UNIVERSITY OF AMSTERDAM FACULTY OF LAW
ARBITRARY DETENTION IN
THE CASE OF SELF-CONFINEMENT:
DID THE UN GET IT WRONG ON ASSANGE?Debby Koopmans
MSc: European and International Law Track: Public International Law
Student No.: 10003800
Thesis supervisor: Dhr. Mr. Dr. L.R. Kiestra Date of submission: July 15th, 2016
2 ABSTRACT
On 4 December 2015, the UN Working Group adopted an Opinion on Assange’s confinement in the Ecuadorian embassy, deciding that it constitutes a deprivation of liberty imposed arbitrarily. This decision met with widespread derision. The critics argument is centered around the assumption of the Working Group that Assange is detained, rather than that he placed himself there to avoid lawful arrest. The controversy raises questions on the right to be free from arbitrary detention in a situation of self-confinement. This paper examines whether self-confinement to avoid lawful arrest can amount to arbitrary detention under international law. The aim is to give clarity regarding this controversy and also with respect to the contradictory arguments surrounding the Assange case. In essence, there are two questions, namely, whether self-confinement can amount to a deprivation of liberty, and if answered in the affirmative, whether it can be considered as arbitrary if the self-confinement is to avoid lawful arrest. The primary focus is the right to be free from arbitrary detention as provided for in the UDHR, the ICCPR and the ECHR. Firstly, this right is looked at from a historical perspective, while introducing the relevant provisions. Then the scope of application of detention is determined for the purpose of self-confinement. Subsequently, the notion of ‘arbitrariness’ and its scope of protection is examined. Finally, the Opinion is more extensively considered. It is found that self-confinement can, indeed, amount to a deprivation of liberty, so that it engages the right to be free from arbitrary detention. Relevant in this respect, is the fine line between ‘deprivation of liberty’ and ‘restriction on movement’. There are different criteria to be applied when deciding on this distinction, but one of them is not whether a person walked without coercion into the place of detention and can physically walk out of it. What is relevant is whether or not the specific context and circumstances, in actuality, can constitute a deprivation of liberty. It is also found that self-confinement to avoid lawful arrest can be a deprivation of liberty imposed arbitrarily. The reason for this is that ‘arbitrary’ has been accorded a wide interpretation, for which it constitutes more than just unlawful. The detention must also be in accordance with certain principles of international law, such as those of justice, necessity and
proportionality. Also the procedural safeguards, as provided for in both Article 9 ICCPR and Article 5 ECHR, are relevant. Even though, they are of limited assistance in determining the general standard of protection imposed by “arbitrary” on substantive laws, they, nevertheless, do provide protection against arbitrary treatment. The most compelling grounds on which the Working Group decided Assange’s confinement to be arbitrary were those based on proportionality. There could have been another, less restrictive way of proceeding. The Working Group has left the conceptual grounds for defining Assange’s situation as a ‘deprivation of liberty’ as opposed to a ‘restriction of movement’ open; a clear weakness of the Opinion. It is shown that describing Assange’s conditions as a form of deprivation of liberty are arguable too. This relates to the length of time that that Assange remained in the Ecuadorian embassy and to his ongoing circumstances. Consequently, it is concluded that the Working Group’s Opinion is right, contrary to the critics claim.
3 CONTENT
I. INTRODUCTION ... 4
II. THE RIGHT TO BE FREE FROM ARBITRARY DETENTION – A HISTORICAL PERSPECTIVE ... 8
A. Historical precedents ... 8
B. Article 9 UDHR ... 9
C. Article 5 ECHR ... 11
D. Article 9(1) ICCPR ... 12
III. THE SCOPE OF APPLICATION OF “DETENTION” ... 14
A. The meaning of detention ... 14
B. The fine line between ‘deprivation of liberty’ and ‘restriction of movement’ ... 18
IV. THE SCOPE OF THE STANDARD OF “ARBITRARY” ... 21
A. The wide meaning of arbitrary ... 21
B. Principles that determine the scope of arbitrariness ... 24
C. Procedural safeguards ... 26
V. THE WORKING GROUP AND ITS OPINION ON ASSANGE ... 28
A. Grounds for “deprivation of liberty” ... 28
B. Grounds for “arbitrariness” ... 30
VI. CONCLUSION ... 31
4
I. INTRODUCTION
On 4 December 2015, the United Nations Working Group on Arbitrary Detention1
adopted Opinion 54/20152 on the case of Julian Assange, in which it considered that he had been subjected to different forms of deprivation of liberty: initial detention in Wandsworth Prison in London, followed by house arrest and then confinement at the Ecuadorean Embassy.3 According to four of the five-membered Working Group, the various forms of deprivation of liberty to which Assange has been subjected constitute a form of arbitrary detention, including the current situation of Assange.4 The latter finding has been formally contested by both British5 and Swedish6 officials and has met with widespread derision among the legal community and the press.7 UK Foreign Secretary, Phillip Hammond, and former Director of Public Prosecution, Ken MacDonald argued that describing Assange’s conditions as ‘arbitrary detention’ is ‘ludicrous’.8 The Political Editor of Die Zeit argued in
the New York Times that Assange is destroying Wikileaks9 and Joshua Rozenberg of The
Guardian has asked ‘how did the UN get it so wrong on Assange?’.10 Similarly, Marina Hyde
1 The Working Group on Arbitrary Detention (the Working Group) was established by resolution 1991/42 and
was most recently extended resolution 24/7 for a further three-year period. In most broad terms, its mandate is to consider issues of deprivation of liberty. For more information about its functions and work see
<http://www.ohchr.org/EN/Issues/Detention/Pages/WGADIndex.aspx>.
2 UN Human Rights Council ‘Opinion No. 54/2015’ in ‘Opinions adopted by the Working Group on Arbitrary
Detention at its seventy-fourth session, 30 November – 4 December 2015’ (22 January 2016) UN Doc A/HRC/WGAD/2015 (the Opinion).
3 ‘Opinion No. 54/2015’ (n 2) para 86-88.
4 ‘Opinion No. 54/2015’ (n 2) para 86-88, 90 and 98; also see – ‘Julian Assange Arbitrarily Detained by Sweden
and the UK, UN Expert Panel Finds’ OHCHR (5 February 2016)
<http://ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=17013&LangID=E> (8 April 2016).
5 Foreign & Commonwealth Office ‘UK disputes UN working group opinion on Julian Assange’ (5 February
2016) <https://www.gov.uk/government/news/uk-disputes-un-working-group-opinion-on-julian-assange> (8 April 2016).
6 Ministry for Foreign Affairs Sweden ‘Comments by the Government of Sweden re Opinion No. 54/2015’
Reference: G/SO 218/2 (4 February 2016).
7 L Lazarus ‘The United Nations Working Group on Arbitrary Detention Decision on Assange: ‘Ridiculous’ or
Justifiable’?’ ejiltalk.org (9 February 2016) <http://www.ejiltalk.org/the-united-nations-working-group-on-arbitrary-detention-decision-on-assange-ridiculous-or-justifiable/> (8 April 2016); M Happold ‘Julian Assange and the UN Working Group on Arbitrary Detention’ ejiltalk.org (5 February 2016)
<http://www.ejiltalk.org/julian-assange-and-the-un-working-group-on-arbitrary-detention/> (8 April 2016).
