Liberty and Its Exceptions

Bibliographic Data

ID9928705
AuthorsLewis Graham (0000-0002-9026-4071, College of Law, corresponding author)
Year2023
Volume72
Issue2
Pages277-308
Publication date2023-04-01
Open AccessYes
TypeARTICLE
VenueInternational and Comparative Law Quarterly (JOURNAL)
Journal identifiersISSN: 0020-5893 • E-ISSN: 1471-6895
PublisherCambridge University Press (CUP) (PUBLISHER)
DOI10.1017/s0020589323000027
OpenAlexW4323668992
LanguageEN
References cited11

Article 5 of the European Convention on Human Rights enshrines the right to liberty, one of the oldest and most fundamental rights in the human rights tradition, and one of the core rights in the Convention. Central to the judicial understanding of Article 5 is the ‘exhaustive justification principle’: unlike with other rights, such as the right to privacy, interferences with liberty can only be justified by one of the specific reasons listed in Article 5 itself. This article shows that this rigidity has posed problems in practice: faced with modern developments unforeseeable at the time of the Convention's writing, such as the use of novel policing techniques and the COVID-19 pandemic, judges have interpreted Article 5 in an unusual and artificial way, sacrificing the exhaustive justification principle in doing so, in order to achieve sensible outcomes. The integrity of Article 5 has been threatened, with serious consequences for the future protection of the right to liberty. This trend is explained, evidenced and evaluated, and some (partial) solutions and concessions are considered

Business · Convention · Fundamental rights · Human rights · Law and economics · Order (exchange · Political science · Sociology · European Criminal Justice and Data Protection · Judicial and Constitutional Studies · Law · Ombudsman and Human Rights

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