Critical Analysis Of Article 5 Of The ECHR In Medical Law Essay.

The European Convention of Human Rights: An Overview

Discuss About The Medical Law Children And Mental Health?

The Convention for the Protection of Human rights and Fundamental Freedoms has attained a new name and this is the European Convention of Human Rights, i.e., ECHR. This Convention is an international treaty which offers protection to the fundamental freedoms, as well as, human rights in Europe[1]. This Convention was drafted back in the year of 1950, by the Council of Europe, which was newly formed at that time, and the same came into force from the date of September 3rd, 1953. The member states of the Council of Europe are a part to this treaty, and eve the new members are required to ratify the same, as soon as possible[2].

ECtHR, or the European Court of Human Rights, had been formed under this convention for the purpose of providing a stage, whereby a claim can be made by a party, which feels that their rights, provided under this convention, have been contravened. However, only a state party can take such a case before the ECtHR. And the verdicts given by the ECtHR is binding upon the respective states and have to be necessarily executed by them. The execution of these judgments is ensured by the Committee of Ministers of the Council of Europe[3].

This convention consists of three different parts, as amended by Protocol 11. Section I, containing articles 2-18, contains the rights and freedoms; Section II, containing articles 19-51, set up the Court, along with the rules of operation; and Section III contains the different concluding provisions. One of the articles contained in Section I, provides the right of liberty and security to the individuals. The young individuals and the children also have the right to not be deprived of their liberty without a proper legal authorization and review[4]. In the following parts, this very protection given to the individuals below the age of 18 years, through Article 5, with a particular reference to the methods of authorization and review, has been critically analyzed.

Article 5 of the ECHR contains the rights, which an individual has, with regards to the liberty and security[5]. As per this article, each and every individual has the right to have and enjoy their liberty and security. An individual cannot be deprived of their liberty, unless the same is for the specified cases and is as per the procedure which has been prescribed by the law[6]. The specified cases include:

• An individual being legally detained after being convicted by a competent court;
• An individual being detained or arrest in a lawful manner, due to the failure in complying with the legal order of a court of law, or with the reasons of securing the obligations which have been prescribed through the law;
• An individual being detained or arrest in a lawful manner, which has been effected for the reasons of bringing such an individual before the competent legal authority due to a reasonable suspicion of having being indulged in an offence, or in such cases where it becomes reasonably important to prevent such individual from fleeing after committing a crime, or from carrying out a crime;
• A minor being detained due to a legal order for the reasons of educational supervision or such minor’s legal detention with the objective of bringing him before a competent legal authority;
• A individual being lawfully detained so that the individual could be prevented from spreading an infectious disease, or a person who is of unsound mind, or is an alcoholic or drug addict, or is a vagrant;
• An individual being detained or arrested in a lawful manner so as to stop him from undertaking an unauthorized entry in a country or of such an individual against whom, some or the other action is being taken, with a view of extradition or deportation[7].

Article 5 of the ECHR: Rights of Liberty and Security

When any of such cases take place, the individual who has been arrested, has to be informed immediately regarding the reasons for the arrest which have been made, and the charges which have been laid down against him, and this has to be done in a language, which the arrested individual can understand[8].

In accordance with the provisions of Article 1(c), the detained or arrested individual has to be brought immediately before an officer who has been authorized by the law, or before a judge, to exercise their judicial power[9]. Moreover, such an individual is entitled to a fair trial, which has to be conducted within a reasonable period of time, or the individual has to be released pending the trial. This release, though, can be done with certain conditions, for instance, to guarantee that the individual would appear before the court for the trial[10].

Each and every individual, who has been deprived of their liberty, due to being detained or arrested, has to be entitled to take the proceedings through which the legality of his arrest and detention has to be decided by the court in a speedy manner. In case the detention or arrest is not held as lawful, the individual has to be released pursuant to release order given by the court of law. In addition to this, such an individual, who has been a victim of detention or arrest, which results in contravention of this Article’s provisions, has the right of being compensated for such behavior[11].

Article 5 contains the word minor, which means an individual below the age of 18. In the case of Regina v Wigan Metropolitan Borough Council, Ex parte Tammadge[12], a noteworthy discussion was provided with regards to the scope of Article 5(1) (d), which relates to the detention of minors. In this particular case, the appellant was a 15 year old boy, who was not under the control of his parents, as per the claims. It was alleged that this boy was preoccupied with sex and could become aroused sexually whenever he was aggressive or angry. Another claim was made as per which he was a threat to the other children and even to himself. In the later parts of 1998, he was charged with assault on young residents and staff in his placement and of indecent assault. This kid was also involved in two separate incidents of arson. As per section 25 of the Children Act, 1989, a secure accommodation order was imposed on the child on June 30^th, 2000. In order to authorize the continued detention of this kid, the Council applied for this order, in a secure accommodation unit located in Staffordshire[13].

