‘Abduction of Europa’ (Rembrandt Harmensz. van Rijn, Amsterdam - 1632 - fragment)

Tuesday, 10 September 2013

This week in Strasbourg - A roundup of the European Court of Human Rights' case law - week 37

DETAINED OR NOT? - ECtHR Fatma Akaltun Firat v. Turkey (Articles 5 and 11 of the European Covention on Human Rights) 

Blogpost written by Marc de Werd

Europe's human rights court makes a slow start after the summer break. Sixteen judgments next week, but this week only one. However this single case apparently gave the judges some philosophical(ish) food for thought (although the legal question had been answered before).

What is the difference between 'mere' restriction and deprivation of liberty (within the meaning of Article 5 § 1 of the Convention)?  Say a nurse, who is a member of the public workers’ union and is distributing leaflets on behalf of the union at the hospital where she workes, is grabbed by a police officer by the arm and forcefully led to a room used by the police, where she is kept for one hour. 

This was the case in Fatma Akaltun Firat v. Turkey. She relied in particular on Article 5 (right to liberty and security) of the Convention, complaining that she had been unlawfully deprived of her liberty, and also relying on Article 11 (freedom of assembly and association). 

The Government had argued that Ms Firat had not been taken into custody and had not been detained. She had just been invited by the police officer to show the leaflets so that he could examine their contents with a view to verifying whether or not they contained any elements of a criminal nature. However, she had refused to comply with the police officer’s request and the police officer had tried to take one of the leaflets. When she had resisted, the police officer had had to pull her arm. She had 'only sat' in the office of the police officer in the hospital until the arrival of the hospital director. Upon his arrival, the hospital director had asked her to return to her duty. She could not, therefore, have been deprived of her liberty.

Let's start with the dissenters' perspective (judges Jočienė, Karakas and Keller). They point out:
"that, under the Court’s established case-law, Article 5 § 1 is not concerned with mere restrictions on liberty of movement, which are governed by Article 2 of Protocol No. 4 (-). In order to determine whether someone has been “deprived of his liberty” within the meaning of Article 5 § 1, the starting point must be his or her concrete situation, and account must be taken of a whole range of criteria, such as the type, duration, effects and manner of implementation of the measure in question. The difference between deprivation and restriction of liberty is one of degree or intensity, and not of nature or substance (-)."
The dissenters are therefore of the opinion, considering the relatively short period during which the applicant waited in a room until the Chief Doctor arrived, that she was not deprived of her liberty within the meaning of Article 5 § 1 of the Convention. 

The majority held however:
“35.  According to the Court’s established case-law, coercion is a crucial element in its examination of whether or not someone has been deprived of his or her liberty within the meaning of Article 5 § 1 of the Convention (-). The applicant in the present case did not volunteer to go to the police room, and was manhandled and physically dragged there by the police officer. She was only released after the arrival of the lawyers and the hospital director. In this connection the Court also finds it noteworthy that neither the prosecutor nor the Government have sought to argue that the applicant was free to leave the police room.”
Since the applicant was forcibly taken to the police room where she was detained against her will she was thus deprived of her liberty within the meaning of Article 5 § 1 of the Convention.
The Court found no legitimate purpose for the applicant’s detention under Article 5 § 1 which it held (therefore) arbitrary.
"40.  In the present case there is no suggestion that the applicant had committed any offences. The reason advanced for the police officer’s actions both by the prosecutor and the Government is that she had been distributing leaflets during working hours. The Court observes that although, as suggested by the applicant herself, distributing leaflets during working hours may amount to a disciplinary matter, it is not a criminal offence. Neither has there been any suggestion by the Government or any of the national authorities that the applicant’s activities were in breach of any Laws, Rules and Regulations, Government orders or public order which would have necessitated the involvement of the police."
NEEDLESS TO EXPLAIN WHY the Court in this case also found a violation of Article 11 (freedom of assembly and association). The sole justification proffered by the Government for restricting the applicant’s union activities was the distribution of leaflets in a hospital during working hours and without the chief doctor’s permission:
“56.  The Court observes that the Government’s arguments do not find support in the national legislation and that the Government have not referred to any legal provisions which prohibit the distribution of leaflets in hospitals during working hours and without the hospital administration’s permission. Indeed, in the words of the police officer’s superiors, “there was nothing wrong with the applicant distributing the leaflets” (-). Furthermore, no administrative or criminal proceedings have been brought against the applicant in connection with her distribution of the leaflets.”
Blogpost written by Marc de Werd - Courtesy Press Service of the European Court of Human Rights in Strasbourg

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