Articles 5 of the European Convention of Human Rights - Case Study Example

2815 words Jane wishes to bring a claim against the police. Her likely claim in this case would be that the containment violated Articles 5 and 11 of the European Convention of Human Rights (ECHR). Article 5 provides that: "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:" In this case, it is important to consider whether the containment of Hope not Hate protesters fell within one of the exceptions provided for in Article 5 (1), and whether the containment was in accordance with a procedure prescribed by law. Article 5 provides for the right to liberty and security of persons. The Article, in sub paragraphs (a) to (f), provides exceptions where the right to liberty and security of persons can be limited. Limitation of the right is only justified where it is necessary and proportionate. Such deprivation should also conform to the provisions of Article 5 (2) to 5 (5). The essence of Article 5 is to prevent arbitrary deprivation of liberty by public authorities such as the police.1 The presumption of Article 5 is that all individuals have the right to liberty and the burden falls on the government to justify deprivation of the liberty. For the deprivation of liberty to be valid, it must satisfy the circumstances set out in Article 5. Where an individual is deprived of liberty, the government must show that such deprivation is necessary and proportionate to the objectives it aims to achieve and does not continue for longer than is necessary. This article requires public authorities to guarantee the right to liberty and security of persons. The article provides a safeguard against arbitrary detention for reasons not contained in law or Article 5 of the convention.2 In Steel and others v the United Kingdom, the five applicants participated in several protests. They were arrested and detained by the police for various criminal offenses. The applicants brought their claim to the European court of Human Rights alleging violation of their rights guaranteed by Article 5 (1) of the ECHR. The court found that there was no violation of Article 5 (1) as regards the first two applicants because their arrests and detention fell within the exceptions in Article 5 (1) sub paragraphs (a), (b) and (c). On the three other applicants, the court found that Article 5 (1) had been violated. The three applicants had been arrested while they were holding banners and handing out leaflets in a protest. They were detained for seven hours before being released without charges. Their detention did not comply with any law to fall within the meaning of Article 5 (1) and, therefore, it was a violation of the Article.3 Deprivation of liberty can occur without detention in a cell. Article 5 covers the liberty to move from one place to another. It is concerned with the deprivation of liberty and not restriction of liberty. Therefore, in establishing a breach, it is significant to distinguish between restriction of movement and deprivation of liberty. This distinction is based on the degree or intensity of the detention as opposed to the nature and substance of the detention. The type and the duration of the detention play an important role in this distinction.4 There are two elements are required to make a distinction between restriction of movement and deprivation of liberty. These elements are confinement to a place for a considerable period of time and an aggravating factor. The proper test to differentiate between deprivation of liberty and restriction of movement was established in Engel & Others v The Netherlands. In this case, the court distinguished between aggravated arrest and light arrest, which do not violate Article 5 and strict arrest, which violates the article. The applicants, in this case were soldiers who were disciplined for different military offenses. Light arrest meant that the soldiers were to remain in their houses during off-duty hours. Aggravated arrest required the soldiers to remain in a particular location, which was not locked. Strict arrest, on the other hand, meant that the soldiers remained at home while the uncommissioned soldiers were restricted to a cell. The court found that both light and aggravated arrests did not deprive the soldiers of their liberty because they were free to move freely and could receive visitors and make telephone calls. However, the court pointed out that strict arrest deprived the soldiers of their liberty under Article 5 because they were restricted from undertaking their daily duties. 