Condensed 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. Detention covers all forms of deprivation of personal liberty and includes confinement to a closed physical space such as a police cell, prison cell, closed hospital ward or house arrest. The prohibition of arbitrary 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. Detention that is considered arbitrary includes, for example, detention after completion of sentence, detention despite an applicable amnesty, detention as a result of political opinions, lengthy and unjustifiable pre-trial detention and grossly disproportionate sentences. Comprehensive Article 9(1) of the ICCPR provides ‘[n]o one shall be subject to arbitrary arrest or detention’. Similar provisions can be found in other international and regional human rights instruments.[1] The HRC has held that the prohibition 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.’[2] (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;[3] (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.[4] 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.’[5] Detention covers all forms of deprivation of personal liberty and includes confinement to a closed physical space such as a police cell, prison cell or closed hospital ward. Detention should be distinguished from mere restrictions on freedom of movement. The HRC has held that house arrest is a form of detention.[6] The ECtHR has held that if a person is allowed to leave his home for work, then house arrest does not constitute detention.[7] According to the HRC prohibition to leave a city constitutes restrictions on the freedom of movement and not detention.[8] (See *freedom of movement*). In Guzzardi v Italy,[9] the accused, a suspected member of the Mafia, was ordered not to leave two and half square kilometers area of a small island. The area he was restricted to was inhabited only by other accused persons. The ECtHR likened the situation to an open air prison and held that Mr Guzzardi had been deprived of his liberty. The ECtHR has also held that to not allow refugees to leave an airport constitutes deprivation of liberty.[10] The ECtHR has held that disciplinary penalty in the military that if applied to a civilian would constitute deprivation of liberty does not necessarily constitute deprivation of liberty when applied to a member of the armed forces.[11] According to WGAD detention without legal basis includes for example detention after completion of sentence or despite an applicable amnesty. In several cases WGAD has held that detention where procedural safeguards were not followed, such as information about charges and the right to challenge legality of detention, constituted detention without legal basis and were therefore arbitrary.[12]Lengthy and unjustifiable pre-trial detention may also constitute arbitrary detention.[13] Arbitrary detention because of the exercise of rights includes for example detention because of opinions expressed. 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] Detention as a result of a grossly disproportionate sentence may violate the prohibition of arbitrary detention, in particular if imposed without procedural safeguards. In Fernando v Sri Lanka, the HRC held that a judge’s decision in a contempt of court proceeding to sentence Mr Fernando to one year’s imprisonment with hard labour for having raised his voice in court and refusing to apologise was grossly disproportionate and therefore arbitrary.[16] 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.[17] 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.[18] Responsibility for arbitrary detention following informal transfer between two jurisdiction without procedural safeguards (rendition) is both with the detaining state and the ‘sending’ state.[19] [1] CRC art 37(b), CMW art 16(4), ACHPR art 6; ACHR art 7(3); Arab Charter art 14. ECHR art 5(1) defines situations in which deprivation of liberty is allowed. See also CAT art 2, art 11 (prevention of torture), CED art 17 (procedural guarantees with regard to deprivation of liberty). [2] General Comment 8 para 1. These forms of deprivation of liberty correspond to those listed in ECHR art 5(1). [3] 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). [4] Fact sheet No. 26, The Working Group on Arbitrary Detention. [5]Saadi v United Kingdom application 13229/03 (ECtHR 2008) para 67. [6] Madani v Algeria, communication 1172/2003 (21 June 2007). [7]Trijonis v Lithuania application 2333/02 (ECtHR 2005 (admissibility)). [8]Celepli v Sweden, communication 456/1991 (18 July 1994). [9]Guzzardi v Italy (ECtHR), 6 November 1980, Series A, No.39; (1981) 3 EHRR 333. [10]Amuur v France (ECtHR 1996). [11]Engels and Others v Netherlands (ECtHR 1976). [12] Opinion 15/2007 (Central African Republic); Opinion 19/2007 (Saudi Arabia). [13] Cf art 9(3) ICCPR: ‘It shall not be the general rule that persons awaiting trial shall be detained in custody’. [14] Opinion 18/2007 (Jordan) para 17. [15] Eg Constitutional Rights Project and Others v Nigeria (2000) AHRLR 227 (ACHPR 1999). [16] Communication 1189/2003 (HRC 2005) para 9.2. [17]A v Australia, communication 560/1993 (HRC 1997). [18]Rafael Ferrer-Mazorra et al v United States, Case 9903 (IAComHR 2001). [19] Working Group on Arbitrary Detention, A/HRC/4/40 (2007) para 50.
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.
