Right to liberty and security of the person

6. Right to liberty and security of the person

MODULE 6

Students will be introduced to the principles of the right to personal security and the prohibition of torture and inhuman or degrading treatment or punishment for every person. Compliance with procedures is discussed, and how the right to security and the prohibition of torture and inhuman or degrading treatment can be violated in daily life.

Short description of the session

The goal of this session is to give pupils knowledge about the key concepts of the right to liberty and security of the person. The notions of human dignity, freedom, liberty and personal security are discussed. The session consists of an introductory exercise, which has the form of ‘silent discussion’, lecture on the right to liberty and security of the person and examples of the cases from the European Court of Human Rights to be analysed by pupils.

Learning goals

Make the pupils reflect on the notions of freedom, liberty and security and their connectedness to human rights.
Make the pupils learn about the right to respect liberty and security of the person and about the obligations public authorities have in order to guarantee this right to people.
Make the pupils analyse cases from the European Court of Human Rights (ECHR) regarding the right to respect to liberty and security of the person, and identify the arguments the Court is using in order to decide about a case.

Description

Time: 1–3 hours
Requirements: A room with enough space for pupils to work in groups, flip chart sheets, markers
Preparation (for the teacher): Lecture on The Right to Liberty and Security of the Person

Exercise: ‘Silent’ discussion on the right to liberty and security of the person.

‘Silent discussion’ is a teaching method, which allows participants to ‘discuss’ a concept or a phenomenon without using language. Participants will use markers for putting up questions to each other on a flip chart sheet or making drawings, when revealing the meaning of a concept.

To begin with, pupils work individually. The teacher asks them to think for a minute about associations they get when they hear the words ‘freedom’ and ‘liberty’.
Then, in groups of 3–4 people, pupils get the task either to draw or write their associations on the flip chart sheet of paper. They can write questions in order to clarify drawings, answer questions put by the others in the group. What they cannot do is to talk to each other. They ‘discuss’ in silence. (10 minutes)
When finished, groups can present their ‘discussions’ to each other.
Advice for the teacher: the pupils, most likely, will be drawing a human being, a house, prison, police station or something resembling movement (like footprints). It gives them the opportunity to start discussing personal autonomy and freedom as such, as well as freedom to decide over their own life and body in particular.
The teacher gives the lecture on the right to liberty and personal security, referring back to the thoughts and ideas shared by pupils.

Lecture on the Right to liberty and personal security of person (for the teacher)

When we think about the right to liberty and security of the person, we presuppose that a human being/ a person is a free individual, living a free life, making choices on her own without an external interference. It is, nevertheless, necessary to reflect upon the meaning of freedom, liberty and security as such. Are we thinking about a kind of an absolute freedom, when we do whatever we want? Or, can it be a limited freedom, like the freedom of one person stops where the freedom of another begins? In this case, it makes the notion of freedom a bit narrower. Freedom then, implies that a person is responsible for their own words, actions and choices. And, what is about liberty? It is synonymous to freedom but means the lack of captivity or confinement of the body, not a general freedom of personal actions. In addition, what about personal security? Can personal security be about the feeling of safety one has when being in public spaces, like streets, shopping malls or schools? In that case, who is supposed to guarantee people this feeling of safety?

Right to liberty and security of the person in the international human rights documents.

Right to liberty and security of the person is included quite initially in the Universal Declaration of Human Rights (UDHR). Article 3 says that

“Everybody has the right to life, liberty and security of person.”

Having stated that all people are born free and are equal in their rights (Article 1, UDHR) and emphasizing the principle of non-discrimination as a core principle of human rights (Article 2, UDHR), the values of liberty and security of the person come after these concepts in UDHR. These values are precious for their own sake, but also for providing the possibility to enjoy other rights.

Article 9 in the International Covenant on Civil and Political Rights (ICCPR) and Article 5 of the European Convention on Human Rights (ECHR), which are legally –binding documents for states, reveal concrete situations (like arrest and detention), when liberty and security of the person is limited, and what authorities are obliged to do in these cases.

