COMMENTARY OF THE CHARTER OF FUNDAMENTAL

Article 6.

RIGHTS OF THE EUROPEAN

UNION

Right to liberty and security

Everyone has the right to liberty and security of person

I.

The significance of personal liberty and security in context

Personal liberty is one of the oldest human rights to be found already in the Magna Carta Libertatum
of 1215. At the same time, deprivation of personal liberty in the form of imprisonment or detention on
remand has long represented the most common means used by the State to fight crime and maintain
public order and security. With the gradual abolition of other penalties, such as corporal and capital
punishment, imprisonment as the most severe penalty has even gained in significance over the last
centuries and will also in the future remain one of the legitimate means for exercising sovereign State
authority in the future.
In contrast to most other human rights which aim at the ideal of a society without torture, arbitrary
executions, hunger etc., personal liberty does not strive toward the ideal of a society without prisons,
but merely represents a procedural guarantee. It is not the deprivation of personal liberty in and of
itself that is disapproved of but rather arbitrary arrest and detention, as stated in Article 9 of the
Universal Declaration of Human Rights (UDHR), Article 9(1) of the UN Covenant on Civil and
Political Rights (CCPR), Article 7(3) of the American Convention on Human Rights (ACHR) or
Article 6 of the African Charter on Human and Peoples! Rights. Article 5 of the European Convention
on Human Rights (ECHR) follows, however, a different model by providing an exhaustive list of
legitimate forms of arrest and detention.
The reference to arrest and detention illustrates that the term "personal liberty! is quite narrow and
must not be confused with the general notion of freedom or liberty. All human rights ultimately serve
the realization of human freedom, and Article 6 of the Charter is the first provision in Chapter II
entitled "Freedoms!, which also contains other human rights based on liberal and democratic ideals,
such as privacy, property, the right to marry and found a family, as well as freedoms of thought,
conscience, religion, expression, information, assembly, association, arts and sciences, education,
employment and business. Liberty of person, on the other hand, relates only to a very specific aspect
of human liberty, the freedom of bodily movement in the narrowest sense of arrest and detention. All
less serious forms of restrictions on freedom of bodily movement, such as limitations on domicile or
residency, banishment, exile, expulsion, curfews or the supervision of prisoners on parole do not fall
within the scope of the right to personal liberty but instead under freedom of movement, as guaranteed
to Union citizens only in Article 45 of the Charter.
More difficult, however, is the definition of the meaning and scope of the right to personal security.
The Human Rights Committee interprets the right to security of person in Article 9 CCPR, since the
landmark case of Delgado Paz v. Colombia of 1990, as an independent right with the corresponding
State obligation to take reasonable and appropriate measures to protect individuals, who are subject to
death threats and other serious threats to their personal safety.220 Although this interpretation

220
Human Rights Committee, Views on Communication No. 195/1985, Delgado Paz v. Colombia, 23 August 1990
(CCPR/C/39/D/195/1985). This case-law has been confirmed in later decisions, such as : Human Rights Committee, Views
on Communication No.. 314/1988, Peter Chiiko Bwalya v. Zambia, 27 July 1993 (CCPR/C/48/D/314/1988); Human Rights
Committee, Views on Communication No. 468/1991, Angel N. Ol Bahamonde v. Equatorial Guinea, 10 No.vember 1993
(CCPR/C/49/D/468/1991); Human Rights Committee, Views on Communication No. 449/1991, Barbarn Mjica v.
Dominican Republic, 10 August 1994 (CCPR/C/51/D/449/1991); Human Rights Committee, Views on Communication No.
542/1993, Katombe L Tshishimbi v. Zaire, 16 April 1996 (CCPR/C/56/D/542/1993), and Human Rights Committee, Views

67

COMMENTARY OF THE CHARTER OF FUNDAMENTAL

RIGHTS OF THE EUROPEAN

UNION

corresponds to the usual meaning of the right to personal security, as understood since the early human
rights documents during the French Revolution,221 the European Court of Human Rights has never
attributed any independent significance beyond personal liberty to the right to personal security in
Article 5 ECHR,222 notwithstanding the increasing significance of security issues in the modern human
rights discourse.223 During the drafting of Article 6 of the Charter in the Convention, the term
"security! has repeatedly led to controversial discussions, and some members proposed to simply
delete it, as it might give rise to different interpretations in some EU member States, such as France,
Italy and Germany.224 The Convention, however, decided to maintain the term in the restrictive
understanding of the Strasbourg case-law under Article 5 ECHR.
Although the right to personal liberty relates to arbitrary arrest and detention, its scope does not cover
minimum conditions of detention apart from certain procedural guarantees, such as the right to be
informed promptly of the reasons for the arrest and the right to judicial review of the lawfulness of
detention. The right to humane prison conditions can be derived from special human rights provisions,
such as Article 10 CCPR and corresponding international soft law standards,225 or from other human
rights, such as the right to physical and mental integrity, the prohibition of torture, inhuman or
degrading treatment or punishment, the right to privacy, freedom of religion and the right to education.
Since most cases of arrest and detention are effected in the interests of the administration of criminal
justice, the right to personal liberty is also closely related to the procedural guarantees of the right to a
fair trial and other rights enlisted in Chapter VI of the Charter entitled "Justice! (Articles 47 to 50).
Article 52(3) of the Charter stipulates that in so far as the Charter contains rights which correspond to
rights guaranteed by the ECHR, "the meaning and scope of those rights shall be the same as those laid
down by the said Convention!.226 In fact, Article 6 of the Charter corresponds literally to the first
sentence of Article 5 ECHR, which in the following, however, contains an exhaustive list of legitimate
cases of arrest and detention as well as comparatively detailed procedural rights and guarantees.
According to the travaux prparatoires and the explanations of the presidium of the Convention on
Article 52, "Article 6 corresponds to Article 5 of the ECHR!. Although these explanations, in the
words of the presidium, "have no legal value and are simply intended to clarify the provisions of the
Charter!, we proceed on the assumption that the meaning of Article 6 of the Charter is identical with
the meaning of Article 5 ECHR as developed by the dynamic interpretation of the (former) European
Commission of Human Rights and the European Court of Human Rights. As the presidium stated in
the explanations on Article 6, the limitations which may legitimately be imposed on the right to liberty
and security of person "may not exceed those permitted by the ECHR, in the wording of Article 5!.
The general limitation clause in Article 52(1) of the Charter is, therefore, not applicable.
The identical meaning of Article 6 of the Charter and Article 5 ECHR also has the consequence that as
long as the European Court of Human Rights will not revise its restrictive interpretation of the right to
personal security, this right will also not be accorded an independent meaning under Article 6 of the

