S., V. and A. v. Denmark [GC]

Information Note on the Court’s case-law 222

October 2018

S., V. and A. v. Denmark [GC] - 35553/12, 36678/12 and 36711/12

Judgment 22.10.2018 [GC]

Article 5

Article 5-1

Deprivation of liberty

Article 5-1-c

Reasonably necessary to prevent offence

Detention of football supporters for approximately eight hours without charge, with a view to preventing violence: no violation

Facts – In 2009 the applicants, three Danish nationals, were in Copenhagen to attend a football match between Denmark and Sweden. The Danish police had anticipated the possibility of fighting between hooligan groups from both countries. The second and third applicants were arrested in connection with a large brawl between Danish and Swedish supporters. Later on, the first applicant was also arrested along with large numbers of other supporters, after being heard inciting others to take part in a fight. The three applicants were each detained for slightly less than eight hours without being charged with a criminal offence. They sought compensation in the Danish courts for unlawful detention but were unsuccessful.

Law – Article 5 § 1

(a) Whether the applicants’ detention was covered by sub paragraph (b) of Article 5 § 1 – A large police presence, which was normal at any mass event, could not be compared to the very specific measures that had been taken in the case of Ostendorf v. Germany to ensure that the persons concerned were made aware of the specific act which they had to refrain from committing. Such a broad interpretation of sub-paragraph (b) of Article 5 § 1 would entail consequences incompatible with the notion of the rule of law, from which the whole Convention drew its inspiration. Accordingly, in the circumstances of the present case, the applicants’ detention had not been covered by sub-paragraph (b) of Article 5 § 1 of the Convention.

(b) Whether sub-paragraph (c) of Article 5 § 1 is applicable to preventive detention outside criminal proceedings

(i) Extent to which the Court has considered the second limb of Article 5 § 1 (c) to constitute a distinct ground for deprivation of liberty, separate from the first limb – Article 5 § 1 (c) permitted the arrest or detention of a person in different circumstances, including, under its second limb, “when it is reasonably considered necessary to prevent his committing an offence”. Both the unequivocal wording of the second limb and the relevant preparatory work clearly indicated that it was to be taken to refer to a distinct ground for deprivation of liberty, separate in particular from the ground contemplated by the first limb. In order not to make it impracticable for the police to fulfil their duties of maintaining order and protecting the public, it should as a matter of principle be permissible for them to detain an individual under Article 5 § 1 (c) outside the context of criminal proceedings, provided that they complied with the underlying principle of Article 5, namely to protect the individual from arbitrariness. With a view to ensuring greater consistency and coherence in its case-law, the Court thus reaffirmed the approach it had taken in the Lawless v. Ireland (no. 3) judgment, from which it had subsequently departed, without acknowledging as much, in Ciulla v. Italy and Ostendorf v. Germany.

(ii) Whether the “purpose” requirement in Article 5 § 1 (c) (“for the purpose of bringing him before the competent legal authority”) may constitute an obstacle to preventive detention under the second limb – The answer to the question whether the purpose requirement had been complied with should depend on an objective assessment of the authorities’ conduct, in particular whether, as required by Article 5 § 3, they had brought the detainee promptly before a judge to have the lawfulness of his or her detention reviewed or whether they had released him or her before such time. Furthermore, in the event of failure to comply with the latter requirement, the person concerned should have an enforceable right to compensation in accordance with Article 5 § 5.

Subject to the availability under national law of the additional safeguards in paragraphs 3 and 5 of Article 5 (see point (iii) below), when a person was released from preventive detention after a short period of time, either because the risk had passed or, for example, because a prescribed short time-limit had expired, the purpose requirement of bringing the detainee before the competent legal authority should not as such constitute an obstacle to short-term preventive detention falling under the second limb of Article 5 § 1 (c).

However, any flexibility in this area was limited by important safeguards embodied in Article 5 § 1, notably the requirements that the deprivation of liberty be lawful, in keeping with the purpose of protecting the individual from arbitrariness, that the offence be concrete and specific as regards, in particular, the place and time of its commission and its victims, and that the authorities be in a position to furnish some facts or information which would satisfy an objective observer that the person concerned would in all likelihood have been involved in the concrete and specific offence had its commission not been prevented by the detention. Such flexibility was further circumscribed by the requirement for the arrest and detention to be “reasonably considered necessary”. In assessing the scope of that requirement, regard could be had to the extent to which the measures in question affected interests protected by other rights guaranteed by the Convention.

(iii) Additional safeguards under Article 5 §§ 3 and 5 – It followed directly from the wording of Article 5 § 3 that, if the person was no longer “arrested or detained” but had been released, there was no obligation to bring him or her promptly before a judge.

Where a person was detained under the second limb of Article 5 § 1 (c) in the absence of a criminal investigation and of any suspicion to confirm or dispel, the facts constituting the risk of his or her committing an offence must already have been established at the time when the person had been detained in order to prevent the offence. It therefore appeared that the period needed between a person’s arrest for preventive purposes and the person’s prompt appearance before a judge or judicial officer should be shorter than in the case of pre-trial detention in criminal proceedings. Having regard to the need to assess promptness according to the special features of each case, the Court found that, generally speaking, release “at a time before prompt judicial control” in the context of preventive detention should be a matter of hours rather than days.

As to the entitlement to “trial within a reasonable time or to release pending trial”, where no criminal proceedings were initiated and no trial was to be held, the requirement under the second limb of Article 5 § 3 could not apply to preventive detention.

However, preventive detention under the second limb of Article 5 § 1 (c) was subject to the safeguard laid down in Article 5 § 5. Judicial review of the lawfulness of the detention was inherent in the national courts’ examination of a compensation claim.

