Practice Relating to Rule 99. Deprivation of Liberty

European Convention on Human Rights
Article 5(3) of the 1950 European Convention on Human Rights provides:
Everyone lawfully arrested or detained [for the purpose of being brought before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so] shall be brought promptly before a judge or other officer authorised by law to exercise judicial power. 
European Convention for the Protection of Human Rights and Fundamental Freedoms, Rome, 4 November 1950, as amended by Protocol No. 11, Strasbourg, 11 May 1994, Article 5(3).
International Covenant on Civil and Political Rights
Article 9(3) of the 1966 International Covenant on Civil and Political Rights provides: “Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorised by law to exercise judicial power.” 
International Covenant on Civil and Political Rights, adopted by the UN General Assembly, Res. 2200 A (XXI), 16 December 1966, Article 9(3).
American Convention on Human Rights
Article 7(5) of the 1969 American Convention on Human Rights provides: “Any person detained shall be brought promptly before a judge or other officer authorized by law to exercise judicial power.” 
American Convention on Human Rights, adopted by the OAS Inter-American Specialized Conference on Human Rights, San José, 22 November 1969, also known as Pact of San José, Article 7(5).
Inter-American Convention on the Forced Disappearance of Persons
Article XI of the 1994 Inter-American Convention on the Forced Disappearance of Persons states: “Every person deprived of liberty shall be … brought before a competent judicial authority without delay, in accordance with applicable domestic law.” 
Inter-American Convention on the Forced Disappearance of Persons, adopted by the Twenty-fourth Regular Session of the OAS General Assembly, Res. 1256 (XXIV-O/94), Belém do Pará, 9 June 1994, Article XI.
ICC Statute
Article 59(2) of the 1998 ICC Statute provides:
A person arrested shall be brought promptly before the competent judicial authority in the custodial State which shall determine, in accordance with the law of that State, that:
(a) The warrant applies to that person;
(b) The person has been arrested in accordance with the proper process; and
(c) The person’s rights have been respected. 
Statute of the International Criminal Court, adopted by the UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Rome, 17 July 1998, UN Doc. A/CONF.183/9, Article 59(2).
Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment
Principle 11 of the 1988 Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment provides: “A person shall not be kept in detention without being given an effective opportunity to be heard promptly by a judicial or other authority.” 
Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, adopted by the UN General Assembly, Res. 43/173, 9 December 1988, Principle 11.
Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment
Principle 37 of the 1988 Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment provides: “A person detained on a criminal charge shall be brought before a judicial or other authority provided by law promptly after his arrest.” 
Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, adopted by the UN General Assembly, Res. 43/173, 9 December 1988, Principle 37.
UN Declaration on Enforced Disappearance
Article 10 of the 1992 UN Declaration on Enforced Disappearance provides: “Any person deprived of liberty shall be held in an officially recognized place of detention and, in conformity with national law, be brought before a judicial authority promptly after detention.” 
Declaration on the Protection of All Persons from Enforced Disappearance, adopted by the UN General Assembly, Res. 47/133, 18 December 1992, Article 10.
Colombia
Colombia’s Instructors’ Manual (1999) provides: “Persons in preventive detention shall be brought before a judge in the 36 hours following [arrest].” 
Colombia, Derechos Humanos & Derecho Internacional Humanitario – Manual de Instrucción de la Guía de Conducta para el Soldado e Infante de Marina, Ministerio de Defensa Nacional, Oficina de Derechos Humanos, Fuerzas Militares de Colombia, Santafé de Bogotá, 1999, p. 10.
Djibouti
Djibouti’s Manual on International Humanitarian Law (2004) states that “[w]omen [who have been] the victims of crimes or abuse of power … have the right to … have rapid access to a judge”. 
Djibouti, Manuel sur le droit international humanitaire et les droits de l’homme applicables au travail du policier, Ministère de l’Intérieur, Direction Générale de la Police, 2004, p. 23.
India
Countless pieces of domestic legislation contain provisions on the right to be brought promptly before a judge or other officer authorized by law to exercise judicial power. For instance, India’s Constitution (1950) provides fundamental guarantees for arrested persons, including the right to be produced before a magistrate. 
India, Constitution, 1950, Article 22.
Israel
Israel’s Order Concerning Administrative Detention (2007) states:
4. (a) A person detained according to this Order will be brought within 8 days of his above mentioned arrest before a judge, in accordance with para. 3(b)(1) of the Order concerning Security Provisions (Judea and Samaria) (No 378), 1970 (hereafter: The Security Provisions Order), with a rank no lower than Major. The judge may confirm or annul the Arrest Warrant, or shorten the detention period stated in it;
If the detainee was not brought before a judge, and court proceedings not begun within the above mentioned 8 days, the detainee shall be released, unless according to any law or security legislation there is another reason for his detention.
(b) The judge shall annul the Arrest Warrant if it is proven that it was issued on grounds other than security of the area or public security considerations, or that it was not issued in good faith or that its issue was based on irrelevant considerations.
