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By Dr Sabina Garahan, Essex Law School

Dr Sabina Garahan, Lecturer at Essex Law School, has completed her AHRC-funded doctoral research on “Adjudicating the Right to Liberty: The Use and Appropriateness of Discretion at the European Court of Human Rights”. The thesis critically assesses the level of protection offered by European human rights law against arbitrary detention. Dr Garahan argues that the appropriateness of discretion granted to Contracting States in this sphere requires the Court to recognise the need for a progressive interpretation of the right to liberty (as enshrined in Article 5 of the European Convention on Human Rights). The thesis develops a new framework for determining the appropriateness of discretion by linking the Court’s use of its methods of interpretation to their underlying approaches. Dr Garahan’s development and application of this framework in the Article 5 context is rooted in thorough doctrinal and theoretical analysis as well as empirical findings on the practice of the European Court of Human Rights as gathered through interviews with serving judges. 

On this basis, 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. 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. 

Dr Garahan makes the argument 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. Dr Garahan therefore ultimately concludes that continued neglect of a progressive interpretation of Article 5 risks undermining not only the further realisation of the right to liberty, but indeed its continued maintenance as a vital tool of human rights protection.