We briefly mention the case of Kasparov v Russia [2016] ECHR 849 because it provides a summary of the ECtHR’s latest thinking as to what amounts to a deprivation of liberty. Mr Garry Kasparov, the Russian chess grandmaster, was prevented from leaving Sheremetyevo airport to travel to an opposition rally. The government denied that he was deprived of liberty. According to the ECtHR:

"36. In assessing whether someone has been “deprived of his liberty” within the meaning of Article 5 of the Convention, the relevant principles are as follows: 

(i) The starting-point must be his concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question ... The difference between deprivation and restriction of liberty is one of degree or intensity, and not one of nature or substance 

...

(ii) The requirement to take account of the “type” and “manner of implementation” of the measure in question enables the Court to have regard to the specific context and circumstances surrounding types of restriction other than the paradigm of confinement in a cell. Indeed, the context in which the measure is taken is an important factor, since situations commonly occur in modern society where the public may be called on to endure restrictions on freedom of movement or liberty in the interests of the common good … 

(iii) It is often necessary to look beyond the appearances and the language used and concentrate on the realities of the situation. The characterisation or lack of characterisation given by a State to a factual situation cannot decisively affect the Court’s conclusion as to the existence of a deprivation of liberty … 

(iv) The right to liberty is too important in a “democratic society”, within the meaning of the Convention, for a person to lose the benefit of the protection of the Convention for the single reason that he gives himself up to e taken into detention. Detention may violate Article 5 of the Convention even though the person concerned has agreed to it … For the same reason, if person initially attends a place of detention such as a police station of his own free will … or agrees to go with the police for questioning …, this is not in itself determinative of whether that person has been deprived of his liberty. 

(v) The Court will also examine the degree of coercion involved. If, upon an examination of the facts of the case, it is unrealistic to assume that the applicant was free to leave, this will normally indicate that there has been a deprivation of liberty … This may be the case even when there is no direct physical restraint of the applicant, such as by handcuffing or placement in a locked cell … 

(vi) Article 5 § 1 of the Convention may apply even to deprivations of liberty of a very short length …”

The Court accepted that Mr Kasparov was deprived of liberty for the following reasons.

When he attempted to check-in at 8.30 a.m., he was asked to follow a police officer from the check-in hall; he was taken to a separate room at the airport; his ticket and passport were seized; he remained in that room, while being questioned and searched, until 1.30 p.m.; and during that time, an armed guard standing in the doorway prevented him from leaving. So he was under the exclusive control of the police from 8.30 a.m. to 1.30 p.m.