Competing provisions

Article 5 of the ECHR is a lex specialis in relation to Article 2 of Additional Protocol No. 4 to the ECHR (freedom of movement).⁸⁹⁹ There is a difference between these two rights in respect of the degree and intensity of restrictions on personal freedom. If it is possible to apply the principle of protection of human rights from Article 5 of the ECHR then it is not necessary to separately examine Article 2 of the Additional Protocol No. 4 to the ECHR.⁹⁰⁰ Given the fact that there are different targets of protection, a violation of Article 5, paragraph 1 to the ECHR is not a justified reason for waiving the right to have a violation of Article 5, paragraph 4 to the ECHR (habeas corpus) examined.⁹⁰¹ Article 5, paragraph 4 is lex specialis in relation to Article 13 of the ECHR.⁹⁰² If it is already established that there was a violation of Article 5, paragraph 1 of the ECHR, the right of examining whether there was a violation of Article 5, paragraphs 2 and 5 of the ECHR may be waived.⁹⁰³ As to the issue of whether the originally lawful detention measure has became unlawful over time, the case shall no longer be considered under Article 5, paragraph 1(c) but under Article 5, paragraph 3 of the ECHR.⁹⁰⁴ The right to a trial within a reasonable time, according to Article 6, paragraph 1 of the ECHR, is more of a general right than the right to a decision within a reasonable time without delay or to release from detention according to Article 5, paragraph 3 of the ECHR. The right to a fair trial under Article 6, paragraph 1 to the ECHR is applied from the moment charges have been filed within the meaning of the ECHR.⁹⁰⁵ As soon as the charges are filed in that regard, Article 6, paragraph 3(a) suppresses the regulations under Article 5, paragraph 2 of the ECHR since at that moment the accused must prepare his defence, which is more demanding than the right to prepare the defence against the pronounced measure of detention.⁹⁰⁶