Article 5

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ECHR section I: 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16 , 17 , 18

ECHR section II (Articles 19-51)

ECHR section III (Articles 52-59)

Protocols: 1, 4, 6, 7, 12, 13, 14

Related cases

Any cases with a hyperlink to this legislation will automatically be added here. There may be other relevant cases without a hyperlink, so please check the mental health case law page.

  • Austin v Commissioner of Police of the Metropolis (2009) UKHL 5 — (1) The difference between deprivation of and restriction upon liberty is merely one of degree or intensity, not one of nature or substance; it is highly sensitive to the facts of each case. (2) Where the purpose of the measure is relevant, it must be to enable a balance to be struck between what the restriction seeks to achieve and the interests of the individual; there is room, even in the case of fundamental rights, for a pragmatic approach which takes full account of all the circumstances; however, in general, purpose is relevant, not to whether the Article 5 threshold is crossed, but to justification under 5(1)(a) to (e). (3) Measures of crowd control will fall outside the ambit of Article 5 so long as they are not arbitrary, i.e. they must be resorted to in good faith, they must be proportionate, and they must not be enforced for longer than is reasonably necessary; the confinement by the police of the claimant for seven hours in Oxford Circus in order to avoid physical ..→
  • Brand v The Netherlands 49902/99 (2004) ECHR 196 — Transfer from prison to a clinic was delayed for 14 months; immediate transfer was not expected but, on the facts, the delay breached Article 5(1) and damages were awarded.
  • Cotterham v UK (1999) ECHR 185 — The 10-month delay between the MHRT application and the hearing at first sight appeared to be a breach of Article 5(4); however, in the circumstances, there was no lack of diligence on the part of the judicial authorities: the delays were due to postponements for an independent report which arrived late and was served later still, and for the solicitor to be available.
  • Drew v UK 35679/03 (2006) ECHR 1172 — The requirement to pass an automatic life sentence for the second serious sexual or violent offence in the absence of exceptional circumstances, even for a mentally-disordered offender, did not breach Article 3 or 5.
  • G v E (2010) EWCA Civ 822 — The judge was right to reject the appellant's submission that Article 5 places distinct threshold conditions which have to be satisfied before a person lacking capacity can be detained in his best interests under the MCA 2005. The MCA generally, and the DOLS in particular, plug the Bournewood gap and are Article 5 compliant.
  • G v E (2010) EWHC 621 (Fam) — E lacked capacity and was being deprived of his liberty at a residential unit by the local authority. They had breached his Article 5 rights by doing so without seeking a DOLS authorisation or court order, and had breached his Article 8 rights by actions including a failure properly to involve his carer. However, the court authorised continuing deprivation of liberty at the residential unit pending the final hearing as this was in his best interests. There is no threshold condition for an order under s16 depriving someone of his liberty, other than that P lacks the relevant capacity. When considering DOL there is a clear distinction between a placement at home, with family or an adult carer, and a residential placement. Hearsay from an incompetent witness is admissible but no weight would be given to E's statements.
  • Gajcsi v Hungary 34503/03 (2006) ECHR 822 — The continuation of the claimant's detention for three months was not in accordance with a procedure prescribed by law, in that dangerous conduct had not been considered by the reviewing court; there had therefore been a breach of Article 5(1) and compensation of €7350 was awarded
  • Gorshkov v Ukraine 67531/01 (2004) ECHR 726 — The claimants complaints, relating to his detention in hospital, under Article 2, 3 and 5(1) were manifestly unfounded, but his complaint under Article 5(4) was admissible
  • Gorshkov v Ukraine 67531/01 (2005) ECHR 936 — Although a detained patient's case was regularly reviewed on an automatic basis, the patient had no right to initiate proceedings and was not a party to them; there therefore had been a breach of Article 5(4)
  • Hadzic and Suljic v Bosnia Herzegovina 39446/06 (2011) ECHR 911 — The applicants had been detained for several years in a prison 'Psychiatric Annex' which was an inappropriate institution for the detention of mental health patients, in breach of Article 5(1); the applicants were awarded compensation of €15,000 and €25,000 respectively.