8 E Addley J Elgot and A Bowcott ‘Julian Assange accuses UK Minister of Insulting UN after Detention
Finding’ (5 February 2016) The Guardian <http://www.theguardian.com/media/2016/feb/05/julian-assange-accuses-philip-hammond-insulting-united-nations> (2 June 2016).
9 J Bittner ‘How Julian Assange is Destroying Wikileaks’ (7 February 2016) The New York Times
<http://www.nytimes.com/2016/02/08/opinion/how-julian-assange-is-destroying-wikileaks.html?_r=0> (2 June 2016).
10 J Rozenberg ‘How Did the UN Get it so Wrong?’ (5 February 2016) The Guardian
5
of The Guardian has ridiculed the expertise and competence of the Working Group, referring to them merely as ‘academics seemingly devoid of judicial expertise’.11
The critiques’ argument is centered on the Working Group’s assumption that Assange has been detained in the Embassy by the authorities of the United Kingdom, rather than that he placed himself there and that he, therefore, chooses to avoid lawful arrest. This follows the reasoning of Mr. Tochilovsky, the fifth member of the Working Group, who in his dissenting opinion stated that:
Mr. Assange fled the bail in June 2012 and since then stays at the premises of the Embassy using them as a safe haven to evade arrest and detention. This could be some premises, as in Mr. Assange’s situation, or the territory of the state that does not recognize the arrest warrant. However, these
territories and premises of self-confinement cannot be considered as places of detention for the purposes of the mandate of the Working Group. (…) The Working Group is not competent to consider situations that do not involve deprivation of liberty.12
On the contrary, the central argument in de case presented by Assange’s lawyers is that Assange’s confinement in the Ecuadorian embassy is, indeed, deprivation of liberty and one that ‘cannot (…) be characterized as volitional’.13 He is not free to leave, as he is protecting himself from the violation of other human rights: ‘the only way for Mr. Assange to enjoy his right to asylum was to be in detention’.14 In the words of Assange’s lawyers:
The source submits that Mr. Assange was deprived of his liberty against his will and his liberty had been severely restricted, against his volition. An individual cannot be compelled to renounce an inalienable right, nor can they be required to expose themselves to the risk of significant harm. Mr. Assange’s exit from the Ecuadorian Embassy would require him to renounce his right to asylum and expose himself to the very persecution and risk of physical and mental mistreatment that his grant of asylum was intended to address. His continued presence in the Embassy cannot, therefore, be characterised as ‘volitional’.15
11 M Hyde ‘So That Settles It Then – Everyone’s to Blame Except Julian Assange’ (5 February 2016) The
Guardian <http://www.theguardian.com/commentisfree/2016/feb/05/julian-assange-un-panel-blame-fugitive> (2 June 2016).
12 ‘Opinion No. 54/2015’ (n 2) Appendix I. 13 ‘Opinion No. 54/2015’ (n 2) para 12. 14 ‘Opinion No. 54/2015’ (n 2) para 10. 15 ‘Opinion No. 54/2015’ (n 2) para 12.
6
The Working Group accepted the argument that Assange’s conditions are not volitional.16
However, the Opinion failed to clarify this further. Instead, its justification was based on ‘substantial failure’ of the authorities ‘to exercise due diligence’ in the ‘performance of criminal administration’.17 Inter alia, it castigated the authorities for failing to weigh up
Assange’s rights to non-refoulement and asylum which should have been ‘given fuller consideration (…) instead of being subjected to a sweeping judgment as either merely hypothetical or irrelevant’.18 But in their discussion, the Working Group does not either
explicitly endorse the argument that Assange’s residence in the Embassy ‘cannot be
characterized as volitional’, or directly refute the argument that Assange’s position is one of ‘self-confinement’ (and thus not fall under the definition of ‘detention’). Since the focus of the dissenting opinion was based on the later, the reticence of the Working Group to tackle this particular issue is remarkable. It is a clear weakness in the Opinion, one that has been extensively exploited by the critics.
Assange’s unique situation raises uncertainties regarding the application of the right to be free from arbitrary detention, a relatively long-standing fundamental right with a strong place in human rights law.19 Indeed, it is a right not only accepted in law by general practice, but also constitutes customary international law and some even argue it to be a peremptory or jus
cogens norm.20 However, whether the latter is true is questionable. There exists reasonably
clarity as to its definition and scope in ordinary situations involving detention before, during and after criminal proceedings, but the more irregular forms of detention still warrant
particular concern.21 Society does not agree on what constitutes liberty, what justifies taking it
away, nor on the objectives the administration of its deprivation ought to serve. The quest to define these concepts are fraught with political, social and moral controversy.22 This becomes
specifically evident when one considers the extremity of reactions aroused by the discussion in the Opinion.
16 L Lazarus ‘Is the United Nations Working Group on Arbitrary Detention Decision on Assange ‘So Wrong’?’
(9 February 2016) UK Constitutional Law Association <https://ukconstitutionallaw.org/2016/02/09/liora-lazarus-is-the-united-nations-working-group-on-arbitrary-detention-decision-on-assange-so-wrong/> (2 June 2016).
17 ‘Opinion No. 54/2015’ (n 2) para 97. 18 ‘Opinion No. 54/2015’ (n 2) para 97.
19 H Davis Beginning Human Rights Law (1st edn Routledge New York 2014) 132, 133.
20 UN Human Rights Council (22 session) ‘Report of the Working Group on Arbitrary Detention’ (24 December
2012) UN Doc A/HRC/22/44 para 51.
21 UN Human Rights Council (62th Session of the Working Group on Arbitrary Detention) ‘International
Commission of Jurists (ICJ) Submission to the Working Group on Arbitrary Detention’ (Submitted February 2012) 2.
7
Although covering the controversy surrounding the Assange case, the focus of this paper is more general in nature. The main question is: Can self-confinement to avoid lawful arrest amount to arbitrary detention under international law? In my quest to answer this, I will first examine the right to be free from arbitrary detention from a historical perspective. In doing so, the relevant Articles will be introduced, while providing a general understanding of the right and its purpose (chapter II). Then, I will elaborate on the definition of detention, defining its scope of application for the purpose of self-confinement. In this chapter, the extent to which self-confinement can amount to a form of detention to attract the protection of the basic right to be free from arbitrary detention will be examined (chapter III). Subsequently, the notion of arbitrariness and its scope of protection will be looked into. The question will be answered if the right to be free from arbitrary detention can be breached in the case of self-confinement to avoid lawful arrest and, if so, under what circumstances (chapter IV). Finally, I will examine the Opinion more extensively, providing for some clarity in the jungle of contradictory arguments surrounding the Assange case.
Since the Working Group is entrusted with the task to ‘investigating cases of deprivation of liberty imposed arbitrarily, (…), with the relevant international standards set forth in the Universal Declaration of Human Rights23 and with the relevant international instruments accepted by the States concerned’, I will primarily focus on those documents relevant for the involved States with regard to arbitrary detention, namely the International Covenant on Civil and Political Rights24 and the European Covenant of Human Rights25. These documents
themselves, their case law and legal review offer guidelines for the general application and protection of the right to be free from arbitrary detention, so that also the question can be answered what it means in the case of self-confinement.
23 Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III)) (UDHR). 24 International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March
1976) 999 UNTS 171 (ICCPR).
