Right to liberty and security (Article 5)

Overview of the Case-law of the ECHR 2018

Right to liberty and security (Article 5)[7]

Reasonable suspicion (Article 5 § 1 (c))

Length of pre-trial detention (Article 5 § 3)

In Selahattin Demirtaş v. Turkey (no. 2)[8] the Court examined the pre-trial detention of a member of parliament following his lawful arrest and detention.

The applicant was an elected member of the National Assembly and one of the co-chairs of the Peoples’ Democratic Party (HDP), a left-wing pro-Kurdish political party. On 20 May 2016 an amendment to the Constitution was adopted whereby parliamentary immunity was lifted in all cases where requests for its lifting had been transmitted to the National Assembly prior to the date of adoption of the amendment. The applicant was one of 154 parliamentarians affected by the constitutional amendment. On 4 November 2016 he was arrested on suspicion of membership of an armed terrorist organisation and inciting others to commit a criminal offence. The applicant is still in detention awaiting trial. His parliamentary mandate expired on 24 June 2018.

The Court found that there had been a lawful basis for depriving the applicant of his liberty, namely Articles 100 et seq. of the Criminal Code as made applicable to him by virtue of the (constitutionally mandated) lifting of his parliamentary immunity. Following a comprehensive review of its case-law on the notion of “reasonable suspicion” within the meaning of Article 5 § 1 (c), it concluded that there were grounds which would have persuaded an objective observer that the applicant had committed a criminal offence. The Court’s finding is of relevance for its later treatment of the applicant’s Article 18 complaint.

The Court held that the applicant’s detention was incompatible with Article 5 § 3 requirements. Importantly, it stressed in line with its established case-law (see, in particular, Buzadji v. the Republic of Moldova[9]) that the existence of “reasonable suspicion” justified the applicant’s initial detention and, importantly, continued throughout the period of his detention, this being a sine qua non for the validity of continued detention. However, the persistence of the “reasonable suspicion” requirement did not suffice to justify the prolongation of the applicant’s detention, and the reasons relied on (the risk that the applicant would flee or tamper with evidence, the gravity of the charges, etc.) were in effect stereotypical and abstract responses to his requests for release, with no real consideration given to alternative ways to secure his appearance at trial. In the Court’s view “decisions worded in formulaic terms as in the present case can on no account be regarded as sufficient to justify a person’s initial and continued pre-trial detention”. It is noteworthy that the Court reverted to this reasoning and conclusion when examining the compatibility of his detention with Article 3 of Protocol No. 1 and the question of “ulterior purpose” in the context of Article 18.

The Court accepted that the time taken by the Constitutional Court to hear the applicant’s appeal against his continued remand – thirteen months and four days – could not be considered “speedy” within the meaning of Article 5 § 4 in ordinary circumstances. However, it considered that the length could be considered justified in the particular circumstances of the applicant’s case. Importantly, it referred in this connection to the burden placed on the Constitutional Court by the volume of cases which it had had to deal with following the proclamation of the state of emergency following the 2016 failed coup d’état.

Reasonably necessary to prevent offence (Article 5 § 1 (c))

S., V. and A. v. Denmark[10] concerned preventive detention, in the context of Articles 5 § 1 (c)[11] and 5 §§ 3 and 5, to avert spectator violence.

In October 2009 a large number of football spectators (140 approxi­mately), in Copenhagen to watch a football match, were detained by the police. Half were charged with criminal offences. The other half, including the three applicants, were detained for approximately eight hours under section 5(3) of the Police Act. This provision permitted detention to avert a risk of disturbance or danger to safety for as short and moderate a period as possible, which should not extend beyond six hours if possible.

The applicants complained of their detention under Article 5 § 1 of the Convention. The Grand Chamber concluded that this purely preventive detention could be lawful under the second limb of Article 5 § 1 (c) and that, since it complied with the relevant safeguards, there had been no violation of Article 5 § 1 of the Convention.

