In the case of Fatma Akaltun Fırat v. Turkey,
The European Court of Human
Rights (Second Section), sitting as a Chamber composed of:
Guido Raimondi, President,
Danutė Jočienė,
Peer Lorenzen,
András Sajó,
Işıl Karakaş,
Nebojša Vučinić,
Helen Keller, judges,
and Stanley Naismith, Section Registrar,
Having deliberated in private on 9 July 2013,
Delivers the following judgment, which was adopted on that
date:
PROCEDURE
The case originated in an application (no.
34010/06) against the Republic of Turkey lodged with the Court under Article 34
of the Convention for the Protection of Human Rights and Fundamental Freedoms
(“the Convention”) by a Turkish national, Ms Fatma Akaltun Fırat (“the
applicant”), on 9 August 2006.
The applicant was represented by Mr Kamil Tekin
Sürek, a lawyer practising in İstanbul. The Turkish Government (“the
Government”) were represented by their Agent.
The applicant alleged, in particular, that her
detention by a police officer in a hospital while she was distributing leaflets
published by her Union had been in violation of her rights under Articles 5 § 1
and 11 of the Convention.
On 25 August 2011 the application was
communicated to the Government. It was also decided to rule on the admissibility
and merits of the application at the same time (Article 29 § 1).
THE FACTS
THE CIRCUMSTANCES OF THE CASE
The applicant was born in 1967 and lives in
İstanbul.
The facts of the case, as submitted by the parties
and as they appear from the documents submitted by them, may be summarised as
follows.
The applicant is a nurse working at Eyüp State Hospital. She is also an executive member of the Public Workers’ Union (KESK;
Kamu Emekçileri Sendikası).
On 26 April 2005 the applicant was distributing
leaflets to members of the Union working at the hospital. The leaflets had been
published by the Union to invite its members to forthcoming May the First International
Labour Day celebrations.
According to the applicant, a police officer
working at the hospital got hold of the leaflets and tore them up. The officer
also grabbed the applicant by the arm and forcibly put her in a room used for
police purposes at the hospital. The applicant and two of her colleagues
documented the police officer’s behaviour in a handwritten report.
Two lawyers, who had been informed of the
incident by the applicant’s colleagues, arrived at the police room
approximately an hour later and spoke to the police officer. The officer told
the lawyers that the applicant was not under arrest. The applicant was released
following the arrival of the lawyers.
After her release the applicant was examined by
a consultant doctor at the hospital who stated in a report that there were
[marks of] trauma on the applicant’s left arm.
The same day the police officer stated in a report
that he had “invited the [applicant] to the police room” so that he could check
whether the distribution of the leaflets was “lawful”. However, the applicant
had “shouted” at him and told him that she would be making an official
complaint against him. After he had been told by his superiors that there was
nothing wrong with the applicant distributing the leaflets, the applicant had
left.
The following day the applicant contacted the
Eyüp prosecutor and was referred by that prosecutor to the Eyüp branch of the
Forensic Medicine Institute for a medical examination. The doctor who examined
the applicant on the same day observed two areas of bleeding under the skin (hyperaemia)
on her left arm, each measuring two centimetres, and noted his findings in a
report. The doctor considered that the applicant’s injuries would prevent her
from working for one day.
On the same day the applicant submitted an
official petition to the Eyüp prosecutor’s office, complaining about the use of
force and the false imprisonment by the police officer. She submitted that she
had been unlawfully detained by the police officer for approximately one hour. She
also drew the prosecutor’s attention to her right, guaranteed by section 18 of
the Law on Public Workers’ Unions (Law No. 4688), to participate in union
activities after working hours or, with the permission of her employer, during
working hours. In her petition the applicant named two of her colleagues who
had witnessed the incident. With her petition she also enclosed the doctors’
reports.
The same day the Chairman of the Public Workers’
Union also submitted a similarly-worded complaint petition to the same
prosecutor and complained about the treatment to which the applicant had been
subjected by the police officer.
On 28 April 2005 the prosecutor questioned the
police officer in connection with the applicant’s allegations. The police
officer denied that he had used force to put the applicant into the police
room. He told the prosecutor that he had been doing his job because the
applicant had been distributing leaflets during working hours. He added that he
had been acting in accordance with the Law on the Powers and Duties of the Police
(Law No. 2559).
The applicant’s two colleagues who had co-signed
the handwritten report on the day of the incident (see paragraph 9 above) were
also questioned by the prosecutor. They maintained that the police officer had
been pulling the applicant by the arm and trying to take her to the police
room.
