The preventive detention and arrest of hooligans and the European Convention of Human Rights
JUDGMENT
S., V. and Α. v. Danmark 22.10.2018 (no. 35553/12, 36678/12 and 36711/12)
SUMMARY
The case concerned the applicants’ detention on 10 October 2009 for over seven hours when they
were in Copenhagen to watch a football match between Denmark and Sweden. The authorities
detained the applicants in order to prevent hooligan violence. The applicants unsuccessfully sought
compensation before the Danish courts.
The Court was satisfied that the Danish courts had struck the right balance between the applicants’
right to liberty and the importance of preventing hooliganism. In particular, the courts had
thoroughly examined the police’s strategy to avoid clashes on the day in question, finding that they
had: taken into account the six-hour time-limit for preventive detention under national law, even
though it had been slightly overrun; engaged proactive dialogue with fans/supporters, before
employing more drastic measures such as detention; aimed to only detain those, such as the
applicants, who had been identified as a risk to public safety; and, carefully monitored the situation
so that the applicants could be released as soon as the situation had calmed down. The authorities
had moreover provided concrete evidence specifying the time, place and victims of the offence of
hooliganism which the applicants would in all likelihood have been involved in had it not been
prevented by their detention.
In finding that the applicants’ detention had been permissible under the Convention the Court
applied a flexible approach so that the police’s use of short-term detention to protect the public was
not made impracticable. In particular, it clarified and adapted its case-law under Article 5 § 1 (c),
finding that the second part of that provision, namely “when it is reasonably considered necessary to
prevent committing an offence”, could be seen as a distinct ground for deprivation of liberty, outside
the context of criminal proceedings.
PROVISIONS
Article 5§3
Article 5§5
PRINCIPAL FACTS
The applicants are three Danish nationals who were born in 1989, 1982, and 1982 respectively.
On 10 October 2009, the applicants were in Copenhagen to watch a football match between
Denmark and Sweden. The Danish police were aware that hooligan groups from each country were
travelling to the city and planning to fight each other. Therefore, plans were made to arrest and
charge the instigators of fights if they occurred or to detain instigators in order to prevent clashes.
During the afternoon, the first big fight started between Danish and Swedish spectators on
Amagertorv square in the centre of Copenhagen, which resulted in five or six people being arrested,
including two of the three applicants, Mr V. and Mr A. Subsequently, other spectators were arrested
elsewhere, including the remaining applicant, Mr S. The applicants were each detained for over
seven hours. They were not charged with any criminal offence. In total 138 spectators were
arrested, half of whom were charged with various criminal offences.
The applicants brought compensation proceedings before the Danish courts, alleging that their
detention had been unlawful because it had been preventive and had exceeded six hours, which was
the time-limit under the relevant law for detention to avert a danger or disturbance of public order.
The three applicants, represented by counsel, were heard by the City Court of Aarhus, and claimed
that they had not been involved or had had any intention of becoming involved in altercations.
The strategic commander of the police operation, and a number of other police officers also gave
testimony.
The police strategic commander explained that, because the match was to start at 8 p.m., the plan
was to avoid resorting to detention early in the day. Otherwise, given the six-hour time-limit,
potential troublemakers would have had to be released during or immediately after the match and
would have been able to resume their brawls. The police had therefore first talked to the various
groups when they had started arriving at midday and had only detained them when a fight had
broken out later in the afternoon. The situation had been continuously monitored until after
midnight, when the situation in central Copenhagen had calmed down and the police considered
that the detainees could be released without their resuming fighting.
One of the police constables testified that Mr V. and Mr A. had been detained after he had seen
them talking to an activist from a local faction and issuing orders to other hooligans. Another
constable explained that Mr S. had been detained after a man had reported seeing him call on
friends to meet at the entrance to Tivoli Gardens to try to start a fight with Swedish supporters.
The City Court refused the applicants’ compensation claim in November 2010. It found that the
police had had every reason to believe that the applicants had been organising fights between
football hooligans in the centre of Copenhagen, which could have caused considerable danger to the
safety of peaceful football supporters and uninvolved third parties and which the police had had a
duty to attempt to prevent. It therefore found that the police had not exceeded their powers by
detaining the applicants. It further held that overrunning the time-limit had been justified in the
circumstances, given the extent, duration and organised nature of the disturbances. In any case, the
wording of the law set out that detention should not exceed six hours, but only to the extent that
this was possible.
That decision was subsequently upheld on appeal by the High Court and leave to appeal to the
Supreme Court was ultimately refused in December 2011.
