5 Personal Liberty
Thomas M. Antkowiak, Alejandra Gonza
- Habeas corpus — Imprisonment — Provisional release — Principle of legality
The Convention’s Article 7 establishes the general right of all persons to not be deprived illegally or arbitrarily of their liberty; in addition, it contains specific protections for individuals who have been deprived of their freedom. To activate the protections of Article 7, the Court does not require a minimum duration or specific location for the detention. Consequently, the Tribunal has found violations to Article 7 in a wide range of detention scenarios. We consider the Court’s current method of interpreting legality and arbitrariness to be flawed in certain respects. For example, unlike other international human rights tribunals, the Court often considers only the relevant domestic law, and not international law, in its assessment of a detention’s legality. When the Court narrows its legality inquiry to the letter of national law, international human rights may be limited or distorted, and the State’s discretion to restrict liberty may be increased.