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The right to be informed of a criminal charge (article 9(2))

RIGHT TO FREEDOM FROM ARBITRARY DETENTION

1. INTRODUCTION

This memorandum examines:

(a) the nature of the right to be free from arbitrary detention under article 9(1) of the ICCPR; and

(b) the extent to which freedom from arbitrary detention is a right protected by customary international law.

2. FREEDOM FROM ARBITRARY DETENTION UNDER THE ICCPR

2.1 Introduction

Arbitrary detention is prohibited under article 9(1) of the ICCPR, which states that:

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 procedures as are established by law.

Commentators have noted that the right to be free from arbitrary detention under article 9(1) of the ICCPR is "facilitated by procedural guarantees" in articles 9(2) to (5) of the ICCPR,[1] being

· the right to be informed of a criminal charge (article 9(2));

· the rights of persons detained on criminal charges (article 9(3));

· the right of habeas corpus (article 9(4)); and

· the right to compensation for unlawful arrest or detention (article 9(5)).

This view seems to find support in jurisprudence of the HRC which blurs the various subparagraph of article 9. For example, in C v Australia, the HRC said that "continuance of immigration detention for over two years without individual justification and without any chance of substantive judicial review was, in the Committee's view, arbitrary and constituted a violation of article 9, paragraph 1".[2]

The following is a brief discussion of each of the procedural guarantees in article 9(2) to 9(4), which may inform the scope of article 9(1).

The right to be informed of a criminal charge (article 9(2))

Article 9(2) provides:

Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.

Article 9(2) applies to people who are remanded in custody pending charge.[3] The provision has been interpreted to mean that a person must be reasonably aware of the precise reasons for arrest to enable him to take immediate steps to secure his release.[4]

In Drescher Caldas v Uruguay, the HRC held that it was not sufficient "simply to inform" the author of the complaint "that he was being arrested under the prompt security measures without any indication of the substance of the complaint against him."[5]

2.3 Rights of persons detained on criminal charges (article 9(3))

Article 9(3) of the ICCPR provides:

Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgment.



The HRC, in General Comment 8, noted that the meaning of the word "promptly" in article 9(3) "must not exceed a few days".[6] In Freemantle v Jamaica,[7] the Committee found a violation of article 9(3) when the author was held incommunicado for four days without being brought before a judge or having access to counsel.

The HRC has recently stated that:

The State Party should take action to ensure that detention in police custody never lasts longer than 48 hours and that detainees have access to lawyers from the moment of their detention.[8]

Extended pre-trial detention is also a breach of article 9(3), with what constitutes "reasonable time" being assessed on a case-by-case basis.[9] Long periods of pre-trial detention may, however, be permitted when a detainee is charged with a serious offence.[10]


Date: 2015-02-16; view: 439


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