Two senior doctors questioned by the prosecutor confirmed
that they had seen the applicant in the police room where the applicant had
told them that she was under arrest. The police officer had then told them that
she was not under arrest and that the reason for her presence in the police
room was because the police officer wanted to verify whether she had permission
to distribute the leaflets.
On 23 June 2005 the Eyüp prosecutor decided not
to bring proceedings against the police officer. The prosecutor considered that
the applicant had been distributing the leaflets during working hours. The
police officer had taken the applicant to the police room with a view to
examining the contents of the leaflets and to establishing whether previous
permission had been sought from the hospital administration for their
distribution. Following the arrival of the hospital managers the applicant had
been sent back to her duty station. Thus, the offence of false imprisonment had
not been committed.
According to the prosecutor, the “redness” on the
applicant’s arm had been caused when the police officer grabbed her by the arm.
Nevertheless, the police officer’s action had not amounted to an assault. The
prosecutor concluded that no permission had been sought from the hospital
administration for the distribution of the leaflets. Thus the police officer
had been doing his job and had not committed any offences.
The applicant lodged an objection with the Beyoğlu Assize Court against the prosecutor’s decision. She pointed out, in particular,
that even assuming that no previous permission had been sought for the
distribution of the leaflets, that would have been a disciplinary matter for
the hospital administration to pursue; the police officer had had no powers to
investigate the matter or to deprive her of her liberty. She also disputed the
prosecutor’s finding that the police officer had wanted to examine the contents
of the leaflets. She argued that if the police officer had really wanted to
examine the leaflets, he could have obtained a leaflet from another hospital
worker and checked its contents, instead of using force against her and
imprisoning her. In her objection the applicant also referred to her rights
under the Convention.
On 30 May 2006 the Beyoğlu Assize Court
rejected the objection and stated that the prosecutor’s decision was in
compliance with the applicable legislation and procedure.
THE LAW
I. ALLEGED VIOLATION OF ARTICLES 3 AND 5 OF THE
CONVENTION
The applicant complained that she had been
deprived of her liberty without any lawful ground and contrary to Article 5 of
the Convention. Relying on Article 3 of the Convention she also complained that
the police officer’s actions when detaining her had amounted to ill-treatment within
the meaning of Article 3 of the Convention.
The Government contested those arguments.
The Court observes that, according to the
prosecutor’s conclusion (see paragraph 20 above), which is not disputed by the
Government, the hyperaemia on the applicant’s arm was caused when the police
officer grabbed her by the arm. Noting that the reason behind the police
officer’s actions was to remove her from the area where she was distributing
leaflets and to put her into the police room, the Court deems it more
appropriate to examine the force used by the police officer when dealing with the
applicant’s complaint concerning the deprivation of her liberty (see, in
particular, paragraph 35 below). Thus, in the circumstances of the case, the
Court considers that the applicant’s above complaints should be examined solely
from the standpoint of Article 5 of the Convention the relevant parts of which
provide as follows:
“1. Everyone has the right to liberty and security
of person. No one shall be deprived of his liberty save in the following cases
and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after
conviction by a competent court;
(b) the lawful arrest or detention of a person for
non- compliance with the lawful order of a court or in order to secure the
fulfilment of any obligation prescribed by law;
(c) the lawful arrest or detention of a person
effected for the purpose of bringing him before the competent legal authority
on reasonable suspicion of having committed an offence or when it is reasonably
considered necessary to prevent his committing an offence or fleeing after
having done so;
(d) the detention of a minor by lawful order for the
purpose of educational supervision or his lawful detention for the purpose of
bringing him before the competent legal authority;
(e) the lawful detention of persons for the
prevention of the spreading of infectious diseases, of persons of unsound mind,
alcoholics or drug addicts or vagrants;
(f) the lawful arrest or detention of a person to
prevent his effecting an unauthorised entry into the country or of a person against
whom action is being taken with a view to deportation or extradition.
...”
A. Admissibility
The Court notes that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the
Convention. It further notes that it is not inadmissible on any other grounds.
It must therefore be declared admissible.
B. Merits
The applicant maintained that she had been
forced into the police room at the hospital and detained there unlawfully.
