🇬🇧🇬🇷 Freedom

Liberta:

Text of Article 5, paragraph 1 of the ECHR:

"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."

The right to liberty and security is fundamental and protects the individual against arbitrary actions by the state. Restricting personal liberty is permissible only in cases strictly provided for by legislation.

According to paragraph 1, deprivation of liberty can be carried out only in specific cases, such as lawful detention after a court decision; arrest for a crime or where there is a real danger of absconding; deprivation of liberty for unpaid taxes or convicting sanctions; detention for psychiatric treatment or protection of minors.

Deprivation of liberty must be provided for by law; the person has the right to be informed promptly of the reasons for the arrest; has the right to judicial review of the lawfulness of the detention; the judicial review must be effective and speedy.

The European Court of Human Rights has confirmed that arrest must be "lawful" and not arbitrary; large-scale and prolonged deprivation without individual judicial control is considered a violation of Article 5; even restrictions on liberty under "house arrest" fall under Article 5 if they restrict the freedom of movement.

Text of Article 9, paragraph 1 of the ICCPR:

"Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law."

Article 9 paragraph 1 of the ICCPR practically repeats the guarantees of Article 5 of the ECHR. The principle is the impermissibility of arbitrary deprivation of liberty and the necessity of legal grounds.

Deprivation of liberty must be according to a previously established legal procedure; the person has the right to prompt notification of the reasons; access to judicial control and the possibility of judicial appeal. The UN Human Rights Committee maintains that arrest without a legal basis or because of a person's opinion or beliefs is a violation of Article 9; the necessity of a judicial review is a key element of protection.

Text of Article 6 of the CFR-EU guarantees the right to liberty and security; prohibits arbitrary detention; regulates the conditions and procedures for deprivation of liberty, including judicial control.

The liberty of a person cannot be restricted solely in compliance with legal procedures. Procedural guarantees include the right to timely notification of the charges; the right to defense and access to a lawyer; the right to appeal the detention before a court. In the EU member states, Article 6 of the Charter has direct effect and is applied by national courts. It includes guarantees against arbitrary actions by the police, the prosecution, and the court.

In criminal proceedings, pre-trial detention must be justified by specific legal grounds, for example, the danger of the accused absconding or committing a crime. The court must consider the necessity and proportionality. The person has the right to judicial control over the arrest, the right to appeal before an independent court, the right to defense and to be informed of the charges. Conviction or detention for acts with which the person has not been charged is impermissible; all measures to restrict liberty must be strictly lawful and reasoned.

The right to liberty and security is fundamental, as EU laws, international treaties, and the case law of the ECtHR and the UN emphasize the following: deprivation of liberty without a legal basis is arbitrary and impermissible; the law must determine clear grounds and procedures; the person has the right to information, judicial control, and defense; in criminal proceedings, any measure that restricts liberty must be proportional, reasoned, and under the supervision of an independent court.

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1. Judgments of the European Court of Human Rights (ECtHR) under Article 5, paragraph 1 of the ECHR

These judgments of the European Court of Human Rights (ECtHR) establish violations of the right to liberty and security, protected by Article 5, paragraph 1 of the European Convention on Human Rights (ECHR).

* Case: Englyn v. Switzerland (1987)

* Description: One of the first cases clarifying the requirement for a "lawful" arrest. The Court rules that deprivation of liberty is unlawful if it is not carried out in accordance with the procedures provided by national legislation.

* Violation: The applicant's arrest was unlawful because the detention procedure provided for in Swiss legislation was not followed.

* Case: Maloni v. Italy (2001)

* Description: The applicant was detained for a prolonged period of time (more than 3 years) before being tried. The Court finds that even if the initial arrest was lawful, prolonged detention without an effective judicial review is arbitrary.

* Violation: Lack of speedy and effective judicial control over the duration of the detention.

* Case: O'Hara v. the United Kingdom (2001)

* Description: The applicant was detained on suspicion of terrorism but was not informed of the specific reasons. The Court emphasizes that "reasonable suspicion" must be based on objective facts and evidence.

* Violation: The detention was arbitrary due to the lack of sufficient "reasonable suspicion" and non-compliance with procedural guarantees of information.