5 In Guzzardi v Italy, the court found that deprivation of liberty is not based on a single factor but a combination of all factors that give rise to the violation of Article 5. In this case, Mr. Guzzardi had been classified as dangerous and was placed under supervision on a highland. Although he was not locked in a cell and could move freely, the movement was restricted to a small portion of the island. He could not interact with the general population and was housed in a building with poor conditions. Additionally, he could not move out of the house during some hours and was required to check in with the authorities twice daily. The court considered the entirety of the circumstances in holding that there was a deprivation of liberty.6 In considering whether an individual has been deprived of liberty, the courts do not look at the location of the detention but rather various elements such as the level and degree of coercion by the police and the area of detention. 7 Moreover, the intrusiveness and the frequency of supervision following the detention as well as the level of contact with the outside world are considered. There is a higher likelihood of deprivation of liberty with a smaller area of detention.8 In Gillan and Quinton v United Kingdom, the court stated that in distinguishing between deprivation of liberty and restriction of movement, the individual’s concrete situation should be the starting point. A range of criteria such as the duration, the type and the effects of the confinement should be considered. Detention without consent is considered an aggravating factor and such detention qualifies as deprivation of liberty.9 In Storck v Germany, the court found that holding an individual without valid consent amounts to deprivation of liberty. The court observed that a deprivation of liberty under Article 5 is not limited to the objective test of confinement for a period of time but also involves a subjective aspect, which is lack of valid consent for confinement 10 During the protest, the EDL staged an unauthorized counter protest and broke through the small police cordon that was present. The EDL protesters threw objects at the Hope not Hate procession resulting in some injuries. In retaliation, a small number of Hope not Hate threw back the debris at EDL. Police reinforcements arrived at the scene and contained the Hope not Hate protesters at a car park for five hours while the EDL protesters were dispersed. Jane, who is one of the Hope not Hate protesters makes a complaint to the police but is informed that the containment was necessary to prevent breach of peace. In this case, it is apparent that the confinement constituted a deprivation of liberty as opposed to restriction of movement. This is because the confinement did not allow the individuals to undertake their daily activities Engel11, and it was done without their consent Gillan.12 Deprivation of liberty can be justified if it is done in a manner prescribed by law. Kettling or containment of a crowd is a police tactic that is employed to control a crowd during demonstrations. Kettling involves the use of police cordons to contain a crowd within a limited space. This tactic leaves the protesters only a single exit or completely prevents the protesters from leaving the area. Kettling deprives the cordoned crowd access to water, food and other rights for the period determined by the police. The objective of kettling is to exhaust potential violent protesters.13 This technique is criticized because it is indiscriminate and results in the detention of innocent individuals and non-violent protesters. Additionally, kettling may infringe the right to liberty and security of persons. For this reason, ketttling has resulted in legal challenges because of alleged violation of human rights.14 In Austin & Others v The United Kingdom, the court found that kettling of protesters during the 2001 may day protests did not violate Article 5 of the ECHR because it was intended to prevent a breach of peace. The applicants in this claim were held up in a police cordon for nearly seven hours. One of the applicants was a protestor, another was shopping and two others were on lunch break. Police assessment of the situation was based on previous demonstrations where there had been public disorder. This assessment showed that the demonstration posed a serious threat to public order. In order to prevent violence and damage to property, it was necessary to kettle the protesters. The period the protesters were detained was prolonged because collective release of the protesters was difficult due to violence and incorporation by the protesters. Decisions of lower courts found that the containment was a deprivation of liberty under Article 5 (1) of the ECHR but it was justified by one of the purposes set out in Article 5 (1) a to f of the convention.15 The House of Lords and the Court of Appeal differed with the lower court and found that the containment did not amount to a deprivation of liberty. Moreover, the House of Lords pointed out that if the containment was a deprivation of liberty, then it could not be justifiable under Article 5 (1) (a) to (f) of the convention. The European Court of Human