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
19" February 2009 the Grand Chamber of the European Court of Justice held that:
“The deprivation of liberty must also be
“lawful”.
detention is in issue, including the question whether
Where
the
“lawfulness” of
“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.”
Similarly,
in MEDVEDYEV
3394/03) JUDGMENT
AND
STRASBOURG
OTHERS
vy. FRANCE
(Application
no.
29 March 2010, the Court reiterated that
where the “lawfulness” of detention is in issue, including the question whether “a
procedure prescribed by law” has been followed, the Convention refers essentially
49