THE DECISION OF THE COURT
The Court found that the applicants’ detention had not been covered by Article 5 § 1 (b), which
authorised detention to “secure the fulfilment of any obligation prescribed by law” as they had not
been given any specific orders regarding any such obligation. For example, they had not been told to
refrain from instigating hooligan fights on 10 October 2009 at the Copenhagen international football
match, to remain within a certain group or to leave a specific place. Nor could they have been
implicitly aware that they should refrain from committing a specific act, namely hooliganism,
because of the large police presence that day, as argued by the Government. Such a wide
interpretation of sub-paragraph (b) would be incompatible with the rule of law.
However, it considered that the applicants’ detention had been covered by the second part of
Article 5 § 1 (c), which allows detention “on reasonable suspicion of having committed an offence or
when it is reasonably considered necessary to prevent committing an offence”.
Before coming to that conclusion, the Court found it necessary to clarify and adapt its case-law
under that sub-paragraph. In particular, it accepted that the second part of the sub-paragraph,
namely “when it is reasonably considered necessary to prevent committing an offence”, could be
seen as a distinct ground for deprivation of liberty, outside the context of criminal proceedings.
Furthermore, the requirement under this sub-paragraph that a person be lawfully arrested or
detained “for the purpose of bringing him before the competent legal authority” should not
constitute an obstacle to short-term detention and should thus be applied with a degree of
flexibility. A strict interpretation of the purpose requirement could unduly prolong the detention and
make it impracticable for the police to maintain order and protect the public. As long as the detainee
was brought promptly before a judge to have the lawfulness of his or her detention reviewed or was released before such time, the Court would consider that the purpose requirement under Article 5 § 1 (c) had been complied with.
Any flexibility should however be limited by certain safeguards under Article 5 §§ 3 and 5, including
the requirement that the deprivation of liberty be lawful, that the offence be concrete and specific
and that the authorities show that the person would in all likelihood have been involved in the
offence had it not been prevented by his or her detention and have an enforceable right to
compensation. In addition, the Court found that, generally speaking, release “at a time before
prompt judicial control” in the context of preventive detention should be a matter of hours rather
than days.
In the present case, where the applicants had been released within a matter of hours at a time
before it became necessary to bring them before a judge, the Court was satisfied that such a flexible
approach could be applied. Indeed, they had had the opportunity to bring the question of the
lawfulness of their detention before the domestic courts and, if they had been successful, they could
have been awarded compensation.
The Court went on to determine whether their detention had been justified under Article 5 § 1 (c).
First, it found that the domestic authorities’ assessment of the applicants’ case had not been
arbitrary or manifestly unreasonable and accepted that their detention had conformed to the rules
of national law. In particular, the courts had examined the police’s conduct on the day in question,
finding that its strategy had taken into account the six-hour time-limit for preventive detention and
accepting its justification for the moderate exceeding of that period.
Nor could it criticise the domestic courts’ findings that the applicants had been detained because the
police had had sufficient reason to believe that they had incited others to start a fight with Swedish
football fans, thus causing a concrete and imminent risk to public order and safety. In particular,
they had been specific and concrete as to the offence, citing the place (Amagertorv square and Tivoli
Gardens), the time (the afternoon of 10 October 2009) and the victims (the public present at those
places at those times). The authorities had therefore provided evidence to show that the applicants
would in all likelihood have been involved in the offence of hooliganism unless detained.
Lastly, the Court was satisfied that less stringent measures would not have sufficed to prevent the
serious offence of a hooligan brawl. Before the first fight had broken out the police had had a very
careful and lenient approach to avoid clashes, notably a proactive dialogue with fans/spectators
when they had started to arrive at the beginning of the afternoon. The police had also taken care to
detain only those such as the applicants who, in their assessment, had been identified as instigators
and posed a risk to public safety. Moreover, that risk had been carefully monitored, enabling the
Chief Inspector in charge of the detainees to assess when they should start to be released.
Overall, the Court found that the applicants had been released as soon as the risk of brawls had
passed, that their detention had lasted no longer than was necessary to prevent them from taking
further steps towards instigating violence and that the risk assessment had been sufficiently
monitored. The Danish courts had struck a fair balance between the applicants’ right to liberty and
the importance of preventing hooliganism and there had been no violation of Article 5 § 1.
Separate opinions
Judges De Gaetano and Wojtyczek expressed a joint partly dissenting opinion which is annexed to
the judgment(echrcaselaw.com editing).