5. Appeal
The decision of the judge, made according to par. 4, may be appealed before a judge of a Military Appeals Court as stated in par. 3(b)(4) of the Security Provisions Order, who shall have all the authorizations granted a judge as per this order. 
Israel, Order Concerning Administrative Detention, 2007, Sections 4 and 5.
Myanmar
Myanmar’s Defence Service Act (1959) provides for the punishment of “any person subject to this law who … fails to bring [the case of a detained or confined person] before the proper authority for investigation”. 
Myanmar, Defence Services Act, 1959, Section 49(a).
Pakistan
Pakistan’s Anti-Terrorism Act (1997) states:
Where a person is detained for investigation, the Investigating Officer, within twenty-four hours of the arrest, excluding the time necessary for the journey from the place of arrest to the Court, shall produce the accused before the Court, and may apply for remand of the accused to police custody, for which the maximum period allowed may be not less than thirty days at one time:
Provided that, where an accused cannot within twenty-four hours be produced before the Court, a temporary order for police custody not exceeding twenty-four hours may be obtained from the nearest Magistrate for the purpose of producing the accused before the Court within that period. 
Pakistan, Anti-Terrorism Act, 1997, Section 21(E)(1).
South Africa
South Africa’s Constitution (1996), as amended to 2003, states:
37. States of emergency.
(1) A state of emergency may be declared only in terms of an Act of Parliament and only when –
(a) the life of the nation is threatened by war, invasion, general insurrection, disorder, natural disaster or other public emergency; …
(5) No Act of Parliament that authorises a declaration of a state of emergency, and no legislation enacted or other action taken in consequence of a declaration may permit or authorise –
(c) any derogation from a section mentioned in column 1 of the Table of Non-Derogable Rights, to the extent indicated opposite that section in column 3 of the Table.
(6) Whenever anyone is detained without trial in consequence of a derogation of rights resulting from a declaration of a state of emergency, the following conditions must be observed:
(e) A court must review the detention as soon as reasonably possible, but no later than 10 days after the date the person was detained, and the court must release the detainee unless it is necessary to continue the detention to restore peace and order.
(f) A detainee who is not released in terms of a review under paragraph (e), or who is not released in terms of a review under this paragraph, may apply to a court for a further review of the detention at any time after 10 days have passed since the previous review, and the court must release the detainee unless it is still necessary to continue the detention to restore peace and order.
(g) The detainee must be allowed to appear in person before any court considering the detention, to be represented by a legal practitioner at those hearings, and to make representations against continued detention.
(7) If a court releases a detainee, that person may not be detained again on the same grounds unless the state first shows a court good cause for re-detaining that person.
(8) Subsection (6) and (7) do not apply to persons who are not South African citizens and who are detained in consequence of an international armed conflict. Instead, the state must comply with the standards binding on the Republic under international humanitarian law in respect of the detention of such persons. 
South Africa, Constitution, 1996, as amended to 2003, Section 37.
Sri Lanka
Sri Lanka’s Prevention of Terrorism (Temporary Provisions) Act (1979), as amended to 1988, states:
INVESTIGATION OF OFFENCES
6. (1) Any police officer not below the rank of Superintendent or any other police officer not below the rank of Sub-Inspector authorized in writing by him in that behalf may, without a warrant and with or without assistance and notwithstanding anything in any other law to the contrary[:]
(a) arrest any person;
7. (1) Any person arrested under subsection (1) of section 6 may be kept in custody for a period not exceeding seventy-two hours and shall, unless a detention order under section 9 has been made in respect of such person, be produced before a Magistrate before the expiry of such period. 
Sri Lanka, Prevention of Terrorism (Temporary Provisions) Act, 1979, as amended to 1988, Sections 6(1)(a) and 7(1).
Sri Lanka
Sri Lanka’s Emergency Regulations (2005), as amended to 2008, states:
SUPERVISION, SEARCH, ARREST AND DETENTION
19. (1) Where the Secretary to the Ministry of Defence is of [the] opinion with respect to any person that, with a view to preventing such person –
(a) from acting in any manner prejudicial to the national security or to the maintenance of public order, or to the maintenance of essential services; or
(b) from acting in any manner contrary to any of the provisions of sub-paragraph (a) or sub-paragraph (b) of paragraph (2) of regulation 40 or regulation 25 of these regulations,
it is necessary so to do, the Secretary may order that such person be taken into custody and detained in custody …
1(A) The provisions of Sections 36 [requiring a person arrested without warrant to be produced before a Magistrate without unnecessary delay], 37 [requiring that such a person be produced within 24 hours] and 38 [requiring that the Magistrates’ Court be informed by the police of all persons arrested without warrant] of the Code of Criminal Procedure Act, No. 15 of 1979 shall not apply in relation to a person detained under provisions of paragraph (1):
Provided that where any person has been detained under the provisions of paragraph (1), such person shall be produced before a Magistrate within a reasonable time having regard to the circumstances of each case, and in any event not later than thirty days from the date of such detention. 
Sri Lanka, Emergency Regulations, 2005, as amended to 5 August 2008, Sections 19(1) and (1A).
