THE RIGHT TO LIBERTY

The right to personal liberty is one of the most fundamental human rights as it affects the vital elements of an individual’s physical freedom. This chapter examines a) the right to liberty and security; b) the right to freedom from slavery, servitude and forced or compulsory labour; and c) the right to freedom of movement

A. The right to liberty and security

The right to liberty can be traced back to the English Magna Charta (1215) and the United States Declaration of the Rights of Man and Citizen (1789). Even though the Magna Charta only guaranteed rights to a limited group of people, namely feudal noblemen, it nevertheless required that arrest or detention be lawful, and protected the individual against the excesses of his/her ruler. Protection against arbitrary arrest and detention as one of the main dimensions of the right to the liberty of the person was further established in the 17th century Bill of Rights (1689) and Habeas Corpus Acts (1640, 1679). The right was further developed and its scope of application widened after the French Revolution, in the French Declaration of Rights (1789) where the right to liberty was guaranteed to all nationals in the constitutions of national states. The right to liberty played a major role in the Mexican revolution (1915) where ‘land and liberty’ (Tierra y Libertad) was the slogan of the revolution.

At the international level, the right to liberty and security of the person found its first legal formulation in Article 9 of the Universal Declaration. The article prohibits arbitrary arrest, detention or exile by means of a short and vague provision, but it has since been further elaborated upon by a number of international human rights instruments at the international and the regional level.

The right to liberty and security of the person, as the title suggests, entails two distinct rights: the right to liberty of the person and the right to personal security. In order to clarify how these two rights are understood under human rights law, a short description of each right follows.

The right to liberty of the person, as found in international human rights instruments, does not grant complete freedom from arrest or detention. Deprivation of liberty is a legitimate form of state control over persons within its jurisdiction. Instead, the right to liberty acts as a substantive guarantee that arrest or detention will not be arbitrary or unlawful. In general, any deprivation of liberty is only allowed if it is carried out in accordance with a procedure established by domestic law and if the following minimum guarantees are respected: a) every detained person shall be informed promptly of the reasons for her/his arrest; b) every detained person shall be entitled to take habeas corpus proceedings before a court (which has to decide without delay and order release if the detention is unlawful); c) every detained person has an enforceable right to compensation if detention was unlawful; and d) persons held in custody shall be brought promptly, that is within a few days, before a judge who must either release them or authorise pre-trial detention. They are entitled to trial within a reasonable time and to release in exchange for bail or some other guarantee to appear for trial. In other words, pre-trial detention shall not be the general rule and shall be as short as possible, depending on the complexity of the case.

The right to personal security has not been defined as clearly as the right to liberty and the meaning of this right differs in the different human rights Conventions. Under the ICCPR, which gives it the broadest meaning, the right to personal security is understood as the right to the protection of the law in the exercise of the right to liberty. This means that the right to security extends to situations other than the formal deprivation of liberty. For instance a state may not ignore a known threat to the life of a person under its jurisdiction; it has an obligation to take reasonable and appropriate measures to protect that person.         

1. STANDARDS

The right to liberty and security, expressed in Article 9 UDHR, has been embedded in most of the existing human rights instruments, both at the international and regional level.

Article 9 UDHR states very briefly that ‘no one shall be subjected to arbitrary arrest, detention or exile’. The basic principles set out in Article 9 of the Universal Declaration are elaborated upon by the ICCPR in Article 9 (right to liberty and security of the person) and Article 12(4) (prohibition of arbitrary exile). Mention should also be made of the International Convention for the Protection of All Persons from Enforced Disappearance (not in force as of March 2009). At the regional level, these rights are guaranteed in Article 7 ACHR, Article 5 ECHR and Article 6 ACHPR.

Article 9 ICCPR, Article 7 ACHR, Article 5 ECHR and Article 6 ACHPR all establish certain procedural guarantees and minimum standards for protection against arbitrary arrest and detention. Article 5(1) ECHR differs from the other Conventions in that it defines exhaustively the cases in which a person may be deprived of her/his liberty. The other human rights Conventions leave the regulation of the grounds for detention to the domain of domestic legislation. An important exception is the detention merely on the grounds of inability to fulfil a contractual obligation (detention for debt), which is clearly prohibited in Article 11 ICCPR, Article 7(7) ACHR and Article 1 Protocol No. 4 ECHR.

