The right to liberty and security of person1 comprises, as its fundamental tenet, that no one may be arbitrarily deprived of liberty.
For the purposes of this chapter, ‘deprivation of liberty’ presupposes some form of detention. Restrictions on movement, which do not amount to ‘deprivation of liberty’, are subject to the limitation clauses in the provisions relating to freedom of movement.2
The avoidance of ‘arbitrary deprivation of liberty’ comprises three main conditions:
(1) the detention must be based on existing law;
(2) the grounds for the detention must be reasonable, ie in keeping with the aim and purpose of human rights; and
(3) procedures must be followed to ensure that the previous two criteria are respected.
The way in which these three conditions are presented is very similar in Article 9 of the International Covenant on Civil and Political Rights (ICCPR), Article 7 of the American Convention on Human Rights (ACHR) and Article 14 of the Arab Charter.
The only major difference in the European Convention on Human Rights (ECHR) is that the second condition takes the form of an exhaustive list, in Article 5, paragraph 1, of the grounds on which a person may be detained. If a State wishes to detain a person on another ground, for example during an armed conflict or another emergency, then it will need to follow the derogation procedure described in Article 15 of that treaty.
Article 6 of the African Charter on Human and Peoples’ Rights (ACHPR) sets forth the first two conditions and includes only a general rule, in Article 7, that ‘[e]very individual shall have the right to have his cause heard’. In practice it has been up to the African Commission to spell out, in more detail, the procedures required to ensure that detention is not arbitrary, ie the Commission has provided the modalities of the third condition.
This chapter will concentrate on the conditions and procedures required in relation to any detainee in order to ensure that the detention is not arbitrary. Specific procedures that relate only to pre-trial detention will be the subject of chapter 10 below.References(p. 254)
… is applicable to all deprivations of liberty, whether in criminal cases or in other cases such as, for example, mental illness, vagrancy, drug addiction, educational purposes, immigration control etc.3
This means that a detainee, within the meaning of these articles providing for liberty or security of person, refers potentially to any person who is restricted to a place and cannot leave when he or she wishes. Treaty bodies have, however, had to consider whether certain practices amounted to ‘detention’.
In the case of Engel and others v Netherlands, the European Court had to consider whether certain disciplinary measures within the military amounted to detention. In evaluating whether any particular measure amounted to ‘detention’, the Court stated that military service in itself could not be considered to be a deprivation of liberty, within the meaning of Article 5, as such service is expressly allowed under Article 4, paragraph 3(b) ECHR. Therefore, restrictions normally associated with military service, which may be a ‘detention’ if applied to a civilian, would not necessarily be so in the context of military service. However, penalties that deviate from ‘normal conditions of life within the armed forces in the Contracting States’ may amount to a detention. In order to establish this, ‘account shall be taken of a whole range of factors such as the nature, duration, effects and manner of execution of the penalty’.4 In this case, punishments which consisted in being confined, for a few days to their dwellings or certain parts of the barracks, but not being locked up, did not constitute ‘detention’.5 However, imprisonment in a cell day and night for two days did, because of the criminal law nature of the punishment.6
In the case of Vuolanne v Finland, the UN Human Rights Committee likewise stated that ‘it is normal for individuals performing military service to be subjected to restrictions in their freedom of movement’ but that this does not of itself amount to ‘detention’. As regards disciplinary penalties within the military, it stated that if a measure imposes a restriction ‘over and above the exigencies of normal military service’ then it might fall within the purview of Article 9 ICCPR. This will depend ‘on a whole range of factors such as the nature, duration, effects and manner of the execution of the penalty’.7 In this case, the serviceman was held in a cell for ten days and nights and could not speak with other detainees. The Committee decided that this degree of isolation is normally associated References(p. 255) with arrest and detention and therefore had to be subjected to the procedures of Article 9, in particular, the right to have the lawfulness of the detention supervised by a Court.8
[t]he difference between deprivation of and restriction upon liberty is…merely one of degree or intensity, and not one of nature or substance. Although the process of classification into one or other of these categories sometimes proves to be no easy task in that some borderline cases are a matter of pure opinion, the Court cannot avoid making the selection upon which the applicability or inapplicability of Article 5 depends.10
Based on this case, it is clear that a deprivation of liberty, within the meaning of Article 5 ECHR, will exist if the degree of restriction is sufficiently severe. On this basis, some of the control orders imposed on terrorist suspects may well amount to ‘detention’, and house arrest will certainly do so.11 This means that, in the case of the ECHR, they will need to fall within one of the accepted grounds for detention, which will be discussed in section 9.4.1 below, and if they do not, a derogation will be required. Under all of the human rights treaties such detention will need to respect the procedures outlined in the rest of this chapter.
Where the ‘lawfulness’ of detention is in issue, including the question whether ‘a procedure prescribed by law’ has been followed, ‘the Convention refers essentially to national law and lays down the obligation to conform to the substantive and procedural rules of national law’.13
If the deprivation of liberty is carried out in a way that is not respectful of national law, this will be automatically in breach of the provision requiring respect for the right of liberty and security of person. Some of the case-law refers specifically to this aspect separately from the notion of arbitrariness and some refers to both together, in that if an arrest or detention is not carried out within the law, then it is arbitrary. However, as will be seen in section 9.4 below, even if an arrest or detention is in accordance with national law, it can still be considered to be arbitrary.
The question of whether the ‘law’ in this context could include international law, even in the absence of formal national law, was raised in the case of Drozd and Janousek v France and Spain. This case did not concern public international law, but a bilateral practice between Andorra and Spain allowing for persons convicted in Andorra to serve their sentences in French or Spanish prisons. The European Court held that the custom, which had been practised for several centuries, had ‘sufficient stability and legal force to serve as a basis for the litigious detention’.14
The European Court considered the possibility of detention based on international law in the case of Medvedyev and others v France. French authorities captured suspected drug traffickers on the high seas further to a diplomatic note, which the court recognized as a source of international law, between France and Cambodia. The Court found a violation of Article 5 paragraph 1 because the applicants’ subsequent detention in France was not provided for by French law, nor by the general international law of the sea, nor by the specific terms of the diplomatic note.15
The issue arose before the Inter-American Commission in the case of Coard et al v United States, which concerned the detention of persons following the invasion of Grenada by US forces. The American Declaration, unlike the ACHR, does not specify that a detention must be pursuant to grounds and procedures established by law. However, the Inter-American Commission read this requirement into Article XXV of the Declaration which provides for the right of all detainees to habeas corpus.16 The United States argued that the detention was justified by the Geneva Conventions of 1949 which, it stated, were ‘part of the supreme law of the land’.17 Instead of examining whether these Conventions were indeed part of national law, the Commission examined at length on what bases such persons could be detained under the Geneva Conventions and whether the persons were detained as prisoners of war (POWs) under the Third Convention or civilians under the Fourth. The Commission finally accepted that the individuals could be detained on the References(p. 257) basis of Article 78 of the Fourth Geneva Convention,18 which enables an occupying power to detain civilians ‘for imperative reasons of security’.19
The case does not totally answer the question of whether an international treaty would be a sufficient basis because the applicants did not argue that US national law was important, or that it provided differently. In particular, the question remains of what the situation would be if an international treaty, binding on a State, would allow for detention, but national law provides differently. The situation is most likely to arise in a dualist State where the treaty has not been incorporated into national law.20 Nevertheless, the approach of the Inter-American Commission in the Caord case, as well as the European Court in the Medvedyev case, does suggest that international law, provided it is precise enough, would be a sufficient legal basis for detention.
Examples of detention that have been considered by treaty bodies to be ‘arbitrary’ because they were not in accordance with the law, include continued detentions: after the expiry of a prison sentence,21 despite court order for release,22 and despite acquittal or pardon.23 Detention or arrest will also not be in accordance with the law if they do not respect the procedures required. Therefore, not renewing a detention order in time, even in the case of a psychiatric patient, will normally result in that detention not being lawful.24 The same is true if all the elements required for a detention have not been met as stipulated by the law.25 Similarly, arresting a person without following legal procedures, and keeping a person in incommunicado detention for longer than required by national law, will be a violation of this provision.26
All the treaty bodies have specified that even if an arrest or detention is carried out in accordance with national law, it may still be ‘arbitrary’.
