TrustHLT/LaCour huggingface dataset:
AP1 (Applicant): in conjunction with paragraph 95, it appears that the order to stay with the group of football supporters under the police escort to the stadium was one of the requirements which the majority found necessary for the detention to be compatible with article 5, paragraph 1 subsection b. The court also found that there was no basis for detention if Mr Ostendorf
AP1 (Applicant): had not taken clear and positive steps which indicated that he would not fulfil his obligation to refrain from arranging brawls with other football supporters on the day of the match and in the location in question. The minority in Mr Ostendorf's case expressed concern
AP1 (Applicant): about the fact that the majority considerably extends the scope of the provision in article 5, paragraph 1 subparagraph b of the convention. The minority is of the opinion that the general
AP1 (Applicant): duty of obedience to the law is not a specific and concrete obligation for the purpose of article 5, subparagraph b of the convention. In the applicant's view, the majority strikes
AP1 (Applicant): a fair balance between, on the one hand, the obvious need to prevent the nascent disruptive behaviour at football matches and, on the other hand, the fundamental human right to liberty and thereby avoiding opening the floodgates to arbitrary detention. The possible extension
AP1 (Applicant): of the scope of the provision in article 5, paragraph 1 subparagraph b seems to be counterbalanced by the fact that the majority emphasise that the obligation at issue to keep the peace by not committing criminal offences can only be considered as specific and concrete for the purpose of article 5, paragraph 1 subparagraph b if the place and time of the imminent commission of the offence and its potential victims have been sufficiently specified. This was in fact
AP1 (Applicant): not the only requirement pointed out by the majority. The majority further analysed whether
AP1 (Applicant): Mr Ossendorf had been made aware of the specific acts which he was to refrain from committing, whether he had shown himself unwilling to refrain from committing such acts, whether he had been ordered to act in a prescribed way to avoid detention, and whether he had been warned in a sufficiently unequivocal manner about the consequences of his failure to act in the way prescribed by the authorities. Only after it was established that these requirements
AP1 (Applicant): were met by the German authorities, that the requirements were reasonable, the majority found that article 5, paragraph 1 subparagraph b of the Convention was applicable. The applicants
AP1 (Applicant): should not hesitate to express their fear that more cases of arbitrary deprivation of liberty could emerge across Europe if the Court would embark on a shift in its well-established case law and find article 5, paragraph 1c applicable in cases like Mr Ossendorf's case or this case. That would allow the authorities to detain a person if the administrative authorities
AP1 (Applicant): consider it necessary to prevent his or her committing of an offence even though the arrest is not effected for the purpose of bringing the person before a competent legal authority, or even though the person has received no further orders as to how to behave to avoid preventive internment for possible crimes that he or she have not had any intention to commit. The checks and balances that have characterised democratic societies for decades
AP1 (Applicant): would all of a sudden have been stifled. Prompt judicial review is one of the most basic and
AP1 (Applicant): important safeguards people have against arbitrary detention. The slippery slope of arbitrary
AP1 (Applicant): detention has attracted the Court's attention way back in time. The repercussions on people's
AP1 (Applicant): rights to liberty were thoroughly discussed by the Court in the case of Lawless v. Ireland,
AP1 (Applicant): decided by the Court back in 1961, almost 60 years ago. In that case, too, it was suggested
AP1 (Applicant): by the Respondent State that article 5, paragraph 1c of the Convention was applicable in a case where a person was detained for preventive reasons even though the arrest was not effected for the purpose of bringing the detainee before a competent legal authority. In paragraph
AP1 (Applicant): 14, page 24 of Mr Lawless's judgement, the Court, among others, stated that this would mean that, and I quote, anyone suspected of harbouring an intent to commit an offence could be arrested and detained for an unlimited period on the strength merrily of the executive decision, without it being possible to regard his arrest or detention as a breach of the Convention. The Court's view, and I quote again, such an assumption with all its implications