Article 10 ICCPR and Article 5(3) to (6) ACHR guarantee to all persons deprived of their liberty a special right to humane treatment and to certain minimum conditions of pre-trial detention and imprisonment, such as the segregation of the accused from convicted persons or segregation of juveniles from adults. Mention should also be made of Article 16 CMW that grants migrant workers and their families the right to liberty and security of person and similarly Article 14 CRPD.

  2. SUPERVISION

The Human Rights Committee, the Inter-American Commission and Court and the European Court have developed fairly detailed case-law on the varied and highly complex issues related to the right to personal liberty and security. The exact meaning of many terms, such as ‘arbitrarily’, ‘promptly’, ‘speedily’ and ‘without delay’ is unclear and can only be established on a case-by-case basis, taking into account all relevant circumstances. The increasing body of case-law is gradually contributing to a clearer definition of the concept of liberty and security.

At the universal level, the Human Rights Committee has developed extensive case-law with regard to the right to the liberty and security of the person. The Committee has issued a large number of decisions concerning most aspects of the provisions in Article 9. The large majority has concerned detention for the purposes of criminal justice, though other types of detention (such as detention of aliens and detention for the reason of enforced psychiatric treatment) have been dealt with as well (see, e.g., Torres v. Finlandand A. v. New Zealand). Nevertheless, there remain a number of uncertainties concerning the interpretation of certain provisions of Article 9, such as the exact definition of ‘promptness’ and what is considered a permissible length of time that a court can take to render a decision under a habeas corpus application. In Taright v. Algeria the Committee stated that the drafting history of Article 9 confirms that ‘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 illegality. In Shafiq v. Australia the Committee concluded that the author’s mandatory immigration detention, for a period of over seven years, during which he became mentally ill, was arbitrary within the meaning of the ICCPR. Further, continued pre-trial detention following legal arrest must not only be lawful, but also reasonable in all respects. With regard to the right to personal security, the Committee has given this right its widest scope, as it has established in a number of statements that, in the case of serious threats to the life of persons under their jurisdiction, states are under the obligation to take reasonable and appropriate measures to protect them (see, e.g., Delgado Paez v. Colombia, Bwalya v. Zaire and Oló Bahamonde v. Equatorial Guinea). Furthermore, the Committee has established that Article 9 also protects the right to security of persons outside formal deprivation of liberty. In Rajapakse v. Sri Lanka the Committee found that the state had violated the applicant’s security of person as it had failed to take adequate action to ensure that the author was and continued to be protected from threats issued by police officers after he filed a domestic petition concerning a violation of his fundamental rights. In addition to decisions regarding individual applications, General Comment 8 elaborates on the meaning of the right to liberty and helps define some of its elements and General Comment 29 establishes that the requirement of a court review to determine whether detention is lawful is a non-derogable element of Article 9.

Another important mechanism under the UN that deals specifically with arbitrary detention is the UN Working Group on Arbitrary Detention. The former UN Commission on Human Rights entrusted the Working Group, which has been assumed by the Human Rights Council, with the following mandate: a) to investigate cases of detention imposed arbitrarily or otherwise inconsistently with relevant international standards set forth in international human rights instruments; b) to seek and receive information from governmental and intergovernmental and non-governmental organisations, and receive information from the individuals concerned, their families or their representatives; and c) to present a comprehensive report to the Commission at its annual session. An example of the remit of the Working Group is found in its 2008 report where it identifies several issues of concern. It notes with concern the growing body of cases on non-citizen detention, whereby asylum seekers are denied judicial review of their imprisonment, as are those detained in the context of the counter terrorism effort and it analyses the situation of certain vulnerable groups of detainees and prisoners susceptible to sexual violence by co-inmates and staff. The Working Group is the only non treaty based mechanism whose mandate expressly provides for consideration of individual complaints.

