Liberty and security: Human Rights Committee clarifies limits on detention
Liberty and detention
30 October 2014
GENEVA (30 October 2014) – The UN Human Rights Committee has issued an authoritative new commentary on one of the most important issues in international human rights law – when and how is it justified to deprive a person of their liberty, and what obligations do States have to avoid people being unlawfully or arbitrarily detained.
“Arbitrary detention is a profound threat to liberty and to the enjoyment of all other rights,” said Gerald Neuman, Committee member and rapporteur of the commentary which has now been adopted by the Committee.
The new General Comment concerns Article 9 of the International Covenant on Civil and Political Rights which covers liberty and security of person. It codifies the Committee’s work over the past three decades on this issue to give government officials, legal practitioners, human rights monitors and civil society a full understanding of the Committee's views.
The General Comment covers a wide range of issues under Article 9, including the definition of arbitrary detention and the procedural safeguards necessary for avoiding unlawful and arbitrary detention, such as the 48-hour standard for promptly bringing a criminal suspect before a judge.
States’ duties are also spelled out regarding deprivation of liberty by private persons or groups. “States cannot avoid their obligations by privatizing detention operations, and they also have an obligation to protect individuals from other threats to liberty proceeding from private actors,” said Mr. Neuman.
The General Comment also covers the highly controversial issue of people being detained without criminal charge under security legislation in exceptional situations such as armed conflict. It emphasizes that such detention poses a severe risk of a person being arbitrarily deprived of their liberty. The General Comment describes safeguards that must be provided for security detention to be acceptable under Article 9.
The General Comment was drafted over two years in public meetings. Prior to commencing the process the Committee had discussions with interested parties and over the period received a substantial number of written submissions from civil society, States, lawyers, UN bodies, UN organisations and specialized agencies.
Article 9 : 1. 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 of his liberty except on such grounds and in accordance with such procedure as are established by law. 2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him. 3. Anyone arrested or detained on a criminal charge 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 release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement. 4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful. 5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.