AP1 (Applicant): of arbitrary power would lead to conclusions repugnant to the fundamental principle of the Convention. This decision was a herald of a new Europe where mechanisms had been
AP1 (Applicant): put in place that should secure ordinary people that the agents of this State should be held accountable for their acts. A shift in the Court's interpretation of article 5, paragraph
AP1 (Applicant): 1, subparagraph c, seemed to have no basis in the Convention text. The wording of article
AP1 (Applicant): 5, paragraph 1, subparagraph c, read in conjunction with paragraph 3, in the Applicant's opinion, leave no room for an interpretation which allows for that subparagraph to be applicable to other cases, the criminal cases, where persons are detained for the purpose of being brought before a competent legal authority. This interpretation is fully in line with
AP1 (Applicant): the case law followed up to this day and expressed by the Court in the above-mentioned lawless case, where the Court found that article 5, paragraph 1, subparagraph c, and paragraph 3, I quote, plainly entails the obligation to bring everyone arrested or detained in any of the circumstances contemplated by the provisions of paragraph 1c before a judge for the purpose of examining the question of deprivation of liberty or for the purpose of deciding on the merits. The applicants are aware of the fact that the Irish Government
AP1 (Applicant): held the view in the lawless case, that the preparatory work of the Convention lent support to the view that article 5, paragraph 1, subparagraph c, is applicable for detention of the kind at issue in the present case. Based on a comprehensive analysis of the preparatory work carried out
AP1 (Applicant): both by the Commission and by the Court, they both ruled out that the preparatory work of the Convention could be construed in the way suggested by the Irish Government. On top
AP1 (Applicant): of that, the Court further added that it is a generally recognised principle that parties cannot resort to preparatory work when it comes to the interpretation of international treaties. In the view of the applicants, the minority in Mr. Ostendorf's case and the
AP1 (Applicant): Danish Government attach undue weight to one single sentence in paragraph 14 of the lawless judgment, thereby missing the overall meaning of the Court's reasoning in the judgment.
AP1 (Applicant): In paragraph 14, the Court states that the obligation in article 5, 3, is to bring a person promptly before a judge for the purpose of examining the question of deprivation of liberty or for the purpose of deciding on the merits. When reading the context of what
AP1 (Applicant): the Court states in lawless, paragraph 13 to 15, the Court makes, in view of the applicants, it crystal clear that any arrest must be initiated for the purpose of bringing the individual before a competent legal authority, and reasonable suspicion of having committed a criminal offence.
AP1 (Applicant): An arrest for other purposes than bringing the individual before a judge to decide on the continued deprivation of liberty or to decide on the merits of the charge at a trial is not justified under article 5 paragraph 1, subparagraph C.
AP1 (Applicant): In paragraph 68 of the Mr. Ostendorf case, the majority cites a great number of cases
AP1 (Applicant): which show that subparagraph C exclusively permits deprivation of liberty only in connection with criminal proceedings, that it governs pretrial detention. The majority finds that
AP1 (Applicant): this is apparent from its wording, which must be read in conjunction both with subparagraph A and with paragraph 3, which form a whole with it.
AP1 (Applicant): In the applicants' view, there is no compelling reason to suggest that the advent of football hooliganism has necessitated that the Europeans should surrender one of our most fundamental human rights, the right to a speedy judicial hearing of the administrative authorities, if the administrative authorities such as the police make encroachments on our right to liberty. On the one hand, it is understandable if the national authorities, including the
AP1 (Applicant): police, once and again find the possible short-term gain of arbitrary detention, for example, of people regarded to be possible football hooligans tantalising. On the other hand,
AP1 (Applicant): the European countries have demonstrated for decades that a culture that gives high priority to fundamental human rights and places the authorities under strict scrutiny prospers in the long run.
AP1 (Applicant): The Danish government points out on page 29, paragraph 4 of their memorial of 19 October 2017, that the requirements set forth by the majority in Ossendorff's case may in reality render the police powerless when it comes to protecting the public in certain situations.