References(p. 258) (b) the lawful 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;
The detention of a person on a ground that does not appear in this list will automatically make it a violation of Article 5, paragraph 1. Thus, for example, in the above-mentioned Engel case, the disciplinary punishment that amounted to detention was a violation because ‘disciplinary punishments’ do not appear in the list.
… anyone suspected of harbouring an intent to commit an offence could be arrested and detained for an unlimited period on the strength merely of an executive decision without its being possible to regard his arrest or detention as a breach of the Convention…such an assumption, with all its implications of arbitrary power, would lead to conclusions repugnant to the fundamental principles of the Convention.27
Having evaluated the meaning of paragraph 1(c) on the basis of a contextual and teleological interpretation, the Court decided that, as Mr Lawless had not been detained with the purpose of bringing him to trial, his detention did not fall within Article 5, paragraph 1, and was therefore a violation.28
Although the word ‘arbitrary’ does not appear in Article 5, paragraph 1, the European Court stated that even if a measure is lawful under national law and is based on one of the grounds listed in Article 5, paragraph 1, this provision ‘requires in addition that any References(p. 259) deprivation of liberty should be in keeping with the purpose of protecting the individual from arbitrariness’.29
(1) in applying the national law, there must not be ‘an element of bad faith or deception on the part of the authorities’;
(2) ‘both the order to detain and the execution of the detention must genuinely conform with the purpose of the restrictions permitted by the relevant sub-paragraph of Article 5 § 1’;
(3) there must be ‘some relationship between the ground of permitted deprivation of liberty relied on and the place and conditions of detention’.30
These three conditions apply to all the grounds listed in Article 5, paragraph 1. In addition to these, the European Court has included elements which are not identical for all the grounds.
As regards Article 5 paragraph 1(a), the Court stated that the decision to impose a sentence of detention, and the length of that sentence, are matters for the national authorities rather than the European Court. However, to avoid arbitrariness, the detention must follow and have ‘a sufficient causal connection with a lawful conviction’.31
Paragraph 1 (b), (d), and (e) all require ‘an assessment whether the detention was necessary to achieve the stated aim’. As detention is such a serious measure, ‘it is justified only as a last resort where other, less severe measures have been considered and found to be insufficient to safeguard the individual or public interest’.32 Additionally, as regards paragraph 1(b), the Court stressed that ‘where detention is to secure the fulfilment of an obligation provided by law, a balance must be struck between the importance in a democratic society of securing the immediate fulfilment of the obligation in question, and the importance of the right to liberty’ and that therefore the ‘duration of the detention is a relevant factor’.33
As regards paragraph 1(f), the Court stated that, as States have the right to control a non-national's entry into and residence in their country, there is ‘no requirement that the detention be reasonably considered necessary’. However, the detention pending entry or expulsion must not continue for an unreasonable length of time. This means that detention on this ground will be permissible for as long as proceedings are in progress and that they are prosecuted ‘with due diligence’. If not, then detention will no longer be permissible under Article 5, paragraph 1(f).34
This analysis of the conditions required for detention under Article 5, paragraph 1(f) is to be compared with the case-law of the UN Human Rights Committee and the Inter-American Commission on Human Rights. The case of A v Australia concerned the automatic detention, under Australian law, of persons who arrived without proper documentation. This particular case concerned a Cambodian who arrived by boat in November 1989, and whose request for asylum was rejected in December 1992. In the meantime, and after this date, he was kept in detention in various centres. The UN Human Rights Committee stated that appropriate justification was needed for the detention of any particular individual, such as the likelihood of absconding or lack of cooperation. In this case it decided that the detention was ‘arbitrary’ because the State had not advanced any References(p. 260) grounds as to why this particular person needed to be kept in detention for over four years.35
There was a large difference in the length of detention between the Saadi case (seven days) and A v Australia (several years). However, the question could still be asked—even if an asylum application or deportation case is being acted on ‘with due diligence’, as required by the European Court—whether at some point a detention will become excessively long. The situation may well be that processing a large number of applications will take a long time, possibly years, and it is difficult to see why, in such a case, the right to liberty should not require an evaluation of whether the detention was ‘necessary’. In the Saadi case, for example, the applicant was released after his application for asylum was rejected, and he was left at liberty until his appeal was successful two years later.36 A detention, in the meantime, was clearly unnecessary.
Finally, the European Court has specified that the arrest and detention of a person must be properly registered; otherwise the deprivation of liberty will be arbitrary.37
Unlike the ECHR, the other treaties do not contain a list of grounds of deprivation of liberty, but specify that arrest or detention must not be ‘arbitrary’.
The ICCPR specifies, in Article 9, paragraph 1, that ‘No one shall be subjected to arbitrary arrest or detention’. Article 7, paragraph 3 ACHR provides that ‘No one shall be subject to arbitrary arrest or imprisonment’. Similarly, the African Charter provides that ‘no one may be arbitrarily arrested or detained’.38 The Arab Charter provides that ‘[n]o one shall be subjected to arbitrary arrest, search or detention without a legal warrant’.39
The drafting history of article 9, paragraph 1, confirms that ‘arbitrariness’ is not to be equated with ‘against the law’, but must be interpreted more broadly to include elements of inappropriateness, injustice, lack of predictability and due process of law…40
This quotation was repeated with approval by the African Commission in the case of Article 19 v Eritrea.41 That case concerned the arrest of journalists, and therefore also related to a national law that undermined freedom of expression. Although not spelled out by these treaty bodies, it would seem that the reference to ‘inappropriateness’ and ‘injustice’ relates to the grounds of detention provided by national law. If they are incompatible with the aim and purpose of human rights, then they will be seen as ‘arbitrary’ by these treaty bodies. The term ‘lack of predictability’ will refer to the wording of the law which is often vague. This, together with lack of ‘due process of law’, relates to a degree of arbitrariness in the interpretation and implementation of the law, usually because of the excessive discretion of an official from the executive branch of government.References(p. 261)
… must be interpreted in such a way as to permit arrests only in the exercise of powers normally granted to the security forces in a democratic society…the wording of this decree allows for individuals to be arrested for vague reasons, and [on the basis of] suspicion, not proven acts, which [is] not in conformity with the spirit of the African Charter.42
A similar approach was taken by the Inter-American Commission on Human Rights in the case of Rafael Ferrer-Mazorra et al v United States. This concerned legislation which gave the Attorney-General the right to detain all ‘excludable aliens’, pending their removal. The relevant provisions in this case were Articles I and XXV of the American Declaration of the Rights and Duties of Man, 1948, which do not specifically refer to the prohibition of ‘arbitrary’ arrest or detention, but only to the right of liberty of person and the prohibition of detention without pre-existing law. Nevertheless, in its interpretation, the Commission followed the same teleological reasoning as the UN Human Rights Committee in the Mukong case. The Commission considered the detention to be arbitrary because the law was ‘fundamentally antithetical to the protections’ prescribed under the Declaration. In particular, as the law required the detained persons to prove that they were not a threat to the community, it prescribed ‘a presumption of detention rather than a presumption of liberty and [was] therefore incompatible with the object and purpose of Articles I and XXV of the Declaration, namely, to secure the liberty of the individual save in exceptional circumstances justified by the state as lawful and non-arbitrary’.43 The Commission considered the procedures by which the petitioners were detained to be arbitrary, because, inter alia, the grounds for detention in the domestic law were not sufficiently precise, the onus was on the detainees to justify their release, and the detention was decided by officials who had a degree of discretion that was excessive.44
The Inter-American Court has likewise insisted that national law must be consistent with the purpose of the ACHR. The case of Gangaram Panday v Surinam concerned the detention of a person on the basis that his expulsion from the Netherlands required investigation. In finding a violation of Article 7, paragraph 3, the Court said that no one may be arrested for reasons, and by methods which, ‘although classified as legal’ under national law, are incompatible with respect for basic individual rights, because, inter alia, they are ‘unreasonable, unforeseeable or lacking in proportionality’.45 In the later case of Chaparro álvarez and Lapo Íñiguez v Ecuador, the Inter-American Court expanded on these criteria. It specified that, for a deprivation of liberty not to be arbitrary, it must be compatible with the ACHR, the measures taken must be both essential and appropriate to achieve the purpose sought, and they must be proportionate so that the sacrifice inherent in loss of liberty is not excessive for the purpose.46References(p. 262)
