50
HASSAN v. THE UNITED KINGDOM – JUDGMENT
2. The Court’s assessment
(a) The general principles to be applied
96. Article 5 § 1 of the Convention sets out the general rule that
“[e]veryone has the right to liberty and security of the person” and that
“[n]o one shall be deprived of his liberty” except in one of the
circumstances set out in sub-paragraphs (a) to (f).
97. It has long been established that the list of grounds of permissible
detention in Article 5 § 1 does not include internment or preventive
detention where there is no intention to bring criminal charges within a
reasonable time (see Lawless v. Ireland (no. 3), 1 July 1961, §§ 13 and 14,
Series A no. 3; Ireland v. the United Kingdom, 18 January 1978, § 196,
Series A no. 25; Guzzardi v. Italy, 6 November 1980, § 102, Series A
no. 39; Jėčius v. Lithuania, no. 34578/97, §§ 47-52, ECHR 2000-IX; and
Al-Jedda, cited above, § 100). Moreover, the Court considers that there are
important differences of context and purpose between arrests carried out
during peacetime and the arrest of a combatant in the course of an armed
conflict. It does not take the view that detention under the powers provided
for in the Third and Fourth Geneva Conventions is congruent with any of
the categories set out in subparagraphs (a) to (f). Although Article 5 § 1(c)
might at first glance seem the most relevant provision, there does not need
to be any correlation between security internment and suspicion of having
committed an offence or risk of the commission of a criminal offence. As
regards combatants detained as prisoners of war, since this category of
person enjoys combatant privilege, allowing them to participate in
hostilities without incurring criminal sanctions, it would not be appropriate
for the Court to hold that this form of detention falls within the scope of
Article 5 § 1(c).
98. In addition, Article 5 § 2 requires that every detainee should be
informed promptly of the reasons for his arrest and Article 5 § 4 requires
that every detainee should be entitled to take proceedings to have the
lawfulness of his detention decided speedily by a court. Article 15 of the
Convention provides that “[i]n time of war or other public emergency
threatening the life of the nation”, a Contracting State may take measures
derogating from certain of its obligations under the Convention, including
Article 5. In the present case, the United Kingdom did not purport to
derogate under Article 15 from any of its obligations under Article 5.
99. This is the first case in which a respondent State has requested the
Court to disapply its obligations under Article 5 or in some other way to
interpret them in the light of powers of detention available to it under
international humanitarian law. In particular, in Al-Jedda, cited above, the
United Kingdom Government did not contend that Article 5 was modified
or displaced by the powers of detention provided for by the Third and
Fourth Geneva Conventions. Instead they argued that the United Kingdom
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