Condensed:
Deprivation of liberty is the coercedconfinement to a limited physical space such as a police cell, a prison cell, a closed hospital ward, a police car or through restraints such as handcuffs.
Deprivation of liberty is arbitrary (a) when it is clearly impossible to invoke any legal basis justifying the deprivation of liberty; (b) when the deprivation of liberty results from the exercise of certain rights as set out in the UDHR and ICCPR, for example freedom of expression or freedom of assembly; or (c) when there is grave disregard of international fair trial norms. A deprivation of liberty may be lawful in terms of domestic law but still arbitrary.
.Comprehensive:
Article 9(1) of the ICCPR provides inter alia:
No one shall be subject 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.
Similar provisions can be found in other international and regional human rights instruments.[1]
Whether an act is defined as arrest or detention the real issue is whether there is a deprivation of liberty. Deprivation of liberty is the coercedconfinement to a limited physical space such as a police cell, a prison cell, a closed hospital ward, a police car or through restraints such as handcuffs.[2] Deprivation of liberty extends to situations were even if the person was not physically restrained ‘it would be unrealistic to assume that he was free to leave.’[3] To determine whether deprivation of liberty has taken place ‘type, duration, effects and manner of implementation of the measure in question’ should be considered.[4]
Deprivation of liberty should be distinguished from mere restrictions on freedom of movement. The HRC has held that house arrest is a form of deprivation of liberty.[5] The ECtHR has held that if a person is allowed to leave his home for work, then house arrest does not constitute detention.[6] According to the HRC prohibition to leave a city constitutes restrictions on the freedom of movement and not detention.[7] (See *freedom of movement*).
The HRC has held that the prohibition of arbitrary arrest or detention relates to ‘all deprivations of liberty whether in criminal cases or in other cases such as mental illness, vagrancy, drug addiction, educational purposes, immigration control, etc.’[8] (See *administrative detention*, *forced institutionalisation*).
According to the UN Working Group on Arbitrary Detention (WGAD) deprivation of liberty is arbitrary
(a) when it is clearly impossible to invoke any legal basis justifying the deprivation of liberty;
(b) when the deprivation of liberty results from the exercise of certain rights as set out in the UDHR and ICCPR;[9]
(c) when the total or partial non-observance of the international norms relating to the right to a fair trial, is of such gravity as to give the deprivation of liberty an arbitrary character.[10]
According to WGAD detention without legal basis includes for example detention after completion of sentence or despite an applicable amnesty.[11]
In Domukovsky v Georgia two men were arrested in Azerbaijan and taken to Georgia for trial. The Georgian authorities argued that the arrest took place in line with an agreement on cooperation in criminal matters, but the Azeri authorities said they were not aware of any request from Georgia. The HRC held that the arrests were unlawful.[12] Arbitrariness ‘extends beyond lack of conformity with national law, so that a deprivation of liberty may be lawful in terms of domestic law but still arbitrary.’[13]
WGAD has held that to detain a person because he, on television, criticized the US presence in Iraq constituted arbitrary detention as it constituted detention because of political opinion.[14] Similarly, the African Commission has held that ‘[t]o detain persons on account of their political beliefs, especially where no charges are brought against them, renders the deprivation of liberty arbitrary.’[15]
In several cases WGAD has held that detention where procedural safeguards, such as information about charges and the right to challenge legality of detention were not followed constituted detention without legal basis and were therefore arbitrary.[16] Lengthy and unjustifiable pre-trial detention may also constitute arbitrary detention.[17] Detention as a result of a grossly disproportionate sentence may violate the prohibition of arbitrary detention, in particular if imposed without procedural safeguards.[18]
Both judicially ordered detention and *administrative detention* may be arbitrary. In A v Australia, the HRC held that while it is lawful to detain individuals seeking asylum, the continuing detention of more than four years was arbitrary given the absence of any grounds being invoked to justify such a period.[19] In Rafael Ferrer-Mazorra et al v United States, the Inter-American Commission held that the level of discretion given to US immigration officers meant that it was not clear when a refugee would be detained and this was an unacceptable level of unpredictability.[20]
Responsibility for arbitrary detention following informal transfer between two jurisdiction without procedural safeguards (rendition) is both with the detaining state and the ‘sending’ state.[21]
[1] CRC art 37(b); CMW art 16(4); CAT art 11; ACHPR art 6; ACHR art 7(3); Arab Charter art 14. ECHR art 5(1) prohibits deprivation of liberty except for six specified purposes where it is authorized. [2] See eg Bozano v France application 9990/82 (ECtHR 1986) paras 59, 60 (car); I.I. v Bulgaria application 44082/98 (ECtHR 2005) para 87. [3] I.I. v Bulgaria para 87. [4] I.I. v Bulgaria para 86. [5] Madani v Algeria, communication 1172/2003 (HRC 2007).