The Government argued that the applicant had not
been taken into custody and had not been detained. She had been invited by the
police officer to show the leaflets so that he could examine their contents
with a view to verifying whether or not they contained any elements of a
criminal nature. However, she had refused to comply with the police officer’s
request and the police officer had tried to take one of the leaflets. When she
had resisted, the police officer had had to pull her arm. She had only sat in
the office of the police officer in the hospital until the arrival of the
hospital director. Upon his arrival, the hospital director had asked her to
return to her duty. She could not, therefore, have been deprived of her
liberty.
The Court reiterates the
fundamental importance of the guarantees contained in Article 5 of the
Convention for securing the rights of individuals in a democracy to be free
from arbitrary detention by the authorities. It has reiterated in that
connection that any deprivation of liberty must not only have been effected in
conformity with the substantive and procedural rules of national law, but must
equally be in keeping with the very purpose of Article 5 of the Convention,
namely, to protect the individual from arbitrary detention. In order to
minimise the risks of arbitrary detention, Article 5 of the Convention provides
a corpus of substantive rights intended to ensure that the act of deprivation
of liberty be amenable to independent judicial scrutiny and to secure the
accountability of the authorities for that measure (see Kurt
v. Turkey, 25 May 1998, § 122, Reports of Judgments and Decisions
1998-III).
The Court notes that it is not disputed by the
parties that the applicant was taken to the police room at the hospital by the
police officer. What is in dispute, and what the Court must first establish, is
whether or not the applicant was thus deprived of her liberty within the
meaning of Article 5 of the Convention.
In order to determine
whether someone has been “deprived of his liberty” within the meaning of
Article 5 of the Convention, the starting-point must be his or her concrete
situation, and account must be taken of a whole range of criteria such as the
type, duration, effects and manner of implementation of the measure in question
(see Amuur v. France, 25 June 1996, § 42, Reports 1996-III).
In this connection, the Court must emphasise
that the characterisation or lack of characterisation
given by a State to a factual situation cannot decisively affect the Court’s
conclusion as to the existence of a deprivation of liberty (see Creangă
v. Romania [GC], no. 29226/03, § 92,
23 February 2012). Thus, the fact that both the national
authorities and subsequently the respondent Government considered that the
applicant had not been arrested and detained, does not automatically mean that
the applicant was not deprived of her liberty.
. Furthermore,
Article 5 § 1 of the Convention may also apply to deprivations of
liberty of a very short length (see Rantsev v. Cyprus and Russia,
no. 25965/04, § 317, ECHR 2010 (extracts) and the cases cited therein; Foka
v. Turkey, no. 28940/95, § 75, 24 June 2008). For
example, a person detained for a period of one hour in the case of Shimovolos
v. Russia (no. 30194/09, § 49,
21 June 2011), and a person whose detention lasted 30 minutes in Gillan
and Quinton v. the United Kingdom (no. 4158/05, § 57, ECHR 2010
(extracts)), were both held by the Court to have been deprived of their liberty
within the meaning of that provision.
. In
the present case the applicant claimed - and the Government have
not disputed - that she was in the police room for approximately one hour. In
the absence of any official documentation showing the time of the incident, let
alone a detailed account of how the incident took place
(see Creangă, cited above, § 90), the Court considers that the benefit of the doubt should be given to the applicant (Baisuev
and Anzorov v. Georgia, no. 39804/04, § 52, 18 December 2012 and the cases cited therein). The Court
thus accepts that the applicant was kept in the police room for approximately
one hour.
. According
to the Court’s established case-law, coercion is a crucial element in its
examination of whether or not someone has been deprived of his or her liberty within
the meaning of Article 5 § 1 of the Convention (see, for example, Foka, cited above, §§
74-79). The applicant in the present case did not volunteer to go to the police
room, and was manhandled and physically dragged there by the police officer.
She was only released after the arrival of the lawyers and the hospital
director. In this connection the Court also finds it noteworthy that neither
the prosecutor nor the Government have sought to argue that the applicant was
free to leave the police room.
. In
light of the above the Court concludes that the applicant was forcibly taken to
the police room where she was detained against her will. She was thus deprived
of her liberty within the meaning of Article 5 § 1 of the Convention.
. The
Court must next ascertain whether the applicant’s deprivation of liberty
complied with the requirements of Article 5 § 1 of the Convention. The Court
reiterates that the expressions “lawful” and “in accordance with a procedure
prescribed by law” in Article 5 § 1 essentially refer back to national law and
state the obligation to conform to the substantive and procedural rules thereof
(see Jėčius v. Lithuania, no. 34578/97, § 56, ECHR 2000-IX).
