1. Scope of the Right to Personal Liberty The right to personal liberty is one of the oldest human rights. The term ‘personal liberty’ is often confused with ‘liberty’ or ‘freedom’ in a much broader sense, including freedom of movement, expression, religion or the liberal freedom to do whatever one likes as long as one does not interfere with the freedom of others. The concept of ‘personal liberty’, however, actually relates to a very specific aspect of human freedom, namely the freedom of bodily movement in the narrowest sense.1 An interference with personal liberty results only from the forceful detention of a person at a certain, narrowly bounded location, such as a prison or other detention facility. A person is deprived of personal liberty if he or she is confined to such a narrowly bounded location, which he or she cannot leave at will. Less grievous restrictions on freedom of bodily movement, such as limitations on domicile or residency, confinement to a certain region of a country, banishment to an island, exile or expulsion do not fall within the scope of the right to personal liberty, but instead interfere with the broader right to freedom of movement.2 It follows that the distinction between deprivation of liberty and limitation of movement is ‘merely one of degree or intensity, and not one of nature or substance’.3 Criteria which play a role in distinguishing whether a certain restriction of freedom of movement reaches the level of interfering also with the right to personal liberty include the type and place where a person is held, the degree of supervision, the extent of isolation and the availability of social contacts.4 The right to personal liberty is not an absolute right. On the contrary, all societies use deprivation of liberty as a punishment for serious crimes or as a measure to maintain public order, morals, health or security. With the gradual displacement of other traditional forms of punishment, such as corporal or capital punishment, hard labour, banishment, shame sanctions or depriving perpetrators of certain civil and political rights, imprisonment has even gained significance in the administration of criminal justice over the last centuries. Article 5 of the European Convention on Human Rights (ECHR) of 1950 contains an exhaustive list of lawful forms of deprivation of personal liberty, such as imprisonment after conviction by a competent court, pre-trial detention, the detention of a minor for the purpose of educational supervision, the detention of persons for the prevention of the spreading of infectious diseases, the detention of persons of ‘unsound mind’, of alcoholics, 1 See Manfred Nowak, U.N. Covenant on Civil and Political Rights – CCPR Commentary, 2nd ed., N.P. Engel Publisher, Kehl/Strasbourg/ Arlington, 2005, p. 160. 2 On the ‘gradual difference between deprivation of liberty and limitation of liberty of movement’ see, e.g. Ton Liefaard, ‘Deprivation of Liberty of Children’, Ursula Kilkelly & Ton Liefaard (eds.), International Human Rights of Children, Singapore, Springer Publisher, 2018, pp. 321 & 324 ff. with further references. 3 See e.g. the rich case law of the European Court of Human Rights since the well-known case of Guzzardi v. Italy, No. 7367/76, 6 November 1980, para. 93. 4 Cf. Liefaard (2018), op. cit., p. 326 with reference to the jurisprudence of the European Court of Human Rights. 61