EUROPEAN COURT OF HUMAN RIGHTS IN ACTION / Alla Tymofeyeva (ed.)

CHAPTER VIII. PROTOCOL NO. 4 TO THE CONVENTION

MAIN PROVISIONS RELATING TO THE SUBJECT Protocol No. 4 to the Convention was adopted on 1 September1963 in Strasbourg. It entered into force on 2 May 1968. Greece, Switzerland, Turkey and the United Kingdom are not parties to this treaty. Basic information on how the rights guaranteed by Protocol No. 4 to the Convention should be interpreted can be found in the Explanatory Report to Protocol No. 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms, securing certain rights and freedoms other than those already included in the Convention and in the first Protocol thereto (ETS No. 46). Protocol No. 4 was prepared within the framework of the Council of Europe by the Committee of Experts on Human Rights. It was opened for signature on 16 September 1963. Publication of this explanatory report and of the commentary of the Committee of Experts on Human Rights was authorised by the Committee of Ministers at the 139th Meeting of the Ministers’ Deputies in March, 1965. The Explanatory Report to Protocol No. 4 is available on the web pages of the Council of Europe Treaty Office – https://rm.coe.int/CoERMPublicCommonSearchServices/ DisplayDCTMContent?documentId=09000016800c92c0. Article 1 of Protocol No. 4 to the Convention Prohibition of imprisonment for debt No one shall be deprived of his liberty merely on the ground of inability to fulfil a contractual obligation. General principles of the Court and explanations The wording “deprived of his liberty” in this Article is designed to cover loss of liberty for any length of time , whether by detention or by arrest. The wording was designed to reinforce the terms of Article 5 of the Convention which guarantees the right of every person to liberty and security. In Article 5, paragraph (1), the expression “no-one shall be deprived of his liberty…” is used. Furthermore, in the case it was designed to cover, this provision prohibits not only detention but also arrest. This article relates to failure to fulfil contractural obligations of any kind and not only money debts. It may refer, accordingly, to nondelivery, non-performance or non-forbearance. Such obligations must, however, arise out of contract. The Article does not apply to obligations arising from legislation in public or private law. Deprivation of liberty is not forbidden if any other factor is present in addition to the inability to fulfil a contractual obligation, for example: • if a debtor acts with malicious or fraudulent intent; • if a person deliberately refuses to fulfil an obligation, irrespective of his reasons therefore, • if inability to meet a commitment is due to negligence. The Article could not therefore be seen as prohibiting deprivation of liberty as a penalty for a proved criminal offence or as a necessary preventive measure before trial for such an offence , even if criminal law recognised as an offence an act or omission which was at the same time a failure to fulfil a contractual obligation.

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