Both articles[1] underline that no one can be subject to casual or arbitrary detention or arrest. It does not matter, what sex or sexual orientation a person has, whether one is an immigrant or a resident, soldier or civilian, a child or an adult, a criminal or the one under investigation, victim of domestic violence or a disabled person, a journalist or a human rights defender, none of them can be arrested without a lawful reason.

On one side, right to liberty and personal security is connected to the obligations of public authorities to guarantee safety to people. On the other side, the same authorities are not supposed to capture or arrest people without a lawful reason. Public authorities in general and police in particular, have the responsibility to protect people’s physical safety. It will be a serious violation of human rights when states arrest, kill, and imprison people without lawful reason. For example, when a person is arrested and prosecuted due to his political or religious activity.

It is also an obligation of the state to respond appropriately and protect victims of violence (domestic violence included), no matter whether state institutions or private entities are the source of violence.

Deprivation of liberty should always be lawful

Articles 9 in ICCPR or 5 in ECHR do not give the precise definition of liberty of a person. It is, therefore, necessary to analyse every particular case of deprivation of liberty in order to understand whether this action has been lawful or not. What is common though for both articles is the expressed demand for all the actions connected to the deprivation of liberty of people must be “in accordance with a procedure prescribed by law”.

Keeping people in police custody, putting them under arrest or detention are the acts of restraining of personal liberty to a very big extent. The national laws have to regulate the procedures of use when depriving people of liberty and be in compliance with the international law[2]. Detention or arrest can never be arbitrary or unreasonable. It means that there should always be legitimate grounds for detaining people.

Detention is a deprivation of one’s liberty, which begins with an arrest and lasts until one’s release, in case one is facing criminal charges. Detention can also be administrative and used if a person poses such a threat to society when no other measure is possible to use in order to prevent this threat. Arrest is an action of taking a person into custody. The terms detention and arrest are often used interchangeably.

Public authorities are obliged to protect individuals from actions done by unlawful criminal or armed groups, which might result in deprivation of people’s liberty and security. They should also protect against deprivation of liberty, which can be done by lawful organisations and institutions, like hospitals, schools, business entities, which prevent their employees from leaving after workhours. In case of unlawful detention or arrest, the person has the right to a fair compensation.

Situations, in which people can be deprived of their liberty

The right to liberty and security of a person is not an absolute right. It means that there are situations, when a person can be deprived of his liberty. A person is being deprived of her liberty when:

being brought to police custody or a detention center,
being put on house arrest, or in prison
being detained on an administrative reason (for example, for not paying out a debt)
being hospitalized or put into an institution of social care
being homeless, drug or alcohol addict and be detained
being detained in situations involving border control, for examples at airports.

All the situations mentioned above touch upon bodily integrity of people. Such actions, as approaching pedestrians by police in order to check their identification, or helping a homeless person away from the street, should only be in accordance with the law. Involuntary admission to a psychiatric hospital can only be legitimate if it is the interest of the person or of the rest of the population. Admission to hospital or quarantine for people with highly contagious disease in order to prevent the spread of disease might happen, but the requirement of lawfulness remains to be obligatory in any case.

Detention of people on criminal charges

Paragraph 1 of the article 5 of ECHR states that a person can only be deprived of freedom, if the decision about deprivation is made by a competent court. For example, in cases where it is necessary to prevent a person to leave the town, in order to guarantee her presence in the courtroom, the decision that caused this prevention has to be made by a judge or other officer authorised by law to do it.

What is important here is that justification of a detention has to be regularly checked by appropriate authority. It means that detention cannot last “forever”, but only for a specified period of time.

Paragraph 2 of the article 5 of ECHR states in addition that

“Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him”.

Information must be provided immediately upon arrest. 72 hours is the international norm on how long a person can be kept in custody by police. The judge decides then whether the individual should be released or remain in custody for additional investigation or trial.

