ARBITRARY DETENTION SANS HUMAN RIGHTS: INSIGHT OF INTERNATIONAL PERSPECTIVE
– Shruti Gupta101 &
– Shivangi Shrivastava102
Human rights are those basic inalienable rights which a human gets from the moment he takes his first breath on this earth. These are those fundamental rights which advocate for fair treatment and equality just because he is born a human. After the adoption of the Universal Declaration on Human Rights in 1948, the ambit of human rights has widened. They have ceased to be the matters within the domestic jurisdiction of any State and have become a matter of international concern. In this global village, human right is thus a subject of international law. It is not only the responsibility of a government to provide its citizens with these fundamental and inalienable rights, but internationally recognized agencies and other countries must frame laws and conventions for the betterment of human beings. In context to the above mention idea, this research paper focuses on the role of United Nations and other countries that have worked for against the cause of violation of human rights and arbitrary detention of an individual or group of people and tried to curb and control the exploitation of the human beings. The role of the United Nations and other nations having a primary emphasis on arbitrary detention as a violation of human rights has been discussed thoroughly in this research paper. To conclude, in our article we will be elucidating the meaning of arbitrary detention, further, we will be highlighting the impact of arbitrary on human rights, steps taken by the various international organization for curbing the menace of personal liberty guaranteed to every human being.
Keywords: Human rights, arbitrary detention, fundamental rights, basic rights, inalienable rights.
Human Rights are regarded as those fundamental and inalienable rights which are essential for human beings. Human rights are possessed with every human being, irrespective of his or her nationality, race, caste, creed, religion, sex, etc., just because he or she is a human being first. Human rights and fundamental freedoms allow us to fully develop and use our human qualities, our intelligence, our talents, and our conscience and to satisfy our physical, spiritual and mental needs. They are based on mankind’s increasing demand for a life in which the inherent dignity and worth of each human being will receive respect and protection. Human rights are at times also called fundamental rights or natural rights.
These rights are conceived as universal or egalitarian and can exist as natural right or as a legal right in both national and international law. As fundamental or basic rights they are the rights which cannot be taken away by any legislature or any act of the government or by any person and which are often set in a Constitution. Members of the United Nations have committed themselves to promote respect for and observance of human rights and fundamental freedoms. United Nations Charter which enshrines human rights is not a modern innovation.
It is, in fact, the future of all the great historical movements and for man’s freedom to the enduring elements in the history and tradition of natural law and natural rights and in most of the world’s great religions and philosophies. The findings of contemporary science about inter-relations of simple respect for human dignity and other individual and community values and morals.
In detention, the liberty of individuals has been curtailed, and they are at their most vulnerable. They are at the complete mercy of their captors. Detention deprives a man of most, though not all, of his freedoms that are his prized possessions, it is no wonder therefore that detention will be resented. There is a need to regulate how individuals should be treated under the national justice system so that the basic rights rather the human rights of the person are not violated. These concerns were recognized as early as 1215 in the Magna Carta, which gave certain individuals what can now be considered to be the origins of the rights to liberty and fair trial.103
The rights to liberty and fair trial set out safeguards to ensure that notions of ‘due process’ are adhered to in the operations of regimes of detention, the investigation, and prosecution of criminal charges, and the conduct for court proceedings.
FREEDOM FROM ARBITRARY DETENTION
The idea is that no one should be deprived of their liberty and basic human rights which are inalienable. However, there may be a valid reason for a state to assume custody of an individual. For example, it may be necessary to detain terrorists who pose a threat to the nation. However, when a person is punished and imprisoned for crimes committed after a regular trial during which he gets all the opportunity to defend himself, resentment against such detention may not be justified.
However, detention gets different complexion when it is imposed on the mere suspicion of the execution without trial and if the safeguards against abuse of detention power are not adequate or absent. The main concern of human rights activists has been the capricious use of detention of power by oppressive governments in order to subdue their opponents. Beyond this, it is recognized that restrictions on liberty are permitted and may even be required. However, even where the grounds for detention may be justified, individuals in detention are susceptible to the violation of their human rights.
They are regularly ‘forgotten,’ left to languish in prisons or mental health facilities, or may be subjected to torture or ill-treatment, either at the hands of their captors or by the conditions in which they are held. The right to liberty recognizes these concerns. It is an umbrella of protection, which seeks to prevent the arbitrary use of detention powers and provides safeguards to eradicate ill-treatment of ‘disappearance’ from instances of permitted detention.
WHAT IS ARBITRARY DETENTION?
Arbitrary detention is the violation of the right to personal liberty in the perspective of Human Rights protected under the International Law. It is the arrest of a person which deprives a man of his freedom in contravention to nationally accepted laws or international parameters. If municipal laws are incompetent to protect the individual, then International treaties may be implored to guarantee the right to liberty to the ones whose rights are being violated.
