All countries are confronted by the practice of arbitrary detention. It knows no boundaries, and thousandsof persons are subjected to arbitrary detention each year. Since detention in itself is not a violation of human rights, international law has progressively endeavoured to define the limits beyond which a detention, whether administrative or judicial, would become arbitrary.
The Universal Declaration of Human Rights provides in article 9 that “no one shall be subjected to arbitrary arrest, detention or exile”. Article 9(1) of the International Covenant on Civil and Political Rights states: “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.”
According to the Working Group on Arbitrary Detention (established by UN Human Rights Council Resolution 1991/42), deprivation of liberty is arbitrary if a case falls into one of the following three categories:
- A) When it is clearly impossible to invoke any legal basis justifying the deprivation of liberty (as when a person is kept in detention after the completion of his sentence or despite an amnesty law applicable to him)(Category I);
- B) When the deprivation of liberty results from the exercise of the rights or freedoms guaranteed by articles 7, 13, 14, 18, 19, 10 and 21 of the Universal Declaration of Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22, 25, 26 and 27 of the International Covenant on Civil and Political Rights (Category II);
- C) When the total or partial non-observance of the international norms relating to the right to a fair trial, spelled out in the Universal Declaration of Human Rights and in the relevant international instruments accepted by the States concerned, is of such gravity as to give the deprivation of liberty an arbitrary character (Category III).