Human Rights and Arrest, Pre-Trial and Administrative Detention (based on chapter 5 of the Manual on Human Rights for Judges, Prosecutors and Lawyers: A Trainer s Guide) 1. International Rules Relating to Individual Liberty, Their Binding Character and the Requirement of State Action. 1.1 The International Covenant on Civil and Political Rights Article 9(1): 1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedures as are established by law. 1.2 Other legal instruments relevant to deprivations of liberty are: 1.2.1 Body of Principles for the Protection of All Persons under any Form of Detention or Imprisonment (General Assembly, 1988); 1.2.2 Declaration on the Protection of All Persons from Enforced Disappearance (General Assembly, 1992); 1.2.3 Principles on the Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions (ECOSOC resolution 1989/165); and 1.2.4 United Nations Standard Minimum Rules for Non- Custodial Measures (The Tokyo Rules) (General Assembly, 1990). 2 Rules Relating to Arrest and Detention
2 2.1 To be lawful under international human rights law, arrests and detentions must: 1 2.1.1 be carried out in accordance with both formal and substantive rules of domestic and international law. 2 2.1.2 be free from arbitrariness in that the laws and their application must be appropriate, just foreseeable/predictable and comply with due process of law. 2.2 International law prohibits unacknowledged arrests and detentions. States are accountable for all persons in their custody. The date, time and location of all detainees must in particular be available to families, lawyers and all competent judicial and other authorities at all times in official registers, the accuracy of which should not be open to doubt. 3 2.3 Involuntary or enforced disappearances and unacknowledged detentions constitute particularly serious violations of fundamental human rights, including the right to liberty and security. 4 2.4 A person s deprivation of liberty must at all times be objectively justified in that the reasonableness of the grounds of detention must be assessed from the point of view of an objective observer and based on facts and not just subjective suspicion. 2.5 The most common grounds for a lawful judicial deprivation of liberty are: 2.5.1 after conviction by a competent, independent and impartial court of law; 2.5.2 on reasonable suspicion of having committed an offence or in order to prevent him or her from doing 1 2 3 4 Imprisonment Article 2. Imprisonment Article 15. Declaration on the Protection of All Persons from Enforced Disappearance Article 1.
3 so; 2.5.3 in order to prevent a person from fleeing after having committed a crime. 2.6 The basic legal rules regulating arrest and detention are also applicable to administrative detention, ie detention by the Executive for reasons unrelated to criminal activities, such as, for instance, detention for educational supervision, reasons of mental health, for the purpose of deportation and extradition, and in order to protect ordre public. 2.7 The international law of human rights provides important judicial guarantees also with respect to administrative detentions. The domestic law must provide for the possibility of challenging the lawfulness of such detentions before an ordinary court of law applying due process guarantees. 3 Right to be Informed of Reasons for Arrest/Detention and Right to be Brought Promptly Before a Judge 3.1 The International Covenant on Civil and Political Rights Article 9(2): 2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him. 3.2 A person deprived of his or her liberty must be promptly informed of the reasons for this arrest and detention in a language which he or she understands and in sufficient detail so as to be enabled to request a prompt decision by a judicial authority on the lawfulness the deprivation of liberty. 5 3.3 The International Covenant on Civil and Political Rights Article 9(3): Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized 5 Imprisonment Article 10;
4 by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgment. 3.4 A person arrested or detained on a criminal charge must be promptly brought before a judge or other officer, who is independent and impartial and who has the power to make a binding order for release. 6 The term promptly must be interpreted strictly and cannot be deprived of its essence even in crisis situations. 4 Right to Trial Within a Reasonable Time or Release Pending Trial 4.1 A person detained on a criminal charge has the right to trial within a reasonable time or to release pending trial. This protection follows both from the fact that everyone charged with a crime has the right to be presumed innocent until proved guilty and from the fact that deprivation of liberty must be an exceptional measure. The reasonableness of pretrial detention is assessed in the light of all circumstances of the particular case, such as: 7 4.1.1 the gravity of the offences; 4.1.2 the danger of absconding; 4.1.3 the danger of influencing witnesses, and of collusion with co-defendants; 4.1.4 the detainee s behaviour, eg the risk of re-offending; and 4.1.5 the conduct of the domestic authorities, including the complexity of the investigation. 6 7 United Nations Standard Minimum Rules for Non-Custodial Measures Articles 2 and 3.
