The relevant provision of the African Charter on Human and People's Rights (adopted 1 June 1981, entered into force 21 October 1986) is article 6 which states that:
Every individual shall have the right to liberty and to the security of his person. No one may be deprived of his freedom except for reasons and conditions previously laid down by law. In particular, no one may be arbitrarily arrested or detained.
As with the International Covenant on Civil and Political Rights (ICCPR), article 6 of the Charter is not detailed in terms of defining the scope of this provision, such as the rights of the detainee or the meaning of the key terms of 'arbitrary', 'arrest' or 'detention'. Further guidance, however, is given by the jurisprudence of the African Commission on Human and People's Rights (ACommHPR) and the African Court on Human and People's Rights (ACtHPR). In general terms, their respective interpretative approach is similar to that described in the previous section in relation to article 9 ICCPR. For example, as is discussed in relation to arrest, the African Commission has interpreted the right to liberty to include such elements as the right to be informed and the right to be brought promptly before a judge. The case law of the African Court similarly appears to convey the legal standards under the African Charter as being the same as those contained in article 9 of ICCPR. (See Centre for Human Rights, University of Pretoria).
Much like ICCPR, reference to 'the law' means that deprivation of liberty may only occur if authorities have respected the relevant national law as well as international norms in the process. Furthermore, the ACommHPR has extended the scope of this term to mean that such laws must "be in accordance with the provisions of the Charter" ( Kazeem Aminu v. Nigeria, 2000, para. 20; Sir Dawda K Jawara v. The Gambia, 2000) and has incorporated a temporal requirement as well as a substantive one, given the words "previously laid down by law". It has emphasized that the "competent authorities should not override constitutional provisions or undermine fundamental rights guaranteed by the constitution or international human rights standards" ( Sir Dawda K Jawara v. The Gambia, 2000, para. 59). Any competent or authorized persons must proceed with an arrest or detention of individuals pursuant to "a warrant, with reasonable suspicion or probable cause" (ACommHPR, DOC/OS(XXX)247, s. M(1)(b), p. 10). Furthermore, it is not sufficient that an arrest is conducted simply by means of the law, but the law must be complaint with accepted standards. Any arrest, even if under a decree, must not be based on ambiguous reasons, but rather upon concrete and substantiated acts ( Amnesty International and others v. Sudan, 1999).
In clarifying the interpretation of 'arbitrary', the African Commission has included any situation which involves an indefinite detention of an individual, which is of especial importance in a counter-terrorism setting. This is illustrated by the case of World Organisation against Torture and Others v Zaire (1996), in which the Commission decided that there had been a violation of article 6 since the "indefinite detention of persons can be interpreted as arbitrary as the detainee does not know the extent of his punishment" ( World Organisation against Torture and Others v. Zaire, 1996, para. 67). In Constitutional Rights Project and Civil Liberties Organisation v Nigeria (1998, para. 55), the arbitrary deprivation of liberty under article 6 was further found to mean that the detention of an individual who had neither been charged with an offence nor had the possibility of bail. Accordingly, it is evident from the African Commission's determinations that the judiciary has a pivotal role to play in preventing arbitrary arrest or detention from occurring, especially since article 6 is framed in terms of arbitrariness when making any assessment of illegality ( International PEN and others v. Nigeria, 1998/1999). Under the African Charter any detention attributable to reasons of ethnicity or political viewpoints would also be regarded as being 'arbitrary' for the purposes of article 6.