25 Convention for the Protection of Human Rights and Fundamental Freedoms (entry into force 3 September
8
II. THE RIGHT TO BE FREE FROM ARBITRARY DETENTION – A
HISTORICAL PERSPECTIVE
A. Historical precedents
The first important steps towards recognition of the right to freedom from arbitrary detention is represented by the Magna Carta. 26 Article 39 states that “no Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any otherwise destroyed; nor will we not pass upon him nor condemn him, but by lawful Judgment of his Peers, or by the Law of the Land”.27 However, the full
effect of this article was not immediately apparent, since its protections only applied to the members of the small feudal class, referred to as “Freemen”.28 The Magna Carta did, nevertheless, impose a restriction on regal power and subsequently, during the reign of Edward III (1327-77), the protection which only earls and barons initially enjoyed, was extended to “all men”.29
Quite some time elapsed before a second important development of the concept of
freedom from arbitrary detention took place. The promulgation of the Habeas Corpus Acts of England in 164030 and 167931 recognized the right to personal liberty, by which a citizen could employ a habeas corpus proceeding to challenge detention by the King and Council. This codified to some extent and perfected an ancient remedy. The UK eventually accepted habeas corpus as the standard procedure by which the legality of any imprisonment could be tested and this became one of the cornerstones of the right to personal liberty in the UK.32
In 1789, the French Declaration of the Rights of Man and the Citizen33 proclaimed a number of the “natural and imprescriptible rights of man”, including freedom from detention. Article 7 states that “no man may be indicted, arrested or detained except in cases determined
26 L Marcoux ‘Protection from Arbitrary Arrest and Detention Under International Law’ (1982) 5 Boston
College International and Comparative Law Review 346.
27 Magna Carta 1 Statutes of the Realm 6-7 (1810).
28 JB Brebner ‘Magna Carta’ in RM Maclver (ed) Great Expression of Human Rights: A Series of Addresses and Discussions (4th edn Kennikat Press New York 1969).
29 L Marcoux (n 26) 347.
30 ‘Charles I, 1640: An Act for [the Regulating the Privie Councell and for taking away the Court commonly
called the Star Chamber’ Statutes of the Realm (1628-80) 5 110–12 <http://www.british-history.ac.uk/statutes-realm/vol5/pp110-112> (5 July 2016).
31 'Charles II, 1679: An Act for the better securing the Liberty of the Subject and for Prevention of
Imprisonments beyond the Seas’ Statutes of the Realm (1628-80) 5 935-38 <http://www.british-history.ac.uk/statutes-realm/vol5/pp935-938> (5 July 2016).
32 L Marcoux (n 26)) 347.
9
by law and according to the forms which it has prescribed”. Thus, like the other two texts, it ensured that individuals received protection against unlawful acts, but not against arbitrary laws. More than a century later, based upon these precedents, the UDHR, ECHR and ICCPR made a significant contribution to the further development of the concept of freedom from arbitrary detention by providing for such an extended protection.34
B. Article 9 UDHR
The UDHR is said to set out, for the first time, fundamental human rights to be universally protected.35 Article 9 concerns arbitrary detention, stating:
No one shall be subjected to arbitrary arrest, detention or exile.
The Article focuses on the imposition of restrictions on personal liberty within a State.36 It was acknowledged that this right must exist before other human rights could be developed.37 But before its acceptance, multiple revisions and considerations took place at different UN bodies. The earliest drafts of Article 9 emphasized, like the earlier European documents, protection from “unlawful” detention. It aimed to guarantee against detention “save in the case provided for and in accordance with the procedure prescribed by law”.38 Another draft
contained words as “except in cases prescribed by law and after due process.”39 During a
session of the Commission on Human Rights (the Commission), a number of members expressed concern about the protection of citizens from tyrannical laws as well as from unlawful acts.40 The draftsmen were concerned with ensuring maximum protection for the right to personal liberty.41 In response, the Commission insisted that the word “law” would be
34 L Marcoux (n 26) 346-348.
35 -- ‘The Universal Declaration of Human Rights’ United Nations
<http://www.un.org/en/universal-declaration-human-rights/> (12 April 2016).
36 L Marcoux (n 26) 347.
37 LJ Maki ‘General Principles of Human Rights Law Recognized by All Nations: Freedom from Arbitrary
Arrest and Detention’ (1980) 10 California Western International Law Journal 284.
38 UN Commission on Human Rights ‘Report of the First Session of the Drafting Committee’ (1947) UN Doc
E/CN.4/21 annex D.
39 The full wording of the Article was: "No one shall be deprived of his personal liberty or kept in custody except
in cases prescribed by law and after due process. Everyone placed under arrest or detention shall have the right to immediate judicial determination of the legality of any detention to which he may be subject." Here, you undoubtedly see the inspiration that was took from the earlier European documents protecting citizens from unlawful detention; ‘Report of the First Session of the Drafting Committee’ (n 38) Annex F.
40 UN Commission on Human Rights ‘Working Group on the Declaration of Human Rights’ in ‘Summary
Record of Third Meeting’ (1947) UN Doc E/CN.4IAC.2/SR.3.
10
qualified, which revealed concerns about the possibilities of abuse by tyrannical legal systems. Finally, the Commission waived the restricted prohibition to “unlawful” detention and chose for the word “arbitrary”.42
When the draft UDHR was passed to the Third Committee of the General Assembly (GA) for subsequent revision, the word “arbitrary” came under extensive debate. The representative of Uruguay pleaded to delete this word and to go back to a definition comparable to one of the first drafts.43 The representative of the Soviet-Union supported this idea, believing that the word “arbitrary” allowed for subjective interpretation.44 This was, however, not supported by
the majority of the Third Committee members. For many, “arbitrary” was the most vital word in the Article.45 In this regard, Mrs. Roosevelt stated, for example, that “it summed up the meaning of the whole article” and found that retention of the word “arbitrary” was vital.46
Furthermore, the Brazilian representative stated that “there might be cases in which anti-democratic governments had promulgated undesirable laws.”47 In line with this, the UK
representative noted that the object of the Article was to show that the UN disapproved of countries engaging in practices of arbitrary detention and that the legislation of certain countries permitting this should be brought into line with the standards of the UN.48
Finally, the Third Committee indeed considered that “arbitrary” was not synonymous with “unlawful”: Laws, as well as acts, could be arbitrary. For these reasons, the Article as
presented by the Commission was adopted and forwarded to the GA49 and the UDHR was
adopted in its totality by the GA in 1948. There was, at that time, an apparent growing consensus on the meaning of “arbitrary”: It was a broader concept than “unlawful”, and was designed to provide maximum protection of the right of personal liberty.50
42 L Marcoux (n 26) 353.
43 UNGA Third Committee (3rd Session) ‘Uruguay: Amendments to the Draft Declaration’ In ‘Draft
International Declaration of Human Rights’ (12 October 1949) UN Doc A/C.3/268.
44 UNGA Third Committee (3rd Session) ‘Summary Records of the 115th Meeting’ in ‘Draft International
Declaration of Human Rights’ (28 October 1948) UN Doc A/C.3/SR.115 257-258.
45 L Marcoux (n 26) 354.
46 UNGA Third Committee (3rd Session) ‘Summary Record of the 133th Meeting’ in ‘Draft International
Declaration of Human Rights’ (26 October 1948) UN Doc A/C.3/SR.133 247.
47 idim. 48 idim 248. 49 idim 252-257.
