Safeguarding Liberty and Security

Overview of Article 5

Article 5 of the ECHR protects the right to liberty and security of the person and provides that except under the conditions provided in Article 5 itself, this right shall not be denied to anybody. The overarching principle is that the right to liberty and security can only be limited under an established legal procedure. HRM dissertation help Article 5 allows lawful detention of persons provided that the detention is under the conditions mentioned in the provision itself and as per the procedure established by the law. Article 5 also explains the conditions relating to the procedure established by law, including the provision of judicial oversight over detention [Article 5(3)], trial within reasonable time [Article 5(3)], Speedy trial [Article 5(4)], right to be released in case of unlawful detention [Article 5(4)], and right to be compensated for unlawful detention [Article 5(5)]. One of the areas that has continued to engage Article 5 rights is that of detention of individuals. Consequently, there is significant literature on how Article 5 addresses such detentions as well as the development of jurisprudence under Article 5 by the European Court of Human rights. This essay discusses two articles and two ECtHR judgments related to detention within the context of the rights protected by Article 5.

Academic perspective

An article by Langford and Bryan argues that the protections against detention are not as strong under ECHR Article 5 for nonnationals. Article 5 itself allows detention under the permissible exceptions and the jurisprudence developed by the European Court of Human Rights (ECtHR) has allowed states to get an upper hand by making laws that allow them to detain entry-seeking non-nationals without criminal charge or trial without attracting the protections under Article 5(1)(f ). The argument made by the authors is that the present jurisprudence of the ECtHR gives disproportionate preference to the interest of the states in managing migration flows and therefore compromises the protections sought to be offered by Article 5. Irrespective of the protections afforded by Article 5 to nonnationals, as the article is addressed to anyone who may find themselves within the boundaries of a state, are treated as subservient to the interest of the state and the use of the margin of appreciation doctrine allows the states to make laws that are able to detain individuals on the ground of national interest.

Richard Stone explains the meaning of ‘deprivation of liberty’ under Article 5 of the ECHR by using the jurisprudence developed by the ECtHR and the courts in England and Wales. He explains administrative detention as detention by the executive not including instances of detention outside the criminal justice process. Stone argues that the law on administrative detention and human rights involved in such detentions has been well developed by the courts under Article 5. He also argues that there is still some continuing uncertainty with regard to human rights involved in administrative detention despite the law that has been developed so far. Compared to areas such as stop and search and control orders, which are also related to Article 5 rights, it is argued that the law on administrative detention is much more developed. Stone discusses important judgments of the ECtHR including Guzzardi v. Italy, to demonstrate how the ECtHR has developed the jurisprudence on Article 5 and detention of individuals.

Judicial approach

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1. Peter Langford and Ian Bryan, ‘The Lawful Detention of Unauthorised Aliens under the European System for the Protection of Human Rights’ (2011) 80 (2) Nordic Journal of International Law 193.
2. Ibid.
3. Richard Stone, ‘Deprivation of liberty: the scope of Article 5 of the European Convention on Human Rights’ (2012) 1 European Human Rights Law Review 46.
4. Guzzardi v. Italy Series A No 39 (1980).

Brogan v United Kingdom is an important case decided under Article 5, and one which was to have much impact on the United Kingdom anti-terrorism detention regime. Brogan was the result of four different applications against the United Kingdom. All of the four applicants had been detained under the anti-terrorism law related to the Northern Irish insurgency, the Prevention of Terrorism (Temporary Provisions) Act 1974. The law allowed the detaining authorities to arrest and detain individuals on suspicion of involved in terrorist activity. The principal issue before the court was whether the detention of the individuals under the said law were lawful under Article 5 of the ECHR. The applicants argued that the detention was unlawful because it contravened the provisions of Article 5, which require the detention to be subject to judicial oversight and trial within a reasonable period of time. Other provisions of Article 5 were also engaged by the applicants. The court held the detention of the applicants to be unlawful as they were in contravention of Article 5. In particular, the court held that Article 5(3), which requires judicial oversight, when read with Article 5(1)(c), which provides that lawful arrest or detention on reasonable suspicion, would require that even if the arrest or detention is lawful and on reasonable suspicion, and under a procedure established by the law, judicial oversight would be necessary for its lawful continuity. The Prevention of Terrorism (Temporary Provisions) Act 1974 allowed detaining authorities to hold individuals for up to seven days without such judicial oversight. The principal ground on which the applicants’ arguments were accepted was that the detention was for more than 48 hours while not allowing judicial oversight. The court provided that Article 5(3) was clearly contravened because a detention of more than 48 hours could not be justified under the article, without prompt appearance before a judge or other judicial officer, and went on to state that any other interpretation of the provision would be “a serious weakening of a procedural guarantee to the detriment of the individual and would entail consequences impairing the very essence of the right protected by this provision.” The court also held that the right to compensation under Article 5(5) was contravened by the United Kingdom.



A very different outcome was reached by the court in another case involving detention of terror suspects and alleged contravention of Article 5 in Sher v United Kingdom, although in this case the detention period was longer at 13 days; the applicants had been detained by the UK authorities on suspicion of planning a terror attack. In Sher, the court held that there was no violation of Article 5 by the UK authorities. The case involved the detention of three Pakistani nationals on suspicion of terror related activities. The issue before the court was whether the detention of the three applicants amounted to violating of their rights under Article 5. The specific issue involved was the right to receive adequate information by the police about the specific allegations so as to be able to mount defence against detention. These provisions are contained in Article 5(2) relating to right to prompt information for the reasons for arrest, and Article 5(4) relating to right to proceedings for speedy testing of the lawfulness of detention by a court. With regard to these arguments, the court decided that neither of the rights was engaged for admissibility because as per Article 35 (1), two remedies were still open to the applicants under the domestic law of the UK, which had not been exhausted by them. Furthermore, the court accepted the argument of the UK that applicants’ case involved a suspected terror attack requiring the government to make reasonable responses through complex investigations. The court held that the procedural requirements under Article 5 “do not impose a uniform, unvarying standard to be applied

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5. Brogan v United Kingdom (1988) 11 EHRR 117 .
6. Ibid.
7. Ibid, para 62.
8. Sher and others v United Kingdom [2014] ECHR 1249, 5201/11.
9. Ibid, paras 138-139.

irrespective of the context, facts and circumstances”. The facts of the case showed that the UK authorities had complied with the procedural requirements under Article 5, including judicial oversight and therefore, the court held in favour of the UK.

Conclusion

Article 5 jurisprudence has been developed so far by the ECtHR to address the rights of the detainees. Administrative detention, especially of nonnationals however, remains an area that the states’ interests have been given priority over individual rights. The margin of appreciation doctrine is also used to allow states respond by making laws and policies that can be used to detaining people on reasonable suspicion. In such cases however, the ECtHR does demand that the procedural requirements are met with. This is also demonstrated in both cases discussed above. Although the outcomes of these cases may be different, the underlying principle remains that the procedure established by law should be followed; this includes ensuring judicial oversight and other due process rights of the detainees.

Cases

Brogan v United Kingdom (1988) 11 EHRR 117 .

Guzzardi v. Italy Series A No 39 (1980).

Sher and others v United Kingdom [2014] ECHR 1249, 5201/11.

Journals

Langford P and Ian Bryan, ‘The Lawful Detention of Unauthorised Aliens under the European System for the Protection of Human Rights’ (2011) 80 (2) Nordic Journal of International Law 193.

Stone R, ‘Deprivation of liberty: the scope of Article 5 of the European Convention on Human Rights’ (2012) 1 European Human Rights Law Review 46.

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10. Ibid, para 147.