5 4.2 [powerpoint] International Covenant on Civil and Political Rights - Article 9. Whenever feasible, release should be granted pending trial, if necessary by jointly ordering guarantees that the accused person will appear at his or her trial. 8 [powerpoint] ; International Covenant on Civil and Political Rights - Article 14(2). Throughout detention the right to presumption of innocence must be guaranteed. 9 5 Right to Have Lawfulness of a Detention Decided by a Court 5.1 [powerpoint] The International Covenant on Civil and Political Rights Article 9(4): Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful. 5.2 Everyone deprived of his or her liberty has the right to challenge the lawfulness of his or her arrest or detention before a court so that the court may decide without delay/speedily on the lawfulness of the detention or order the person s release if the detention is not lawful. 10 5.3 This right applies to all forms of deprivation of liberty, including administrative detention. 5.4 The judicial remedy must be effectively available to the detainee. Incommunicado detention is not a valid ground for refusing a detainee the right to challenge the lawfulness of his or her detention before a court of law. 5.5 [powerpoint] Universal Declaration of Human Rights - Article 10 The legality of the detention must be determined 8 9 10 United Nations Standard Minimum Rules for Non-Custodial Measures Article 6; Imprisonment Article 36; International Covenant on Civil and Political Rights Article 14(2).
6 by a court which is independent and impartial. Appeals to government ministers do not constitute a sufficient remedy for the purposes of challenging the lawfulness of the deprivations of liberty. 11 A court provides the necessary degree of objectivity and independence. 5.6 The court must have the power to review both the procedural and substantive grounds for the deprivation of liberty and be empowered to make a binding order for release of the detained person in case his or her deprivation of liberty is unlawful. 5.7 Every person deprived of his or her liberty is entitled to have the lawfulness of the continued detention subjected to periodic reviews for the purposes of testing whether the reasons for the deprivation of liberty remain valid; the exception to this rule is detention pursuant to a criminal conviction by a competent court. 5.8 The detained person must be allowed access to a lawyer and to appear in court to argue his or her case on equal terms with the prosecuting or other authorities; this right also implies that the detained person must have access to all relevant information concerning his or her case (equality of arms). 5.9 [powerpoint] International Covenant on Civil and Political Rights - Article 14(3). The court must act without delay/speedily, this means, as expeditiously as possible. What is considered to be without delay or speedily depends on the circumstances of each case. A delay must not be unreasonable and a lack of resources or vacation periods are not acceptable justifications for delay. 12 6 Right of Access to a Lawyer 6.1 [powerpoint] International Covenant on Civil and Political Rights - Article 14(3)(d); A detained person has the right to consult, and be assisted by, a lawyer in connection with the proceedings taken in order to test the 11 12 Universal Declaration of Human Rights Article 10. International Covenant on Civil and Political Rights Article 14(3).
7 legality of his or her detention. 13 7 Right to Compensation for Unlawful Detention 7.1 Everyone has the right to compensation for unlawful deprivation of liberty by reason of violations of international and/or national law. Such compensation may depend on the showing of damage. 14 8 The Question of Incommunicado Detention 8.1 Brief incommunicado detention, that is, a deprivation of liberty for a short period of time in complete isolation from the outside world, including family and lawyer, does not per se appear to be illegal under international human rights law, but it cannot be used in order to bar the detainee from exercising his or her rights as an arrested or detained person. 9 Conclusion [powerpoint] International Covenant on Civil and Political Rights - Article 9(1)This body of law and procedure on arrest and detention is designed to give effect to Article 9(1) of the ICCPR. 1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedures as are established by law. 13 14 International Covenant on Civil and Political Rights Article 14(3)(d); American Convention on Human Rights Article 8. International Covenant on Civil and Political Rights Article 9(5); American Convention on Human Rights Article 10.