Preventive arrest in criminal procedure and police law in light of Article 5 of the ECHR

Abstract

Preventive arrest is a controversial instrument of crime prevention that is commonly regulated in police law and in some criminal procedures. Its conformity with Article 5 of the European Convention on Human Rights (ECHR) has been the subject of many decisions and judgments of the European Court on Human Rights. Since its judgment in the Ciulla case in 1989, the Court has been of the opinion that § 1 (b) of Article 5 is applicable to preventive deprivation of liberty, which requires that detention be applied to secure the fulfilment of any obligation prescribed by law, if the obligation is specific enough. On the contrary, in the Court's opinion, § 1 (c) of Article 5 is inapplicable outside the framework of criminal procedure. In the judgment of 22 October 2018 in the case of S., V., and A. v. Denmark, the Grand Chamber took the opposite view, which calls for an analysis of how far preventive arrest is allowed under the ECHR. The analysis and European standards may also be of interest to researchers from non-European countries, as the problem of the use of preventive arrests is discussed worldwide.