Article 5 of the European Convention on Human Rights guarantees the right to liberty and security. It strictly limits the circumstances in which a person may be lawfully deprived of liberty and provides safeguards against arbitrary detention.
The article affirms liberty as a fundamental right while recognising that detention may be lawful in defined situations, such as following conviction or to prevent crime. It ensures that any deprivation of liberty is subject to legal certainty and judicial oversight.
Key cases include Brogan v United Kingdom (1988), where prolonged detention without judicial review breached Article 5, and A v Secretary of State for the Home Department (2004), which struck down indefinite detention under anti-terrorism legislation as incompatible with the Convention.
Article 5 ECHR is central to the protection of individual liberty in democratic societies. It ensures detention is lawful, justified, and subject to effective oversight, balancing state security needs with fundamental human rights.
Foreign nationals suspected of terrorism were detained under the Anti-Terrorism, Crime and Security Act 2001 following the 9/11 attacks. The Court of Appeal allowed the Secretary of State's appeal, holding that detention of non-nationals alone was not discriminatory as they were in a different legal position from British nationals regarding immigration status.
A mentally ill detainee was held for seven months in a prison psychiatric wing rather than the designated Social Protection Centre. The Court found violations of Article 5(1) regarding unlawful detention in an inappropriate institution and Article 6(1) concerning denial of legal aid for appeal, establishing that detention of persons of unsound mind requires appropriate therapeutic facilities.
Mr Aksoy was detained by Turkish police for at least fourteen days without judicial supervision and subjected to 'Palestinian hanging' torture, causing bilateral arm paralysis. The Court found Turkey violated Article 3 (prohibition of torture), Article 5(3) (right to prompt judicial review), and Article 13 (right to effective remedy). This landmark case established that torture victims must have access to thorough investigations.
Four Somali asylum-seekers were held in the transit zone of Paris-Orly Airport for twenty days without adequate legal basis or judicial review before being returned to Syria. The European Court of Human Rights found France violated Article 5(1), establishing that holding asylum-seekers in transit zones constitutes deprivation of liberty requiring legal safeguards.
During a May Day demonstration in Oxford Circus, police cordoned approximately 3,000 protesters for seven hours to prevent anticipated violence. The appellant challenged this containment as unlawful deprivation of liberty under Article 5 ECHR. The House of Lords held that proportionate crowd control measures taken in good faith do not constitute deprivation of liberty.
Four British citizens detained under anti-terrorism legislation in Northern Ireland claimed compensation following the European Court's earlier finding that their detention violated Article 5(3) and 5(5) of the Convention. The Court held that the finding of violations in the principal judgment itself constituted sufficient just satisfaction.
Four applicants were arrested and detained under the Prevention of Terrorism Act 1984 for periods ranging from four to six days without being brought before a judge. The Court found that detention exceeding four days without judicial oversight violated the requirement of 'promptness' under Article 5(3) ECHR, even in terrorism cases.
A Syrian national detained in Greece pending expulsion was held for seventeen months in severely overcrowded police detention facilities with inadequate sleeping and sanitary facilities. The European Court of Human Rights found violations of Article 3 (degrading treatment) and Article 5 (unlawful detention and lack of judicial review).
The Supreme Court considered whether living arrangements for three mentally incapacitated individuals amounted to a deprivation of liberty under Article 5 ECHR. The majority established the 'acid test': continuous supervision and control, and not free to leave, regardless of placement comfort or compliance.
Ms Evans, a prisoner, was detained 59 days beyond her correct release date due to a miscalculation based on earlier Divisional Court authority. The House of Lords held the detention unlawful and confirmed that false imprisonment is a strict liability tort, making the State liable in damages despite the governor’s good faith reliance on precedent.
The Attorney General for Northern Ireland referred whether a proposed Revised Code of Practice, allowing those lacking mental capacity to nonetheless validly consent to confinement through wishes and feelings, would breach article 5 ECHR. The Supreme Court overruled Cheshire West and held the Revised Code lawful.
This decision overrules Cheshire West and rejected the acid test as a complete test for deprivation of liberty. It outlines the restored multifactorial Article 5 approach, including the renewed importance of valid consent, wishes and feelings.
September 13, 2026
National Case Law Archive
September 3, 2026
National Case Law Archive
September 3, 2026
National Case Law Archive