Deprivation of Liberty: Has the European Court of Human Rights Recognised a 'Public Safety' Exception?

• Author: Donna Cline
• Position: Utrecht University School of Law, LLM International Human Rights and Criminal Justice (2012); Charleston School of Law, JD (2009); Western Carolina University, BA Music, BSBA Business Administration and Law (2002)
• Pages: 23-38

Deprivation of Liberty: Has the European Court of Human

Rights Recognised a ‘Public Safety’ Exception?

Donna Cline

Merkourios 2013 – Volume 29/Issue 76, Article, pp. 23-38.

URN:NBN:NL:UI:10-1-112862

ISSN: 0927-460X

URL: www.merkourios.org

Publisher: Igitur Publishing

Copyright: this work has been licensed by the Creative Commons Attribution License (3.0)

Keywords

Deprivation of liberty, kettling, civil liberties, public demonstration, public safety, arbitrary detention, European Convention

of Human Rights

Abstract

e European Court of Human Rights held in Austin & Others v e United Kingdom that the police connement of a crowd

of protestors for up to seven hours, or ‘kettling’, did not constitute a deprivation of liberty in violation of Article 5 of the

European Convention of Human Rights. Austin was the rst time the Court considered the application of Article 5 to the

practice of kettling. e Court’s previous Article 5 jurisprudence demonstrates that when analysing whether an individual

has been unlawfully deprived of his or her liberty, the Court will consider the type of measure, its duration, its eects on the

individual, and the manner of implementation of the restrictive measure. In Austin, the Court introduced a new factor in this

analysis – the context in which the measure is imposed. is article examines the Court’s deprivation of liberty jurisprudence,

as well as the Article 5 exceptions to the prohibition of deprivation of liberty. Finally, the Court’s nding in Austin is analysed

to determine whether it now recognises a ‘public safety exception’ to Article 5.

Author Aliations

Utrecht University School of Law, LLM International Human Rights and Criminal Justice (2012); Charleston School of

Law, JD (2009); Western Carolina University, BA Music, BSBA Business Administration and Law (2002).

Article

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Merkourios - International and European Law: General Issue 2013 - Vol. 29/76

Case Note

Article

I. Introduction

Public protests and demonstrations are not a new phenomenon, but they have enjoyed increasing media attention in the past

few years, especially with the worldwide spread of the Occupy Wall Street movement. is increased attention has brought

greater awareness – and criticism – of the police tactics used for crowd control. For example, in 1999, Seattle police were

criticised after they used pepper spray, tear gas and rubber bullets to disperse crowds of World Trade Organization protestors.1

More recently, and rather controversially, police have utilised ‘kettling’ to control and disperse large crowds of demonstrators.

Kettling is the connement and cordoning of persons for an extended period of time, usually during a protest or assembly.2

is practice is controversial because of the potential dangers involved, such as the physical eects of being squeezed tightly

for extended periods of time, or other possible injuries, such as being crushed.3

From a human rights perspective, kettling is controversial because the practice involves detaining persons against their will

in a conned space for long periods of time, possibly in violation of one’s right to freedom from deprivation of liberty. is

right is rmly established in international law as a fundamental human right; Article 5(1) of the European Convention on

Human Rights (‘Convention’) recognises that everyone has the right to liberty and security of person, and only accepts

the deprivation of a person’s liberty in specic circumstances and in accordance with the law. Article 9 of the International

Covenant on Civil and Political Rights (‘ICCPR’) provides that everyone has the right to liberty and security of person,

and prohibits arbitrary detention. Article 7 of the American Convention on Human Rights also guarantees the right to be

free from deprivation of physical liberty. Even the International Court of Justice (‘ICJ’) has recognised this right, stating,

‘to deprive human beings of their freedom and to subject them to physical constraint in conditions of hardship is in itself

manifestly incompatible with the principles of the Charter of the United Nations, as well as with the fundamental principles

enunciated in the Universal Declaration of Human Rights’.4

e European Court of Human Rights (‘Court’ or ‘ECHR’) will generally nd that an Article 5 deprivation of liberty has

occurred when there is the connement of an individual combined with one or more aggravating factors that distinguish

simple detention from a deprivation of liberty. e Court makes this determination by examining the facts of each case.

If the Court nds a deprivation of liberty did occur, it will then decide whether that deprivation was justied by one of

the permitted ‘exceptions’ found in Article 5(1)(a) – (f) of the Convention.5 Permitted exceptions include detention of an

individual after a lawful conviction and detention for the purpose of bringing an individual before a competent judicial

authority. Until recently the Court had not analysed whether a deprivation of liberty was permissible when police action

was necessary to conne persons in order to prevent serious public disorder.6 However, in its March 2012 decision in Austin

& Others v e United Kingdom,7 the Court found the kettling of persons inside a police cordon for up to seven hours was

not a deprivation of liberty. e majority concluded the connement measure was necessary based on the facts of the case

combined with the context in which the measure was imposed; the police had no alternative but to resort to kettling in order

1 N de Mause, ‘Pepper Spray Gets in eir Eyes’ (FAIR, March/April 2000) .fair.org/index.php?page=1029> accessed 31 July 2012.

2 Ruthann Robson, ‘ECHR OKs Police “Kettling” of Protestors’ (IntLawGrrls, 18 March 2012) .intlawgrrls.com/2012/03/echr-oks-police-kettling-

of-protesters.html> accessed 31 July 2012.

3 M Townsend and S Malik, ‘Kettle tactics risk Hillsborough-style tragedy – doctor’ (e Observer, 10 December 2010)

dec/19/police-kettle-risk-crush-hillsborough> accessed 31 July 2012.

4 Case Concerning United States Diplomatic and Consular Sta in Tehran (USA v Iran) (Judgment) [1980] ICJ Rep 42.

5 e European Convention on Human Rights, art 5(1)(a)-(f), provides for the following permissible cases of deprivation of liberty:

(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 fulllment of any

obligation prescribed by law;

(c) the lawful arrest or detention of a person eected for the purpose of bringing him before the competent legal authority on reasonable

suspicion of having committed an oence or when it is reasonably considered necessary to prevent his committing an oence or eeing 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 eecting an unauthorised entry into the country or of a person against whom action

is being taken with a view to deportation or extradition.

6 Austin & Others v e United Kingdom (GC) App nos 39692/09, 40713/09 & 41008/09 (ECHR, 15 March 2012) 42. ‘[T]he Strasbourg Court had never been

called upon to consider Article 5 in the context of crowd control and asked whether the purpose for which an individual is detained can aect whether or not there

has been a deprivation of liberty.’ See also R Brander and A Pickup, ‘Arrest and Detention’ in M Colvin and J Cooper (eds), Human Rights in the Investigation and

Prosecution of Crime (OUP 2009) 160.

7 ibid.

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