SECTION I. OPERATIONALISING MAIN PRINCIPLES

90. RIGHT TO LIBERTY – As explained in the previous Chapter, deprivations of liberty relevant for our purposes will take place in the context of criminal proceedings rather than administrative measures. Specifically, subparagraphs (a) and (c) will be relevant. Looking at the case law of the ECtHR concerning the right to liberty, we can note that the Court is not always consistent when invoking principles. Judges do not always refer to the same principles and even when they do, they do not necessarily use the exact same terminology. The general principles referred to by the Court are the protection against arbitrariness, the rule of law (and specifically legal certainty) and proportionality. We would argue that the first principle, the ultimate goal of Article 5 ECHR, encompasses the other two. In several cases, the Court links avoiding the risk of arbitrariness back to respect for the rule of law and the principle of legal certainty, and the principle of proportionality. We would argue that these two principles are the core of the protection against arbitrariness: legal certainty (part of the legality principle) and proportionality. The legality principle establishes the minimal conditions for a right, in casu the right to liberty, to be restricted but it does not refer to the substantial need to restrict that right.