The right to liberty and security
Article 5 (1) of the ECHR protects the right to liberty
and security, providing an exhaustive list of permissible
exceptions, which Chapter 3 describes.
To be permissible under the convention, it also follows
from ECtHR case law that detention must be carried out
in good faith; must be closely connected to the ground
of detention relied upon; be in a place and under conditions that are appropriate; and be for the shortest
period of time that is reasonably required to fulfil the
purpose of detention.54 In addition, when assessing the
legality of migration-related detention, the ECtHR looks
at whether or not a less intrusive measure could have
been imposed before detention (see Chapter 5).
Table 4:
2.1.3. International law
International human rights law affirms that no one must
be subject to arbitrary arrest or detention. The right to
liberty and security and/or the prohibition of arbitrary
detention appears in a number of international human
rights instruments, beginning with the 1948 Universal Declaration of Human Rights (UDHR) and continuing through core UN human rights conventions. Table 4
lists core provisions of the legally binding international
instruments relating to detention adopted under the
aegis of the UN, which apply to all persons regardless
of their age.
Main human rights law provisions on deprivation of liberty and prohibition of arbitrary detention
Instrument
Main provision
Ratification
UDHR,
Articles 3, 9
“Everyone has the right to […] liberty and security of person.”
“No one shall be subjected to arbitrary arrest, detention
or exile.”
UN General Assembly
resolution, having
general customary
international law
character
ICCPR,
Article 9 (1)
“Everyone has the right to liberty and security of person. No
one shall be subjected to arbitrary arrest or detention. No one
shall be deprived of his liberty except on such grounds and in
accordance with such procedure as are established by law.”
All EU Member States
ICRMW,
Article 16 (4)
“Migrant workers and members of their families shall
not be subjected individually or collectively to arbitrary
arrest or detention; they shall not be deprived of their
liberty except on such grounds and in accordance
with such procedures as are established by law.”
No EU Member States
CRPD,
Article 14 (1)
“States Parties shall ensure that persons with
disabilities, on an equal basis with others:
a) Enjoy the right to liberty and security of person;
b) Are not deprived of their liberty unlawfully or arbitrarily,
and that any deprivation of liberty is in conformity
with the law, and that the existence of a disability
shall in no case justify a deprivation of liberty.”
All EU Member States
except Ireland
1951 Geneva
Convention,
Article 31 (1)
“The Contracting States shall not impose penalties, on
account of their illegal entry or presence, on refugees
who, coming directly from a territory where their life or
freedom was threatened in the sense of Article 1, enter or
are present in their territory without authorization, provided
they present themselves without delay to the authorities
and show good cause for their illegal entry or presence.”
All EU Member States
Source: FRA, 2017
54 ECtHR, Saadi v. the United Kingdom [GC], No.13229/03,
29 January 2008, para. 74; A. and Others v. the United
Kingdom [GC], No. 3455/05, 19 February 2009, para. 164;
Louled Massoud v. Malta, No. 24340/08, 27 July 2010,
para. 62; Thimothawes v. Belgium, No. 39061/11, 4 April
2017, para. 64.
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