  • Halilovic v Bosnia and Herzegovina 23968/05 (2009) ECHR 1933 — (1) The appellant's detention for 4 years 5 months was pursuant to an administrative decision, as opposed to a decision of the competent civil court as required by the amended domestic legislation, and so breached Article 5(1); compensation of €22,500 was awarded. (2) The Article 3 claim relating to conditions of detention failed.
  • IH v UK 17111/04 (2005) ECHR 934 — The claimant was granted a deferred conditional discharge but subsequently not released as no supervising psychiatrist could be found; the House of Lords found that Article 5(4) had been breached as the Tribunal could not revisit their decision (as the law was then understood). The claimant's Article 5(1)(e) complaint was rejected (on the facts, the alternative to conditional discharge was continued detention rather than absolute discharge), as were his complaints under Article 5(4) (no longer a victim as domestic courts had acknowledged breach and afforded appropriate redress) and Article 5(5) (no longer a victim, no absolute right to compensation).
  • JE v DE and Surrey County Council (2006) EWHC 3459 (Fam) — In determining whether a person is deprived of his liberty, the crucial question is whether he is is “free to leave” the institution, not only for approved outings but also permanently to go or live where or with whom he chooses; there can be deprivation of liberty in the absence of a lock or physical barrier, and it can equally be caused by the misuse or misrepresentation of even non-existent authority
  • KD and LD v LB Havering (2009) EW Misc 7 (EWCOP) — At a hearing which was expected to be merely interlocutory, the DJ made final orders as to capacity and residence, and appointed the local authority as personal welfare deputy. (1) The power to deal with cases summarily exists but was exercised unlawfully in this case. It is to be exercised as an alternative to a hearing, for example in an emergency or where little or no contest is anticipated. It is unlikely to be exercised appropriately where there is a serious issue or potential issue as to the appropriateness of deprivation of liberty and so where Articles 5 and 6 are potentially engaged. The DJ had achieved an impermissible hybrid, in the course of a hearing exercising powers potentially available to the Court instead of a hearing. (2) A summary decision of best interests must be made by reference to the evidence and the matters in MCA 2005 s4, but this exercise was not fully carried out. (3) There was a breach of procedural fairness and Article ..→
  • Kay v UK 17821/91 (1994) ECHR 51 — (1) The recall to hospital without up-to-date objective medical expertise showing that the applicant suffered from a true mental disorder, or that his previous psychopathic disorder persisted - in the absence of any emergency - violated Article 5(1); (2) The subsequent MHRT proceedings were inherently too slow, which breached Article 5(4): the first hearing date offered was five months after referral, and final determination took just over two years.
  • Kepenerov v Bulgaria 39269/98 (2003) ECHR 425 — The claimant was detained for a month by a prosecutor who had no legal power to do so, had not sought a prior medical assessment, and had not specified the length of detention (furthermore, there was no legal means to challenge the detention); there therefore had been a violation of Article 5(1)(e) and compensation of €2000 was awarded.
  • Khudobin v Russia 59696/00 (2006) ECHR 898 — Lack of medical treatment while detained violated Article 3; lack of relevant and sufficient reasons for pre-trial detention violated Article 5(3); undue delays in considering two separate applications for release violated Article 5(4); appeal court's failure to consider refusal of release breached Article 5(4); court's failure to consider entrapment defence violated Article 6(1); damages of €12,000 awarded
  • LM v MHTS (2010) ScotSC x — The appellant had been subject to a Short-Term Detention Certificate (STDC), which was followed by an (unlawful) Extension Certificate, which was then followed by a subsequent STDC. Section 44(2) Mental Health (Care and Treatment) (Scotland) Act 2003 prohibits the granting of a STDC when the patient is subject to an Extension Certificate. An application under s50 was made to revoke the second STDC; the MHTS considered the detention criteria and refused the application. This decision was subject to an appeal to the Sheriff Principal who held that as the appellant had not been "subject to" the Extension Certificate (it being unlawful) the second STDC was valid. The Sheriff noted that the appellant could have made an application in terms of section 291 to challenge the lawfulness of his detention; this option met Article 5 requirements and would have been more appropriate as the detaining party would have been the respondent.
