Deprivations of Liberty: Beyond the Paradigm
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Stark, S. (2019). Deprivations of Liberty: Beyond the Paradigm. Public Law, 2019 (April), 380-401. https://doi.org/10.17863/CAM.33184
What constitutes a "deprivation of liberty" under Article 5 of the European Convention on Human Rights is very unclear. The courts have employed different tests for determining whether a deprivation of liberty has taken place in different cases. From an examination of the Convention and the case law, the threshold for a deprivation of liberty is much lower than the almost total social isolation of detention in a prison cell. The courts' fixation on the so-called "paradigm" case of containment in a cell has therefore been problematic when considering "non-paradigm" cases such as crowd containment and medical detentions. The courts have also, it is argued, misunderstood the relationship between Article 5 and freedom of movement under Article 2 of Protocol 4. This article outlines what the test should be for determining whether a deprivation of liberty has occurred to bring some clarity to this messy area of law.
This record's DOI: https://doi.org/10.17863/CAM.33184
This record's URL: https://www.repository.cam.ac.uk/handle/1810/285840
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