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.
This article compares the legal protection of privacy and personal data principally in common law jurisdictions. It points out that the growth of privacy law in these jurisdictions has traditionally centred on the ability of individuals to bring claims to court, with claims largely dealt with as a matter of common law (i.e. judge-made law). However, the absence of a generally accepted principle that individuals should be free to bring a claim in court for a breach of a statute has worked to limit the development of (statutory) data protection norms in the common law world. Nevertheless, the situation now appears to be changing with some recent cases.
Despite the flourishing of judicialisation of rights across the world, scepticism is not in short supply. Critiques range from concerns over the democratic legitimacy and institutional competence of courts to the effectiveness of rights protections. This article takes a step back from this debate and asks why should we establish or persist with judicial review. For reasons of theory, methodology, and practice, it argues that closer attention needs to be paid to the motivational and not just mitigatory purposes for judicial review. The article examines a range of epistemological reasons (the comparative advantage of the judiciary in interpretation) and functionalist reasons (the attainment of certain socio-political ends) for judicial review and considers which grounds provide the most convincing claims in theory and practice.