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Deprivation of liberty

Deprivation of liberty Page 51 but the European Convention on Human Rights requires that such powers are consciously exercised upon a case-by-case basis in order to protect against arbitrariness in the application of the law. Therefore domestic law must itself be defined with sufficient precision to protect against arbitrary application of detention powers by the police, and thus substantive provisions of domestic law must not only be ‘adequately accessible’, but also ‘formulated with sufficient precision’ to permit individuals to regulate their behaviour accordingly. 140 The particular relevance for police officers is that any deprivation of liberty must be shown to be strictly justified in the particular circumstances and to have been made in good faith. First, and most obviously, there will be a breach of Article 5 where a detention has taken place without legal foundation in domestic law, for example, where police officers have failed to respect the limits of their authority to detain an individual (but minor clerical flaws in a detention order will not necessarily render the period of detention unlawful as long as the detention is based upon a judicial authorisation). 141 ■ In K.-F. v Germany, the maximum period that police officers could detain an individual to check his identity was twelve hours. However, the individual had not been released for some forty-five minutes after the expiry of this period. This had resulted in a breach of Article 5: the Strasbourg Court considered that the absolute nature of the permissible length of detention had placed police officers under a duty to take all necessary precautions to ensure compliance with the law. 142 Secondly, police officers may not seek to deprive a person of his liberty purportedly for one purpose when the real purpose is different and improper. ■ In Bozano v France, the applicant had been sentenced in his absence to life imprisonment in Italy on kidnapping and murder charges. He had been subsequently arrested in France on unconnected matters. An extradition request had been turned down by the French courts since trial in absentia was regarded as contrary to the rules of French public policy. A month or so after See Sanchez Ramirez v France Commission decision of 24 June 1996 (concerning ‘Carlos the Jackal’) and Öcalan v Turkey, judgment of 12 May 2005 (concerning the leader of the PKK). 140 Steel and Others v the United Kingdom, judgment of 23 September 1998 at paragraph 75. 141 Ječius v Lithuania, judgment of 31 July 2000 at paragraphs 65-69 (regardless of the possible flaws in the wording of the order, its meaning must have been clear to the applicant). But minor clerical errors in detention orders, etc., may in certain circumstances be overlooked: Douiyeb v the Netherlands, judgment of 4 August 1999 at paragraphs 39-55. 142 K.-F. v Germany, judgment of 27 November 1997 at paragraphs 71-73.

The European Convention on Human Rights and Policing Page 52 being released on bail in respect of the other charges, he had been arrested by French police purporting to execute a deportation order and taken to a pre‐arranged rendezvous with Swiss police at the border. The Swiss courts thereafter had extradited him to Italy where he began serving his sentence. The Court ruled that the actions of the French authorities in detaining the applicant could not be brought within Article 5 in view of the secrecy surrounding, and the manner of, the arrest. ‘Lawfulness’, said the Court, implies a lack of arbitrariness. Here, the detention was ‘a disguised form of extradition’ designed to get around the adverse court decision, and was not therefore detention ‘in the ordinary course of ‘action … taken with a view to deportation’’. 143 Thirdly, a police officer must show that not only was the deprivation of liberty authorised by, and in accordance with, domestic law, but that it was also necessary in the particular circumstances. Deprivation of liberty is ‘only justified where other, less severe measures have been considered and found to be insufficient to safeguard the individual or public interest which might require that the person concerned be detained’. 144 This is of fundamental importance to ensure that there is no appearance of arbitrariness in the application of the law. ■ In Witold Litwa v Poland, the detention of the applicant in a ‘sobering-up’ centre had been in accordance with Polish domestic procedures. However, the Strasbourg Court nevertheless found a violation of Article 5 on account of considerable doubts that the applicant had been posing a danger to himself or to others. In any event, no adequate consideration had been given to making use of other available alternatives, and the police could have taken the applicant either to a public care establishment or even back to his home. In other words, while detention was authorised by domestic law, it had been the most extreme of the measures available to deal with an intoxicated person. 145 Question 3: does the deprivation of liberty fall within one of the recognised grounds justifying loss of liberty? Article 5 recognises a number of grounds that may justify the use of deprivation of liberty. Several of these grounds are of relevance to police officers, and are discussed here. Many permit the use of detention with a view to securing 143 Bozano v France, judgment of 18 December 1986 at paragraph 60. 144 Witold Litwa v Poland, judgment of 4 April 2000 paragraph 78; see also Varbanov v Bulgaria, judgment of 5 October 2000 at paragraph 46. 145 Witold Litwa v Poland, judgment of 4 April 2000 at paragraphs 72-80.