The requirement of lawfulness is not satisfied merely by compliance with the
relevant domestic law; the application of domestic laws in a case of arrest and
detention must itself be in conformity with the international provisions.
An arrest done in conformity with the law is deemed lawful until such laws are
repealed. In the instant case, though the arrest of the Applicants were carried out in
accordance with the criminal laws of The Gambia, the continued detention of the
Applicant constitutes a violation.
In A and Others V. The United Kingdom (Application no. 3455/05) judgement
19th February 2009 the Grand Chamber of the European Court of Justice held that:
“The deprivation of liberty must also be “lawful”. Where the “lawfulness” of
detention is in issue, including the question whether “a procedure prescribed by
law” has been followed, the Convention refers essentially to national law and lays
down the obligation to conform to the substantive and procedural rules of national
law. Compliance with national law is not, however, sufficient: Article 5 (1) 1
requires in addition that any deprivation of liberty should be in keeping with the
purpose of protecting the individual from arbitrariness. It is a fundamental principle
that no detention which is arbitrary can be compatible with Article 5 (1) 1 and the
notion of “arbitrariness” in Article 5 (1) extends beyond lack of conformity with
national law, so that a deprivation of liberty may be lawful in terms of domestic law
but still arbitrary and thus contrary to the Convention.”
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