  • McGrady, Re Application for Judicial Review (2003) NIQB 15 — (1) The ability to disclose material to the representative on condition that it was not revealed to the patient was compatible with the Convention (obiter, since no decision had been taken on this yet). (2) The medical member's role is to form a provisional view on the patient's mental condition, rather than on the statutory criteria, and he discloses his conclusion during the hearing; if this approach is taken then there is no violation of Article 5(4), DN v Switzerland 27154/95 (2001) ECHR 235 distinguished.
  • Musial v Poland 24557/94 (1999) ECHR 15 — Requesting a second opinion did not amount to a waiver of the right to a speedy hearing; the court’s agreement to request a second opinion did not absolve it of the duty to ensure speediness (including using powers such as the fining of witnesses); complexity of a medical file was relevant to the issue of speediness; reliance on an out-of-date medical report could breach Art 5. [MHLR.]
  • Nakach v The Netherlands 5379/02 (2005) ECHR 445 — The practice of the Arnhem Court of Appeal, which had upheld the applicant's continued detention, not to keep official records of hearings (on the basis that no appeal could be made from that court) breached domestic law and therefore breached Article 5(1)
  • Nowika v Poland 30218/96 (2002) ECHR 795 — The detention for 83 days of the applicant under Article 5(1)(b) (the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law) violated Article 5(1) as it was for longer than necessary for the fulfilment of the obligation to submit to a psychiatric examination; the restriction on visits by her family to one visit per month violated Article 8; compensation of €10,000 was awarded
  • Pankiewicz v Poland 34151/04 (2008) ECHR 148 — It would be too rigid to expect immediate transfer from prison to psychiatric hospital but, although the delay of 2 months 25 days did not at first glance seem particularly excessive, on balance it was not acceptable and violated Article 5(1); the claimant had been compensated by the domestic court so was not a victim for Article 5(3) purposes; the Article 6 complaint was rejected for non-exhaustion of domestic remedies
  • Phillips v UK 64509/01 (2000) ECHR 702 — The Tribunal's conditional discharge decision was delayed, initially to find accommodation, then because no psychiatric supervisor could be found. The applicant argued that his detention from 25 February 1999 (being six months after the Tribunal decision) and 4 August 2000 (when he was released) was in violation of Article 5(1)(e) because he was no longer suffering from mental illness warranting detention for treatment. The government settled the case by paying £5,500 plus costs.
  • R (B) v Ashworth Hospital Authority (2005) UKHL 20 — A patient detained for treatment under the Mental Health Act 1983 could be treated compulsorily under s 63 of that Act for any disorder from which he suffered, and not only for the particular form of disorder from which he was classified as suffering under the application or order which authorised his detention.
  • R (Betteridge) v Parole Board (2009) EWHC 1638 (Admin) — (1) Article 5(4) requires a speedy hearing to determine the lawfulness of detention, independently of any consideration of arbitrariness under Article 5(1). (2) The delay in listing the claimant's Parole Board hearing, due to a lack of panel members, breached his Article 5(4) right to a speedy hearing; however, as there had been no chance of release, there was no claim in damages. (3) The steps being taken to fix the systemic failures, and the ongoing problems, mean that further Article 5(4) delay claims are not appropriate unless in very special circumstances.
  • R (Black) v SSJ (2009) UKHL 1 — The decision on whether to release a determinate sentence prisoner at his parole eligibility date (the half-way point of a long-term Criminal Justice Act 1991 prisoner) did not engage Article 5 as the decision was merely the administrative implementation of the sentence of the court.
  • R (Chahboub) v SSHD (2009) EWHC 1989 (Admin) — Failed asylum seeker's challenge to detention in prison rather than immigration centre. (1) The first of the two periods of detention was outside the 3-month JR time limit so permission was refused in respect of that period. (2) The policy with respect to whether mentally ill people should be detained did not apply to the claimant, who had a personality disorder rather than mental illness. (3) The detention was justified under common law (intention to deport, detention for reasonable period, deportation possible in reasonable period, reasonable diligence to deport). (4) His transfer from the immigration centre to prison, because he had proved unmanageable, was in accordance with policy. (5) The manner of his detention in prison (required to share cell with convicted prisoner, dietary requirements ignored, 23-hour lock-up, limited access to telephone and visitors) was contrary to policy and breached his Article 5 rights.
