Journal of Danubian Studies and Research, Vol 6, No 2 (2016)

Abstract

Among others, the Convention for the Protection of Human Rights and Fundamental Freedoms contains principle provisions on the "person’s" right to freedom and security. These principle provisions – with European constitutional value – were reaffirmed both in the other EU main legal instruments, which, for its Member States, have the force of "Jus cogens", and in the constitutions of the EU Member States.

Under these principle provisions, expressed in Article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms, the European Court of Human Rights ordered that a person’s deprivation of liberty by arrest or detention can be made only by a Court decision, under the law, and only by a Magistrate, and not by the Prosecutor’s decision.

However, the provisions of Article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms also reveal that, by the deprivation of liberty, no person shall be deprived of legal protection "against the arbitrary", hence the need for a better knowledge and, ipso facto, for the correct application of the provisions of this Article.