Detention may not be arbitrary when illegal or illegal when arbitrary. Illegality comes into picture when the laws are not complied with on the other hand arbitrary is when the nature of detention is inappropriate, unjust or unreasonable.
Arbitrary detention exposes the victim to more human rights violations since they are deprived of means to defend themselves from extrajudicial execution, enforced disappearances, torture and other cruel, inhuman or degrading treatment, etc.104
Because detention itself does not necessarily violate human rights, it must be distinguished lawfully exercise of the police power, adjudicated correctly in accord with both domestic law and other relevant international standards, and from detention so lacking in legal basis that it must be considered arbitrary. 105 This inquiry may include asylum and other immigration claims, 106 extended quarantines, 107 and detentions related to national security and anti-terrorism.108 In considering such cases, the Working Group is guided not only by national law, but also by the Universal Declaration of Human Rights (“Universal Declaration”), the International Covenant on Civil and Political Rights (“Covenant”), and other relevant international instruments.109
CATEGORIES OF ARBITRARY DETENTION
The Working Group investigates claims of arbitrary detention according to several categories:110
1. Deprivation of Liberty without Legal Justification -When it is impossible to invoke any legal basis justifying the deprivation of liberty (as when a person is kept in detention after the completion of his sentence or despite an amnesty law applicable to him).111
2. Deprivation of Liberty Resulting from the Exercise of Universal Human Rights- When the deprivation of liberty results from the exercise of the rights or freedoms guaranteed by the Universal Declaration of Human Rights (Articles 7, 13–14, 18–21) or the International Covenant on Civil and Political Rights (Articles 12, 18–19, 21–22, and 25– 27).112
3. Grave Violations of the Right to Fair Trial- When the total or partial non-observance of the international norms relating to the right to a fair trial, spelled out in the Universal Declaration of Human Rights and in the relevant international instruments accepted by the States concerned, is of such gravity as to give the deprivation of liberty an arbitrary character.113
4. Prolonged Administrative Custody- When asylum seekers, immigrants, or refugees are subjected to prolonged administrative custody without the possibility of administrative or judicial review or remedy.114
5. Deprivation of Liberty as a Violation of International Anti-Discrimination Standards-When the deprivation of liberty constitutes a violation of the international law for reasons of discrimination based on birth; nationality, ethnic or social origin; language; religion; economic condition; political or other opinion; gender; sexual orientation; disability or other status, and which aims towards or can result in ignoring the equality of human rights.115
Article 9116states: “no one shall be subjected to arbitrary arrest, detention or exile”. This pithy yet powerful provision was extended and its protection elaborated in Article 9 of the International Covenant on Civil and Political Rights (ICCPR). The Human Rights Committee has since articulated a general comment on the right to liberty and right has been guaranteed in other UN human rights treaties and declarations, including the CRPD 117(Article 14), and the Declaration on the Rights of Indigenous Peoples (Article 7). All regional human rights instruments also guarantee the right to liberty.118 Freedom from arbitrary detention is a rule of customary international law119 and the Human Rights Committee has claimed that this rule is peremptory in nature, that is, it is a jus cogens norm.120
There are number of non-binding instruments that serve to elaborate upon the implications of the right, including the UN Standard Minimum Rules for the Treatment of Prisoners,121 UN Rules for the Protection of Juveniles Deprived of their Liberty,122 UN Body of Principles for the Protection of all Persons under any form of Detention or Imprisonment,123 UN Basic Rules for the Treatment of Prisoners,124 the Council of Europe Minimum Rules for the Treatment of Prisoners, 125 and the Inter American Commission of Human Rights’ Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas.126
In 1991 the UN Commission of Human Rights created a Working Group on Arbitrary Detention,127 whose mandate has been renewed by the UN Human Rights Council.128
SCOPE AND OBLIGATIONS
The Human Rights Committee has stressed that Article 9 ICCPR applies to ‘all deprivations of liberty, whether in criminal cases or any other cases, for example, mental illness, drug addiction, immigration control, etc. This is not an exhaustive list, and there may be other situations where a deprivation of liberty may occur. A deprivation of liberty becomes a human rights issue when it takes place without the consent of the individual detained.
House arrest has been considered to be a withdrawal of liberty, while restrictions upon movement which confines an individual to his home during non-working hours were not the withdrawal of liberty but were said to be a restriction upon the right to freedom of movement which is the basic right of an individual.129 Similarly, restrictions upon movement within a state, a city or even parts of a city have been held to be restrictions on freedom of movement and not the withdrawal of liberty.130 Crowd control techniques may give rights to the deprivation of liberty, but it will depend on the context in which they are used.
