Condensed: Administrative detention is detention of individuals by state authorities outside the criminal law context for reasons including (1) security, (2) deportation with a view to deportation or extradition and (3) the prevention of spreading of infectious diseases. Administrative or preventive detention must be provided for in law, be necessary in the circumstances and subject to regular review. Comprehensive: Article 9(1) of the ICCPR provides that ‘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.’
The American Convention on Human Rights outlines in its Article 7.2: ´No one shall be deprived of his physical liberty except for the reasons and under the conditions established beforehand by the constitution of the State Party concerned or by a law established pursuant thereto. In its Article 7.3 it outlines: ´No one shall be subject to arbitrary arrest or imprisonment.´ and finally its Article 7.5 says: ´Any person detained shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to be released without prejudice to the continuation of the proceedings. His release may be subject to guarantees to assure his appearance for trial.´
Finally, the European Convention on Human Rights refers to arbitrary and preventive detentive in its Article 5.
According to the UN Working Group on Arbitrary Detention (WGAD) administrative detention can be defined as ‘arrest or detention of individuals by state authorities outside the criminal law context, for example for reasons of security, including terrorism, as a form of preventative detention, as well as to restrain irregular migrants. In addition to detention of suspected terrorists and illegal immigrants, administrative authorities may also order detention inter alia on grounds of mental illness, drug addiction and for educational reform of children.[1] (See *forced institutionalisation*, *children - detention as last resort and for shortest time possible*) WGAD further notes: ‘The practice of administrative detention is informed by the belief that by detaining a person, a preventive action has been carried out thus securing society, community and State.’[2] WGAD has held that administrative detention of persons suspected of terrorism is impermissible and that detention of terrorism suspects should always be accompanied by concrete charges.[3] The UN Special Rapporteur on Terrorism has stated that any legal provisions allowing for administrative detention should be abolished and that effective measures to release or to bring to trial all detainees currently subjected to that regime should be effected.[4] In contrast the ECtHR has held that a state has a wide margin of appreciation to derogate from article 5 of the ECHR on national security grounds.[5] Administrative detention for a legitimate purpose is permissible if provided in law,[6] necessary in the circumstances and subject to regular review.[7] The detained person has the *right to challenge the legality of the detention* before a court, which must have the power to release the detained person.[8] The UNHCR Revised Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum Seekers provide that ‘In assessing whether detention of asylum-seekers is necessary, account should be taken of whether it is reasonable to do so and whether it is proportional to the objectives to be achieved. If judged necessary it should be imposed in a non discriminatory manner for a minimal period’.[9] Detention may only be resorted to, if necessary to (1) verify identity in those cases where it may be in dispute; (2) to determine the elements on which the claim for refugee status or asylum is based; (3) in cases where asylum-seekers have destroyed their travel or identity documents or have used fraudulent documents in order to mislead the authorities of the state; (4) to protect national security and public order.[10] In A v Australia,[11] the applicant was a Cambodian national who upon arrival in Australia applied for refugee status and was detained for four years. The HRC, in finding a violation of the ICCPR, ruled that ‘detention should not continue beyond the period for which the state can provide appropriate justification’.[12] With regard to deprivation of liberty to prevent the spreading of infectious diseases the ECtHR held in Enhorn v Sweden:[13] [T]he essential criteria when assessing the ’lawfulness’ of the detention of a person ‘for the prevention of the spreading of infectious diseases’ are whether the spreading of the infectious disease is dangerous to public health or safety, and whether detention of the person infected is the last resort in order to prevent the spreading of the disease, because less severe measures have been considered and found to be insufficient to safeguard the public interest. When these criteria are no longer fulfilled, the basis for the deprivation of liberty ceases to exist. The ECtHR found that the detention of the applicant for a total of almost one and a half year to prevent him from spreading HIV violated the ECHR since ‘less severe measures had not been considered and found to be insufficient to safeguard the public interest’[14] The HRC has held that preventive detention (defined as indefinite detention until release by the parole board) as a sentence for a crime does not violate the ICCPR, but that the detained person must have opportunity to challenge the continued detention.[15] Such detention may not be ordered to prevent the release of a prisoner who has already served his sentence.[16]
In addition, the Body of Principles for the Protection of All Persons under Any Form of Detention of Imprisonment (adopted by the GA in 1988) outlines that ´A person shall not be kept in detention without being given an effective opportunity to be heard promptly by a judicial or other authority´.
[2] Report of the Working Group on Arbitrary Detention A/HRC/13/30 para 77.
[3] Report of the Working Group on Arbitrary Detention, A/HRC/10/21 (16 February 2009) para 54.
[4] Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, Mission to Egypt, A/HRC/13/37/Add.2 (2009) para 53.
[5]A and Others v UK application 3455/05 (ECtHR (GC) 2009) para 180. See also Secretary of State for the Home Department v JJ and others [2007] UKHL 45 where the ‘control order’ system in the UK was held by the UK House of Lords to violate art 5 of the ECHR as there had been no derogation.
[6] See eg A v Australia communication 560/1993 (HRC 1997) para 9.3; Everett v Spain communication 961/2000 (HRC 2004); ECHR art 5(1)(f); CMW art 16(4).
Administrative detention is detention of individuals by state authorities outside the criminal law context for reasons including (1) security, (2) deportation with a view to deportation or extradition and (3) the prevention of spreading of infectious diseases.
Administrative or preventive detention must be provided for in law, be necessary in the circumstances and subject to regular review.
Comprehensive:
Article 9(1) of the ICCPR provides that ‘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.’
