The right to liberty and the prohibition of preventive detention: on the use of pre-trial detention of suspected terrorists in the 21. Century within the framework of the European Convention on Human Rights

Abstract

States have traditionally vindicated the need to loosen up standards of detention to face extraordinary circumstances. In the political context dominated by the global War on Terror, there is an ongoing debate among scholars and law-makers about the use of preventive detention as necessary means to prevent further terrorist attacks. The use of arbitrary detention in Guantanamo and the breach of the absolute prohibition of torture have widely raised concerns as regards the interplay between counter-terrorism and human rights. Nevertheless, less striking practices such as an abusive use of pre-trial detention, or obstacles to the right to effectively challenge the lawfulness of the detention, can equally shake the foundations of highly developed constitutional democracies by impairing the right to personal liberty and the presumption of innocence. In this context, this thesis examines whether detention outside the scope of criminal proceedings is allowed under the European Convention of Human Rights and to what extent the European Court of Human Rights accommodates national security concerns when addressing unlawful curtailments on the right to personal liberty. Subsequently, challenges liable to be addressed in the near future by the European Court of Human Rights are identified by looking at how the Spanish judiciary order and review pre-trial detention of suspected international terrorists.