  • R (Degainis) v SSJ (2010) EWHC 137 (Admin) — In relation to a 7-month delay in holding a Parole Board hearing, the SSJ admitted breach of Article 5(4) and apologised, but the claimant sought damages under Article 5(5). (1) Article 5(5) (which gives an "enforceable right to compensation") and s8 HRA 1998 (which limits the power to award damages) are not inconsistent because compensation in Article 5(5) is not limited to money. (2) The first of two grounds for the claim was that the delay increased the length of detention: because of the number of imponderables in the case it was impossible to conclude this. (3) The second ground was based on an inference that frustration and anxiety had been caused: the judge was not prepared to infer, in the absence of specific evidence, a level of frustration of distress sufficient to warrant an award of damages. (4) In general, as to whether or not to award damages, the length of the delay, the effect of the delay, and the impact on the claimant are relevant factors; the seriousness ..→
  • R (F) v SSJ (2008) EWHC 2912 (Admin) — The medical opinions were based on old assessments and were at best ambigious as to the treatability test; so the decision to transfer under s47 MHA 1983 was Wednesbury unreasonable, and the subsequent detention was unlawful under domestic law and Article 5; (obiter) the decision would not have been ultra vires; based on subsequent reports, the decision would not be quashed, as if the defendant had sough to clarify the medical opinions the decision would have been lawful. [Caution.]
  • R (Faulkner) v SSJ (2009) EWHC 1507 (Admin) — 13 months after referral, the claimant was released by the Parole Board and subsequently absconded. (1) The question of whether to dismiss the claim purely on the grounds that the claimant was a fugitive was left open. (2) The Article 5(4) claim was inconsistent with R (James) v SSJ (2009) UKHL 22: there was no Article 5(4) breach as the system had not broken down entirely (by the PB being denied the information that it needed for such a long period as to make continued detention arbitrary). (3) If that analysis is wrong, there still was no breach as, looking at the totality of the matter, there had been a review within a reasonable period. (4) Even if there had been a breach, it could not be shown that the claimant would have been released earlier. (5) Damages, if appropriate, would have been in the region of £1,000-£2,000, or perhaps £4,000; but, seeing as he had absconded, no damages would have been awarded. [Caution.]
  • R (IH) v SSHD (2001) EWHC Admin 1037 — Section 73 is compatible with Article 5 ECHR: deferred conditional discharge is a provisional decision; the Tribunal can monitor progress, and reconsider and amend the decision if appropriate.
  • R (James) v SSJ (2009) UKHL 22 — (1) Following the introduction of IPP sentences, the Secretary of State was in breach of his public law duty to make reasonable provision to enable IPP prisoners (if necessary by completing treatment courses) to demonstrate to the Parole Board their safety for release. The appropriate remedy was declaratory relief condemning the Secretary of State's failures and indicating that he is obliged to do more. The systemic failure has ended (following amendments including making the IPP sentence generally available only when the notional minimum term is at least 2 years) so no further relief is appropriate. (2) In relation to post-tariff detention, the systemic failure did not: (a) make the detention unlawful (detention remains lawful under statute until Parole Board release); (b) breach Article 5(1) (causal link with objective of detention remained until Parole Board decision); or (c) breach Article 5(4) (which is concerned with procedure not substance) although cases with prior ..→
  • R (Johnson) v SSHD (2007) EWCA Civ 427 — Parole Board delay breached Article 5(4).
  • R (Johnson) v SSJ (2009) EWHC 3336 (Admin) — The Secretary of State's decision that the next Parole Board review would occur 14-15 months after the last review was unsupported by any reason and, on the facts, inconsistent with Article 5(4).
  • R (K) v Camden and Islington Health Authority (2001) EWCA Civ 240 — Following a deferred conditional discharge, the duty under s117 was not absolute but rather to exercise reasonable endeavours (in this case, to find a supervising psychiatrist); continued detention despite these reasonable endeavours would not breach Article 5.
  • R (M) v MHRT (2005) EWHC 2791 (Admin) — There was no appearance of bias where the sentencing judge, who had imposed the hospital order with restrictions, heard the subsequent MHRT appeal; the patient knew the relevant facts and unequivocally decided not to object at the time, so had waived his right to object
