3 Legal basis in national law Detention is a serious limitation to the right to liberty and security and must respect strict safeguards. Otherwise, the deprivation of liberty is unlawful or arbitrary. To help analyse these safeguards established by the European and international legal framework, this report has grouped them in five categories (Figure 4). Chapters 2–6 deal with each of them in turn. Under international and European law, the first requirement for any exception to the right to liberty and security is that any deprivation or restriction must have a clear legal basis. If national law does not envisage the possibility of detention, it is unlawful. This chapter deals with the requirement that any deprivation of liberty must be prescribed by law. Article 5 (1) of the ECHR provides that “no one shall be deprived of his liberty” unless “in accordance with a procedure prescribed by law”. It is also a requirement under other international human rights instruments, such as the International Covenant on Civil and Political Rights (ICCPR) (Article 9 (1)) or the CRC (Article 37 (b)). This means that national law must lay down substantive and procedural rules prescribing when and in what circumstances an individual may be detained. Similarly, pursuant to Article 52 (1) of the Charter, any limitation on the exercise of a Charter right, namely the right to liberty and security in this context, must be provided for by law. Figure 4: Five conditions that deprivation of liberty must meet not to be unlawful and arbitrary Fundamental rights safeguards CLEAR LEGAL BASIS IN NATIONAL LAW Based on allowed grounds Necessary and proportionate Respects procedural safeguards Conditions are humane and dignified Source: FRA, 2017 33