Article 5 echr
Article 5 of the European Convention on Human Rights (ECHR) protects the right to liberty and security. It sets out specific circumstances under which individuals can be deprived of their liberty, such as lawful arrest or detention. The article also establishes the right to challenge the lawfulness of detention and to be released if it is found to be unlawful.
7 Key excerpts on "Article 5 echr"
eBook - ePub- Howard Davis(Author)
- 2014(Publication Date)
- Routledge(Publisher)
...judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial. (4) Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. (5) Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation. Figure 6.1 Illustrates the issues that a court must consider when dealing with a claim under Article 5 The general right The first thing to notice is that starts with a general right to liberty and security. This means that there is a presumption in favour of liberty. Reasons for detaining persons must be sufficient to outweigh that presumption. The ECtHR not only requires the general criteria for detention to be satisfied but also that, in the particular circumstances, the patient's loss of liberty is ‘necessary’ (Saadi v United Kingdom (2008) 47 EHRR 17, para 70). The general right can also mean that signatory states have a ‘positive duty’ (discussed in Chapter 4) to protect people from arbitrary loss of liberty at the hands of private parties or organisations whose authority may be wholly or mainly contractual. An example is Storck v Germany (2006) 43 EHRR 6 where an 18-year-old girl was detained in a private mental hospital at the request of her father and without her consent. The ECtHR held that the state had positive obligations under which, in these circumstances, it had failed to fulfill (see paras 100–108). Law and legality The second sentence of makes it clear that any ‘deprivation of liberty’ must be in accordance with a ‘procedure prescribed by law’...
eBook - ePubCounter-terrorism and the Detention of Suspected Terrorists
Preventive Detention and International Human Rights Law
- Claire Macken(Author)
- 2013(Publication Date)
- Routledge(Publisher)
...It is generally accepted that ‘liberty and security are the two sides of the same coin. If personal liberty spells actual freedom of movement of the person, security is the condition of being protected by law in that freedom’. 222 In Adler and Bivas v Federal Republic of Germany, the European Commission held: The term ‘liberty’ and ‘security’ must be read as a whole and, in view of its context, as referring only to physical liberty and security. ‘Liberty of person’ in Article 5(1) thus means freedom from arbitrary arrest and detention and ‘security of the person’, the protection against arbitrary interference with this liberty. 223 The prohibition on arbitrary arrest and detention in the ECHR imposes two obligations. The first is that arrest and detention must be on grounds, and in accordance with procedures as established by domestic law. This states the principle of legality and is confirmed by the words of Article 5(1) which state: ‘No one shall be deprived of his liberty save … in accordance with a procedure prescribed by law’. In Winterwerp the Court explained that these words ‘essentially refer back to domestic law; they state the need for compliance with the relevant procedure under that law’. 224 The second is that arrest and detention must accord with the principles of justice. It must not inappropriate, unjust or lack predictability. According to Winterwerp, requiring detention to accord with substantive rules means the domestic law itself must be in conformity with the Convention, including the general principles expressed or implied therein. The notion underlying the term in question is one of fair and proper procedure, namely that any measure depriving a person of his liberty should issue from and be executed by an appropriate authority and should not be arbitrary. 225 The ECHR also requires that detention falls within one of the five specifically and exhaustively listed permissible grounds of detention listed in Article 5(1)(a)–(e)...
eBook - ePubThe EU Charter of Fundamental Rights
A Commentary
- Steve Peers, Tamara Hervey, Jeff Kenner, Angela Ward, Steve Peers, Tamara Hervey, Jeff Kenner, Angela Ward(Authors)
- 2021(Publication Date)
- Hart/Beck(Publisher)
...Article 6 Article 6 Right to Liberty and Security Everyone has the right to liberty and security of the person. Text of Explanatory Note on Article 6 The rights in Article 6 are the rights guaranteed by Article 5 of the ECHR, and in accordance with Article 52(3) of the Charter, they have the same meaning and scope. Consequently, the limitations which may legitimately be imposed on them may not exceed those permitted by the ECHR, in the wording of Article 5: ‘1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court; (b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law; (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority of 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; (d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority; (e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts, or vagrants; (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition. 2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his...
eBook - ePubThe ECHR and Human Rights Theory
Reconciling the Moral and the Political Conceptions
- Alain Zysset(Author)
- 2016(Publication Date)
- Routledge(Publisher)
...This lasted until 1994 when Protocol 9 was adopted and individual access was reformed (Article 44 and Article 48 as amended). The Commission was eventually abolished when Protocol 11 took effect in 1998 (Article 25 as amended). The quasi-judicial power of the ECtHR was to declare whether there was a breach of the ECHR, while the judgments would be eventually transmitted to the Committee of Ministers, which should supervise their execution (Article 54). When the Ministers reconvened for their sixth session, on 4 November 1950 in Rome, the governments of Belgium, Denmark, France, Germany, Iceland, Ireland, Italy, Luxembourg, the Netherlands, Norway, Saar, Turkey, and the UK signed the Convention for the Protection of Human Rights and Fundamental Freedoms. In substance, the ECHR contained the basic civil and political rights: the right to life (Article 2); the right to be free from torture, and inhuman and degrading treatment (Article 3); the right not to be held in slavery or servitude (Article 4); the right to personal liberty and security (Article 5); the right to a fair trial (Article 6); the right not to be punished without legal process (Article 7); the right to respect for private and family life (Article 8); freedom of thought, conscience and religion (Article 9); freedom of expression (Article 10); freedom of assembly and association (Article 10); the right to marry (Article 12); the rights to an effective remedy (Article 13); and prohibition against discrimination (Article 14). When it was opened for signature, the ECHR needed ten ratifications to enter into force. This was achieved on 3 September 1953 (Denmark, Germany, Greece, Iceland, Ireland, Luxembourg, Norway, the Saar, Sweden, and the UK). The Commission was then ready to receive petitions from both states and individuals, the latter being contingent on state acceptance of the right of individual petition...