Sri Lanka
Sri Lanka’s Code of Criminal Procedure (Special Provisions) Act (2007) states:
Notwithstanding anything contained in the Code of Criminal Procedure Act, No. 15 of 1979 other than the provisions of section 43 (A) of that Act, any peace officer shall not detain in custody or otherwise confine a person arrested without a warrant for a longer period than under all the circumstances of the case is reasonable and such period shall not exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the presence of the Magistrate. 
Sri Lanka, Code of Criminal Procedure (Special Provisions) Act, 2007, Article 2.
Switzerland
Switzerland’s Criminal Procedure Code (2007), as amended to 2012, which regulates the prosecution and adjudication by the federal and cantonal criminal justice authorities of offences under federal law, including war crimes, states in the section on remand detention:
Art. 225 Detention proceedings before the compulsory measures court
1. On receipt of the application from the public prosecutor, the compulsory measures court shall immediately arrange a private hearing with the public prosecutor, the accused and his or her defence agent; it may require the public prosecutor to participate.
Art. 226 Decision of the compulsory measures court
1. The compulsory measures court decides immediately, but at the latest within 48 hours of receipt of the application. 
Switzerland, Criminal Procedure Code, 2007, as amended to 2012, Articles 225(1) and 226(1).
Uganda
Uganda’s National Resistance Army Statute (1992) provides for the punishment of the person subject to military law who fails to bring a detained person’s case before the proper authority for investigation. 
Uganda, National Resistance Army Statute, 1992, Article 45(b).
Uganda
Uganda’s Defence Forces Act (2005) provides:
190. Report of delay of trial
(1) Where a person triable under military law has been placed under arrest for a service offence and remains in custody for forty-eight hours without his or her trial by a military court having commenced, his or her commanding officer shall make a report to the Service Chief of Personnel and Administration and the Services Chief Political Commissar stating the reasons for delaying the trial and shall release the prisoner on a conditional bond after seventy two hours.
(2) A person held in custody in the circumstances mentioned in sub-section (1) who has been continuously so held for twenty eight days without commencement of his or her trial by a military court, may, at the expiration of that period, petition the President or such other authority as the President may appoint in writing for that purpose, to be released from custody or for the disposal of the case.
(3) A person held in custody in the circumstances mentioned in sub-section (1) shall be freed by his or her commanding officer when a period of ninety days continuous custody from the time of arrest has expired unless his or her trial by a military court has commenced.
(6) The conditional bond under subsection (1) and subsection (3) shall not apply in the case of a person held in custody for the purpose of trial for an offence punishable with death or a term of imprisonment exceeding five years. 
Uganda, Defence Forces Act, 2005, § 190.
Uganda
Uganda’s ICC Act (2010) states: “A person arrested under section 26 [Request for arrest and surrender] or 29 [Provisional arrest] shall be brought before a Registrar [of the High Court] within 48 hours.” 
Uganda, ICC Act, 2010, § 30(1).
Venezuela
Venezuela’s Penal Procedure Code (2012), which is applicable to the prosecution of war crimes, states in a chapter on preventive judicial deprivation of liberty: “Within the 48 hours following apprehension, the indicted [person] will be brought before a judge who … will decide on whether to maintain the [detention] measure or substitute it with a less severe one”. 
Venezuela, Penal Procedure Code, 2012, Article 236; see also Articles 372 and 373.
Zimbabwe
Zimbabwe’s Constitution (1979), as amended to 2009, states:
CHAPTER III
THE DECLARATION OF RIGHTS
13 Protection of right to personal liberty
(4) Any person who is arrested or detained–
(a) for the purpose of bringing him before a court in execution of the order of a court or of an officer of a court; or
(b) upon a reasonable suspicion of his having committed, or being about to commit, a criminal offence;
and who is not released, shall be brought without undue delay before a court.
25 Savings in the event of public emergencies
Notwithstanding the foregoing provisions of this Chapter, an Act of Parliament may in accordance with Schedule 2 derogate from certain provisions of the Declaration of Rights in respect of a period of public emergency or a period when a resolution under section 31J(6) is in effect.
26 Interpretation and other savings
(7) No measures taken in relation to a person who is a member of a disciplined force of a country with which Zimbabwe is at war or with which a state of hostilities exists and no law, to the extent that it authorises the taking of such measures, shall be held to be in contravention of the Declaration of Rights.
31J Public emergencies
(1) The President may at any time, by proclamation in the Gazette, declare in relation to the whole of Zimbabwe or any part thereof that–
(a) a state of public emergency exists; or
(b) a situation exists which, if allowed to continue, may lead to a state of public emergency.
(2) A declaration under subsection (1), if not sooner revoked, shall cease to have effect at the expiration of a period of fourteen days beginning with the day of publication of the proclamation in the Gazette unless, before the expiration of that period, the declaration is approved by resolution of the House of Assembly:
Provided that, if Parliament is dissolved during the period of fourteen days, the declaration, unless sooner revoked, shall cease to have effect at the expiration of a period of thirty days beginning with the day of publication of the proclamation in the Gazette unless, before the expiration of that period, the declaration is approved by resolution of the House of Assembly.
