6 months ago


Deprivation of liberty

Deprivation of liberty Page 47 The Strasbourg Court has generated a considerable amount of case law, and thus it is possible to discuss the implications of Article 5 for police officers with some confidence. This is so, even although specific cases may be based upon very different criminal justice systems, for it is possible to extract certain principles of general applicability. Question 1: do the facts show that there has been a ‘deprivation of liberty’? The text of Article 5 not only refers to ‘deprivation of liberty’ but subsequently to ‘arrest’ and to ‘detention’. It is at the outset important to note that such words or phrases in the Convention are so-called autonomous concepts, that is, that their interpretation is based not upon domestic law but upon a Strasbourg reading: they do not depend upon domestic legal classification, and nuances of whether a domestic legal system considers an individual under arrest or merely detained or even technically at liberty are not decisive for Article 5. There is thus no meaningful distinction between each of these concepts. On the other hand, Article 5 is not concerned with mere restrictions of movement. In short, before the guarantees of Article 5 come into play, the facts must support a finding that there has been an actual ‘deprivation of liberty’. This must be stressed. Whether an individual has been deprived of his liberty and thus may rely upon the guarantees of Article 5 is dependent upon the facts of each case. In certain instances, this may be self-evident. An individual who is placed in a locked police cell and told he is suspected of committing a criminal offence will clearly have been deprived of his liberty. However, there will be many situations in which the distinction between liberty and detention is not a clear-cut one. Police officers invariably enjoy certain rights incidental to their responsibilities for the detection of crime such as the power to stop and search suspects or to require a witness to remain with an officer while personal details are ascertained; while there may also be situations where a suspect agrees to accompany police officers to a police establishment to help with the investigation of an offence and where the suspect is thus technically a volunteer (even although he in reality acts under a mistaken belief as to his rights or under some feeing of compulsion). Thus whether there has been a deprivation of liberty within the meaning of Article 5 is not always straightforward. The Strasbourg Court has attempted to tease out certain principles, even though there are inherent difficulties in establishing a dividing line between deprivation of liberty and mere interference with freedom of movement as ‘the

The European Convention on Human Rights and Policing Page 48 difference between deprivation of and restriction upon liberty is … merely one of degree or intensity, and not one of nature or substance’. 129 In each instance, the starting point is the applicant’s ‘concrete situation, and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question’. 130 In short, the extent of any compulsion or duress will be of considerable relevance, 131 and thus an individual’s own assessment of whether he or she is deprived of liberty may not be decisive. ■ In X v Federal Republic of Germany, a 10-year-old girl had been taken from her school with two other friends to a police station for questioning about some thefts and kept there for two hours, part of which time had been spent in an unlocked cell. Since the object of the police action was clearly not to deprive the young girl of her liberty but simply to obtain information from her, it was decided that there had been no deprivation of liberty. 132 ■ In Raninen v Finland, the question arose as to what the individual’s legal status had been in the period between the time of his arrival at a military hospital where he had been taken in handcuffs and before his re-arrest at the hospital the following morning. It was argued that the individual had consented to having being brought to the hospital, but the individual asserted that during this time he had been detained against his will and that he had not been free to leave. The Court declined to find that it had been established that there had been a ‘deprivation of liberty’. 133 This case also illustrates that an individual may regain his liberty for a short time after one period of detention and before another. Consequently, a number of discrete elements call for assessment, such as the amount of space in which an individual is confined, the length of such confinement, and the degree of coercion involved, while the nature, length, effects and legal basis of the loss of liberty are also relevant. Temporary detention in order to search an individual will not involve a ‘deprivation of liberty’. But if an individual is handcuffed, placed in a police vehicle and then taken to a police station, there will have been a ‘deprivation of liberty’. 129 Guzzardi v Italy, judgment of 6 November 1980 at paragraph 93. 130 Ibid. at paragraph 92. 131 Riera Blume and Others v Spain, judgment of 14 October 1999 at paragraph 30. 132 Application No. 8819/79, X v Federal Republic of Germany, Commission decision of 19 March 1981. In dealing with the question whether any issue arose under Article 3, the Commission stressed that the applicant was in the station for only a short period, it was not shown that she was affected in any way by the experience, there was no irregularity in the police practice, and she was in the company of two friends. 133 Raninen v Finland, judgment of 16 December 1997 at paragraph 47.