A court order to continue the imprisonment, for another five years, of a person who had completed his sentence was found to be arbitrary by the Human Rights Committee in the case of Tillman v Australia. The order was made on the basis that he might repeat the offence for which he had been convicted. In a similar manner to the European Court in the Lawless case, the Committee stated that ‘feared or predicted dangerousness to the community applicable in the case of past offenders is inherently problematic’.47 As such, he was in effect reconvicted to a prison sentence, but without a trial, and for the same offence which led to the first sentence. This was incompatible with Article 15, paragraph 1 ICCPR, and any detention incompatible with this provision is ‘necessarily arbitrary’.48 Unlike the Lawless case, however, the lack of an exhaustive list of grounds for detention meant that the Committee could not exclude the possibility that detention might be possible. However, this would have to be evaluated separately and not purely based on the earlier conviction. It added, therefore, that if measures were needed because of the feared danger presented by the newly-liberated person, then the State would need to demonstrate that less severe measures than detention were not possible.49
Comparison with ECHR regarding grounds of detention and arbitrariness
As these treaties do not list the grounds on which persons may be detained, the question may be asked whether there is any limit to such grounds, provided that they are not ‘unjust’ or ‘inappropriate’ because they are not in keeping with the aim and purpose of the human rights treaties. It will be recalled that the Human Rights Committee stated that grounds for detention can include, in addition to criminal cases, such grounds as mental illness, drug addiction, immigration control, etc.50 It would seem reasonable that the grounds could include matters that are listed in the ECHR, as well as some that are not, such as, for example, military discipline. In particular, the UN Human Rights Committee specifically included, as such a ground, the possibility of detention for ‘reasons of public security’,51 which will be discussed in the next section (administrative detention).
As regards the extra elements that the European Court introduced to avoid arbitrariness in detaining people on the basis of one or more of the grounds listed in Article 5, paragraph 1, they could be suitable, mutatis mutandis, to ensure lack of arbitrariness. This would mean, in particular, ensuring that there is no bad faith in applying the national law, and that the place and method of detention is related to the purpose of detention, so that, for example, persons not suspected of a crime would be kept separately from others, or persons detained because of illness would be kept in a medical institution, etc. The need to register all detainees is also evident here.References(p. 263)
As explained in section 9.4 above, administrative detention52 can be based on a variety of grounds, provided such grounds are not arbitrary. This section will concentrate on such detention for reasons of security. Such detention differs from a criminal procedure in that it is not undertaken with a view to a trial before a criminal court with the possibility of obtaining a conviction and sentence for a specific crime.
In the case of the parties to the European Convention, any detention must fall within one of the grounds in Article 5, paragraph 1. However, detention for the purpose of ‘security’ in the context of an armed conflict or counter-terrorism is not included in this list. It will be recalled that in the Lawless case, the European Court specifically found that detaining someone on the suspicion that such a person may commit a crime would be ‘arbitrary’ because of the vagueness of such a suspicion and the possibility of executive abuse. It also based its argument, in coming to the conclusion that this could not be an accepted ground of detention, on the literal text of Article 5, paragraphs 1(c) and 3 read together.53
In the light of this, an awkward issue is the fact that international humanitarian law (IHL) allows, or even requires, some categories of persons to be detained which are not mentioned in Article 5, paragraph 1 ECHR. This is the case, for example, with POWs or civilian non-national internees during an international armed conflict. Even if one accepts that such detention is ‘prescribed by law’ because this is provided for by the Geneva Conventions,54 the fact remains that these categories are not mentioned in the list. A literal reading of the text can only lead to the conclusion that such detention will be in violation of Article 5, paragraph 1 ECHR. It might be argued that detention on the basis of such established international law should be accepted despite the exhaustive list in that provision, because of the equal validity of other sources of international law. However, this could be a dangerous precedent for the coherent implementation of the ECHR, in particular in the light of the need to ensure the faithful application of this treaty in the context of international counter-terrorism measures. The better view, it is submitted, is to implement these provisions of IHL by derogating from Article 5, paragraph 1 in the context of a state of emergency.55 The modalities and conditions of administrative detention based on derogation from Article 5 are described in chapter 3 above.
As the other human rights treaties do not contain an exhaustive list of permissible grounds for detention, it is sufficient that such detention is provided by law, that the detention is not ‘arbitrary’, and that the procedures required by the treaties are respected.References(p. 264)
… if so-called preventive detention is used, for reasons of public security, it must be controlled by these same provisions, i.e. it must not be arbitrary, and must be based on grounds and procedures established by law (para.1), information of the reasons must be given (para.2) and court control of the detention must be available (para.4)…56
The criteria and procedures referred to here are examined in other parts of this chapter, but the main point is the fact that the Committee accepts the possibility of administrative detention for security purposes as a ground of detention, without the need for a derogation. The Inter-American Commission, in its Report on Terrorism and Human Rights, specifically refers to the detention of persons on grounds permitted by IHL during international armed conflicts, without indicating any requirement for a derogation.57 However, the Commission equally stressed the need for detention to be based on conditions established by law and that the grounds and duration of detention ‘must conform to and be continuously evaluated in accordance with the fundamental principles of necessity, proportionality, humanity and non-discrimination’.58
Detaining someone on the grounds of public security, especially if it is not based on the clear grounds provided for under IHL, could easily be arbitrary if it does not meet the criteria insisted on by the UN Human Rights Committee, the African Commission, and the Inter-American Court and Commission. In order to ensure that detention is not ‘arbitrary’, they have all insisted on the need for clarity of the law, coherence with the aim and purpose of the treaty, and implementation that respects due process of law. Given the lack of an exhaustive list of grounds of detention in these treaties, it would seem that, in any counter-terrorism measure, the most crucial criterion would be the necessity of administrative detention. Thus the case of A v Australia, described in section 9.4.1 above, is of major importance. Although that case concerned the detention of immigrants, the decision by the Human Rights Committee that detention under Article 9, paragraph 1 must be necessary is also applicable to detention on security grounds. The procedures described in the rest of this chapter are also required.
The provisions on this point are similar, although not identical, in all the treaties:
• the ICCPR provides that: ‘Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest’;59
• the ECHR states that: ‘Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest’;60
• the Arab Charter, taking elements from the ICCPR and the ECHR, states that: ‘Anyone who is arrested shall be informed, at the time of arrest, in a language that he understands, of the reasons for his arrest’.62
The African Charter does not contain this provision, but the African Commission, in its Fair Trial Principles, has included a provision which is identical to that in the ICCPR.63
As the term ‘arrest’ tends to have a criminal connotation, one could have the impression that only the ACHR requires reasons to be given for any form of detention.64 The European Court addressed this issue in the case of Van der Leer v Netherlands which concerned the detention of a person in a psychiatric hospital. The Court used a contextual and teleological interpretation to decide that the term ‘arrest’ cannot be limited to cases arising under criminal law. In particular, it pointed to Article 5, paragraph 4 ECHR which enables all detained persons, not just those detained on a criminal charge, to take proceedings so that a court can decide on the lawfulness of the detention. This important tool to avoid arbitrary detention would be meaningless if persons detained for reasons other than criminal law were not told the basis of detention. This reasoning would be equally valid for the interpretation of the other human rights treaties that refer to ‘arrest’.