At the regional level, both the Inter-American Commission and the Inter-American Court have issued a considerable number of decisions regarding most provisions in Article 7 ACHR. However, the jurisprudence of the Court and the Commission has not substantially clarified these provisions; although many of the decisions present new viewpoints, they lack in-depth legal reasoning and analysis. This may be related to the difficult circumstances in which decisions concerning this right have to be made; states are often reluctant to co-operate and evidence (especially in disappearance cases) is hard to obtain. Nevertheless, both the Commission and the Court have rendered some groundbreaking judgements concerning the right to personal liberty and security. InVelásquez Rodriguez and Godinez Cruz v. Honduras, the Court held that the kidnapping of an individual and the denial of access to judicial authorities by which the legality of the detention could be reviewed (habeas corpus) constituted a manifest violation of Article 7. In Garcia v. Peru (Case 11.006), the Commission ruled that threatening persons with arbitrary and unjust detention can infringe the right to personal security and therefore violated Article 7. In Chaperro Alverez and Lapo Iniguez v. Ecuador, ‘arbitrary’ detention was found to involve a degree of inappropriateness, injustice or unpredictability. More generally, the Commission has stated that any arrest must be made by the agency properly authorised by the national constitution and in accordance with the procedures required by international law. If these conditions are not met, ‘arrests cease to be arrest per se and become kidnappings’. In regard to liberty and security, the Inter-American Court cases of Gangarand v. Surinam and Bulacio v. Argentina are also worth mentioning.

The European Court has dealt with hundreds of cases under Article 5 ECHR, providing extensive jurisprudence that aids in clarifying difficult issues, such as ‘reasonable time’, ‘promptly’ and ‘judge or other officer’. One of the problems that the Court deals with is the exhaustive list of circumstances in which states may detain an individual. As explained above, the European Convention is the only one that provides the states with such a list, and both states parties and the Court have found that it is not easy to accommodate all recognised cases of arrest in one article. The Court has established that short detention for the purpose of searching a person in the street is not a violation of Article 5(1) (see, e.g., McVeigh, O’Neill and Evans v. The United Kingdom). Another problem has been that some of the provisions found in Article 5 are difficult to apply uniformly to the different civil and common law systems represented among the states parties. In general, however, the Court has provided the most comprehensive jurisprudence with regard to the right to the liberty and security of the person and its well-formulated decisions have greatly assisted other international human rights supervisory bodies. It has, for instance, ruled that the provision that a person must be brought ‘promptly’ before a judge implies that this has to be done within exactly four days (see, e.g., O’Hara v. The United Kingdom). In Epple v. Germany a detention of 19 hours was held to be excessive taking into account the minor nature of the offence. However, the proportionality principle does not give states a carte blanche to extend detention without judicial review simply due to the severity or complexity of the case. InBrogan v. The United Kingdom the court explicitly stated that ‘to attach such importance to the special features of this case as to justify so lengthy a period of detention without appearance before a judge or other judicial officer would be an unacceptably wide interpretation of the plain meaning of the word ‘promptly’. It further said the four days is the limit for criminal charges, rising to five in exceptional cases. For the concept of ‘reasonable time’ a series of parameters have been developed which provide a useful framework for deciding whether a period is reasonable. Some states have introduced such parameters to reduce the time before a sentence is given to less than for instance one-and-a-half-years, even in the more difficult cases. With regard to who can be the ‘judge or other officer’ under Article 5(3), the Court found in Assenov and Others v. Bulgaria that the Bulgarian system violated Article 5 in allowing prosecutors and even arresting officers to determine the legality of pre-trial detention. The prosecutor, as a party to proceedings, can never truly be independent.

The African Commission has attempted in a number of cases to clarify and elaborate on the content of Article 6 ACHPR. On the issue of the length of detention the Commission has found in a number of communications that, for example, imprisonment of over twelve years without a trial constituted a violation of Article 6 and that three years’ detention without a trial or even three months may be sufficient to violate Article 6 (see, e.g., Krishna Achuthan (on behalf of Aleke Banda), Amnesty International on behalf of Orton and Vera Chirwa and Amnesty International on behalf of Orton and Vera Chirwa v. Malawi, Communications 64/92, 68/92 and 78/92). In other cases, a violation of Article 6 was found in regard to the basis and manner of the detention. In Alhassan Abubakar v. Ghana, Communication 103/93 the Commission found that the detention of the victim without a trial constituted a violation of Article 6 Arbitrary arrests and detention, presumably by the Rwanda government, of thousands of people solely because of their ethnic origin, was found contrary to Article 6 (Organisation Mondiale Contre la Torture and Association Internationale des Juristes Democrates, Commission Internationale des Juristes (CIJ) and Union Interafricaine des Droits de l’Homme v. Rwanda, Communications 27/89, 46/90, 49/91 and 99/93, see also Commission Nationale des Droits de l’Homme et des Libertés v. Chad, Communication 74/92). See also the annual reports of the Special Rapporteur on prisons and detention in Africa under Article 45 ACHPR.