Public prosecutors and the right to personal liberty: An analysis of the jurisprudence of the UN Human Rights Committee and the European Court of Human Rights
| Author | Laura-Stella Enonchong |
| DOI | http://doi.org/10.1177/09240519221115280 |
| Published date | 01 September 2022 |
| Date | 01 September 2022 |
| Subject Matter | Articles |
Public prosecutors and the right
to personal liberty: An analysis
of the jurisprudence of the UN
Human Rights Committee
and the European Court of
Human Rights
Laura-Stella Enonchong
Faculty of Business & Law, De Montfort University, Leicester, UK
Abstract
This article discusses the approach of the United Nations Human Rights Committee (HRC) and
the European Court of Human Rights (ECtHR) to interpreting and applying the right to personal
liberty, in particular in relation to the judicial control of the deprivation of liberty. It appears that
both institutions adopt an interpretative approach that aligns with the object and purpose of the
right. However, in the application to individual cases, unlike the ECtHR, the HRC fails to clarify the
scope of the relevant provision of the ICCPR, specifically, the independence and impartiality of the
public prosecutor as ‘an other officer authorised by law to exercise judicial power’. That situation
may ultimately undermine a more effective attainment of the object and purpose of the right to
personal liberty. The article argues for the HRC to adopt a more systematic approach to inter-
preting and applying that right in particular and the provisions of the ICCPR in general.
Keywords
Right to personal liberty, public prosecutors, officer authorised by law, independence, impartiality,
Article 9(3) ICCPR, Article 5(3) ECHR
1. INTRODUCTION
This article discusses the approach of the United Nations Human Rights Committee (HRC) and the
European Court of Human Rights (ECtHR) in interpreting and applying the right to personal liberty,
Corresponding author:
Laura-Stella Enonchong, Senior Lecturer, Faculty of Business & Law, De Montfort University, Hugh Aston, Leicester, LE1
9BH, UK.
Email: laura.enonchong@dmu.ac.uk
Article
Netherlands Quarterly of Human Rights
2022, Vol. 40(3) 222–243
© The Author(s) 2022
Article reuse guidelines:
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DOI: 10.1177/09240519221115280
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in particular in relation to judicial control of detention by a judge or ‘an other officer authorised by law’
pursuant to Article 9(3) of the International Covenant on Civil and Political Rights (ICCPR) and Article
cial control of deprivation of liberty by a judge or any other officer authorised by the domestic law of
contracting States, to exercise judicial power. There is a considerable body of scholarly research on the
right to personal liberty,
1
but what is often overlooked in these studies is the scope of the institutional
requirement for judicial control of the deprivation of liberty. That requirement assumes significance in
particular in civil law-oriented jurisdictions where under domestic law, both judges and prosecutors
may be institutionally competent to exercise judicial control. With the advent of the European
Public Prosecutor’sOffice in the prosecution of crimes affecting the EU’sfinancial interests, there is
a renewed focus on the competence of domestic public prosecutors in judicial control of arrest and
detention, particularly with regard to their independence and impartiality.
2
This renewed focus is
important not only for European Union budget-related crimes, but also for the right to personal
liberty as guaranteed under international and regional human rights law. The HRC and ECtHR have
often been called upon to decide on the competence of the prosecutor as ‘an other officer authorised
to exercise judicial power’taking into account their independence and impartiality. This article analyses
their response to that question and in so doing expands on knowledge of the right to personal liberty in
relation to the requirements for the independence of public prosecutors.
The article applies the general rules of treaty interpretation as outlined in the Vienna Convention
on the Law of Treaties 1969 (VCLT)
3
as an analytical framework to assess the interpretative
approach adopted by the HRC and the ECtHR in interpreting Article 9(3) ICCPR and Article
5(3) ECHR respectively. It finds that both institutions, in applying the object and purpose approach
to interpretation, have arrived at an identical understanding of the concept of ‘an other officer
authorised by law to exercise judicial power’. However, in the application to individual cases,
unlike the ECtHR, the HRC fails to systematically analyse the specific nature of the prosecutor’s
independence. Moreover, both institutions demonstrate a variance in the way that they outline
the two dimensions of prosecutorial independence. The HRC takes the view that the prosecutor
must be objectively independent from the executive hierarchy in order to be considered as ‘an
other officer authorised by law’to exercise judicial power. Nevertheless, this is done with insuffi-
cient analysis and unsatisfactory justification for its decisions. In addition, it decides on the subject-
ive independence of the prosecutor without outlining in specific terms the basis of that
determination. In contrast, the ECtHR conducts a more systematic analysis of the specific nature
of the prosecutor’s independence and outlines more clearly the substantive requirements for both
the subjective and objective independence of the prosecutor. As a result of the discrepancy in
1. Andrew Ashworth, ‘Negotiating the Fundamental Right to Personal Liberty: Four Problem Cases: F.W. Guest Memorial
Lecture 14 March 2012’(2013–2014) 13 Otago Law Review 1; Laura-Stella Enonchong, ‘Mental Disability and the Right
to Personal Liberty in Africa’(2017) 21(9) The International Journal of Human Rights 1355; Claire Macken,
Counter-Terrorism and the Detention of Suspected Terrorists: Preventive Detention and International Law
(Routledge 2011) 39–67; Sarah Joseph and Melissa Castan, The International Covenant on Civil and Political Rights:
Cases, Materials and Commentary (3rd ed, Oxford University Press 2013) 303–340; Claire Macken, ‘Preventive
Detention and the Right of Personal Liberty and Security under the International Covenant on Civil and Political
Rights, 1966’(2005) 26(1) Adelaide Law Review 1.
2. European Public Prosecutor’sOffice,
and-bodies-supporting-judicial-cooperation/european-public-prosecutors-office_en> accessed 15 November 2021.
3. Vienna Convention on the Law of Treaties, 23 May 1969, 1155 U.N.T.S. 331 (entered into force January 27 1980).
Enonchong 223
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