Article 5 – Deprivation of Liberty
Questions:
- Is there a substantive, as opposed to procedural, right to liberty?
o It is clear from both the Convention and the case law that there is a right not to be
deprived of your liberty by a procedure not in accordance with the law.
o BUT – is there also another element, namely a right not to be deprived of your liberty
for an arbitrary purpose?
- Is the Article 5 right a powerful right?
o Applicants are often given a derisory award which generates no real incentive for the
Government to resolve the problem,
Substantive or Procedural:
1. Introduction:
There are two places that we can look:
The Convention – heavily procedural.
The case law – seems to be procedural.
Proportionality of the measure – if in accordance with law/statute.
Does not seem to care about the purpose/intention of the restriction
on liberty.
It is clear from both the Convention and the case law that there is a right not to be
deprived of your liberty by a procedure not in accordance with the law.
BUT – this essay will explore whether there is, in fact, another element to the
Article 5 right, namely, the right not to be deprived of your liberty for an
arbitrary purpose.
Analyse whether the judgment in Austin is actually indicative of the
Court taking the purpose of the restriction on liberty into account.
Procedural rights describe how states must function.
Substantive rights, by contrast, establish the rights and obligations that
govern people.
2. Procedural:
a. Convention:
As aforementioned, the wording of the Convention in relation to the
deprivation of liberty is heavily focused on procedure.
Article 5 ECHR protects your right not to be deprived of your liberty or
freedom unless it is in accordance with the law.
This means that you must not be imprisoned or detained unless there
is a law which allows it, and the correct procedure is followed.
Article 5 also contains a number of procedural safeguards for anyone who is
arrested or detained.
These include that the detainee must be told why they are being
detained, they must be brought before a judge promptly, the
lawfulness of the detention can be challenged, and victims of
unlawful detention are entitled to compensation.
This is clearly in line with the definition of procedural rights outlined earlier
– the structure and wording of Article 5 details how states must function in
order to be compliant with Article 5.
It does not state, as a substantive right would, that a State has a duty
to prevent citizens from being deprived of their liberty.
b. Case Law:
A focus on procedure is also evident from the case law, both at domestic and
ECtHR level.
, For example, in HL v United Kingdom, in finding that there had been a
violation of Article 5, the ECtHR placed considerable emphasis on the lack
of procedural safeguards/rules in place.
The case concerned an applicant who was autistic, profoundly
mentally retarded and incapable of consenting to medical treatment.
He became agitated and was taken to a hospital, where he was
assessed by a psychiatrist as being in need of inpatient treatment.
The ECtHR noted, in particular, the lack of any formalised
admission procedures which indicated who can propose
admission, for what reasons and on the basis of what kind of
medical and other assessments and conclusions.
As a result of such lack of procedural regulations and limits,
the Court concluded that the hospital had assumed full
control of the liberty and treatment of the applicant, who was
both vulnerable and incapacitated, and as such the hospital
failed to comply with the essential purpose of Article 5(1)
ECHR.
This is also evident in the domestic courts, namely in R (Faulkner) v
Secretary of State for Justice –
Case concerned the circumstances in which a prisoner serving a life
sentence or an indeterminate sentence for public protection who has
served their tariff, and the only justification for further detention is
for the protection of the public, should be awarded damages for delay
in reviewing the need for further detention.
The UK Supreme Court held that the detention of a life
prisoner past the end of their sentence did not constitute an
infringement of their right to liberty under Article 5.
This conclusion was based on the fact that the continued
detention was authorised by statute; detention is lawful until
the Board gives a direction for the prisoner’s release.
If you ask anyone, this would seem like a textbook
infringement of liberty; the prisoner has already
served his sentence and has been deprived of his
liberty for the period which was decided by the
courts in his sentencing hearing.
BUT – by focusing exclusively on procedural
aspects, i.e., whether there is a statute authorising
detention, the court found that there was no
violation.
Another key element of the case law which points to there being merely a
procedural right to liberty is the fact that the purpose or intention of the
restriction of liberty is irrelevant.
The test for whether there has been a deprivation of liberty was set
out by the ECtHR in Ashingdane v UK as follows: “In order to
determine whether circumstances involve deprivation of liberty, the
starting point must be the concrete situation of the individual
concerned and account must be taken of a whole range of criteria
such as the type, duration, effects and manner of implementation
of the measure in question.”
The purpose of the measure in question is not considered as
relevant to the question of whether there has been a
deprivation of liberty.