on Communication No. 613/1995, Anthony Leehong (Represented by Ronald McHugh of Clifford Chance, London) v.
Jamaica, 12 August 1999 (CCPR/C/66/D/613/1995).
221
cf., e.g., Article 8 of the Republican Constitution of 24 June 1793: "La suret consiste dans la protection, accorde par la
socit chacun de ses membres pour la conservation de sa personne, de ses droits et de ses proprits.!
222
See, e.g., Eur. Ct. H.R., Bozano. v. France (Appl. No. 9990/82), judgment of 18 December 1986, Ser. A, No. 111; Eur. Ct.
H.R. (1st sect.), calan v. Turkey (Appl. No. 46221/99), judgment of 12 March 2003.
223
cf., e.g., the comprehensive security concept of the OSCE or the human security network, both of which accord human
rights a central role in the broader context of security issues.
224
For the travaux prparatoires of Article 6 see http://ue.eu.int/df/default.asp?lang. See also the compilation of most
documents in German by N. Bernsdorff and M. Borowsky, Die Charta der Grundrechte der Europischen Union,
Handreichungen und Sitzungsprotokolle, Baden-Baden, Nomos Verlagsgesellschaft, 2002, 145, 175 and 275 et seq. See also
N. Bernsdorff in J. Meyer (ed.), Kommentar zur Charta der Grundrechte der Europischen Union, Baden-Baden, No.mos
Verlagsgesellschaft, 2003, 140 et seq.
225
cf., e.g., the UN Standard Minimum Rules for the Treatment of Prisoners of 30 August 1955, the UN Rules for the
Protection of Juveniles Deprived of their Liberty of 14 December 1990, the Council of Europe European Prison Rules of 12
February 1987 and the standards developed by the European Committee for the Prevention of Torture (CPT).
226
On the interpretation of Article 52(3) see the Commentary on Article 52 of the Charter.

68

COMMENTARY OF THE CHARTER OF FUNDAMENTAL

RIGHTS OF THE EUROPEAN

UNION

Charter.227 The question arises, however, whether Article 1 of Protocol No. 4, which stipulates that
"No one shall be deprived of his liberty merely on the ground of inability to fulfil a contractual
obligation!, is also covered by the right to personal liberty in Article 6 of the Charter. Although the
explanations of the presidium on Article 52(3) state that "The reference to the ECHR covers both the
Convention and the protocols to it!, the list of rights which may be regarded as corresponding to the
rights of the ECHR does not include a reference to Article 1 of Protocol 4. Since the prohibition of
detention for debt is a fairly uncontroversial right, which at the level of the United Nations is even
guaranteed as a non-derogable right,228 and which in fact forms an essential part of the right to
personal liberty,229 the missing reference to Article 1 of Protocol 4 in the explanations of the presidium
might be simply interpreted as an oversight. Article 1 of Protocol 4 will, therefore, be regarded as an
amendment to Article 5 ECHR and, consequently, as part of the right to personal liberty under Article
6 of the Charter.
In view of the identical nature of the two provisions, the richness of Strasbourg case-law on Article 5
ECHR and the existence of many commentaries on this central provision of the European Convention
in legal literature, the following analysis will restrict itself to a very general survey of the meaning and
scope of Article 5 and the most important jurisprudence of the European Court of Human Rights.

II.

Cases of permissible arrest and detention

1. Exhaustive list of cases of lawful arrest and detention

Article 5(1) ECHR contains an exhaustive list of cases, in which States may legitimately deprive an
individual of his or her personal liberty.230 Some provisions relate to criminal law and procedure, as
detention on remand and imprisonment after conviction, other provisions apply in the context of civil
and administrative law, such as the detention of minors and the specific detention of aliens pending
expulsion, extradition and deportation procedures. In view of the increasingly restrictive asylum and
immigration laws in Europe, the specific detention of aliens poses a major human rights problem in
the EU member States. If a specific type of arrest or detention cannot be subsumed under any of the
six categories specified in Article 5(1), it constitutes a violation of the right to personal liberty. This
applies, in particular, to all forms of preventive detention that are not covered by sub-paragraphs (c),
(e) and (f) of Article 5(1), such as the preventive detention of alleged terrorists by the United States at
Guantanamo Bay on the island of Cuba. Police custody, as provided for under Article 5(1)(c), is only
permissible for the purpose of bringing the person concerned promptly before a judge in accordance
with Article 5(3).231 Preventive detention of prisoners of war, as authorised under international
humanitarian law, is not permitted under Article 5(1) ECHR and can, therefore, only be applied after a
respective derogation has been made in accordance with the procedures prescribed in Article 15
ECHR. A particularly serious form of arbitrary arrest and detention is the practice of enforced
disappearance and prolonged incommunicado detention, as defined in the UN Declaration on the
Protection of Persons from Enforced Disappearances232 and in the respective case law of the UN
Human Rights Committee,233 the Inter-American Court of Human Rights234 and the European Court of
Human Rights.235
227

On the controversial issue of the notion of personal security see supra.

