their liberty). 125 For example, Osman v the United Kingdom, judgment of 28 October 1998 at paragraphs 116-121. 126 Plattform Ärzte für das Leben v Austria, judgment of 21 June 1988 at paragraphs 32-34. 127 See for example, A v the United Kingdom, judgment of 18 September 1997 at paragraphs 20-24. 128 Ireland v the United Kingdom, judgment of 18 January 1978 at paragraph 194.

The European Convention on Human Rights and Policing Page 46 and of detention of vagrants or persons of unsound mind or of alcoholics or drug addicts). One sub-paragraph recognises the use of detention to give effect to immigration controls. But from the perspective of police officers, the most relevant on a day-by-day basis will be powers to detain an individual who is suspected of having committed an offence or to prevent a breach of the criminal law. ■ Secondly, the remainder of the text of Article 5 thereafter provides opportunities and techniques for the testing of whether there is sufficient reason for loss of liberty. Thus paragraphs 2 to 4 call for judicial determination of the law fulness of the deprivation of liberty to ensure the detention is – and remains – justified in terms of at least one of these grounds: paragraph 2 requires the giving of reasons upon deprivation of liberty, paragraph 3 provides certain additional protection (including prompt appearance before a judicial authority) for persons detained on suspicion of the commission of an offence or who are thought likely to commit an offence or abscond, and paragraph 4 directs that individuals shall have the right to take proceedings ‘speedily’ to determine whether detention continues to be justified. Again, much of this will be of relevance to police officers: here, the primary issues are likely to be the giving of reasons for loss of liberty, and the question whether detention remains justified even if it was so at the outset of detention. ■ There is also a third and subsidiary aspect of the guarantee, for paragraph 5 provides that in the event of unlawful detention or failure to accord a detainee these procedural rights, an individual must enjoy an enforceable right to compensation in domestic law. From the perspective of the police officer, Article 5 thus calls for consideration of four separate questions: ffFirst, do the facts show there to have been a ‘deprivation of liberty’? ffSecondly, was that deprivation of liberty, ‘in accordance with a procedure prescribed by law’, based on a legal provision, and free from arbitrariness? ffThirdly, does the detention fall within one (or more) of the six permissible categories listed in Article 5? f f Fourthly, have the procedural safeguards provided by paragraphs 2 to 4 been provided (and specifically, has the reason for the loss of liberty been notified)?