The American Convention on Human Rights outlines in its Article 7.2: ´No one shall be deprived of his physical liberty except for the reasons and under the conditions established beforehand by the constitution of the State Party concerned or by a law established pursuant thereto. In its Article 7.3 it outlines: ´No one shall be subject to arbitrary arrest or imprisonment.´ and finally its Article 7.5 says: ´Any person detained shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to be released without prejudice to the continuation of the proceedings. His release may be subject to guarantees to assure his appearance for trial.´
Finally, the European Convention on Human Rights refers to arbitrary and preventive detentive in its Article 5.
According to the UN Working Group on Arbitrary Detention (WGAD) administrative detention can be defined as ‘arrest or detention of individuals by state authorities outside the criminal law context, for example for reasons of security, including terrorism, as a form of preventative detention, as well as to restrain irregular migrants. In addition to detention of suspected terrorists and illegal immigrants, administrative authorities may also order detention inter alia on grounds of mental illness, drug addiction and for educational reform of children.[1] (See *forced institutionalisation*, *children - detention as last resort and for shortest time possible*)
WGAD further notes: ‘The practice of administrative detention is informed by the belief that by detaining a person, a preventive action has been carried out thus securing society, community and State.’[2]
WGAD has held that administrative detention of persons suspected of terrorism is impermissible and that detention of terrorism suspects should always be accompanied by concrete charges.[3] The UN Special Rapporteur on Terrorism has stated that any legal provisions allowing for administrative detention should be abolished and that effective measures to release or to bring to trial all detainees currently subjected to that regime should be effected.[4] In contrast the ECtHR has held that a state has a wide margin of appreciation to derogate from article 5 of the ECHR on national security grounds.[5]
Administrative detention for a legitimate purpose is permissible if provided in law,[6] necessary in the circumstances and subject to regular review.[7] The detained person has the *right to challenge the legality of the detention* before a court, which must have the power to release the detained person.[8]
The UNHCR Revised Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum Seekers provide that ‘In assessing whether detention of asylum-seekers is necessary, account should be taken of whether it is reasonable to do so and whether it is proportional to the objectives to be achieved. If judged necessary it should be imposed in a non discriminatory manner for a minimal period’.[9] Detention may only be resorted to, if necessary to
(1) verify identity in those cases where it may be in dispute;
(2) to determine the elements on which the claim for refugee status or asylum is based;
(3) in cases where asylum-seekers have destroyed their travel or identity documents or have used fraudulent documents in order to mislead the authorities of the state;
(4) to protect national security and public order.[10]
In A v Australia,[11] the applicant was a Cambodian national who upon arrival in Australia applied for refugee status and was detained for four years. The HRC, in finding a violation of the ICCPR, ruled that ‘detention should not continue beyond the period for which the state can provide appropriate justification’.[12]
With regard to deprivation of liberty to prevent the spreading of infectious diseases the ECtHR held in Enhorn v Sweden:[13]
[T]he essential criteria when assessing the ’lawfulness’ of the detention of a person ‘for the prevention of the spreading of infectious diseases’ are whether the spreading of the infectious disease is dangerous to public health or safety, and whether detention of the person infected is the last resort in order to prevent the spreading of the disease, because less severe measures have been considered and found to be insufficient to safeguard the public interest. When these criteria are no longer fulfilled, the basis for the deprivation of liberty ceases to exist.
The ECtHR found that the detention of the applicant for a total of almost one and a half year to prevent him from spreading HIV violated the ECHR since ‘less severe measures had not been considered and found to be insufficient to safeguard the public interest’[14]
The HRC has held that preventive detention (defined as indefinite detention until release by the parole board) as a sentence for a crime does not violate the ICCPR, but that the detained person must have opportunity to challenge the continued detention.[15] Such detention may not be ordered to prevent the release of a prisoner who has already served his sentence.[16]
In addition, the Body of Principles for the Protection of All Persons under Any Form of Detention of Imprisonment (adopted by the GA in 1988) outlines that ´A person shall not be kept in detention without being given an effective opportunity to be heard promptly by a judicial or other authority´.
[1] HRC General Comment 8 para 1.
[2] Report of the Working Group on Arbitrary Detention A/HRC/13/30 para 77.
[3] Report of the Working Group on Arbitrary Detention, A/HRC/10/21 (16 February 2009) para 54.
[4] Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms while Countering Terrorism, Mission to Egypt, A/HRC/13/37/Add.2 (2009) para 53.
[5] A and Others v UK application 3455/05 (ECtHR (GC) 2009) para 180. See also Secretary of State for the Home Department v JJ and others [2007] UKHL 45 where the ‘control order’ system in the UK was held by the UK House of Lords to violate art 5 of the ECHR as there had been no derogation.
[6] See eg A v Australia communication 560/1993 (HRC 1997) para 9.3; Everett v Spain communication 961/2000 (HRC 2004); ECHR art 5(1)(f); CMW art 16(4).
[7]A v Australiapara 9.4.
[8]Art 9(4) ICCPR; A v Australiapara 9.5.
[9]See UNHCR Revised Guidelines On Applicable Criteria and Standards Relating to the Detention of Asylum Seekers (February 1999) Guideline 3.
[10]As above.
[11]A v Australiaparas.9.3 & 9.4.
[12]A v Australiapara 9.4.
[13]Enhorn v Sweden, application 56529/00 (ECtHR 2005) para 44.
[14]Enhorn v Swedenpara55.
[15] Dean v New Zealand communication 1512/2006 (HRC 2009) para 7.4
[16] Fardon v Australia communication 1629/2007 (HRC 2010) para 7.4.