In the inter-American system, article 7 of the American Convention on Human Rights (adopted 22 November 1969, entered into force 18 July 1978) provides that:
This article derives from article 5 of the Inter-American Council of Jurists' Draft, which was based on article 9 of the International Covenant on Civil and Political Rights (ICCPR). The key criteria to be met for any deprivation of liberty to be lawful under article 7 have been articulated as follows by the Inter-American Court on Human Rights:
Pursuant to the first of these provisions, no person may be deprived of his or her personal freedom except for reasons, cases or circumstances expressly defined by law (material aspect) and, furthermore, subject to strict adherence to the procedures objectively set forth in that law (formal aspect). The second provision addresses the issue that no one may be subjected to arrest or imprisonment for reasons and by methods which although classified as legal, could be deemed to be incompatible with the respect for the fundamental rights of the individual because, among other things, they are unreasonable, unforeseeable or lacking in proportionality. ( Gangaram Panday v. Suriname, 1994, para. 47).
Of especial note here is that article 7(2) is more developed than article 9 of ICCPR in relation to the grounds on which deprivation of physical liberty may be permissible, referring not only to 'law' but also to conditions established by national constitutions. Notable too is the fact that article 7 only refers to "a law established pursuant" to the national constitution, regarding the former rather than international law as the benchmark against which to assess the legality of a law governing arrest and detention. Potentially this could be problematic for some constitutional provisions, such as in emergency situations arising out of terrorist threats and/or acts. As a consequence, the wording of article 7 has the potential to offer less rather than equivalent or more protection than article 9 of ICCPR.
For such reasons, the case of Yvon Neptune v. Haiti is significant in which the Inter-American Court examined the meaning and reach of article 7. In this case, there was an alleged violation of the right to be informed promptly and to be provided with reasons for the arrest. The Court held that it was insufficient that the accompanying grounds were embodied within national law, being of the view that such law must also comply more generally with American Convention obligations. This finding was analogous to the African Commission's view that 'the law' requirement must be interpreted as meaning in compliance with the African Charter. In the Yvon Neptune v. Haiti case, the Inter-American Court of Human Rights (IACtHR) took the opportunity to identify and list measures that would not be regarded as arbitrary based on its own body of jurisprudence. Specifically, it was of the view that a measure will not arbitrary if it fulfils the following criteria:
(1) that the purpose of the measures that deprive or restrict liberty is legitimate; (The Court referred to the case of Servellón García et al. v. Honduras. 2006, para. 90)
(2) that the measures adopted are appropriate to achieve the intended objective;
(3) that the measures are necessary, in the sense that they are absolutely essential to achieve the identified objective, and that there is no measure that is less onerous in relation to the affected right, among all those that are similarly appropriate to achieve the proposed objective; ( Palamara Iribarne v. Chile, 2005) and
(4) that the measures are strictly proportionate, so that the sacrifice inherent in the restriction of the right to liberty is not exaggerated or disproportionate compared with the advantages obtained by the use of this restriction and the achievement of the intended objective. ( Yvon Neptune v. Haiti, 2008, para. 98).
The Court further clarified in this case that "[a]ny restriction of liberty that [did not] include sufficient grounds that allow an assessment to be made of whether it is adapted to these conditions will be arbitrary and, consequently, will violate Article 7(3) of the Convention." ( Yvon Neptune v. Haiti, 2008, para. 98). Arbitrary detentions, according to the IACtHR in Sanchez v Honduras, can be prevented if motives and reasons for detention are provided ( Juan Humberto Sanchez v. Honduras, 2003, para. 82). There must also be prompt judicial review, without which detention can also be arbitrary ( Bulacio v. Argentina, 2003, para. 129),which reflects the approach on this issue of the European Court of Human Rights (ECtHR) ( Brogan and others v. UK, 1988, para. 59) (see further next section). Similarly, any decision made by a national body, which affects the right to liberty of the individual, must be justified if it is similarly not to be regarded as arbitrary ( Chaparro Álvarez and Lapo Íñiguez v. Ecuador, 2007, para. 107).
In general, the Inter-American system of human rights has taken a similar approach to that of the Human Rights Committee, in which detention should be an exceptional measure following the establishment of its necessity on the specific facts of each case and should be as short as is possible in terms of its duration. This has been particularly affirmed in the case of migrants (IACommHR, 2008(b)). In the Inter-American Commission's Principles and Best Practices on the Protection of Persons Deprived of Liberty in the Americas, it is affirmed that:
The Member States of the Organization of American States shall establish by law a series of alternative or substitute measures for deprivation of liberty, duly taking into account the international human rights standards on the topic. (IACommHR, 2008(a), Principles III(4)).