(5) Notwithstanding any other provision of this section, the House of Assembly may at any time–
(a) resolve that a declaration under subsection (1) should be revoked; or
(b) whether in passing a resolution under subsection (2) or (4) or subsequently, resolve that a declaration under subsection (1) should relate to such lesser area as the House of Assembly may specify;
and the President shall forthwith, by proclamation in the Gazette, revoke the declaration or provide that the declaration shall relate to such lesser area, as the case may be.
(6) Without prejudice to the provisions of subsections (1) to (5), the House of Assembly may at any time resolve in relation to the whole of Zimbabwe or any part thereof that a situation exists which–
(a) if allowed to continue, may lead to a state of public emergency; and
(b) may require the preventive detention of persons in the interests of defence, public safety or public order. 
Zimbabwe, Constitution, 1979, as amended to 2009, Sections 13(4), 25, 26(7), 31J(1)–(2) and (5)–(6).
The Constitution also states:
SCHEDULE 2
1 Savings in the event of public emergencies
(1) Nothing contained in any law shall be held to be in contravention of section 13, 17, 20, 21, 22 or 23 to the extent that the law in question provides for the taking, during a period of public emergency, of action for the purpose of dealing with any situation arising during that period, and nothing done by any person under the authority of any such law shall be held to be in contravention of any of the said provisions unless it is shown that the action taken exceeded anything which, having due regard to the circumstances prevailing at the time, could reasonably have been thought to be required for the purpose of dealing with the situation.
(2) Nothing contained in any law shall be held to be in contravention of section 13 to the extent that the law in question provides for preventive detention, during a period when a resolution under section 31J(6) is in effect, in the interests of defence, public safety or public order, and nothing done by any person under the authority of any such law shall be held to be in contravention of section 13 unless it is shown that the action taken exceeded anything which, having due regard to the circumstances prevailing at the time, could reasonably have been thought to be required for the purpose of dealing with the situation.
(3) Where a declaration under section 31J(1) or a resolution under section 31J(6) applies only in relation to a part of Zimbabwe, the law in question shall not provide for the taking of action or for preventive detention, as the case may be, in relation to any place outside that part.
2. Preventive detention
(1) Where a person is detained under any law providing for preventive detention–
(b) his case shall be submitted not later than fourteen days (or during a period of public emergency thirty days) after the commencement of the detention for review by a tribunal established under subparagraph (4) … ;
(c) at the hearing of his case by the tribunal he shall be permitted to appear in person or at his own expense by a legal representative of his own choice.
(4) A tribunal for the purposes of this paragraph shall be established by law and shall consist of–
(a) a chairman, who shall be a person who is or has been a judge of the Supreme Court or the High Court or is qualified under section 82 to be appointed as such; and
(b) two other persons, one of whom–
(i) is or has been a judge of the Supreme Court or the High Court or is qualified under section 82 to be appointed as such;
(ii) has been a magistrate in Zimbabwe for not less than seven years; or
(iii) is and has been for not less than seven years, whether continuously or not, qualified to practise as a legal practitioner in Zimbabwe. 
Zimbabwe, Constitution, 1979, as amended to 2009, Schedule 2, Articles 1 and 2(1)(b)–(c) and 2(4).
The Constitution further states:
In this Constitution, unless the context otherwise requires–
“period of public emergency” means–
(a) any period when Zimbabwe is engaged in any war and the period immediately following thereon until such date as may be declared by the President, by proclamation in the Gazette, as the end of the period of public emergency caused by that war. 
Zimbabwe, Constitution, 1979, as amended to 2009, Section 113(1).
Zimbabwe
Zimbabwe’s Constitution (2013) states:
Chapter 4 – Declaration of Rights
50. Rights of arrested and detained persons
(2) Any person who is arrested or detained -
(a) for the purpose of bringing him or her before a court; or
(b) for an alleged offence;
and who is not released must be brought before a court as soon as possible and in any event not later than forty-eight hours after the arrest took place or the detention began, as the case may be, whether or not the period ends on a Saturday, Sunday or public holiday.
(3) Any person who is not brought to court within the forty-eight hour period referred to in subsection (2) must be released immediately unless their detention has earlier been extended by a competent court.
(7) lf there are reasonable grounds to believe that a person is being detained illegally or if it is not possible to ascertain the whereabouts of a detained person, any person may approach the High Court for an order –
(a) of habeas corpus, that is to say an order requiring the detained person to be released, or to be brought before the court for the lawfulness of the detention to be justified, or requiting the whereabouts of the detained person to be disclosed;
or
(b) declaring the detention to be illegal and ordering the detained person’s prompt release;
and the High Court may make whatever order is appropriate in the circumstances.
(8) An arrest or detention which contravenes this section, or in which the conditions set out in this section are not met, is illegal.
86. Limitation of rights and freedoms
(2) The fundamental rights and freedoms set out in this Chapter may be limited only in terms of a law of general application and to the extent that the limitation is fair, reasonable, necessary and justifiable in a democratic society based on openness, justice, human dignity, equality and freedom, taking into account all relevant factors, including –
(b) the purpose of the limitation, in particular whether it is necessary in the interests of defence, public safety, public order, public morality, public health, regional or town planning or the general public interest;
(3) No law may limit the following rights enshrined in this Chapter, and no person may violate them –
(f) the right to obtain an order of habeas corpus as provided in section 50(7)(a).
