MEETING THREE
THE RIGHT TO LIBERTY AND SECURITY, THE RIGHT TO A FAIR TRIAL
AND THE RIGHT TO AN EFFECTIVE REMEDY
The right to liberty and security
In which situations is the detention of a person possible under
Article 5? Give details for every category of persons.
The object of Article 5 is to guarantee liberty of the person, and in
particular to provide guarantees against arbitrary arrest or detention.
Detention after conviction by a competent court Article 5 (1)(a)
Article 5 § 1 (a) applies to any “conviction” occasioning deprivation of
liberty pronounced by a court and makes no distinction based on the
legal character of the offence of which a person has been found GUILTY
whether classified as criminal or disciplinary by the internal law of the
State in question (Engel and Others v. the Netherlands; Galstyan v.
Armenia).
The term “court” denotes bodies which exhibit not only common
fundamental features, of which the most important is independence of
the executive and of the parties to the case, but also the guarantees of
judicial procedure. In addition, the body in question must not have
merely advisory functions but must have the competence to decide the
lawfulness of the detention and to order release if the detention is
unlawful (X. v. the United Kingdom; Weeks v. the United Kingdom). The
court should also be independent and impartiality.
Detention of a person for failure to comply with an obligation prescribed
by law Article 5 (1)(b)
The balance is the right to liberty and the obligation to comply with the
law. If you don’t, you can be detained. Where A is criminal in nature, B
is not (punitive). It’s not a conviction but another punishment. Case
with woman in the bus.
Detention on remand Article 5 (1)(c)
A person may be detained under Article 5 § 1 (c) only in the context of
criminal proceedings, for the purpose of bringing him before the
competent legal authority on suspicion of his having committed an
offence.
Also possible is pre-trial detention. Pre-trial detention and not custody
for preventive purposes without the person concerned being suspected
of having already committed a criminal offence.
Detention of minors Article 5 (1)(d)
No requirement that the order should be from a court. The age from
where on a person is a minor. No criminal cases, it’s to protect
themselves and society. See Koniarska case.
THE RIGHT TO LIBERTY AND SECURITY, THE RIGHT TO A FAIR TRIAL
AND THE RIGHT TO AN EFFECTIVE REMEDY
The right to liberty and security
In which situations is the detention of a person possible under
Article 5? Give details for every category of persons.
The object of Article 5 is to guarantee liberty of the person, and in
particular to provide guarantees against arbitrary arrest or detention.
Detention after conviction by a competent court Article 5 (1)(a)
Article 5 § 1 (a) applies to any “conviction” occasioning deprivation of
liberty pronounced by a court and makes no distinction based on the
legal character of the offence of which a person has been found GUILTY
whether classified as criminal or disciplinary by the internal law of the
State in question (Engel and Others v. the Netherlands; Galstyan v.
Armenia).
The term “court” denotes bodies which exhibit not only common
fundamental features, of which the most important is independence of
the executive and of the parties to the case, but also the guarantees of
judicial procedure. In addition, the body in question must not have
merely advisory functions but must have the competence to decide the
lawfulness of the detention and to order release if the detention is
unlawful (X. v. the United Kingdom; Weeks v. the United Kingdom). The
court should also be independent and impartiality.
Detention of a person for failure to comply with an obligation prescribed
by law Article 5 (1)(b)
The balance is the right to liberty and the obligation to comply with the
law. If you don’t, you can be detained. Where A is criminal in nature, B
is not (punitive). It’s not a conviction but another punishment. Case
with woman in the bus.
Detention on remand Article 5 (1)(c)
A person may be detained under Article 5 § 1 (c) only in the context of
criminal proceedings, for the purpose of bringing him before the
competent legal authority on suspicion of his having committed an
offence.
Also possible is pre-trial detention. Pre-trial detention and not custody
for preventive purposes without the person concerned being suspected
of having already committed a criminal offence.
Detention of minors Article 5 (1)(d)
No requirement that the order should be from a court. The age from
where on a person is a minor. No criminal cases, it’s to protect
themselves and society. See Koniarska case.
