Detention and Trial

Question 1

Deprivation of liberty involves more severe restriction of motion within a narrower space than mere interference with liberty of movement under article 12. Examples of deprivation of liberty include police custody, arraigo, remand detention, imprisonment after conviction, house arrest.

Answer 1

Gorji-Dinka v. Cameroon!

Question 2

Article 9 ICCPR (Art. 5 ECHR )

Answer 2

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.

Question 3

Right To be tried without undue delay

Answer 3

Pinkney v Canada 14(3)(c)

Question 4

Not to be compelled to testify against himself or to confess guilt.

Answer 4

Saunders v UK 14(3)(g)

Question 5

All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.

Answer 5

14(1) ICCPR

Question 6

[i]t cannot be the case that, as a matter oflaw, States can ignore known threats to the life of persons under their jurisdiction, just because he or she is not arrested or otherwise detained

Answer 6

Delgado Paez v Columbia

Question 7

Liberty of person concerns freedom from confinement of the body, not a general freedom of action. Security of person concerns freedom from injury to the body and the mind, or bodily and mental integrity, as further discussed in paragraph 9 below. Article 9 guarantees those rights to everyone. “Everyone” includes, among others, girls and boys, soldiers, persons with disabilities, lesbian, gay, bisexual and transgender persons, aliens, refugees and asylum seekers, stateless persons, migrant workers, persons convicted of crime, and persons who have engaged in terrorist activity.

Answer 7

General comment No. 35 Article 9 (Liberty and security of person)

Question 8

Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law

Answer 8

14(2) Gridin v. Russian Federation

Question 9

Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.

Answer 9

14(5) ICCPR

Question 10

To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him

Answer 10

Peart v Jamaica 14(3)(e)

Question 11

Right to: To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it

Answer 11

Benham v UK, Quaranta v Switzerland, 14(3)(d) ICCPR

Question 12

: Therefore, not all deprivations of liberty at the hands of the state will constitute a violation of a state’s obligations. Only where a deprivation of liberty is unlawful and/or arbitrary, will it constitute a violation of Article 9(1).

Answer 12

Article 9(1).

Question 13

In the case of juvenile persons, the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation.

Answer 13

14(4) ICCPR

Question 14

Right to fair trial

Answer 14

Article 14 ICCPR (Art. 6 ECHR, Art. 8 ACHR)

Question 15

The guarantee 14(1) ICCPR (of equality before the law) is violated if certain persons are barred from bringing suit against any other persons such as by reason of their race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Answer 15

Ato del Avellanal v. Peru!

Question 16

Similarly, restrictions upon movement within a state, a city, or even parts of a city have been held to be restrictions on freedom of movement and not deprivations of liberty.

Answer 16

Celepli v Sweden-restriction in freedom of movement do not automatically classify as detention

Question 17

The requirement of competence, independence and impartiality of a tribunal in the sense of article 14, paragraph 1, is an absolute right that is not subject to any exception.

Answer 17

Gonzalez del Rio v. Peru

Question 18

Deprivation of personal liberty is without free consent. Individuals who go voluntarily to a police station to participate in an investigation, and who know that they are free to leave at any time, are not being deprived of their liberty.

Answer 18

Jessop v. New Zealand!

Question 19

No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country. NE BIS IN IDEM

Answer 19

14(7), AP v Italy (where the same person was tried twice but in 2 different countries, this provision did not apply).

A.R.J. v. Australia
Furthermore, it does not guarantee ne bis in idem with respect to the national jurisdictions of two or more States

Question 20

Right to compensations

Answer 20

14(6) ICCPR

Question 21

Arbitrariness Whether detention is arbitrary will depend upon considerations of ‘inappropriateness, injustice and lack of predictability’ as well as ‘unreasonableness’

Answer 21

Van Alphen v Netherlannds

Question 22

9 ICCPR

2. 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.
3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized 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 judgement.
4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.
5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.

Answer 22

9(2)-9(5) ICCPR

Question 23

The right to equality before courts 14(1) ICCPR and tribunals also ensures equality of arms. This means that the same procedural rights are to be provided to all the parties unless distinctions are based on law and can be justified on objective and reasonable grounds, not entailing actual disadvantage or other unfairness to the defendant.

Answer 23

Dudko v. Australia!

Question 24

Art. 9 UDHR

Answer 24

No one shall be subjected to arbitrary arrest, detention or exile.

Question 25

Right to be informed of reasons for detention Article …… provides that ‘(a]nyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest: Similar guarantees can be found in Article 5(2) ECHR and Article 7(4) ACHR.

Answer 25

Article 9(2)

Question 26

Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.

Answer 26

Art. 10 UDHR

Question 27

The requirement of impartiality has two aspects. First, judges must not allow their judgement to be influenced by personal bias or prejudice, nor harbour preconceptions about the particular case before them, nor act in ways that improperly promote the interests of one of the parties to the detriment of the other.

Second, the tribunal must also appear to a reasonable observer to be impartial. For instance, a trial substantially affected by the participation of a judge who, under domestic statutes, should have been disqualified cannot normally be considered to be impartial.

Answer 27

Karttunen v. Finland!

Question 28

States parties also violate the right to security of person if they purport to exercise jurisdiction over a person outside their territory by issuing a fatwa or similar death sentence authorizing the killing of the victim.

Answer 28

Marcellana and Gumanoy v. Philippines!

Question 29

Thus, detention is arbitrary not only when it takes place without a legal basis but also where ‘it is not necessary in all the circumstances of the case

Answer 29

A v Australia

Question 30

Article 9 ICCPR 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’

Answer 30

Republic of Guinea v Democratic Republic of the Congo - what amounts to detention

Question 31

The prohibition of article 14, paragraph 7, is not at issue if a higher court quashes a conviction and orders a retrial.114 Furthermore, it does not prohibit the resumption of a criminal trial justified by exceptional circumstances, such as the discovery of evidence which was not available or known at the time of the acquittal.

Answer 31

Terán Jijón v. Ecuador