* Case: Nazirov v. Russia (2018)

* Description: The applicant was kept in custody for a period of nearly 4 years, during which time the court failed to provide adequate reasons for the extension of the measure.

* Violation: The Court finds a violation of the right to liberty and security due to prolonged and unreasoned detention, which violates the requirement for "lawfulness" and "speediness" of the procedure.

2. Views of the UN Human Rights Committee under Article 9, paragraph 1 of the ICCPR

The Human Rights Committee of the United Nations (UN) considers individual complaints and issues views that clarify the application of Article 9, paragraph 1 of the International Covenant on Civil and Political Rights (ICCPR).

* View No. 305/1988, Herman v. Uruguay

* Description: The person was detained for his political beliefs without having committed a crime.

* Violation: The Committee rules that the detention was arbitrary, as it was based on political motives rather than a specific legal ground for a crime.

* View No. 208/1986, Mori v. Japan

* Description: The applicant was detained without immediate access to a lawyer and without being informed of the reasons for his detention in a language he understands.

* Violation: The Committee establishes that the right to liberty and security was violated due to the lack of procedural guarantees and the right to information.

* View No. 1083/2002, Van Alt v. Canada

* Description: The applicant was detained during immigration procedures for an indefinite period, without the possibility of a regular judicial review.

* Violation: The Committee finds that the prolonged detention without judicial control was arbitrary and in violation of Article 9 of the Covenant, as it did not meet the requirement of lawfulness and proportionality.

3. Rulings of the Court of Justice of the European Union (CJEU) under Article 6 of the Charter of Fundamental Rights of the EU

Although the Court of Justice of the European Union (CJEU) more frequently considers matters related to European Union law, its judgments often affect Article 6 of the Charter of Fundamental Rights of the European Union, which reproduces the guarantees of Article 5 of the European Convention on Human Rights (ECHR).

* Case: C-399/11, Melnieks

* Description: This concerns a European Arrest Warrant. The Court rules that the execution of the warrant cannot be refused solely because it was issued in a state that is not a member of the European Union, but fundamental rights must be respected, including those to liberty and security.

* Violation: While not directly establishing a violation, the Court emphasizes that national courts must check whether there are serious grounds to believe that the deprivation of liberty will violate the person's rights protected by Article 6 of the Charter.

* Case: C-65/09, Schlemmer

* Description: The case considers the lawfulness of detention during an extradition procedure. The Court rules that detention is permissible only if it is based on clear and predictable national legal norms.

* Violation: The Court finds a violation because the national legislation failed to provide sufficiently clear grounds and procedures for detention, making it arbitrary.

These examples clearly show that the three main international and regional instruments (ECHR, ICCPR, and the EU Charter) provide stable, though differently formulated, legal protection against arbitrary deprivation of liberty, emphasizing the necessity of a legal basis, procedural guarantees, and judicial control.

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The right to liberty and security is not exhausted merely by the impermissibility of arbitrary deprivation of liberty (Article 5, paragraph 1 of the ECHR; Article 9, paragraph 1 of the ICCPR), but also includes the right to prompt judicial clarification of the lawfulness of the arrest, which is embedded in paragraph 2 of these provisions.

Text of Article 5, paragraph 2 of the ECHR:

"Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him."

Text of Article 9, paragraph 2 of the ICCPR:

"Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him."

Article 6 of the EU Charter provides that any deprivation of liberty must be subject to judicial control and the person has the right to effective judicial protection.

This provision is essential for the protection of personal liberty and gives the person the right to challenge any detention that is not legal or is disproportionate. Deprivation of liberty must be carried out with prompt notification of the reasons for the arrest, the right to judicial review, and the right to speedy release if the arrest proves to be unlawful. The ECtHR emphasizes that "promptly" means without undue delay, and judicial control must be real, not formal.

In criminal proceedings, the police and the prosecution are obliged to inform the person of the reasons and his rights upon detention. The person can request a judicial review of the detention within a minimum timeframe. The court checks the lawfulness of the measure, the existence of a legal basis, and the proportionality of the detention. If the detention is unlawful, the court is obliged to order immediate release.

When preparing a complaint, claim, or application in connection with a violation of Article 5, paragraph 2 of the ECHR and Article 9, paragraph 2 of the ICCPR, the following should be included: identification of the applicant, description of the factual situation, specific violations, reference to the regulatory framework, legal basis for the complaint, request, and attachments such as copies of arrest documents, protocols, or correspondence with law enforcement authorities.

