Deprivation of Liberty: Definitions and Case Law
Article 5 of the European Convention on Human Rights (ECHR) provides crucial protections against unlawful deprivation of liberty. To fully understand its scope, it's important to examine what constitutes a deprivation of liberty and how courts have interpreted this concept.
Various situations have been deemed to qualify as deprivation of liberty under Article 5:
Example: In the Amuur case, being held in the transit zone of an airport was considered a deprivation of liberty.
The practice of "kettling" by police, where protesters are confined within a cordon, has been subject to legal scrutiny. In the Austin case, a 7-hour kettle was deemed acceptable under certain conditions:
- It must be unavoidable
- Necessary for public safety
- Kept to a minimum duration
- Carried out in good faith and proportionate to the danger
Highlight: For kettling to be lawful, it must be a last resort, absolutely necessary, and as brief as possible.
Courts have also ruled on cases of arbitrary arrest:
- Shimovolos: An arrest was deemed arbitrary due to lack of good reason
- Kasparov: Detaining individuals for 48 hours based on weak suspicions violated the 3-hour limit for administrative offenses in Russia
- Ostendorf: An arrest was lawful under Article 5.1(b) for non-compliance with a court order, but unlawful under 5.1(c) due to lack of reasonable grounds
Vocabulary: Arbitrary arrest refers to detention without proper legal justification or due process.
The case of HL v UK highlighted the importance of adequate advocacy for vulnerable detainees. When a person was detained for mental health reasons without proper representation, it was found to violate Article 5.
These cases demonstrate the nuanced interpretation of Article 5 and the importance of examining each situation's specific details to determine if a deprivation of liberty is lawful under the ECHR.
