Chapter 5 HUMAN RIGHTS AND ARREST, PRE-TRIAL …

1 Chapter 5 HUMAN RIGHTSAND ARREST, PRE-TRIAL DETENTIONAND ObjectiveslTo familiarize participants with existing international legal standards regarding theright to liberty and security of the person and which protect HUMAN RIGHTS both inconnection with and during arrest, PRE-TRIAL detention and administrative detention;lTo illustrate how the various legal guarantees are enforced in practice in order toprotect the RIGHTS of detained persons and their legal counsel;lTo explain what legal measures and/or actions judges, prosecutors and lawyers musttake in order to safeguard the RIGHTS of the persons arrested or what basis can persons be detained on remand in your country, and whatalternatives to such detention are available pending trial?lFor how long can people be deprived of their liberty in your country before they mustbe brought before a judge in order to have the legality of their deprivation of libertydetermined?

2 LHow does the law in the country where you work as judges, prosecutors or lawyersprotect individuals against unlawful or arbitrary arrests and detention?lDo illegal or arbitrary arrests and detentions occur in the country where you exerciseyour professional responsibilities?lIf faced with an arrest and detention that appears to be unlawful or arbitrary, whatwould you do about it, and what could you do about it, given the present status of thelaw in the country where you work? HUMAN RIGHTS in the Administration of Justice: A Manual on HUMAN RIGHTS for Judges, Prosecutors and Lawyers159 Questions ( )lWhat remedies exist in your country for persons who consider that they areunlawfully or arbitrarily deprived of their liberty ?lIf a person is found by a judge to have been unlawfully or otherwise arbitrarilydeprived of his or her liberty , is there a right in your country to compensation orreparation for unlawful or arbitrary imprisonment?

3 LOn what grounds can persons be subjected to detention by theadministrativeauthorities in your country, and what legal remedies do they have at their disposal tochallenge the legality of the initial and subsequent deprivation of liberty ?lAt what point following their arrest/detention do persons deprived of their libertyhave the right of access to a lawyer in your country?lDoes the law in your country authorize resort toincommunicadodetention, and,if so, for how long?lBefore joining this course, what did you know about the international legal standardsapplicable to arrest and detention?Relevant Legal InstrumentsUniversal InstrumentslThe Universal Declaration of HUMAN RIGHTS , 1948lThe International Covenant on Civil and Political RIGHTS , 1966**lThe Body of Principles for the Protection of All Persons under anyForm of Detention or Imprisonment, 1988;lThe Declaration on the Protection of All Persons from EnforcedDisappearance, 1992;lThe Principles on the Effective Prevention and Investigation ofExtra-legal, Arbitrary and Summary Executions, 1989 Regional InstrumentslThe African Charter on HUMAN and Peoples RIGHTS , 1981lThe American Convention on HUMAN RIGHTS , 1969lThe European Convention on HUMAN RIGHTS , 1950160 HUMAN RIGHTS in the Administration of Justice: A Manual on HUMAN RIGHTS for Judges, Prosecutors and LawyersChapter 5 HUMAN RIGHTS and Arrest, PRE-TRIAL and Administrative Detention1.

4 IntroductionThe present Chapter will provide an analysis of the basic legal rules governingarrest, detention on remand and administrative detention in international HUMAN rightslaw. In so doing, it will, inter alia, deal in some depth with the reasons justifying arrestand continued detention and the right of a person deprived of his or her liberty tochallenge the legality of this deprivation of liberty . Emphasis will be laid on thejurisprudence of the HUMAN RIGHTS Committee, the Inter-American and EuropeanCourts of HUMAN RIGHTS , and the African Commission on HUMAN and Peoples RIGHTS ,which provide interpretations which are indispensable for a full understanding of themeaning of the international legal rules governing arrest and to the treatment of detainees and the specific interests and RIGHTS ofchildren and women, these issues, although in many ways very closely linked to thesubject matter of the present Chapter , will be dealt with in separate chapters focusingspecifically on the RIGHTS and interests of these groups (see Chapters 8, 10 and 11 of thisManual).

5 2. Arrests and Detention withoutReasonable Cause: a PersistentProblemAll HUMAN beings have the right to enjoy respect for their liberty and is axiomatic that, without an efficient guarantee of the liberty and security of thehuman person, the protection of other individual RIGHTS becomes increasinglyvulnerable and often illusory. Yet, as is evidenced by the work of the internationalmonitoring organs, arrests and detentions without reasonable cause, and without therebeing any effective legal remedies available to the victims concerned, are the course of such arbitrary and unlawful deprivations of liberty , the detainees arefrequently also deprived of access both to lawyers and to their own families, and alsosubjected to torture and other forms of is essential, therefore, that the legal rules that exist in internationallaw to remedy and prevent these kinds of HUMAN RIGHTS violations be adhered toby national judges and prosecutors, and that lawyers are aware of their contents,to enable them to act effectively on behalf of their arbitrary or unlawful arrests and detentions occur, and can occur, atany time, the experience of, inter alia.