Prohibition of torture and inhuman degrading treatment

Even though article 5 of the European Convention does not include the conditions of detention, the right to liberty and security of the person relates closely to it. As mentioned earlier, it is about bodily and moral integrity of the person detained. The right to personal security relates to the prohibition of torture and inhuman degrading treatment in any situation (even at times of war)[3]. Prohibition of torture or inhuman and degrading treatment is an absolute human right, which means that all the cases involving inhuman and degrading treatment should be thoroughly investigated.

Article 10 of ICCPR underlines that

“All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person”.

Deprivation of liberty of the minors

Article 37 of the UN Convention on the Rights of the Child states that children under the age of 18 might be deprived of their liberty, but only if deprivation is in accordance with the law. Nevertheless, the international community (United Nations) encourages states to use deprivation of liberty of children as a measure of last resort and for the shortest period of time. Detention of children should always be connected to their rehabilitation and an optimal functioning when back to the society.

[1] Article 9 of ICCPR and Article 5 of ECHR

[2] International Covenant of Civil and Political Rights (ICCPR), European Convention of Human Rights (ECHR)

[3] Torture means any act by which severe pain or suffering, physical or mental, is done to a person with a purpose of obtaining some information from him or confession. To deny a person to sleep, to keep lights on all the time, to keep a person in a small dark room, to deny food, drinks, shower; physical abuse (like rape or electric shock), verbal abuse (like blackmailing about family members) are examples of inhuman and degrading treatment of people.

For further reading:

Analysing cases from the European Court of Human Rights (in groups)

As a follow-up activity after the lecture, pupils can work in groups of 3-4 persons and analyse the cases from the European Court of Human Rights (ECHR). Either teacher or pupils themselves might find cases on the right to liberty and personal security in the Court’s database HUDOC¹.

Otherwise, the cases chosen for this session can also be used. The analysis of cases will allow pupils to understand the arguments ECHR is using when analysing the legitimacy of actions taken by public authorities when detaining people. Each group gets one case (short description or press release) for analysis. The pupils have to answer the following three questions:

— Who are the parties in the case?

— What is the case about?

— What are the arguments and final decision of the European Court of Human Rights in this case?

Having answered the questions, students can present their findings to each other taking turns.

Cases for analysis:

Case 1: D.L. v. Bulgaria (2016)
This is the case about a 13-year-old being placed in a correctional boarding school in the Bulgarian town Pleven. Placement was made on the request of the child’s mother who claimed to be unable to take care of the child.
Case 2: Witold Litwa v. Poland (2000)
A pensioner from Poland has been taken away by police and placed at the sobering-up centre for more than six hours.
Case 3: Tase v. Romania (2008)
Mr. Tase was accused of stealing petroleum products from the oil company, his employer. He complained that he had been unlawfully arrested and kept in detention in the absence of any solid reasons.
Case 4: Suso Musa v. Malta (2013)
The case of Sierra-Leone national, who arrived by boat to Malta as irregular asylum-seeker. Mr. Susa complained about the detention at the Safi Barracks Detention Centre for migrants, which had been lasting for 546 days.

How to use museums

Surveillance, arbitrary arrests and detentions of people were common in many authoritarian and dictatorial regimes throughout history (for example, in Central and South America during military rule, or in the Soviet Union and other Eastern European countries under communist rule). The task for pupils can be to identify praxis of unlawful surveillance of people by visiting museums, exhibitions and/or historical sites. More and more museums today offer online exhibitions. Pupils can either visit the following online exhibitions or find others in order to research and present their findings in class:

Exhibition “Access to Secrecy” on Stasi Records Archive, Berlin. URL 1; URL 2
Online exhibition “Risking Freedom”, created by the Berlin Wall Foundation. URL
Online exhibition “GULAG: Soviet Forced Labour Camps and Struggle for Freedom”, URL
United States Holocaust Memorial Museum, URL

Author: Eugenia Koroltseva

HUDOC is the database of the European Court of Human Rights in Strasbourg, which allows to search for a case based on an article of the European Convention of Human Rights or a country. A video explaining how to search is available here.