See Articles 4 and 11 ICCPR.
229
In Article 7(7) of the American Convention on Human Rights, the prohibition of detention for debt is guaranteed as one
paragraph of the article dealing with the right to personal liberty.
230
See the constant jurisprudence of the European Court of Human Rights since: Eur. Ct. H. R., Ireland v. United Kingdom
(Appl. No. 5310/71), judgment of 18 January 1978, Rep. 1978-25.
231
See infra.
232
UN General Assembly Res. 47/133 of 18 December 1992.
233
See, e.g., Human Rights Committee, Views on Communication No. 30/1978, Bleier v. Uruguay, 29 March 1982 (UN Doc.
CCPR/C/OP/1 at 109 (1985)); Human Rights Committee, Views on Communication No. 107/1981, Quinteros v. Uruguay, 21
July 1983 (UN Doc. CCPR/C/OP/2 at 11 (1990)); Human Rights Committee, Views on Communication No. 563/1993,
Bautista v. Colombia, 13 November1995 (UN Doc. CCPR/C/55/D/563/1993 (1995)); and Human Rights Committee, Views
on Communication No. 540/1993, Laureano. v. Peru, 16 April 1996 (UN Doc. CCPR/C/56/D/540/1993 (1996)).
228

69

COMMENTARY OF THE CHARTER OF FUNDAMENTAL

RIGHTS OF THE EUROPEAN

UNION

In addition to the requirement of being subsumed under one of the six categories listed in Article 5(1),
deprivation of personal liberty is only permissible "in accordance with a procedure prescribed by law!.
In order to qualify as a law within the meaning of the ECHR, the respective parliamentary statute or
equivalent norm of common law must be sufficiently precise, accessible and foreseeable in order to
enable the individual to regulate his or her conduct in accordance with legal requirements and to
foresee the consequences of unlawful behaviour.236 Since Article 5(1) explicitly refers to the procedure
prescribed by domestic law, the European Court of Human Rights applies a fairly strict standard of
examining whether domestic authorities have in fact complied with their respective domestic laws and
procedural requirements.237 The domestic procedure must, of course, be in conformity with the
detailed procedural guarantees laid down in Article 5(2) to (5).
2. Imprisonment after conviction by a court
The most obvious example of a legitimate deprivation of personal liberty is the "lawful detention of a
person after conviction by a competent court!, as specified in Article 5(1)(a) ECHR. Conviction by a
competent court relates to both criminal and disciplinary proceedings, as long as the guilt of the
accused has been established and the decision taken by a competent judicial body that operates
independently of the executive branch of government and of the parties to a given case.238
Imprisonment may start already after conviction by a court of first instance even when an appeal is
pending.239
The European Court of Human Rights examines only whether a person has been convicted by a
competent court, but not whether this conviction was justified.240 This applies even in cases, in which
the accused has been convicted in a non-European State and the prison sentence is implemented in
Europe.241 It is a controversial question, whether a life-long prison sentence without any realistic
chance of earlier release is compatible with the inviolability of human dignity in Article 1 of the
Charter, the prohibition of inhuman punishment in Article 4 of the Charter and the right of prisoners
under Article 10 CCPR to be treated with humanity and with respect for the inherent dignity of the
human person, which includes the principle that the essential aim of the penitentiary system shall be
"the reformation and social rehabilitation! of prisoners.
3. Non-compliance with the lawful order of a court or for the purpose of securing a legal obligation
Article 5(1)(b) ECHR permits "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!. The
first part of this provision requires a lawful order of a court aimed at ensuring that a witness attends a
trial, that a man undergoes paternity testing, that someone undergoes a psychiatric examination, etc.
The second part is more problematic, as it permits detention also by administrative authorities in order
to ensure the fulfilment of a legal obligation. In order to prevent misuse by the legislative power, the
European Court of Human Rights has held that any such obligation must be specific and concrete, not
234
See the jurisprudence since the landmark case of Inter-Am. Ct. H.R., Velsquez Rodrguez v. Honduras, judgment of 29
July 1988, Serie C, No. 4 (1988).
235
Eur. Ct. H.R., Kurt v. Turkey (Appl. No. 24276/94), judgment of 22 January 1997, Rep. 1998-III.
236
cf., e.g., Eur. Ct. H.R., Steel et al v. United Kingdom, judgment of 23 September 1998, Rep. 1998-VII.
237
cf., e.g., Eur. Ct. H.R., Winterwerp v. the Netherlands (Appl. No. 6301/73), judgment of 24 October 1979, Ser. A, No.33 ;
Eur. Ct. H.R., Bozano. v. France (Appl. No. 9990/82), judgment of 18 December 1986, Ser. A, No.111.
238
Constant jurisprudence of the European Court of Human Rights since the Belgian vagrancy case, Eur. Ct. H. R., De Wilde,
Ooms and Versyp ("Vagrancy!) v. Belgium (Appl. Nos 2832/66, 2835/66 and 2899/66), judgment of 18 June 1971, Ser. A,
No.12 ; Eur. Ct. H.R., Engel v. the Netherlands (Appl. Nos 5100/71, 5101/71, 5102/71, 5354/72 and 5370/72), judgment of
23 November 1976, Ser. A, No.22.
239
See already Eur. Ct. H.R., Wemhoff v. Germany (Appl. No. 2122/64), judgment of 27 June 1968, Ser. A, No.7.
240
cf., e.g., Eur. Ct. H.R., Weeks v. United Kingdom (Appl. No. 9787/82), judgment of 2 March 1987, Ser. A 114.
241
See Eur. Ct. H.R., Drozd and Janousek v. France and Spain (Appl. No. 12747/87), judgment of 26 June 1992, Ser. A,
No.240.