Both the UN Human Rights Committee and the European Court have explained that the requirement for sufficient information to be given promptly is so that detainees can contest the reasons for detention if they are invalid, and use the legal procedures available to them to secure their release. The evaluation of whether this provision is complied with is made with this purpose in mind.
As regards the quality of the information, vague grounds or a mere reference to a legal document is insufficient. Thus, in the case of Drescher Caldas v Uruguay, the Human Rights Committee found that ‘it was not sufficient simply to inform [him] that he was being arrested under the prompt security measures without any indication of the substance of the complaint against him’.65
In the case of Grant v Jamaica, the Committee stated that the obligation to inform someone of the reasons for his arrest remains even if the arresting officer believes that the detained person is aware of them.66 On the other hand, the European Court, in the case of Murray v United Kingdom, accepted that the person should have realized that she was detained on suspicion of her involvement in the collection of funds for the IRA. This is because she was being interrogated on this subject, although the formal notification, References(p. 266) which comprised only a reference to the section of the legislation, would have been in itself insufficient.67
As regards the timing of the information, some of the treaty provisions refer to the time of the arrest, whilst the ECHR uses the term ‘promptly’. It is unlikely that a real difference is intended here, especially as some of the provisions requiring reasons to be given ‘at the time of arrest’ also specify that it must be in a language that he or she understands. This may not always be possible at the very moment of arrest. However, what is clear is that the reasons are to be given within a matter of hours, not days.
… any person arrested must be told, in simple, non-technical language that he can understand, the essential legal and factual grounds for his arrest, so as to be able, if he sees fit, to apply to a court to challenge its lawfulness…Whilst this information must be conveyed ‘promptly’…it need not be related in its entirety by the arresting officer at the very moment of the arrest. Whether the content and promptness of the information conveyed were sufficient is to be assessed in each case according to its special features.68
In this case, information delivered seven hours after arrest was considered sufficiently ‘prompt’. On the other hand, information given seventy-six hours after initial detention was considered to have been excessively delayed in the case of Saadi v United Kingdom.69 Cases from the other treaty bodies involved violations of this provision because the information was given a week or more later, if at all.70 These were clearly egregious violations and there is nothing to indicate that these treaty bodies would not evaluate the time and nature of the information that is to be supplied in the same manner as the European Court. The Inter-American Court, in the case of Humberto Sánchez v Honduras, specifically pointed out that the duty to inform a detainee of the reasons for the detention ‘is a mechanism to avoid illegal or arbitrary detentions, from the very moment when a person is deprived of his or her liberty’.71
Such access is required to help to ensure that detention is not arbitrary, as it enables a proper supervision and testing of the lawfulness and need for the detention. Section 7.5 above, which outlines measures that are aimed at preventing torture or ill-treatment, includes measures that are equally important to prevent arbitrary detention. The same is true for the various measures to ensure the transparency of the detention, described in References(p. 267) section 7.5.4 above, in particular, the need to be detained in a recognized detention centre, the need to be able to contact relatives or a friend, and for a non-national to contact a consular or diplomatic official.
For a detained person, the importance of having access to a lawyer cannot be overestimated. This is necessary not only to prevent torture and other ill-treatment, as described in section 7.5.3 above, but also to be able to successfully ensure that he or she is not arbitrarily detained. It will be recalled that all persons who are ‘arrested’ are to be informed of the reasons for their detention (section 9.6 above). A lawyer is required at an early stage in order to establish whether the ground or necessity for detention can be contested. In the case of a person arrested with a view to being charged with a crime and then tried, it would be helpful for that person to have the services of a lawyer at the proceedings before a judicial officer. This procedure is described in section 10.3.4 below.
In all other cases, including persons held in pre-trial detention (remand, custody), a lawyer is needed to be able to contest the lawfulness of detention. This is described in section 9.8 below. Finally, a lawyer is required during interrogation and at all other relevant stages in order to ensure that the detained person's defence is being properly prepared. This is described in section 13.5.1 below.
[i]nterviews between a detained or imprisoned person and his legal counsel may be within sight, but not within the hearing, of a law-enforcement official.72
This rule was used as basis for a finding of a violation of the right to fair trial, in the case of öcalan v Turkey, because öcalan was unable to consult with his lawyers without prison officials being present. The government argued that this was done in order to ensure his security. The European Court did not accept this argument because the lawyers had been retained by the applicant himself and they had been searched before seeing him. The Court concluded that visual surveillance would have been enough to ensure security, but being within hearing would be a violation of the right of a person to defend himself ‘though legal assistance’ under Article 6, paragraph 3(c).73
In the case of Istratii and others v Moldova, the detainee was separated from his lawyer by a glass wall, with the result that they had to shout to each other in order to be heard. The European Court found a violation of Article 5, paragraph 4 ECHR (right to contest the lawfulness of detention) because this provision, in order to be implemented correctly, needs the assistance of a lawyer. The Court stated that there does not need to be an actual interception or eavesdropping, for a violation of the rule that lawyer-client References(p. 268) communication must be confidential. It is sufficient that there be a reasonably-held belief that the conversation was not in practice confidential. In addition to this problem, the lawyer and his client could not exchange documents because of the glass wall. As regards security concerns, the Court noted that in this case there was no evidence that the applicant was violent, so that the glass separation, which might have been needed in some instances, should not be used irrespective of the persons concerned. It then reiterated that if some surveillance is needed, visual supervision would be sufficient.74
Finally, on this point, a prisoner's correspondence with his lawyer is also to be considered confidential. An exception to this, with significant safeguards, was accepted in the case of Erdem v Germany, which concerned the arrest and detention of a person suspected of being a member of a terrorist organization. The applicant did not claim a violation of a due process provision but of a breach of respect for his correspondence. For this reason the case will be described in chapter 16 below.
… if [the detained person] so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this subparagraph.
In the LaGrand case, which concerned the lack of notification of the detention in the United States of German nationals (who were sentenced to death), the International Court of Justice confirmed that Article 36, paragraph 1 VCCR created individual rights which can be invoked by the national State of the detained person.75
With regard to the expression ‘without delay’ in this provision, the International Court of Justice stated, in the Avena case, that the authorities must inform non-nationals of their rights under the paragraph ‘once it is realized that the person is a foreign national, or once there are grounds to think that the person is probably a foreign national’.76
In the LaGrand case, Germany argued that the violation of individual rights under Article 36, paragraph 1 VCCR amounted to a violation of a human right. It argued that the lack of such access by a detainee could adversely affect his or her chances of being adequately assisted by a suitable lawyer, and therefore of a fair trial. The International Court of Justice, having found a violation of Article 36 VCCR, decided that it did not need to consider this issue.References(p. 269)
The Inter-American Court of Human Rights, at the request of Mexico, gave an Advisory Opinion on whether access to a consular or diplomatic official was a human right. The Court stated that Article 36, paragraph 1 VCCR must have a practical effect. In particular, the chances of a foreign national being able to properly defend him- or herself depends largely on being able to make contact with the consular authorities. Therefore Article 36 VCCR must be counted among the minimum guarantees of the right to fair trial. The Court added that if the non-observance of this rule results in the death penalty, then the persons concerned have been subject to an arbitrary deprivation of life.77
Two points seem pertinent here. The first is that, although the International Court of Justice did not rule on whether Article 36, paragraph 1(b) is in the nature of a human right, it did confirm that it conferred an individual right. Such persons are being detained by the State in question and therefore that State clearly has jurisdiction so that the human rights treaties apply. These treaties in turn require States to ensure that persons are not arbitrarily deprived of their liberty or do not suffer a trial that is unfair. It would be difficult to imagine how the detaining authorities can ensure this when they are holding a non-national, especially if that person is not a long-term resident in the country nor fluent in the language, without respecting the right to consult the consular authority. On that point, it is also pertinent that this right is included in Article 17(d) of the UN Disappearances Convention, Principle 16 of the UN Body of Principles on Detention, and Rule 38 of the UN Standard Minimum Rules for the Treatment of Prisoners.78
The second point is that, although the International Court of Justice and the Inter-American Court looked at this issue in the context of the right to fair trial and the death penalty, because this reflected the facts of the LaGrand case and the Avena case, the reasoning is clearly directly relevant to safeguards and procedures from which all detainees are required to benefit. Therefore, Article 36, paragraph 1 VCCR is also of great importance to help the avoidance of arbitrary detention by ensuring respect for the various rules and procedures outlined in this chapter and the following ones.
