EHRM, 22-10-2018, nr. 35553/12, nr. 36678/12, nr. 36711/12

The Government submitted that, as in Ostendorf (cited above), the applicants' detention was covered by Article 5 § 1 (b), as it had been intended to prevent them from organising and taking part in brawls between hooligans. The applicants had been subject to an obligation to refrain from committing criminal offences, including the obligation not to instigate fights or exhibit any other form of violent behaviour likely to disturb public order. This obligation followed from a number of provisions on punishable acts, including section 3 of the Executive Order on Police Measures to Maintain Law and Order (which is considered to define a criminal offence), and sections 134a, 244, 245 and 291 of the Penal Code. The obligation was specific and concrete, and the time and place of the imminent commission of the offence had been sufficiently specified, as well as its potential victims. The applicants had been aware of the large police presence in the city and it must have been clear to them that the police were there to prevent violence and disturbance in connection with the football match, notably as all three applicants had previously been detained in connection with similar events. In the Government's view, it would have been futile for the police to have given the applicants explicit orders to disperse and refrain from arranging/taking part in brawls, as the applicants could simply have walked away from the police and engaged in hooligan brawls elsewhere. Likewise, it would have made little sense to escort them to the stadium and warn them of detention if they left the groups of hooligans, as the police had done in Ostendorf (cited above), since many of them, including the third applicant, had not even had a ticket for the match.

In addition, the applicants had taken clear steps indicating that they would not fulfil this obligation. Thus, the first applicant had been detained because a citizen, deemed highly credible by the police, had spontaneously contacted the police stating that he had just overheard a person, whom he simultaneously pointed out as being the first applicant, calling other people by phone and inciting them, together with him, to start a fight with Swedish football fans. The second and third applicants had been detained after the police had specifically seen them talking to an activist from the local faction of ‘South Side United’ and issuing orders to others.

The applicants had been released as soon as there was no more hooligan violence in the city. The last disturbances resulting in detentions had taken place at 10.51 p.m. and 11.21 p.m., at which time it was recorded that a police transport wagon was holding thirty-five detainees (those detained at 10.51 p.m.). The applicants had been released at 11.27 p.m., 11.34 p.m., and 12.06 a.m. respectively, as quickly as was practicably possible.

The Government also submitted that the applicants' detention could be justified under Article 5 § 1 (c).

They emphasised that the applicants had been detained because it had been ‘reasonably considered necessary to prevent their committing an offence’, or more specifically, they had been detained under section 5(3) of the Police Act to avert the risk of disturbance of public order and the danger to the safety of individuals and public security. The police had been in possession of sufficient facts and information to satisfy an objective observer that the applicants were planning to organise and participate in hooligan brawls, during which concrete and specific criminal offences would be committed (for example, those provided for in section 3 of the Executive Order on Police Measures to Maintain Law and Order and sections 134a, 244, 245 and 291 of the Penal Code).

The applicants had not been detained in order to initiate criminal proceedings against them. However, referring, inter alia, to Lawless (cited above, § 14) and the concurring opinion in Ostendorf (cited above), the Government maintained that the fact that a detained person was not subsequently charged or brought before a court did not in itself amount to a violation of the first limb of Article 5 § 3. There was no breach of Article 5 § 3 if the detainee was released ‘promptly’ before any judicial review of the detention would have been feasible. In such a situation there was no risk of arbitrary detention for an unlimited amount of time.

In the present case, the applicants had been released promptly, namely as soon as the risk had been removed, after a period of seven hours. It would be unfortunate if the legislation in such a situation required the police to continue the detention and bring the detainee before a court in order for administrative detention for preventive purposes to be lawful, and it would be contrary to the spirit and underlying objective of Article 5 if the applicants' early release placed them in a stronger position to complain of a breach of Article 5 than if it had been decided to detain them for longer in order to bring them before a court.

Furthermore, under section 469 of the Administration of Justice Act, the applicants could have, and had, initiated proceedings before the courts concerning the lawfulness of the decision by the police on their administrative detention. The legislation thus guaranteed the right to demand an examination of the deprivation of liberty and eliminated the risk of arbitrary detention.

Lastly, the Government maintained that the applicants' detention had been in accordance with a procedure prescribed by law. Referring to the wording of section 5(3) of the Police Act and the relevant preparatory notes, the Government found that the Act provided sufficient authority to exceed the six-hour rule in special situations. In the present case, the purpose of the detention would have been defeated if the applicants had been released by the end of the six-hour period. They pointed out that the domestic courts had found, in view of the purpose of the detention compared with the organised nature, scope and duration of the unrest, as well as the length of the specific periods by which the maximum periods had been exceeded, that the conditions for detaining the three applicants under section 5(3) of the Police Act for more than six hours had been met.

The applicants agreed that if a specific duty or obligation could be identified in the present case, it had to be the same as in Ostendorf (cited above), namely to prevent them from organising and participating in brawls. They pointed out, however, that in Ostendorf the Court had underlined that ‘… it is necessary, prior to concluding that a person has failed to satisfy his obligation at issue, that the person concerned was made aware of the specific act which he or she was to refrain from committing and that the person showed himself or herself not to be willing to refrain from so doing’ (ibid., § 94). The Court had further emphasised that the person concerned had to have taken positive steps indicating that he would not fulfil the above-mentioned obligation. In Ostendorf the applicant had been classified as a ‘gang leader’ and had received a specific and precise order from the police to stay with the group of supporters with whom he had travelled to a football match, and the group had even been informed of the consequences of not obeying such an order. The order had been given after the police had registered and searched all individuals in the group, finding and seizing items in their possession used in hooligan brawls.

The facts of the present case, however, were clearly different from those dealt with in Ostendorf. All three applicants had followed the instructions of the police at all times; they had not at any time been warned that they should refrain from taking any particular action; they had not been in possession of any instruments that could indicate that they intended to take part in a brawl; and they had not instigated or taken part in any fights.

The applicants submitted that the fact that there had been a large police presence in the city could not as a general rule be said to entail any special duties for citizens. It was normal that large-scale events should require police assistance, for a number of reasons. Moreover, in the applicants' view the large police presence suggested that the police could have averted the alleged danger by resorting to much less radical means such as those listed in section 5(2) of the Police Act, instead of resorting to the most radical measure available to them, namely deprivation of liberty; however, the police had obviously already decided before the event to implement the most radical means straight away.

Referring to the preparatory notes on the Police Act, the applicants also pointed out that the fact that they might have been known to the police could not justify measures under section 5 of the Police Act; nor could such a fact, in the context of an obligation to refrain from taking particular action, exempt the authorities from making all the individuals concerned aware of the specific and concrete obligation incumbent on them.

Having regard to the above, the first applicant maintained that even if the Court found it established, on account of an unknown witness, that he could reasonably be said to have failed to comply with a specific duty or obligation, at no point had he been made aware of such an obligation prior to his detention. Moreover, he submitted that the detention had served more of a punitive purpose, which was not covered by Article 5 § 1 (b) of the Convention. In the first applicant's view, it should therefore be concluded that his detention had not been covered by sub-paragraph (b) of Article 5 § 1 of the Convention.

