Adjudicating the Right to Liberty: the Use and Appropriateness of Discretion at the European Court of Human Rights

This thesis critically assesses whether the discretion granted by the European Court of Human Rights to Contracting States through its adjudication of the right to liberty is appropriate. Appropriateness is assessed by reference to the underlying aims of the Court’s methods of interpretation. The thesis finds that the Court neglects an evolutive reading of Article 5, thereby stifling the progressive development of the provision. It is argued that, at the same time, an increased turn to subsidiarity has undermined the Court’s oversight role. The thesis finds that an inappropriate level of discretion is accorded to States in determining whether the aims of detention, in particular in the fields of pre-trial detention, the detention of minors and immigration detention, have been met. The lack of progressive advancement of the right to liberty in the Convention system also results in the right being disproportionately ceded to both individual and public interests in proportionality testing. A new framework for allocating discretion that takes consensus as a starting point in the Court’s review is suggested to address these challenges. It is argued that centring the role of consensus as part of an evolutive approach to Article 5 will not only achieve the progressive interpretation mandated by the Convention, but will also create a more consistent and thus legitimate body of Article 5 jurisprudence. The thesis therefore ultimately argues that the appropriateness of discretion in this sphere requires the Court to recognise the need for a progressive interpretation of the right to liberty.