This section will give you an introduction to the issue of detention without charge, the legal framework and suggest ideas about what you could do if you or someone in your community has been detained with charge.
Pre-trial detention occurs when a person accused of committing a crime has been arrested and is being kept in custody before a hearing or trial. After you are arrested, the police will decide whether to charge you with a criminal offence or take further action.
What is a charge?
A charge is a formal allegation of a crime that generally initiates criminal court proceedings. Charge usually occurs between arrest and criminal trial and is the point at which the prosecuting authority formally advises the suspect that they are to be prosecuted and gives them the details of the criminal allegations they will face.
Pre-charge detention occurs when an individual is held and questioned by the police but has not yet been charged with an offence. Where pre-charge detention lasts for too long, this can be unlawful and arbitrary.
Pre-inquiry detention: In a small number of countries, such as Myanmar, the police do not charge but it is the court which will determine the charge after hearing the prosecution evidence. The hearing of the prosecution evidence is known as “the inquiry”. The issue for such a country is pre-inquiry detention, rather than pre-trial detention. The underlying principles are the same.
Limitations on detention without charge follow from the right to liberty. It is made clear in international human rights treaties that the accused should promptly be notified of the charges against them.
Example: American Convention on Human Rights, Art 7)
Article 7 of the ACHR protects the right to liberty and prohibits arbitrary detention. In relation to detention without trial, it states:
(4) Anyone who is detained shall be informed of the reasons for his detention and shall be promptly notified of the charge or charges against him.
Example: Campbell v Jamaica (UN HRC)
The HRC underlined that “one of the most important reasons for the requirement of ‘prompt’ information on a criminal charge is to enable a detained individual to request a prompt decision on the lawfulness of his or her detention by a competent judicial authority.”
In addition to having the right to be informed of the charge promptly, you must be informed in a language you understand.
It follows from the fact almost all countries recognise the right to liberty in their national laws that there are legal time limits on pre-charge detention. However, the period for which a person may be detained without being informed of the charges against them varies by country.
Example: The Mexican Constitution, Article 19
“Detentions before a judicial authority in excess of 72 hours, counted from the moment the accused is presented to the authority, are prohibited without presenting formal charges indicating the crime, place, time and circumstances of such crime; as well as the evidence of the crime and of the probable liability of the accused.”
Other examples include:
If a detention is in breach of these limits, it will be unlawful and arbitrary, violating the right to liberty.
Example: Constitutional Rights Project and Civil Liberties Organisation v Nigeria (African Commission on Human and Peoples’ Rights)
The ACmHPR found that holding journalists in custody for 3 years without charges amounted to a clear arbitrary detention and grave violation of the right to liberty in Article 6 of the African Charter of Human and Peoples Rights.
If you or someone in your community is being held in detention without charge (past the national limit), consider the following steps.
In any type of legal case, you need to prove to a court that your “version of events” (i.e. what you are saying happened) actually happened. To prove your case, you will need evidence.
Examples of necessary/useful evidence relating to detention without charge will likely include:
For more tips on how to gather evidence, please refer to How Can I Prove My Case? on the A4J Going to Court: Q&A.
If you or the detainee continue to be in detention during the criminal justice process, you could challenge the detention without charge informally. For example:
Practical Tip: Know Your Rights
To strengthen your arguments and make your communication with the police more effective, you first need to know your rights relating to detention without charge. This will make your arguments more persuasive.
Look at the rights and laws outlined in this section and find the equivalent in your country.
If you have been detained without charge in breach of national law, there will usually be possibilities for you to take legal action against the police outside of the criminal justice process (i.e. in a separate case from the criminal investigation the police are bringing against you). These options will be outlined in How Can I Take Legal Action?
Example: Alhassan Abubakar v Ghana (African Commission on Human and Peoples’ Rights)
A Ghanaian citizen was arrested in 1985 for allegedly cooperating with political dissidents and was detained without trial for 7 years until he escaped from a prison hospital. The AcmmHPR held that Article 6 of the African Charter was violated as the complainant had been arrested but was not charged with any offence and never stood trial.