The second and third applicants submitted that even if there could be said to have been a concrete and specific obligation, there was no indication that they had been made aware of it or that they had taken any positive steps that could indicate that they would not fulfil such an obligation.

The applicants pointed to long-established case-law according to which sub-paragraph (c) of Article 5 § 1 governed only pre-trial detention within criminal proceedings.

In the present case, however, the applicants had been detained under section 5(3) of the Police Act in order to prevent them from committing an offence, and not under section 755 of the Administration of Justice Act, which concerned the arrest of a person who was suspected of having committed an offence. Should the Court find that this line of case-law should be abandoned, it should nonetheless be taken into account that the Danish authorities in this particular case had relied exclusively on the Police Act.

Moreover, it should not be forgotten that Article 5 § 3 required that everyone who had been arrested should be brought promptly before a judge and be entitled to a trial within a reasonable time or to release pending trial. In the present case, the applicants had not been brought promptly before a judge or offered any such remedy. Instead, they had had to take proceedings themselves.

Finally, in the applicants' opinion, the existing case-law under sub-paragraph (b) of Article 5 § 1 gave the national authorities sufficient opportunities to detain individuals in a situation where the police for reasons of public order or safety ordered them to act or refrain from acting in a certain way and the individuals did not comply with that order. It would be disproportionate to allow the authorities to also rely on Article 5 § 1 (c) in such situations.

The applicants further maintained that their deprivation of liberty had not followed a procedure prescribed by law and had therefore not been ‘lawful’ within the meaning of Article 5 of the Convention. More specifically, referring to the preparatory notes on the Police Act, the applicants submitted that section 5(3) of the Act did not authorise administrative detention for a period exceeding six hours, unless the period was exceeded in connection with police actions involving the detention of a large number of individuals, when the time spent on transfer to the police station and registration and identification of detainees rendered it impossible, in practice, to observe the six-hour rule. In the present case, however, the first applicant had been the only one detained from a large group, and the second and third applicants had been detained together with three or four others from a large group; thus, their situation had not involved the detention of a considerable number of persons. Lastly, the applicants maintained that it would have been possible, in practice, to release them within the six-hour limit, as verified by the testimony of Chief Inspector P.J. (see paragraph 24 above).

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 thereof. Compliance with national law is not, however, sufficient: Article 5 § 1 requires in addition that any deprivation of liberty should be in keeping with the purpose of protecting the individual from arbitrariness (see, among many other authorities, Winterwerp v. the Netherlands, 24 October 1979, § 37, Series A no. 33); Amuur v. France, 25 June 1996, § 50, Reports of Judgments and Decisions 1996-III; Chahal v. the United Kingdom, 15 November 1996, § 118, Reports 1996-V; Witold Litwa v. Poland, no. 26629/95, §§ 72-73, ECHR 2000-III; and Vasileva v. Denmark, no. 52792/99, § 32, 25 September 2003.

While the Court has not previously formulated a global definition as to what types of conduct on the part of the authorities might constitute ‘arbitrariness’ for the purposes of Article 5 § 1, key principles have been developed on a case-by-case basis. It is, moreover, clear from the case-law that the notion of arbitrariness in the context of Article 5 varies to a certain extent depending on the type of detention involved (see, for example, Saadi v. the United Kingdom [GC], no. 13329/03, § 68, ECHR 2008).

One general principle established in the case-law is that detention will be ‘arbitrary’ where, despite complying with the letter of national law, there has been an element of bad faith or deception on the part of the authorities (see, for example, Bozano v. France, 18 December 1986, § 59, Series A no. 111; Saadi, cited above, § 69; and Mooren v. Germany [GC], no. 11364/03, §§ 77–79, 9 July 2009) or where the domestic authorities neglected to attempt to apply the relevant legislation correctly (see Benham v. the United Kingdom, 10 June 1996, § 47, Reports 1996-III; Liu v. Russia, no. 42086/05, § 82, 6 December 2007; and Marturana v. Italy, no. 63154/00, § 80, 4 March 2008).

In the context of the first limb of sub-paragraph (c) of paragraph 1 (reasonable suspicion of having committed an offence) of Article 5, the Court has held that ‘[i]n order for deprivation of liberty to be considered free from arbitrariness, it does not suffice that this measure is executed in conformity with national law; it must also be necessary in the circumstances’ (see, among other authorities, Ladent v. Poland, no. 11036/03, § 55, 18 March 2008; Khayredinov v. Ukraine, no. 38717/04, § 27, 14 October 2010; Korneykova v. Ukraine, no. 39884/05, §§ 34 and 43, 19 January 2012; and Strogan v. Ukraine, no. 30198/11, § 86, 6 October 2016). As regards the requirement to justify pre-trial detention under paragraph 3 of Article 5 in such cases, the Court has held that there must be relevant and sufficient reasons, and that the national authorities must display ‘special diligence’ in the conduct of the proceedings. The Court has also held that justification for any period of detention, no matter how short, must be convincingly demonstrated by the authorities. When deciding whether a person should be released or detained, the authorities are obliged to consider alternative means of ensuring his or her appearance at trial (ibid.). The pre-trial detention must be necessary (see Buzadji, cited above, §§ 87, 102, 122 and 123).

Similarly, in the contexts of sub-paragraphs (b), (d) and (e), the Court has affirmed that the notion of arbitrariness also includes an assessment of whether detention was necessary to achieve the stated aim. The detention of an individual is such a serious measure that it is justified only as a last resort where other, less severe measures have been considered and found to be insufficient to safeguard the individual or public interest which might require that the person concerned be detained (see Saadi, cited above, § 70, with further references; for the different approach adopted in relation to sub-paragraphs (a) and (f), see §§ 71 and 72 of the same judgment).

Detention may be authorised under the second limb of Article 5 § 1 (b) in order to ‘secure the fulfilment of any obligation prescribed by law’.

This concerns cases where the law permits the detention of a person to compel him or her to fulfil a specific and concrete obligation already incumbent on him or her, and which he or she has until then failed to satisfy. In order to be covered by Article 5 § 1 (b), an arrest and detention must also be aimed at or directly contribute to securing the fulfilment of that obligation and not be punitive in character (see Johansen v. Norway, no. 10600/83, Commission decision of 14 October 1985, Decisions and Reports (DR) 44, p. 162; Vasileva, cited above, § 363; Gatt v. Malta, no. 28221/08, § 46, ECHR 2010; Osypenko v. Ukraine, no. 4634/04, § 57, 9 November 2010; Soare and Others v. Romania, no. 24329/02, § 236, 22 February 2011; and Göthlin v. Sweden, no. 8307/11, § 57, 16 October 2014). If sub-paragraph (b) could be extended to cover punishments, such punishments would be deprived of the fundamental guarantees of sub-paragraph (a) (see Engel and Others v. the Netherlands, 8 June 1976, § 69, Series A no. 22, and Johansen, cited above, p. 162).

