Chapter 3
Freedom 👍:
Liberta:
3❤️
ZZ ROPIKO:
Rome and Byzantium teach us that freedom is not a static state, but a constant striving – both of society to create just laws, and of the individual to master oneself. The brightest ray of their message is that the most long-lasting freedom is the one rooted not just in the power of the sword, but in the power of the law and in the depth of the spirit. This is the freedom that allows an empire to survive a thousand years and the human soul to strive toward eternity.
20th
The Right to Liberty and Security: Philosophical and Legal Perspectives in Connection with Article 5 of the European Convention on Human Rights, Article 9 of the International Covenant on Civil and Political Rights, and Article 6 of the Charter of Fundamental Rights of the European Union
Introduction: Freedom as a Fundamental Principle
The right to liberty and security is one of the oldest and most fundamental principles in the legal systems of democratic societies. It represents a legal and philosophical imperative that guarantees that no person can be arbitrarily deprived of their liberty. This right is embedded at the core of modern international and regional legal instruments, including the European Convention on Human Rights, the International Covenant on Civil and Political Rights, and the Charter of Fundamental Rights of the European Union. The purpose of this opinion is to analyze the right to liberty and security in its various aspects, focusing on Article 5 of the European Convention on Human Rights, Article 9 of the International Covenant on Civil and Political Rights, and Article 6 of the Charter of Fundamental Rights of the European Union, and to explain their origin, meaning, and legal influence.
1. Historical Context and Origin of the Right to Liberty and Security
1.1. Consequences of the Second World War
The Second World War and the mass violations of human rights during totalitarian regimes led to the necessity of creating international legal instruments to guarantee the protection of fundamental human rights. The Universal Declaration of Human Rights, adopted by the United Nations in 1948, codified the right to liberty and security for the first time in Article 3 and Article 9. It states: "Everyone has the right to life, liberty and security of person" and "No one shall be subjected to arbitrary arrest, detention or exile." The Universal Declaration of Human Rights created the foundation for the further development of international and regional legal norms.
1.2. Development of Regional and International Instruments
European Convention on Human Rights: Adopted in 1953, the European Convention on Human Rights is the first regional instrument to guarantee the protection of human rights in Europe. Article 5 of the Convention regulates the right to liberty and security in detail, listing specific cases in which deprivation of liberty is permissible, and the guarantees that must be respected. The Convention was created in response to war crimes and violations during the Second World War, with the aim of ensuring that such atrocities would never happen again.
International Covenant on Civil and Political Rights: Adopted by the United Nations in 1966, the International Covenant on Civil and Political Rights is a legally binding international instrument that expands and deepens the rights embedded in the Universal Declaration of Human Rights. Article 9 of the Covenant guarantees the right to liberty and security, prohibiting arbitrary arrest and detention and guaranteeing the right of every detainee to be brought before a court. The Covenant arose as a reaction against colonialism, racial discrimination, and political repressions that continued to exist after the end of the war.
Charter of Fundamental Rights of the European Union: In force since 2009, the Charter consolidates all fundamental rights valid within the legal system of the European Union.
Article 6 of the Charter guarantees the right to liberty and security, reproducing and supplementing the guarantees provided in Article 5 of the European Convention on Human Rights and Article 9 of the International Covenant on Civil and Political Rights. The Charter arose as part of the process of strengthening European identity and protecting the rights of citizens within the context of ever-closer integration in the European Union.
2. Legal Aspects of the Right to Liberty and Security
2.1. Content and Scope of the Right
The right to liberty and security guarantees that deprivation of liberty is permissible only in strictly defined cases and in compliance with specific procedural safeguards. It includes protection against:
Arbitrary arrest and detention: No one can be detained or arrested without a ground provided for by law.
Unlawful forms of deprivation of liberty: This includes forced placement in psychiatric institutions, house arrest, detention in transit zones, and others.
Lack of information and access to legal protection: Every detained person must be informed in a language they understand of the reasons for their detention and their rights, including the right to a lawyer and the right to challenge the lawfulness of the detention.
2.2. Permissible Cases of Deprivation of Liberty
Both the European Convention on Human Rights and the International Covenant on Civil and Political Rights exhaustively list the cases in which deprivation of liberty is permissible:
Conviction by a competent court: Deprivation of liberty is permissible when it is the result of a conviction imposed by a competent court.
Non-compliance with a court order: Arrest is permissible when a person fails to comply with a lawful court order (for example, a maintenance obligation).
Detention on reasonable suspicion: Deprivation of liberty is permissible when there is a reasonable suspicion that the person has committed an offense, or to prevent the commission of an offense or fleeing.
Educational and medical reasons: Deprivation of liberty is permissible for minors for educational purposes or for persons who pose a threat to public health (for example, the spread of infectious diseases).
Immigration procedures: Deprivation of liberty is permissible to prevent unauthorized entry into the country or for deportation and extradition.
2.3. Procedural Safeguards
To ensure that deprivation of liberty is not arbitrary, legal instruments provide for a number of procedural safeguards:
Right to information: Every detained person must be informed promptly of the reasons for their detention and any charges against them.
