Towards a More Restrictive Interpretation of the Right to Liberty in Article 5(1) ECHR?

Abstract

The contribution concerns the interpretation by the European Court of Human Rights (ECtHR) of the right to liberty in Article 5 (1) of the European Convention on Human Rights (ECHR). It argues that the Court has interpreted the right to liberty restrictively by way of public security grounds, with the result that more room is given to interference by state authorities at the expense of individual protection, compared to earlier interpretations. This assertion is supported by the analyses of four Grand Chamber cases the author believes stands for a restrictive interpretation of Article 5 (1), either through a narrow interpretation of its scope, or a wide interpretation of its exceptions. The use of present-day conditions in the Court’s reasoning is examined to identify their role in the development towards a restrictive interpretation of the right to liberty, and it is argued that the restrictive approach is a variation of the method of ‘evolutive interpretation’. On the basis of the analyses, it is finally argued that the list of permissible detention grounds in Article 5 (1) is no longer exhaustive.