Abstract
Preventive arrest is a controversial instrument of crime prevention that is commonly regulated in police law and in some criminal procedures. Its conformity with Article 5 of the European Convention on Human Rights (ECHR) has been the subject of many decisions and judgments of the European Court on Human Rights. Since its judgment in the Ciulla case in 1989, the Court has been of the opinion that § 1 (b) of Article 5 is applicable to preventive deprivation of liberty, which requires that detention be applied to secure the fulfilment of any obligation prescribed by law, if the obligation is specific enough. On the contrary, in the Court’s opinion, § 1 (c) of Article 5 is inapplicable outside the framework of criminal procedure. In the judgment of 22 October 2018 in the case of S., V., and A. v. Denmark, the Grand Chamber took the opposite view, which calls for an analysis of how far preventive arrest is allowed under the ECHR. The analysis and European standards may also be of interest to researchers from non-European countries, as the problem of the use of preventive arrests is discussed worldwide.
Highlights
The right to personal liberty is without a doubt one of the core human rights guaranteed by national constitutions and international instruments
In a line of cases, which will be presented below, the European Court of Human Rights (ECtHR)[5] for many years distinguished situations where a person is already a suspect from those where there are no grounds to suspect a person of any previous crime
One may wonder whether that change in the Convention standards will not force the Court to further reassess its position in the near future
Summary
The right to personal liberty is without a doubt one of the core human rights guaranteed by national constitutions and international instruments. Every legislative attempt to create legal grounds for limiting the right must be given due attention, and any regulation must comply with the requirements of Article 5 of the European Convention on Human Rights (ECHR)[2] This is very important in the case of deprivation of liberty for preventive purposes. In a line of cases, which will be presented below, the European Court of Human Rights (ECtHR)[5] for many years distinguished situations where a person is already a suspect from those where there are no grounds to suspect a person of any previous crime. The European standards may be of interest to researchers from other legal systems, as the issue of preventive detention is debated in many states
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