This is seen powerfully in HL v United Kingdom – in which
the ECtHR emphasised that the test is whether the person
was not free to leave, being under complete and effective
Questions:
- Is there a substantive, as opposed to procedural, right to liberty?
o It is clear from both the Convention and the case law that there is a right not to be
deprived of your liberty by a procedure not in accordance with the law.
o BUT – is there also another element, namely a right not to be deprived of your liberty
for an arbitrary purpose?
- Is the Article 5 right a powerful right?
o Applicants are often given a derisory award which generates no real incentive for the
Government to resolve the problem,
Substantive or Procedural:
1. Introduction:
There are two places that we can look:
The Convention – heavily procedural.
The case law – seems to be procedural.
Proportionality of the measure – if in accordance with law/statute.
Does not seem to care about the purpose/intention of the restriction
on liberty.
It is clear from both the Convention and the case law that there is a right not to be
deprived of your liberty by a procedure not in accordance with the law.
BUT – this essay will explore whether there is, in fact, another element to the
Article 5 right, namely, the right not to be deprived of your liberty for an
arbitrary purpose.
Analyse whether the judgment in Austin is actually indicative of the
Court taking the purpose of the restriction on liberty into account.
Procedural rights describe how states must function.
Substantive rights, by contrast, establish the rights and obligations that
govern people.
2. Procedural:
a. Convention:
As aforementioned, the wording of the Convention in relation to the
deprivation of liberty is heavily focused on procedure.
Article 5 ECHR protects your right not to be deprived of your liberty or
freedom unless it is in accordance with the law.
This means that you must not be imprisoned or detained unless there
is a law which allows it, and the correct procedure is followed.
Article 5 also contains a number of procedural safeguards for anyone who is
arrested or detained.
These include that the detainee must be told why they are being
detained, they must be brought before a judge promptly, the
lawfulness of the detention can be challenged, and victims of
unlawful detention are entitled to compensation.
This is clearly in line with the definition of procedural rights outlined earlier
– the structure and wording of Article 5 details how states must function in
order to be compliant with Article 5.
It does not state, as a substantive right would, that a State has a duty
to prevent citizens from being deprived of their liberty.
b. Case Law:
A focus on procedure is also evident from the case law, both at domestic and
ECtHR level.
, For example, in HL v United Kingdom, in finding that there had been a
violation of Article 5, the ECtHR placed considerable emphasis on the lack
of procedural safeguards/rules in place.
The case concerned an applicant who was autistic, profoundly
mentally retarded and incapable of consenting to medical treatment.
He became agitated and was taken to a hospital, where he was
assessed by a psychiatrist as being in need of inpatient treatment.
The ECtHR noted, in particular, the lack of any formalised
admission procedures which indicated who can propose
admission, for what reasons and on the basis of what kind of
medical and other assessments and conclusions.
As a result of such lack of procedural regulations and limits,
the Court concluded that the hospital had assumed full
control of the liberty and treatment of the applicant, who was
both vulnerable and incapacitated, and as such the hospital
failed to comply with the essential purpose of Article 5(1)
ECHR.
This is also evident in the domestic courts, namely in R (Faulkner) v
Secretary of State for Justice –
Case concerned the circumstances in which a prisoner serving a life
sentence or an indeterminate sentence for public protection who has
served their tariff, and the only justification for further detention is
for the protection of the public, should be awarded damages for delay
in reviewing the need for further detention.
The UK Supreme Court held that the detention of a life
prisoner past the end of their sentence did not constitute an
infringement of their right to liberty under Article 5.
This conclusion was based on the fact that the continued
detention was authorised by statute; detention is lawful until
the Board gives a direction for the prisoner’s release.
If you ask anyone, this would seem like a textbook
infringement of liberty; the prisoner has already
served his sentence and has been deprived of his
liberty for the period which was decided by the
courts in his sentencing hearing.
BUT – by focusing exclusively on procedural
aspects, i.e., whether there is a statute authorising
detention, the court found that there was no
violation.
Another key element of the case law which points to there being merely a
procedural right to liberty is the fact that the purpose or intention of the
restriction of liberty is irrelevant.
The test for whether there has been a deprivation of liberty was set
out by the ECtHR in Ashingdane v UK as follows: “In order to
determine whether circumstances involve deprivation of liberty, the
starting point must be the concrete situation of the individual
concerned and account must be taken of a whole range of criteria
such as the type, duration, effects and manner of implementation
of the measure in question.”
The purpose of the measure in question is not considered as
relevant to the question of whether there has been a
deprivation of liberty.
This is seen powerfully in HL v United Kingdom – in which
the ECtHR emphasised that the test is whether the person
was not free to leave, being under complete and effective
