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Deprivation of liberty

Deprivation of liberty Page 57 ... for the purpose of bringing him before the competent legal authority’ suggests approval of domestic schemes to divert minors from the ordinary criminal process. 161 Detention of persons of unsound mind, vagrants, alcoholics, drug addicts, etc.: Article 5(1)(e) This heading justifies a deprivation of liberty both on public safety grounds as well as to further the well-being of the individual who is detained. Yet certain safeguards against arbitrary detention are implicit. For example, the definition of ‘vagrant’ is primarily a matter of domestic law, as long as this reflects the generally accepted meaning of the term for the purposes of the Convention. 162 Mental health detention cannot be considered as justified if the opinion of a medical expert has not been sought, although in cases of urgency such an opinion may be obtained after the start of the loss of liberty. 163 In relation to policing, the detention of ‘alcoholics’ and ‘drug addicts’ may give rise to particular considerations. ■ In Witold Litwa v Poland, the applicant, who had been behaving offensively while drunk, had been taken to a ‘sobering up’ centre where he had been detained for six-and-a-half-hours. While the normal meaning of an ‘alcoholic’ implied addiction to alcohol, the Court clarified that the term was used in Article 5(1)(e) in a context which includes reference to other categories of individuals who may be deprived of their liberty both to protect public safety and for their own interests, and thus the detention of ‘alcoholics’ could not be restricted merely to persons medically so diagnosed, but had to include detention of individuals ‘whose conduct and behaviour under the influence of alcohol pose a threat to public order or themselves’, and where detention is ‘for the protection of the public or their own interests, such as their health or personal safety’. 164 ■ In Hilda Hafsteinsdóttir v Iceland, the applicant had been arrested and held overnight in custody on six occasions on account of intoxication, agitation and aggressive behaviour towards police officers. Although the Court accepted that the detentions were covered by the sub-paragraph as her behaviour had been under the strong influence of alcohol and could reasonably have been 161 Bouamar v Belgium, judgment of 29 February 1988 at paragraph 48. 162 De Wilde, Ooms and Versyp v Belgium (‘Vagrancy cases’), judgment of 18 June 1971 at paragraph 68. 163 E.g. Herz v Germany, judgment of 12 June 2003 at paragraphs 43-56. 164 Witold Litwa v Poland, judgment of 4 April 2000 at paragraphs 60-63.

The European Convention on Human Rights and Policing Page 58 considered to entail a threat to public order, the quality of domestic law was considered insufficient to meet the tests under Article 5. Domestic law was not sufficiently precise as to the type of measures that the police were authorised to take in respect of a detainee, nor was the maximum authorised duration of detention specified. While internal police instructions elaborated more detailed rules on the discretion which a police officer enjoyed in ordering detention, the instructions did not permit detention in cases of mere intoxication if an alternative measure could be used. The key issues were that the exercise of discretion by the police, and the duration of the detention, had thus been governed by administrative practice rather than by a settled legal framework. As a result, the law was neither sufficiently precise nor accessible enough to avoid the risk of arbitrariness, and thus the applicant’s deprivation of liberty had not been ‘lawful’. 165 Illegal immigration, deportation and extradition: Article 5(1)(f) Article 5(1)(f) provides for ‘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’. There are thus two ‘limbs’ to the provision. Detention must be shown to fall under either the first limb (that is, unauthorised entry) or the second (deportation or extradition) and not merely to prevent flight or for any other covert aim. 166 Question 4: has a detained person been accorded the required procedural safeguards? The remainder of the text of Article 5 provide a range of guarantees to ensure that an individual can challenge the lawfulness of his loss of liberty, and therefore protect against arbitrary loss of liberty. The key issue is that they require certain positive steps to be taken by police officers, including a general requirement to protect against unwarranted deprivation of liberty by ensuring that the continuation of detention is, at all times, justified. A crucial aspect of the guarantee is the availability of procedural safeguards such as the rights to have notification of the reasons adduced by the authorities and to commence proceedings to test the legal basis of the detention. Where the deprivation of liberty involves suspicion of having committed an offence or where it is reasonably considered necessary to prevent the commission of 165 Hilda Hafsteinsdóttir v Iceland, judgment of 8 June 2004 at paragraphs 51-56. 166 Bozano v France, judgment of 18 December 1986 at paragraphs 53-60.