70

COMMENTARY OF THE CHARTER OF FUNDAMENTAL

RIGHTS OF THE EUROPEAN

UNION

just a general obligation to observe the law.242 In addition, the possibility of detention for the sole
purpose of ensuring the fulfilment of such obligation must be clearly stipulated in the respective
domestic law. As soon as the person concerned fulfils the respective legal obligation, he or she must
be released. Typical examples of such legal obligations, the compliance of which might be enforced
by means of detention, are the obligation to undergo military service or, in case of conscientious
objectors, alternative civilian service, the obligation to perform other compulsory work or services
permitted under Article 4(3) ECHR or Article 5 of the Charter, the obligation to undergo a police
search, border/security checks etc. The mere inability to fulfil a contractual obligation cannot be a
lawful reason for detention, as detention for debt is explicitly prohibited by Article1 of Protocol 4.243
4. Detention on remand
In the practice of the Strasbourg organs, detention on remand gave rise to a high number of
applications, which seems to be caused by the great variety of legal procedures in the member States
of the Council of Europe. Article 5(1)(c) ECHR permits "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!. This type of preventive detention, which
usually is referred to as detention on remand, and which covers police custody, pre-trial detention
authorized by a court and detention pending trial until conviction by a court of first instance, is only
permissible in the context of criminal law and procedure.
Detention on remand is permitted on three different grounds: if a person is suspected of having
committed a criminal offence, if a person is suspected of going to commit an offence in the immediate
future, or if a person is suspected of wishing to flee after having committed an offence. Although no
offence has yet been committed in the second case (which, therefore, represents a purely preventive
form of detention) the explicit purpose of detention on remand is always to bring the suspected person
"before the competent legal authority!. This provision must be read together with Article 5(3) ECHR,
which stipulates that everyone arrested or detained in accordance with Article 5(1)(c) shall be brought
promptly before a judge. If the judge authorizes pre-trial detention, the accused is entitled to trial
within a reasonable time or release pending trial. Detention for the purpose of preventing somebody
from committing an offence in the future is only permitted in case of a concrete and specific threat of,
for example, a terrorist attack.244 As soon as the suspected person is brought before a judge, the
authorization of preventive detention usually ends. Whether a court is entitled under Article 5(1)(c) to
order preventive detention is disputed.245
The arrest of a person suspected of having committed an offence should usually be effected by law
enforcement officials on the basis of an arrest warrant issued by a competent court.246 In urgent cases,
the police are entitled to arrest a suspected person even without an arrest warrant for the purpose of
bringing him or her promptly before a court.247 In both cases, the relevant standard of proof is a
"reasonable suspicion! that the person concerned has in fact committed an offence. A "reasonable
suspicion! exists where there is an objective basis for linking the suspect to the offence. Whether a
suspicion is reasonable is primarily for the domestic courts to assess, subject to the control by the
European Court of Human Rights. In cases involving suspected terrorists, the Court takes due account
242

cf., e.g., Eur. Ct. H.R., Lawless v. Ireland (Appl. No. 332/57), judgment of 1 July 1961, Ser. A, No.3 ; Eur. Ct. H.R.,
Engel v. the Netherlands (Appl. Nos 5100/71, 5101/71, 5102/71, 5354/72 and 5370/72), judgment of 8 June 1976, Ser. A,
No.22 ; Eur. Ct. H.R., Guzzardi v. Italy (Appl. No. 7367/76), judgment of 6 November 1980, Ser. A, No.39 ; Eur. Ct. H.R.,
Ciulla v. Italy (Appl. No. 11152/84), judgment of 22 February 1989, Ser. A, No.148.
243
On the applicability of this provision in relation to Article 6 of the Charter see supra.
244
cf., e.g., Eur. Ct. H.R., Guzzardi v. Italy (Appl. No. 7367/76), op. cit. ; Eur. Ct. H.R., Ciulla v. Italy (Appl. No. 11152/84),
op. cit..
245
But see Eur. Ct. H.R., Guzzardi v. Italy (Appl. No. 7367/76), op. cit., para. 102.
246
On the European arrest warrant and the surrender of procedures between Member States see : Council Framework
Decision 2002/584/JHA of 13 June 2002 on the European Arrest Warrant and the Surrender Procedures between Member
States, OJ L 190 of 18/07/2002.
247
On the permissible duration of police custody see infra.

