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Article 5: Right to personal liberty & security (5(4): Legality review…
Article 5: Right to personal liberty & security
Purpose: to protect against arbitrary detention
Scope: "Deprivation of liberty"
To be distinguished from restrictions on freedom of movement
Matter of degree
Factors: type, duration, effects, manner of implementation
Should purpose of measure matter in assessment? (
Austin
)
Deprivation in accordance with "procedure prescribed by law"
Domestic legal basis
Law must be accessible
Law must be foreseeable
Positive obligation to protect liberty of citizens
State must take measures providing
effective protection
of vulnerable persons
State must organise
effective investigation
when person is detained
5(1)(a): "lawful detention after conviction by competent court"
Deprivation of liberty must follow directly from conviction
Conviction musn't be criminal
Deprivation must end when terms of imprisonment end
5(1)(b): "detention for failure to comply with an obligation prescribed by law"
Detention for non-compliance with lawful order of a court
To secure attendance in court
Imprisonment to pay fine
Imprisonment to comply with child custody order
Detention in order to secure fulfilment of any obligation prescribed by law (eg failure to pay taxes)
Proportionality test
5(1)(c): Pre-trial detention
By "competent legal authority" = judge or other officer authorised by law to exercise judicial power (// 5(3))
"Offence": must be specific & concrete
Qualification under national law
Nature of proceedings
Severity of penalty
"Reasonable suspicion": facts or info that satisfies objective observer (standard of proof lower than for conviction)
5(1)(d): Detention of minors
Minor: until what age?
For educational supervision
For bringing minor before competent legal authority
5(1)(e): Detention of vulnerable groups
Winterterp
test for detention "unsound mind"
Determination "unsound mind" on basis of objective medical evidence
Detention only for protection of patient or others (not necessarily for treatment)
Detention must be justified on continuing basis
Must be relation between ground of detention relied on & place & conditions of detention
5(1)(f): Detention in connection with deportation or extradition
Deportation: must fit within purpose of Art 5 & not be arbitrary
Extradition: action must be ongoing; no need for justification as in (c), (b) or (e)
5(3): Requirement of being brought promptly before a judge
#
Initial arrest & pre-trial continued detention must be justified on basis of "relevant" & "sufficient" grounds
Risk of absconding
Bail must be considered
Proportionality test
Risk of re-offending (need of concrete proof)
Risk of suppression of evidence
Risk of collusion
Risk of causing public disorder
Need to protect detainee
Detention must not exceed reasonable time => "special diligence" required in investigation (no periods of inactivity!)
Can only be invoked by those detained until "charge" is made (afterwards: 6(1))
5(2): Notification of reasons for arrest or detention
Less demanding than 6(3)(b): info in general terms enough
Case by case
5(4): Legality review
Review must be effective: able to assess conditions essential for lawful detention.
Not automatic
Positive obligation to put in place effective regulatory framework of review (to ensure that those who lack capacity can pursue independent remedy)
Immigration bail proceedings 5(1)(f) outside of scope 5(4)
Must have judicial character
Deprivation must not be arbitrary
Order to detain & execution must genuinely conform with purpose of restrictions permitted (no bad faith!)
Proportionality test
Unacknowledged detention
Most grave violation
Positive obligation to take effective measures to safeguard against risk of disappearance & conduct prompt and effective investigation