Detention

Detention is the act where a police officer or law enforcement official deprives a person of their liberty for a temporary period following a legal process..

According to the Institute for Crime and Justice Policy Research, detention could occur at any of the following stages:

• Pre-court stage: the decision has been made to proceed with the case, and further investigations are in progress or a court hearing is pending;
• Court stage: the court process to determine the guilt of the accused is ongoing;
• Sentencing stage: the person has been convicted at court but not yet sentenced;
• Appeal stage: a provisional sentence has been passed, but the definitive sentence is subject to an appeal process.

(a) Where Does Detention Happen?

According to the UNODC Court Users Guide, when a suspect is arrested and detained, they should be kept in:

• A cell at a police station;
• The arrest cell of another law enforcement agency;
• The holding cell of a court; or
• A prison cell.

Detainees should not be detained in the same part of a prison as prisoners who have received a conviction from a court. This does happen in some countries.

(b) Who Is Responsible for Detention?

Detention is generally administered by public authorities acting in accordance with an administrative or judicial procedure.

• This will usually be police officer or prison officer in charge of a detention facility.
• In some cases, private contractors may be authorised to detain persons lawfully, although this situation is uncommon.

The law provides law enforcement bodies with the power to detain people in certain circumstances. However, when detention takes place outside the parameters set in law, it will be unlawful and capable of challenge through legal action.

At this point in the Guide, we will outline the general legal framework that applies to detention in international law and the national laws of many countries.

(a) The Right to Liberty

A key starting point is that being in detention does not take away all your rights. Every individual has the right to liberty and security.

At international law, this is recognised in numerous international human rights treaties:

Example: Article 9 of the International Covenant on Civil and Political Rights

“(1) Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.”

These rights are echoed in the European Convention on Human Rights (Article 5), the American Convention on Human Rights (Article 7) and the African Charter on Human and Peoples’ Rights (Article 6).

This right is also reflected in the national constitutions of many countries:

Example: Indian Constitution, Article 21

“No person shall be deprived of his life or personal liberty except according to a procedure established by law.”

As a clear deprivation of one’s liberty or freedom, detention clearly engages this right. However, not all detentions violate the right to liberty and not all detentions are unlawful. Key to understanding when a detention will violate the right to liberty is the concept of “arbitrariness”.

(b) What Is an Arbitrary Detention?

The concept of “arbitrariness” is broader than unlawfulness. Arbitrary detentions include:

• Detentions that are unlawful at national law;
• Detentions without due process or procedural safeguards; and
• Detentions that are not appropriate, necessary, reasonable and proportionate.

Definition: The Center for Justice & Accountability 

“Arbitrary arrest and detention is the imprisonment or detainment of an individual, by a State, without respect for due process, without legal protections of a fair trial, or without any legal basis for the deprivation of liberty.”

For more information, the OHCHR Training Manual on Human Rights and Arrest provides a detailed explanation about the concepts of unlawful and arbitrary arrest.

(i) Detention not in accordance with national law

Detention will only be justified when it is lawful under the relevant national law.

National laws set out grounds when people can be held in detention. Detention can often be used for the following grounds:

• To hold a person arrested on suspicion of committing a crime before they have appeared in court;
• To get information from an accused and facilitate the investigation into an alleged crime;
• To ensure that a person appears before a court for their trial;
• To prevent further criminal activity from a person before their trial; and/or
• To prevent unlawful interference by the accused with the investigation of the case.

However, there are often other grounds in different countries’ laws.

Example: Section 35 of the Constitution of Nigeria

The right to liberty in the Nigerian Constitution states that someone can be detained:

• When they been sentenced by a court after they’ve been found guilty;
• For the purpose of bringing him before a court because of a court order or where there is reasonable suspicion the person has committed a criminal offence;
• If detention is reasonably necessary to prevent a person committing a criminal offence;
• For the purpose of treatment or the protection of the community where persons are suffering from infections or contagious disease, persons are of unsound mind, persons are addicted to drugs or alcohol or vagrants; or
• For the purpose of preventing the unlawful entry of any person into Nigeria or of effecting the expulsion, extradition or other lawful removal from Nigeria.

National laws also set certain procedures for detention that must be followed. If these procedural safeguards are not followed, a detention may be unlawful and arbitrary.

