Deprivations of Liberty: Beyond the Paradigm

Abstract

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.