The ECHR,79 ACHR,80 Arab Charter,81 and American Declaration82 contain essentially the same provision, although the wording varies slightly. Although this right is not References(p. 270) spelled out in the African Charter, the African Commission has included it in its Fair Trial Principles.83
It needs to be stressed that this procedure is a right that any detainee may make use of. It is not an automatic procedure, unlike appearance before a judicial officer of a suspected criminal who is detained with a view to trial.84 Given the importance of habeas corpus in terms of preventing enforced disappearance or other ill-treatment, the treaty bodies have interpreted the treaty provisions with particular attention to both the wording and the aim and purpose of the procedure. Its significance in the context of states of emergency is discussed in section 3.3.4 above.
As the treaty provision makes clear, all detained persons are entitled to exercise this procedure. Assuming that there is a ‘deprivation of liberty’,85 this provision equally applies to persons detained for reasons of military discipline,86 asylum-seekers suspected of terrorism offences,87 or for any other reason.
The only exception to this rule is the detention of persons serving a prison sentence subsequent to conviction by a court. In the case of Engel and others v Netherlands, the European Court stated that review by a court in Article 5, paragraph 4 ECHR is incorporated in the sentence imposed by a court.88 In the more recent case of Kafkaris v Cyprus, the European Court was asked to consider whether Article 5, paragraph 4 could apply to contest the lawfulness of the imprisonment, without the possibility of parole, of a person sentenced to life imprisonment. The applicant pointed out that the European Committee of Ministers had adopted recommendations to the effect that conditional release should be introduced.89 For procedural reasons, the Court did not make a finding on the issue,90 and therefore the question is still open. There can be no doubt, however, that habeas corpus must be available to persons imprisoned in a way which is not in conformity with a valid sentence, such as, for example, continued imprisonment after the term of the sentence has been served or after a pardon.
The treaty provisions state that a court must decide ‘without delay’91 on the lawfulness of a detention. There are two aspects to the application of this requirement, the first being when a court is seised of the application and begins the inquiry, and the second being when a decision is reached.
As regards the first aspect, the general understanding is that the opportunity to exercise the remedy of habeas corpus should be available at the outset of any detention. As the European Court stated in the case of Lebedev v Russia, ‘the opportunity for legal review must be provided soon after the person is taken into detention’.92 In the cases of De Jong, References(p. 271) Baljet and Van den Brink v Netherlands93 and Torres v Finland,94 delays of six and seven days respectively before the proceeding was available were found to be in violation of this provision by the European Court and the UN Human Rights Committee.95
With regard to the time within which a finding must be made, the test is whether the court acted with due diligence to make a decision as speedily as possible. Thus in the case of Khudyakova v Russia, the remedy was available at the outset of the detention, but the decision on the lawfulness of detention took fifty-four days. The European Court stated that as the State did not explain this delay, for example due to the complexity of the issues or any other valid reason, the period was too long and thus constituted a violation of Article 5, paragraph 4 ECHR. In the case of Sanchez-Reisse v Switzerland, the European Court stated that the length of consideration of a case will be ‘assessed in the circumstances of each case’.96 This case concerned detention with a view to extradition, and delays of thirty-one and forty-six days before the Court decided on two applications for release was considered too long. The UN Human Rights Committee, in the case of Mansour Ahani v Canada, similarly stated that the procedure must not be too long in order to satisfy Article 9, paragraph 4 ICCPR, and that a delay of nine and a half months was excessive.97
This remedy may also be repeated and indeed must be regularly available. This point was stressed in the case of Winterwerp v Netherlands, which concerned a person placed in a psychiatric hospital by the order of a district judge. The order was renewed by the judge in the light of reports by the treating doctor, but the patient did not have the right to institute himself a procedure at which he was able to present his own arguments. The European Court found a violation, stressing that ‘the very nature of the deprivation of liberty under consideration would appear to require a review of lawfulness to be available at reasonable intervals’.98 The importance of regular review for any form of detention was also stressed in the case of Lebedev v Russia. The Court specified that the repetition of the reviews must take place ‘at reasonable intervals’, and the length of such intervals should be ‘assessed in the particular circumstance of each case’.99 The need for sufficiently frequent review was also stated by the UN Human Rights Committee.100
The treaty provisions specify that the lawfulness of detention must be determined by a ‘court’. Several cases have concerned whether the nature of the body making this determination can be considered a ‘court’ for this purpose.References(p. 272)
In the case of Vuolanne v Finland, the UN Human Rights Committee stated that in the case of detention for breach of military discipline, a superior military officer cannot fulfil this role: it must be undertaken by either a civilian or a military court.101 The European Court, in the case of Engel and others v Netherlands, confirmed that in the case of the detention of military personnel, habeas corpus proceedings may be conducted by a military court.102
Requirement for an independent body to be able to make a binding decision
As will be seen in chapter 12 below, a body can only be considered a ‘court’ or a ‘tribunal’ if it can make a binding decision that cannot be changed by the executive. This is equally true for the term ‘court’ in relation to habeas corpus proceedings. Thus, in the case of Chahal v United Kingdom, which concerned the detention with a view to deportation of a person suspected of terrorist offences, the need for detention was reviewed by an ‘advisory panel’. The European Court held that as this panel could only give advice to the Home Secretary, so that its view was not binding on the executive, this did not fulfil the requirements of Article 5, paragraph 4.
In addition to this formal requirement, the European Court has stressed that the review must be a genuine appraisal and not a mere formality. In the case of Sakik v Turkey, persons detained in police custody for separatist activities could, under the Constitution, have taken proceedings before a judicial authority which could order their release if the detention was unlawful. The European Court accepted the argument of the applicants that this theoretical remedy had never been successfully used, and thus there had been a violation of Article 5, paragraph 4.103
The requirement that this appraisal be conducted by an independent court was similarly stressed by the African Commission in the case of Amnesty International et al v Sudan. In that case, persons arrested under a state of emergency could only appeal their detention to the same body whose president ordered the arrests. The Commission found a violation of Article 6 ACHPR on the basis that this so-called remedy was ‘more akin to an appeal for clemency than a judicial appeal’.104
Evaluation of ‘lawfulness of detention’ not limited to national law
A very important issue is whether a court is limited to evaluating the lawfulness of detention in a technical sense only, irrespective of whether detention is actually reasonable.
