The right to liberty contained in Article 5 of the European Convention on Human Rights provides a fundamental protection against the arbitrary exercise of State power. It includes both substantive and procedural protections which aim to ensure that no individual is deprived of their liberty except in certain, limited conditions, and where specific procedural protections are in place. This publication sets out the key principles developed by the European Court of Human Rights (the Court) when interpreting and applying the provisions of Article 5 and contains summaries of some of the most pertinent case law on this topic.


Under the editorial guidance of Biljana Braithwaite, Western Balkans Programme Director at the AIRE Centre, and Catharina Harby, Senior Legal Consultant of the AIRE Centre, this edition features the work of esteemed experts in the field, Nuala Mole, Founder and Senior Lawyer of the AIRE Centre, Bojana Bosković Husanović, Human Rights Law Consultant, Niamh Grahame, Legal Researcher of the AIRE Centre, and Ishaani Shrivastava, a Barrister at Devereux Chambers in London. The editors are also grateful to Ledi Bianku, former Judge at the European Court of Human Rights and Associate Professor at the University of Strasbourg, for his advice and contributions to the publication.


This latest edition takes into account the dynamic and ever-evolving contexts in which the right to liberty is relevant. From the detention of migrants and asylum seekers for immigration control purposes, to confinement under mental health legislation, as well as pre- and post-trial detention in criminal proceedings, the Court's jurisprudence on Article 5 encompasses a broad spectrum of scenarios. It extends even to unprecedented circumstances such as the COVID-19 pandemic, which has further shaped the interpretation and application of this fundamental right.


“The right to liberty and security is of the highest importance in a democratic society, but its implementation can pose challenges when it is not correctly understood. That was the main motivation behind this guide, as we hope it will offer greater clarity on the requirements of Article 5, by providing an overview of the principles and the relevant case law of the European Court of Human Rights. This publication serves as a valuable reference for not only judicial actors, but also government officials, police officials, and practicing lawyers, seeking guidance on the contexts in which a deprivation of liberty may arise, the ways in which a deprivation of liberty may be justified, and the procedural protections that are required”, said Catharina Harby, Senior Legal Consultant of the AIRE Centre.


Additionally, the publication discusses certain aspects of the case law which are particularly important for Western Balkans countries, including those which pertain to the rights of migrants and asylum seekers.


"Through this 2nd edition, we aim to empower Western Balkans countries to effectively understand and implement the provisions surrounding detention for immigration control. As an increasing number of migrants and asylum seekers are arriving in the region, either using it as a route to reach European Union member states, or to claim asylum within the Western Balkans, it is vital that state authorities respect and protect the rights of individuals entering the region, in accordance with Article 5”, said Biljana Braithwaite, Western Balkans Programme Director at the AIRE Centre.


Download the publication "Right to Liberty and Security: The Jurisprudence of the European Court of Human Rights" here