A further requirement is that the nature of the obligation within the meaning of Article 5 § 1 (b) whose fulfilment is sought must itself be compatible with the Convention (see McVeigh and Others v. the United Kingdom, nos. 8022/77, 8025/77 and 8027/77, Commission's report of 18 March 1981, DR 25, § 176, and Johansen, cited above, p. 162). As soon as the relevant obligation has been fulfilled, the basis for detention under Article 5 § 1 (b) ceases to exist (see Vasileva, cited above, § 36; Epple v. Germany, no. 77909/01, § 37, 24 March 2005; Osypenko, cited above, § 57; Sarigiannis v. Italy, no. 14569/05, § 43, 5 April 2011; and Lolova-Karadzhova v. Bulgaria, no. 17835/07, § 29, 27 March 2012).

Finally, a balance must be struck between the importance in a democratic society of securing the immediate fulfilment of the obligation in question and the importance of the right to liberty (see Vasileva, cited above, § 37; Epple, cited above, § 37; and Gatt, cited above, § 46). The nature of the obligation arising from the relevant legislation, including its underlying object and purpose, the person being detained and the particular circumstances leading to the detention, as well as its duration, are relevant factors in striking such a balance (see Vasileva, cited above, §§ 37–38 with further references; Iliya Stefanov v. Bulgaria, no. 65755/01, § 72; 22 May 2008, Gatt, cited above, § 46; and Soare and Others, cited above, § 236).

A wide interpretation of sub-paragraph (b) of Article 5 § 1 would entail consequences incompatible with the notion of the rule of law, from which the whole Convention draws its inspiration (see Engel and Others, cited above, § 69; Iliya Stefanov, cited above, § 72; and Schwabe and M.G. v. Germany., nos. 8080/08 and 8577/08, § 82, ECHR 2011-VI (extracts)), and entail the risk of arbitrary deprivation of liberty (see, for example, Shimovolos v. Russia, no. 30194/09, § 51, 21 June 2011). Article 5 § 1 (b) therefore does not justify, for example, administrative internment meant to compel a citizen to discharge his or her general duty of obedience to the law (ibid.). The obligation not to commit a criminal offence may only be considered sufficiently ‘specific and concrete’ for the purposes of sub-paragraph (b) if the place and time of the imminent commission of the offence and its potential victim(s) have been sufficiently specified, if the person concerned was made aware of the specific act which he or she was to refrain from committing, and if that person showed himself or herself not to be willing to refrain from committing that act (see Schwabe and M.G., cited above, §§ 73 and 82 and Ostendorf, cited above, §§ 69–73, 93–94, 97, 99 and 101). The duty not to commit a criminal offence in the imminent future cannot be considered sufficiently concrete and specific to fall under Article 5 § 1 (b), at least as long as no specific measures have been ordered which have not been complied with (see Schwabe and M.G., cited above, § 82).

In this connection it should be reiterated that in the case of Schwabe and M.G. (ibid., § 81) the fact that the police had given no such order was an important consideration for the Court to conclude that the matter fell outside the scope of paragraph 1 (b), whereas the fact that the police had given such an order was decisive for the Court to reach the opposite conclusion in Ostendorf (cited above, § 95). In the latter case, the police had specifically ordered the applicant, prior to his arrest, to stay with a group of football supporters, and had warned him in a clear manner of the consequences of his failure to comply with that order. Moreover, his group had already been searched and found to be in possession of instruments typically used in hooligan brawls.

In the present case it is undisputed that, prior to their detention, the applicants were not given any specific orders, for example to remain with one group or another or to leave a specific place, and were not given a clear warning of the consequences of their failure to comply with such an order. Nor were they told by the police which specific act they were to refrain from committing. It also does not appear that anyone in the group had been found in possession of instruments typically used in hooligan brawls.

The Government have argued that the fact that the applicants were confronted with a large police presence just before, during or after a football match sufficed, by implication, for them to have been ‘made aware of the specific act which they were to refrain from committing’, namely instigating hooligan fights at the place and time of the match.

The Court is not convinced by this line of reasoning. In particular, it finds that a large police presence, which is normal at any mass event, cannot be compared to the very specific measures enumerated in Ostendorf (cited above, § 95) for ensuring that an individual has been made aware of the specific act which he or she must refrain from committing. Such a wide interpretation of sub-paragraph (b) of Article 5 § 1 would entail consequences incompatible with the notion of the rule of law, from which the whole Convention draws its inspiration (see paragraph 83 above).

Accordingly, in the circumstances of the present case, the applicants' detention was not covered by sub-paragraph (b) of Article 5 § 1.

In the context of sub-paragraph (c) of Article 5 § 1, a strict interpretation of the term ‘offence’ constitutes an important safeguard against arbitrariness. It will be recalled that this provision does not, according to the Court's established case-law, permit a policy of general prevention directed against an individual or a category of individuals who are perceived by the authorities, rightly or wrongly, as being dangerous or having the propensity to commit unlawful acts. This ground of detention does no more than afford the Contracting States a means of preventing a concrete and specific offence (see, for example, Guzzardi v. Italy, 6 November 1980, § 102, Series A no. 39; Ciulla v. Italy, 22 February 1989, § 40, Series A no. 148; and Shimovolos, cited above, § 54) as regards, in particular, the place and time of its commission and its victim(s) (see M. v. Germany, no. 19359/04, §§ 89 and 102, ECHR 2009). This can be seen both from the use of the singular (‘an offence’) and from the object of Article 5, namely to ensure that no one should be dispossessed of his or her liberty in an arbitrary fashion (see Guzzardi, cited above, § 102, and M. v. Germany, cited above, § 89).

According to the Court's case-law, however, the ‘offence’ does not have to be limited to conduct that has been characterised as an offence under national law. In Steel and Others v. the United Kingdom (23 September 1998, §§ 46–49 and 55, Reports 1998-VII), the Court found, as was undisputed by the parties, that the concept ‘breach of the peace’ ought to be regarded as ‘an offence’ within the meaning of Article 5 § 1 (c), despite not being classified as an offence under English law. It bore in mind (ibid., § 49) the nature of the proceedings in question and the penalty at stake. Moreover, it observed (ibid., § 55):

The condition that there should be no arbitrariness also demands that both the order to detain and the execution of the detention genuinely conform to the purpose of the restrictions permitted by the relevant sub-paragraph of Article 5 § 1 (see Saadi, cited above, § 69). Where, for example, detention is sought to be justified by reference to the first limb of Article 5 § 1 (c) in order to bring a person before the competent legal authority on reasonable suspicion of having committed an offence, the Court has insisted upon the need for the authorities to furnish some facts or information which would satisfy an objective observer that the person concerned may have committed the offence in question (see James, Wells and Lee v. the United Kingdom, nos. 25119/09 and 2 others, § 193, 18 September 2012, and O'Hara v. the United Kingdom, no. 37555/97, §§ 34–35, ECHR 2001-X). Similarly, the Court is of the view that in order for a detention to be justified under the second limb of Article 5 § 1 (c), the authorities must show convincingly that the person concerned would in all likelihood have been involved in the concrete and specific offence, had its commission not been prevented by the detention.

