JOINT DISSENTING OPINION OF JUDGES TULKENS, SPIELMANN AND GARLICKI

(Translation)

1. We do not share the view of the majority that there was no deprivation of liberty in the present case, a finding which led them to conclude that, since Article 5 of the Convention was inapplicable, there had been no violation of that provision.

2. The judgment explains its position by “the specific and exceptional facts of this case”, while also pointing out that “[h]ad it not remained necessary for the police to impose and maintain the cordon in order to prevent serious injury or damage, the ‘type’ of the measure would have been different, and its coercive and restrictive nature might have been sufficient to bring it within Article 5” (see paragraph 68).

3. In terms of the principles governing the application of Article 5 of the Convention, a provision which features in all the universal and regional human rights instruments and forms part of the European public order, the majority’s position can be interpreted as implying that, if it is necessary to impose a coercive and restrictive measure for a legitimate public-interest purpose, the measure does not amount to a deprivation of liberty. This is a new proposition which is eminently questionable and objectionable for two reasons.

4. Firstly, the Court has always held that the aim or intention of a measure cannot be taken into account in assessing whether there has been a deprivation of liberty. These aspects are relevant only in assessing whether the deprivation of liberty was justified for the purposes listed in sub-paragraphs (a) to (f) of Article 5 § 1. In other words, the wording of Article 5 in itself strikes the fair balance inherent in the Convention between the public interest and the individual right to liberty by expressly limiting the purposes which a deprivation of liberty may legitimately pursue.

5. Next, regard being had to the structure and wording of Article 5 § 1 of the Convention, there can be no distinction in principle between measures taken on public-order grounds and measures imposed for any other legitimate/public-interest purpose. In other words, there is no reason to treat deprivations of liberty resulting from public-order considerations any differently from other kinds of deprivation of liberty for which this provision is invoked. Otherwise, States would be able to “circumvent” the guarantees laid down in Article 5 and detain people for a whole range of reasons going beyond the provisions of Article 5 § 1 (a) to (f), as long as they could show that the measure was necessary.

6. This was the approach underlying the Court’s analysis in the A. and Others v. the United Kingdom judgment of 19 February 2009 ([GC], no. 3455/05, ECHR 2009), concerning a situation that was surely even more serious, namely a potential threat to national security: “The Court does not accept the Government’s argument that Article 5 § 1 permits a balance to be struck between the individual’s right to liberty and the State’s interest in protecting its population from terrorist threat. This argument is inconsistent not only with the Court’s jurisprudence under sub-paragraph (f) but also with the principle that paragraphs (a) to (f) amount to an exhaustive list of exceptions and that only a narrow interpretation of these exceptions is compatible with the aims of Article 5. If detention does not fit within the confines of the paragraphs as interpreted by the Court, it cannot be made to fit by an appeal to the need to balance the interests of the State against those of the detainee” (§ 171).

7. In this connection, the suggestion by the majority which unfortunately features in the part of the present judgment setting out general principles is problematic in our view: “It cannot be excluded that the use of containment and crowd-control techniques could, in particular circumstances, give rise to an unjustified deprivation of liberty in breach of Article 5 § 1. In each case, Article 5 § 1 must be interpreted in a manner which takes into account the specific context in which the techniques are deployed, as well as the responsibilities of the police to fulfil their duties of maintaining order and protecting the public, as they are required to do under both national and Convention law” (see paragraph 60 of the judgment). The wording of this statement appears dangerous to us in that it leaves the way open for carte blanche and sends out a bad message to police authorities.

8. The majority point out that “in certain well-defined circumstances, Articles 2 and 3 may imply positive obligations on the authorities to take preventive operational measures to protect individuals at risk of serious harm” (see paragraph 55 of the judgment). That may be so, but it has not been established in the present case that there was a clear and present danger to life or limb. In any event, the problem arising is not in fact a new one. The interaction between the protection afforded by Article 5 § 1 of the Convention and the positive obligations under Articles 2 and 3 has been examined on several occasions by the Court, which has consistently reiterated that positive obligations of this kind should be fully compatible with the guarantees set forth in Article 5. Only recently, in the Jendrowiak v. Germany judgment (no. 30060/04, 14 April 2011), the Court observed that “the State authorities could not, in the present case, rely on their positive obligations under the Convention in order to justify the applicant’s deprivation of liberty which, as has been shown above ..., did not fall within any of the exhaustively listed permissible grounds for a deprivation of liberty under sub-paragraphs (a) to (f) of Article 5 § 1. That provision can thus be said to contain all grounds on which a person may be deprived of his liberty in the public interest, including the interest in protecting the public from crime” (§ 38).