AP1 (Applicant): They argue that there may not be sufficient time to make members of the public specifically aware of the criminal offences that they must refrain from committing. A similar view is
AP1 (Applicant): put forward by Lord Toulson in the judgment given on 15 February 2017 by the Supreme Court of the United Kingdom in the Higgs case. In paragraph 40 it is pointed out that the requirements
AP1 (Applicant): set forth by the majority in the Ossendorff case could have been undesirable consequences on British society. It reads, I quote, the police may find it necessary to take action
AP1 (Applicant): to prevent an imminent breach of the peace in circumstances where there is no sufficient time to give a warning. An example might be a football match where two unruly groups collide
AP1 (Applicant): and the police see no alternative but to detain them or the ringleaders on both sides immediately for what may be quite a short time. Yeah, it might also be quite a long time.
AP1 (Applicant): The applicants do not agree on the fact that the police may be rendered powerless in a situation where the large crowds might be gathered and where unrest may take place, be it football hooligans, demonstrators or squatters. If it is possible for the police
AP1 (Applicant): to apprehend members of two groups, for example football hooligans, with the purpose to detain them, it will most likely also be possible for the police in the first place to give those the sufficient warnings as an alternative to detaining them. In some situations it may
AP1 (Applicant): be possible to pursue a procedure carried out in the case of Austin and others versus the UK decided by the Grand Chamber on the 15th of March 2012 where the police cordoned off an area until unruly demonstrators in the area had calmed down. In that case the
AP1 (Applicant): police did not have to resort to preventive detention.
AP1 (Applicant): A police force issued with power to detain people who have not committed any wrongdoing without giving these people any prior warnings that might encourage them to act in a way that renders subsequent detention unnecessary is likely in the long run to cause more unrest and get involved in more clashes with various groups of people than a police force that is known not to detain people without having tried other options beforehand.
AP1 (Applicant): At last the applicants would like to point out that it was absolutely crucial for the decision by the Danish police to arrest the three applicants that they had been detained at previous football matches. This way of reasoning is a far cry from what is acceptable
AP1 (Applicant): in the case law of this court. I should draw the court's attention to paragraph 66 of
AP1 (Applicant): Mr. Ostendorp's case. On the basis of the court's case law the court emphasised that
AP1 (Applicant): article 5 paragraph 1c does not permit a policy of general prevention directed against an individual or a category of individuals who are perceived by the authorities rightly or wrongly as being dangerous or having propensity to unlawful acts. Exactly that happened in
AP1 (Applicant): this case only obviously vague excuses have been produced by the government to justify the detention. The applicants invite this court to find that article 5 has been breached
AP1 (Applicant): in the present case. Thank you for your attention.
Guido Raimondi (JudgeP): Mr. Bonnez, I thank both parties for their submissions.
Guido Raimondi (JudgeP): And now I invite my colleagues, members of the Grand Chamber, wishing to do so, to put their questions to the parties.
Guido Raimondi (JudgeP): I see Judge Ranzoni, please.
Carlo Ranzoni (Judge): I would have two questions.
Carlo Ranzoni (Judge): First one to the government.
Carlo Ranzoni (Judge): Which concrete measures the authorities could have taken if the risk of serious disturbance of public order and the danger to the safety of individuals had persisted for a longer period than only some hours?
Carlo Ranzoni (Judge): Let's say, for example, during a sports event or a political demonstration lasting two days.
Carlo Ranzoni (Judge): Is there any possibility under Danish law for persons causing such a risk or danger who are not willing to keep the peace to be detained for one or two days if they have not yet committed any criminal offense?
Carlo Ranzoni (Judge): And a second question to both parties.
Carlo Ranzoni (Judge): According to the government, all applicants before the events of 10th October 2009 had been arrested several times in connection with other football unrest.
Carlo Ranzoni (Judge): How often have they actually been arrested and under which circumstances?
Guido Raimondi (JudgeP): Thank you very much. Judge Lemmens please.
Paul Lemmens (Judge): The government in this case argues that either Article 5, Paragraph 1b or c or both are applicable.