Finally, in the context of sub-paragraph (c) of Article 5 § 1, the reasoning of the decision ordering a person's detention is a relevant factor in determining whether the detention must be deemed arbitrary. In respect of the first limb of sub-paragraph (c) the Court has found that the absence of any grounds in the judicial authorities' decisions authorising detention for a prolonged period of time was incompatible with the principle of protection from arbitrariness enshrined in Article 5 § 1 (see Urtāns v. Latvia, no. 16858/11, § 28, 28 October 2014). Conversely, it has found that an applicant's detention on remand could not be said to have been arbitrary if the domestic court gave certain grounds justifying the continued detention, unless the reasons given were extremely laconic and did not refer to any legal provision which would have permitted the applicant's detention (ibid.; see also Mooren, cited above, § 79, with further references).

The Court has already been called upon in Ostendorf (cited above, § 83) to examine whether a detention ‘which only served the (preventive) purpose of ensuring that [the applicant] would not commit offences in an imminent hooligan altercation’ could be covered by the second limb of Article 5 § 1 (c), that is, ‘when it is reasonably considered necessary to prevent his committing an offence’. The Court answered the question in the negative (ibid., §§ 77–89), whilst expressing its awareness of the importance, in the German legal system, of preventive police custody in order to avert dangers to the life and limb of potential victims or significant material damage, in particular in situations involving the policing of large groups of people during mass events (ibid., § 88).

Having regard to the numerous occurrences in Europe within the last few decades of football and other sports hooliganism and mass events turning violent, the Court finds it safe to add that most member States are faced with such challenges.

Endeavouring to interpret and apply the Convention in a manner taking proper account of the challenges identified, while maintaining the effective protection of human rights, the Court will take this opportunity to examine whether there is a need for clarification of its case-law under sub-paragraph (c) of Article 5 § 1.

The crucial question to answer in this respect is whether the words ‘when it is reasonably considered necessary to prevent his committing an offence’ (the second limb of Article 5 § 1 (c)) ought to be seen as a distinct ground for deprivation of liberty, independently of the existence of a ‘reasonable suspicion of his having committed an offence’ (the first limb of this provision).

Firstly, the Court will review how the second limb has been interpreted and applied in relation to the first limb in previous cases.

Secondly, it will consider whether the ‘purpose’ requirement in Article 5 § 1 (c) (‘for the purpose of bringing him before the competent legal authority’) entails any particular obstacles to applying the second limb of Article 5 § 1 (c) to preventive detention.

Thirdly, provided that preventive detention can fall under the second limb of paragraph 1 (c), the Court will assess how the additional safeguards contained in paragraphs 3 and 5 should apply to ensure that such detention is not arbitrary or disproportionate.

It is first to be noted that Article 5 § 1 (c) contemplates the lawful arrest or detention of a person in three distinct types of circumstances, namely (1) ‘on reasonable suspicion of having committed an offence’, (2) ‘when it is reasonably considered necessary to prevent his committing an offence’, or (3) when it is reasonably considered necessary to prevent his ‘fleeing after having [committed an offence]’.

That the second limb was intended to constitute a separate ground for detention is reflected in the Report of the Conference of Senior Officials on Human Rights to the Committee of Ministers on Article 5 §§ 1 (c) and 3 of the second draft Convention (see the Preparatory Work on Article 5 of the Convention, cited above, p. 32). The report stated (see paragraph 42 above; emphasis added):

However, the case-law is less clear in this respect.

The Court stated in Lawless (see paragraph 104 above) that the purpose requirement under Article 5 § 1 (c) applies to all categories of cases referred to in this sub-paragraph. However, it should be noted that the Court has recognised in other cases that this requirement is to be interpreted and applied with a certain flexibility when the intention which once existed of ‘bringing the applicant before the competent legal authority’ does not materialise for some reason. The fact that an arrested person was neither charged nor brought before a judge does not necessarily mean that the purpose of his or her detention was not in accordance with Article 5 § 1 (c). Thus, in Brogan and Others v. the United Kingdom (29 November 1988, Series A no. 145-B) the four applicants had been arrested and detained under prevention-of-terrorism legislation on suspicion of being concerned in the commission, preparation or instigation of acts of terrorism. They were released without charge after periods of between four and six days (the shortest being four days and six hours) and without having been brought before a magistrate. The Court held that in the case of each of the four applicants there had been a violation of Article 5 § 3 on account of the failure to observe the requirement of promptness, but no violation of Article 5 § 1 (only the first limb of Article 5 § 1 (c) was concerned). It stated (ibid., § 53):

Again, when applying the first limb of Article 5 § 1 (c), the Court reached similar findings in Erdagöz v. Turkey (22 October 1997, § 51, Reports 1997-VI) and Petkov and Profirov v. Bulgaria (nos. 50027/08 and 50781/09, § 52, 24 June 2014).

The Court discerns no reason why it should not also apply such flexibility to preventive detention under the second alternative of Article 5 § 1 (c). On the contrary, there are a number of arguments for doing so.

If it is understood that in order to fulfil the purpose requirement, a subjective intention ought to be present from the beginning of the detention, that would have the undesirable consequence of excluding any sort of short-term preventive detention, as described in Ostendorf or as was the situation in the present case, where the purpose was not to bring the detainees before a judge but rather to release them after a short period, as soon as the risk had passed.

Strict compliance with the purpose requirement in Article 5 § 1 (c) may also have consequences which are not in keeping with the spirit of Article 5, for example in the situation mentioned by the Supreme Court of the United Kingdom in R v The Commissioner of Police for the Metropolis, (see § 36 of the judgment quoted at paragraph 46 above), where the police had every reason to anticipate that the risk necessitating the person's arrest would pass in a relatively short time and there was every likelihood of it ending before the person could as a matter of practicality be brought before a court. A strict interpretation may unduly prolong the detention, after the risk has passed and the detainee should be released, because the authorities would need a realistic amount of time to bring the detainee before a judge to examine the question of deprivation of liberty.

As the Court has already held, Article 5 cannot be interpreted in such a way as to make it impracticable for the police to fulfil their duties of maintaining order and protecting the public, provided that they comply with the underlying principle of the provision, which is to protect the individual from arbitrariness (see Ostendorf, cited above, § 88). The police must be afforded a degree of discretion in taking operational decisions. Such decisions are almost always complicated and the police, who have access to information and intelligence not available to the general public, will usually be in the best position to take them (see Austin and Others, cited above, § 56).