Rights in its majority opinion held that an imposing a coercive and restrictive measure in the interest of the public does not constitute a deprivation of liberty. This decision is based on the view that it is important to strike a fair balance between the protection of individual’s rights and the interests of the community, which is essential in determining if there is deprivation of liberty. Accordingly, kettling is only permissible if there is a breach of peace or the possibility of an imminent breach and should be used as a method of last resort in cases where other methods of preventing breach of peace are ineffective.16 In R (Moos) v The Commissioner of Police of the Metropolis, the court found that kettling must be proportionate. The Divisional court found that kettling of both violent and non-violent protesters was unreasonable, disproportionate and unreasonable.17 In Ziliberberg v Moldova, the court held that an individual’s freedom to enjoy the right to assembly does not cease due to sporadic violence by others in the course of a demonstration provided the individual remains peaceful.18 From this analysis it is evident that kettling is only permissible in order to prevent a breach of peace or imminent breach of peace. In Jane’s case, the containment was in violation of Article 5 because it could not be justified under Article 5 of the convention. This case is different from Austin19 because there was no breach or imminent breach of peace by Hope not Hate. The containment was also disproportionate because the police did not explore other options before resorting to kittling. Additionally, this right cannot be violated because of violence by others and it was upon the police to focus on the violent elements in the prevention of breach of peace Ziliberberg.20 Jane can also bring a claim for violation of Article 11 of the Convention. Article 11 provides for the right to peaceful assembly and association. These rights extend to meetings, processions, marches and demonstrations provided they are peaceful.21 The right is, however, subject to some limitations. A limitation of this right can only be justified if such interference is prescribed by law or is necessary in a democratic society.22 It was held in Djavit An v Turkey that the right to freedom of association and assembly are necessary in society and should not be restricted.23 In Steel, the applicants alleged that their detention was a violation of their right to the freedom of associated prescribed in Article 11 of the Convention. The court found that the requirement of Article 5 regarding deprivation of liberty is similar to that in Article 11 that it should be prescribed by law. The detention of the first two applicants was prescribed by law while the detention of the other applicants was not. On whether the actions were necessary in a democratic society, the court observed that the measures taken against the first two applicants were necessary in a democratic society while the actions taken against the other there applicants were disproportionate to the prevention of disorder and, therefore, not necessary in a democratic society. The actions taken against these applicants were disproportionate because they were engaged in a peaceful assembly and, therefore, a violation of Article 11. 24 In Laporte v Chief Constable of Gloucestershire Constabulary the court found that an action preventing the applicants and others from participating in a demonstration was an interference of their right to assembly and freedom of association. The applicants intended to take part in a protest. Police intercepted the coaches they were traveling in from London. The police claimed that some of the passengers intended to breach peace. The passengers were not arrested but were forced to return to London. The court observed that the law requires both the police and the citizens to prevent breach of peace or imminent breach. In this case, there was no breach or imminent breach of peace at the time the coaches were intercepted. Prevention of the applicants from participating in the demonstration was, therefore, a breach of the right to demonstrate as articulated in article 11. 