. The
Court observes that the only reliance on, and the reference to the national
legislation in the present case is to be found in the statement made by the
police officer to the prosecutor. In his statement the police officer told the
prosecutor that he had been acting in accordance with the Law on the
Powers and Duties of the Police (see paragraph 16 above). He did not, however,
elaborate as to what exact provision of that law allowed him to forcibly detain
the applicant. The prosecutor, for his part, seems not to have given thought to
questioning him on this point or to dealing with it in his decision closing the
investigation (paragraphs 19-20 above).
The Court notes that, according to section 2 of
the Law on the Powers and Duties of the Police, police officers’ duties are
twofold. Firstly, they have the duty to prevent activities which are not in
compliance with the Laws, Rules and Regulations, Government orders and public
order. Secondly, in relation to offences already committed, they are required
to carry out their duties which are set out in the Code of Criminal Procedure
and in other Acts of Parliament.
In the present case there is no suggestion that
the applicant had committed any offences. The reason advanced for the police
officer’s actions both by the prosecutor and the Government is that she had
been distributing leaflets during working hours. The Court observes that although,
as suggested by the applicant herself, distributing leaflets during working
hours may amount to a disciplinary matter, it is not a criminal offence. Neither
has there been any suggestion by the Government or any of the national
authorities that the applicant’s activities were in breach of any Laws, Rules
and Regulations, Government orders or public order which would have
necessitated the involvement of the police.
Nevertheless, and notwithstanding its reservations
about the conformity of the police officer’s actions with
the substantive and procedural rules (ibid.), the Court does not consider
it necessary to rule on whether or not the applicant’s deprivation of liberty was
“in accordance with a procedure prescribed by law”, and
deems it appropriate to proceed to examine whether her deprivation of liberty fell
under any of the permissible grounds set out in the provisions of Article 5 § 1
of the Convention.
The Court notes that, in their observations the
Government’s submissions on the applicant’s complaint under Article 5 of the
Convention were limited to maintaining that the applicant had not been detained;
they did not seek to argue that her deprivation of liberty had been in
accordance with the provisions set out in the sub-paragraphs of Article 5 § 1
of the Convention.
In any event, the Court notes that the applicant’s
deprivation of liberty did not fall under sub-paragraphs
(a), (d), (e) or (f) of paragraph 1 of Article 5 of the Convention. Nor was it
covered by sub-paragraph (b), since there is no evidence or submissions to show
that the applicant had failed to comply with any lawful court order or to
fulfil any obligation prescribed by law. It thus remains to be determined
whether the applicant’s deprivation of liberty fell within the ambit of
sub-paragraph (c).
As already noted above, the reason put forward
by the national authorities and by the Government for the applicant’s detention
is her distribution of the leaflets during working hours. The Government have
not sought to argue that distributing leaflets during working hours is a
criminal offence or that the applicant had committed or was about to commit any
other offence.
In light of the foregoing the Court finds that the applicant’s detention did not have any legitimate purpose
under Article 5 § 1 and was accordingly arbitrary. There has therefore been a
violation of that Article.
II. ALLEGED VIOLATION OF ARTICLES 10 AND 11 OF THE
CONVENTION
. Lastly,
the applicant complained that her rights guaranteed by Articles 10 and 11 of
the Convention had been subject to interference and restriction without
justification.
. The
Government contested that argument.
. The
Court considers that the applicant’s complaints should be examined from the
standpoint of Article 11 of the Convention alone, which reads, in so far as
relevant, as follows:
“1. Everyone has the right to freedom of peaceful
assembly and to freedom of association with others...
2. No restrictions shall
be placed on the exercise of these rights other than such as are prescribed by
law and are necessary in a democratic society in the interests of national
security or public safety, for the prevention of disorder or crime, for the
protection of health or morals or for the protection of the rights and freedoms
of others...”
A. Admissibility
The Court notes that this complaint is not
manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention.
It further notes that it is not inadmissible on any other grounds. It must
therefore be declared admissible.
B. Merits
The applicant complained that she had been
attacked while she was distributing leaflets published by her Union with a view
to preventing her from carrying out union activities.
The Government denied that there had been an
interference with the applicant’s right to freedom of association. The police
officer had only requested her to show him the leaflets which she had been
distributing in a hospital, during working hours, and without having obtained
the hospital administration’s permission. Each work place had its own rules;
even more so hospitals. The applicant, as a nurse, should have obtained
permission or at least informed the chief doctor. She could have distributed
the leaflets outside the hospital, in her own time and without any prior
permission.