The European Courts of Human Rights has held that the ‘kittling’-or confinement- of persons inside a police cordon for up to 7 hrs did not constitute a withdrawal of liberty when it occurs in conditions that were dangerous and may have led to severe injury or damage.131 Thus, right to liberty provisions are concerned with narrow notions of detention involving the imposition of severe restrictions upon a persons’ physical being, where the intensity of the restriction depends on its time, consequence, and method of implementation.
The European Court of Human Rights has held the states are under an obligation not to return the convict to a country where there is a ‘real risk’ that there may be an ‘outrageous breach of the right to liberty, such as indefinite or sequestered detention for many years without the prospect of being brought to trial. 132 The Human Rights Committee, though, has not till date found a violation of the right to liberty in such circumstances, preferring instead to label such treatment as inhuman treatment with the people in such a situation.
PERMISSIBLE DEPRIVATIONS OF LIBERTY
Article 9 (1) ICCPR states: ‘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 grounds and in accordance with such procedures established by law.’ Therefore not all deprivations of liberty at the hands of the state will constitute a violation of states’ obligations. According to the Working Group on Arbitrary Detention (established by UN Human Rights Council Resolution 1991/42), deprivation of liberty is arbitrary if a case falls into one of the following three categories:
A) When it is clearly impossible to invoke any legal basis justifying the deprivation of liberty (as when a person is kept in detention after the completion of his sentence or despite an amnesty law applicable to him) (Category I);
B) When the deprivation of liberty results from the exercise of the rights or freedoms guaranteed by articles 7, 13, 14, 18, 19, 10 and 21 of the Universal Declaration of Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22, 25, 26 and 27 of the International Covenant on Civil and Political Rights (Category II);
C) When the total or partial non-observance of the international norms relating to the right to a fair trial, spelled out in the Universal Declaration of Human Rights and the relevant international
instruments accepted by the States concerned, is of such gravity as to give the deprivation of liberty an arbitrary character (Category III).133
The ECHR’s approach towards detention is different from that of the United Nations and other nations; it has a more restrictive approach. Rather than merely protecting individuals against illegal and arbitrary detention, Article 5 (1) ECHR provides an exhaustive list of grounds upon which detention is justified. Such as:
When a competent court has convicted an individual;
1. When there is contempt of lawful court orders or obligations which were supposed to be strictly followed;
2. When there is reasonable suspicion against an individual or group of people of having committed an offence or may commit an offence which may be a threat for the state;
3. Minors’ educational supervision;
4. To prevent spread of infectious disease;
5. Where persons are of unsound mind, derelicts, drunkards, drug addicts; and
6. To prevent entry of unauthorized people in the state or where actions are taken for deportation or extradition.
Detention on grounds other than those listed is not permissible under ECHR.
Any deprivation of liberty must be in accordance to domestic law. It must be sanctioned and in conformity with any procedure set out in national legislation or an equivalent norm of common law. Such a law must be formulated with sufficient precision to prevent arbitrary or overbroad application. When the procedure lays down that an arrest warrant is mandatory and arrest takes place without a warrant, a violation of the right to liberty is found.134
Though International Instruments comes to the rescue when it comes to the deprivation of the right to liberty by arbitrary detention, it is silent on the fact as to when detention is or becomes arbitrary. When determining the mandate of the Working Group, the Commission used a pragmatic criterion: while it did not define the term “arbitrary”, it considered as arbitrary those deprivations of liberty which for one reason or another are contrary to relevant international provisions laid down in the Universal Declaration of Human Rights or in the relevant international instruments ratified by States (Resolution 1991/42, as clarified by resolution 1997/50).
Resolution 1997/50 considers that deprivation of liberty is not arbitrary if it results from a final decision taken by a domestic judicial instance and which is (a) in accordance with domestic law; and (b) in accordance with other relevant international standards set forth in the Universal Declaration of Human Rights and the relevant international instruments accepted by the States concerned.135 Detention is arbitrary when it consists of inappropriateness, injustice, and lack of predictability and unreasonableness.136
Arbitrary detention takes place not only without any legal ground but also where ‘it is not necessary in all the circumstances of the case’.137In order to assess the quintessential of detention measures, some form of proportionality assessment must take place. This assessment involves consideration of whether, in the specific circumstance, the detention regime is fit for the purported aim and whether there is a less invasive method of achieving that aim.
So, Human Rights Committee held that detention was disproportionate punishment in Fernando v. Sri Lanka138 where the accused was sentenced to one year of ‘rigorous imprisonment’ for contempt of court on the grounds of repeated applications to court, raising his voice, and refusing to apologize to the court. The Human Rights Committee held that although it is permissible to detain individuals who are requesting asylum for an initial period, detaining beyond this period without a good reason would be considered arbitrary.139
Where the detention of an individual leads to violation of another human right or is the result of violation of another human right, it would be considered arbitrary. Arrest on the basis of racial profiling without further evidence is prohibited as detention on the basis of ethnicity alone will be arbitrary.140 Detention that is legitimate on the onset may become arbitrary over time when the rationale for detention ceases to be relevant.