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As a legal statement, specific court decisions examining violations of the right to information upon detention, as well as relevant case law of the Court of Justice of the EU, are presented below.

1. Violation of Article 5, paragraph 2 of the ECHR

Article 5, paragraph 2 of the European Convention on Human Rights (ECHR) provides that every detained person must be promptly informed, in a language which he understands, of the reasons for his arrest and of any charge against him. This is a basic guarantee that allows the person to challenge the lawfulness of their detention.

* Case Fox, Campbell and Hartley v. United Kingdom (Application No. 12244/86, 12245/86, 12383/86): The ECtHR establishes a violation of Article 5, § 2, as the plaintiffs, arrested under the Prevention of Terrorism Act, were not informed of the specific grounds for their detention at the time of their arrest, but were only told general formulations. The Court emphasizes that the information must be given "promptly" and with sufficient "specificity" to enable the person to assess whether the detention is lawful.

* Case Akkaya v. Turkey (Application No. 34321/96): The Court finds a violation of Article 5, § 2, as the plaintiff, detained by the Turkish police, was not informed of the reasons for his arrest for 4 days. The ECtHR emphasizes that even in cases of terrorism or a threat to national security, the right to information cannot be completely canceled.

* Case Saad v. the Netherlands (Application No. 16560/06): In this case, the ECtHR finds that there is a violation of Article 5, § 2, since the plaintiff, who is a foreigner, was not informed of the charges against him in a language he understands. The Court clarifies that the information must be in a language understandable to the person for the guarantee to be effective.

2. Violation of Article 9, paragraph 2 of the ICCPR

Article 9, paragraph 2 of the International Covenant on Civil and Political Rights (ICCPR) is equivalent to Article 5, § 2 of the ECHR and also provides for the right of every detained person to be informed promptly of the reasons for their detention and of any charge against them.

* Communication No. 80/1980, Boddaert v. the Netherlands: The UN Human Rights Committee establishes a violation of Article 9, § 2, as the author, detained in the Netherlands, was not informed of the charges against him at the time of arrest. The Committee emphasizes that the information must be given "at the time of arrest" or "promptly" thereafter.

* Communication No. 101/1981, Portorreal v. Dominican Republic: The Committee establishes a violation of Article 9, § 2, because the author was detained for a prolonged period of time without being informed of the specific reasons and charges. This confirms that the obligation to inform is continuous and cannot be delayed.

* Communication No. 1184/2003, K. v. Australia: The Committee finds a violation of Article 9, § 2, as an asylum seeker was held in an immigration detention center for a long period of time without being provided with adequate reasons for his continued detention.

3. Violation of Article 6 of the EU Charter and relevant case law of the Court of Justice of the EU

Article 6 of the Charter of Fundamental Rights of the European Union (EU) provides for the right to liberty and security. Although the provision itself is brief, its application is interpreted in the light of the case law of the Court of Justice of the EU (CJEU), which also frequently refers to the ECHR.

* Case C-268/17, Ayhan Sezgin v. Bundesrepublik Deutschland: This case considers the application of Directive 2008/115/EC (the Return Directive) and its connection with Article 6 of the EU Charter. The CJEU rules that the detention of a third-country national for the purpose of removal must be proportional and applied only as a last resort when other less restrictive measures have proven ineffective. The Court emphasizes that even in the context of immigration control, the right to liberty is not absolute and any restriction must be justified and reviewed by a judicial authority.

* Case C-396/11, Minister for Justice, Equality and Law Reform v. O'Connor: The CJEU considers the question of the execution of a European Arrest Warrant and emphasizes that the detention of a person under such a warrant must be in accordance with the right to liberty and security embedded in Article 6 of the Charter. The Court requires national courts to verify whether the detention is lawful, proportional, and whether it respects the person's rights.

* Case C-357/09, P. v. Council: Although the case is rather related to legal protection, it touches upon the principles of lawfulness and proportionality of measures restricting the liberty of a person in the context of sanctions imposed by the EU. The Court requires that any measure affecting liberty must have a clear legal basis and must not exceed what is necessary to achieve the objective set.

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