4. Right to Liberty and Security of Person

A. INTRODUCTION

The powers to arrest people and to detain them subsequent to arrest are fundamental to the purposes of policing. These are necessary powers for the purposes of prevent­ ing and investigating crime and for maintaining and restoring public order. In many jurisdictions, police are also empowered to deprive certain people of their liberty for their own protection. These include juveniles, people of unsound mind as well as al­ coholics and drug addicts.

Article 9 of the Universal Declaration of Human Rights provides that no one shall be subjected to arbitrary arrest, detention or exile. The terms "arrest" and "detention" are not defined in the Universal Declaration or in the human rights treaties referred to in this publication, but they are defined in a non-treaty instrument, the Body of Principles for the Protection of AIl Persons under Any Form of Detention or Impris­ onment. For the purposes of this instrument, "arrest" means the act of apprehending a person for the alleged commission of an offence or by the action of an authority. A "detained person" means any person deprived of personal liberty except as a result of conviction for an offence, and "detention" means the condition of detained per­ sons defined in this way. The tenus "imprisoned person" and "imprisonment" refer to any person deprived of personal liberty as a result of conviction for an offence and to the condition of such an imprisoned person, respectively.

At the same time as recognizing the necessity and significance of power to deprive people of their liberty for the purposes of policing, it is also important to acknowl­ edge that the right to liberty of person is a fundamental human right. It is enshrined in article 3 of the Universal Declaration, stating that everyone has the right to life, liberty and security of person. Other articles of the Universal Declaration that deal with liberty of person are article 10 on right to a fair trial, article 11 expressing the presumption of innocence and other principles of criminal proceedings and article 13 protecting the right to freedom of movement.

Furthennore, universal and regional human rights treaties protect personal liberty by stipulating that everyone has the right to liberty and security of person and by pro­ hibiting arbitrary arrest or detention and unlawful deprivations of liberty. Such pro­ visions are, for example, article 9 of the International Covenant on Civil and Politi-

199 Right to Liberty and .Security ofPerson ll:4 cal Rights, article 37 of the Convention on the Rights of the Child, article 6 of the African Charter on Human and Peoples' Rights, article 7 of the American Conven­ tion on Human Rights and article 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms. They also bestow a number of other rights on people who have been deprived of their liberty, designed to ensure the lawfulness and necessity of their arrest or detention. Additionally, there are non-treaty instru­ ments with provisions on different aspects of the right to liberty and security of per­ son, instruments like the United Nations RuIes for the Protection of Juveniles De­ prived of their Liberty and the Declaration on the Protection of All Persons from En­ forced Disappearance.

The right to liberty and security of person does not express general principles of in­ ternational law of the same absolute nature as the right to life and the prohibition of torture. Some instruments protecting the right to liberty and security of person al­ low States to derogate from their obligations in respect of this right. Under article 4 of the Covenant, for example, States parties may take such measures in time of pub­ lic emergency threatening the life of the nation. However, in any event, the right to liberty and security of person does express principles of great significance to any po­ lice agency seeking high professional standards.

The meanings of the tenn "security of person" in this context, the tenn "arbitrary" and indeed other tenns used in these treaties and non-treaty instruments are elucidat­ ed in the cases summarized and/or reviewed in this chapter of the book.

B. REVIEW OF CASES

(a) Human Rights Committee

The right to liberty and security of person is protected by article 9 of the Internation­ al Covenant on Civil and Political Rights. Under paragraph 1, everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or de­ tention, and no one shall be deprived of his liberty except on such grounds and in ac­ cordance with such procedures as are established by law.

The remaining four paragraphs of this article require, inter alia, those arrested to be infonned, at the time of arrest, of the reasons for their arrest and, promptly, of any charges against them (paragraph 2); those arrested or detained on a criminal charge to be brought promptly before a judge or otller judicial officer and entitled to trial witllin a reasonable time or to release (paragraph 3); those arrested or detained to have an entitlement to test the lawfulness of their detention before a court (paragraph 4); and compensation for victims of unlawful arrest or detention (paragraph 5).

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