This judgment is noteworthy because it permits, and defines the parameters of, an important tool for controlling the threat of spectator violence, namely preventive detention.

To date, short detention aimed at preventing imminent violence could be lawful either under Article 5 § 1 (b) if it was effected to secure the fulfilment of an incumbent obligation prescribed by law or under Article 5 § 1 (c) if it fell within the context of criminal proceedings. The purely preventive detention in issue in the present case did not fall within either of those scenarios, so the Grand Chamber had to examine whether Article 5 § 1 could otherwise provide a mandate for such detention. The judgment is important for the case-law because it reverses the majority position in Ostendorf v. Germany[12] and confirms that the second limb of Article 5 § 1 (c) can authorise purely preventive detention, while highlighting the applicable safeguards to avoid its arbitrary use.

A number of case-law points are worth noting.

(i) Since the police had not given any orders to the applicants as to the acts from which they were to refrain, their detention could not be covered by Article 5 § 1 (b) of the Convention (contrast the position in Ostendorf, cited above, where particular orders had been given allowing the application of Article 5 § 1 (b)).

(ii) The key finding of the Grand Chamber was that the second limb of Article 5 § 1 (c) could be considered an independent basis for a deprivation of liberty. Two issues had to be resolved to reach that conclusion:

(a) Did the second limb exist independently of “a reasonable suspicion of [a person] having committed an offence”? Two lines of case-law had emerged. One, which had begun with Lawless v. Ireland[13], considered the second limb to be an autonomous ground of detention[14]. The second, supporting the opposite conclusion, could be traced back to Ciulla v. Italy[15], and had had some additional support in the case-law[16] including in Ostendorf, cited above. For the Grand Chamber, there were weighty reasons to choose the Lawless approach including consistency with the text of Article 5 and the report of the conference of senior officials on human rights to the Committee of Ministers on the second draft of the Convention and the fact that the Ciulla judgment had not explained its departure from the earlier Lawless judgment. For these reasons and also so as “not to make it impracticable for the police to fulfil their duties of maintaining order and protecting the public”, the Grand Chamber concluded that, contrary to the majority in Ostendorf, purely preventive detention could be permissible under the second limb of Article 5 § 1 (c) independently of “a reasonable suspicion of [a person] having committed an offence”.

(b) Was this second-limb detention subjected to the “purpose” requirement, so that detention would only be lawful if it was for “the purpose of bringing the applicant before the competent authority”? While the Lawless judgment confirmed that it was so conditioned, the Grand Chamber considered that the flexibility accepted in later cases[17] should be applied to the present preventive detention context because requiring a subjective intention to bring a person before a judge could have undesirable consequences. In this latter respect, the Grand Chamber was inspired to some extent by a judgment of the United Kingdom Supreme Court[18] where it had been pointed out that short preventive detentions could end up being unnecessarily prolonged by a requirement to bring a detainee before a court. Emphasis was again placed in this context on the need to avoid rendering police duties impracticable having regard to their obligations under, inter alia, Articles 2 and 3 to protect the public from offences by private individuals of which the police had or ought to have had knowledge.

(iii) The Grand Chamber went on to highlight the safeguards necessary to ensure that such preventive detention was neither arbitrary nor disproportionate.

(a) Article 5 § 1: the requirement of domestic lawfulness; the protection from arbitrariness; the requirement for the offence to be “concrete and specific” (as defined in the judgment); and the need for the arrest and detention to be “reasonably necessary”. This necessity test, again informed by the need to balance Article 5 with Article 2 and 3 rights, required, inter alia, that measures less severe than detention had been found insufficient to protect, that the offence in question was found to have been of a “serious nature, entailing danger to life and limb or significant material damage”, and that detention was to cease as soon as the risk passed, an issue requiring monitoring.