11 C. Article 5 ECHR
The ECHR was adopted in 1953 and contained a list of Articles which embody basic civil and political rights derived from the UDHR.51 It is interesting to note that the ECHR was not really intended to create new substantive rights, but it was rather designed primarily to place under international protection some basic rights presumably already recognized by the domestic laws of the Member States.52 Article 5 ECHR is such a right concerning arbitrary detention. The first paragraph states:
Everyone has the right to liberty and security of person. No one shall be deprived of his liberty (…).
Rather than prohibiting arbitrary detention directly, Article 5 ECHR asserts the general right to liberty and security. Without further definition, to guarantee personal liberty the Article catalogues the exclusive purposes for which States can detain people.53 The fact that these exceptions refer solely to arrest and detention, in which the word “arbitrary” does not appear, has lead commentators to interpret the term “liberty” narrowly.54 The ECHR seemed to
provide a substantially lower protection than the UDHR and the ICCPR (as we will see below). The word “lawful” seemed to qualify all the limitations to the right to be free from arbitrary detention found in Article 5.55
It has been suggested that the addition of the term ‘security of person’ has given the right a broader meaning.56 However, this view was rejected in a decision of the European
Commission, denying admissibility of an application by a United Kingdom citizen who claimed that her right to security was violated when police photographed her at a public demonstration.57 The European Commission have shown that “the expression ‘liberty and security of person’ in paragraph one of Article 5 must be read as a whole and that
consequently ‘security’ should be understood in the context of ‘liberty’. Put in different terms,
51 H Davis (n 19) 33.
52 L Sohn and T Buergenthal International Protection of Human Rights (The Bobbs-Merill Company
Indianapolis 1973) 1149.
53 H Davis (n 19) 133, 136.
54 CR Stoiber ‘The Right to Liberty: A Comparison of the European Convention Rights with United States
Practice’ (1976) 5 Human Rights 336.
55 JES Fawcet The Application of the European Convention on Human Rights (2nd edn Clarendon Press Oxford
1987) 57.
56 CR Stoiber (n 55) 336.
12
‘security of person’ means physical security, that is freedom from arrest and detention.”58
This ruling recognizes little scope for giving ‘security of person’ wider meaning. As one writer has stated: “Probably physical and legal rather than psychological, economic or social security is intended.”59
D. Article 9(1) ICCPR
Article 9 of the ICCPR is a codification of Article 9 of the UDHR. Article 9(1) of the ICCPR directly provides the right to be free from arbitrary detention, stating:
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.
Before its adoption in 1966, the major issue which arose was whether to draft it as a brief and general article or as a detailed article setting out exceptions to a “no deprivation of liberty” rule, like Article 5 ECHR.60 During multiple debates in sessions of different UN
bodies mainly two arguments were presented. On the one hand, it was argued that the drafters could not draft a list of exceptions without great difficulty (the generalists’ approach). On the other hand, it was argued that it would remain vague and incomplete unless it had a full list of exceptions (the detailed approach).61 The UK was the principal proponent of the latter
approach. On multiple occasions it argued that the word “arbitrary” was vague and incomplete and, as such, of little or no value, unless it had a full list of exceptions.62 The generalist approach was led by the US, pointing to the nearly insurmountable difficulties of drawing up a completely acceptable list of limitations to the right to personal liberty.63 Also, it
58 ‘The European Commission and the European Court of Human Rights’ (1973) XVI Yearbook of the European
Convention of Human Rights 336.
59 F Castberg The European Convention on Human Rights (1st edn Slijthof New York 1974) 92. 60 L Marcoux (n 26) 359.
61 L Marcoux (n 26) 359-364.
62 eg UN Commission on Human Rights (2nd Session) ‘Summary Record of the 23rd Meeting’ (5 May 1948) UN
Doc E/CN.4/AC.1/SR.23 at 4; UN Commission on Human Rights (3rd Session) ‘Comments from Governments
on the draft International Declaration on Human Rights, draft International Covenant on Human Rights and the question of implementation’ (17 April 1948) Annex 1 Un Doc E/CN.4/82/Add.4.
63 UN Commission on Human Rights (6th Session) ‘Draft International Covenant on Human Rights, Observation
13
was argued that the word “arbitrary” constituted an effective safeguard against abuse.64 Soon
it became clear that the majority of members favored this generalist approach.65
Many interpreted “arbitrary” to include the notion of injustice, which was their incentive to vote for the presented text of Article 9(1).66 In this regard, Mrs. Roosevelt stated, for instance, that “the word ‘arbitrary’ included the idea of injustice”. She added that “‘arbitrary’ (…) actually had a much broader meaning than ‘unjustified’ or ‘illegal’”.67 In addition, the
delegation of China noted that “the word “arbitrary” (…) meant unjust, unfair, inconsiderate of others (…). It was quite right that the paragraph should contain a general exhortation of a moral character and should set a goal of justice and respect for the rights of others which the peoples of the world must strive to attain.”68 During the course of debate, the Commission
also voted continually for the retention of “arbitrary”. The majority did not believe that the rule of law provided adequate safeguards against the possible promulgation of unjust laws and attempted through the use of the word “arbitrary” to impose an international standard upon the content of domestic laws.69
At subsequent sessions, the Economic and Social council and the Third Committee had little criticism on the presented Article. This lack of protest indicates that the majority implicitly endorsed it.70 When the Third Committee finally adopted the Commission’s “general” interpretation of “arbitrary”, it became clear, again, that the delegates viewed a broad interpretation of arbitrary as a means by which to provide maximum protection of the fundamental value of personal liberty.71 This seems in line with the drafters’ intentions:
Despite the eighteen-years difference between their adoptions, the initial drafting work of the ICCPR began at the same time as the UDHR and, therefore, both instruments were not only drafted by the same bodies, but generally by the same draftsmen as well. Consequently, the
64 UN Commission on Human Rights (6th Session) ‘Summary Record of the 146th Meeting’ (12 April 1950) UN
Doc E/CN.4/SR.146 12; UN Commission on Human Rights (6th Session) ‘Summary of Record of the 144th
Meeting’ (12 April 1950) UN Doc E/CN.4/SR.144 14.
65 UN Commission on Human Rights (8th Session) ‘Summary Record of the 313th Meeting’ (10 June 1952) UN
Doc E/CN.4/SR.131 12, 13.
66 UN Commission on Human Rights (6th Session) ‘Summary Record of the 147th Meeting’ (12 April 1950) UN
Doc E/CN.4/SR.147 9.
67 idim. 68 idim 12.
69 UNGA Third Committee (13th Session) ‘Summary Record of the 864th Meeting’ UN Doc A/C.3/SR.864 142. 70 P Hassan ‘The International Covenant on Civil and Political Rights: Background and Perspective on Article
9(1)’ (1973) 3 Denver Journal International Law 153-173.
71 UNGA Third Committee ‘Report of the Third Committee’ in ‘Draft International Covenants on Human
Rights’ (9 December 1958) UN Doc A/4045 6-10. T; UNGA Third Committee (13th Session) ‘Summary Records
14
identity in authorship supports the argument that the ICCPR contains a similar broad
definition as the UDHR, with the objective of maximizing the protection of personal liberty.72
III. THE SCOPE OF APPLICATION OF “DETENTION”
A. The meaning of detention
Fundamentally, detention is the deprivation of a person’s liberty.73 The right to liberty refers to personal and physical liberty, the right to decide for yourself where to live, where to go and who to visit etc. It concerns freedom from confinement of the body, not a general freedom of action.74 Liberty in this sense is lost when someone else takes you under his or her physical control. The need to protect a person’s liberty in this sense is widely recognized in legal systems throughout the world. For example, English common law assumes that a person is free unless specific rules of law (usually Acts of Parliament) permit detention. The Fifth Amendment to the US Constitution prevents the deprivation of liberty without due process of law. Likewise, the right to personal liberty is protected by international instruments.75 As we
have seen, the ECHR provides this right directly, while the UDHR and the ICCPR ensure it by prohibiting arbitrary detention. But the right is also protected in many other international human rights documents, such as the American Convention on Human Rights76, the African Charter on Human and Peoples77 and the Arab Charter on Human Rights78. Self-confinement as such is not explicitly provided for in any of these human rights documents. Neither does the prohibition on arbitrary detention exclude a type of self-confinement as a form of detention.
