Communicated on 7 January 2014

SECOND SECTION

Application no s . 35553/12 , 36678/12 and 36711/12 S., V. and A . against Denmark

STATEMENT OF FACTS

A. The circumstances of the case

The applicants, Mr S., Mr V. and Mr A. , are Danish nationals born in 1989, 1982 and 1982 respectively. They are represented before the Court by Ms Trine Nyrup , a lawyer practising in Ã…rhus .

The facts of the case, as submitted by the applicants, may be summarised as follows.

On Saturday 10 October 2009 from 8 to 10 p.m. a football match between Denmark and Sweden was held in Copenhagen. The stadium had a capacity of 38,000 spectators.

The three applicants went to Copenhagen to watch the match. They were arrested during the day by virtue of section 5, subsection 3, of the Police Act ( Politiloven ).

Altogether 138 spectators/hooligans were arrested, approximately half of whom were charged with various criminal offences while the other half were arrested under the said provision of the Police Act.

The first applicant was detained from 4.45 p.m. to 12.06 a.m., thus 7 hours and 21 minutes.

The second applicant was detained from 3.50 p.m. to 11.27 p.m , thus 7 hours and 37 minutes.

The third applicant was detained from 3.50 p.m. to 11.34 p.m., thus 7 hours and 44 minutes.

On 15 October 2009, on behalf of the applicants, their representative requested that the police bring the cases before the courts in order to examine the lawfulness of the detention under chapter 43a of the Administration of Justice Act ( Retsplejeloven ). She also requested compensation under section 469, subsection 6, of the said Act.

On 4 November 2009, the parties having agreed on a common venue, the cases were brought before the City Court in Ã…rhus ( Retten i Ã…rhus ). The applicants, three witnesses on their behalf, the leader of the police operation and four other representatives of the police were heard.

The applicants explained that they had arrived in Copenhagen well before the match was to begin. They had not been involved in any altercations or had any intention of doing so. They had previously been held in police custody in connection with other football matches.

A report on the events procured by the police was submitted to the City Court. It indicated that the police were aware that hooligan groups from each country were set on fighting each other on the relevant day. The risk thereof was increased by the fact that the match would start only at 8 p.m. leaving considerable time for each group to consume alcoholic beverages beforehand. In order to prevent such clashes, the plan was to arrest the instigators of fights and charge them or, if that was not possible, to detain instigators by virtue of section 5, subsection 3, of the Police Act. Since detention under the latter provision, as far as possible, should not exceed 6 hours, it was specifically stated that it was preferable to avoid arresting anyone too early during the day, since they would then have to be released during or after the game, with the possibility that they would become involved in brawls anew. At around 3.40 p.m. the first big fight started between Danish and Swedish spectators in the centre of Copenhagen, resulting in 5 or 6 persons being arrested, including the second and the third applicants. Subsequently, elsewhere, other spectators were arrested, including the first applicant. After the match, another big brawl started in the centre of town, resulting in further arrests of a large group of Swedish and Danish spectators/hooligans.

In its judgment of 25 November 2010, the City Court noted at the outset that the police had failed to comply with the time-limit for bringing the cases before the courts but it found that this delay could not itself justify the granting of compensation to the applicants.

In the City Court ’ s view there had been a concrete and immediate danger to the public order, which the police had had an obligation to avert under section 5, subsection 1, of the Police Act. It observed that all three applicants had previously been detained in connection with other football matches. As to the first applicant, it found it established that a reliable witness had contacted the police because he had just overheard a telephone call made by the first applicant encouraging others to come and fight against Swedish spectators in front of the Tivoli Gardens in Copenhagen. As to the second and the third applicants, the City Court found it established that they had been involved in the first big brawl in the centre of Copenhagen, that they had talked to a named member from a hooligan faction called “South Side United”, and that they had given instructions to others in the group.

In respect of all of them, the City Court considered that the police had acted within their powers, that less interfering measures would not have sufficed to avert the danger of further disturbance, and that the applicants had been released as soon as order had been re-established in the capital.

As to the fact that the applicants ’ detention had exceeded 6 hours, the City Court noted the wording of section 5, subsection 3, second line and the preparatory notes to bill no. 159 of 2 April 2004, p. 32, second part, introducing the provision, which set out that in so far as possible such detention should not exceed 6 hours. The aim of the detention should be taken into account and the person should be released when the circumstances giving rise to detention had ceased to exist. It was assumed that an overrunning of the 6-hour time-limit would normally only take place in connection with an operation involving the arrest of a larger number of persons, where in practice the transport, registration and identification of the detainees would make it impossible to comply with the 6-hour time-limit. Even though the preparatory notes set out that detention should only exceptionally exceed 6 hours, unless the reason therefor was related to practical difficulties in arresting a large number of persons, in the City Court ’ s view the concrete overrunning of the time-limit in the applicants ’ cases was justified in view of the aim of the arrest, combined with the organised character of the disturbances and the extent and duration thereof. Accordingly, the applicants ’ detention was approved as lawful and their claim for compensation was refused.

On appeal, for the reasons stated by the City Court, on 6 September 2011 the High Court of Western Denmark ( Vestre Landsret ) upheld the judgment.

On 12 December 2011, the Appeals Permission Board ( Procesbevillingsnævnet ) refused leave to appeal to the Supreme Court ( Højesteret ).

B. Relevant domestic law

The relevant provisions of the Police Act, Act no 444 of 9 September 2004, ( Politiloven ) read as follows:

Order and security

Section 4

1. It is the task of the police to prevent danger of disturbance of public order and danger to the security of the individual and the public.

2. In so far as it is considered necessary to prevent danger as mentioned in section 1, the police may clear, close off, and establish access control to areas.

Section 5

1. It is the task of the police to avert danger of disturbance of public order and danger to the security of the individual and the public.

2. In order to shield against danger as mentioned in section 1, the police may

I. issue orders,

II. view a person ’ s body and examine clothes and other objects, including vehicles, possessed by the person at issue, when it can be assumed that the person is in possession of objects designed to disturb public order or to endanger the security of the individual and the public, and

III. deprive persons of [such] objects.

3. If less interfering measures, as mentioned in subsection 2, are deemed insufficient to avert the danger, if necessary the police may deprive those causing the danger of their liberty. The deprivation of liberty must be as short as possible and as far as possible not exceed 6 hours.

4. The police may enter otherwise inaccessible areas without a court order, when it is necessary to avert danger as mentioned in subsection 1.

COMPLAINTS

The applicants complain that the deprivation of their liberty was in breach of Articles 5, 7 and 11 of the Convention .

QUESTION TO THE PARTIES

In the light of, for example, Ostendorf v. Germany , no. 15598/08 , 7 March 2013, did the deprivation of the applicants ’ liberty breach Article 5 of the Convention?