Example: Human Rights Act (UK)

The HRA sets the following common procedural safeguards for a person who is arrested or detained. These are:

• The person must be told why they are being detained;
• They must be brought before a judge promptly – i.e. without undue delay;
• The person can challenge the lawfulness of the detention; and
• Victims of unlawful detention are entitled to compensation.

Many countries have separate legislation that will usually provide the State with greater powers to detain suspects in certain instances, for example in the cases of suspected terrorism or where there is a state of emergency.

Example: Terrorism Act 2006 (United Kingdom)

If a person is suspected of a serious offence in the UK, they can be detained for a maximum of 96 hours without being charged. However, under terrorism legislation in the United Kingdom, a person suspected of terrorism can be detained for a maximum of 28 days without being charged.

Check whether this type of law exists in your country and whether it could apply to the detention you are challenging.

Practical Tip: The Importance of National Law

Accordance with national law standards is not just part of what makes a detention arbitrary under international law, it is these national law standards that will generally form the basis of legal action that you take to challenge detention. For that reason, it is very important that you research that the law is relating to detention in your country.

(ii) Detention that is unreasonable, unforeseeable or disproportionate

Even if there are grounds for detention under national law and procedures have been followed, a detention can be arbitrary if it’s unreasonable, unforeseeable or disproportionate.

International Standards: Detention as a Last Resort

Among other international bodies, the UN Sub-committee on the prevention of torture Pre-trial detention should only be used as last resort on justifiable grounds. It should only be used for the most serious offences or where there are serious risks that can only be mitigated by detaining you.

International law requires that pre-detention be the exception rather than the rule, given its severe and often irreversible negative effects.

It is impossible to state when a detention will be unreasonable or disproportionate as this will depend on the facts of your case. But the following are key factors:

• The length of the detention. The longer it is, the more likely it will be disproportionate;
• The seriousness of the suspected offence or reason for detention. The less serious, the more likely detention will be disproportionate;
• The vulnerability of the detainee. If the detainee has a mental or physical illness that is worsened by detention, this could make a detention more likely to be disproportionate; and
• The availability of alternatives. If other less intrusive forms of measures were available, such as house arrest, bail conditions, confiscation of travel documents, curfews or electronic monitoring, but were not used or considered, it will be more likely that detention is disproportionate.

Foreseeability means that even if there is a national law on arrest powers or procedures, this must be clear and accessible so people can know when police will have a legal power to arrest them, otherwise there will be a problem with arbitrariness.

Example: McLawrence v Jamaica (UN Human Rights Committee)

The grounds for detaining a person must be clearly established in domestic legislation.

These principles are reflected in specific rules on different aspects of arrest, such as limits on the length someone can be detained and when they can be granted bail (these will be covered later in the Guide).

(c) Right to Compensation

Anyone who has been a victim of unlawful arrest or detention shall have an enforceable right to compensation. This provision is applicable to all unlawful or arbitrary arrests and detentions.

Example: ICCPR, Article 9

“(5) Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.”

This is reflected in many national constitutions:

Example: The Constitution of Nigeria

In Nigeria, any person who is unlawfully arrested or detained shall be entitled to compensation and public apology from the appropriate authority or person. The authority or person referred to here is the authority or person specified by law.

If you believe that you or someone in your community has been arbitrarily detained, it may be possible to take legal action to seek justice. This Guide is designed to provide guidance on how to do just that. This Guide will:

(i) Give you an introduction into the following 4 key areas relating to detention:

Detention without charge

Bail

Prolonged detention

Discriminatory detention

(ii) Outline what options you may have to take legal action to challenge detention and enforce your rights; and

(iii) Provide practical tips on how such action can be taken effectively.

This Guide is general in scope. It aims to give you an overview of your rights and what options you have to enforce them in the context of detention. This guide refers to international law and examples of national laws and legal systems in various countries. It therefore gives you general tips on how you can take legal action.

It is important to remember that every legal system is different and changes over time. If you want to enforce your rights, you must check what the laws and procedures are in your country. It will also be important for you to try and get legal advice from a lawyer

Action4Justice would like to thank the following individuals and organisations for their contributions to the A4J Detention Guide:

• The pro-bono team at Baker McKenzie;
• Oludayo Fagbemi and Gaye Sowe of the Institute of Human Rights and Development in Africa (IHRDA); and
• Stephen McNamara of the Tharthi Myay Foundation (Myanmar).

If you would like to contribute to A4J materials in the future, contact us.