Liberty and Its Exceptions

Abstract

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.