In this regard, it is important to note that these international instruments do not always use the same terminology to refer to deprivations of liberty: they may refer to ‘arrest’,
‘apprehension’, ‘incarceration’, ‘prison’, ‘reclusion’, ‘custody’, ‘remand’, and/or
72 P Hassan ‘The Word “Arbitrary” as Used in the Universal Declaration of Human Rights: “Illegal” or
“Unjust”?’ (1969) 10 Harvard L Rev 229.
73 ‘International Commission of Jurists (ICJ) Submission to the Working Group on Arbitrary Detention’ (n 21) 3. 74 Wackenheim v France (15 July 2002) Communication No 854/1999 UN Doc CCPR/C/75/D/854/1999 par 6.3. 75 H Davis (n 19) 131, 132.
76 American Convention on Human Rights (Pact of San Jose) (entered into force 18 July 1978) OAS Treaty
Series No 36 (1969) reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System OEA/Ser.I.V/II82 doc.6 rev.1 at 25 (1992) art 7(1).
77 African Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered into force 21 October 1986)
(1982) 21 ILM 58 art 6.
78 Arab Charter on Human Rights (entered into force 15 September 1994) reprinted in 18 Human Rights Law
15
‘detention’.79 This is, for instance, the case for the UDHR and the ICCPR. The term
‘detention’ is accorded a wide interpretation, so that it entails all deprivations of liberty. In 1982, the Human Rights Committee80 noted that “Article 9 [ICCPR] (…) has often been
somewhat narrowly understood in reports by States parties, and they have therefore given incomplete information”.81 In response, the Committee has pointed out that “paragraph 1 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.”.82 However, it was still linked to an official process of conviction, confirming
that “the expression ‘detention’ in article 9 refers to all situations, either pre-trial or post-trial.”83 In 2014, the Committee extended its broad interpretation of the Article by providing
that it applies to deprivation of freedom either before, during or after the trial (a term of imprisonment imposed following conviction), as well as deprivation of freedom in the absence of any kind of trial (administrative detention).84 It was shown by a comprehensive number of submissions of States to the Working Group that this interpretation is now as well confirmed by state practice.85
The definition of ‘detention’ provided for in the Study on the Right of Everyone to be Free from Arbitrary Arrest, Detention and Exile86, from 1964, supports this wide
interpretation. The Study was carried out by a committee established by the Commission and, during the course of it, the preparatory works and legislative history of the UDHR and ICCPR
79 The Human Rights Committee ‘Factsheet 26 – The Working Group on Arbitrary Detention’ 2
<http://www.ohchr.org/Documents/Publications/FactSheet26en.pdf> (30 May 2016).
80 The Human Rights Committee (the Committee) is the body of independent experts that monitors
implementation of the ICCPR by its State parties. It considers both inter-state and individual procedures and also publishes its interpretation of the content of human rights provisions, known as general comments on thematic issues or its methods of work. It is the successor to the Commission. More about the Committee can be found on <http://www.ohchr.org/EN/HRBodies/CCPR/Pages/CCPRIndex.aspx>.
81 UN Human Rights Committee ‘General Comment No 8: Article 9 (Right to Liberty and Security of Persons’
(30 June 1982) in ‘Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies’ (1994) UN Doc HRI/GEN/1/Rev.1 at 8 para 1.
82 idim.
83 UN Commission on Human Rights ‘Report of the Working Group on Arbitrary Detention – Questions of the
Human Rights of All Persons Subjected to Any Form of Detention or Imprisonment’ (1996) UN Doc E/CN.4/1997/4 para 66.
84 UN Human Rights Committee ‘General Comment No 35’ (2014) UN Doc CCPR/C/GC/35 para 40. 85 See eg submissions by Canada (R v Swain [1991] 1 SCR 933; R v Demers [2004] 2 SCR 489 para 30; May v Ferndale Institution [2005] 3 SCR 809 par 76; Kindler v Canada (Minister of Justice) [1991] 2 SCR 779 p 831; Cunningham v Canada [1993] 2 SCR 143 pp 148–151); Martinez v City of Los Angeles 141 F3d 1373, 1384 (9th
Cir 1998); and De Sanchez v Banco Central de Nicaragua 770 F2d 1385, 1397 (5th Cir 1985)).
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were consulted.87 To date, it remains the one and only detailed multilateral study on the
issue.88 Here, ‘detention’ is stated to entail:
the act of confining a person to a certain place, whether or not in continuation of arrest, and under restraints which prevent him from living with his family or carrying out his normal occupational or social activities”.89
The essence of this definition is confinement and deprivation of personal liberty.90 It is made up out of three elements, namely (1) the act of confining a person (2) under restraints (3) which prevent him from living with his family or carrying out his normal activities. Moreover, whether or not this is done in continuation of arrest and in which place is irrelevant. Also interesting is the fact that a part of the definition in an earlier report on the Study was left out, namely that detention will apply to the act “of a competent authority (usually judicial)”.91 There seems to be no publically available records of the rationale behind
this, but the most logical conclusion would be that the act of confinement for the purpose of detention is broader than that done by a competent authority. In fact, it allows all types of deprivation of liberty to fall within its scope, such as administrative detention, i.e. detention by the Executive for reasons unrelated to criminal activities, for example detention for educational supervision, for the purpose of deportation and extradition or, to protect ordre public, but also deprivation of liberty based on self-confinement, as in the case of Assange, for which the confinement is not based on a direct action of a competent authority.
As we have seen, within Article 5 ECHR, the chosen term is ‘deprivation of liberty’ and ‘detention’ does not occur. In this respect, it has been decided by the European Court of Human Rights (the European Court) that a deprivation of liberty is not confined to the classic case of detention following arrest or conviction, but may take numerous other forms.92 In addition, the ECHR has held that “the unacknowledged detention of an individual is a complete negation of [the relevant] guarantees and a most grave violation of Article 5.”93 Thus, the protection of Article 5 ECHR is engaged by different types of deprivation of liberty,
87 L Marcoux (n 26) 366.
88 ‘Report of the Working Group on Arbitrary Detention’ (n 20) para 52.
89 Department of Economic and Social Affairs Study of the right of everyone to be free from arbitrary arrest, detention and exile (United Nations, Sales No 65.XIV.2) (the Study) para 21.
90 L Marcoux (n 26) 349.
91 UN Commission on Human Rights (17th Session) ‘Study of the Right of Everyone to be Free from Arbitrary
Arrest, Detention and Exile’ (9 January 1969) UN Doc E/CN.U/813 14.