9. In the present case, the paradox lies in the fact that, as rightly noted by Lords Hope and Neuberger, if there had been a deprivation of liberty, it would not have been possible for the police to justify it under the exceptions provided for in Article 5 § 1, sub-paragraphs (b) and (c).

10. We are well aware that maintaining order is a difficult task, although in the present case it was not disputed that the 6,000 police officers deployed were the most experienced in England. As the domestic courts’ analysis indicates, it appears that the police prioritised effectiveness in their operation and opted for the most practical means of dealing with the situation by keeping everyone inside the cordon. This measure was thus applied indiscriminately and was also imposed against people taking no part in the demonstration. In this regard, the police could have been expected to apply less intrusive means. As it was, it seems that all people who happened to be at Oxford Circus at around 2 p.m. were treated like objects and were forced to remain there as long as the police had not solved other problems around the city.

11. The majority note that the applicants’ circumstances differed in that the first applicant went to Oxford Circus to take part in the demonstration, whereas the other three applicants were passers-by. They consider, however, that this difference is not relevant to the question whether there was a deprivation of liberty (see paragraph 63 of the judgment). With all due respect, we do not agree. Admittedly, one can accept that active participants in a demonstration that is not entirely peaceful should be aware that their freedom of movement may be restricted because of the need for police measures, although that was not the case here. Indeed, the Court of Appeal overturned Mr Justice Tugendhat’s finding that the police had had reasonable grounds to believe that the first applicant was about to commit a breach of the peace; on the contrary, it held that in containing her, the police had been exercising an exceptional common-law power whereby an innocent party could be detained in order to prevent a breach of the peace by others. Be that as it may, the situation was completely different regarding the other three applicants, who were at the scene by chance and had no intention of taking part in the demonstration. They could reasonably have expected that, by following police instructions, they would not be subjected to measures aimed at controlling a crowd of hostile demonstrators.

12. The Court considers itself unable to identify a moment when the measure of a restriction on freedom of movement changed to a deprivation of liberty (see paragraph 67 of the judgment). It is unclear what this observation means. Does it mean that there was no deprivation of liberty before 9.30 p.m. or that the situation became a deprivation of liberty between 2 and 9.30 p.m. but the precise moment cannot be pinpointed? In the latter event, the majority should not be able to conclude so categorically that those within the cordon cannot be said to have been deprived of their liberty within the meaning of Article 5 § 1 of the Convention. In a situation of uncertainty, the presumption is normally in favour of respect for individual rights.

13. Lastly, the Grand Chamber makes no reference whatsoever to the Gillan and Quinton v. the United Kingdom judgment of 12 January 2010 (no. 4158/05, ECHR 2010). Admittedly, the main focus of that case was Article 8 of the Convention, but Article 5 was also involved, precisely in the context of a demonstration. The interpretation of Article 5 in Gillan and Quinton was in fact much broader than in the present case since the Court found that a coercive restriction on freedom of movement amounted to deprivation of liberty within the meaning of Article 5 § 1: “The Court observes that although the length of time during which each applicant was stopped and searched did not in either case exceed thirty minutes, during this period the applicants were entirely deprived of any freedom of movement. They were obliged to remain where they were and submit to the search and if they had refused they would have been liable to arrest, detention at a police station and criminal charges. This element of coercion is indicative of a deprivation of liberty within the meaning of Article 5 § 1 (see, for example, Foka v. Turkey , no. 28940/95, §§ 74-79, 24 June 2008)” (§ 57, emphasis added). Yet the degree of coercion in the present case was much higher than in Gillan and Quinton .

14. In the present case, the applicants were confined within a relatively small area, together with some 3,000 other people, and their freedom of movement was greatly reduced; they were only able to stand up or sit on the ground and had no access to toilet facilities, food or water. The cordon was maintained through the presence of hundreds of riot police officers and the applicants were entirely dependent on the police officers’ decisions as to when they could leave. Furthermore, the police could use force to keep the cordon in place, and refusal to comply with their instructions and restrictions was punishable by a prison sentence and could lead to arrest. All the applicants were contained in those conditions for six to seven hours.

15. In conclusion, we consider that there was a deprivation of liberty within the meaning of Article 5 of the Convention and that there has been a violation of that Article in the present case.