This principle was reflected also in the case of Palamara, which concerned the use of pre-trial preventive detention, in which the Court articulated that according to its case law:
[P]recautionary measures which impair, among other things, the personal liberty of the defendant are exceptional in nature and restricted by the right to the presumption of innocence and the principles of nullum crimen nulla poena sine lege praevia, need and proportionality, which are essential to any democratic society. (Para. 197).
The Court went on to require that, in addition, there needs to be "sufficient indicia to reasonably believe that the defendant is guilty and that such detention is strictly necessary to ensure that the accused will not impede the effective development of the investigations or evade justice". (Para. 198).
In its deliberations, IACtHR (and ECtHR) has also recognized the aggravated situation of vulnerability that persons unlawfully detained find themselves in due to the increased risk of accompanying human rights violations such as ill-treatment: "The degrading aspect is characterized by the fear, anxiety and inferiority induced for the purpose of humiliating and degrading the victim and breaking his physical and moral resistance." ( Loayza-Tamayo v. Peru, 1997; see also Ribitsch v. Austria, 1995 para. 336; Ireland v UK, 1987, para. 167).
With respect to the European Convention on Human Rights (ECHR) (adopted 4 November 1950, entered into force 3 September 1953), the primary provision is article 5 which states that:
Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
a) the lawful detention of a person after conviction by a competent court;
b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
f) the lawful arrest or detention of a person to prevent his effecting an unauthorized entry into the country or of a person against whom action is being taken with a view to deportation or extradition. (OHCHR/IBA, 2003).
Compared with other international and regional approaches, ECHR is notable for its more detailed and exhaustive provision governing the right to liberty and security which allows less flexibility in terms of its scope, therefore making it less susceptible to abuse.
One important issue that the Court has addressed is that for a domestic law governing arrest and detention to be lawful, it must be sufficiently precise to ensure that all those affected by its application can foresee the circumstances in which they may be lawfully arrested or detained, and the remedies available against deprivation of liberty, if need be with appropriate advice. Its approach is illustrated by the case of Nasrulloyev v. Russia in the case study below.
As with other regional mechanisms, the Court requires that any arrest and detention comply not only with domestic law, but also with the accompanying regional legal standards as reflected in article 5. It has further determined that the "difference between deprivation of and restriction upon liberty is … merely one of degree or intensity, and not one of nature or substance" ( Guzzardi v. Italy, 1980, para. 93). Therefore, an individual's "concrete situation [must be considered], and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question" ( Guzzardi v. Italy, 1980, para. 92).
The issue of duration has been particularly crucial to the assessment of whether a violation of article 5 has taken place. The case of Amuur v. France is illustrative, in which asylum seekers had been kept in a transit area of the Paris-Orly airport for a significant period of time. The Court held that excessively protracted limits on liberty, with or without physical restrictions, are the same as a deprivation of liberty for the purposes of article 5 of the Convention ( Amuur v. France, 1996, para. 43ff).
A number of distinguishing features are worthy of note. One is that unlike ICCPR, the African Charter and the American Convention, article 5 does not expressly prohibit "arbitrary arrest and detention" in its text. It does, however, do so in its case law. European Court of Human Rights (ECtHR) has interpreted the object and purpose of article 5(1) as guaranteeing that no one is arbitrarily deprived of its liberty. Therefore, in the case of Steel v. UK, it found that:
The expressions 'lawful' and 'in accordance with a procedure prescribed by law' in Article 5 [section] 1 stipulate not only full compliance with the procedural and substantive rules of national law, but also that any deprivation of liberty be consistent with the purpose of Article 5 and not arbitrary (...). In addition, given the importance of personal liberty, it is essential that the applicable national law meet the standard of 'lawfulness' set by the Convention, which requires that all law, whether written or unwritten, be sufficiently precise to allow the citizen - if need be, with appropriate advice - to foresee, to a degree that is reasonable in all circumstances, the consequences which a given action may entail. ( Steel and others v. UK, 1998, para. 54).