92 Guzzardi v Italy (1980) 3 EHRR 333 para 95. 93 Kurt v Turkey [1998] ECHR 44 para 124.
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and detention, both formal and unacknowledged, is a form of it. An example of another form of detention is confinement in airport transit zones. In 1996, the French government argued before the European Court that the four Somali nationals who had been held at Paris-Orly airport were not detained, as they were free to return to a safe country. This was not accepted and the practice of holding people like this in airports was held to constitute a deprivation of liberty.94 Other examples are the placement of individuals in psychiatric or social care institutions95 and questionings in a police station.96
For the above reasons, it seems that the scope of application of the right to be free from arbitrary detention in the UDHR, the ICCPR and the ECHR are the same, but that there is a slight differentiation in the meaning of detention. It is outside the scope of this paper to give a more extensive elaboration on this. But what should be realized is that ‘detention’ can be used in different ways. In some situations, it is used as the classic case of imprisonment linked to a trial and in other cases it is used to describe the much broader phenomenon of deprivation. In the latter case, ‘detention’ and ‘deprivation of liberty’ are two interchangeable concepts. We can also see this in the discussions of the Working Group. In the Opinion, for instance, it names Assange’s staying within the Ecuadorian embassy an “arbitrary deprivation of liberty”, while in the same paragraph talking about the “duration of such detention” and the “indefinite nature of this detention”. This is done despite the fact that in the renewal of its mandate in 1997, the Commission opted for the term ‘deprivation of liberty’, because it “eliminates any differences in interpretation between the different terminologies” and “relates to the
protection of individuals against arbitrary deprivation of freedom in all its forms”.97 Another
example is the naming of the placement of individuals in temporary custody in stations, ports and airports or any other facilities where they remain under constant surveillance. While the Working Group has constituted it de facto deprivation of liberty,98 the UN Refugee Agency’s (UNHCR) Executive Committee speaks of a de facto detention.99 What is important, however,
94 Amuur v France (1996) 22 EHRR 533.
95 eg De Wilde v Belguim (1970) 1 EHRR 373; Niels v Denmark (1989) 11 EHRR 175; Stanev v Bulgaria [GC]
ECHR Application No 36760/06 (17 January 2012).
96 Osypenko v Ukraine ECHR Application No 4634/04 (9 November 2010); Farhad Aliyev v Azerbaijan ECHR
Application No 37138/06 (9 November 2010); Creanga v Romania [GC] ECHR Application No 29226/03 (23 February 2012).
97 ‘Factsheet 26 – The Working Group on Arbitrary Detention’ (n 79) 4. 98 ‘Report of the Working Group on Arbitrary Detention’ (n 20) para 59.
99 Executive Committee of the UN High Commissioner’s programme ‘Detention of asylum-seekers and
refugees: the framework, the problem and recommended practice’ (4th June 1999) Standing Committee 15th Meeting UN Doc EC/49/SC/CRP.13 para 20; There now appears to be international consensus that such transit zones are places of detention, see C Giakoumopoulos ‘Detention of asylum seekers in the light of Article 5 of the ECHR’ in J Hughes and F Liebaut Detention of asylum seekers in Europe: Analysis and perspectives (1st edn
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is that the ICCPR and the ECHR are both applicable to all deprivations of liberty, so that its protection is engaged where a person’s ‘liberty is deprived’.
B. The fine line between ‘deprivation of liberty’ and ‘restriction of movement’
The crux lies in the fine line between ‘deprivation of liberty’ and ‘restriction of
movement’. The latter engages the right to freedom of movement, which is a human rights concept encompassing the right of individuals to travel from place to place within the territory of a country and to leave the country and return to it.100 Just like the right to be free from arbitrary detention, the right to freedom of movement is provided for in the constitutions of numerous States and international documents.101 The right to be free from arbitrary detention regards proclaiming the “right to liberty” and contemplates the physical and personal liberty of the person. The aim is to ensure that no one should be deprived of that liberty in an arbitrary fashion. It is not concerned with mere restrictions on liberty of movement.102 In the words of the Committee: “[This] involves a more severe restriction of motion within a narrower space than mere interference with liberty of movement.”103 The case Raimondo v
Italy104 exemplifies well the difference: The applicant was suspected of involvement with the Mafia. He had been confined to his home in the evenings and had to inform the police when he planned to leave. However, he did not require permission to leave his home and therefore this amounted to a restriction on movement, rather than a deprivation of liberty.
A particular fine line between the two concepts was drawn in the Guzzardi case105:
In order to determine whether someone has been "deprived of his liberty" within the meaning of Article 5, the starting point must be his concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question
100 Note that this is subject to limitations. Governments may, for instance, generally sharply restrict the freedom
of movement of persons who have been convicted of crimes. Most countries require that their citizens leave the country on a valid passport, travel document issued by an international organization or, in some cases,
identification document. Freedom of movement is also not construed as a right to permit an individual to enter private property of another. Moreover, restrictions may include national and regional official minimum wage tariff barriers to labour-market entry (free movement or migration of workers). See eg UN Human Rights Committee ‘General Comment No 27’ in ‘Compilation of General Comments and General Recommendations Adopted by Human Rights Treaty Bodies’ UN Doc HRI/GEN/1/Rev.6 at 174 (2003).
101 eg Art 13 UDHR; Art 12 ICCPR; Art 2 Protocol 4 ECHR. 102 Engel and others v The Netherlands (1976) 1 EHRR 647 para 58.
103 ‘General Comment No 35’ (n 84) para 5; also see González del Río v. Peru (19 October 1987)
Communication No 263/1987 UN Doc CCPR/C/46/D/263/1987 para 5.1; and Karker v. France (26 October 2000) Communication No 833/1998 UN Doc CCPR/C/70/D/833/1998 para 8.5.
104 Raimondo v Italy (1994) 18 EHRR 237. 105 Guzzardi v Italy (n 92) para 92-93.
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(…).106 The difference between deprivation of and restriction upon liberty is nonetheless 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.107
What is meant by ‘starting point’ has become clear by the case Austin v. UK108. It
concerned a demonstrator who was caught up in a two kilometer square police cordon for about seven hours during the mass rally against capitalism and globalization in central
London on May Day 2001. There was no evidence that her conduct was anything but peaceful and lawful throughout. At domestic level she had lost all cases, for it was held that her
containment did not constitute deprivation of liberty to engage Article 5 ECHR. As Lord Hope put it: “Measures of crowd control undertaken in the interest of the community will fall outside Article 5 so longs as they are not arbitrary: they must be resorted to in good faith, be proportionate and be enforced for no longer than is reasonably necessary”.109 The European
Court, however, made it clear that “an underlying public interest motive (…) has no bearing on the question whether that person has been deprived of his liberty”.110 Even though it can
serve as a justification of the deprivation, nothing in the European Court’s case law indicates that the deprivation should be viewed through the state’s eyes and its motive has no place classifying a deprivation.111
The criteria of type, duration, effects and manner can be seen as traditional factors that are capable of objective determination or at least can be viewed from the perspective of the alleged detainee.112 The factors “type” and “manner” have regard to the specific context and circumstances surrounding types of restriction other than the paradigm of confinement in a cell.113 In this sense, relevant factors to be considered include the possibility to leave the restricted area, the degree of supervision and control over the person’s movements, the extent of isolation and the availability of social contacts.114 An additional, subjective element is
106 This was reiterated from Engel and others v The Netherlands (n 102) para 58-59.
107 Guzzardi v Italy (n 92) para 93; See also Rantsev V Cyprus and Russia ECHR Application No 25965/04 (7
January 2010) para 314; Stanev v Bulgaria (n 95) para 115.