Paul Lemmens (Judge): The applicant seems to argue in the first place that none is applicable, leaving aside that issue of applicability or not, and assuming for a moment, as the government argues, that either Paragraph 1b or c is applicable, and so that preventive detention in the circumstances of this case of a crowd control is possible.
Paul Lemmens (Judge): I would like to ask the parties to come back to an issue that they both have discussed.
Paul Lemmens (Judge): It is the question of guarantees in such a situation where, again, I repeat, it is assumed that it would be possible in theory to have such a preventive detention.
Paul Lemmens (Judge): And I would like specifically to ask the parties what they would think of two issues.
Paul Lemmens (Judge): One is in a situation of crowd control where there is a whole group that might be causing a risk to public order, what about the possibility of singling out a few individuals?
Paul Lemmens (Judge): What are the risks against arbitrary action in this respect?
Paul Lemmens (Judge): And the guarantees against, I'm sorry, what are the guarantees against arbitrarily singling out specific individuals?
Paul Lemmens (Judge): And secondly, I know that both parties have discussed this, but I would like to hear it again.
Paul Lemmens (Judge): What about the guarantees of judicial control in a situation of a preventive detention?
Paul Lemmens (Judge): Should it be something automatic?
Paul Lemmens (Judge): Should it be something that is possible within a very short time?
Paul Lemmens (Judge): What is the time limit for the court to decide?
Paul Lemmens (Judge): And how to organize all that in a practical way?
Guido Raimondi (JudgeP): Thank you very much. Judge Dedov, please.
Dmitry Dedov (Judge): I would like to ask the government to explain how the authorities determined the time when the applicants should be released.
Dmitry Dedov (Judge): The government said that they were released when the risk was minimized.
Dmitry Dedov (Judge): I see from the facts that the last disturbance took place at 10.51 and especially at 11.21 p.m. and the first applicant was released at exactly after this, at 11.27.
Dmitry Dedov (Judge): The second applicant was released at 11.34, just almost immediately after the last disturbance took place.
Dmitry Dedov (Judge): What does it mean?
Dmitry Dedov (Judge): How did the police determine that there was no risk immediately after the clashes took place or just because the six hours time already elapsed at that moment?
Dmitry Dedov (Judge): I have a general question to both parties and especially to the government.
Dmitry Dedov (Judge): Whether if the detention was governed by the Article 5, Paragraph 1C, so whether the guarantees against the arbitrary detention applied in accordance with the court's case law.
Dmitry Dedov (Judge): I mean that the concrete circumstances should be taken into account by the authorities, not the general assumption.
Dmitry Dedov (Judge): So my question is what was the concrete circumstances which allowed the authorities to conclude that the risk, the imminent risk exists and the concrete persons, namely the applicants in the present case, would like to participate in the disturbance and the disorder.
Angelika Nußberger (Judge): I just wanted to follow up on Judge Ranzoni's question.
Angelika Nußberger (Judge): We have heard that the applicants had been arrested before in other circumstances.
Angelika Nußberger (Judge): Was this registered?
Angelika Nußberger (Judge): Is there a register where you can find this information?
Angelika Nußberger (Judge): And then we understand that the police force chosen for the arrests was a regional police force knowing these people.
Angelika Nußberger (Judge): So they had some specific knowledge of the people and at the same time we find in the preparatory work to the law the statement that former behavior should not be relevant.
Angelika Nußberger (Judge): So for me it would be interesting to understand what was the relevance of the former arrests for the arrests in this case to both parties.
Guido Raimondi (JudgeP): The court will now withdraw for 20 minutes, following which the parties will be able to submit brief observations in reply to each other's submissions and reply to questions from the judges.
Guido Raimondi (JudgeP): And I call Mr. Elling Rehfeld, please, to the floor.
GR1 (Government): I will now respond to the submission made by behalf of the applicants in the first round, and then to the best of my ability, I would like to reply to the questions posed by the honorable members of the court.
