Article 3 of UDHR
“Everyone has the right to life, liberty and security of the person.”
Article 9 of UDHR
“No one shall be subjected to arbitrary arrest, detention or exile.”
Article 9 (1) of ICCPR
“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 procedure as are established by law.”
In its general comment No. 35 (2014), the Human Rights Committee stated “Liberty and security of person are precious for their own sake, and also because deprivation of liberty and security of person have historically been principal means for impairing the enjoyment of other rights.” The Human Rights Committee has defined liberty of
5 Cody Mason, International Growth Trends in Prison Privatization, The Sentencing Project, 2013, sentencingproject.org.
person as “freedom from confinement of the body, not a general freedom of action”,6 and security of person as “freedom from injury to the body and mind”.7
The right to personal liberty and security provides protection against arbitrary or unlawful arrest and detention and against the intentional infliction of bodily or mental injury regardless of whether the victim is detained or not. These basic guarantees apply to everyone, including persons held in prison or remand on criminal charges or on such grounds as mental illness, vagrancy, institutional custody of children or for the purposes of immigration control. Other restrictions on freedom of movement, such as confinement to a certain region of a country, curfews, expulsion from a country or prohibition to leave a country, do not constitute interference with personal liberty or security, although they may violate other human rights, such as freedom of movement and residence (Article 12, ICCPR).
Box 56 Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms: permissible grounds for arrest and detention
• Imprisonment of a person after conviction for a criminal offence
• Police custody and pre-trial detention of a criminal suspect in order to prevent flight, interference with evidence or recurrence
• Detention in a civil context to ensure that a witness appears in court or undergoes a paternity test
• Detention of aliens in connection with immigration, asylum, expulsion and extradition
• Detention of minors for the purpose of educational supervision
• Detention of persons with mental disabilities in a psychiatric hospital
• Quarantine of sick persons in order to contain infectious diseases
• Detention of alcoholics, drug addicts and vagrants
When is arrest or detention lawful?
An individual may be deprived of his or her liberty only on legal grounds and under a procedure established by law. The procedure must conform not only to domestic law but also to international standards. The relevant domestic law must not be arbitrary, i.e. it must not be tainted by inappropriateness, injustice or unpredictability. Moreover, law enforcement in any given case must not be arbitrary or discriminatory, but should be proportionate to all of the circumstances surrounding the case. In addition, the Human Rights Committee noted in paragraph 12 of general comment No. 35 (2014)
“Aside from judicially imposed sentences for a fixed period of time, the decision to
6 Human Rights Committee, communication No. 854/1999, Wackenheim v. France, paragraph 6.3.
7 Human Rights Committee, general comment No. 35 (2014), paragraph 3.
keep a person in any form of detention is arbitrary if it is not subject to periodic re-evaluation of the justification for continuing the detention.”
Box 57 Human Rights Committee jurisprudence on pre-trial detention According to the Human Rights Committee, pre-trial detention must be lawful, necessary and reasonable under given circumstances. The Human Rights Committee has recognized that the ICCPR allows authorities to hold a person in custody as an exceptional measure, if necessary to ensure that person’s appearance in court, but has interpreted the “necessity” requirement narrowly:
suspicion that a person has committed a crime does not by itself justify
detention pending investigation and indictment (see A.W. Mukong v. Cameroon, communication No. 458/1991). The Human Rights Committee has also held, however, that custody may be necessary to prevent flight, avert interference with witnesses and other evidence or prevent the commission of further offences (see Hill v. Spain, communication No. 526/1993, paragraph 12.3).
Typical examples of permissible grounds for arrest and detention are to be found in Article 5 of ECHR, which is understood to provide an exhaustive list of cases of lawful deprivation of liberty in Europe (see Box 56) and can serve as a basis for interpreting the term “arbitrary deprivation of liberty” in Article 9 of the ICCPR. Any imprisonment on mere grounds of inability to fulfil a contractual obligation, such as reimbursing a debt, is explicitly prohibited by Article 11 of the ICCPR, Article 7 (7) of ACHR and Article 1 of the Fourth Additional Protocol to the ECHR.
What rights does a person have when in custody?
• Arrested persons have the right to be informed promptly of the reasons for their arrest and detention and of their right to counsel. They must be promptly informed of any charges brought against them in order to be able to challenge the lawfulness of their arrest or detention and, if indicted, to prepare their defence (ICCPR, Article 9 (4)).
• Persons facing a possible criminal charge have the right to be assisted by a lawyer of their choice. If they cannot afford a lawyer, they should be provided with a qualified and effective counsel. Adequate time and facilities should be made available for communication with their counsel. Access to counsel should be immediate (ICCPR, Article 14 (3) (d)).
• Persons in custody have the right to communicate with the outside world and, in particular, to have prompt access to their family, lawyer, physician, a judicial official and, if the detainee is a foreign national, consular staff or a competent international organization. Communication with third parties is an essential safeguard against such human rights violations as secret and incommunicado detention, enforced disappearances, torture and ill-treatment and is vital to obtaining a fair trial (United Nations Body of Principles for the Protection of All Persons under Any Form of Detention, Article 16).
• Persons arrested on suspicion of a criminal offence have the right to be brought promptly before a judge or other judicial officer, who must (a) assess whether there are sufficient legal grounds for the arrest, (b) assess whether detention before trial is necessary, (c) safeguard the well-being of the detainee and (d) prevent violations of the detainee’s fundamental rights (ICCPR, Article 9).
• Persons in pre-trial detention have the right to be tried within a reasonable time or else be released. In accordance with the presumption of innocence, people awaiting trial on criminal charges should not be held in custody, as a general rule (ICCPR, Article 9 (3)).
• Persons deprived of their liberty on whatever grounds have the right to habeas corpus, i.e. they may challenge the lawfulness of their detention before a court and have their detention regularly reviewed. The court must decide without delay, normally within a few days or weeks, on the lawfulness of the detention and order immediate release if the detention is unlawful. If detention for an unspecified period of time is ordered (for instance, in a psychiatric hospital), the detainee has a right to periodic review, normally every few months (ICCPR, Article 9 (4)).
• Any victim of unlawful arrest or detention has an enforceable right to compensation (ICCPR, Article 9 (5)).