87. Limitations during public emergency
(1) In addition to the limitations permitted by section 86, the fundamental rights and freedoms set out in this Chapter may be further limited by a written law providing for measures to deal with situations arising during a period of public emergency, but only to the extent permitted by this section and the Second Schedule.
(4) No law that provides for a declaration of a state of emergency, and no legislative or other measure taken in consequence of such a declaration may –
(a) indemnify, or permit or authorise an indemnity for, the State or any institution or agency of the government at any level, or any other person, in respect of any unlawful act; or
(b) limit any of the rights referred to in section 86(3), or authorise or permit any of those rights to be violated. 
Zimbabwe, Constitution, 2013, Sections 50(2)–(3) and (7)–(8), 86(2)(b) and (3)(f) and 87(1) and (4).
Canada
In the Charkaoui case before the Supreme Court of Canada in 2007, in which the three appellants challenged the constitutionality of the provisions of the Canadian Immigration and Refugee Protection Act (IRPA) under which they had been detained for suspected links to terrorist activities, the Supreme Court held:
28. The overarching principle of fundamental justice that applies here is this: before the state can detain people for significant periods of time, it must accord them a fair judicial process …
29. This basic principle has a number of facets. It comprises the right to a hearing. It requires that the hearing be before an independent and impartial magistrate. It demands a decision by the magistrate on the facts and the law. 
Canada, Supreme Court, Charkaoui case, Judgment, 23 February 2007, §§ 28 and 29.
[emphasis in original]
Chile
In its judgment in the Contreras Sepúlveda case in 2004, Chile’s Supreme Court stated:
If the authorities detain a person, they must notify the competent judge and place the detainee at the judge’s discretion. This underlines the fact that there is no legal basis whatsoever for detaining persons and taking them to secret detention centres. 
Chile, Supreme Court, Second Chamber, Contreras Sepúlveda case, Case No. 2182-98, Judgment of 17 November 2004, § 24.
India
In its judgment in the Peoples Union for Human Rights case in 1991, India’s High Court of Gauhati directed the central government of India and the local government of Assam to instruct commissioned officers, non-commissioned officers, warrant officers and havildars that “any person arrested by the armed forces or other armed forces of the Union shall be handed over to the nearest police station with least possible delay and be produced before the nearest Magistrate within 24 hours from the time of arrest”. 
India, High Court of Gauhati, Peoples Union for Human Rights case, Judgment, 20 March 1991, § 64.
Israel
In its judgment in the Marab case in 2003, Israel’s High Court of Justice stated:
25. Petitioners’ second claim relates to the detention period. The claim does not concentrate on the length of the period per se, since the length of the period is determined by the needs of the investigation. The claim focuses on the period between the detention and the first instance of judicial intervention. Under Order 1500, this period lasts 18 days; the petitioners claim that this period is excessive. Moreover, they claim that there are a number of detainees who have yet to be brought before a judge despite the fact that the 18-day period has passed. In order to rectify this situation Order 1502 was issued, under which such detainee[s] are to be brought before a judge as soon as possible and no later than 10.5.2002, see supra, para. 12. The petitioners claim that, under the authority of this latter order, some detainees were held for a period of 42 days without judicial intervention. The petitioners also assert that Order 1505, under which the detention order may prevent judicial intervention for a period of 12 days, is also illegal, as the period specified there is also excessive. This period remains valid under Order 1512 and Order 1518.
26. Judicial intervention with regard to detention orders is essential. As Justice I. Zamir correctly noted:
Judicial review is the line of defense for liberty, and it must be preserved beyond all else.
HCJ 2320/98 El-Amla v. IDF Commander in Judea and Samaria, at 350.
Judicial intervention stands before arbitrariness; it is essential to the principle of rule of law. See Brogan v. United Kingdom (1988) EHRR 117, 134. It guarantees the preservation of the delicate balance between individual liberty and public safety, a balance which lies at the base of the laws of detention. See AMA 10/94 Anon. v. Minister of Defense, at 105. Internal Israeli law has established clear laws in this regard. In “regular” criminal detention, the detainee is to be brought before a judge within 24 hours. See section 29(a) of the Criminal Procedure (Enforcement Powers-Detentions) Law-1996. In this case, the order is issued by the judge himself. In “administrative” detention, the detention order is to be brought before the president of the district court within 48 hours. See section 4 (a) of the Emergency Powers (Detentions) Law-1979. The decision of district court president is an integral part of the development of the administrative detention order. See AMA 2/86 Anon. v. Minister of Defense, at 515.