  • R (Modaresi) v SSH (2011) EWHC 417 (Admin) — The claimant missed the 14-day deadline for submission of a s2 Tribunal application because of oversight/neglect on the part of Trust employees. Judicial review claims against the Tribunal (for deciding that the application was invalid), the Secretary of State for Health (for refusing to make a reference) and the Trust (for their actions) were all unsuccessful. [Caution.]
  • R (Pennington) v Parole Board (2009) EWHC 2296 (Admin) — Delays by the Parole Board, both in issuing ICM directions (which caused a 2-month delay in listing the hearing) and in communicating the decision a month late, breached Article 5(4). Claims for "pure delay" - that is where a Parole Board hearing has been delayed because of a lack of resources available to or errors or omissions on the part of the Parole Board - survive the House of Lords decsion in James. Damages to be assessed at a later date.
  • R (RD) v MHRT (2007) EWHC 781 (Admin) — (1) The communication by the medical member of a "very preliminary" view was lawful, even though it went to detainability and not merely to mental condition; (2) the reasons given for not discharging were adequate.
  • R (Rayner and Marsh) v SSHD (2007) EWHC 1028 (Admin) — (1) Section 75 provides an independent legal device by which the detainee may appear before a judge which is not dependent on the good will of the detaining authority and thus is Article 5 compliant; in any event, the section cannot be incompatible as means exist to operate it compatibly. (2) In order for s75 to be compatible the Secretary of State ought to refer the case of a recalled patient at once (in practice, within 72 hours) to the MHRT unless the circumstances of the applicant or his case positively require otherwise. (3) On the facts the delay in making the reference breached Article 5(4).
  • R (Sessay) v South London and Maudsley NHS Foundation Trust (2011) EWHC 2617 (QB) — The police entered the claimant's private accommodation, unaccompanied and without a s135 warrant, purporting to be acting under ss5-6 MCA 2005 in her best interests; she was taken to hospital and, after a 13-hour delay in the s136 suite, detained under s2 MHA 1983. (1) Sections 135 and 136 MHA 1983 are the exclusive powers available to police officers to remove persons who appear to be mentally disordered to a place of safety. Sections 5 and 6 MCA 2005 do not confer on police officers authority to remove persons to hospital or other places of safety for the purposes set out in sections 135 and 136. (2) The MHA provides a complete statutory code for compulsory admission to hospital for non-compliant incapacitated patients, so the common law doctrine of necessity does not apply during the period in which a patient is being assessed for detention under the Act. If there is urgent necessity to detain then the s4 procedure should be followed; ..→
  • R (Sturnham) v SSJ (2011) EWHC 938 (Admin) — Damages of £300 were awarded under Article 5 for anxiety and distress caused by six-month delay in Parole Board hearing.
  • R (TF) v SSJ (2008) EWCA Civ 1457 — (1) Having found that the transfer direction under s47 was unlawful the judge erred by exercising her discretion to refuse relief: an unlawful detention cannot be transmuted into lawful detention by the withholding of relief. (2) A decision to transfer a prisoner to hospital at the end of his sentence deprives him of his liberty and engages Article 5, thus heightening the scrutiny as to the evidence the MoJ and court must apply, and putting the onus on the MoJ to show that the decision maker focused on each of the criteria. (3) Applying this scrutiny it would have been very difficult for the MoJ decision maker to be satisfied that the two reporting doctors had applied their minds to treatability, and it appeared that the decision maker herself had not applied her mind to that question; the decision was therefore unlawful. [Caution.]
  • R v Drew (2001) EWCA Crim 2861 — The requirement to pass an automatic life sentence for the second serious sexual or violent offence in the absence of exceptional circumstances, even for a mentally-disordered offender, did not breach Article 3 or 5.
  • R v Drew (2003) UKHL 25 — The requirement to pass an automatic life sentence for the second serious sexual or violent offence in the absence of exceptional circumstances, even for a mentally-disordered offender, did not breach Article 3 or 5.
  • Re C; C v Blackburn and Darwen Borough Council (2011) EWHC 3321 (COP) — C was subject both to guardianship and the DOLS regime at a care home: (1) he was not ineligible for DOLS; (2) he was not deprived of his liberty, so the authorisation was set aside; (3) the authorisation had been lawful albeit perfunctory; (4) the restrictions were necessary; (5) the COP cannot decide on residence when a guardianship residence requirement remains in effect; (6) even if it could, it would only do so in exceptional circumstances; (7) the local authority was invited to reconsider the appropriateness of guardianship.