The Court is also mindful that it has gradually expanded its case-law concerning the State's obligations under Articles 2 and 3 of the Convention to protect the public from offences. Thus, for example, in other contexts, States are required under Article 3 to take measures designed to ensure that individuals within their jurisdiction are not subjected to ill-treatment, including such treatment administered by private individuals (see, inter alia, A. v. the United Kingdom, 23 September 1998, § 22, Reports 1998-VI; M.C. v. Bulgaria, no. 39272/98, §§ 149–50, ECHR 2003-XII; and Opuz v. Turkey, no. 33401/02, § 159, ECHR 2009). These measures should provide effective protection and include reasonable steps to prevent ill-treatment of which the authorities had or ought to have had knowledge (see, inter alia, Z and Others v. the United Kingdom [GC], no. 29392/95, § 73, ECHR 2001-V, and D.P. and J.C. v. the United Kingdom, no. 38719/97, § 109, 10 October 2002; see also, in the context of Article 2, Osman v. the United Kingdom, 28 October 1998, § 115, Reports 1998-VIII and Mastromatteo v. Italy [GC], no. 37703/97, §§ 67–68, ECHR 2002-VIII).

It can therefore be argued, as the Supreme Court of the United Kingdom did (see § 38 of the judgment referred to in paragraph 46 above), that in respect of short-term preventive detention the requirement ‘for the purpose of bringing [the detainee] before the competent legal authority’ implicitly depends on the cause of detention continuing long enough for the person to be brought before a court. In this regard, the Court considers that the question whether the purpose requirement has been complied with should depend on an objective assessment of the authorities' conduct, in particular whether the detainee, as required by Article 5 § 3, is brought promptly before a judge to have the lawfulness of his or her detention reviewed or is released before such time. Furthermore, in the event of failure to comply with the latter requirement, the person concerned should have an enforceable right to compensation in accordance with paragraph 5 of Article 5.

Against this background, and subject to the availability under national law of the additional safeguards in paragraphs 3 and 5 of Article 5 — to be elaborated on in greater detail below — the Court considers that when a person is released from preventive detention after a short period of time, either because the risk has passed or, for example, because a prescribed short time-limit has expired, the purpose requirement of bringing the detainee before the competent legal authority should not as such constitute an obstacle to short-term preventive detention falling under the second limb of Article 5 § 1 (c). As illustrated by the flexible approach adopted in Brogan and Others (described in paragraph 118 above), the Convention should be interpreted and applied in recognition of the need to deal specially with such serious challenges as are at issue in this case (see paragraph 94 above).

At the same time, it should be stressed that any flexibility in this area is limited by important safeguards embodied in Article 5 § 1, notably the requirements that the deprivation of liberty be lawful (see paragraph 74 above), in keeping with the purpose of protecting the individual from arbitrariness (see paragraphs 74–76 above), that the offence be concrete and specific as regards, in particular, the place and time of its commission and its victims (see paragraph 89 above) and that the authorities must furnish some facts or information which would satisfy an objective observer that the person concerned would in all likelihood have been involved in the concrete and specific offence had its commission not been prevented by the detention (see paragraph 91 above). Such flexibility is further circumscribed by the requirement that the arrest and detention be ‘reasonably considered necessary’ (see paragraph 77 above and the further elaboration of this criterion affirmed in paragraph 161 below). Moreover, in assessing the scope of that requirement, regard may be had to the extent to which the measures affect interests protected by other rights guaranteed by the Convention.

As indicated above, the safeguard in the first limb of Article 5 § 3, whereby everyone arrested or detained in accordance with the provisions of paragraph 1 (c) must be brought promptly before a judge, applies equally to preventive detention under the second limb of Article 5 § 1 (c) (see Lawless, cited above, § 14). Article 5 § 3 includes a procedural requirement for the ‘judge or other officer authorised by law’ to hear the individual brought before him or her in person, and a substantive requirement for the same officer to review the circumstances militating for or against detention — that is, whether there are reasons to justify detention — and to order release if there are no such reasons (see, for example, Buzadji, cited above, § 98, with further references). The initial automatic review of arrest and detention must be capable of examining lawfulness issues and whether or not the reasonable suspicion that the arrested person has committed an offence persists, or in other words, ascertaining that the detention falls within the permitted exception set out in Article 5 § 1 (c) (ibid., § 99) .

It follows directly from the wording of Article 5 § 3 that if the person is not ‘arrested or detained’ but has been released, there is no obligation to bring him or her promptly before a judge. This understanding is supported by the reference in Lawless (cited above, § 14, quoted in paragraph 104 above) to two options when bringing a person before a judge: either for the purpose of examining the question of deprivation of liberty or for the purpose of deciding on the merits of a criminal charge. Moreover, as the Court pointed out in Brogan and Others (cited above, § 58):

In order to determine whether release has taken place at a time before such prompt judicial control, the starting point should be the manner in which the requirement of ‘promptness’ in Article 5 § 3 has been applied in the Court's case-law. While promptness has to be assessed according to the special features of each case (see, among other authorities, Aquilina v. Malta [GC], no. 25642/94, § 48, ECHR 1999-III), the strict time constraint imposed by this requirement leaves little flexibility in interpretation; otherwise there would be a serious weakening of a procedural guarantee to the detriment of the individual and a risk of impairing the very essence of the right protected by this provision (see, for example, McKay v. the United Kingdom [GC], no. 543/03, § 33, ECHR 2006-X).

While any period in excess of four days is prima facie too long, in certain circumstances shorter periods can also be in breach of the promptness requirement (see inter alia, Magee and Others v. the United Kingdom, nos. 26289/12 and 2 others, § 78, ECHR 2015 (extracts)). Thus, for example, in İpek and Others v. Turkey (nos. 17019/02 and 30070/02, §§ 36–37, 3 February 2009) and Kandzhov v. Bulgaria (no. 68294/01, §§ 66–67, 6 November 2008) the Court found that periods of three days and nine hours and three days and twenty-three hours respectively could not be considered ‘prompt’.

It is also relevant for the assessment of ‘promptness’ to bear in mind that when bringing a detainee before the judge under the first limb of Article 5 § 1 (c), the Court has held that the object of questioning during detention under this sub-paragraph is to further the criminal investigation by confirming or dispelling the concrete suspicion grounding the arrest (see, for example, John Murray v. the United Kingdom, 8 February 1996, § 55, Reports 1996-I). This implies that a certain period between the arrest and the prompt appearance before the judge may be necessary for the investigating authorities to obtain evidence to substantiate that there are reasons to justify the detention.

Such considerations do not come into play for a detainee under the second limb of Article 5 § 1 (c) where there is no criminal investigation and no suspicion to confirm or dispel. The facts constituting the risk of committing an offence must already be established at the time when the person is detained in order to prevent his or her committing this offence. It therefore appears that the period needed between a person's detention for preventive purposes and the person's prompt appearance before a judge or judicial officer should be shorter than in the case of pre-trial detention in criminal proceedings. Whereas for a person deprived of his or her liberty ‘on reasonable suspicion of having committed an offence’ under the first limb of Article 5 § 1 (c), any period in excess of four days is prima facie too long (see paragraph 131 above) a significantly shorter period might be required in order to be viewed as ‘prompt’ in the case of a person deprived of his or her liberty outside the context of criminal proceedings ‘when it is reasonably considered necessary to prevent his committing an offence’.