Furthermore, the Court has specified some procedural elements which need to be complied with for any deprivation of liberty to be lawful, which are once again aimed at preventing executive abuses. In Cakici v. Turkey, the Court stated that the:
... recording of accurate holding data concerning the date, time and location of detainees, as well as the grounds for the detention and the name of the persons effecting it, is necessary for the detention of an individual to be compatible with the requirements of lawfulness for the purposes of Article 5. ( Cakici v. Turkey, 1999).
The ECtHR is also of the opinion that criminal justice proceedings are the only justifiable context in which a lawful deprivation of liberty may occur. Therefore, "reasonable suspicion" of the commission of a criminal office must exist prior to arresting, and therefore depriving the liberty of, a person ( Fox and Campbell and Hartley v. UK, 1990). It is not sufficient for an arresting officer genuinely to believe that an individual may be responsible for a criminal act. In the words of ECtHR, "having a 'reasonable suspicion' presupposes the existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offence" ( Fox and Campbell and Hartley v. UK, 1990, para. 32). Where a person is arrested and interrogated but subsequently released without being formally charged with an offence and prosecuted, this does not mean that there was no reasonable suspicion justifying the arrest. The African Commission on Human and People's Rights (ACommHPR) has adopted a similar approach. That said, ECtHR has also recognized the challenges associated with terrorism related offences, which cannot always be adjudged in the same way as conventional crimes especially in relation to determining what "reasonable" means in a terrorism context ( Fox and Campbell and Hartley v. UK, 1990, para. 32). Importantly, in terms of the accompanying standard for "reasonable suspicion", this does not necessarily equate to that which would substantiate a criminal charge or conviction which is a high standard of "beyond reasonable doubt". For this reason too, ECtHR, as with other regional courts, requires that a detainee is brought promptly before a judge to determine whether or not they have been lawfully deprived of their liberty.
For completeness, the relevant human rights instruments of the Asian region are considered here, though it does not benefit from a regional body of related jurisprudence nor from any enforcement mechanisms such as those just examined above. The relevant instruments here are the ASEAN Human Rights Declaration (adopted 18 November 2012) and the Asian Human Rights Charter (adopted 17 May 1998).
With respect to the Declaration, the relevant provision is article 12, which states that "[e]very person has the right to personal liberty and security. No person shall be subject to arbitrary arrest, search, detention, abduction or any other form of deprivation of liberty." It is notable in not only expressly prohibiting arbitrary arrest and detention, but also any other unlawful method of depriving a person of their liberty, such as abduction which would be relevant in e.g. an extraordinary rendition or potentially enforced disappearance context.
With respect to the Asian Human Rights Charter, the relevant provision is article 14:
14.2 Arbitrary arrests, detention, imprisonment, ill-treatment, torture, cruel and inhuman punishment are common occurrences in many parts of Asia. Detainees and prisoners are often forced to live in unhygienic conditions, are denied adequate food and health care and are prevented from having communication with, and support from, their families. Different kinds of prisoners are frequently mixed in one cell, with men, women and children kept in proximity. Prison cells are normally overcrowded. Deaths in custody are common. Prisoners are frequently denied access to lawyers and the right to fair and speedy trials.
14.3 Asian governments often use executive powers of detention without trial. They use national security legislation to arrest and detain political opponents. It is notable that, in many countries in Asia, freedom of thought, belief and conscience have been restricted by administrative limits on freedom of speech and association.