An important case in this respect is that of A v Australia. This concerned legislation that provided for the automatic detention of persons arriving in Australia without documentation. The legislation defined such persons as ‘designated persons’. The author of the communication had applied for refugee status and was kept in detention in various places without access to legal aid for most of the time. Habeas corpus proceedings limited References(p. 273) the role of the courts to the question of whether such persons fell within the definition of ‘designated person’, and not the merits of their continued detention. The UN Human Rights Committee stated that the purpose of Article 9, paragraph 4 ICCPR (supervision of lawfulness of detention) requires a State to release a person if the detention is incompatible with Article 9, paragraph 1, ie if it is arbitrary. A review cannot be a mere formality and limited to compliance with domestic law, but must evaluate whether the detention is not arbitrary in nature. It therefore found a violation of Article 9, paragraph 4.105
A similar case was that of Rafael Ferrer-Mazorra et al v United States, before the Inter-American Commission. This case concerned the administrative detention of Cubans, defined as ‘excludable aliens’ because of their lack of documentation. The review procedure before the courts was limited to a consideration of whether the Immigration and Naturalization Service had correctly followed their own procedure. The assumption under national law was that detention would be the norm, and applicants had to prove why they should not be detained. The courts only had to ascertain whether the Attorney-General had ‘advanced a “facially legitimate and bona fide reason” for his decision to continue to detain’ these Cubans.106 The Commission found a violation of Article XXV of the American Declaration because the national law was not in keeping with the fundamental premise that individuals are entitled to liberty. As the State must justify a deprivation of liberty, judicial review cannot be limited to technical compliance with national law but must also include a review of the quality of the law in the light of the fundamental principles of the Declaration.107
In the case of Chahal v United Kingdom, the national court was limited in its review of the decision taken by the executive to detain a person during deportation proceedings. Habeas corpus proceedings only allowed the court to quash the detention order of the Secretary of State ‘if he failed to interpret or apply English law correctly, if he failed to take into account of issues which he was required by law to address, or if his decision was so irrational or perverse that no reasonable Secretary of State could have made it’.108
Article 5 § 4 does not guarantee a right to judicial review of such a scope as to empower the court, on all aspects of the case including questions of pure expediency, to substitute its own discretion for that of the decision-making authority. The review should, however, be wide enough to bear on those conditions which are essential for the ‘lawful’ detention of a person according to Article 5 § 1.110
The importance of these cases cannot be overstated. If the role of the courts is limited to assuring a correct application of legislation, then they would have to implement even the most arbitrary and unreasonable legislation. This would be manifestly contrary to States’ obligations under human rights law. The risk of legislation providing for the detention of entire categories of people, whether they actually pose a threat or not, is much greater in times of conflict or terrorism. Detaining people on the basis that they fall into certain References(p. 274) categories undermines, by definition, the fundamental premise of human rights law, which insists that the limitation of rights may only be determined in relation to the need to do so as regards any particular individual.
Requirement of judicial-type procedures including services of a lawyer
The importance of the existence of such effective judicial oversight presupposes the availability of appropriate tools for its implementation. This means that the principal requirements to ensure a fair trial on the merits must be available for habeas corpus proceedings.111 Although the European Court has stated that the guarantees do not have to be identical to all those required for a trial on the merits, they ‘must have a judicial character and be appropriate to the type of deprivation of liberty in question’.112
First of all, it is obvious that since the remedy concerns the lawfulness of detention, a detainee would not be in a position to contest this effectively without a lawyer. The inability of a detainee to secure the services of a lawyer at an early stage would result in a violation of this provision.113 This includes the lack of effective and confidential services of a lawyer,114 and is applicable to all types of detention, including in psychiatric hospitals.115
Another aspect of fair trial that has been stressed in the context of habeas corpus procedures is equality of arms and the adversarial nature of the proceedings.116 This means essentially that the detainee's lawyer can adequately contest the detention, including by having access to the case file.117
Detention based on confidential information
The principle of equality of arms in habeas proceedings has been put under pressure in recent years, as governments have resisted giving courts confidential information that is the basis for the decision to detain a terrorism suspect.
… recognizes that the use of confidential material may be unavoidable where national security is at stake. This does not mean, however, that the national authorities can be free from effective control by the domestic courts whenever they choose to assert that national security and terrorism are involved…techniques…can be employed which both accommodate legitimate security concerns about the nature and sources of intelligence information and yet accord the individual a substantial measure of procedural justice.119
In the Chahal case, a violation of Article 5, paragraph 4 was found because of these defects. In the more recent case of A and others v United Kingdom, the European Court considered in more detail the extent to which confidential information may be taken into account in habeas proceedings without violating Article 5, paragraph 4. This case References(p. 275) concerned the administrative detention of terrorism suspects who were not British nationals. The decision to detain such persons was reviewed by the Special Immigration Appeals Commission (SIAC), which was composed of independent judges, and therefore did constitute a ‘court’ for the purpose of Article 5, paragraph 4. This court was able to consider both ‘open’ and ‘closed’ material, but the applicants and their legal advisers were not able to see the closed material. Instead, this was disclosed to a ‘special advocate’ appointed by the Solicitor General to act on behalf of each applicant. Once the special advocate had seen the closed material, he was not allowed to have any further contact with the applicant or his lawyer unless the SIAC gave permission. The European Court decided that since the case concerned possible indefinite administrative detention, habeas corpus proceedings in this context must include ‘substantially the same fair trial guarantees’ as in Article 6 (right to fair trial).120
… essential that as much information about the allegations and evidence against each applicant was disclosed as was possible without compromising national security or the safety of others. Where full disclosure was not possible, Article 5 § 4 required that the difficulties this caused were counterbalanced in such a way that each applicant still had the possibility effectively to challenge the allegations against him.121
The issue was then how such counterbalancing was to be achieved. On the facts, the European Court considered the following points to be of importance: first, as the SIAC was an independent court, it could ensure that no material was unnecessarily withheld from the detainee. Secondly, the special advocate could question the governments’ witnesses on the real need for secrecy and petition the court for additional disclosure to the applicants.122 Thirdly, the special advocate could test the evidence through questioning of the government's witnesses. However, as regards this third point, the European Court recognized that such questioning was hampered by the inability of the special advocate to discuss the evidence presented by the government with the applicants. It stressed, therefore, that the fundamental issue depends on which evidence was critical to the court's decision. If the open material played the predominant role in the determination, then the applicant was able to challenge sufficiently the basis of the reason for the detention. On the other hand, if the open material consisted of general assertions and the court's decision to ‘maintain the detention was based solely or to a decisive degree on closed material, the procedural requirements of Article 5 § 4 would not be satisfied’.123 On the facts of the case, there was a violation in respect of two of the applicants because the evidence relied on to detain them was largely found in the closed material, whereas the evidence in the open material was ‘insubstantial’.124
The so-called ‘closed material’ that is frequently used by the executive as a basis to detain or bring to trial terrorism suspects stems from secret informants, or other methods of information collection. The fear is that letting the suspects know which material is being used could enable those suspects to deduce how the government came to know about such information. This could jeopardize the safety of the informant or prevent use of the same information collection method in the future. However, detaining someone on the basis of intelligence which the detainee cannot contest could frequently result in an injustice, as such ‘intelligence’ is far from infallible. Thus the European Court has, (p. 276) through its jurisprudence, arrived at the following main requirements to ensure that habeas corpus procedures, which involve secret information, do not violate the ECHR:
(3) the detainee's lawyer, or if this is too risky, a security-cleared lawyer, must have access to all the material so that he or she can question the material and cross-question government witnesses; and
These conditions are, of course, in addition to the general requirements outlined earlier for valid habeas corpus procedures.125
As will be discussed in chapter 13 below, on elements of fair trial, the public can be excluded from a trial if necessary for, inter alia, security concerns. This would be equally appropriate for those parts of habeas corpus proceedings that involve the court considering ‘closed’ information. Both this point and other issues relating to closed material, anonymous witnesses, etc are addressed in sections 13.3 and 13.4 below.
