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Deprivation of liberty

Deprivation of liberty Page 49 The problems of deciding what is meant by ‘deprivation of liberty’ in the context of policing not involving the detention of suspects but other aspects of policing can be illustrated by three cases in which the circumstances were atypical, but in which the underlying approach to interpretation is easily discerned. ■ In Riera Blume and Others v Spain, the involvement of police officers in the detention of young adults effected with a view to ‘de-programming’ them after they had spent time living as members of a religious sect was considered to have involved a ‘deprivation of liberty’. Applying a test of whether State involvement had been ‘so decisive that without it the deprivation of liberty would not have occurred’, the Court considered that while the ‘direct and immediate’ responsibility for the detention to ‘de-programme’ was borne by the families of the young adults, it was ‘equally true that without the active co-operation of the [national] authorities the deprivation of liberty could not have taken place’. Police officers had first taken the young adults to a hotel, and had subsequently questioned the applicants in the presence of their lawyers. The officers had been aware that the individuals were being held against their will (rather than being subjected to ‘de-programming’ on a voluntary basis as had been suggested by a judge) and had done nothing to assist their release. Accordingly, ‘the ultimate responsibility for the matter complained of thus lay with the authorities in question’ (and since there had been no lawful basis for the detention, the Court concluded that there had been a violation of Article 5). 134 ■ In Nielsen v Denmark, on the other hand, the Strasbourg Court ruled there had been no ‘deprivation of liberty’ within the meaning of Article 5. A 12-yearold boy had been admitted to a psychiatric hospital for treatment of neurosis on the decision of his mother. While the boy had been found and returned to the hospital by police officers on one occasion when he had disappeared, this was not such as to fall within the scope of Article 5 as the crucial point was that hospitalisation had taken place under an exercise of parental authority. 135 ■ In Guenat v Switzerland, police officers had invited an individual who had been thought to be acting abnormally to accompany them from his home to a police station. After various unsuccessful attempts to contact doctors at the clinic where the applicant had been receiving treatment, a psychiatrist had arranged for his compulsory detention in a mental health hospital. The applicant claimed that he had been arrested arbitrarily and detained for some 134 Riera Blume and Others v Spain, judgment of 14 October 1999 at paragraphs 31-35. 135 Nielsen v Denmark judgment of 28 November 1988 at paragraphs 58‐73.

The European Convention on Human Rights and Policing Page 50 three hours in the police station without being given any explanation for his arrest, but the majority of the Commission considered that there had been no deprivation of liberty since the police action had been prompted by humanitarian considerations, no physical force had been used, and the applicant had remained free to walk about the police station. 136 Question 2: was the deprivation of liberty ‘lawful’ and ‘in accordance with a procedure prescribed by law’? Any deprivation of liberty must comply with the law. The text of Article 5 makes this clear, first by requiring that any detention must be ‘in accordance with a procedure prescribed by law’, and secondly, by qualifying each of the six sub‐paragraphs in paragraph 1 outlining the justifiable grounds for deprivation of liberty to the effect that any arrest or detention must be ‘lawful’. It is vital to appreciate that the lawfulness of any deprivation of liberty is tested both in respect of domestic law and also against European expectations that require that domestic law has not been applied in an arbitrary manner, for ‘the very purpose of Article 5 [is] to protect the individual from arbitrary detention.’ 137 There must also have been compliance with procedures laid down by domestic law, for failure to adhere to procedural steps or safeguards laid down in national law will result in a finding of a breach of Article 5, and it will not be possible retroactively to rectify procedural improprieties in the deprivation of liberty. As far as domestic procedures are concerned, the importance of properly maintained custody records is crucial. Police officers must be able to show through documentary or other means that that an apprehension and subsequent detention were in accordance with domestic procedures. 138 Some further discussion of the ‘lawfulness’ of a deprivation of liberty is helpful. 139 As noted, domestic law will inevitably confer wide authority upon police officers, 136 Guenat v Switzerland, Commission decision of 10 April 1995 ((1995) DR 81, 130 at 134). 137 Akdeniz and Others v Turkey, judgment of 31 May 2001 at paragraph 106. 138 Thus Article 5 imposes a duty upon states to ensure the accurate administrative recording of the details of and grounds for detention: Çakıcı v Turkey, judgment of 8 July 1999 at paragraph 105. See also Timurtaş v Turkey, judgment of 13 June 2000 at paragraphs 99-106 (the disappearance of the applicant’s son during an unacknowledged detention disclosed a particularly grave violation of Article 5 in particular because of the lack of a prompt and effective inquiry into the circumstances of the disappearance and the lack of accurate and reliable records of detention of persons taken into custody by police officers). 139 The question of ‘lawfulness’ of a deprivation of liberty may also involve scrutiny of the issue of whether a suspect brought to a country from another was done so in circumstances suggesting the use of irregular procedures, but this falls outside the scope of this discussion.