What is the liberty and security of a person?
The right to liberty and security means the right to be physically free and the right not to be unlawfully and arbitrarily detained. If a person is detained, there must be grounds (reasons for detention) and a procedure followed which has been established by law. The right to liberty and security of a person should not be confused with freedom of movement – the latter is a separate right.
Deprivation of liberty does not necessarily imply arrest or confinement in a prison cell. It may also take other forms, such as involuntary placement in a psychiatric institution, confinement in border transit zones, placement in a police car or even house arrest.
Can deprivation of liberty be lawful?
There are, indeed, circumstances when a person can be lawfully deprived of their liberty. This involves a person being detained based on valid grounds and following clear procedures established by law.
Detention may generally be based on the following grounds:
- conviction by a competent court
- when a person has not complied with a court order or to ensure that a person complies with the law
- when a person is suspected of having committed a crime and this is necessary to prevent another crime or to prevent them from escaping
- medical and/or social reasons: e.g., involuntary placement of a person in mental health care institutions, or if there is a need to prevent the spread of infectious diseases
- unauthorized entry into a country, or in cases of deportation or extradition
Who protects this right?
The State is the main guarantor of human rights. Its obligations are twofold: negative (obligations “not to do” something) and positive (obligations “to do” something).
The negative obligation requires the State to refrain from violating the right to liberty and security, i.e. not to detain persons unlawfully. The positive obligation includes the duty to provide protection against unlawful detention to everyone within its jurisdiction, ensuring that a person is deprived of their liberty only in accordance with the law and non-arbitrarily.
International recognition of this right
The Universal Declaration of Human Rights, a milestone human rights document that was adopted after the end of the Second World War, contains two articles that mention this right.
Article 3 reads:
Everyone has the right to life, liberty and security of person.
while Article 9 adds further that:
No one shall be subjected to arbitrary arrest, detention or exile.
The right to liberty and security is universally recognised – it is found in all general international and regional human rights conventions.
One of the forms of deprivation of liberty, where the fate or whereabouts of the disappeared person are concealed, has been regulated since 2010 by a separate convention – the International Convention for the Protection of All Persons from Enforced Disappearance.