71

COMMENTARY OF THE CHARTER OF FUNDAMENTAL

RIGHTS OF THE EUROPEAN

UNION

of the special nature of terrorist crimes, the threat it poses to democratic society and the exigencies of
dealing with it.248 In these cases, a lower standard of proof might be permissible, but the police or
intelligence authorities must provide the court with at least some facts to prove a reasonable
suspicion.249
In addition to a reasonable suspicion, detention on remand must also be lawful, i.e. in accordance with
the relevant provisions of domestic law, which usually are stricter than the minimum guarantees of the
European Convention. Typical legal requirements for the courts to order pre-trial detention are, in
addition to the danger of flight explicitly mentioned in Article 5(1)(c), the danger of obscuring
evidence and the danger of a repetition of the offence.250
5. Detention of minors
Article 5(1)(d) ECHR permits "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!. The term "minors! includes both children and juveniles and should be interpreted in line
with the term "children! in Article 1 of the UN Convention on the Rights of the Child (CRC), i.e. in
principle, every human being below the age of eighteen years. Educational supervision may be
imposed on minors for the purpose of juvenile justice or for the social welfare of the child, for instance
when the child is separated from his or her parents for reasons of abuse or neglect, as provided for in
Article 9 CRC. In both cases, it is the responsibility of State authorities to provide children and
juveniles with proper educational facilities and supervision,251 as is also required by Article 20 CRC
and the overriding principle of the child!s best interests, as laid down in Article 3 CRC and Article
24(2) of the Charter.
In addition, Article 37(b) CRC provides that the arrest, detention or imprisonment of a child "shall be
used only as a measure of last resort and for the shortest appropriate period of time!. Finally,
according to Article 10(2)(b) CCPR, accused juvenile persons shall be separated from adults and
brought as speedily as possible for adjudication.252
6. Detention for the purposes of health and social control
Article 5(1)(e) permits 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!. Since this provision
does not require a detention order by a court, it may be misused by administrative authorities in order
to protect the society against persons with a socially deviant behaviour, such as persons with mental
disabilities,253 drug addicts, alcoholics254 and vagrants.255 The European Court of Human Rights has,
therefore, developed certain minimum standards, which States must comply with, in particular the
existence of an appropriate medical certificate as a precondition for deprivation of liberty in cases of

248

Ccf., e.g., Eur. Ct. H.R., Murray v. United Kingdom (Appl. No. 14310/88), judgment of 28 October 1994, Ser. A, No.300A ; Eur. Ct. H.R., Brogan v. United Kingdom (Appl. Nos 11209/84, 11234/84, 11266/84 and 11386/85), judgment of 28
November 1988, Ser. A, No. 145-B.
249
See Eur. Ct. H.R., Fox, Campbell and Hartley v. United Kingdom (Appl. No. 12244/86, 12245/86 and 12383/86),
judgment of 30 August 1990, Ser. A, No. 182.
250
cf., e.g., Eur. Ct. H.R., Kemmache v. France (Appl. No. 17621/91), judgment of 24 November 1994, Ser. A, No. 296-C.
251
See Eur. Ct. H.R., Bouamar v. Belgium (Appl. No. 9106/80), judgment of 29 February 1988, Ser. A, No. 129.
252
See also the UN Standard Minimum Rules for the Administration of Juvenile Justice of 29 November1985 (Beijing
Rules), the UN Guidelines for the Prevention of Juvenile Delinquency of 14 December 1990 (Riyadh Guidelines) and the UN
Rules for the Protection of Juveniles Deprived of their Liberty of 14 December 1990.
253
cf., e.g., Eur. Ct. H.R., Winterwerp, van der Leer, Wassink and Koendjbiharie v. the Netherlands (Appl. No. 6301/73),
judgments of 24 October 1979, 21 February 1990, 27 September 1990 and 25 October 1990, Ser. A, Nos 33, 170-A, 185-A
and 185 ; Eur. Ct. H.R., Herczegfalvy v. Austria (Appl. No. 10533/83), judgment of 24 September 1992, Ser. A, No.244.
254
cf., e.g., Eur. Ct. H.R. (2nd section), Litwa v. Poland (Appl. Nos 26629/95), judgment of 4 April 2000.
255
See already the Eur. Ct. H.R., De Wilde, Ooms and Versyp ("Vagrancy!) v. Belgium (Appl. No. 2832/66, 2835/66 and
2899/66), judgment of 18 June 1971, Ser. A, No.12.

72

COMMENTARY OF THE CHARTER OF FUNDAMENTAL

RIGHTS OF THE EUROPEAN

UNION

infectious diseases and mental disorders.256 The State may confine a person of "unsound mind! to a
psychiatric hospital only as long as the mental disorder persists. This also means that persons detained
in a psychiatric hospital or in special institutions for alcoholics and drug addicts have a right to
periodic review of the lawfulness of their detention in accordance with Article 5(4).257 The detention
for purposes of health and social control covered by Article 5(1)(e) can be ordered for the protection
of the public, but also for the protection of the respective persons themselves. In Litwa v. Poland, the
European Court of Human Rights has decided, for example, that a drunk person may be detained by
the police in accordance with Article 5(1)(e) without a medical diagnosis or a court order, if such
detention is necessary for the prevention of dangers arising for the person himself or for the public.258
7. Special detention of aliens
Article 5(1)(f) permits "the lawful arrest or detention of a person to prevent his effecting an
unauthorized entry into the country or of a person against whom action is being taken with a view to
deportation or extradition!. Neither the European Convention nor the EU Charter grant a right of aliens
to enter another country and reside therein. The right to liberty of movement and residence is restricted
in Article 2 of Protocol 4 to everyone "lawfully within the territory of a State! and in Article 45 of the
Charter even to citizens of the Union. On the other hand, Article 18 of the Charter grants a right to
asylum to refugees in the sense of the Geneva Refugee Convention,259 which is not contained in the
ECHR. Subject to the conditions laid down in Article 1 of Protocol 7, as well as the principle of nonrefoulement derived from Article 3 ECHR and the protection of privacy and family life in Article 8
ECHR, aliens may be expelled or extradited from the territory of a State party to the ECHR. If an alien
is entering the territory of a State party without a valid visa or other authorization, or if an expulsion or
extradition proceeding is pending, he or she may be detained in accordance with Article 5(1)(f). But
the authorities must ensure that the detention was ordered exclusively for one of these three
purposes.260
Although these aliens constitute one of the largest groups of detainees in present day Europe, only
relatively few cases have been brought to the European Court of Human Rights in relation to Article
5(1)(f). The Court can only find a violation of this provision, if the detention has been ordered in
obvious violation of domestic law or if any of the procedural guarantees in the following paragraphs of
Article 5 have been neglected. In the case of Amuur v. France, for example, the Court found a
violation on the ground that several asylum seekers had been detained in the international departures
area in a French airport for almost three weeks without any possibility of challenging their
detention.261 Only in extreme cases did the length of detention pending extradition proceedings lead to
a finding of a violation.262

III.

