Similarly, in MEDVEDYEV AND OTHERS v. FRANCE (Application no.
3394/03) JUDGMENT STRASBOURG 29 March 2010, the Court reiterated that
where the “lawfulness” of detention is in issue, including the question whether “a
procedure prescribed by law” has been followed, the Convention refers essentially
to national law but also, where appropriate, to other applicable legal standards,
including those which have their source in international law. In all cases it
establishes the obligation to conform to the substantive and procedural rules of the
laws concerned, but it also requires that any deprivation of liberty be compatible
with the purpose of Article 5, namely, to protect the individual from arbitrariness.
The Court further stresses that where deprivation of liberty is concerned it is
particularly important that the general principle of legal certainty be satisfied. It is
therefore essential that the conditions for deprivation of liberty under domestic
and/or international law be clearly defined and that the law itself be foreseeable in
its application, so that it meets the standard of “lawfulness”
The UN General Assembly provides in Article 3 and 9 of the UDHR thus:
3 “everyone has a right to life, liberty and security of person” and 9 “no one shall
be subjected to arbitrary arrest, detention or exile”.
Also Article 9(1) of the International Covenant on Civil and Political rights
provides:
“everyone has the right to liberty and security of person. No one shall be deprived of his liberty
except on such grounds and in accordance with such procedure as are established by law”.
46