eBook - ePub- Richard Gordon, Tim Ward(Authors)
- 2013(Publication Date)
- Routledge-Cavendish(Publisher)
...The case concerned freedom of movement. The ECJ concluded that a particular provision of Community law (Article 39(3) of the EC Treaty) was a ‘specific manifestation of the more general principle’ enshrined in Articles 8–11 of, and Article 2 of Protocol 4 to, the ECHR justifying limitation on free movement on limited public policy grounds. 17 As Jacobs and White observe, 18 the decision is especially significant because the recognition of the relevance of the ECHR provisions was unnecessary for the Court's ruling. 16 Case 36/75 Rutili v Ministre de l'Intérieur [1975] ECR 1219. 17 See para 32 of the judgment in Rutili summarising the effect of the cited ECHR provisions as being that ‘no restrictions in the interests of national security or public safety shall be placed on the rights secured … other than such as are necessary for the protection of those interests in a democratic society’. 18 See Francis G Jacobs and Robin CA White, The European Convention on Human Rights, 2nd edn, 1996, Clarendon, p 411. The modern view 7.14 Since Rutili, the Convention has become firmly established as an analytical tool of the ECJ. The ECJ has even subjected its own procedures to scrutiny on Convention grounds. In Emesa Sugar v Aruba, 19 it considered and rejected a challenge to the role of theAdvocate General based upon Article 6(1) of the ECHR. 19 Case C-17/98 Emesa Sugar (Free Zone) NV v Aruba (2000) The Times, 29 February. 7.15 Although the ECJ has advised in Opinion 2/94 on Accession by the Community to the ECHR 20 that the Community lacks competence to accede to the ECHR, that Court's Opinion contains a clear summary of the status of the ECHR in Community law. Materially, the ECJ observes thus: 20 [1996] ECR I-1759. It is well settled that fundamental rights form an integral part of the general principles of law whose observance the Court ensures...
eBook - ePubHuman Rights and the Protection of Privacy in Tort Law
A Comparison between English and German Law
- Hans-Joachim Cremer(Author)
- 2010(Publication Date)
- Routledge-Cavendish(Publisher)
...HUMAN RIGHTS AND THE PROTECTION OF PRIVACY IN TORT LAW In its case law, the European Court of Human Rights has acknowledged that national courts are bound to give effect to Article 8 of the European Convention of Human Rights (ECHR), which sets out the right to private and family life, when they rule on controversies between private individuals. Article 8 of the ECHR has thus been accorded mittelbare Drittwirkung or indirect ‘third-party’ effect in private law relationships. The German law of privacy, centring on the ‘allgemeines Persönlichkeitsrecht’, has quite a long history, and the influence of the European Court of Human Rights’ interpretation of the ECHR has led to a strengthening of privacy protection in the German law. This book considers how English courts could possibly use and adapt structures adopted by the German legal order in response to rulings from the European Court of Human Rights to strengthen the protection of privacy in the private sphere. Hans-Joachim Cremer is Professor of Public Law and Legal Philosophy at the University of Mannheim since 2000. He earned his doctorate at the University of Heidelberg. His dissertation on legal protection against expulsion and deportation won the University’s Ruprecht Karls Award in 1995. In 1999 he completed his Habilitation at Heidelberg. His post-doctoral thesis investigates the methodology of constitutional interpretation....
- Helen Fenwick, Gavin Phillipson, Alexander Williams(Authors)
- 2020(Publication Date)
- Routledge(Publisher)
...This body of law is confined to those areas covered by the Treaty of Rome 1957 and subsequent Treaties. Each Treaty (ie the Maastricht, Amsterdam, Nice and Lisbon Treaties) has been incorporated into UK domestic law by statute. The law emanating from Europe which applies in the United Kingdom includes regulations, directives, and decisions. EU membership also means that rulings from the European Court of Justice can be binding on domestic courts within the United Kingdom … Where it applies, EU law operates as a higher order law and will have the effect of overriding domestic legal provisions [though possibly not all—see chapter 4 at 150 and chapter 5 at 196–97]. European Convention on Human Rights Since the Human Rights Act (HRA) 1998 came into force in October 2000 the ECHR is incorporated as part of UK law. The ECHR can be regarded as amounting to a constitutional charter of rights. As we shall see in later chapters, the ECHR is an international treaty setting out basic individual rights including: right to life; liberty and security; prohibition of torture and slavery; right to fair trial; no punishment without law; right to respect for privacy and family life; freedom of thought, conscience, and religion; freedom of expression; freedom of assembly and association; and prohibition of discrimination. All public bodies, including the courts, are legally required to act in a way which is compatible with the above rights, and a remedy may be sought if these citizen rights are breached.… The Law and Customs of Parliament The law and customs of Parliament refers to the resolutions of the two Houses of Parliament which establish parliamentary practice (standing orders of the House). This body of rules is of great political importance and it ranges from the regulation of debates to the functions of the leaders of the government and opposition. These rules can be changed by MPs and peers...