Procedural guarantees in cases of deprivation of personal liberty

1. Right to be informed of the reasons for one!s arrest

256
cf., e.g., Eur. Ct. H.R., Winterwerp v. the Netherlands (Appl. No. 6301/73), op. cit. ; Eur. Ct. H.R., X v. United Kingdom
(Appl. No. 7215/75), judgment of 5 November 1981, Ser. A, No.46 ; Eur. Ct. H.R., Luberti v. Italy (Appl. No. 9019/80),
judgment of 23 February 1984, Ser. A, No.75 ; Eur. Ct. H.R., Ashingdane v. United Kingdom (Appl. No. 8225/78), judgment
of 28 May 1985, Ser. A, No.93.
257
cf., e.g., Eur. Ct. H.R., Winterwerp v. the Netherlands (Appl. No. 6301/73), op. cit. ; Eur. Ct. H.R., Koendjbiharie v. the
Netherlands (Appl. No. 11487/85), judgment of 25 October 1990, Ser. A, No.185-B.
258
Eur. Ct. H.R. (2nd sect.), Litwa v. Poland (Appl. No. 26629/95), op.cit..
259
See the Commentary on Article 18 of the Charter.
260
See Eur. Ct. H.R., Bozano. v. France (Appl. No. 9990/82), judgment of 18 December 1986, Ser. A, No.111 and Eur. Ct.
H.R., Chahal v. United Kingdom (Appl. No. 22414/93), judgment of 15 November 1996, Rep. 1996-V.
261
Eur. Ct. H.R., Amuur v. France, judgment of 25 June 1996, Rep. 1996-III.
262
Eur. Ct. H.R., Quinn v. France (Appl. No. 18580/91), judgment of 22 March 1995, Ser. A, No.311. See also Eur. Ct. H.R.,
Kolompar v. Belgium (Appl. No. 11613/85), judgment of 24 September 1992, Ser. A, No.235-C.

73

COMMENTARY OF THE CHARTER OF FUNDAMENTAL

RIGHTS OF THE EUROPEAN

UNION

According to Article 5(2) ECHR, "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!. Although this
provision contains a reference to a (criminal) charge, it applies to all categories of deprivation of
personal liberty listed in Article 5(1).263 The person arrested shall be informed of the factual and legal
reasons for his or her arrest in order to be able to challenge the detention in accordance with the
habeas corpus proceedings under Article 5(4). If the arrest is based on the suspicion of having
committed a criminal offence, the detainee has also a right to be informed of the charge against him or
her. This information does not have to be as detailed as the information to which an accused person is
entitled under Article 6(3)(a) ECHR.
The information shall be provided in a language, which the detainee understands, which in the case of
aliens who enter the territory of a State party unlawfully usually requires the assistance of interpreters.
The right to be informed "promptly! means as quickly as possible, i.e. usually at the time of the arrest,
but certainly not later than a few hours after the arrest.264
2. Guarantees in case of detention on remand
Article 5(3) ECHR provides as follows: "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.! In principle, this
provision guarantees two important rights for everyone detained on the suspicion of having committed
a criminal offence: the right to be brought promptly before a judge and the right to trial within a
reasonable time.
The right to be brought promptly before a judge or another independent judicial officer is an important
guarantee for the lawfulness and reasonableness of detention on remand. It limits the period of police
custody, which is usually the period with the highest risk of ill-treatment, to a duration of not more
than 24 or 48 hours. Even in exceptional circumstances of terrorism must the period of police custody
not be longer than four days.265 The detainee must be brought personally before the judicial authority,
who shall review all issues relating to the detention question, and who shall take an independent
decision on pre-trial detention by reference to objective legal criteria.266 The existence of a reasonable
suspicion that the detainee has committed a criminal offence remains an essential requirement for
ordering pre-trial detention. After a certain period of detention, also other requirements, such as the
likelihood of flight from the jurisdiction, the risk of the committal of further offences, the risk of
absconding evidence or the severity of the crime involved, must be present in order to justify a
continuation of the detention.267
The second important guarantee is the right of pre-trial detainees to a trial within a reasonable time or
to release pending trial. The purpose of this provision is to avoid long periods of detention while State
authorities investigate the case. As is explicitly laid down in Article 9(3) CCPR, it shall not be the
general rule that persons awaiting trial shall be detained in custody. A pre-trial detainee is entitled to
263

cf., e.g., Eur. Ct. H.R., X v. United Kingdom (Appl. No. 7215/75), judgment of 5 November 1981, Ser. A, No.46 ; Eur. Ct.
H.R., van der Leer v. the Netherlands (Appl. No. 11509/85), judgment of 21 February 1990, Ser. A, No.170-A.
cf., e.g., Eur. Ct. H.R., Fox, Campbell and Hartley v. United Kingdom (Appl. Nos 12244/86, 12245/86 and 12383/86),
judgment of 30 August 1990, Ser. A, No.182 ; Eur. Ct. H.R., Murray v. United Kingdom (Appl. No. 14310/88), judgment of
28 October 1994, Ser. A, No.300-A.
265
cf., e.g., Eur. Ct. H.R., Brogan v. United Kingdom (Appl. Nos 11209/84, 11234/84, 11266/84 and 11386/85), judgment of
29 November 1988, Ser. A, No.145-B ; Eur. Ct. H.R., Aksoy v. Turkey (Appl. No. 21987/93), judgment of 18 December
1996, Rep. 1996-VI ; Eur. Ct. H.R., Sakik et al. v Turkey (Appl. Nos. 23878/94;23879/94;23880/94;...), judgment of 26
November 1997, Rep. 1997-VII ; Eur. Ct. H.R. (1st sect.), calan v Turkey (Appl. No. 46221/99), judgment of 12 March
2003.
266
cf., e.g., Eur. Ct. H.R., Schiesser v. Switzerland (Appl. No. 7710/76), judgment of 4 December 1979, Ser. A, No.34.
267
cf. the rich case-law of the European Court of Human Rights since the early judgments of Eur. Ct. H.R., Neumeister,
Stgmller and Matznetter v. Austria (Appl. No. 1936/63), judgments of 27 June 1968 and 10 November 1969, Ser. A, Nos
8, 9 and 10.