Analysis of Article 5 (1) (d) of ECHR on Detention of Minors

An appeal was made against this particular order. On behalf of this boy, an argument was made that section 25 of the Children Act, 1989[14] was not compatible with the Human Rights Act, 1998, by making reliance over the Article 5 of ECHR. The issue which was raised before the court was did the order which was made regarding the secure accommodation, could be treated as a deprivation of liberty. Further, if such was to be treated as deprivation than under which category of Article 5(1) it would fall[15]. 

The application was dismissed by the court and it held that the order made regarding the secure accommodation order was indeed a deprivation of the liberty of the kid. Moreover, this deprivation was as per Article 5 (1)(d) of ECHR. While giving this verdict, the decision given in the case of Koniarska v United Kingdom[16] was followed. It was held that Article 5 (1)(d) of ECHR was related to the detention of minors, and did not relate to the detention of individual who were below the official age of leaving school. Hence, just because the boy had cross the official age of leaving school, a detention as per the specific order could not be deemed as for the purpose of educational supervision[17].

The words educational supervisions, in the context of detention of minors, do not have to be equated with the classroom teaching notion, in a rigid manner. With a specific reference to the context of an adolescent in a local authority care, a number of aspects are embraced by the educational supervision regarding the exercise of parental rights by the local authority for the protection and benefit of the youth. The decision given in Regina v Wigan Metropolitan Borough Council, Ex parte Tammadge provides a clarity regarding this aspect.

The age of minor being below 18, was further affirmed in the case of X v Switzerland[18]. In this case also, a child of less than 15 years of age was involved, who had a history of offences in his portfolio, including that of theft and traffic.  Here also, the applicable article of ECHR was held to be Article 5 (1)(d) of ECHR. The juvenile in this case had been accused of a range of different offences and he was placed in a closed institution for observation and even a psycho-medical expert report was drawn up[19]. However, a decision different from that of Regina v Wigan Metropolitan Borough Council was given in this case. This is because of the slight change in circumstances, which changed the entire verdict. Unlike the case of Regina v Wigan Metropolitan Borough Council, in X v Switzerland, the detention was held to be legal in this case. This was because the procedure which has been prescribed by the law was properly followed in this case. A proper investigation was undertaken in this case by the office of public prosecutor for the juvenile cases. This affirms that due to the applicability of Article 5 of the ECHR, the rights of the children are protected. As was seen in this case, the juvenile was presented with a proper investigation, which provided legality to the actions undertaken by the court, in form of the order made. 

Regina v Wigan Metropolitan Borough Council, Ex parte Tammadge

Article 5 (1)(d) of ECHR does not only provide the provisions enabling a minor’s detention, it also contains specific, though not exhaustive, examples of such situations where the minors can be detained for the purposes of brining them before a competent legal authority or for their educational supervision. In the case of Mubilanzila Mayeka and Kaniki Mitunga v Belgium[20], a number of articles of the ECHR were contravened, and amongst this were the articles 5(1) and 5(4)[21].

Article 5(1) of the ECHR was held to have been contravened as per the court as the child had been detained as per the law, where no provisions were present which were specific to the minors, for a centre which was meant for the adults, and so, it was extremely unsuitable for the vulnerable situation in which the child was. And the court was of the view that the liberty of the child has not been protected in an adequate manner. Article 5(4) of the ECHR was also violated in this case. This was because the child was deported, without given any consideration to the fact that an application had been lodged by her for release, and even more so, the same had already been granted. Due to these reasons, the application had been rendered ineffective[22].

Article 5(1)(d) of the ECHR’s first limb gives authority of detaining a child based on an administrative or court order, so that the attendance of the child can be secured at an educational establishment. And as has already been mentioned and established through Regina v Wigan Metropolitan Borough Council, the wordings educational supervision, cannot be rigidly equated with the notion of classroom teaching. A range of aspects of parental rights, regarding the exercise of authority, for the protection and benefit of the individual involved, has to be supervised under this[23].

In Bouamar v Belguim[24], the plaintiff was a 17 year old kid, who was also a Moroccan citizen and was placed temporarily in borstal nine times, just because there had been a scarcity in finding an institution or a person, who would take him in. overall, the minor had been deprived of his freedom for a period of 119 days. The court held that the state was required to set up proper infrastructure for carrying out its function. This was due to the fact that the minor had opted for a system as per which the juvenile offenders had to be monitored. And the detention which the minor had to undergo was irregular in nature and thus breached both Article 5(1) and 5(4)[25].

X v Switzerland

In the matter P. and S. v. Poland[26], mother and daughter were the applicants in the case. At the age of 14, in 2008, the daughter became pregnant due to being raped. The absence of a comprehensive legal framework was complained by the applicant, which could guarantee the daughter with a timely, as well as, an unhindered access to abortion as per the conditions placed through the relevant laws, and regarding the information pertaining to the case being disclosed to the public. A complaint was also made pertaining to the daughter being removed from the custody of her mother, and being placed in a juvenile shelter, and later on in a hospital, as being illegal an unlawful. They claimed that the circumstances which took placed amounted to a degraded and inhumane treatment. It was held by the court that there had been a contravention of three articles, i.e., 3, 5 and 8. Article 5 was contravened as the detention of the child had been unlawful and was done only to prevent the abortion[27].