  • Re RK; RK v BCC (2011) EWCA Civ 1305 — (1) An adult in the exercise of parental responsibility may impose, or may authorise others to impose, restrictions on the liberty of the child. However restrictions so imposed must not in their totality amount to detention. Detention engages the Article 5 rights of the child and a parent may not lawfully detain or authorise the detention of a child. (2) The restrictions authorised by RK's parents did not amount to deprivation of liberty: they were no more than what was reasonably required to protect RK from harming herself or others within her range.
  • Re RK; YB v BCC (2010) EWHC 3355 (COP) — (1) Given the terms of s20(8) Children Act 1989 (that any person with parental responsibility may at any time remove the child) the provision of accommodation to a child under s20(1), (3), (4) or (5) will not ever give rise to a deprivation of liberty within the terms of Article 5. If the child is being accommodated under the auspices of a care order, interim or full, or if the child has been placed in secure accommodation under s25, then the position might be different. (2) In any event: (a) the objective element of deprivation of liberty was not remotely close to being met on the facts; (b) the subjective element was not met, as the parents had consented on RK's behalf; (c) RK's placement was at the behest of her parents and could not be imputed to the state. [Detailed summary to follow.]
  • Re Steven Neary; LB Hillingdon v Steven Neary (2011) EWHC 1377 (COP) — (1) By keeping Stephen away from his home, Hillingdon breached Article 8 and Article 5(1) (notwithstanding DOLS authorisations granted during later stages). (2) By (a) failing sooner to refer the case to the COP, (b) failing sooner to appoint an IMCA, and (c) failing to conduct an effective review of the best interests assessments, Hillingdon breached Article 5(4).
  • Reid v Secretary of State for Scotland (1998) UKHL 43 — (1) Treatability test is part of admission criteria for psychopathic disorder, so entitled to discharge when it is not met; definition of treatment is wide and can include treatment only for symptoms rather than underlying disorder, e.g. anger management. (2) Decision not to discharge not irrational.
  • Romanov v Russia 63993/00 (2005) ECHR 933 — (1) Violation of Article 3: The applicant's conditions of detention, in particular the severe overcrowding and its detrimental effect on the applicant's well being, combined with the length of the period during which the applicant was detained in such conditions, amounted to degrading treatment. (2) Violation of Article 5(3): the length of the proceedings (and detention on remand) was attributable neither to the complexity of the case nor to the conduct of the applicant but to the lack of diligence and expedition on the part of court. (3) Violation of Article 6(1) and (3)(c): In view of what was at stake for the applicant the District Court could not, if the trial was to be fair, determine his case without a direct assessment of the applicant's evidence, and the presence of the applicant's lawyer could not compensate for his absence.
  • Rutten v The Netherlands 32605/96 (2001) ECHR 482 — The decision to renew the patient's confinement order was taken after the order had expired, but under domestic law there was nothing requiring release in these circumstances; under Convention law the detention was not arbitrary, being based on a court order and expert evidence, so there was no violation of Article 5(1); however, the lawfulness of detention was not decided speedily, so there was a violation of Article 4(4); this finding constituted just satisfaction.
  • SSJ v RB (2010) UKUT 454 (AAC) — (1) The Tribunal may conditionally discharge with conditions which amount to a regime of detention (deprivation of liberty) to any establishment which is not defined as a 'hospital'. [Caution.] (2) The Upper Tribunal will follow High Court decisions unless it is convinced they are wrong, but where highly specialised issues arise the UT may feel less inhibited than the High Court in revisiting the issues.
  • SSJ v RB (2011) EWCA Civ 1608 — The Mental Health Tribunal may not grant a conditional discharge in circumstances where the conditions would inevitably lead to an Article 5 deprivation of liberty.
  • S v Estonia 17779/08 (2011) ECHR 1511 — Under domestic law S should have been heard 'promptly' after the county court ruled on her compulsory admission to hospital, but was not heard for 15 days; no adequate justification was given; this was a considerable portion of the three-month admission period; the domestic supreme court noted the procedural violation but offered no redress: overall, there had been a breach of Article 5(1), in that she was not detained in accordance with a procedure prescribed by law. Compensation of €5000 was awarded.
