Arbitrary arrest and detention
Encyclopedia
Arbitrary arrest and arbitrary detention are the arrest
or detention
of an individual in a case in which there is no likelihood or evidence
that they committed a crime
against legal statute
, or in which there has been no proper due process
of law. In a way, such forms of arbitrary actions are done out of pure whim or flimsiness.
established in democracies as well as habeas corpus
and is thereafter illegal in those regimes. In practice in the first decade of the 21st century, arbitrary arrest or detention (the definitions of these terms vary between different national jurisdictions) is typically tolerated by the legal system for a short duration, of a few hours up to a few days, in most democracies, especially in response to political street demonstrations. It is often a characteristic of dictatorship
s or police state
s, which may also engage in forced disappearance
.
Virtually all individuals who are arbitrarily arrested are given absolutely no explanation as to why they are being arrested, and they are not shown any arrest warrant
. Depending on the social context, many or the vast majority of arbitrarily arrested individuals may be held incommunicado and their whereabouts can be concealed from their family, associates, the public population and open trial court
s. Many individuals who are arbitrarily arrested and detained suffer physical or psychological torture
during interrogation
, as well as extrajudicial punishment
and other abuses in the hands of those detaining them.
is strictly prohibited by the United Nations
' division for human rights
. Article 9 of the 1948 Universal Declaration of Human Rights
decrees that "no one shall be subjected to arbitrary arrest, detention or exile"; that is, no individual, regardless of circumstances, is to be deprived of their liberty or exile
d from their country
without having first committed an actual criminal offense against a legal statute, and the government cannot deprive an individual of their liberty without proper due process of law. As well, the International Covenant on Civil and Political Rights
specifies the protection from arbitrary arrest and detention by the Article 9.
Arrest
An arrest is the act of depriving a person of his or her liberty usually in relation to the purported investigation and prevention of crime and presenting into the criminal justice system or harm to oneself or others...
or detention
Detention (imprisonment)
Detention is the process when a state, government or citizen lawfully holds a person by removing their freedom of liberty at that time. This can be due to criminal charges being raised against the individual as part of a prosecution or to protect a person or property...
of an individual in a case in which there is no likelihood or evidence
Evidence
Evidence in its broadest sense includes everything that is used to determine or demonstrate the truth of an assertion. Giving or procuring evidence is the process of using those things that are either presumed to be true, or were themselves proven via evidence, to demonstrate an assertion's truth...
that they committed a crime
Crime
Crime is the breach of rules or laws for which some governing authority can ultimately prescribe a conviction...
against legal statute
Statute
A statute is a formal written enactment of a legislative authority that governs a state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law, decided by courts, and regulations...
, or in which there has been no proper due process
Due process
Due process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land and thus protects individual persons from it...
of law. In a way, such forms of arbitrary actions are done out of pure whim or flimsiness.
Background
Arbitrarily arresting or detaining persons contradicts rule of lawRule of law
The rule of law, sometimes called supremacy of law, is a legal maxim that says that governmental decisions should be made by applying known principles or laws with minimal discretion in their application...
established in democracies as well as habeas corpus
Habeas corpus
is a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...
and is thereafter illegal in those regimes. In practice in the first decade of the 21st century, arbitrary arrest or detention (the definitions of these terms vary between different national jurisdictions) is typically tolerated by the legal system for a short duration, of a few hours up to a few days, in most democracies, especially in response to political street demonstrations. It is often a characteristic of dictatorship
Dictatorship
A dictatorship is defined as an autocratic form of government in which the government is ruled by an individual, the dictator. It has three possible meanings:...
s or police state
Police state
A police state is one in which the government exercises rigid and repressive controls over the social, economic and political life of the population...
s, which may also engage in forced disappearance
Forced disappearance
In international human rights law, a forced disappearance occurs when a person is secretly abducted or imprisoned by a state or political organization or by a third party with the authorization, support, or acquiescence of a state or political organization, followed by a refusal to acknowledge the...
.
Virtually all individuals who are arbitrarily arrested are given absolutely no explanation as to why they are being arrested, and they are not shown any arrest warrant
Arrest warrant
An arrest warrant is a warrant issued by and on behalf of the state, which authorizes the arrest and detention of an individual.-Canada:Arrest warrants are issued by a judge or justice of the peace under the Criminal Code of Canada....
. Depending on the social context, many or the vast majority of arbitrarily arrested individuals may be held incommunicado and their whereabouts can be concealed from their family, associates, the public population and open trial court
Trial court
A trial court or court of first instance is a court in which trials take place. Such courts are said to have original jurisdiction.- In the United States :...
s. Many individuals who are arbitrarily arrested and detained suffer physical or psychological torture
Torture
Torture is the act of inflicting severe pain as a means of punishment, revenge, forcing information or a confession, or simply as an act of cruelty. Throughout history, torture has often been used as a method of political re-education, interrogation, punishment, and coercion...
during interrogation
Interrogation
Interrogation is interviewing as commonly employed by officers of the police, military, and Intelligence agencies with the goal of extracting a confession or obtaining information. Subjects of interrogation are often the suspects, victims, or witnesses of a crime...