Similarly, in detaining an “unlawful combatant,” the detainee is to be brought before a justice of the district court within 14 days of the issuance of the imprisonment order by the Chief of Staff. See section 5 of the Imprisonment of Unlawful Combatants Law-2002. With regard to the detention of military soldiers, section 237A of the Military Justice Law-1955 provided that the detainee is to be brought before a military justice within 96 hours. We reviewed this provision, and concluded that it was unconstitutional, as it unlawfully infringed upon personal liberty, and was not proportionate. See Tzemach. Subsequent to our judgment, the law was amended, and it now provides that in detaining a military soldier under the Military Justice Law, the detainee is to be brought before a judge within 48 hours. What is the law with regard to detentions carried out in the area?
27. International law does not specify the number of days during which a detainee may be held without judicial intervention. Instead, it provides a general principle, which is to be applied to the circumstances of each and every case. This general principle, which pervades international law, is that the question of detention is to be brought promptly before a judge or other official with judiciary authority. See F. Jacobs and R. White, The European Convention on Human Rights 89 (2nd ed., 1996). Thus, for example, Article 9.3 of the Covenant on Civil and Political Rights 1966 provides:
Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by the law to exercise judicial power.
This provision is perceived as part of customary international law. See N. Rodley, The Treatment of Prisoners Under International Law 340 (2nd ed., 1999). A similar provision may be found in the Body of Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment, which was ratified by the UN General Assembly in 1988 (hereinafter the Principles of Protection from Detention or Imprisonment). Principle 1.11 provides:
A person shall not be kept in detention without being given an effective opportunity to be heard promptly by a judicial or other authority.
According to the interpretation of the UN Human Rights Committee “[D]elays must not exceed a few days.” See Report of the Human Rights Committee, GAOR, 37th Session, Supplement No. 40 (1982), quoted by Rodley, Id., at 335. On a similar note, Article 5(3) of the European Convention for the Protection of human Rights and Fundamental Freedoms-1950 provides:
Everyone arrested or detained in accordance with the provisions of paragraph 1(C) of this Article shall be brought promptly before a judge or other officer authorized by law to exercise judicial power.
In one of the cases in which the European Court of Human Rights interpreted this provision, Brogan v. United Kingdom, EHRR 117, 134 (1988), it stated:
The degree of flexibility attaching to the notion “promptness” is limited, even if the attendant circumstances can never be ignored for the purposes of the assessment under paragraph 3. Whereas promptness is to be assessed in each case according to its special features, the significance to be attached to those features can never be taken to the point of impairing the very essence of the right guaranteed by Article 5(3), that is the point of effectively negating the State’s obligation to ensure a prompt release or a prompt appearance before a judicial authority.
In that case, the British authorities had been holding a number of detainees, who had been detained with regard to terrorist activities in Northern Ireland. They were released after four days and six hours, without having been brought before a judge. The European court determined that in so doing, England had violated its duty to bring the detainees before a judge promptly. A number of additional cases were similarly decided. See McGoff v. Sweden, 8 EHRR 246 (1984); De Jong v. Netherlands, 8 EHRR 20 (1984); Duinhoff v. Netherlands, 13 EHRR 478 (1984); Koster v. Netherlands, 14 EHRR 196 (1991); Aksoy v. Turkey, 23 EHRR 553 (1986) See also Human Rights Law and Practice 121–22 (Lester and Pannik eds., 1999).
28. Article 27 of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War [hereinafter the Fourth Geneva Convention] includes a general provision under which:
Protected persons are entitled, in all circumstances, to respect for their persons, their honour, their family rights, their religious convictions and practices, and their manners and customs. They shall at all times be humanely treated, and shall be protected especially against all acts of violence or threats thereof and against insults and public curiosity.
The Fourth Geneva Convention does not include provisions which specify set detention periods or occasions for judicial intervention with regard to detention. It only includes provisions concerning administrative detention (internment). The first provision, Article 43, which applies to detentions carried out by the occupying state, provides:
Any protected person who has been interned or placed in assigned residence shall be entitled to have such action reconsidered as soon as possible by an appropriate court or administrative board designated by the Detaining Power for that purpose.
The second provision, Article 78, which applies to detentions carried out in the occupied territory, provides:
Decisions regarding such assigned residence or internment shall be made according to a regular procedure to be prescribed by the Occupying Power in accordance with the provisions of the present Convention. This procedure shall include the right of appeal for the parties concerned. Appeals shall be decided with the least possible delay.
There are no additional provisions which relate to this matter, or to the issue of judicial intervention into detention which is not administrative.
29. Finally, there is security legislation relating to “regular” criminal detention and administrative detention, in the area. With regard to “regular” criminal detention, Order 378 provides that a police officer, who has reasonable reason to believe that a crime has been committed, has the authority to issues a detention order for a period of up to 18 days, see section 78(3). Following the recommendations of the Commission of Inquiry into the Methods of Investigation of the General Security Service Regarding Hostile Terrorist Activity (Landau Commission), Order 378 was amended, and the detention period without judicial intervention was reduced to 8 days. In a petition submitted in this matter, the Court held that “at this time, there is no room for this Court to intervene to reduce the maximum period of detention permitted before bringing persons detained in the territories before a military judge.” HCJ 2307/00 Natsha v. IDF Commander in the West Bank (unreported case).