Application during states of emergency
It has already been explained in section 3.3.4 above, that the UN Human Rights Committee and the Inter-American Court maintain that habeas corpus proceedings must be non-derogable because this remedy is essential to prevent enforced disappearance, torture, and other forms of ill-treatment.126 The African Charter has no derogation clause. Nevertheless, even though the right to test the lawfulness of detention is not spelled out in the African Charter, the African Commission has provided that ‘[n]o circumstances whatever must be invoked as a justification for denying the right to habeas corpus’.127 The Arab Charter states that in situations of emergency, no derogation may be made from Article 14, paragraph 6 which provides for the right to contest the lawfulness of arrest or detention.128
As discussed in section 3.3.4 above, the European Court seems to have implied, but not directly stated, that habeas corpus must be available even in states of emergency. In the case of A and others v United Kingdom, the Court considered at length the modalities References(p. 277) required for habeas proceedings in the context of the detention of terrorism suspects during a state of emergency. It did this after having noted that the United Kingdom had not derogated from Article 5, paragraph 4.129 This statement could give the impression that the Court believes that such derogation is possible in an emergency. However, in the same case, the Court insisted that given the ‘dramatic impact’ of what appeared at the time to be indefinite detention, habeas corpus proceedings needed to include substantially the same fair trial guarantees as a trial on the merits.130 It would be a very strange result, in the light of this, to suggest that it would have been possible to derogate from habeas corpus proceedings altogether. It is true that not all deprivations of liberty in emergency situations are as extreme as the one in this case. Nevertheless, given the overwhelming evidence of the importance of this remedy to prevent arbitrary detention and ill-treatment, and as the European Court stated that the fair trial-type procedures can be more or less extensive depending on the nature of the detention, it would seem reasonable to conclude that the suspension of habeas corpus could not be ‘strictly required by the exigencies of the situation’.131
Application during international armed conflicts
The detention of persons during an international armed conflict would involve the application of IHL as well as human rights law. By definition, a State which detains persons has them within its jurisdiction, so that human rights law is applicable. IHL relating to non-international armed conflicts does not address in any substantial way administrative or pre-trial detention procedures, so that in such a case human rights law applies without any possible contradiction arising from IHL. This is not necessarily the case for international armed conflicts in that the detention of POWs and civilians is regulated by the Third and Fourth Geneva Conventions respectively.
• Civilian detainees
The issue arose in the case of Coard et al v United States. The case concerned the invasion of the small Caribbean island of Grenada by the United States in 1983 and the detention by US forces of members of the previous government for between six and nine days. No review of their detention took place during this period. The Inter-American Commission considered this in the light of Article XXV, paragraph 3 of the American Declaration which provides for the remedy of habeas corpus for all detained persons. The government argued that the persons were ‘civilian detainees held briefly for reasons of military necessity’.132
The Commission acknowledged that both the American Declaration and the Fourth Geneva Convention were applicable. It then stated that ‘the standard to be applied must be deduced by reference to the applicable lex specialis’ and went on to explain that this means that IHL may help to interpret the norms of the inter-American human rights system. However, it added that if those bodies of law provide different levels of protection, then ‘the Commission is bound by its Charter-based mandate to give effect to the normative standard which best safeguards the rights of the individual’.133
The Commission then stressed the fundamental importance of ensuring that detainees are not left to the sole discretion of State agents that are responsible for the detention and that this principle is the ‘essential rationale of the right to habeas corpus, a protection References(p. 278) that is not susceptible to abrogation’.134 The Commission stated that IHL is largely in accord with this because Article 78 of the Fourth Geneva Convention provides that civilian detainees have the right to be heard and to appeal the decision.135 In this, however, the Commission is not quite accurate because Article 78 does not specify that the appeal must be before a judicial body, or even that it must be independent. It only refers to such an appeal being reviewed, if possible every six months, ‘by a competent body set up by [an occupying] Power’. A similar provision, which applies to detained nationals in the territory of the adversary, provides for review by ‘an appropriate court or administrative board designated by the Detaining Power for that purpose’.136
It is self-evident that such a review can only be of real value if it is carried out by persons independent of the executive. It also needs to be kept in mind that the Geneva Conventions date from 1949, well before the main development of human rights law and the recognition of the crucial importance of habeas corpus proceedings. Given the lack of specification in Article 78 of the Fourth Convention of the nature of the body that is to hear the appeal, it would be perfectly appropriate to interpret this requirement in the light of human rights law, so as to ensure that the appeal is heard by a judicial-type body. In the Coard case, the government argued that it would have been impracticable to present the detainees before Grenadian courts. In reply to this, the Commission stated that habeas corpus procedures could have been carried out by the ‘establishment of an expeditious judicial or board (quasi-judicial) review process carried out by United States agents with the power to order the production of the person concerned, and release in the event the detention contravened applicable norms or was otherwise unjustified’.137
In finding that the delay could not be justified due to a situation of active hostilities or for any other valid reason, so that it was a violation of Article XXV, paragraph 3 of the American Declaration, the Commission again stressed that ‘[e]ven under extreme circumstances’ individuals must never be left ‘without legal protection’ and that certain ‘fundamental rights may never be suspended [including] the right to due process’.138
This case makes two important points as regards international conflicts. First, it impliedly recognizes that if a detention takes place in the midst of active hostilities, then it may be impossible to provide for a habeas corpus review immediately. Secondly, it insists that such a review must be available as soon as possible and that it is up to the detaining power to provide personnel independent of the executive to carry this out. In the case of the US military control of Grenada, which was achieved in a short space of time, the detention of a person for six days without a habeas review was found to be a violation. Given that it has been proved over and over again that any ill-treatment takes place within the first few days of detention, this finding is not surprising. It will therefore be important, in the planning of any invasion, for the legal advisers of an army to arrange for independent judicial personnel to be available for such reviews as soon as possible after any detention.References(p. 279)
Fighters captured on the battlefield in an international armed conflict may be detained as POWs. Some other categories of persons, such as civilian contractors and war correspondents accompanying the army, may also be so held.139 Such detention does not require an evaluation of its necessity, because the right to so detain is a given. This may give the impression that the remedy of habeas corpus is of no relevance in this context, and indeed the Inter-American Commission, in its report on Terrorism and Human Rights, contains a statement to that effect.140 However, this author considers that such a conclusion is hasty and does not take into account several factors.
First of all, persons may only be held as POWs if they actually fall into the category of ‘prisoner of war’. It has happened that persons have been so held who do not fall into this category and who do not wish for such a status.141 For several hundred years being held as a POW was considered a privilege, because of the special rules that existed protecting such persons and according them decent living conditions. However, since 1949, the Fourth Geneva Convention has provided for similar protections for persons who are not POWs, and are therefore civilians, including the right to be visited by the ICRC.142 In addition, present human rights standards regarding detained persons are very similar to those of POWs and civilian internees.143 On the other hand, POWs may be detained until the ‘cessation of active hostilities’.144 This may result in internment for an indefinite number of years, which is not such an attractive prospect. If a person has good reason to believe that he or she does not fall into the category of POW, then there would be good reason to contest such detention.
Secondly, certain seriously wounded or ill POWs are entitled to be repatriated or interned in a neutral (ie non-belligerent) State.145 Under the Third Geneva Convention, the need for such transfers is decided by a ‘Mixed Medical Commission’.146 However, if this entitlement is not respected, then a prisoner ought to be able to remedy this by using a habeas corpus procedure.
Finally, POWs are to be repatriated ‘without delay after the cessation of active hostilities’.147 All too often this right is not respected. Once again, a habeas corpus procedure would be able to remedy this.
Of course, if the judiciary of the detaining State is not independent, or if the executive does not respect judicial decisions, then this remedy will not in practice be successful. However, such a situation cannot be assumed and, in any event, it is a question of recognizing the principle that persons held as POWs do not thereby forfeit their quality as human beings and their right, under human rights law, to contest the lawfulness of their detention.148
2 The interpretation of limitation clauses in general was presented at 3.2 above, and freedom of movement will be addressed in Ch 14 below.
11 For a description of various control orders and their implications, see eg Assessing Damage, Urging Action: Report of the Eminent Jurists Panel on Terrorism, Counter-terrorism and Human Rights (International Commission of Jurists, 2009) 110–13.
ECHR, Art 5 § 1: ‘No one shall be deprived of his liberty save…in accordance with a procedure established by law’;
ACHR, Art 7 § 2: ‘No one shall be deprived of his physical liberty except for the reasons and under the conditions established beforehand by the constitution of the State Party concerned or by a law established pursuant thereto’;
ACHPR, Art 6: ‘No one may be deprived of his freedom except for reasons and conditions previously laid down by law’;
Arab Charter, Art 14 § 2: ‘No one shall be deprived of his liberty except on such grounds and in such circumstances as are determined by law and in accordance with such procedure as is established thereby’;
American Declaration, Art XXV: ‘No person may be deprived of his liberty except in the cases and according to the procedures established by pre-existing law.’