Having regard to these considerations, including the need to assess promptness according to the special features of each case, the Court finds 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.

As to the requirement in the second limb of Article 5 § 3 that everyone arrested or detained in accordance with Article 5 § 1 (c) ‘shall be entitled to trial within a reasonable time or to release pending trial’, it should be noted that preventive detention is characterised by the absence of a criminal charge. It does not follow from the fact of resorting to preventive detention that the authorities have any intention of charging the person in question or carrying out further investigations in order to verify whether a charge can be brought. Where no criminal proceedings are initiated and no trial is to be held, the requirement in question cannot apply to preventive detention.

Another safeguard which equally applies to preventive detention under the second limb of Article 5 § 1 (c) is Article 5 § 5, according to which ‘everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation’. The Court reiterates that in order to find a violation of Article 5 § 5, it must be established that the finding of a violation of one of the other paragraphs of Article 5 could not give rise to an enforceable claim for compensation before the domestic courts (see Stanev v. Bulgaria [GC], no. 36760/06, § 184, ECHR 2012). In a number of cases the Court has found a violation of this provision where a victim of deprivation of liberty effected in conditions contrary to paragraphs 1, 2, 3 or 4 of Article 5 did not have an enforceable claim for compensation in the domestic courts (see, among many other examples, Brogan and Others, cited above, § 67; Fox, Campbell and Hartley v. the United Kingdom, 30 August 1990, § 46, Series A no. 182; Stanev, cited above, §§ 184–91). It follows from the lawfulness requirement contained in paragraph 1 of Article 5 (see paragraph 74 above) that judicial review of the lawfulness of the detention is inherent in the examination of such a claim.

Having regard to the considerations above, the Grand Chamber finds that it is necessary to clarify and adapt its case-law under sub-paragraph (c) of Article 5 § 1, and in particular to accept that the second limb of that provision can be seen as a distinct ground for deprivation of liberty, independently of the first limb. Although the ‘purpose’ requirement under Article 5 § 1 (c) applies also to deprivation of liberty under the second limb of this provision, this requirement should be applied with a degree of flexibility so that the question of compliance depends on whether the detainee, as required by Article 5 § 3, is intended to be brought promptly before a judge to have the lawfulness of his or her detention reviewed or to be released before such time. Furthermore, in the event of failure to comply with the latter requirement, the person concerned should have an enforceable right to compensation in accordance with Article 5 § 5. In other words, subject to the availability under national law of the safeguards enshrined in Article 5 §§ 3 and 5, the purpose requirement ought not to constitute an obstacle to short-term detention in circumstances such as those at issue in the present case.

The applicants were detained under section 5(3) of the Police Act, by virtue of which the police may detain a person in order to avert any risk of disturbance of public order or any danger to the safety of individuals or public security. They were never charged, no criminal investigation or proceedings were initiated against them, and their detention was not effected for the purpose of bringing them before a judge. On the contrary, they were detained purely for preventive purposes. Under domestic law, such a detention could as a general rule last no longer than six hours and would only be justified for as long as it was necessary to avert the risk or danger in question.

The first applicant was released after seven hours and twenty-one minutes, the second applicant after seven hours and thirty-seven minutes, and the third applicant after seven hours and forty-four minutes. In the circumstances of the present case, notably the fact that altogether 138 persons were arrested on the same day, the Court can accept that the applicants were released at a time before it became necessary to bring them before a judge in accordance with the promptness requirement under Article 5 § 3 of the Convention as described above (see paragraphs 133-134).

The applicants, who were released before the paragraph 3 safeguard came into play, had the opportunity to, and did, bring the question of the lawfulness of their detention before the courts under section 469 of the Administration of Justice Act (see paragraph 17 above). Furthermore, they could have been granted compensation had an award been justified from the point of view of Article 5 of the Convention. The relevant procedure was thus consistent with Article 5 § 5.

Having established that the conditions for applying a flexible interpretation of the ‘purpose’ requirement in the present case are fulfilled, the Court considers that the applicants' detention under section 5(3) of the Danish Police Act can be said to fall under the second limb of Article 5 § 1 (c).

It now needs to be determined whether the applicants' detention was justified under the latter provision.

Firstly, the Court will examine whether the detention was ‘lawful’ in the sense of conforming to the substantive and procedural rules of national law (see, for example, Amuur, cited above, § 50). Section 5(1) of the Police Act obliges the police to avert any risk of disturbance of public order and any danger to the safety of individuals and public security. Section 5(3) of the Act authorises the police to detain persons causing such a risk, if necessary. The same provision specifies that the ‘detention must be as short and moderate as possible and should not extend beyond six hours where possible’.

The relevant preparatory notes state that the period in question should be reckoned from the time when the detention was carried out. Any time spent on transfer to a police station must therefore be included in the calculation of the detention period. Moreover, the six-hour period should normally only be exceeded in connection with actions involving the detention of large numbers of persons when the time spent on transfer to a police station and registration and identification of detainees would render it impossible in practice to observe the six-hour rule (see paragraph 30 above).

The applicants maintained that their detention had been unlawful under domestic law since it had exceeded six hours and had not concerned an action involving the detention of a large number of persons. On the contrary, in their submission, the first applicant had been the only person detained from a large group, while the second and third applicants had been detained together with three or four others from another large group.

It appears from an examination of the domestic proceedings that the police took due account of the six-hour limit in their strategy. Thus, the memorandum prepared by the strategic commander of the events, Chief Inspector B.O., stated that the risk of fights was increased by the fact that the match would not start until 8 p.m., leaving considerable time for each group to consume alcoholic beverages beforehand. In order to prevent hooligan clashes, the police had made a plan to engage in proactive dialogue with the spectators from 12 noon, when they started to arrive in the city centre. The police had planned that, in the event of any clashes, they would charge the instigators of fights with criminal offences and arrest them under section 755 of the Administration of Justice Act or, should that not be possible, they would detain the instigators by virtue of section 5(3) of the Police Act. In view of the time-limit, they sought to avoid resorting to detention early in the day because any person so detained would otherwise have had to be released during or immediately after the match and would then have been able to head for the city centre again and resume their involvement in brawls (see paragraph 20 above). Moreover, from Chief Inspector B.O.'s statement before the City Court it appears that in their implementation of the plan the police continuously assessed the situation. The continuing violence made it necessary to exceed the six-hour limit. The police started releasing detainees after midnight, when the situation in central Copenhagen had calmed down and the resumption of any fighting was deemed unlikely (see paragraph 21 above).