264

74

COMMENTARY OF THE CHARTER OF FUNDAMENTAL

RIGHTS OF THE EUROPEAN

UNION

have his or her case given a higher priority than that of someone who is at liberty.268 The maximum
length permissible for pre-trial detention or detention pending trial depends, of course, on the
complexity of the case, the severity of the charge and many other factors which the Court must take
into account in order to assess the "reasonable time! requirement. In Muller v. France, for example, a
period of four years of pre-trial detention in spite of the fact that the accused had voluntarily admitted
to having committed the offences at issue at the beginning of the investigation, was found to be
unreasonable.269 If guarantees to appear for trial, in particular bail, minimise the danger of flight in the
absence of other compelling reasons for continuing pre-trial detention, the accused has a right to be
released. Whatever grounds may exist to justify continued detention, State authorities must conduct
the proceedings with special diligence.270 The legal presumption that any individual charged with a
serious offence is at risk of absconding is certainly not justified, as the Court held in some cases
against Turkey.271
3. Right to habeas corpus proceedings
Article 5(4) ECHR contains one of the oldest human rights, the procedural guarantee of habeas corpus:
"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.! According to the Anglo-American legal tradition, habeas corpus means the
right of a detained person to challenge his or her detention before an independent court irrespective of
who is responsible for the deprivation of personal liberty (State and non-State actors) and why the
person was arrested. In principle, the right to habeas corpus proceedings under Article 5(4) ECHR
applies to all categories of deprivation of liberty enlisted in Article 5(1). In practice, one should
distinguish, however, between deprivation of liberty ordered by a court and that ordered by an
administrative authority. While a prison sentence of a criminal court, in principle,272 is not subject to
habeas corpus proceedings,273 and detention on remand is subject to periodic court review in
accordance with Article 5(3), the real significance of habeas corpus proceedings relates to cases of
deprivation of personal liberty by an administrative authority, i.e. the detention of minors, aliens,
vagrants, alcoholics, drug addicts, persons with mental disabilities and persons with infectious
diseases.274 All these detainees have a right that an independent court decides speedily about the
lawfulness of their detention and, in case of unlawful detention, orders their release.
The right to habeas corpus proceedings is an independent right: Even if the detention as such is lawful
under Article 5(1) ECHR, Article 5(4) is nevertheless violated if the detainee does not have the
opportunity to challenge the lawfulness of his or her detention before a court. The scope of the judicial
investigation under Article 5(4) depends, of course, on the type of the detention, but a simple review
of the formal legality of the detention is insufficient. The court must examine all the facts which are
put forward to justify the detention. Although such a court does not have to fulfil all the requirements
of a court in the sense of Article 6(1), it must be independent, impartial and must apply a procedure
with minimum guarantees of a fair trial, such as the right to be heard in person and the principle of
equality of arms.275 Minors should be entitled to legal assistance.276
268

Eur. Ct. H.R., Wemhoff v. Germany (Appl. No. 2122/64), judgment of 27 June 1968, Ser. A, No. 7.
Eur. Ct. H.R., Muller v. France (Appl. No. 21802/93), judgment of 17 March 1997, Rep. 1997-II.
270
cf., e.g., Eur. Ct. H.R., Letellier v. France (Appl. No. 12369/86), judgment of 26 June 1991, Ser. A, No.207 ; Eur. Ct.
H.R., van der Tang v. Spain (Appl. No. 19382/92), judgment of 13 July 1995, Ser. A, No.321.
271
cf., e.g., Eur. Ct. H.R., Yagci and Sargan v. Turkey (Appl. No. 16419/90), as well as Mansur v. Turkey (Appl. No.
16026/90), judgments of 8 June 1995, Ser. A, Nos 319-A and 319-B.
272
For exceptions to this rule see, e.g., Eur. Ct. H.R., Hussain v. United Kingdom (Appl. No.21928/93), judgment of 21
February 1996, Rep. 1996-I; Eur. Ct. H.R., Singh v. United Kingdom (Appl. No. 23389/94), judgment of 21 February 1996,
Rep. 1996-I; Eur. Ct. H.R., van Droogenbroeck v. Belgium (Appl. No. 7906/77), judgment of 24 June 1982, Ser. A, No.50.
273
cf., e.g., Eur. Ct. H.R., Iribarne Prez v. France (Appl. No. 16462/90) judgment of 24 October 1995, Ser. A, No.325-C.
274
cf., e.g., Eur. Ct. H.R., De Wilde, Ooms and Versyp ("Vagrancy!) v. Belgium (Appl. Nos 2832/66, 2835/66 and 2899/66),
op.cit. ; Eur. Ct. H.R., Engel v. the Netherlands (Appl. Nos 5100/71, 5101/71, 5102/71, 5354/72 and 5370/72), judgment of 8
June 1976, Ser. A, No.22 ; Eur. Ct. H.R., Luberti v. Italy (Appl. No. 9019/80), judgment of 23 February 1984, Ser. A, No. 75.
275
cf. Eur. Ct. H.R., Winterwerp v. the Netherlands (Appl. No. 6301/73), op.cit. ; Eur. Ct. H.R., Sanchez-Reisse v.
Switzerland (Appl. No. 9862/82), judgment of 21 October 1986, Ser. A, No. 107 ; Eur. Ct. H.R., Lamy v. Belgium (Appl. No.
269