6 The Working Group on Arbitrary Detention hasshown that the main causes of arbitrary detentions are related to states of , the question of emergency powers relating to deprivation of liberty will be dealtwith in Chapter 16 of this Manual, and will thus not be considered in the present RIGHTS in the Administration of Justice: A Manual on HUMAN RIGHTS for Judges, Prosecutors and Lawyers161 Chapter 5 HUMAN RIGHTS and Arrest, PRE-TRIAL and Administrative Detention1 See UN doc. ,Report of the Working Group on Arbitrary doc. 40,Report of the Working Group on Arbitrary Detention, para. The Right to liberty andSecurity of the Person:Field of Applicability of theLegal Universal legal responsibility:All States are bound by the lawArticle 9(1) of the International Covenant on Civil and Political RIGHTS , article6 of the African Charter of HUMAN and Peoples RIGHTS , article 7(1) of the AmericanConvention on HUMAN RIGHTS and article 5(1) of the European Convention on HumanRights guarantee a person s right to liberty and security.

7 Moreover, as stated by theInternational Court of Justice in itsdictumin theHostages in Tehrancase, wrongfully todeprive HUMAN beings of their freedom and to subject them to physical constraint inconditions of hardship is in itself incompatible with the principles of the Charter of theUnited Nations, as well as with the fundamental principles enunciated in the UniversalDeclaration of HUMAN RIGHTS , article 3 of which guarantees the right to life, libertyand security of person .3It follows that, notwithstanding that a State may nothave ratified or otherwise adhered to any of the preceding HUMAN RIGHTS treaties,it is nonetheless bound by other legal sources to ensure a person s right to respectfor his or her liberty and The notion of security of person:State responsibility to actThe present Chapter will focus ondeprivations of liberty , but it is importantto point out that, in spite of being linked to the concept of liberty in theabove-mentioned legal texts, the notion ofsecurity of person, as such, has awiderfield of application.

8 The HUMAN RIGHTS Committee has thus held that article 9(1) ofthe Covenant protects the right to security of person also outside the context offormal deprivation of liberty , and that an interpretation of article 9 which wouldallow a State party to ignore threats to the personal security of non-detained personssubject to its jurisdiction would render totally ineffective the guarantees of theCovenant .4In the view of the Committee, it cannot be the case that, as a matter oflaw, States can ignore known threats to the life of persons under their jurisdiction, justbecause he or she is not arrested or otherwise detained ; on the contrary, States partiesare under an obligation to take reasonable and appropriate measures to protect them .5162 HUMAN RIGHTS in the Administration of Justice: A Manual on HUMAN RIGHTS for Judges, Prosecutors and LawyersChapter 5 HUMAN RIGHTS and Arrest, PRE-TRIAL and Administrative Detention3 Case Concerning United States Diplomatic and Consular Staff in Tehran (United States of America v.)

9 Iran),ICJ Reports 1980, p. 42, para. No. 711/1996,Dias v. Angola(Views adopted on 20 March 2000), in UN , A/55/50 (vol. II), p. 114,para. No. 195/1985,W. Delgado P ez v. Colombia(Views adopted on 12 July 1990), in UN , A/45/40(vol. II), p. 47, para. relevant casesIn the case ofDelgado P ez, where the author had received death threats, beensubjected to one personal assault and had a colleague murdered, the HUMAN RightsCommittee concluded that article 9(1) had been violated since Colombia either hadnot taken, or had been unable to take, appropriate measures to ensure Mr. Delgado sright to security of his person .6In the case ofDias, the Committee concluded thatarticle 9(1) had been violated since it was the Angolan authorities themselves thatwere alleged to be the sources of the threats and the State party had neither denied theallegations, nor cooperated with the , in a case where the authorwas shot from behind before being arrested, the Committee concluded that his rightto security of the person as guaranteed by article 9(1) was HUMAN beings have the right to liberty and of their treaty obligations, all States are bound byinternational law to respect and ensure everybody s right to liberty andsecurity of the person (universal legal responsibility).

10 The notion of security also covers threats to the personal security ofnon-detained persons. States cannot be passive in the face of such threats,but are under a legal obligation to take reasonable and appropriatemeasures to protect liberty and security of Lawful Arrests and The legal textsArticle 9(1) of the International Covenant on Civil and Political RIGHTS readsas follows: has the right to liberty and security of person. No one shallbe subjected to arbitrary arrest or detention. No one shall be deprived ofhis liberty except on such grounds and in accordance with such procedureas are established by law. HUMAN RIGHTS in the Administration of Justice: A Manual on HUMAN RIGHTS for Judges, Prosecutors and Lawyers163 Chapter 5 HUMAN RIGHTS and Arrest, PRE-TRIAL and Administrative Detention6 Ibid., p. 48, para. No. 711/1996,Dias v. Angola(Views adopted on 20 March 2000), in UN , A/55/50 (vol.)