Article 5: Deprivation of Liberty and Security

Purpose of Article 5(1)(d)

• To allow detention of minors for educational or judicial reasons.

• To prohibit the detention of minors under any circumstances.

• To ensure minors are always released to their parents.

• To allow detention of minors only for criminal offenses.

Physical confinement

• One of the three elements required for deprivation of liberty.

• A method of enhancing personal freedom.

• A legal term for voluntary restriction of movement.

• A psychological state of feeling trapped.

Necessary condition for detention

• There must be a real need to detain someone and it must be proportional.

• Detention can occur without any justification.

• Detention is allowed based on suspicion alone.

• Detention must be approved by a judge before it can happen.

Examples for Article 5(1)(b)

• Non-payment of tax

• Failure to appear in court

• Violation of a restraining order

• Negligence in a contractual obligation

Bringing minors before a court

• Detention to bring minors before a court is covered under Article 5(1)(d).

• Detention of minors is prohibited under international law.

• Minors cannot be tried in adult courts under any circumstances.

• Minors must be represented by a guardian in all legal proceedings.

Article 5 is complementary to which article?

• Article 6, which addresses the right to a fair trial.

• Article 7, which deals with the right to privacy.

• Article 8, which protects citizens inside of their homes.

• Article 9, which focuses on freedom of expression.

"Acid test" for deprivation of liberty

• Not being free to leave the place of residence and being under continuous supervision and control.

• Having access to legal representation at all times.

• Being allowed to leave the residence during the day.

• Having a curfew imposed by a local authority.

Article 5 covers the concept of deprivation of liberty and security of persons.

• It covers a person's movements and freedoms in the public sphere (when outside of their homes).

• It allows for unrestricted movement within one's home.

• It ensures the right to privacy in personal communications.

• It provides guidelines for lawful detention in private spaces.

Purpose of DoLS

• To protect individuals who lack the capacity to consent to care or treatment that may deprive them of their liberty.

• To ensure that all individuals receive the same level of care regardless of their capacity.

• To provide a legal framework for individuals to refuse treatment at any time.

• To allow healthcare providers to make decisions on behalf of individuals without any oversight.

Unsound Mind Requirement

• A key criterion for lawful deprivation.

• A condition for financial stability.

• A requirement for legal representation.

• A standard for mental health evaluation.