, as well as extrajudicial punishment
Extrajudicial punishment
Extrajudicial punishment is punishment by the state or some other official authority without the permission of a court or legal authority. The existence of extrajudicial punishment is considered proof that some governments will break their own legal code if deemed necessary.-Nature:Extrajudicial...
and other abuses in the hands of those detaining them.
International law
Arbitrarily depriving an individual of their libertyLiberty
Liberty is a moral and political principle, or Right, that identifies the condition in which human beings are able to govern themselves, to behave according to their own free will, and take responsibility for their actions...
is strictly prohibited by the United Nations
United Nations
The United Nations is an international organization whose stated aims are facilitating cooperation in international law, international security, economic development, social progress, human rights, and achievement of world peace...
' division for human rights
Human rights
Human rights are "commonly understood as inalienable fundamental rights to which a person is inherently entitled simply because she or he is a human being." Human rights are thus conceived as universal and egalitarian . These rights may exist as natural rights or as legal rights, in both national...
. Article 9 of the 1948 Universal Declaration of Human Rights
Universal Declaration of Human Rights
The Universal Declaration of Human Rights is a declaration adopted by the United Nations General Assembly . The Declaration arose directly from the experience of the Second World War and represents the first global expression of rights to which all human beings are inherently entitled...
decrees that "no one shall be subjected to arbitrary arrest, detention or exile"; that is, no individual, regardless of circumstances, is to be deprived of their liberty or exile
Exile
Exile means to be away from one's home , while either being explicitly refused permission to return and/or being threatened with imprisonment or death upon return...
d from their country
Country
A country is a region legally identified as a distinct entity in political geography. A country may be an independent sovereign state or one that is occupied by another state, as a non-sovereign or formerly sovereign political division, or a geographic region associated with a previously...
without having first committed an actual criminal offense against a legal statute, and the government cannot deprive an individual of their liberty without proper due process of law. As well, the International Covenant on Civil and Political Rights
International Covenant on Civil and Political Rights
The International Covenant on Civil and Political Rights is a multilateral treaty adopted by the United Nations General Assembly on December 16, 1966, and in force from March 23, 1976...
specifies the protection from arbitrary arrest and detention by the Article 9.
See also
- Working Group on Arbitrary DetentionWorking Group on Arbitrary DetentionThe Working Group on Arbitrary Detention is a UN-mandated body of independent human rights experts that investigates cases of arbitrary arrest and detention that may be in violation of international human rights law....
- Extrajudicial detentionExtrajudicial detentionArbitrary or extrajudicial detention is the detention of individuals by a state, without ever laying formal charges against them.Although it has a long history of legitimate use in wartime , detention without charge, sometimes in secret, has been one of the hallmarks of totalitarian states...
- Contempt of copContempt of copContempt of cop is law enforcement jargon in the United States for behavior by citizens towards law enforcement officers that the officers perceive as disrespectful or insufficiently deferential to their authority...
- Extrajudicial punishmentExtrajudicial punishmentExtrajudicial punishment is punishment by the state or some other official authority without the permission of a court or legal authority. The existence of extrajudicial punishment is considered proof that some governments will break their own legal code if deemed necessary.-Nature:Extrajudicial...
- Forced disappearanceForced disappearanceIn international human rights law, a forced disappearance occurs when a person is secretly abducted or imprisoned by a state or political organization or by a third party with the authorization, support, or acquiescence of a state or political organization, followed by a refusal to acknowledge the...
- Habeas corpusHabeas corpusis a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...
- Human rightsHuman rightsHuman rights are "commonly understood as inalienable fundamental rights to which a person is inherently entitled simply because she or he is a human being." Human rights are thus conceived as universal and egalitarian . These rights may exist as natural rights or as legal rights, in both national...
- International human rights lawInternational human rights lawInternational human rights law refers to the body of international law designed to promote and protect human rights at the international, regional and domestic levels...
- KettlingKettlingKettling is a police tactic for controlling large crowds during demonstrations or protests. It involves the formation of large cordons of police officers who then move to contain a crowd within a limited area. Protesters are left only one choice of exit, determined by the police, or are completely...
- Patrick Pogan
- Secret policeSecret policeSecret police are a police agency which operates in secrecy and beyond the law to protect the political power of an individual dictator or an authoritarian political regime....
- State of emergencyState of emergencyA state of emergency is a governmental declaration that may suspend some normal functions of the executive, legislative and judicial powers, alert citizens to change their normal behaviours, or order government agencies to implement emergency preparedness plans. It can also be used as a rationale...
External links
- Human Rights First; Behind the Wire: An Update to Ending Secret Detentions (2005)