Detention for Protection: Searching for a ‘Fair Balance’ between the Restrictions on Preventive Detention and the Obligation to Protect Individuals

Abstract

The European Court of Human Rights has expressed that a State cannot rely on its positive obligations under the European Convention on Human Rights in order to justify the detention of individuals, unless the detention falls within one of the grounds listed in Article 5.1. The Court has also interpreted these grounds very narrowly, leaving little room for preventive detention. While this is ordinarily a commendable position, it may potentially be too rigid in specific situations where there is a conflict between one individual’s right to liberty and other individuals’ or the community’s interests under Article 2 on the right to life or Article 3 on the prohibition against torture. This article inquires whether the Court should instead adopt a more flexible approach where it searches for a ‘fair balance’ between Article 5 and Articles 2 and 3.