Prohibition of arbitrary deprivation of liberty (Article 5.1 of the ECHR)

The guarantees contained in Article 5 of the ECHR have fundamental importance for securing the right of individuals to be free from arbitrary detention at the hands of the authorities. Any deprivation of liberty must not only have been effected in conformity with the substantive and procedural rules of the national law but must equally be in keeping with the very purpose of Article 5, namely to protect the individual from arbitrariness.⁷²⁹ This insistence on the protection of the individual against any abuse of power is illustrated by the fact that Article 5, paragraph 1 of the ECHR gives an exhaustive listing of the circumstances in which individuals may be lawfully deprived of their liberty, it being stressed that these circumstances must be given a narrow interpretation with regard to the fact that they constitute exceptions to a most basic guarantee of individual freedom.⁷³⁰

If there is reliable information that State authorities deprived a person of liberty and, on the other hand, there is no official record on the whereabouts of that person, while the authorities refuse to take any investigative steps in order to find out his fate, there is an assumption in support of the conclusion that there has been a serious violation of the right to liberty and security of that person.⁷³¹ Therefore, it not only deprives the applicants of elementary human rights guarantees but also enables those responsible for the act of deprivation of liberty to conceal their involvement in a crime, to cover their tracks and to escape accountability for the fate of the detainee.⁷³²

With regards to the positive obligations of protection deriving from Article 1 of the ECHR in conjunction with Article 5 of the ECHR, the authorities are obliged to take effective measures to safeguard against the risk of disappearance and to conduct a prompt, effective investigation into an arguable claim that a person has been taken into custody and has not been seen since.⁷³³ The State authorities have the obligation to investigate thoroughly into allegations of arbitrary deprivation even in cases where it cannot be established, although it is alleged, that the deprivation of liberty is attributable to the authorities.⁷³⁴ If the authorities do not provide a credible and substantiated explanation of what has happened and thereby show that they have not taken effective steps to investigate the occurrence and ascertain the fate of the individual concerned, this constitutes a violation of the obligation to provide protection of human rights and fundamental freedoms under Article 1 of the ECHR in conjunction with Article 5 of the ECHR – the right of every person not to be deprived of liberty in an arbitrary manner.⁷³⁵ At any rate, there is a difference in whether the respect for human rights and fundamental freedoms was binding or not upon the relevant authorities at the moment when a person went missing. If this is not the case – such as the case of persons who went missing during the armed conflict in Bosnia and Herzegovina – then the burden of proof placed on the State can be prima facie restricted. In particular, additional indications are necessary, if only a piece of evidence based on indications that this person was still in prison after the entry into force of the rights and freedoms under the ECHR in Bosnia and Herzegovina (14 December 1995), i.e., under control of the State authorities.⁷³⁶

Before extraditing, expelling or the formal handing over of a person to the custody of the authorities of another State, the State which hands over the person is obliged to obtain and examine information as to the legal basis of that custody, as it follows from the quoted provisions relating to extradition procedure.⁷³⁷