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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.
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.
This article discusses the findings of the European Court of Human Rights in the 2021 case of Georgia v Russia (II) in relation to the applicability of the European Convention on Human Rights to the conduct of hostilities. The article describes the arguments advanced by the Court to support the idea that the Convention does not apply to extraterritorial hostilities in an international armed conflict. In the light of past decisions, international humanitarian law, international human rights law, and the law of the treaties, it is argued that the Court's conclusion is unconvincing and the arguments seem to be based on extralegal considerations, rather than on a sound interpretation of the notion of state jurisdiction under the Convention.
On February 16, 2021, the Grand Chamber of the European Court of Human Rights released its judgement in Hanan v. Germany (2021). The case concerned the alleged violation of Articles 2 and 13 of the European Convention of Human Rights by Germany regarding an airstrike ordered by German Colonel Klein in Afghanistan. The case raised several questions the answers of which could be impactful for all Contracting Parties to the Convention conducting military operations abroad. This paper critically explores the past-case law by the Court and the answers given by the Court in Hanan concerning two of these questions. First, the question concerning the extraterritorial applicability of the Convention to airstrikes. This matter had previously been addressed by the Court in the highly criticised case of Banković and Others v. Belgium and Others (2001); since the facts of Hanan show various similarities to Banković, the Court in Hanan had a chance to change its position on this matter and clarify what would be the state’s responsibilities when using military force abroad. Second, the question of attribution, i.e., whether Contracting Parties operating as part of an international organisation can be held responsible for impugned acts under the Convention.
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