18 October 2013
The Human Rights Committee yesterday and today continued the first reading of its draft General Comment No. 35 on Article 9 of the International Covenant on Civil and Political Rights on liberty and security of person. The previous reading took place in July 2013, when the first 31 paragraphs were considered.
Article 9 of the International Covenant on Civil and Political Rights reads: “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. 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. 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. 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. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.”
In meetings yesterday afternoon and this morning, the Committee further reviewed several paragraphs which had been discussed at the previous session and analyzed another seven paragraphs (31-38) of the draft General Comment, which were presented by Committee Rapporteur Gerald L. Neuman. In the discussions, the Committee emphasized the need for a periodic review of fixed-term sentences and defined the term “arrest” as any apprehension of a person which would commence the deprivation of the person’s liberty. Some Experts argued that a person can be detained on one ground and then further arrested on another ground in the course of the existing detention. The Committee argued that public prosecutors could not be considered as officers exercising judicial powers because of their lack of necessary institutional objectivity and impartiality.
The Committee largely focused on draft paragraphs 37 and 38, which dealt with remand in custody. Experts said that custody had to be reasonable and necessary in all circumstances – the 48-hour rule should remain in place before a person was placed under judicial control, and any longer detention had to be justified by exceptional circumstances. An undue delay in preventive detention could be perceived as jeopardizing the presumption of innocence, and in such cases the court should reconsider alternatives to pretrial detention.
Discussions on draft General Comment 35 will continue later in the session.
The Human Rights Committee publishes its interpretation of the content of human rights provisions of the International Covenant on Civil and Political Rights in the form of General Comments on thematic issues. To date, it has issued 34 General Comments.
The Human Rights Committee will next meet in public on Monday, 21 October, at 3 p.m. to start its consideration of the initial report of Mauritania.
For use of the information media; not an official record