Chapter 5 • Human Rights and Arrest, Pre-Trial and Administrative Detention
Article 5(5) of the European Convention
“is complied with where it is possible to apply for compensation in respect
of a deprivaton of liberty effected in conditions contrary to paragraphs 1, 2,
3 and 4. It does not prohibit the Contracting States from making the award
of compensation dependent upon the ability of the person concerned to
show damage resulting from the breach. In the context of Article 5 § 5, ...
the status of ‘victim’ may exist even where there is no damage, but there
can be no question of ‘compensation’ where there is no pecuniary or
non-pecuniary damage to compensate.”231
However, where the applicants have been arrested and detained lawfully
under domestic law but in violation of article 5 of the Convention, there has been a
violation of article 5(5) if they had no enforceable claim for compensation before the
domestic courts.232
Everyone has the right to compensation for unlawful deprivation of liberty
by reason of violations of international and/or national law. Such
compensation may depend on the demonstration of damage.
9.
Incommunicado detention
The treatment of persons deprived of their liberty will be covered in Chapter
8, including such issues as the right of access to family and questions of solitary
confinement. However, in the present context, one particular issue deserves
highlighting, namely that of incommunicado detention. The practice of holding detainees
incommunicado, that is to say, keeping them totally isolated from the outside world
without even allowing them access to their family and lawyer, does not per se appear to
be outlawed by international human rights law, although the Human Rights Committee
has stated in its General Comment No. 20, on article 7 of the Covenant, that
“provisions should ... be made against incommunicado detention”.233
What is clear from the jurisprudence, however, is that incommunicado detention
is not allowed to interfere with the effective enforcement of the legal guarantees of
people deprived of their liberty. In a case where the authors had been held incommunicado
during the first 44 days of detention, the Committee concluded that both articles 9(3)
and 10(1) of the Covenant had been violated because they had not been brought
promptly before a judge and because of the incommunicado detention.234
231 Eur. Court HR, Wassink Case v. the Netherlands, judgment of 27 September 1990, Series A, No. 185-A, p. 14, para.38.
232 Eur. Court HR, Case of Brogan and Others v. the United Kingdom, judgment of 29 November 1988, Series A, No. 145-B, p. 35,
paras. 66-67.
233 See United Nations Compilation of General Comments, p. 139 at p. 140, para. 11.
234 Communication No. 176/1984, L. Peñarrieta et al. v. Bolivia (Views adopted on 2 November 1987), in UN doc. GAOR,
A/43/40, p. 207, para. 16.
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Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers
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