The domestic courts took these factors into account and found that the applicants' detention had been lawful under section 5(3) of the Police Act. In its judgment of 25 November 2010, the City Court stated that whilst the legislative intent of the provision in question had been to extend a detention measure beyond six hours only in exceptional situations, the over-running of the time-limit in the present case had been justified in view of the aim of the arrest, together with the organised nature, extent and duration of the disturbances, as well as the moderate length of the specific periods by which the maximum periods had been exceeded.

In this connection it should be reiterated that it is primarily for the national authorities, notably the courts, to interpret and apply domestic law, in the present instance section 5(3) of the Police Act. Save in the event of arbitrariness or manifest unreasonableness, it is not for the Court to question the interpretation of the domestic law by the national courts (see, among other authorities, Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 149, 20 March 2018). The Court, finding no indication that the domestic courts' assessment was arbitrary or manifestly unreasonable in this respect, accepts that the applicants' detention was ‘lawful’ in the sense of conforming to the substantive and procedural rules of national law.

When their detention was reviewed by the City Court and the High Court, the three applicants were heard, represented by counsel, as were three witnesses on their behalf. Chief Inspector B.O. and four other representatives of the police were also heard.

It appears from the testimonies of Chief Inspector B.O. (see paragraph 21 above) and Police Constable P.W. (see paragraph 22 above), and to some extent from those of the applicants (see paragraph 19 above), that the three applicants had been together with a group of around fifty Danish football fans in a pub (forty-five according to the applicants, and up to sixty according to Chief Inspector B.O.). The bar was located approximately 700 metres from Amagertorv Square (see paragraph 22 above) on the Strøget pedestrian shopping street in the centre of Copenhagen, where the first big fight broke out at 3.41 p.m. The three applicants, together with the group, left the pub and went through Strøget towards Amagertorv Square. The police followed them. Close to Amagertorv Square, police personnel carriers had been parked crosswise to prevent the group from colliding with the Swedish football fans. They were all taken down a side street (Valkendorffsgade).

There, the second and third applicants were detained at 3.50 p.m., after Police Constable P.W. had specifically seen them talking with an activist from a local faction and issuing orders to other hooligans from Aarhus. Moreover, he stated that he had worked in the special patrol for four years and had met the applicants several times at previous fights in connection with football matches, where he had seen them take part in fights and heard them shout ‘White Pride Hooligan’ (see paragraph 22 above). The City Court also observed that the applicants were known to the police for having been detained several times previously in connection with similar football events (see paragraph 25 above).

As can be understood from Police Constable M.W.'s testimony (see paragraph 23 above), the first applicant was detained at 4.45 p.m. at Axeltorv Square close to Tivoli Gardens, after a man had contacted M.W. saying that three people, including the first applicant, whom he had pointed out from a very short distance, were calling various friends, telling them to meet up at the entrance to Tivoli Gardens and try to start a fight with some Swedish supporters. The witness and his colleague had considered the person making the report to be highly credible. Furthermore, the City Court noted that the first applicant had been detained several times previously in connection with similar events (see paragraph 25 above).

Relying on these statements, and other evidence before it, the City Court and the High Court found it established that the first large fight between Danish and Swedish football fans had commenced at Amagertorv Square at 3.41 p.m., that this had entailed a concrete and imminent risk of disturbance of public order, that the police had been under a duty to attempt to prevent such a disturbance under section 5(1) of the Police Act, and that the police had not exceeded their powers by detaining the applicants under section 5(3) of the Police Act.

As the Court has consistently emphasised in its case-law, the national authorities are better placed than the international judge to evaluate the evidence in a particular case (see, among other authorities, Winterwerp, cited above, § 40; Weeks v. the United Kingdom, 2 March 1987, § 50, Series A no. 114; Sabeva v. Bulgaria, no. 44290/07, § 58, 10 June 2010; Witek v. Poland, no. 13453/07, § 46, 21 December 2010; and Reiner v. Germany, no. 28527/08, § 78, 19 January 2012). By virtue of the subsidiarity principle, it must also be cautious in taking on the role of a first-instance tribunal of fact, where this is not rendered unavoidable by the circumstances of a particular case. Though the Court is not bound by the findings of domestic courts and remains free to make its own appreciation in the light of all the material before it, in normal circumstances it requires cogent elements to lead it to depart from the findings of fact reached by the domestic courts (see, for example, Giuliani and Gaggio v. Italy [GC], no. 23458/02, § 180, ECHR 2011 (extracts), and Austin and Others, cited above, § 61).

The Court sees no reason to question the above-mentioned findings of fact reached by the domestic courts to the effect that the applicants were detained because the police had sufficient reason to believe that they had incited others to start a fight with Swedish football fans in the centre of Copenhagen, and thus caused a concrete and imminent risk of disturbance of public order or of danger to the safety of individuals or public security. It discerns no evidence of bad faith or neglect on the part of the national authorities in applying the relevant legislation. On the contrary, as Chief Inspector B.O. explained before the domestic court, the police's intention was, first, to talk to the various groups in an attempt to calm them down. After the first fights, it was planned that only the instigators should be detained. The assessment in this regard was to be made on the basis of the actual behaviour of those concerned, and the premise was that no persons would be detained who did not act as instigators (see paragraph 21 above). However, all three applicants were considered instigators (see, in particular, the statements of police officers P.W. and M.W. in paragraphs 22 and 23 above). The domestic courts accepted the facts as presented by the police officers. These findings were neither arbitrary nor manifestly unreasonable, and the Court lacks any objective reasons, let alone cogent evidence, to call into question the assessment made at national level.

Turning next to the requirement in Article 5 § 1 (c) for the offence to be concrete and specific as regards, in particular, the place and time of its commission and its victim(s), the Court notes that section 5(1) and (3) of the Police Act did not specify any criminal acts which the applicants should refrain from committing.

However, as the Government pointed out in the context of hooligan brawls and the related risk of disturbance of public order and danger to the safety of individuals and public security, a number of provisions on punishable acts specified which criminal acts the applicant should refrain from committing. These included the obligation not to instigate fights or exhibit any other form of violent behaviour likely to disturb public order, as provided in section 3 of the Executive Order on Police Measures to Maintain Law and Order, a breach of which constituted a criminal offence punishable by a fine (see section 18 of the Executive Order). Moreover, Article 134a of the Penal Code set out the obligation not to take part in fights or become involved in other serious breaches of the peace in a public place where such actions took place by mutual consent or with several persons acting together; a breach of this provision was punishable by imprisonment for a term not exceeding one year and six months. Finally, Articles 244, 245 and 291 of the Penal Code concerned, respectively, violence, aggravated violence, and the obligation to refrain from committing criminal damage.

