Pregledni rad
Deprivation of Liberty as a Result of Non-Compliance With a Court Order or Failure to Fulfil a Legal Obligation in the Case Law of the European Court of Human Rights
Gregori Graovac
; Ustavni sud Republike Hrvatske, Zagreb, Hrvatska
Sažetak
The paper considers non-compliance with a lawful court order and securing the fulfilment of an obligation prescribed by law as the grounds for lawful deprivation of liberty prescribed by Article 5(1)(b) of the Convention for the Protection of Human Rights and Fundamental Freedoms. These grounds have been considered by the Convention organs in a very small number of cases. According to the commentaries of the Convention available to the author – including those of the most famous commentators (Harris, D. et al.; Jacobs, F.G. et al.; van Dijk, P. et al.) – Article 5(1)(b) of the Convention has not been considered on more than a few pages of their commentaries and there have been not any publications on the subject. However, this is disproportionate to its importance. There is a great jeopardy for liberty in the case of “unlawful” interpretation and implementation of Article 5(1)(b). That mostly concerns the deprivation of liberty in the event of fulfilment of obligation prescribed by law. The broad formulation of this ground hides the danger of unacceptable interpretation (deprivation of liberty because of a general obligation of compliance with the law and preventive detention). However, the European Court of Human Rights has established the principles which make such interpretation impossible. Particular attention is given to the recent judgment Ostendorf v. Germany (7 March 2013). This judgment shows the neuralgic points of the problematic very well. In the judgment the Court confirmed and partly upgraded its well-founded practice. It confirmed it in terms of its delimitation with Art 5(1)(c) of the Convention. It upgraded it taking the position that the obligation of preserving public order and peace in the form of omission of an offence could be considered as a specific and concrete obligation in the sense of Article 5(1)(b). The paper analyses dogmatic doubts of the upgraded practise and concludes that the Court has secured enough safeguards against potential arbitrariness.
Ključne riječi
securing the fulfilment of obligation prescribed by law; non-compliance with the order of a court; preventive detention; European Court of Human Rights
Hrčak ID:
124808
URI
Datum izdavanja:
1.7.2014.
Posjeta: 1.633 *