(b) Article 5 §§ 3 and 5: since Article 5 § 3 meant that a person who has been released does not need to be brought “promptly” before a judge, the promptness requirement of Article 5 § 3 effectively determined the acceptable length of preventive detention under the second limb of Article 5 § 1 (c). Having reviewed its case-law under that provision, the Grand Chamber considered that “promptly” in the context of preventive detention should be a matter of hours rather than days. A failure to comply with this requirement would also afford the individual an enforceable right to compensation (Article 5 § 5).

(iv) Applying these principles to the present case, the Grand Chamber found that a fair balance had been struck between the right to liberty and the importance of preventing the applicants from organising or taking part in a hooligan brawl. The applicants’ preventive detention complied therefore with the second limb of Article 5 § 1 (c) and there had been no violation of Article 5 § 1 of the Convention.

(v) It is interesting to note the emphasis placed throughout the judgment on the need to balance the State’s obligations to protect and investigate under Articles 2 and 3 with an individual’s Article 5 rights (first articulated in Osman v. the United Kingdom[19], and, most recently, in Akelienė v. Lithuania[20]).

Persons of unsound mind (Article 5 § 1 (e))

Ilnseher v. Germany[21] concerned preventive detention ordered following a conviction.

The applicant was found guilty in 1999 of strangling a woman for sexual gratification. He was sentenced to the maximum term of ten years in prison (criminal law relating to young offenders). In 2008, once he had served his sentence, preventive detention was ordered because he was found to be suffering from a mental disorder necessitating treatment and there was a high risk that he would reoffend if released (“subsequent preventive detention”). Further to a unilateral declaration by the Government, the Chamber struck out the applicant’s complaints under Articles 5 and 7 concerning his preventive detention in prison until 20 June 2013. On that date he was transferred to the newly built preventive-detention centre offering an intensive treatment programme for sex offenders. In respect of the later period of detention, the Grand Chamber found that there had been no violation of Article 5 §§ 1 or 4, Article 6 § 1 or of Article 7 § 1 of the Convention.

(i) The case in Ilnseher concerns the system of subsequent preventive detention in Germany. It is important for Germany since it confirms that the new preventive-detention system, introduced following the Court’s leading judgment in M. v. Germany[22], is compatible with Articles 5 and 7 of the Convention.

Historically the German Criminal Code distinguished between penalties (strictly necessary to punish) and measures of “correction and prevention” (therapeutic and/or to protect the public). Legislation from 2004 allowed preventive detention (a measure of correction and prevention) to be imposed, even if the order had not been made at the sentencing stage, if the detainee was thought to pose a risk to the public. In M. v. Germany (cited above), the Court found that preventive detention, extended after conviction and beyond that detention’s initial maximum duration, was not lawful under Article 5 § 1 (a), (c) or (e) and that it amounted to a penalty which had been retroactively imposed/prolonged in breach of Article 7 § 1, because preventive detention without a therapeutic purpose was considered to be a penalty, even when carried out during the maximum duration of the original sentence/measure. As a result of M. v. Germany, the Constitutional Court delivered an important judgment in 2011; the Preventive Detention (Distinction) Act was enacted in 2013, which permitted subsequent preventive detention only if the person concerned suffered from a mental disorder rendering the person dangerous; and new preventive-detention centres offering an adapted therapeutic environment were built. In later Chamber judgments, the Court found this new regime to be Convention compatible. In particular, in Bergmann v. Germany[23], the Court found that the subsequently prolonged preventive detention of the applicant for a mental disorder requiring treatment was justified under Article 5 § 1 (e) and did not amount to a penalty within the meaning of Article 7 of the Convention (see also W.P. v. Germany[24] and Becht v. Germany[25]).

The present case, although concerning the criminal law relating to young offenders, is a similar case to that in Bergmann, cited above, and the Grand Chamber has confirmed that Chamber case-law and, thus, the compatibility with the Convention of the post-2013 system of preventive detention in Germany.