GUARANTEE TO THOSE DEPRIVED OF THEIR LIBERTY
Even if a state is justified in depriving someone of their liberty, the states’ obligation towards that individual does not end. The individual mustn’t lose their human rights as a consequence of detention. State shall take into account vulnerabilities of individuals while safeguarding guarantees to those deprived of their liberties.
RIGHT OF ALL DETAINEES
1. Right to informed of the reason for detention
Any person who is arrested, shall at the time of arrest, be given a reason for the arrest. This guarantee has been provided in Article 9(2) ICCPR, Article 5(2) ECHR and Article 7(4) of ACHR. This safeguards that the detainee knows the ground of his arrest and could challenge its legal ground. The communication should be made in a language that the detainee understands.
2. Right to humane treatment
Every detainee must be treated with humanity and with respect for their inherent dignity.141State is obliged to protect all individuals from ‘any hardship or constraint other than that resulting from the deprivation of liberty.’142The State must ensure that the conditions are adequate and must provide adequate light, ventilation, bedding, sanitary facilities and other such basic facilities to human living. There must be strict state regulation ensuring conditions provided to a detainee is adequate.
3. Right to challenge the legality of detention.
A detainee shall have a right to bring habeas corpus proceedings and should be released if the detention is unlawful. This right provides redress were incarceration is not necessary. Review of detention must be conducted by an independent court of law, and not by administrative or executive body. In order for the right to be effective, the detainee must have access to a lawyer and cannot be kept incommunicado. The right to bring such proceedings is considered as parts of customary international law.
4. Remedies for unlawful detention.
If detention is found to be unlawful then according to Article 9(4) and 9(5) provides specific remedies: release and compensation for pecuniary and non-pecuniary harm suffered. Thus, national courts must have the power to release and award compensation.
RIGHTS OF THOSE DETAINED ON A CRIMINAL CHARGE
Human rights law provides special protection to detainees under criminal charges or under the suspicion of having committed a criminal offence. Prevention and punishment of crimes is one of the grounds on which state can ground detention. All individuals who are arrested under criminal charges must be brought ‘promptly before a judge or other officer authorized to exercise judicial power’.143 The aim of presenting an accused before the judge is to ensure the legal basis of detention. If the judge do not have the power to release an accused when detention was inappropriate, the right conferred is illusory.
The judge should be “independent, objective and impartial to the issues dealt with”.144In order to ensure the ‘promptness’, Human Rights Committee have laid down that forty eight hours under ordinary circumstances is sufficient to produce the detainee before the judge; delay of more than forty eight hours is justified only on exceptional circumstances. This protection should continue beyond his first appearance before a court and shall be entitled to trial within a reasonable time.
The general rule is that an individual should not be kept in pre-trial detention unless it is necessary to do so. International human rights have advocated the use of financial guarantees or the removal of travel papers and passports rather than pre-trial detentions.
When individuals are held in pre-trial detention under the presumption of innocence, they must be segregated from the convicted criminals and treated as innocent until proven. Article 10(3) ICCPR states that the aim of detention following a conviction is to provide reformation and social rehabilitation of offenders and not simply punishment.
RIGHTS FOR FOREIGN NATIONALS
A Foreign detainee is particularly vulnerable as they may have a problem in participating in different and often disoriented legal system. For that reason, the foreign nationals who are arrested or committed to prison or custody pending trial or detained in any other manner’ are entitled to access to a consular official from their home state.145 Foreign detainee have a right to request consular officer of their home state to know of their arrest without delay and that communications between consular officer and detainee are forwarded without delay. This right has been confirmed by the International Court of Justice to apply on all foreign national detainees146
Human rights are internationally highlighted agenda for the protection of human beings all over the world irrespective of their nationality, caste, creed, sex, religion, and faith. Everyone is equal in the eyes of law and the rights provided for the welfare are equally applicable to all sets of people all around the world. ‘Magna Carta Libertatum’, a Charter agreed by King John of England was introduced on 15th June, 1215 for promoting peace between kings and group of rebels. It was an unsuccessful attempt but laid down the building blocks and an idea to achieve the set goals. Slowly and gradually as the human brain became more organized, inculcating a sense of human right became the need of the hour for the welfare of the people all around the world. There was an alarming increase in exploitation and various other threats for human beings. The United Nations through Charters and various Conventions bought countries together to lay down a stable structure of Human Rights and provide them to all the people all around the world. Today even after so many Treaties, Conventions and UN Charter for the protection of Human Rights, many nations are still deprived of peace and security. Bringing a massive change is the responsibility of every Nation for its citizen and to fight against humanitarian international problems.