16 IAComHR, Coard et al v United States Case 10.951, Report No 109/99, 29 September 1999, § 45. The Commission deduced that that this provision must require preventive detention for public security reasons to be based on grounds and procedures set forth by law, that the law must not be arbitrary, and that supervisory judicial control must be available without delay.
18 Ibid §§ 48–50. The case primarily turned on the procedures that should have been followed, and which will be examined at 9.8 below.
20 Hague Convention V of 1907 and the four Geneva Conventions of 1949 contain quite a number of provisions that enable, or even require, non-belligerent and belligerent nations to detain various categories of persons (eg escaped troops, medical personnel, etc) within very precise limits and in accordance with very precise circumstances.
37 ECtHR, Cakici v Turkey Judgment, 8 July 1999, § 104. See also 8.2.4 above, on enforced disappearances.
42 AComHPR, Amnesty International, Comité Loosli Bachelard, Lawyers Committee for Human Rights, Association of members of the Episcopal Conference of East Africa v Sudan Com 48/90, 50/91, 52/91, and 89/93, 15 November 1999, § 59.
46 IACtHR, Chaparro álvarez and Lapo Íñiguez v Ecuador Judgment, 21 November 2007, § 93. In this case there was a violation of ACHR, Art 7 § 3 because the petitioners were arrested arbitrarily and were ordered to be kept in detention, which lasted over a year, even though there was no concrete evidence linking them to a crime. Other requirements for pre-trial detention, most notably ACHR, Art 7 § 5 were not respected. Specific procedures for detention in criminal contexts is the subject of Ch 10 below.
48 Ibid. ICCPR, Art 15 § 1 prohibits the conviction or sentencing of someone in a way not provided by law at the time and also inflicting a heavier penalty than that existing at the time of the offence; see Ch 11 below.
49 Ibid. The case concerned a sexual offender, but the principle would be the same for the continued imprisonment of someone convicted for a criminal offence based on fear of his or her dangerousness.
50 See 9.2 above.
52 The term ‘administrative detention’ is used in this book for all detentions that are not for pre-trial purposes. National and international bodies sometimes use different terms for such detention, eg ‘preventive detention’, although this latter term is sometimes used by such bodies for detention on remand in pre-trial cases.
53 See 9.4.1 above.
55 On this point, see also 4.6.4 above.
63 AComHPR, Principles and Guidelines on the Right to Fair Trial and Legal Assistance in Africa, 2003 (hereinafter Fair Trial Principles), provides that: anyone ‘who is arrested shall be informed, at the time of arrest, of the reasons for his or her arrest’ (Section M 2(a)). The same provision had appeared in an earlier resolution ‘on the right to recourse and to fair trial’, which had been adopted in 1982.
64 The same provision, in all the treaties, requires information to be given on any charge against the person. The interpretation of this second aspect of the provision, which is not quoted above, is discussed in Ch 10 below.
69 ECtHR, Saadi v United Kingdom Judgment (Chamber), 11 July 2006, § 55. In the same case, the Court recalled its jurisprudence that it was sufficient to give broad reasons at the time of detention, with the reasons delivered in writing two days later: Ibid § 52. It also recalled that the information does not need to be given in a particular form, or to consist of a complete list of charges at that moment: Ibid § 51. This judgment was confirmed by the Grand Chamber of the ECtHR in the same case, 29 January 2008, § 84.
70 eg HRCte, Grant v Jamaica, information given seven days later constituted a breach, Com 597/1994, Views, 22 March 1996, § 8.1; AComHPR, Rights International v Nigeria, information given nine days later constituted a breach of Art 6, Com 215/98, 15 November 1999, § 29.
72 Principle 18 § 4 of the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, UNGA Res 43/173, 9 December 1988 (hereinafter Body of Principles on Detention). The AComHPR's Fair Trial Principles state, in Section N.3(e) that ‘All arrested, detained or imprisoned persons shall be [able] to communicate with a lawyer, without delay, interception or censorship and in full confidentiality’. Although this provision appears in the context of preparation of defence for a criminal charge, there seems to be no reason why it should not apply to the right of all arrested or detained persons to a lawyer, provided in the same document in Section M 2(b), (e), and (f).
78 The AComHPR's Fair Trial Principles also state, in Section M 2(d) that ‘If the arrested or detained person is a foreign national, he or she must be promptly informed of the right to communicate with his or her embassy or consular post’. Both this provision, and the above-mentioned ones in the UN Body of Principles on Detention and the Standard Minimum Rules also provide that if a person is stateless or a refugee, they have the right to contact the representative of the competent international organization.
84 This procedure is described in Ch 10 below.
85 See 9.2 above.
91 This expression is used in all the relevant treaties with the exception of the ECHR, which uses the term ‘speedily’ in Art 5 § 4. There is no evidence that this has made any difference to the interpretation of the provision.
95 Although in the case of Mansour Ahani v Canada the HRCte was prepared to accept that review ‘within a week’ of a certification that a suspected terrorist might be deported, and who was detained on that basis, did comply with ICCPR, Art 9 § 4: HRCte, Mansour Ahani v Canada Com 1051/2002, Views, 29 March 2004, § 10.2.
104 AComHPR, Amnesty International et al v Sudan Com 48/90, 50/91, and 89/73, 15 November 1999, § 60. The requirement for habeas corpus procedures to be heard by a judicial body is also spelled out in the AComHPR's Fair Trial Principles, Section M 5(e).
125 A similar issue of confidentiality of materials arose before the HRCte in relation to the detention of a person, pending deportation, further to certification by the executive that he was a security risk. This aspect was considered under ICCPR, Art 13 rather than Art 9 § 4, because the review concerned the reason for deportation. The HRCte decided that the review procedure was defective because he was not given the full materials on the basis for his deportation, he feared torture if sent back to Iran, and the government of Canada had not shown why compelling reasons of national security prevented full disclosure. On this basis, the HRCte found a violation of Art 13 together with Art 7: HRCte, Mansour Ahani v Canada Com 1051/2002, Views, 29 March 2004, §§ 10.6–10.9.
126 The IAComHR has added that a longer period of administrative detention may be justifiable in an emergency, provided that this is subject to non-derogable procedures: IAComHR, ‘Report on Terrorism and Human Rights’, 2002, § 140.
135 Ibid §§ 54–55. Under GC 4, Art 78 civilians in occupied territory may only be interned or subject to assigned residence ‘if the Occupying Power considers it necessary for imperative reasons of security’.
136 GC4, Art 43. It needs to be noted that the automatic internment of so-called ‘enemy aliens’ is prohibited under GC4, Art 42. Such persons may only be interned or placed in assigned residence ‘if the security of the Detaining Power makes it absolutely necessary’.
141 eg the confinement of all Iraqi reservists in the UK during the 1991–2 Gulf War: F Hampson, ‘The Geneva Conventions and the Detention of Civilians and Alleged Prisoners of War’ (1991) Public Law 507, 514–16. It is generally accepted that reservists who are not on their way to join the armed forces may not be captured as POWs.
142 It should be noted that, unlike the habeas corpus remedy, the ICRC is unable to order the release of persons even if it is clear that they do not fall within the category of persons that may be detained under IHL.
143 On the standards relating to the detention of persons under human rights law, see Ch 7 above.
148 This was also the view of the majority of experts who attended an ‘Expert meeting on the Supervision of the Lawfulness of Detention during Armed Conflict’, convened by the University Centre for International Humanitarian Law, Geneva (now the Geneva Academy of International Humanitarian Law and Human Rights) on 24–25 July 2004 〈http://www.adh-geneve.ch/docs/expert-meetings/2004/4rapport_detention.pdf〉 at p 42.