(ii) The judgment also sets out the relevant general principles in more detail than the Chamber judgment and thus constitutes a valuable reference for the case-law on the detention of persons of unsound mind under Article 5 § 1 (e), including on the need for there to be a relationship between the ground of permitted deprivation of liberty and the place/conditions of detention. In this latter respect, the Grand Chamber confirmed prior Chamber case-law (W.P. v. Germany, cited above) to the effect that a person’s detention can become lawful if the conditions of detention change (in this case, once the applicant was transferred to the new, adapted preventive-detention centre), even if the detention is still based on the original detention order.

(iii) Similarly, the Grand Chamber judgment also provides a restatement of the general principles under Article 7 as regards the concept of “penalty” for the purposes of Article 7 § 1, confirming again an interesting case-law point evoked in prior Chamber case-law.

The conditions of execution of detention can be relevant for the nature/purpose and severity of a detention measure and thus for the assessment of whether or not the measure is a “penalty”. Since those conditions changed during the impugned period of detention, it was necessary to assess whether it was the conditions of detention when the measure was ordered or during the later period under review which were relevant for assessing whether the measure in question was a “penalty”. The Grand Chamber again confirmed the approach in W.P. v. Germany: in certain cases, especially if national law does not qualify a measure as a penalty and if its purpose is therapeutic, a substantial change in the conditions of execution of the detention measure can withdraw or erase the initial qualification of the measure as a “penalty”, even if that measure is implemented on the basis of the same detention order. The wording of the second sentence of Article 7 § 1, according to which no heavier penalty may be “imposed” than the one that was applicable at the time the criminal offence was committed, did not stand in the way of such an interpretation. In so finding, the Grand Chamber clarified that certain criteria by which one determines whether a measure amounts to a penalty are “static” (not susceptible to change once the measure is ordered, such as whether the measure was imposed following conviction for a “criminal offence”) and certain are “dynamic” (thus susceptible to change over time such as the manner in which the measure was executed).

Accordingly, the relevant period for assessing whether the subsequent preventive detention measure was a “penalty” within the meaning of Article 7 § 1 was that after 20 June 2013, during which the measure was implemented in accordance with the new legislative framework and thus it could no longer be classified as a penalty within the meaning of Article 7 § 1 so that there had been no violation of that provision.

Speediness of review (Article 5 § 4)[26]

Mehmet Hasan Altan v. Turkey and Şahin Alpay v. Turkey[27] concerned the length of the review of the lawfulness of the pre-trial detention of journalists arrested during an attempted coup d’état.

Following the attempted coup in Turkey during the night of 15 to 16 July 2016, on 20 July the Government declared a state of emergency and on 21 July notified the Secretary General of the Council of Europe of its derogation from certain of its Convention obligations. The applicants, well-known journalists, were arrested and held in pre-trial detention on anti-terrorism charges related to the attempted coup. The Constitutional Court found that their arrest and detention violated their rights to liberty and to freedom of expression. Consequently the Constitutional Court awarded damages and costs and expenses and, since the applicants were in detention, communicated the judgments to the relevant assize court for that court to “do the necessary”. The assize court, considering that the Constitutional Court judgments were not binding, did not act on them and the applicants remained in detention. Under Article 5 § 4 of the Convention, the applicants complained of the length of the review of the lawfulness of their pre-trial detention.

The Court did not consider that the length (fourteen and sixteen months respectively) of the review of the lawfulness of the applicants’ pre-trial detention by the Constitutional Court breached the speediness requirement of Article 5 § 4 of the Convention. The Court recognised that this was on the borderline of what could be considered speedy even taking into account the exceptional burden of work the Constitutional Court had after the failed coup attempt in 2016. However, those in pre-trial detention could request their release at any time and appeal any refusal of release: the applicants had made several such requests, each of which was examined speedily. Pre-trial detention was automatically reviewed a minimum of every thirty days. In such a system, the Court could tolerate that the review conducted by the Constitutional Court, which had seen a drastic increase in its caseload since 2016, could take more time. Accordingly, and repeating that the length of the Article 5 § 4 review by the Constitutional Court had been close to the limit of what could be considered speedy, that duration did not, in the particular circumstances of the case, give rise to a violation of Article 5 § 4 of the Convention. The Court reserved the possibility of reviewing this conclusion in any future cases.