Right to judicial control: Every detained person must be brought promptly before a judge or other officer authorized by law, and has the right to a judicial review of the lawfulness of their detention.
Right to appeal: Every detained person has the right to challenge the lawfulness of their detention before a court, which must rule within a short time.
Right to compensation: Anyone who has been the victim of unlawful deprivation of liberty has the right to compensation.
In a comparative perspective, the permissible cases of deprivation of liberty are listed in detail in Article 5 of the European Convention on Human Rights (for example, conviction, non-compliance with a court order, suspicion of a crime), whereas in Article 9 of the International Covenant on Civil and Political Rights they are formulated more generally, but remain similar in meaning. On its part, Article 6 entirely reproduces the guarantees of the European Convention on Human Rights. Regarding procedural safeguards, the European Convention contains detailed requirements for information, judicial control, and appeal, the International Covenant relies on the same principles in a more general manner, and the Charter of Fundamental Rights of the European Union once again reproduces them fully.
Differences are observed in their territorial scope and applicability: the Convention applies in the member states of the Council of Europe, the Covenant is in force for all states parties to it on a global scale, and the Charter operates specifically within the legal system of the European Union. Accordingly, the mechanisms for their implementation and control also differ. For the European Convention, this is the European Court of Human Rights, for the International Covenant, it is the United Nations Human Rights Committee, and for the Charter of the European Union, control is exercised by the Court of Justice of the European Union.
3. Interaction between the European Convention on Human Rights, the International Covenant on Civil and Political Rights, and the Charter of Fundamental Rights of the European Union
3.1. Mutual Complementation and Strengthening of Protection
The three legal instruments do not exclude each other, but rather complement and strengthen the protection of the right to liberty and security. For example:
The European Convention on Human Rights provides detailed regulation and an effective mechanism for implementation through the European Court of Human Rights.
The International Covenant on Civil and Political Rights provides universal protection and complements the European Convention on Human Rights in states that are parties to both instruments.
The Charter of Fundamental Rights of the European Union guarantees that the right to liberty and security will be protected within the context of European Union law and through the mechanisms of the Court of Justice of the European Union.
3.2. Role of the Courts and Control Mechanisms
The European Court of Human Rights: Interprets and applies Article 5 of the European Convention on Human Rights through its judgments. For instance, in the case of Marin Yosifov v. Bulgaria (application no. 5113/11), the Court ruled that the right to liberty and security was violated due to the lack of prompt judicial control.
The United Nations Human Rights Committee: Monitors the implementation of the International Covenant on Civil and Political Rights and considers individual complaints regarding violations of Article 9.
The Court of Justice of the European Union: Ensures compliance with Article 6 of the Charter of Fundamental Rights of the European Union within the legal system of the European Union and ensures its application in the legislation and practice of the member states.
4. Challenges and Contemporary Interpretations
4.1. Fight against Terrorism and Security
In the context of the fight against terrorism and crime, challenges arise before the right to liberty and security. States often introduce measures that restrict liberty (for example, prolonged pre-trial detention, administrative detention), which can conflict with the guarantees against arbitrary deprivation of liberty. Courts and control mechanisms are called upon to balance between the protection of national security and respect for fundamental rights.
4.2. Migration and Liberty
Migration crises and the detention of migrants in transit zones represent another challenge. The deprivation of liberty of migrants and refugees is frequently the subject of legal disputes regarding its lawfulness and compliance with Article 5 of the European Convention on Human Rights and Article 9 of the International Covenant on Civil and Political Rights.
4.3. Digital Era and Personal Liberty
In the digital era, new challenges arise related to digital detention and mass surveillance. The question of whether these forms of control constitute deprivation of liberty or violate the right to security remains a subject of debate and legal development.
Conclusion: The Significance of the Right to Liberty and Security in the Modern World
The right to liberty and security is a fundamental pillar of democratic societies and states governed by the rule of law.
It arose as a reaction against historical atrocities and the arbitrariness of totalitarian regimes and has developed into a complex system of international and regional legal norms. Through the European Convention on Human Rights, the International Covenant on Civil and Political Rights, and the Charter of Fundamental Rights of the European Union, this right receives universal recognition and protection.
Although legal instruments provide solid guarantees against arbitrary deprivation of liberty, contemporary challenges, such as the fight against terrorism, migration, and digital technologies, place new demands on their interpretation and application. Courts and control mechanisms play a key role in balancing public security and individual liberty.
The right to liberty and security is not merely a legal norm; it is a living and dynamic protection of human dignity and autonomy. Its observance and strengthening are essential for maintaining a just and democratic society that respects and guarantees the rights of every person.
Message from the Author
The right to liberty and security is not just an abstract legal principle; it is a defensive wall against arbitrariness and abuses of power. Its origin in the dark times of war and repression reminds us that freedom is not a given, but a constant struggle for the protection of human dignity. In the contemporary world, where new threats and technologies test the boundaries of this right, our responsibility is to defend it and to ensure that it remains a living and effective guarantee for every human being.
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