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
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