Here, asylum law experts Matt Ingham and William Craig Cohen explain the detail and legal nuance to these phrases, and what your legal rights might be under Articles 5 and 6. This is particularly relevant for those who have been imprisoned or prosecuted for political or abusive reasons.
Human rights
The European Convention on Human Rights (ECHR)[1] provides a number of basic rights for all individuals who find themselves within the jurisdiction (meaning they do not need to be citizens) of most European countries.[2]
The European Court of Human Rights (ECtHR) in Strasbourg provides a court of final appeal in human rights cases. This means the ECtHR can be accessed (and can only be accessed) after your case has “exhausted” all available domestic remedies.[3]
However, the ECtHR also makes case law, which domestic courts in Member States (including the UK) follow when they are asked to apply ECHR human rights.
We consider here the significance of Articles 5 and 6 of the ECHR. Specifically, the right to liberty and security (Article 5) and the right to a fair trial (Article 6).
All of the rights protected by the ECHR are important, but while other Articles (such as the rights to private and family life, freedom of thought, conscience and religion, and freedom of expression) seek to enshrine and enforce humanist, individualistic or democratic values, Articles 5 and 6 have a lot more to say about process. Articles 5 and 6 endeavour to create and harmonise procedural standards in criminal justice across Member States.
Article 5
The right to liberty is a highly qualified right, and states are of course able to detain in prescribed circumstances. However, that detention must always be lawful (meaning according to the law of the relevant Member State), and that detention must meet one of the following conditions:
- Follow conviction by a competent court;
- Follow an arrest under a court order or a legal obligation to detain;
- Be in anticipation of a trial on reasonable suspicion of a person having committed an offence or when reasonably necessary to prevent that person from committing an offence or fleeing after having done so;
- Be for the educational supervision of a minor, by lawful order;
- Be for the prevention of the spreading of infectious diseases, necessary detention of persons of unsound mind, alcoholics or drug addicts or vagrants; or
- Be to prevent a person’s unauthorised entry into the country or where action is being taken with a view to deportation or extradition.
Article 5 also expressly includes a requirement that any person who is arrested is informed promptly of the reasons for the arrest and of any charges against them, in a language that they can understand.
It also states that a detained person must be brought before a judge promptly and is entitled to a trial within a reasonable time, or to release pending trial. Such a person must be entitled to proceedings by which the lawfulness of their detention is decided and their release ordered if their detention is not lawful.
Article 6
Just like Article 5, the “right to a fair trial” from Article 6 contains some specific minimum rights:
- Judgment must be public, although the press and public may be excluded from all or part of the trial to preserve morals, public order or national security or where the interests of minors is involved;
- You must be given adequate time and facilities to prepare a defence;
- You must have access to legal assistance (i.e. a lawyer);
- It must be possible to examine the witnesses against you and to summon your own witnesses; and
- You have a right to an interpreter if you cannot speak the language of the court.
The Council of Europe (the organisation that created the ECHR), produces guides on Articles 5[3] and 6,[4] that contain additional detail.
Prosecution vs Persecution
All of the above principles can be found in constitutions all over the world, and are already found in the English common law. However, the international nature of the ECHR and its broad scope of applicability means arguments relying on it can be deployed in both extradition and asylum proceedings in the UK, and in relation to events that took place abroad.
Despite the universality of the ECHR requirements, even supposedly democratic regimes may use criminal prosecution as a method of choice for persecution.
The UNHCR[5] recognises that the distinction between a fugitive and a victim or potential victim of injustice can “occasionally be obscured”. Section 31(3) of the Nationality and Borders Act 2022 now expressly sets out in domestic UK law that “disproportionate or discriminatory”[6] prosecutions or punishments can be persecutory.
Often the target for such persecution is a prominent or wealthy individual, whose profile can be smeared and whose assets can be seized. Accusations and criminal convictions then ‘follow’ an individual around the world in the form of extradition requests or Interpol notices.
Some famous examples of persecutory prosecutions include Russian whistle-blower Sergei Magnitsky[7] and opposition figure Alexei Navalny.[8] Both of whom were arrested and detained in procedures involving serious irregularities, and were later killed in detention.
ETAs – A significant change in the treatment of European citizens visiting the UK
From 2 April 2025, European citizens (who are normally able to travel to the UK without a visa for up to six months[9]) are now required to acquire an electronic travel authorisation (ETA) to travel to the UK.
A significant change from the system that existed before ETAs, is that a self-declaration of any historic criminality is required when applying for an ETA. It is our view that any historic convictions are likely to be met by automatic refusal.
If you need to travel to the UK as a European citizen and you have a past conviction, please contact Matt Ingham (mingham@phb.co.uk) or Kathryn Bradbury (kbradbury@phb.co.uk) and we will be able to advise and assist you with a visa application.
Conclusion
If you have been subjected to persecution by a European or any other state, including an abusive criminal prosecution, we are able to advise and assist you.
We are used to developing inter-disciplinary defences for our clients with external specialist extradition lawyers and with our in-house criminal, regulatory and media teams.
As asylum lawyers with knowledge of extradition law, we are able to advise you if you have been persecuted by way of a criminal prosecution in a foreign state, including where proceedings have taken place in a European state.
References
[1] https://www.echr.coe.int/documents/d/echr/convention_ENG
[2] Specifically, the Member State of the Council of Europe (NB this is not the same as the European Union) https://www.coe.int/en/web/portal/members-states
[3] This often means your case must have been considered by the highest domestic court available in a Member State. In the UK, that’s usually the Supreme Court, in France it would be the Cour de cassation, and so on for other European countries, but it can also mean you have tried to exercise all your available appeal rights and these have all been denied or exhausted.
[3] https://rm.coe.int/1680700ab0
[4] https://rm.coe.int/1680304c4e
[5] The United Nations High Commissoner for Refugees, which is the UN agency mandated to protect refugees
[6] https://www.legislation.gov.uk/ukpga/2022/36/section/31
[7] https://www.bbc.co.uk/news/world-europe-49481471
[8] https://www.bbc.co.uk/news/world-europe-68315943
[9] https://www.gov.uk/guidance/visiting-the-uk-as-an-eu-eea-or-swiss-citizen
