ECHR, art 5(4)—rights and duties
Produced in partnership with Andrew Sperling of SL5 Legal

The following Corporate Crime practice note produced in partnership with Andrew Sperling of SL5 Legal provides comprehensive and up to date legal information covering:

  • ECHR, art 5(4)—rights and duties
  • The scope of article 5(4)
  • Procedural Fairness
  • Right to an oral hearing
  • Timing of reviews
  • Delay
  • Delay in the context of IPP prisoners
  • Offending behaviour courses
  • Damages
  • Article 3 of Protocol 1

ECHR, art 5(4)—rights and duties

The scope of article 5(4)

Article 5(4) of the European Convention of Human Rights (ECHR) provides that:

'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.'

ECHR, Art 5(4) entitles an arrested or detained person to institute proceedings bearing on the procedural and substantive conditions which are essential for the 'lawfulness' of his or her deprivation of liberty. The notion of 'lawfulness' under Article 5(4) has the same meaning as in Article 5(1), so that the arrested or detained person is entitled to a review of the lawfulness of their detention in the light not only of the requirements of domestic law but also of the ECHR, the general principles embodied therein and the aim of the restrictions permitted by ECHR, Art 5(1).

The reviewing 'court' must not have merely advisory functions but must have the competence to decide the lawfulness of the detention and to order release if the detention is unlawful

The burden of proof lies on the state to show that detention is lawful. See: Zamir v United Kingdom (1983) 40 DR 42 (not reported by LexisNexis®).

Procedural Fairness

ECHR, Art 5(4) contains specific procedural guarantees for matters of deprivation

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