As is evident, the formulation of article 14 is noticeably different to not only article 12 of the ASEAN Declaration within its own regional human rights system, but also to both international and other regional approaches. For example, the key focus in article 14.2 is more to do with humane treatment in detention (article 10 International Covenant on Civil and Political Rights (ICCPR)) than it is to do with the grounds for lawful or arbitrary arrest and deprivation of liberty. Similarly, in article 14.3 a particular regional problem of the use of executive powers of detention without affording due process is highlighted, but no guidance is given or requirements specified regarding what is lawful or unlawful practice, what safeguards should exist, and so forth.
One at least partial explanation for such differences may be that it is easier to obtain political consensus on a non-binding instrument such as the ASEAN Human Rights Declaration, compared with on the text of a binding treaty instrument such as the Asian Human Rights Charter, especially where strong sensitivities on the issues provided for exist at the national and regional levels. As is often true of treaty instruments, the text of article 14 may well reflect the baseline of regional political consensus.
Within the ASEAN context, one example of a national approach is the Philippines, which makes provision regarding the violation of the rights of detainees under its Republic Act No. 9372, Human Security Act of 2007. Of special relevance here is sect. 22 which provides that:
Any police or law enforcement personnel, or any personnel of the police or other law enforcement custodial unit that violates any of the aforesaid rights [e.g. regarding procedural requirements regarding the recording and handing of evidence; the period of detention, bring the detainee promptly before a judicial authority] of a person charged with or suspected of the crime of terrorism or the crime of conspiracy to commit terrorism shall be guilty of an offense and shall suffer the penalty of ten (10) years and one day to twelve (12) years of imprisonment.
Unless the police or law enforcement personnel who violated the rights of a detainee or detainees as stated above is duly identified, the same penalty shall be imposed on the police officer or head or leader of the law enforcement unit having custody of the detainee at the time the violation was done.
Of note too, regardless of whether or not there has been a violation of a detainee's rights, under section 50 of the Human Security Act, provision is made for the financial compensation of any person accused of terrorism who is acquitted at trial "for every day that he or she has been detained or deprived of liberty or arrested without warrant as a result of such accusation", reflecting the seriousness of any deprivation of a person's liberty.
The final instruments to be considered here are those developed by the League of Arab States and Organization of Islamic Cooperation. With respect to the former, article 14(1) of the Arab Charter on Human Rights 2004 (adopted 22 May 2004, entered into force 15 March 2008) provides that: "[e]veryone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest, search or detention without a legal warrant." Article 14(1) requires that a deprivation of liberty may only occur "in such circumstances as are determined by law and in accordance with such procedure as is established thereby". As with the text or case law of other international and regional provisions on the deprivation of liberty, provision is made for a number of safeguards, notably that under article 14(3) that "[a]nyone who is arrested shall be informed, at the time of arrest, in a language that he understands, of the reasons for his arrest and shall be promptly informed of any charges against him. He shall be entitled to contact his family members." It also requires that a person is brought promptly before a judge or other authorized person following their arrest or detention (article 14(5)) as well as the right of habeas corpus (article 14(6)). Article 14 is comparable to a number of other international and regional instruments in embedding within it a number of fair trial related rights (e.g., in article 14(5)). Furthermore, it also seeks to prevent abuses, such as ill-treatment, from occurring through the right of a person to be informed of and request a medical examination (article 14(4)) and makes provision for victims of arbitrary or unlawful arrest or detention to be compensated (article 14(7)).
With respect to the Organization of Islamic Cooperation, which does not have a binding human rights instrument, the relevant provision is article 20 of its Cairo Declaration on Human Rights in Islam (adopted 5 August 1990). In contrast to the detailed, wide ranging provision contained in the Arab Charter, article 20 simply states that "[i]t is not permitted without legitimate reason to arrest an individual, or restrict his freedom, to exile or to punish him." No mention is made of detention; or that arbitrary detention is prohibited and what this might mean; or what safeguards might be put in place. Once again, this is most likely reflective of regional sensitivities on arrest and detention issues.
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