The European Court of Human Rights in Steel and ors. Vs The United Kingdom,
Judgment of * Sept Nov.1998 Report 1998 V11. P2735 para 54 referring to Art
5 of the European
Convention
on Human
Rights held that “the expression
“lawful” and “in accordance with a procedure prescribed by law” in Article 5. 1
stipulate not only full compliance with the procedural and substantive rules of
national law, but also that any deprivation of liberty be consistent with the
purpose of Article 5 and not arbitrary.
Black’s Law Dictionary Ninth Edition, Bryan Garnes, defines Arbitrary as “(1)
Depending on individual discretion; determined by a judge rather than by fixed
rules, procedures
or law (2) of a judicial decision founded on prejudice or
preference rather than on reason or fact.
An otherwise legal act can at the same time be arbitrary. Arbitrary thus connotes
not just illegality but unreasonableness.
All the legal provisions on restriction of movement as can be seen above are
derogable.
However in order to derogate from them the law and process must
not only be valid but reasonable.
It is trite that the decision of a court is valid until set aside. It therefore will not
be a ground of disobedience to contend that the decision is unreasonable or not
backed by law. The proper channel when dissatisfied 1s appeal.
In HR, Cesti Hurtado V. Peru, September 29 1999, P.445. 141-143 Gustavo Cesti
Hurtado against a threat of re-arrest by the state filed a habeas corpus application.
The order was granted by the Public Law Chamber pursuant to article 7(1), 7(2)
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