9 months ago


Deprivation of liberty

Deprivation of liberty Page 59 an offence or the flight of a perpetrator, the article additionally guarantees the right to be brought promptly before a judge or other judicial officer who must consider whether there are reasons which would justify the continuation of the detention rather than ordering release on bail; if release pending trial is refused, the detainee has the right to challenge the continuation of detention at subsequent intervals and ultimately to trial within a reasonable time. These rights are positive entitlements which State authorities must specifically provide, whether or not a detained person so requests. 167 The right to be informed promptly of the reason for the detention: Article 5(2) Where a person is taken into custody, Article 5(2) provides a person arrested must be ‘informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.’ This at first glance appears to overlap with the provisions of Article 6(3)(a) which provides that a person charged with a criminal offence must be ‘informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him’. But the interpretation of each provision is influenced by its particular aim; and since the ultimate purpose of Article 5 is the protection from arbitrary loss of liberty, 168 Article 5(2) seeks to allow the lawfulness of the deprivation of liberty to be tested (rather than as with Article 6(3)(a) which requires a detainee is provided with ‘sufficient information as is necessary to understand fully the extent of the charges against him with a view to preparing an adequate defence’). 169 ffit is important to appreciate that the words used by the drafters have a meaning not dependent upon domestic law: the reference to ‘arrest’ extends to all deprivations of liberty and not just to a person suspected of committing an offence. 170 ffthe giving of information must be assessed independently of its utility: in other words, the fact alone that information is not in practice sufficient to allow applicants to lodge appeals does not mean that the requirements of paragraph 2 have not been satisfied. 171 167 Aquilina v Malta, judgment of 29 April 1999 at paragraph 47. 168 K.-F. v Germany, judgment of 27 November 1997 at paragraph 63; and Erkalo v the Netherlands, judgment of 2 September 1998 at paragraph 56. 169 Mattoccia v Italy, judgment of 25 July 2000 at paragraph 60. 170 X v the United Kingdom, judgment of 5 November 1981 at paragraph 66. 171 Čonka and Others v Belgium, judgment of 5 February 2002 at paragraphs 50-52.

The European Convention on Human Rights and Policing Page 60 the content, manner and time of notification are important. The legal basis for the detention together with the essential facts relevant to the lawfulness of the decision must be given in ‘simple, non‐technical language’ that an individual can understand. 172 These requirements cannot be abridged merely because an individual is considered unable or unsuitable to receive the information, and in such a case, the details must be given to a representative such as his lawyer or guardian. 173 ffin relation to a deprivation of liberty on suspicion of involvement in an offence, an individual must be given more than the mere indication of the legal basis for the detention, 174 although paragraph 2 does not imply any duty to make the individual aware of the grounds for the suspicion. 175 While the information must be given promptly, ‘it need not be related in its entirety by the arresting officer at the very moment of the arrest’. 176 Some discussion of Strasbourg Court case law shows the situations that may arise: ■ In Delcourt v Belgium, the arrest of a French-speaking individual on the authority of a warrant in Flemish was considered not to have breached this requirement since the subsequent interview had been in French and it could be assumed that the reason for the arrest had been known to the applicant. 177 ■ In Ireland v the United Kingdom¸ following instructions given to military police officers, detainees had not been informed of the grounds for the deprivation of their liberty but had merely been advised they were being held pursuant to the provisions of emergency legislation. This was insufficient to meet the requirements of Article 5. 178 ■ In Fox, Campbell and Hartley, in contrast, individuals were only given the most minimal information as to the legal basis for their detention, but within a few hours had been interrogated at length as to their suspected involvement 172 Fox, Campbell and Hartley v the United Kingdom, judgment of 30 August 1990 at paragraph 40. 173 X v the United Kingdom, Commission Report of 16 July 1980 at paragraphs 102-108. 174 Murray v the United Kingdom, judgment of 28 October 1994 at paragraph 76. 175 McVeigh, O’Neill and Evans, Commission Report, 18 March 1981, DR 25, p. 15. 176 Fox, Campbell and Hartley v the United Kingdom, judgment of 30 August 1990 177 Cf Egmez v Cyprus, judgment of 21 December 2000 at paragraph 85 (detention of a Turkishspeaking individual who could also understand Greek on suspicion of drug trafficking by Greek-speaking officials who had been arrested in flagrante delicto, had expressly been informed of the suspicion against him on at least two occasions while in hospital, and by police officers who had interrogated him, one of whom spoke Turkish: no violation). 178 Ireland v the United Kingdom, judgment of 18 January 1978 at paragraph 198.