108 Austin and Others v the United Kingdom (2012) 55 EHRR 14.
109 D Mead ‘Kettling Comes to the Boil before the Strasbourg Court: Is it a Deprivation of Liberty to Contain
Protesters En Masse?’ (2012) 71 The Cambridge Law Journal 472, 475.
110 Austin and Others v the United Kingdom (n 108) para 58. 111 D Mead (n 109) 472, 475.
112 D Mead (n 109) 472, 475.
113 Nada v Switzerland ECHR Application No 10593/08 (12 September 2012) para 226; Austin and Others v the United Kingdom (n 108) para 95; Storck v Germany ECHR Application No 61603/00 (16 June 2015) para 73. 114 Guzzardi v Italy (n 92) para 95; HM v Switserland ECHR 39187/98 (26 February 2012) par 92;
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whether or not the person has validly consented to the confine in question.115 In its general
comment No. 35, the Committee clearly states that deprivation of personal liberty is without free consent.
The cumulative effects of the conditions which are sought to be imposed on the alleged detainee need to be so restrictive as to amount to a deprivation of liberty. In this sense, it is useful to reiterate that it is about the right of a person’s liberty and a situation that constitutes a de facto deprivation of liberty. Where the exercise of such liberty would have coercive results, such as further deprivations of liberty or putting other rights at risk, this cannot be described as liberty in practice. The fact that a person is not handcuffed, put in a cell or otherwise physically restrained does not constitute a decisive factor in establishing the existence of a deprivation of liberty.116 In line with this the Committee stated in its General Comment No. 35117:
The term “arrest” refers to any apprehension of a person that commences a deprivation of liberty, and the term “detention’ refers to the deprivation of liberty that begins with the arrest and continues in time from apprehension until release.118 Arrest within the meaning of article 9 need not involve a formal
arrest as defined under domestic law.119 When an additional deprivation of liberty is imposed on a
person already in custody, (…), the commencement of that deprivation of liberty also amounts to an arrest.120
All of the above, supports the argument that self-confinement can, indeed, amount to a form of detention to attract the protection of the right to be free from arbitrary detention. As shown, it does not matter whether a person walked without coercion into the place of detention and can physically walk out of it. What is relevant is whether or not the specific context and circumstances, in actuality, can constitute a deprivation of liberty.
115 Storck v Germany (n 113) para 74; Stanev v Bulgaria (n 95) para 117. 116 MA v Cyprus ECHR Application No 41872/10 (23 July 2013) para 193. 117 ‘General Comment No 35’ (n 84) para 13.
118 Spakmo v Norway (5 November 1999) No 631/1995 UN Doc A/55/40 (volII) at 26 para 6.3.
119 Yklymova v Turkmenistan (20 July 2009) Communication No 1406/2006 UN Doc CCPR/C/96/D/1460/2006
para 7.2-7.3; Kurbanova v Tajikistan (6 November 2003) Communication No 1096/2002 UN Doc CCPR/C/79/D/1096/2002 para 7.2.
120 Morrison v Jamaica (3 August 1998) Communication No 635/1995 UN Doc CCPR/C/63/D/611/1995 para
22.2-22.3; Engo v Cameroon (22 July 2009) Communication No 1397/2005 UN Doc CCPR/C/96/D/1397/2005 para 7.3.
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IV. THE SCOPE OF THE STANDARD OF “ARBITRARY”
A. The wide meaning of arbitrary
Even though, for the purpose of this paper, it is important to define the scope of
application of detention, it must be noted that the right to be free from arbitrary detention is not about the deprivation of liberty, but rather about the arbitrariness. To detain people is not prohibited by international law in itself. A liberal and democratic society will recognize that there are proper purposes for which it is necessary to restrict an individual’s liberty. The enforcement of criminal law is the primary permissible basis.121 However, when done arbitrary, it is prohibited by international law. Accordingly, the Working Group has consistently followed the position that what mattered to the Commission in the expression “arbitrary detention” was essentially the word “arbitrary”, i.e., the elimination, in all its forms, of arbitrariness, whatever might be the phase of deprivation of liberty concerned”.122 As we
have seen above, the legislative history of Article 9 UDHR and Article 9(1) ICCPR favors this position. The Committee has also provided that “the right to liberty of a person is not absolute. Article 9 [ICCPR] recognizes that sometimes deprivation of liberty is justified”, but this “must not be arbitrary, and must be carried out with respect for the rule of law”.123 In the
same sense, the key purpose of Article 5 ECHR is to prevent arbitrary or unjustified deprivations of liberty.124 The European Court has consistently held that the object and purpose of Article 5(1) ECHR is “precisely to ensure that no one should be deprived of his liberty in an arbitrary fashion”.125
The question of when detention is or becomes arbitrary is not definitely answered by the international instruments. As we have seen, Article 9 UDHR merely provides a simple sentence stating that no one shall be subjected, inter alia, to arbitrary detention and Article 9(1) ICCPR is scarcely any clearer. Moreover, in Article 5 ECHR the word ‘arbitrary’ does not even occur. However, there seems to be general consensus that the word ‘arbitrary’ should be accorded a wide meaning. This is to say that its scope of protection is broader than simply requiring detention to be ‘lawful’ (which would entail a narrow interpretation). The word
121 H Davis (n 19) 132.
122 ‘Report of the Working Group on Arbitrary Detention – Questions of the Human Rights of All Persons
Subjected to Any Form of Detention or Imprisonment’ (n 83) para 54.
123 ‘General Comment No 35’ (n 84) para 10.
124 McKay v the United Kingdom [GC] ECHR Application no 543/03 (3 October 2006) para 76; Ladent v Poland
ECHR Application No 11036/03 (18 March 2008) para 45.
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‘arbitrary’ should not just require a deprivation of liberty to be in accordance with procedures as established by law, but also impose an additional higher requirement. It is, as well,
concerned with the actual content of laws.126 There are a number of reasons why to adopt this
wide interpretation of ‘arbitrary’. I will discuss a few of these.
First of all, as we have seen above, the legislative history of Article 9 UDHR and Article 9(1) ICCPR supports a wide meaning of ‘arbitrary’. The draftsmen were concerned with ensuring a maximum of protection for the right to liberty, which meant also protection against unjust laws. The majority of the Commission, the Third Committee and the Representatives have also shown to consider ‘arbitrary’ to mean not only ‘illegal’, but also ‘unjust’ and incompatible with the principles of justice or with the dignity of the human person.127 Even though it appeared that the “limitationist approach” of Article 5 ECHR only included the concept of illegal detention, a wider meaning of the notion of ‘arbitrariness’ has been accepted by the European Court in the last decades. As mentioned, in addition to complying with the exhaustive exceptions provided for, any deprivation of liberty should be in keeping with the purpose of protection the individual from arbitrariness.128 This extends beyond lack of conformity with national law, so that a deprivation of liberty may be lawful in terms of domestic law, but still arbitrary and thus contrary to the Convention.129
Secondly, the Study adopted a definition of ‘arbitrary’ which applies a similar wide interpretation. The reason for this was that ‘while an illegal arrest or detention is almost always arbitrary, an arrest or detention which is in accordance with law may nevertheless be arbitrary’.130 The definition provided is as followed:
(…) detention is arbitrary if it is (a) on grounds or in accordance with procedures other than those established by law, or (b) under the provisions of a law the purpose of which is incompatible with respect for the right to liberty and security of person.131
Thirdly, a structural analysis of Article 9(1) ICCPR supports the same idea: The second sentence of paragraph 1 prohibits arbitrary detention, while the third sentence prohibits
126 C Macken ‘Preventive Detention and the Right of Personal Liberty and Security under the International
Covenant on Civil and Political Rights, 1966’ (2005) 26 Adelaide Law Review 6.