The case of Ichin and Others v. Ukraine[28] revolves around two boys, who were of the ages of 13 and 14, and were held for 30 days in a juvenile holding facility as they had robbed some kitchen appliances and food from the canteen of the school. This took place even when the boys had made a confession about the committed theft and also had returned the stolen goods partly, and were below the age of criminal responsibility. The court held that the detention of the boys failed to provide the needed educational supervision and so, the Article 5(1) of the ECHR was contravened in this case[29]. They further stated that the juvenile holding facility was not suitable for the boys and there was an absence of intent to present them before the competent legal authority[30]. A juvenile holding facility, in itself cannot be constituted as educational supervision in the view of court, when there is an absolute lack of educational activities.

In case a system of education supervisions is opted by a State, which involves a deprivation of the liberty, it becomes obligatory in such state, to put in place, proper institutional facilities, which can meet both the educational and security demands of the system, so that the requirements placed under Article 5(1)(d) can be satisfied[31].

In the matter of Amie and Others v. Bulgaria[32], due to the lack of realistic prospect of the expulsion of Amie, the deportation could not be justified for the entire period of his detention. This was in addition to the failure on part of the domestic authorities in conducting the proceedings with proper and required diligence. The Court could not find that the domestic proceedings, which took place in Bulgaria, were compliant with the conditions stated in Article 5(4). This was due to the time which was taken by the national courts, in making a determination, regarding the legal challenges to the detention order, as these were not compliant with the requirements of the provisions of the decision being taken in a speedy manner. In addition to this, the failure of the courts in getting a release order directly was also in contravention to Article 5(4) as this provision presents the remedies, through which the decision making body has the ability of releasing the detainee[33].

Applicability of Educational Supervision in Detention of Minors

In the legal matter of D.G. v. Ireland[34], a minor was detained in the St. Patrick’s Institution and he made an application that Articles of ECHR, i.e. Article 3, 5, 8 and 14 had been breached due to this detention[35]. It was held by the courts that the detention of the applicant, who was a minor, was not done for the educational supervisions, as has been described for the purposes of Article 5(1)(d). And hence, this article was held to have been breached. For this particular violation, as per Article 5(5) of the ECHR, the minor was awarded non-pecuniary damages to the amount of €5,000, along with €16,138.96, as being the cost and expenses incurred by him[36].

Article 5(1)(d) of the ECHR’s second limb administers the legal detention of a minor so that he can be presented before the competent legal authority. The travaux préparatoires provided that this particular provision was brought with the intention of covering the detention of a minor before the administrative of civil proceedings are initiated, while Article 5 (1)(c) provided the provisions with regards to detention of an individual with regards to criminal proceedings. Though, the detention of a minor, who has been accused of a crime when the psychiatric report is prepared, which is required for taking a final decision regarding the mental condition of such a minor, is considered as a detention for the purpose of bringing the minor, as per sub-paragraph (d), before a competent authority[37]. An example of this could easily be seen in the case of X v Switzerland, mentioned earlier.  

Conclusion

The conclusion is very clear in this study. European Convention on Human Rights and Fundamental Freedoms, or the newly named ECHR provides various protections to the individuals with regards to their rights. A specific article of ECHR, i.e., Article 5, protects the individuals from being deprived of their liberty without having a legal backing and proper review. This is with a particular reference to the children and young people, who have been protected through this Article, time and again, and this is evident from the number of case laws highlighted above. This article ensures that the minors, if detained, have been given the proper treatment and that the reasons for the detention are as prescribed under it. Any violation of this article, not only results in a negative order being passed against the party violating this article, but also provides the damages to the affected minor. Hence, it can be clearly and aptly concluded that Article 5 does protect the children below the age of 18

References

Amie and Others v. Bulgaria 58149/08

Bouamar v Belguim 11 EHRR 1 1987

D.G. v. Ireland 39474/98

Ichin and Others v. Ukraine 28189/04 & 28192/04

Koniarska v United Kingdom (2000) (Unreported, 12/10/2000)

Mubilanzila Mayeka and Kaniki Mitunga v Belgium 13178/03

1. and S. v. Poland 57375/08

Regina v Wigan Metropolitan Borough Council, Ex parte Tammadge (1998) 1 CCLR 581

X v Switzerland 8500/79

Statutes and statutory instruments

Children Act, 1989

European Convention of Human Rights

Human Rights Act, 1998

Secondary Sources

Books

Bates E, The Evolution of the European Convention on Human Rights: From Its Inception to the Creation of a Permanent Court of Human Rights (Oxford University Press 2010)

Goldhaber MD, A People's History of the European Court of Human Rights (Rutgers University Press 2009)

Harris D, O'Boyle, M, Bates E, and Buckley C, Harris, O'Boyle & Warbrick: Law of the European Convention on Human Rights (3^rd edn, Oxford University Press 2014)

Schabas WA, The European Convention on Human Rights: A Commentary (Oxford University Press 2015)

Verhellen E, Monitoring Children's Rights (Martinus Nijhoff Publishers 1996