SECTION I. SCOPE OF APPLICATION

SUBSECTION I. DEPRIVATION VS. RESTRICTION

30. DEPRIVATION VS. RESTRICTION – The ECHR establishes certain human rights and explains under which circumstances these rights can be limited. This way the ECHR aims to protect people from arbitrary interferences with any of the protected rights. In its case law on Article 5, the ECtHR oft en repeats that the aim of that Article is to ensure that no one is deprived of their liberty in an arbitrary fashion. Mere restrictions to the liberty of movement are not covered by Article 5 ECHR, which explicitly uses the terms ‘deprived of his liberty.’ This does not mean states can restrict people's physical liberty without restraint. Restrictions have to meet the criteria of the freedom of movement in Article 2 of the Fourth Protocol to the ECHR. An important question which thus arises is where to draw the line between a deprivation and a restriction of liberty.

31. WHERE TO DRAW THE LINE? – In assessing whether there has been a deprivation of liberty the ECtHR does not consider itself bound by any legal conclusions of the domestic authorities. Its assessment is autonomous. With regard to this assessment, the Court has repeatedly stated that ‘the difference between deprivation and restriction of liberty is one of degree or intensity, and not one of nature or substance.’