  • Shenkel v The Netherlands 62015/00 (2005) ECHR 935 — (1) Violation of Article 5(1): Failure, in breach of domestic law, to draw up an official record of Court of Appeal hearing which rejected the appeal against continued detention. (2) Violation of Article 5(4): Delay of 17 months before determination of Court of Appeal case.
  • Shulepova v Russia 34449/03 (2008) ECHR 1666 — (1) Violation of Article 5(4): Applicant not detained in accordance with a procedure prescribed by domestic law. (2) Violation of Article 6(1): By appointing the hospital's employees as psychiatric experts, the domestic courts placed the applicant at a substantial disadvantage, in breach of the principle of equality of arms.
  • Stanev v Bulgaria 36760/06 (2012) ECHR 46, (2012) MHLO 1 — (1) The applicant's placement in a social care home for people with mental disorders and his inability to obtain permission to leave the home led to breaches of Article 5(1), (4) and (5). (2) The living conditions in the home led to breaches of Article 3, and of Article 13 in conjunction with Article 3. (3) The lack of access to a court to seek release from partial guardianship breached Article 6(1). (4) No separate issue arose under Article 8 so it was unnecessary to examine that complaint. (5) Compensation of €15,000 was awarded.
  • TTM v LB Hackney (2011) EWCA Civ 4 — (1) Where a local authority makes an unlawful application to a hospital for the detention of a patient under the MHA, it can be held liable in damages for false imprisonment when its unlawful act directly causes the detention; (2) although the hospital may act lawfully in detaining such a patient under s6(3) (if the application appeared to be duly made) that does not prevent the detention being held to be unlawful from the outset as against the local authority; (3) an application for detention that is made contrary to s11(4) (in the face of the Nearest Relative's objection) is in breach of Article 5(1); (4) Article 5(5) entitles a person detained in breach of Article 5(1) to compensation, and s139(1) (no liability unless bad faith or lack of reasonable care) can be read down so as to allow such a claim to proceed; (5) the word 'practicable' in s12(2) (requiring a recommendation from a doctor with previous acquaintance of the patient if practicable) should be ..→
  • Tam v Slovakia 50213/99 (2004) ECHR 282 — (1) Violation of Article 5(1): Detention not in accordance with procedure prescribed by domestic law. (2) Violation of Article 5(4): The review procedure failed to provide adequate guarantees to the applicant; in particular, the court failed to appoint a guardian as required by domestic law, and did not hear the applicant or the doctor treating him with a view to establishing whether the applicant’s deprivation of liberty had been justified.
  • Varbanov v Bulgaria 31365/96 (2000) ECHR 457 — (1) Violation of Article 5(1): Deprivation of liberty was not justified under Art 5(1)(e) and had no basis in domestic law which, moreover, did not provide the required protection against arbitrariness as it did not require the seeking of a medical opinion. (2) Violation Article 5(3): The applicant could only appeal to prosecutors and so was deprived of his right to have the lawfulness of his detention reviewed by a court.
  • Wall v Sweden 41403/98 (1997) ECHR 201 — The detention of an alcoholic under Article 5(1)(e) did not breach Article 5(1): the authorities continuously considered less severe measures, they strictly scrutinised the necessity for subjecting the applicant to compulsory care, and the total length of the applicant’s detention was not extended beyond a period reasonable to the aim pursued by domestic law, namely to motivate the applicant in such a way that he become capable of voluntary participation in continuing treatment and capable of receiving support in order to discontinue his abuse.
  • X v UK 7215/75 (1981) ECHR 6 — (1) Under Article 5(1), the recall to hospital without the usual Winterwerp guarantees was lawful as it was an emergency; the further detention followed examination by the RMO so was also lawful; (2) Habeas corpus proceedings were inadequate for Article 5(4) purposes; the other legal machinery did not remedy this breach, in particular because the MHRT could not order discharge of restricted patients.

Law

Article 5 – Right to liberty and security

1. 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:

a. the lawful detention of a person after conviction by a competent court;
b. the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
c. the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
d. the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
e. the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
f. the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

2. 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.

3. Everyone arrested or detained in accordance with the provisions of paragraph 1.c of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation.

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