Abstract
In Austin & Others v the United Kingdom The European Court of Human Rights came to the conclusion that the use of a police cordon, also known as “kettling”, where approximately 2000 people were forced to remain inside the cordon for up to eight hours, did not amount to deprivation of liberty under Article 5 (1) of the European Convention on Human Rights. This conclusion was reached by way of restrictive interpretation of the term “deprivation”. Previous case law establishes a set of criteria to be used when deciding if an infringement on the physical liberty to move from place to place constitutes a deprivation of this liberty, or merely a restriction upon it. These criteria were upheld in Austin, but were found to give room for taking into account the context and circumstances in which the police cordon was used. The previous view of the Court that the grounds justifying deprivations of liberty listed in Article 5 (1) (a-f) are exhaustive, was also upheld. In this article the starting point is the close relationship between national police law regarding the maintenance of security and public order on one hand, and the principle of necessity on the other. It is emphasised that “necessity”-based norms in national police law can make police measures directed against innocent third parties legal, deprivations of liberty included, but that this possibility would have been absent in Article 5 (1) of the Convention without the aforementioned restrictive interpretation of the term “deprivation”. An attempt is made to show that this interpretation is in fact based on central elements of the principle of necessity. Furthermore, it is attempted to show that the restrictive interpretation can be seen as a reflection of the need acknowledged in national police law, as well as in other articles of the Convention, to direct police measures against innocent third parties.
Highlights
In its Grand Chamber decision of 15 March 2012 in the case of Austin & Others v The United Kingdom1 the European Court of Human Rights (‘the Court’ or ‘ECtHR’) interpreted the term ‘deprived of his liberty’ in Article 5 [1] of the European Convention on Human Rights (‘the Convention’) in a way that must be seen as a restrictive interpretation, when compared to earlier case law
It was partly directed against innocent passersby who had nothing to do with the demonstration in which the measure was used, and was not covered by any of the relevant grounds for justification found in Article 5 [1] subparagraphs (b) and (c)
1/2015 in national police law be a close connection between the legal norms concerning police measures used for upholding security and public order, and norms derived from the principle of necessity; 3) to show that the police measure in question, even when directed against innocent passersby, would, at least in some Convention member states, be legal under national law,2 and that this state of law is closely connected to norms derived from the principle of necessity; and 4) to show that the situation described in 2) and 3) makes the Court’s chosen line of argumentation in Austin a logical one
Summary
The majority judges’ argumentation in Austin can be divided into two parts addressing arguments on different levels. It was important for the Court to avoid this outcome, as it stated that ‘[A]rticle 5 cannot be interpreted in such a way as to make it impracticable for the police to fulfil their duties of maintaining order and protecting the public [...]’ 52 This statement is completely in line with ‘necessity’-based reasoning in national police law, and so is the solution introduced by the Court, namely the ‘context and circumstances’-model: Because of the context and circumstances, there was a need for reinterpreting the term ‘deprived of his liberty.’. 9.3 The ‘Context and Circumstances’-Approach in Austin and its relation to the ‘Defence of Necessity’
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