In the recent case of Ostendorf v. Germany, the European Court of Human Rights squarely faced the question whether the police can arrest someone not because that someone has committed an offence, but because he or she is about to commit one. The Court was unanimous in holding that the police could, on strict conditions, do that. Somewhat curiously, however, the Court divided 5 to 2 on why it could to that. This apparently came against the background of extensive and principled argument by the parties.
The facts of the case were simple enough: the applicant was very strongly suspected to be a hooligan ring-leader and was travelling to one of ‘his’ team’s away games at Frankfurt. He and his companions had already been under police escort on the train, and when they arrived at Frankfurt, they were subjected to local police and ordered to stay together as a group at all times. While in a bar, the applicant tried to escape police surveillance and separate himself from the group. A policeman found him in a locked cubicle in the ladies’ lavatory. The applicant was arrested to prevent him from committing crimes – principally, starting a brawl – at the stadium (not for having entered the ladies’ room, which is neither a crime nor otherwise grounds for arrest).
The applicant was released from police custody about four hours later. It was hardly to be contested that he had thus been deprived of his (physical) liberty within the meaning of Article 5 ECHR. This left the question whether the detention was justified under any one of the legitimate grounds of detention in Article 5 (1) (2) ECHR.
The Court found that the applicant’s detention came within Article 5 (1) (b), that is detention ‘in order to secure the fulfilment of any obligation prescribed by law’. This ground of detention had to be limited, however, to quite specific obligations prescribed by law. The general duty of obedience to the law was not enough, nor was the duty not to commit crimes in the near future (para 70 of the judgment). Instead, the obligation had to have been made specific in the circumstances. For instance, the duty to testify in a particular case was specific enough, as was a duty to give one’s name to the police when asked (para 92; the latter is lovingly illustrated by Stephen Fry and Hugh Laurie here). In Mr Ostendorf’s case, the general obligation not to start a brawl therefore was not enough, but once Mr Ostendorf had been apprised by the police of the specific duty not to do it at that specific time and place (at Frankfurt during the game), this was sufficient. He had been apprised of his duty in this manner when the police had ordered him to remain with his group and thus under police surveillance.
(I think the two dissenting judges, in disputing the application of Article 5 (1) (b), miss this aspect of the facts. Just like the general obligation to testify as a witness is made specific by the summons in a particular case, so the general obligation not to start a brawl was made specific by the police measures directed towards the applicant.)
For my money, the more interesting aspect of the case relates to Article 5 (1) (c) of the Convention. The majority found this provision inapplicable. The two dissenting judges disagreed with the majority and with the settled case law of the Court. Article 5 (1) (c) allows ‘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’.
The discussion centred on the second case covered in the subsection. It was clear that the applicant’s detention was ‘reasonably considered necessary to prevent his committing an offence’ (which again, had to be a specific offence). However, the Court has long held that the further condition in Article 5 (1) (c) that the detention must be ‘effected for the purpose of bringing him before the competent legal authority’ applied also to detentions considered necessary to prevent an offence. The condition does not apply only to the case of detention ‘on suspicion of having committed an offence’ (the classic case of pre-trial custody). If, therefore, even detention on the grounds of a probable future offence had to be ‘for the purpose of bringing him before the competent legal authority’ (generally a judge), it followed for the majority that such detention could only lawfully occur in criminal proceedings. Accordingly, the majority held that the applicant’s case fell outside Article 5 (1) (c), because it was preventive rather than criminal in nature.
The two-judge minority disputed the necessary link with criminal proceedings that had been developed in a fairly strong body of case law. It did not take issue with the condition that the arrest and detention had to be ‘for the purpose of bringing him before the competent legal authority’. Rather, the two judges thought that the ‘legal authority’ could be the judge deciding on the legality of the detention and did not have to be a judge deciding a criminal case on the merits. In this, they could draw support from the Court’s very first merits judgment, that in Lawless v. Ireland.
With respect, I think the majority of the Court had the better of the argument. First, the idea that the ‘legal authority’ in Article 5 (1) (c) could be the judge reviewing the legality of the detention (on whatever legal standards may apply) sits uneasily with the fact that Article 5 (3), in establishing the right to such review, does not refer back to Article 5 (1) (c) in any way. But more fundamentally, detention can hardly be ‘for the purpose‘ (‘en vue de’) of bringing the detainee before the judge reviewing detention. Review by a judge is incidental to detention but can hardly constitute its very purpose.
Just for the sake of completeness, it is as well to note that the majority didn’t necessarily have great arguments all the way. Witness this passage at para 86:
‘The Court further observes that, contrary to the Government’s view, the second alternative of Article 5 § 1 cannot be considered as superfluous in addition to the first alternative of that provision (detention “on reasonable suspicion of having committed an offence”). A detention under sub‑paragraph (c) of Article 5 § 1 may be ordered, in particular, against a person having carried out punishable preparatory acts to an offence in order to prevent his committing that latter offence. That person may then be brought before a judge and be put on a criminal trial, for the purposes of Article 5 § 3, in respect of the punishable preparatory acts to the offence.’
This, I would suggest, is in error. If the preparatory acts are punishable, and their perpetrator is arrested for the purpose of being tried for them, then such detention comes within the first case of Article 5 (1) (c). The person having committed punishable preparatory acts is arrested on suspicion of having committed just that preparatory offence. I imagine the Court just did not pluck up the courage to say that the bit about preventive detention in Article 5 (1) (c) is surplussage and without actual content. However, the wording and purpose of the provision, as well as the saving effect of subsection b), in my opinion would have allowed the Court to say just that.