The Court considers that
the intervention of the police officer and that police officer’s resorting to the
use of force, coupled with the applicant’s subsequent detention, prevented the
applicant from distributing leaflets published by her Union and constituted an
interference with her rights under Article 11 of the Convention.
. The
Court reiterates that an interference will constitute a breach of Article 11 of
the Convention unless it is “prescribed by law”, pursues one or more legitimate
aims under paragraph 2 of that provision and is “necessary in a democratic
society” for the achievement of those aims.
. The
Court reiterates that the expression “prescribed by law” requires firstly that
the impugned measure should have a basis in domestic law. It also refers to the
quality of the law in question, requiring that it be accessible to the persons
concerned and formulated with sufficient precision to enable them - if need be,
with appropriate advice - to foresee, to a degree that is reasonable in the
circumstances, the consequences which a given action may entail and to regulate
their conduct (see Gorzelik and Others v. Poland [GC], no.
44158/98, § 64, ECHR 2004-I).
. It
is to be noted that the sole justification proffered by the Government for
restricting the applicant’s union activities was the distribution of leaflets in
a hospital during working hours and without the chief doctor’s permission.
Other than maintaining that argument, the Government have not sought to refer
to a legal basis for the interference.
The Court observes that the Government’s arguments
do not find support in the national legislation and that the Government have
not referred to any legal provisions which prohibit the distribution of
leaflets in hospitals during working hours and without the hospital
administration’s permission. Indeed, in the words of the police officer’s
superiors, “there was nothing wrong with the applicant distributing the
leaflets” (see paragraph 12 above). Furthermore, no administrative or criminal
proceedings have been brought against the applicant in connection with her
distribution of the leaflets.
In the light of the foregoing, the Court finds
that the restrictions on the applicant’s trade union activities were not “prescribed by law”, within the meaning of Article 11 § 2 of the
Convention. This conclusion makes it unnecessary to examine whether the other
requirements of paragraph 2 of Article 11 were complied with.
. It
follows that there has been a violation of Article 11 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
Article 41 of the
Convention provides:
“If the Court finds that there
has been a violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only partial
reparation to be made, the Court shall, if necessary, afford just satisfaction
to the injured party.”
A. Damage
The applicant claimed 5,000 euros (EUR) in
respect of non-pecuniary damage.
The Government considered the sum claimed by the
applicant to be unreasonable, unacceptable, unjust and excessive, and invited
the Court not to allow the applicant to use non-pecuniary damage as a source of
unjust enrichment.
The Court awards the applicant the sum claimed
by her in full, that is EUR 5,000, in respect of non-pecuniary damage.
B. Costs and expenses
The applicant also claimed EUR 3,000 for the
costs and expenses incurred before the Court. EUR 1,980 of this sum was claimed
in respect of the fees of the applicant’s legal representative for which the
applicant submitted to the Court a time-sheet, showing the hours of work done
by the legal representative. The remaining EUR 1,020 was claimed in respect of
translation, postal and stationery expenses for which the applicant did not
submit any documents to the Court.
According to the Government, it did not appear
that the applicant’s claim for costs and expenses was reasonable or
substantiated by adequate documentary evidence.
According to the Court’s case-law, an applicant
is entitled to the reimbursement of costs and expenses only in so far as it has
been shown that these have been actually and necessarily incurred and are
reasonable as to quantum. In the present case, regard being had to the
documents in its possession and the above criteria, the Court considers it
reasonable to award the sum of EUR 1,500 for the proceedings before the Court.
C. Default interest
The Court considers it appropriate that the
default interest rate should be based on the marginal lending rate of the
European Central Bank, to which should be added three percentage points.
FOR THESE REASONS, THE COURT,
1. Declares, unanimously, the application admissible;
2. Holds, by four votes to three, that there has been a violation of Article 5 § 1
of the Convention;
3. Holds, by four votes to three, that there has been a violation of Article 11
of the Convention;
4. Holds, by four votes to three,
(a) that the respondent State is to pay the applicant,
within three months from the date on which the judgment becomes final in
accordance with Article 44 § 2 of the Convention, the following
amounts, to be converted into the currency of the
respondent State at the rate applicable at the date of settlement:
(i) EUR 5,000 (five thousand euros), plus any tax
that may be chargeable, in respect of non-pecuniary damage;
(ii) EUR 1,500 (one thousand five hundred euros),
plus any tax that may be chargeable to the applicant, in respect of costs and
expenses;
(b) that from the expiry of the above-mentioned
three months until settlement simple interest shall be payable on the above
amounts at a rate equal to the marginal lending rate of the European Central
Bank during the default period plus three percentage points;
5. Dismisses, unanimously, the remainder of the applicant’s claim for just
satisfaction.
