Right to Liberty and Security

The discussion of Article 5 of the ECHR emphasises the ECtHR’s autonomous interpretation of the Convention. The latter, on the other hand, serves as a point of reference for the national legislator at both the lawmaking and law-in-action levels. It is, moreover, a point of ex post control, i.e., a subsidiary control, which the Strasbourg Court exercises in the context of a concrete application to examine in concreto whether there has been a violation of the Convention provisions.
Art. 5, refers to the various forms of application of detention measures under national law and, therefore, extends beyond criminal proceedings. However, some parts of the articles analysed refer exclusively to criminal procedural coercive measures. From a national regulatory perspective, the most problematic is the mosaic of isolative measures unrelated to criminal proceedings. The ratio legis of their applicability has to be linked to the issue of security in the broadest sense: of society, of persons or even of the state.
Moreover, Article 5 defines lawful detention and arrest; by highlighting in detail the issue of procedural guarantees, it addresses the correctness aspect. In the background of the use of coercive, isolating measures, the general guarantees of fairness flowing from Article 6 ECHR also remain.
The Strasbourg Court supports the primacy of national law, acting as a subsidiary authority and setting boundaries after national procedures are exhausted, particularly concerning non-criminal coercive measures. Its case law highlights concerns about the misuse of detention and arrest, focusing on arbitrariness and the importance of quality law to prevent negative instrumentalisation.

Keywords: right to security and liberty, the ECHR, coercive measures, fair trail, instrumentalization