GR1 (Government): First of all, in response to the submission made on behalf of the applicants, I noted that a number of statements were made, including that depending on the result of the court's decision in this case, we would open the floodgates to arbitrary detention and that the checks and balances all over Europe would be stifled in this case.
GR1 (Government): I think I would just warn against a too apocalyptic vision of what we're trying to do here.
GR1 (Government): In the specific case, Copenhagen at the day of the detention of the detainees, of the applicants, were in reality made into a battlefield by a number of hooligan groups.
GR1 (Government): For the entirety of the day, a number of violent incidents took place in the city center of Copenhagen by hooligan groups that had planned to meet and fight with complete disregard for the civilians and innocent citizens of Copenhagen.
GR1 (Government): By the end of the day, more than 130 persons were detained, and as the fact shows, there was a number of fights taking place in Copenhagen on that day.
GR1 (Government): So I think I would warn against such a dim look of what we are trying to achieve here.
GR1 (Government): We're trying to strike the balance between arbitrary detention and the need for authorities to be able to have preventive detention as part of their crowd control measures.
GR1 (Government): I would also take issue with a statement made that the time limits of six hours where possible in Danish law were deliberately ignored by the authorities, as we have stated in our written observations and here today as well.
GR1 (Government): It was a very precise and careful assessment of the requirements of the Police Act on the one hand, and then the factual situation on the ground in Copenhagen where the unrest had not ended by the end of the six-hour detention of the applicants.
GR1 (Government): Second point I would like to make is, in response to the applicants, that I think something along the lines of this was said by the applicants, that it was in contradiction with Article 5 of the Convention, as the applicants were not detained in order to be taken before the court.
GR1 (Government): I'm afraid to say I find it very difficult to follow this line of argumentation.
GR1 (Government): The applicants were released as soon as possible, as we've heard, seven and a half hours.
GR1 (Government): And according to the opinion of the Government, an early release from detention for preventive purposes will still be in accordance with Article 5 of the Convention, if the lawfulness of the detention can subsequently be challenged and decided by a court.
GR1 (Government): This was exactly the situation in the applicants' case.
GR1 (Government): We find it contrary to the spirit and the underlying objective of Article 5 of the Convention if the applicants' early release placed them in a stronger position to complain a breach of Article 5 than if the police had decided to detain them for a longer period in order to take them before Danish courts.
GR1 (Government): What is decisive in a democratic society in order to avoid arbitrary detention is that the lawfulness of all detentions can be tried in the courts as easy and quick as possible.
GR1 (Government): So those were the two points I just wanted to make in regard to the statements made by the applicants.
GR1 (Government): I will now try to answer a number of the questions asked by the Honourable Judges.
GR1 (Government): The first question by Judge Ranzoni, which goes to say, which concrete measures could the authorities have taken in a situation where these unrests had lasted for more, for a longer period of time than actually happened in Copenhagen at the time, if this disturbance of peace had taken place for a number of days?
GR1 (Government): I think the answer to that question is that we are bound also domestically by the limits of our constitution, which says that you have to be placed in front of a court or a judge within 24 hours of arrest.
GR1 (Government): This is according to our constitution.
GR1 (Government): But I would also say, in accordance with the Police Act, as we have presented here today, there are certainly limits that would make it, probably would not make it a possibility to detain persons for such a longer period of time.
GR1 (Government): We have the six hours rule, as described in Section 5, and we have other rules in Section 8 and 9, in specific in situation of mass events where you can detain persons up to a limit of, a possible limit of 12 hours.
GR1 (Government): So I think in a situation of a long-term situation of unrest, we would probably find ourselves in a situation where we could not detain preventively, but we would have to look at options within our criminal law.
GR1 (Government): The second line of questioning was by Judge Lemons.
GR1 (Government): A question of guarantees as the singling out of single individuals in a situation where you have to contain a crowd.
GR1 (Government): I think that what we would say here is that our police authorities are under a strict obligation according to our Police Act to take the least intrusive measures when they decide to intervene in a specific situation.