La detenzione degli stranieri tra “restrizione” e “privazione” di libertà: la CEDU alla ricerca di Godot

Administrative detention measures vis-à-vis TCNs are legal tools widely applied by EU Member States to manage migration phenomena by exercising their sovereign power to control their territory. Indeed, these measures heavily compress the right to personal liberty enshrined in Article 5 ECHR of which everyone is entitled. The various ECHR guarantees provided for the detainee (e.g., the right to have lawfulness of detention speedily examined by a court) are triggered only when the latter is deprived – and not simply restricted – of his/her personal freedom. Thus, starting with Engel and Others and Guzzardi, the ECtHR has attempted to develop a system of criteria to distinguish those two circumstances, proposing to consider several factors to be adapted in casu. Yet, this approach has been partly overruled by the ECtHR in more recent years, when a different evaluation grid was built up with specific reference to migrants only. Indeed, the direction taken in recent times by the Strasbourg Court vis-à-vis TCNs placed in immigration detention risks being in open contrast with the universal nature of the right to liberty as enshrined in Article 5 ECHR. Conversely, a revival of the criteria established in Guzzardi also to cases of administrative detention of migrants could avoid a nuanced assessment over the applicability of Article 5 ECHR to them.