[6] Trijonis v Lithuania application 2333/02 (ECtHR 2005 (admissibility)). See also Secretary of State for the Home Department v JJ and others [2007] UKHL 45 para 24 (deprivation of liberty because of extensive control during the time allowed to leave the house arrest). [7] Celepli v Sweden, communication 456/1991 (HRC 1994). [8] General Comment 8 para 1. These forms of deprivation of liberty correspond to those listed in ECHR art 5(1). [9] Equality before the law (art 7 UDHR, art 26 ICCPR); freedom of movement, exit and re-entry (art 13 UDHR, art 12 ICCPR), right to asylum (art 14 UDHR), freedom of thought, conscience and religion (art 18 UDHR, art 18 ICCPR), freedom of opinion and expression (art 19 UDHR, art 19 ICCPR), freedom of assembly and association (art 20 UDHR, art 21, 22 ICCPR), political participation (art 21 UDHR, art 25 ICCPR), rights of minorities (art 27 ICCPR). [10] Fact sheet No. 26, The Working Group on Arbitrary Detention. [11] Fact sheet No. 26, The Working Group on Arbitrary Detention. [12] Domukovsky v Georgia communications 623/1995, 624/1995, 626/1995 and 627/1995 (HRC 1998) para 18.2. [13] Saadi v United Kingdomapplication 13229/03 (ECtHR 2008) para 67. See also van Alphen v Netherlands communication 305/1988 (HRC 1990) para 5.8. [14] Opinion 18/2007 (Jordan) para 17. [15] EgConstitutional Rights Project and Others v Nigeria communications 140/94, 141/94 and 145/95 (ACHPR 1999) para 51. [16] Opinion 15/2007 (Central African Republic); Opinion 19/2007 (Saudi Arabia). [17] Cf art 9(3) ICCPR: ‘It shall not be the general rule that persons awaiting trial shall be detained in custody’. [18] Communication 1189/2003 (HRC 2005) para 9.2. [19] A v Australia, communication 560/1993 (HRC 1997). Cf the ECtHR which has held that detention for the purpose of deprivation of liberty may be justified only for as long as deportation proceedings are in progress, A and Others v UK application 3455/05 (ECtHR (GC) 2009)) para 164. [20] Rafael Ferrer-Mazorra et al v United States, Case 9903 (IAComHR 2001). [21] Working Group on Arbitrary Detention, A/HRC/4/40 (2007) para 50.
Condensed:
Deprivation of liberty is the coerced confinement to a limited physical space such as a police cell, a prison cell, a closed hospital ward, a police car or through restraints such as handcuffs.
Deprivation of liberty is arbitrary (a) when it is clearly impossible to invoke any legal basis justifying the deprivation of liberty; (b) when the deprivation of liberty results from the exercise of certain rights as set out in the UDHR and ICCPR, for example freedom of expression or freedom of assembly; or (c) when there is grave disregard of international fair trial norms. A deprivation of liberty may be lawful in terms of domestic law but still arbitrary.
.Comprehensive:
Article 9(1) of the ICCPR provides inter alia:
No one shall be subject 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.
Similar provisions can be found in other international and regional human rights instruments.[1]
Whether an act is defined as arrest or detention the real issue is whether there is a deprivation of liberty. Deprivation of liberty is the coerced confinement to a limited physical space such as a police cell, a prison cell, a closed hospital ward, a police car or through restraints such as handcuffs.[2] Deprivation of liberty extends to situations were even if the person was not physically restrained ‘it would be unrealistic to assume that he was free to leave.’[3] To determine whether deprivation of liberty has taken place ‘type, duration, effects and manner of implementation of the measure in question’ should be considered.[4]
Deprivation of liberty should be distinguished from mere restrictions on freedom of movement. The HRC has held that house arrest is a form of deprivation of liberty.[5] The ECtHR has held that if a person is allowed to leave his home for work, then house arrest does not constitute detention.[6] According to the HRC prohibition to leave a city constitutes restrictions on the freedom of movement and not detention.[7] (See *freedom of movement*).
The HRC has held that the prohibition of arbitrary arrest or detention relates to ‘all deprivations of liberty whether in criminal cases or in other cases such as mental illness, vagrancy, drug addiction, educational purposes, immigration control, etc.’[8] (See *administrative detention*, *forced institutionalisation*).