Detention covers all forms of deprivation of personal liberty and includes confinement to a closed physical space such as a police cell, prison cell, closed hospital ward or house arrest. The prohibition of arbitrary 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. Detention that is considered arbitrary includes, for example, detention after completion of sentence, detention despite an applicable amnesty, detention as a result of political opinions, lengthy and unjustifiable pre-trial detention and grossly disproportionate sentences.
Comprehensive
Article 9(1) of the ICCPR provides ‘[n]o one shall be subject to arbitrary arrest or detention’. Similar provisions can be found in other international and regional human rights instruments.[1] The HRC has held that the prohibition 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.’[2] (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;[3]
(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.[4]
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.’[5]
Detention covers all forms of deprivation of personal liberty and includes confinement to a closed physical space such as a police cell, prison cell or closed hospital ward. Detention should be distinguished from mere restrictions on freedom of movement. The HRC has held that house arrest is a form of detention.[6] The ECtHR has held that if a person is allowed to leave his home for work, then house arrest does not constitute detention.[7] According to the HRC prohibition to leave a city constitutes restrictions on the freedom of movement and not detention.[8] (See *freedom of movement*). In Guzzardi v Italy,[9] the accused, a suspected member of the Mafia, was ordered not to leave two and half square kilometers area of a small island. The area he was restricted to was inhabited only by other accused persons. The ECtHR likened the situation to an open air prison and held that Mr Guzzardi had been deprived of his liberty. The ECtHR has also held that to not allow refugees to leave an airport constitutes deprivation of liberty.[10] The ECtHR has held that disciplinary penalty in the military that if applied to a civilian would constitute deprivation of liberty does not necessarily constitute deprivation of liberty when applied to a member of the armed forces.[11]
According to WGAD detention without legal basis includes for example detention after completion of sentence or despite an applicable amnesty. In several cases WGAD has held that detention where procedural safeguards were not followed, such as information about charges and the right to challenge legality of detention, constituted detention without legal basis and were therefore arbitrary.[12] Lengthy and unjustifiable pre-trial detention may also constitute arbitrary detention.[13]
Arbitrary detention because of the exercise of rights includes for example detention because of opinions expressed. 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]
Detention as a result of a grossly disproportionate sentence may violate the prohibition of arbitrary detention, in particular if imposed without procedural safeguards. In Fernando v Sri Lanka, the HRC held that a judge’s decision in a contempt of court proceeding to sentence Mr Fernando to one year’s imprisonment with hard labour for having raised his voice in court and refusing to apologise was grossly disproportionate and therefore arbitrary.[16]
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.[17] 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.[18]
Responsibility for arbitrary detention following informal transfer between two jurisdiction without procedural safeguards (rendition) is both with the detaining state and the ‘sending’ state.[19]
[1] CRC art 37(b), CMW art 16(4), ACHPR art 6; ACHR art 7(3); Arab Charter art 14. ECHR art 5(1) defines situations in which deprivation of liberty is allowed. See also CAT art 2, art 11 (prevention of torture), CED art 17 (procedural guarantees with regard to deprivation of liberty).
[2] General Comment 8 para 1. These forms of deprivation of liberty correspond to those listed in ECHR art 5(1).
[3] 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).
[4] Fact sheet No. 26, The Working Group on Arbitrary Detention.
[5] Saadi v United Kingdom application 13229/03 (ECtHR 2008) para 67.
[6] Madani v Algeria, communication 1172/2003 (21 June 2007).
[7] Trijonis v Lithuania application 2333/02 (ECtHR 2005 (admissibility)).
[8] Celepli v Sweden, communication 456/1991 (18 July 1994).
[9] Guzzardi v Italy (ECtHR), 6 November 1980, Series A, No.39; (1981) 3 EHRR 333.
[10] Amuur v France (ECtHR 1996).
[11] Engels and Others v Netherlands (ECtHR 1976).
[12] Opinion 15/2007 (Central African Republic); Opinion 19/2007 (Saudi Arabia).
[13] Cf art 9(3) ICCPR: ‘It shall not be the general rule that persons awaiting trial shall be detained in custody’.
[14] Opinion 18/2007 (Jordan) para 17.
[15] Eg Constitutional Rights Project and Others v Nigeria (2000) AHRLR 227 (ACHPR 1999).
[16] Communication 1189/2003 (HRC 2005) para 9.2.
[17] A v Australia, communication 560/1993 (HRC 1997).
[18] Rafael Ferrer-Mazorra et al v United States, Case 9903 (IAComHR 2001).
[19] Working Group on Arbitrary Detention, A/HRC/4/40 (2007) para 50.