Article 5, paragraph 5, of the European Convention on Human Rights (ECHR) establishes the crucial principle that everyone who has been the victim of unlawful arrest or detention is entitled to an enforceable right to compensation. This provision acts as a vital safeguard, ensuring redress for individuals whose fundamental right to liberty and security has been violated under the Convention.
Understanding Article 5 of the ECHR
Before delving into Article 5(5), it's important to grasp the broader context of Article 5 itself, which protects the right to liberty and security of person. This fundamental right means that no one can be deprived of their freedom arbitrarily. Article 5 sets out specific, exhaustive grounds under which a person may be lawfully arrested or detained, such as after conviction by a competent court, for non-compliance with a lawful order, or for the purpose of bringing them before the competent legal authority on reasonable suspicion of having committed an offence.
The Core of Article 5, Paragraph 5
Article 5(5) is a procedural guarantee that complements the substantive rights outlined in the preceding paragraphs of Article 5. It ensures that victims of violations of these substantive rights have an effective remedy.
The key elements of Article 5(5) can be broken down as follows:
- "Everyone who has been the victim...": This refers to any individual who has personally suffered from an arrest or detention that did not comply with the requirements of Article 5.
- "...of arrest or detention in contravention of the provisions of this article...": This is the critical condition. It means that the arrest or detention must have been unlawful according to the standards set out in Article 5(1) to 5(4). This includes:
- Detention without legal basis.
- Detention not for the purposes specified in Article 5(1) (e.g., unlawful conviction, arbitrary reasons).
- Failure to be promptly informed of the reasons for arrest or charges.
- Lack of prompt access to a judge or other officer authorized by law to exercise judicial power.
- Unreasonable length of pre-trial detention.
- Lack of timely review of the lawfulness of detention.
- "...shall have an enforceable right to compensation.": This mandates that states provide a mechanism for victims to obtain financial compensation for the damage suffered due to the unlawful deprivation of liberty. This right must be "enforceable," meaning it must be practical and effective, not merely theoretical.
Practical Implications and Examples
Article 5(5) is crucial for ensuring accountability and providing tangible relief to victims. Without it, the right to liberty and security could be violated without meaningful consequences for the state.
Examples of situations that could lead to a claim under Article 5(5) include:
- Arbitrary Detention: A person is detained by authorities without any legal justification or reasonable suspicion of a crime.
- Prolonged Pre-Trial Detention: A suspect is held in detention for an excessive period without trial, exceeding what is deemed reasonable under Article 5(3).
- Lack of Information: An individual is arrested but not promptly informed of the reasons for their arrest or any charges against them, hindering their ability to challenge the detention.
- Unlawful Imprisonment: A person is convicted and imprisoned, but their conviction is later quashed on grounds that the detention itself was unlawful under ECHR standards (e.g., due to a fundamentally unfair trial process leading to the detention).
Key Aspects of Compensation
Aspect | Description |
---|---|
Purpose | To provide pecuniary (financial) redress for damage sustained as a result of the unlawful deprivation of liberty. |
Scope of Damage | Can include both material damages (e.g., loss of earnings) and non-material damages (e.g., pain, suffering, distress, loss of reputation). |
Enforceability | The state must have legal mechanisms (e.g., national courts, administrative procedures) through which victims can effectively pursue and obtain this compensation. |
No Fault Principle | The right to compensation generally arises from the unlawfulness of the detention under Article 5, not necessarily from bad faith or negligence on the part of the authorities. |
Importance and Relevance
Article 5(5) serves several vital functions within the framework of human rights protection:
- Deterrence: It discourages states from arbitrarily depriving individuals of their liberty by imposing a financial consequence for such actions.
- Redress: It offers victims a concrete means to recover from the harm caused by unlawful detention, addressing both financial losses and psychological distress.
- Accountability: It holds states accountable for ensuring that their systems for arrest and detention comply with ECHR standards.
- Rule of Law: It reinforces the principle that even state authorities are bound by the law and must operate within its constraints.
For further detailed information on Article 5 of the ECHR, you can consult the official text provided by the European Convention on Human Rights.