According to the UN Working Group on Arbitrary Detention (WGAD) deprivation of liberty is arbitrary
(a) when it is clearly impossible to invoke any legal basis justifying the deprivation of liberty;
(b) when the deprivation of liberty results from the exercise of certain rights as set out in the UDHR and ICCPR;[9]
(c) when the total or partial non-observance of the international norms relating to the right to a fair trial, is of such gravity as to give the deprivation of liberty an arbitrary character.[10]
According to WGAD detention without legal basis includes for example detention after completion of sentence or despite an applicable amnesty.[11]
In Domukovsky v Georgia two men were arrested in Azerbaijan and taken to Georgia for trial. The Georgian authorities argued that the arrest took place in line with an agreement on cooperation in criminal matters, but the Azeri authorities said they were not aware of any request from Georgia. The HRC held that the arrests were unlawful.[12]
Arbitrariness ‘extends beyond lack of conformity with national law, so that a deprivation of liberty may be lawful in terms of domestic law but still arbitrary.’[13]
WGAD has held that to detain a person because he, on television, criticized the US presence in Iraq constituted arbitrary detention as it constituted detention because of political opinion.[14] Similarly, the African Commission has held that ‘[t]o detain persons on account of their political beliefs, especially where no charges are brought against them, renders the deprivation of liberty arbitrary.’[15]
In several cases WGAD has held that detention where procedural safeguards, such as information about charges and the right to challenge legality of detention were not followed constituted detention without legal basis and were therefore arbitrary.[16] Lengthy and unjustifiable pre-trial detention may also constitute arbitrary detention.[17] Detention as a result of a grossly disproportionate sentence may violate the prohibition of arbitrary detention, in particular if imposed without procedural safeguards.[18]
Both judicially ordered detention and *administrative detention* may be arbitrary. In A v Australia, the HRC held that while it is lawful to detain individuals seeking asylum, the continuing detention of more than four years was arbitrary given the absence of any grounds being invoked to justify such a period.[19] In Rafael Ferrer-Mazorra et al v United States, the Inter-American Commission held that the level of discretion given to US immigration officers meant that it was not clear when a refugee would be detained and this was an unacceptable level of unpredictability.[20]
Responsibility for arbitrary detention following informal transfer between two jurisdiction without procedural safeguards (rendition) is both with the detaining state and the ‘sending’ state.[21]
[1] CRC art 37(b); CMW art 16(4); CAT art 11; ACHPR art 6; ACHR art 7(3); Arab Charter art 14. ECHR art 5(1) prohibits deprivation of liberty except for six specified purposes where it is authorized.
[2] See eg Bozano v France application 9990/82 (ECtHR 1986) paras 59, 60 (car); I.I. v Bulgaria application 44082/98 (ECtHR 2005) para 87.
[3] I.I. v Bulgaria para 87.
[4] I.I. v Bulgaria para 86.
[5] Madani v Algeria, communication 1172/2003 (HRC 2007).
[6] Trijonis v Lithuania application 2333/02 (ECtHR 2005 (admissibility)). See also Secretary of State for the Home Department v JJ and others [2007] UKHL 45 para 24 (deprivation of liberty because of extensive control during the time allowed to leave the house arrest).
[7] Celepli v Sweden, communication 456/1991 (HRC 1994).
[8] General Comment 8 para 1. These forms of deprivation of liberty correspond to those listed in ECHR art 5(1).
[9] Equality before the law (art 7 UDHR, art 26 ICCPR); freedom of movement, exit and re-entry (art 13 UDHR, art 12 ICCPR), right to asylum (art 14 UDHR), freedom of thought, conscience and religion (art 18 UDHR, art 18 ICCPR), freedom of opinion and expression (art 19 UDHR, art 19 ICCPR), freedom of assembly and association (art 20 UDHR, art 21, 22 ICCPR), political participation (art 21 UDHR, art 25 ICCPR), rights of minorities (art 27 ICCPR).
[10] Fact sheet No. 26, The Working Group on Arbitrary Detention.
[11] Fact sheet No. 26, The Working Group on Arbitrary Detention.
[12] Domukovsky v Georgia communications 623/1995, 624/1995, 626/1995 and 627/1995 (HRC 1998) para 18.2.
[13] Saadi v United Kingdomapplication 13229/03 (ECtHR 2008) para 67. See also van Alphen v Netherlands communication 305/1988 (HRC 1990) para 5.8.
[14] Opinion 18/2007 (Jordan) para 17.
[15] EgConstitutional Rights Project and Others v Nigeria communications 140/94, 141/94 and 145/95 (ACHPR 1999) para 51.
[16] Opinion 15/2007 (Central African Republic); Opinion 19/2007 (Saudi Arabia).
[17] Cf art 9(3) ICCPR: ‘It shall not be the general rule that persons awaiting trial shall be detained in custody’.
[18] Communication 1189/2003 (HRC 2005) para 9.2.
[19] A v Australia, communication 560/1993 (HRC 1997). Cf the ECtHR which has held that detention for the purpose of deprivation of liberty may be justified only for as long as deportation proceedings are in progress, A and Others v UK application 3455/05 (ECtHR (GC) 2009)) para 164.
[20] Rafael Ferrer-Mazorra et al v United States, Case 9903 (IAComHR 2001).
[21] Working Group on Arbitrary Detention, A/HRC/4/40 (2007) para 50.