(c) Application in the present case of the principles under the second limb of Article 5 § 1 (c)

(i) Whether the applicants’ preventive detention was covered by the second limb of Article 5 § 1 (c) – Bearing in mind in particular the fact that 138 individuals had been arrested on the day in question, the applicants had been released at a time before it had become necessary to bring them before a judge in accordance with the promptness requirement under Article 5 § 3 of the Convention. They had had, and had taken, the opportunity to bring the question of the lawfulness of their detention before the courts under the Administration of Justice Act. Furthermore, they could have been granted compensation had an award been justified from the point of view of Article 5 § 5 of the Convention. The applicants’ detention under section 5(3) of the Danish Police Act thus fell under the second limb of Article 5 § 1 (c) of the Convention.

ii. Whether the applicants’ detention was lawful under domestic law – In so far as domestic law provided that preventive detention should not extend beyond six hours, the police had taken due account of that time-limit in their strategy. They had sought to avoid resorting to detention too early in the day because any person so detained would otherwise have had to be released during or immediately after the match and would then have been at risk of resuming the fighting. Moreover, the police had continuously reassessed the situation, and the continuing violence had made it necessary for them to exceed the six-hour limit.

The domestic courts had found that the applicants’ detention had been lawful under the Police Act and that the over-running of the time-limit had been justified in view of the aim of the arrest, together with the organised nature, extent and duration of the disturbances, as well as the moderate time by which the maximum periods had been exceeded in the case of each of the applicants. Seeing that there was no indication that the domestic courts’ findings were arbitrary or manifestly unreasonable, the applicants’ detention had been “lawful” in the sense of conforming to the substantive and procedural rules of national law.

(iii) Whether the applicants’ detention was not arbitrary – The findings of fact reached by the domestic courts in the present case were capable of satisfying an objective observer that, at the time when the applicants had been detained, the police had had every reason to believe that they were organising a brawl in the centre of Copenhagen in the hours before, during or after the football match, which could have caused considerable danger to the safety of the many peaceful football supporters and uninvolved third parties present at the relevant time. The precise place and time and the potential victims of the offences could be easily identified.

Domestic law had specified which criminal acts the applicant should refrain from committing. Furthermore, the facts established by the national courts had given a sufficient indication that the “offence” to be prevented could be considered “specific and concrete”. The authorities had furnished evidence that the applicants would in all likelihood have been involved in that offence had its commission not been prevented by their detention.

(iv) Whether the applicants’ detention was “necessary” – The Court considered it useful to elaborate on the necessity criterion in respect of the second limb of Article 5 § 1 (c). Less severe measures had to have been considered and found to be insufficient to safeguard the individual or public interest requiring detention. Preventive detention could not reasonably be considered necessary unless a proper balance was struck between the importance in a democratic society of preventing an imminent risk of an offence being committed and the importance of the right to liberty. Thus, in order to be proportionate to such a serious measure as deprivation of liberty, the concrete and specific “offence” referred to under the second limb of Article 5 § 1 (c) had to be of a serious nature, entailing danger to life and limb or significant material damage. It followed in addition that the detention should cease as soon as the risk had passed, which called for monitoring, the duration of the detention being also a relevant factor.

In the present case, the offence which the authorities had sought to avert was undoubtedly a serious one. Before the first fight had broken out, the police had applied a very careful approach with lenient measures, such as dialogue, to prevent hooligan clashes. They had also parked their armoured personnel carriers crosswise to prevent the group of Danish fans from meeting the Swedish group. Thereafter, they had turned the group of Danish fans into a side street to register and search them.

It was at that moment of intense action, in the immediate vicinity of an ongoing fight, that the second and third applicants had been detained with four other individuals, in full compliance with the strategy of detaining only the instigators of the fighting. About forty-four persons from the Danish group, including the first applicant, had thus been left at liberty in the side street. The first applicant had not been detained until after he had been heard inciting others to take part in a fight. The police had therefore not resorted to excessive detentions.

Accordingly, the Court saw no reason to cast doubt on the first-instance court’s conclusion that “less radical measures could not be deemed sufficient to avert the risk of additional unrest in those circumstances”. It was therefore established that the applicants’ detention could reasonably have been considered “necessary” to prevent their instigating or continuing to instigate acts of hooliganism, given that less stringent measures would not have sufficed.

As regards the duration of the detention, the applicants had been released as soon as the imminent risk had passed, they had been detained for no longer than had been necessary, and this risk assessment had been sufficiently monitored on an ongoing basis. Accordingly, the domestic courts had struck a fair balance between the importance of the right to liberty and the importance of preventing the applicants from organising or taking part in a hooligan brawl.

The applicants’ preventive detention had complied with sub-paragraph (c) of Article 5 § 1.

Conclusion: no violation (fifteen votes to two).

(See Ostendorf v. Germany, 15598/08, 7 March 2013, Information Note 161; Lawless v. Ireland (no. 3), 332/57, 1 July 1961; and Ciulla v. Italy, 11152/84, 22 February 1989. See also Brogan and Others v. the United Kingdom, 11209/84 et al., 29 November 1988; Fox, Campbell and Hartley v. the United Kingdom, 12244/86, 30 August 1990; Steel and Others v. the United Kingdom, 24838/94, 23 September 1998; Jėčius v. Lithuania, 34578/97, 31 July 2000; Nicol and Selvanayagam v. the United Kingdom (dec.), 32213/96, 11 January 2001; McBride v. the United Kingdom (dec.), 27786/95, 5 July 2001; Kandzhov v. Bulgaria, 68294/01, 6 November 2008, Information Note 113; Stanev v. Bulgaria [GC], 36760/06, 17 January 2012, Information Note 148; and Austin and Others v. the United Kingdom [GC], 39692/09 et al., 15 March 2012, Information Note 150)

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This summary by the Registry does not bind the Court.

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