The legitimacy of restricting the right to liberty and security: Standards of the European Court of Human Rights

Article 5 of the European Convention on Human Rights sets out the guarantees of the right to liberty and security. During criminal proceedings, this fundamental human right may be subject to restriction. Therefore, both legislation and law enforcement practice must ensure fair procedures for such restrictions. This study aimed to provide a comprehensive analysis, systematisation, and explanation of the Convention standards that guarantee the lawfulness of restrictions on the right to liberty and security within criminal proceedings. It also aimed to identify the grounds for the application of custodial preventive measures, thereby helping to avoid errors in legal practice and contributing to the development of a uniform and consistent investigative and judicial approach, including under conditions of martial law. The principal methods of inquiry include axiological, formal-legal, logical-legal, systemic-structural, comparative-legal analysis, and generalisation. These methods have made it possible to describe the results and substantiate the conclusions reached. The study was conducted concerning the case law of the European Court of Human Rights and the national criminal procedural legislation. It has been established that, according to the standards developed in the case law of the European Court of Human Rights, the threshold for suspicion does not require the same degree of certainty as a formal charge. A reasonable suspicion implies the existence of sufficient factual information that would enable an external observer (the investigating judge) to conclude, with a high degree of probability, that the individual whose right to liberty and security is to be restricted has committed the alleged offence. It was argued that the European Court of Human Rights adheres to a substantive rather than a formal conception of a charge. Based on an analysis of the legal regulation of the grounds for applying preventive measures, it has been demonstrated that the investigating judge will, in each specific case, determine whether the factual data are sufficient to establish a reasonable suspicion and whether the associated risks are justified. The practical value of this study lies in the possibility of applying the established standards of the European Court of Human Rights when deciding on the imposition of custodial preventive measures. This would help ensure uniformity in legal practice and promote the rule of law in Ukraine