REPORTS
European Court of Human Rights finds Greece to be in violation of Article 5 of the ECHR in the case of Loizou v. Greece
According to Article 5 (the right to personal liberty and security) of the European Convention on Human Rights (hereafter the ECHR), “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:…c) 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….4. 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.”
On March 18, 2021, the decision of the European Court of Human Rights (hereinafter ECtHR) in the case of Loizou v. Greece (application no. 17789/16) was published, concluding that Greece had violated Article 5 of the ECHR in this case. See the decision as posted in the HUDOC database here and the press release of the ECtHR here.
The case concerned the lawfulness of the applicant’s continued provisional detention, which had been interrupted so that they could serve a prison term for other offences, and the delay concerning the applicant’s appeal. The applicant complained about being detained for more than the first six months without a court order, and about the delay in the issuance of a decision by the relevant Judicial Council.
The ECtHR examined to what extent national law had been complied with – legislation and case law – and stressed that even if the applicant’s provisional detention met the criterion of legality under national law, there is still reason to examine to what extent the detention in question complied with Article 5 paragraph 1 of the Convention, which aims to prevent the arbitrary deprivation of liberty of people. Furthermore, the ECtHR examined whether or not the speed requirement was satisfied in this case.
The Court took into account various factors, such as the fact that the applicant had not been informed in a timely manner of the interruption of his provisional detention; that there is no causal link between the deprivation of liberty following the applicant’s conviction and that imposed on provisional detention, and stressed that the principle of legal certainty concerning provisional detention may be jeopardized if national courts apply national law in such a way as to unreasonably postpone dismissal. The Court concluded that Article 5, paragraph 1 of the ECHR had been violated as during the period between 30-3-2015 and 16-9-2015, the detention of the applicant did not have a clear legal basis in national law and was therefore not in accordance with Article 5 paragraph 1c of the Convention.
The ECtHR also found that paragraph 4 of Article 5 had been violated in this case. Noting that states with a second level of jurisdiction should in principle provide detainees with the same guarantees both on appeal and in the first instance, it considered that the proceedings before the Board of Appeal in this case did not meet the speed requirements. This was because the proceedings lasted four months and eight days, despite the fact that it was not legally or factually complicated, since it raised only one question: whether the applicant’s detention had been suspended or not.
Respect for fundamental rights is one of the key components of a state that is governed by the rule of law. The fundamental rights that every citizen should enjoy are enshrined in the European Convention on Human Rights. It is a primary and indisputable obligation of the state to respect these rights. In this case, however, the European Court of Human Rights found that the applicant’s right to personal liberty and security was violated.
Between March and September 2015 the applicant’s detention had no clear legal basis, leaving the applicant in a state of uncertainty as to the legal basis and reasons for his detention. For this reason, the ECtHR ruled that the judicial authorities did not offer the applicant adequate protection against arbitrariness and that there had been a violation of Article 5 paragraph 1 of the ECHR. Furthermore, the ECtHR ruled that the length of the proceedings before the competent judicial council did not meet the speed requirement detailed in paragraph 4 of Article 5.
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