With regard to administrative detention in the area, such detentions were initially carried out under the Emergency Defense Regulations, which apply to the area. Later on, provisions regarding administrative detention were included in the Defense Regulations Order (Judea and Samaria) (Number 378)-1970. Under these provisions, if a person was detained on the authority of an administrative order, he was to be brought before a judge within 96 hours, see section 87B(a). These provisions were suspended by Order 1226. This Order provided that any person who had been administratively detained would be brought before a judge within 8 days. With the issuance of Order 1500, this was changed, and this provision was substituted by one which provided that an administrative detainee should be brought before a judge within 18 days. With the issuance of Order 1505, Order 1226 was once again amended, and it provided that if an administrative detention order was issued against a person who had been formerly being detained under Order 1500, his case was to be brought for judicial review within 10 days of his detention.
30. Against this normative background, which demands prompt judicial review of detention orders, the question again arises whether the arrangement established in Order 1500 – under which a person may be detained for a period of 18 days without having been brought before a judge – is legal. Similarly, is the arrangement established in Order 1505 legal? This arrangement – which was unaffected by Order 1512 or Order 1518 – provided that a person may be detained for a period of 12 days without having being brought before a judge. In answering these questions, the special circumstances of the detention must be taken into account. “Regular” police detention is not the same as detention carried out “during warfare in the area,” Order 1500, or “during anti-terrorism operations” Order 1505. It should not be demanded that the initial investigation be performed under conditions of warfare, nor should it be demanded that a judge accompany the fighting forces. We accept that there is room to postpone the beginning of the investigation, and naturally also the judicial intervention. These may be postponed until after detainees are taken out of the battlefield to a place where the initial investigation and judicial intervention can be carried out properly. Thus, the issue at hand rests upon the question: where a detainee is in a detention facility which allows for carrying out the initial investigation, what is the timeframe available to investigators for carrying out the initial investigation without judicial intervention?
31. In this regard, the respondents claim before us that it was necessary to allow the investigating officials 18 days – and after Order 1505, 12 days – to carry out “initial screening activities, before the detainee’s case is brought before the examination of a judge.” This was due to the large number of persons being investigated, and constraints on the number of professional investigators. In their response, the respondents emphasized that “during the warfare operations, thousands of people were apprehended by the IDF forces, under circumstances which raised the suspicion that they were involved in terrorist activities and warfare. The object of Order 1500 was to allow the “screening” and identification of unlawful combatants who were involved in terrorist activities. This activity was necessary due to the fact that the terrorists had been carrying out their activities in Palestinian populations centers, without bearing any symbols that would identify them as members of combating forces and distinguish them from the civilian population, in utter violation of the laws of warfare.” See para. 51 of the response brief from May 15, 2002. The respondents added that it is pointless to bring detainees before a judge, when they have not yet been identified, and the investigative material against them has not yet undergone the necessary processing. This initial investigation, performed prior to bringing the detainee before the judge, is difficult and often demands considerable time. This is due, among other reasons, to “the lack of cooperation on the part of those being investigated and their attempts to hide their identities, their hostility towards the investigating authorities due to nationalistic and ideological views, the inability to predetermine the time and place of the detentions, the fact that most of the investigations are based on confidential intelligence information which cannot be revealed to the person being investigated, and the difficulty of reaching potential witnesses.” See para. 62 of the response brief from June 11, 2002.
32. The respondents thus claim that the investigating authorities must be allowed the time necessary for the completion of the initial investigation. This will, of course, not exceed a period of 18 days, under Order 1500, or 12 days, under Order 1505, as it was amended in Orders 1512 and 1518. In this timeframe, all those detainees against whom there is insufficient evidence will be released. Only those detainees, whose initial investigation has been completed, such that the investigation is ready for judicial examination, will remain in detention.
In our opinion, this approach is in conflict with the fundamentals of both international and Israeli law. This approach is not based on the presumption that investigating authorities should be provided with the minimal time necessary for the completion of the investigation, and that only when such time has passed is there room for judicial review. The accepted approach is that judicial review is an integral part of the detention process. Judicial review is not “external” to the detention. It is an inseparable part of the development of the detention itself. At the basis of this approach lies a constitutional perspective which considers judicial review of detention proceedings essential for the protection of individual liberty. Thus, the detainee need not “appeal” his detention before a judge. Appearing before a judge is an “internal” part of the dentition process. The judge does not ask himself whether a reasonable police officer would have been permitted to carry out the detention. The judge asks himself whether, in his opinion, there are sufficient investigative materials to support the continuation of the detention.