75

COMMENTARY OF THE CHARTER OF FUNDAMENTAL

RIGHTS OF THE EUROPEAN

UNION

While persons who are detained on the suspicion of having committed an offence shall be brought
promptly before a court in accordance with Article 5(3), i.e. within one or two days, habeas corpus
proceedings under Article 5(4) shall only be decided "speedily!, i.e. within a few weeks. In
Winterwerp v. The Netherlands, the European Court of Human Rights held that a person detained in a
psychiatric hospital has a right to request a review of the legality of his detention at reasonable
intervals.277 In Bezicheri v. Italy, the Court clarified that the intervals for review of decisions to detain
on remand must be relatively short, whereas the intervals for review in psychiatric detention cases
might be somewhat longer,278 albeit no more than four months.279
4. Right to compensation
As Article 3 of Protocol 7 in case of a miscarriage of justice, Article 5(5) ECHR provides for a special
domestic remedy in addition to the general right of victims of violations of the Convention under
Article 13 to have an effective remedy before a national authority. It reads: "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.! In States in which the Convention is directly applicable, the right
to compensation under Article 5(5) can be directly enforced by the domestic courts.
The right to compensation only arises, if a domestic authority or the European Court of Human Rights
have established that any of the provisions of Article 5 have been violated, and if the applicant has
exhausted the respective domestic remedies.280 If a person has been arrested in violation of the
respective provisions of domestic law, this constitutes at the same time a violation of Article 5(1) and,
therefore, entitles the victim to compensation. If the national courts, for whatever reason, find a
violation of the right to personal liberty but deny the right to compensation, they violate the
substantive right of the victim to compensation under Article 5(5). If the violation of Article 5(1) or of
any of the procedural guarantees in Article 5(2) to 5(4) is only established by the European Court of
Human Rights, and the applicant has unsuccessfully claimed compensation before the domestic
authorities, the Court can also find a violation of Article 5(5). In the case of Sakik v. Turkey, the Court
found a violation of Article 5(5) on the grounds that the Turkish Government could not show that
anyone had ever been compensated under the domestic legal provisions the government had cited as
applicable.281
National laws on compensation in cases of deprivation of liberty often go beyond the right to
compensation provided for in Article 5(5). If a person has, for instance, been held in pre-trial detention
on the suspicion of having committed a crime, and the courts afterwards establish that he or she was
innocent, such detention on remand constituted, in principle, no violation of Article 5.282 But the
person may have spent many months in detention despite his or her innocence, which caused
considerable pecuniary and non-pecuniary damages. National laws often provide compensation for
these types of deprivation of personal liberty, even in the absence of any negligent behaviour by the
competent authorities. If an applicant claims compensation in such a case before the domestic courts,
10444/83), judgment of 30 March 1989, Ser. A, No. 151 ; Eur. Ct. H.R., Wassink v. the Netherlands (Appl. No. 12535/86),
judgment of 27 September 1990, Ser. A, No. 185-A.
276
Eur. Ct. H.R., Bouamar v. Belgium (Appl. No. 9106/80), op.cit..
277
Eur. Ct. H.R., Winterwerp v. the Netherlands (Appl. No. 6301/73), op.cit..
278
Eur. Ct. H.R., Bezicheri v. Italy (Appl. No. 11400/85), judgment of 25 October 1989, Ser. A, No. 164 : an interval of 5
months for examination of a second application for release from detention on remand was considered too long.
279
Cf., e.g., Eur. Ct. H.R., Koendjbiharie v. the Netherlands (Appl. No. 11487/85), judgment of 25 October 1990, Ser. A, No.
185-B ; Eur. Ct. H.R., E. v. Norway (Appl. No. 11701/85), judgment of 29 August 1990, Ser. A, No. 181-A.
280
Cf., e.g., Eur. Ct. H.R., Brogan v. United Kingdom (Appl. Nos 11209/84, 11234/84, 11266/84 and 11386/85), op.cit. ; Eur.
Ct. H.R., Wassink v. the Netherlands (Appl. No. 12535/86), op.cit. ; Eur. Ct. H.R., Keus v. the Netherlands (Appl. No.
1228/86), judgment of 25 October 1990, Ser. A, No. 185-C ; Eur. Ct. H.R., Tsirlis and Kouloumpas v. Greece, judgment of
29 May 1997, Rep. 1997-III.
281
Eur. Ct. H.R., Sakik et al. v. Turkey, judgment of 26 November1997, Rep. 1997-VII.
282
A violation of detention on remand would, however, arise if the suspicion was not reasonable within the meaning of
Article 5 (1)(c) or if the person concerned was not released as soon as the reasons for his or her continued detention under
Article 5 (3) had disappeared.

76

COMMENTARY OF THE CHARTER OF FUNDAMENTAL

RIGHTS OF THE EUROPEAN

UNION

which arbitrarily deny such a request, the European Court may also find a violation of Article 5(5) on
the ground that the domestic right to compensation under Article 5(5) has been violated.
If the European Court finds a violation of Article 5(5), it cannot itself grant compensation under this
provision, which only establishes a right to a specific domestic remedy. But, as with respect to any
other violation of the Convention found, the Court can afford just satisfaction in accordance with its
general competence under Article 41 ECHR. On the other hand, the fact that domestic authorities have
granted compensation in accordance with Article 5(5) does not preclude the European Court to afford
additional compensation for the same or other violations of the right to personal liberty.

77