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Human Rights Committee continues discussion on draft general comment on the right to liberty and security of person

24 July 2014

The Human Rights Committee today continued its second reading, paragraph by paragraph, of a draft General Comment on Article 9 of the International Covenant on Civil and Political Rights on the right of everyone to liberty and security of person.

Revisiting draft paragraphs 20 and 21 of the draft General Comment, it was agreed that the Covenant was consistent with a variety of criminal sentencing schemes. Convicted prisoners were entitled to have the duration of their sentences administered in accordance with domestic law. Consideration for parole or other forms of early release had to be in accordance with the law. If such a release were to be granted upon conditions, and later the release was revoked because of an alleged breach of condition, then the revocation had to be also carried out in accordance with the law and should not be arbitrary. Regular periodic reviews by an independent body had to be assured to determine the continued justification of the detention. States parties had to exercise caution and provide appropriate guarantees in evaluating future dangers.

The Committee agreed that oral notification of reasons for arrest had to be given, and the reasons for the arrest had to be provided in a language that the arrested person understood. Such information ought to be provided immediately upon arrest, but in exceptional circumstances, such immediate communication might not be possible. For some categories of vulnerable persons, directly informing the person arrested was required, but not sufficient. When children and persons with mental disabilities were arrested, for example, notice of the arrest and the reasons should also be provided directly to their parents or family members, designated persons, or legal representatives. The Experts agreed that the arrested person should be informed “promptly” of any charges, not necessarily “at the time of arrest”.

Turning to the judicial control of detention in connection with criminal charges, the Committee discussed the need for any person arrested or detained on criminal charges to be brought promptly before a judge, which was applicable in all cases without exception. A public prosecutor could not be considered as an officer exercising judicial power under paragraph 3. The Experts discussed the exact meaning of “promptly”, which might depend on objective circumstances, but should still not exceed a few days from the time of arrest. In the view of the Committee, 48 hours was normally sufficient to transport the individual and to prepare for the judicial hearing. They also dealt with the question of what it meant in practical terms to be brought before the judge, and whether it had to be physical presence. Physical presence was often needed to verify the well-being of detained persons; it would be dangerous to replace that requirement with a hearing via video link. Incommunicado detention that prevented presentation before a judge inherently violated paragraph 3. Extremely prolonged pretrial detention might jeopardize the presumption of innocence under article 14. The Experts also agreed that alternatives to custody should be considered at every stage.

The Committee agreed on the right of anyone deprived of liberty by arrest or detention to take proceedings for release from unlawful or arbitrary detention. When a judicial order of release under paragraph 4 became operative, it had to be complied with immediately.

The Committee adopted paragraphs 20, 21, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40 and 41 of the draft General Comment.

The Committee will continue discussion on the draft General Comment on Article 9 at its October session.

The next public meeting of the Committee will be on Friday, 25 July at 3 p.m., when it will discuss methods of work, announce bureau decisions, adopt its concluding observations and recommendations on the reports of Chile, Sudan, Malawi, Georgia, Ireland and Japan, and close the session.

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For use of the information media; not an official record