The Court considers that the findings of fact reached by the domestic courts in the present case (see paragraphs 150–153 above) should be able to satisfy an objective observer that, at the time when the applicants were detained, the police had every reason to believe that they were organising a brawl between football hooligans in the centre of Copenhagen in the hours before, during or after the football match on 10 October 2009, which could have caused considerable danger to the safety of the many peaceful football supporters and uninvolved third parties present at the relevant time. Indeed, as it was considered that the second and third applicants and the first applicant respectively had been prevented from instigating or continuing to instigate a brawl between football hooligans at Amagertorv Square at 3.50 p.m. and in front of Tivoli Gardens at 4.45 p.m. on the relevant day, the place and time could be very precisely described. Likewise, the victims could be identified as the public present at those places at the times mentioned.

The Court is therefore satisfied that the facts established by the national courts sufficiently indicated that the ‘offence’ could be considered ‘specific and concrete’ for the purposes of Article 5 § 1 (c).

It is also satisfied that the authorities furnished evidence that the applicants would in all likelihood have been involved in that offence had its commission not been prevented by their detention.

The necessity criterion that applies in respect of certain provisions of Article 5 § 1, including the first limb of sub-paragraph (c), has been mentioned in paragraph 77 above, notably the authorities' obligation to consider ‘alternative means’. With a view to its examination of the preventive detention at issue in the present case, the Court considers it useful to elaborate on this criterion in respect of the second limb. In its view, less severe measures have to be considered and found to be insufficient to safeguard the individual or public interest which might require that the person concerned be detained. Preventive detention cannot reasonably be considered necessary unless a proper balance is struck between the importance in a democratic society of preventing an imminent risk of an offence being committed and the importance of the right to liberty. In order to be proportionate to such a serious measure as deprivation of liberty, the concrete and specific ‘offence’ referred to under the second limb of Article 5 § 1 (c) must also be of a serious nature, entailing danger to life and limb or significant material damage. It follows in addition that the detention should cease as soon as the risk has passed, which requires monitoring, the duration of the detention being also a relevant factor (on the latter point, see, for example, Schwabe and M.G., cited above, § 78).

The Court accepts that in the case under consideration, the concrete and specific offence described above (see paragraph 158), namely instigating a hooligan brawl in the centre of Copenhagen at, respectively, Amagertorv Square at 3.50 p.m. and in front of Tivoli Gardens at 4.45 p.m., posed considerable danger to the safety of all the peaceful football supporters and uninvolved third parties present. The Court therefore considers that the offence which the authorities sought to avert was undoubtedly a serious one.

The Court further observes that according to the evidence given by Chief Inspector B.O., the strategic commander of the police operation, to the City Court (see paragraph 21 above) the manoeuvre tactics to prevent such clashes had been to engage in proactive dialogue with the fans/spectators from 12 noon, when they started to arrive, and in the event of any clashes, to detain only the instigators. Moreover, although there were several fights up until the start of the match, the manoeuvre tactics continued to be a dialogue to ensure that the large number of spectators behaved and made their way to the stadium to watch the match. In his statement (see paragraph 22 above) Police Constable P.W. confirmed that at the beginning there had been a good atmosphere and no violence. He and a colleague had simply ‘kept an eye’ on the Danish football fans in the bar. When they had received reports that Swedish and Danish fans were to meet and fight and the group had started leaving the bar, walking down the pedestrian shopping street towards Amagertorv Square, approximately 700 metres away, where the first fight had broken out at 3.41 p.m., the police had followed the Danish group and had reported back to the control room. Chief Inspector B.O. stated that he did not know the number of persons involved directly in the fight, but had understood from local reports that there were about fifty to sixty persons on either side.

It thus appears to the Court that, before the first fight broke out at 3.41 p.m. at Amagertorv Square, the police had applied a very careful approach with lenient measures to prevent hooligan clashes.

Moreover, even when faced with the situation arising when a group of approximately fifty Danish football fans left the pub and went directly towards the fight at Amagertorv Square, the police initially attempted to apply less stringent measures to avoid a confrontation. They parked their personnel carriers crosswise to prevent the Danish group of football fans from colliding with the Swedish group. Thereafter, they turned the group of Danish football fans around and took them down a side street to register and search them.

As established by the national courts, it was at that moment of intense action, in the immediate vicinity of the on-going fight at Amagertorv Square, that the second and third applicants were considered inciting others to take part in the fighting. Those two applicants were therefore detained at 3.50 p.m., in full compliance with the manoeuvre tactics aimed at detaining only the instigators (see paragraph 163 above). According to Police Constable P.W. (see paragraph 22 above) the purpose of detaining those two applicants was to ensure calm and prevent clashes, an approach which apparently succeeded because it became obvious that the hooligans from Aarhus were missing someone to take control.

The Court also notes that four other alleged hooligans from Copenhagen were detained at the same time, leaving around forty-four persons from the Danish group at liberty in the side street, including the first applicant. In the Court's view, this shows that the police did not resort to excessive detentions, but took care to detain only those who, in their assessment, posed a risk of disturbance of public order and a danger to the safety of individuals and public security.

The first applicant left the side street and apparently continued to another bar. It was not until 4.45 p.m. — after, as established by the national courts, he had been heard inciting others to take part in a fight, this time in front of Tivoli Gardens — that he was detained.

In these circumstances, the Court sees no reason to cast doubt on the City Court's conclusion in its judgment of 25 November 2010 that ‘less radical measures could not be deemed sufficient to avert the risk of additional unrest in those circumstances’ and that ‘the Copenhagen Police did not exceed their powers by detaining [the applicants] under section 5(3) of the Police Act on that basis’. That finding was upheld on 6 September 2011 by the High Court of Western Denmark, and leave to appeal to the Supreme Court was subsequently refused.

The Court lacks any cogent grounds to depart from the national courts' findings, and is therefore satisfied that the applicants' detention could reasonably be considered ‘necessary’ to prevent their instigating or continuing to instigate football hooliganism, given that less stringent measures would not have sufficed.

As regards the duration of the detention at issue, according to the City Court's assessment, with which the Court sees no reason to disagree:

The Court observes in addition that there was a careful monitoring of whether the risk had passed. In particular, it notes the testimony provided by Chief Inspector P.J. (see paragraph 24 above), who was responsible for upholding the detentions and releasing the detainees, and for verifying that standard procedures were complied with, including making sure that the six-hour rule was observed. As is apparent from his statement, there was a constant dialogue between him, the control room supervisor and the police in the streets, enabling him to assess when he should start releasing the detainees.

Having regard to the above-mentioned considerations, the Court is also satisfied that the applicants were released as soon as the imminent risk had passed, that it lasted for no longer than was necessary to prevent them from taking further steps towards instigating a hooligan brawl in the centre of Copenhagen on 10 October 2009, and that this risk assessment was sufficiently monitored.

Accordingly, the Court considers that the domestic courts struck a fair balance between the importance of the right to liberty and the importance of preventing the applicants from organising and taking part in a hooligan brawl.

In the light of the above, the Court concludes that the applicants' preventive detention complied with sub-paragraph (c) of Article 5 § 1, and that accordingly, there has been no violation of Article 5 § 1 of the Convention.