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4. Mazepa and Others v. Russia, no. 15086/07, 17 July 2018.

5. Cerf v. Turkey, no. 12938/07, §§ 80-81, 3 May 2016.

6. Akelienė v. Lithuania, no. 54917/13, 16 October 2018 (not final).

7. See also, under Article 11 (Freedom of peaceful assembly) and Article 18 (Restrictions not prescribed by the Convention) below, Navalnyy v. Russia [GC], nos. 29580/12 and 4 others, 15 November 2018.

8. Selahattin Demirtaş v. Turkey (no. 2), no. 14305/17, 20 November 2018 (not final). See also under Article 3 of Protocol No. 1 (Free expression of the opinion of the people) and Article 18 (Restrictions not prescribed by the Convention) below.

9. Buzadji v. the Republic of Moldova [GC], no. 23755/07, 5 July 2016.

10. S., V. and A. v. Denmark [GC], nos. 35553/12 and 2 others, 22 October 2018.

11. Article 5 § 1 (c) states: “the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so” (the text in italics denotes what is referred to as the second limb of Article 5 § 1 (c)).

12. Ostendorf v. Germany, no. 15598/08, 7 March 2013.

13. Lawless v. Ireland (no. 3), 1 July 1961, Series A no. 3.

14. This interpretation continued in Ireland v. the United Kingdom, 18 January 1978, Series A no. 25, and Guzzardi v. Italy, 6 November 1980, Series A no. 39, and was further supported by the breach-of-the-peace cases against the United Kingdom (Steel and Others v. the United Kingdom, 23 September 1998, Reports of Judgments and Decisions 1998-VII; Nicol and Selvanayagam v. the United Kingdom (dec.), no. 32213/96, 11 January 2001; and McBride v. the United Kingdom (dec.), no. 27786/95, 5 July 2001).

15. Ciulla v. Italy, 22 February 1989, Series A no. 148.

16. Jėčius v. Lithuania, no. 34578/97, ECHR 2000-IX; Epple v. Germany (revision), no. 77909/01, 15 December 2005; Schwabe and M.G. v. Germany, nos. 8080/08 and 8577/08, ECHR 2011 (extracts); and Ostendorf, cited above; see also Hassan v. the United Kingdom [GC], no. 29750/09, ECHR 2014.

17. Brogan and Others v. the United Kingdom, 29 November 1988, Series A no. 145-B; Erdagöz v. Turkey, 22 October 1997, Reports of Judgments and Decisions 1997-VI; and Petkov and Profirov v. Bulgaria, nos. 50027/08 and 50781/09, 24 June 2014.

18. R v. the Commissioner of Police of the Metropolis, which had preferred the minority view in Ostendorf, cited above.

19. Osman v. the United Kingdom, 28 October 1998, § 116, Reports of Judgments and Decisions 1998-VIII.

20. Akelienė v. Lithuania, no. 54917/13, 16 October 2018 (not final).

21. Ilnseher v. Germany [GC], nos. 10211/12 and 27505/14, 4 December 2018.

22. M. v. Germany, no. 19359/04, ECHR 2009.

23. Bergmann v. Germany, no. 23279/14, 7 January 2016.

24. W.P. v. Germany, no. 55594/13, 6 October 2016.

25. Becht v. Germany, no. 79457/13, 6 July 2017.

26. Selahattin Demirtaş v. Turkey (no. 2), no. 14305/17, 20 November 2018 (not final).

27. Mehmet Hasan Altan v. Turkey, no. 13237/17, 20 March 2018, and Şahin Alpay v. Turkey, no. 16538/17, 20 March 2018. See also under Article 15 (Derogation in time of emergency) below.

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