127 also see P Hassan (n 71) 153, 179.
128 Witold Litwa v Poland ECHR Application No 26629/95 (4 April 2000) para 78.
129 Creanga v Romania (n 96) para 84; A and Others v the United Kingdom [GC] ECHR Application No 3455/05
(19 February 2009) para 164.
130 Study of the right of everyone to be free from arbitrary arrest, detention and exile (n 89) 7. 131 Study of the right of everyone to be free from arbitrary arrest, detention and exile (n 89) 6.
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unlawful deprivation of liberty.132 Both sentences would have been unnecessary if the drafters
had intended a restrictive interpretation of the word ‘arbitrary’. The prohibition on arbitrary detention would be entirely superfluous because protection against solely unlawful detention would be covered by the principle of legality.133
Also, the context of the word ‘arbitrary’ and ‘unlawful’ in other Articles of the ICCPR support the proposition of a wide interpretation. An example is Article 12(4) ICCPR, which states:
No one shall be arbitrarily deprived of the right to enter his own country.
Regarding this Article, the Committee has reacted in its General Comment 27:
The reference to the concept of arbitrariness in this context is intended to emphasize that it applies to all State action, legislative, administrative and judicial: it guarantees that even interference provided for by law should be in accordance with the provisions, aims and objective of the Covenant and should be, in any event, reasonable in the particular circumstances.134
Moreover, in its case law the Committee has provided the same scope of protection of ‘arbitrary’ as above. In Van Alphen v The Netherlands, concerning an applicant that was detained for a period of over nine weeks without criminal charge or trial, it was, for example, confirmed that:
‘arbitrariness’ is not to be equated with ‘against the law’, but must be interpreted more broadly to
include elements of inappropriateness, injustice and lack of predictability. This means that remand in
custody pursuant to lawful arrest must not only be lawful but reasonable in all the circumstances.135
A similar result was found by the Committee in A v Australia where it held:
132 It must be noted that the two prohibitions provided for in paragraph 9(1) ICCPR overlap. Detentions may be
in violation of the applicable law but not arbitrary, or legally permitted but arbitrary, or both arbitrary and unlawful. Detention that lacks any legal basis is also arbitrary; see Mika Miha v Equatorial Guinea (10 August 1994) Communication No 414/1990 UN Doc CCPR/C/51/D/414/1990 (1994) para 6.5.
133 C Macken (n 126) 7.
134 ‘General Comment No 27’ (n 100) para 21.
135 Van Alphen v The Netherlands (15 August 1990) Communication No 305/88 UN Doc
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The Committee recalls that the notion of ‘arbitrariness’ must not be equated with ‘against the law’ but interpreted more broadly to include such elements as inappropriateness and injustice.136
Thus, detention must be, first of all, lawful. This is the case when the grounds and procedures are prescribed by law.137 In addition, the meaning of “law” implies certain
minimum qualitative requirements of clarity, accessibility, and predictability.138 The detention has to be specifically authorized and sufficiently circumscribed by law. In this regard, the maintenance of the principles of legality and rule of law is especially important. 139 It relates
to both domestic and international legal standards.140 However, the right to be free from
arbitrary detention should be accorded a wide interpretation, for which lawfulness is a
necessary but insufficient condition to satisfy the requirements. The legislative enactment that permits detention must not itself be arbitrary. Therefore, even though a person has confined himself to avoid lawful arrest, it enables that person, nevertheless, to be deprived of liberty.
B. Principles that determine the scope of arbitrariness
The fact that a deprivation of liberty must in all cases be in accordance with the law, which as regards Article 5 of the ECHR means for the exclusive purposes enumerated therein, and not be arbitrary, makes it possible for the international monitoring organs to consider factors that make the domestic laws or their application unreasonable in the circumstances.141
There are multiple principles to determine this, in other words, to determine the scope of arbitrariness. As seen above, these include that legislation must conform to the notion of justice or with dignity of the human person, must not be inappropriate and with lack of
136 A v Australia (13 April 1997) Communication No 560/1993 Un Doc CCPR/C/59/D/560/1993 para 9.2. 137 ‘International Commission of Jurists (ICJ) Submission to the Working Group on Arbitrary Detention’ (n 21)
4.
138 -- ‘Background and Supporting International Legal Analysis – For the International Principles on the
Application of Human Rights to Communication Surveillance’
<https://necessaryandproportionate.org/files/2016/03/29/background_and_supporting_legal_analysis_en.pd> (12 June 2016).
139 S Joseph J Schultz and M Castan The International Covenant on Civil and Political Rights: Cases, Materials and Commentary (1st edn Oxford University Press Oxford 2000) 211.
140 ‘International Commission of Jurists (ICJ) Submission to the Working Group on Arbitrary Detention’ (n 21)
4.
141 Office of the High Commissioner for Human Rights in Cooperation with the International Bar Association Professional Training Series No 9 – Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers (United Nations New York and Geneva 2003) 165.
25
predictability.142 ‘Arbitrariness’ also include the element of due process of law.143 Moreover,
the criteria of necessity and proportionality must be taken into account.144 In the words of the
Committee in its General Comment 35:
(…) detention may be authorized by domestic law and nonetheless be arbitrary. The notion of “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, as well as elements of reasonableness, necessity and proportionality.145
In this sense, the Committee has, for instance, noted that remand in custody on criminal charges must be reasonable and necessary in all the circumstances.146 In the case of
Mukong147, the applicant, inter alia, alleged that he had been arbitrarily detained for several
months, an allegation rejected by the State party on the basis that the detention had been carried out in accordance with the domestic law of Cameroon. The Committee concluded that Article 9(1) ICCPR had been violated, since the author’s detention “was neither reasonable nor necessary in the circumstances of the case”.148 For instance, the State party had not shown
that the remand in custody was “necessary...to prevent flight, interference with evidence or the recurrence of crime” but had “merely contended that the author’s (…) detention [was] clearly justified by reference to” article 19(3) of the ICCPR, which allows for restrictions on the right to freedom of expression.149 However, the Committee considered that “national unity under difficult political circumstances cannot be achieved by attempting to muzzle advocacy of multi-party democracy, democratic tenets and human rights”, and that the author’s right to freedom of expression had therefore been violated.150 Consequently, the Committee also concluded that the author’s detention was contrary to article 9(1) of the ICCPR.151
With regard to Article 5(1) ECHR, the European Court has provided that:
142 C Macken (n 126) 15.
143 Womah Mukong v Cameroon (26 February 1991) Communication No 458/1991 UN Doc
CCPR/C/51/D/458/1991 para 9.8.
144 These criteria relate both to the substantive nature of the law and to the procedural safeguards; see
‘International Commission of Jurists (ICJ) Submission to the Working Group on Arbitrary Detention’ (n 21) 5.
145 ‘General Comment No 35’ (n 84) para 12. 146 ‘General Comment No 35’ (n 84) para 12. 147 Womah Mukong v Cameroon (n 143). 148 idim para 9.8.
149 idim.
150 idim para 9.7. 151 Idim para 9.8.