Done in English, and notified in writing on 10 September
2013, pursuant to Rule 77 §§ 2 and 3 of the Rules of Court.
Stanley Naismith Guido
Raimondi
Registrar President
In accordance with Article 45 § 2 of the Convention and Rule 74
§ 2 of the Rules of Court, the following separate opinion of Judges D.
Jočienė, I. Karakaş and H. Keller is annexed to this
judgment.
G.R.A.
S.H.N.
DISSENTING OPINION OF
JUDGES JOČIENĖ, KARAKAŞ AND KELLER
We are not convinced that the manner in which the applicant was
treated amounted to a deprivation of liberty.
According to the facts of the case, the applicant, who was a nurse,
was distributing a leaflet during her working hours at the hospital. She was
asked by a police officer whether she had permission from the hospital
administration to distribute the said leaflet, of which he requested a copy.
The applicant refused to give him one. She was invited by the officer to the
hospital’s police office so that the leaflets could be examined. She refused
and the officer pulled her arm. This act, while not reaching the threshold of
treatment contrary to Article 3 of the Convention, explains the redness in her
arm.
The Chief Doctor of the hospital was informed about the incident,
and the applicant remained in the hospital’s police office until the Chief
Doctor and hospital director arrived. The Chief Doctor then sent the applicant
back to her work area. Here it becomes clear that the applicant had not in fact
been taken into detention. It is important to stress that she was able to leave
the room on the order of the Chief Doctor; it was he, and not the police
officer, who “released” her. She merely sat in a hospital room, used by the
police, for a period of less than one hour until the Chief Doctor arrived. The
applicant was not therefore deprived of her liberty in the meaning of
Article 5 § 1.
We would point out that, under the Court’s established case-law,
Article 5 § 1 is not concerned with mere restrictions on liberty of
movement, which are governed by Article 2 of Protocol No. 4 (see H.M.
v. Switzerland, no. 39187/98, § 40, ECHR 2002-II; Nada v. Switzerland [GC], no. 10593/08, § 225, ECHR 2012; Austin and
Others v. the United Kingdom [GC], nos. 39692/09, 40713/09 and 41008/09, §
57, ECHR 2012).
In order to determine whether someone has been “deprived of his
liberty” within the meaning of Article 5 § 1, the starting point must be his or
her concrete situation, and account must be taken of a whole range of criteria,
such as the type, duration, effects and manner of implementation of the measure
in question. The difference between deprivation and restriction of liberty is
one of degree or intensity, and not of nature or
substance (see Engel and Others v. the Netherlands, 8 June 1976,
§ 59, Series A no. 22; Guzzardi v. Italy, 6
November 1980, § 92-93, Series A no. 39; Medvedyev and Others v. France [GC], no. 3394/03, § 73, ECHR 2010;
and Austin and Others v. the United Kingdom,
cited above, § 57).
Even if it is not excluded that Article 5 § 1 may apply to
deprivations of liberty of a very short duration (see X v. Germany, no.
8819/79, Commission decision of 19 March 1981, Decisions and Reports (DR) 24,
pp. 158, 161), the Convention organs’ case-law shows that this provision was
considered inapplicable in cases in which the applicants’ stay in a police
station lasted only a few hours and did not extend beyond the time strictly
necessary to accomplish certain formalities (see Guenat v. Switzerland, no. 24722/94, Commission
decision of 10 April 1995, Decisions and Reports (DR) 81, pp. 130, 134; Foka
v. Turkey, no. 28940/95, § 75, 24
June 2008, and, a contrario Venskute v. Lithuania, no. 10645/08,
§ 74, 11 December 2012) or where the applicants waited in
a courtyard for a relatively short period (see Pavlides
and Georgakis v. Turkey, nos. 9130/09 and
9143/09, § 23, decision of 2 July 2013) or
were subjected to kettling (see Austin and Others, cited above, §
68).
In all of
these cases, the restrictive nature of the measures concerned was not
sufficient to bring them within the scope of Article 5§1.
In the light of these considerations and the relatively short period
during which the applicant waited in a room until the Chief Doctor arrived, we
are of the opinion that she was not deprived of her liberty within the meaning
of Article 5 § 1 of the Convention and that there has therefore been no
violation of this provision.
