The deprivation of liberty by the police. International parameters and the jurisprudence of the European court of human rights

Abstract

The deprivation of one’s liberty by the police is quite a sensitive moment for the detainee because he/she loses contact with the outside world and some of his/her fundamental rights may be at risk. International law has been very aware of the need to properly regulate police procedures in order to guarantee all detainees’ rights. Both at the United Nations’ and at the European level, several international conventions were agreed on in order to establish minimum standards to protect human dignity. One of those agreed instruments, the European Convention for the Protection of Human Rights and Fundamental Freedoms, which was approved within the framework of the Council of Europe, has been of paramount importance in this regard. First of all, its Article 5 establishes quite detailed safeguards to protect detainees’ rights during the detention. Second, the Convention was accompanied by the creation of the European Court of Humans Rights, whose sentences are binding for the countries that ratified the Convention. The Court has repeatedly dealt with the different aspects regulated in Article 5. However, the Court has never precisely defined what a detention consists of. Different factors have been taken into consideration in order to ascertain, first, whether a detention has taken place and, second, whether it has been carried out with respect to all safeguards established in the Convention. It is true, however, that the parameters established by the Court in order to determine whether a detention can be defined as fair or not may vary depending on the circumstances of the case. The Court establishes quite insistently that one of the aims of Article 5 is to prevent violations of other rights (namely the ones protected by Articles 2 and 3) and is intended to guarantee that a detention takes place within the framework of rule of law, following legal provisions, and without any sort of arbitrariness.