25 From this decision in, it is evident that in order for a limitation of the right to freedom of assembly and association to be justified some elements must be met. The breach of peace must be imminent and this depends on the circumstances. If the limitation is justified, it must be proportionate, necessary and reasonable.26 Additionally, keeping two groups apart may be proportionate, necessary and reasonable if the combination of the group is likely to result in a breach of peace.27 In Plattform "Ärzte für das Leben" v. Austria, the association organized a march which was disrupted by counter-demonstrators who shouted down their recitations. Police formed a cordon between the two groups after the ceremony had ended. At a second demonstration, there were a number of opposing demonstrators and the police formed a cordon around the "Ärzte für das Leben" demonstrators to protect them from attack and subsequently cleared the venue to prevent disruptions. The court found that the police cordon did not violate Article 11 of the convention.28 The police are not only required to refrain from interfering but also to protect freedom of association from attacks by others.29 It was held in Oya Ataman v Turkey that public authorities are a required to show some degree of tolerance towards demonstrators who do not engage in violence in order to safeguard the freedom of assembly.30 In Ziliberberg, the court stated that the police should only focus on the violent elements in an assembly. 31 In Olinger v Austria where there were competing meetings, the court found that it would have been possible to keep the two groups apart. This option would have preserved the applicant’s right under Article 11 while providing protection for the meetings.32 Moos involved two demonstrations within the city of London. The first demonstration involved some violence and the police cordoned the demonstrators by blocking all exits. The demonstrators were held in the cordon and dispersed in the evening. The other demonstration was peaceful and there was not an imminent breach of peace. When the demonstrators in the first group were dispersed, the police decided to contain the second group within a specific location. The containment of the second group was done to prevent the members of the first group from joining the second group, as this would result in a likely breach of peace. The claim in the case was that containment of the second group was disproportionate, unnecessary and unreasonable. It was held that the containment was not lawful and in breach of Article 11. 33 In Jane’s case, their detention was not prescribed by law as provide for under Article 11 and, therefore, a violation of the right to peaceful assembly and association.34 There was no breach or imminent breach of peace by the protesters35. The detention was also disproportionate unnecessary and unreasonable because the protesters were peaceful.36 The police were required to show tolerance to the group and their containment was in violation of Article 11 because it was not meant to protect the demonstrators.37 Table of cases Austin & Others v The United Kingdom [2012] ECHR 459, (2012) 55 EHRR 14 Djavit An v Turkey [2003] ECHR 91, (2005) 40 EHRR 45 Engel & Others v The Netherlands (1976) 1 EHRR 647 Gillan and Quinton v United Kingdom [2010] ECHR 28, (2010) 50 EHRR 45 Guzzardi v Italy (1980) 3 EHRR 333 Laporte v Chief Constable of Gloucestershire Constabulary [2006] UKHL 55 Olinger v Austria (2008) 46 EHRR 38 Oya Ataman v Turkey (2006) ECHR Plattform "Ärzte für das Leben" v. Austria [1988] ECHR 15 R (Moos) v The Commissioner of Police of the Metropolis [2012] EWCA Civ 12 Steel and others v. the United Kingdom (1998) 28 EHRR 603 Storck v Germany [2005] ECHR 406, (2005) 43 EHRR 96 Ziliberberg v Moldova [2005] ECHR 51 Table of legislation European Convention for the Protection of Human Rights and Fundamental Freedoms Bibliography Cline D, ‘Deprivation of Liberty: Has the European Court of Human Rights Recognized a Public Safety Exception.’ (2013) 29 Merkourios-Utrecht J. Intl & Eur. L. 23 Feldman D, ‘Containment, deprivation of liberty and breach of the peace.’ (2009) 68 The Cambridge Law Journal: 243 Feldman D, ‘Deprivation of liberty in anti-terrorism law.’ (2008) 67 The Cambridge Law Journal 4 Halstead P, Unlocking human rights (Routledge, 2014) Hamilton M, ‘Freedom of assembly, consequential harms and the rule of law: Liberty-limiting principles in the context of transition.’ (2007) 27 Oxford Journal of Legal Studies 750 Kitterman C, ‘United Kingdoms Human Rights Act of 1998: Will the Parliament Relinquish Its Sovereignty to Ensure Human Rights Protection in Domestic Courts,’ (2000) 7 The ILSA J. Intl & Comp. L. 583 Lennon G, ‘Police powers: Article 5 ECHR and crowd control.’ (2009) 3 Web Journal of Current Legal Issues Macken C, ‘Preventive detention and the right to personal liberty and security under Article 5 ECHR.’ (2006) 10 The International Journal of Human Rights 195 Mead D, ‘Kettling comes to the boil before the Strasbourg court: is it a deprivation of liberty to contain protesters en masse.’ (2012) 71 The Cambridge Law Journal 472. Murdoch L, Article 5 of the European Convention on Human rights: the protection of liberty and security of person (Vol. 88. Council of Europe, 2002) Palmer E, ‘The liability of functional public authorities for breach of ECHR rights: the house of lords endorses a palpable gap in human rights protection.’ (2008) 16 Medical law review 141 Wedderburn L, ‘Freedom of association or right to organize?’ (1987) 18 Industrial Relations Journal 244 Read More