Indeed, the laws regarding detention for investigative purposes focus mainly on judicial decisions. In a “natural” state of affairs, the initial detention is performed on the authority of a judicial order. See H. Zandberg, Interpretation of the Detentions Law 148 (2001). Of course, this state of affairs does not apply to the circumstances at hand. It is natural that the initial detention not be carried out on the authority of a judicial order. It is natural that the beginning of the initial investigation in the facility be performed within the context of the amended Order 1500. Judicial review will naturally come later. Even so, everything possible should be done to ensure prompt judicial review. Indeed, the laws of detention for investigative purposes are primarily laws which guide the judge as to under what circumstances he should allow the detention of a person and under what circumstances he should order the detainee’s release. Judicial detention is the norm, while detention by one who is not a judge is the exception. This exception applies to the matter at hand, since naturally, the initial detention is done without a judicial order. Nevertheless, everything possible should be done to rapidly pass the investigation over to the regular track, placing the detention in the hands of a judge and not an investigator. Indeed, the authority to detain as set by Order 1500, as well as the detention authority under Orders 1505, 1512, and 1518, is not unique. This detention authority is part of the regular policing authority, see para. 24. Otherwise it could not be conferred upon an authorized officer. This nature of the detention authority affects its implementation. Like every detention authority, it must be passed over to the regular track of judicial intervention as quickly as possible.
33. Of course, such judicial intervention takes the circumstances of the case into account. In evaluating the detention for investigative purposes, the judge does not ask himself whether there exists prima facie evidence of the detainee’s guilt. That is not the standard which needs to be tested. At this primary stage, there must be reasonable suspicion that the detainee committed a security crime and reasonable reason to presume that his release will disturb security or the investigation. Regarding this reasonable suspicion, Justice M. Cheshin stated:
“Reasonable suspicion” will exist even if it is not supported by “prima facie evidence for proving guilt,” where there is evidence which connects the suspect to the crime at hand to a reasonable extent that justifies, in the balancing of the interests on each side, allowing the police the opportunity to continue and complete the investigation.
VCA 6350/97 Rosenstien v. State of Israel (unreported case); VCA 157/02 Tzinman v. State of Israel (unreported case).
Indeed, the judge may often learn of the existence of reasonable suspicion from the circumstances of the detention themselves, which raise the suspicion that the individual detainee presents a danger to the security of the area, see the definition of detainee in Orders 1500 and 1505. The judge will review the circumstances and examine whether they raise reasonable suspicion that the crime has been committed. He will, of course, consider additional materials submitted to him. He will inquire into the intended course of investigation and the difficulties of the investigation – whether they be the lack of manpower or difficulties in the investigation itself – in order to be convinced that the investigators are truly in need of additional time for their investigation. All these will ensure that the decision regarding the continuation of the detention, even if it is only based upon initial investigative materials, will not be made by the investigating authority, but rather by a judicial official. This is the object which lays at the base of both the international and Israeli regulation of detention for investigative purposes.
It is possible, that in the end, the judge will decide to allow the continuation of the detention, as would an authorized officer. This is irrelevant, since the judge’s intervention is intended to guarantee that only the proper considerations be taken into account, and that the entire matter be examined from a judicial perspective. This is the minimum required by both the international and Israeli legal frameworks. President Shamgar, in HCJ 253/88 Sajadia v. Minister of Defense, at 819–820, expressed the same in reference to judicial review over administrative detention, which also applies to the matter at hand:
It would be proper for the authorities to act effectively to reduce the period of time between the detention and the submission of the appeal, and the judicial review.
Of course, this does not mean that the judicial review should be superficial. On the contrary, “it is highly significant that a judge thoroughly examine the material, and ensure that every piece of evidence connected to the matter at hand be submitted to him. Judges should never allow quantity to affect either quality or the extent of the judicial examination.” President Shamgar in Sajadia, at 820. In exercising his discretion, in each and every case, the judge will balance security needs, on the one hand, and individual liberty, on the other. He will keep in mind President Shamgar’s words in Sajadia, at 821, which were said with reference to administrative detention, but apply to our case as well:
Depriving one of his liberty, without the decision of a judicial authority, is a severe step, which the law only allows for in circumstances which demand that such be done for overwhelming reasons of security. Proper discretion, which must be exercised in issuing the order, must relate to the question of whether each concrete decision regarding detention reflects the proper balance between security needs – which have no other reasonable solution – and the fundamental tendency to respect man’s liberty.
34. With this in mind, we are of the opinion that detention periods of 18 days, under Order 1500, and 12 days, under Orders 1505, 1512 and 1518, exceed appropriate limits. This detention period was intended to allow for initial investigation. However, that is not its proper function. According to the normative framework, soon after the authorized officer carries out the initial detention, the case should be transferred to the track of judicial intervention. The case should not wait for the completion of the initial or other investigation before it is brought before a judge. The need to complete the initial investigation will be presented before the judge himself, and he will decide whether there exists reasonable suspicion of the detainee’s involvement to justify the continuation of his detention. Thus, Order 1500, as well as Orders 1505, 1512, and 1518, unlawfully infringes upon the judge’s authority, thus infringing upon the detainee’s liberty, which the international and Israeli legal frameworks are intended to protect.
35. How can this problem be resolved? We doubt that it would be suitable to substitute the periods of detention without judicial intervention set in Order 1500 and the amended Order 1505 with a shorter predetermined detention period. As we have seen, everything rests upon the changing circumstances, which are not always foreseeable. It seems, that due to the unique circumstances before us, the approach adopted by international law, which avoids prescribing set periods and instead requires that a judge be approached promptly, is justified. In any case, this is a matter for the respondents and not for us. Of course, presumably, this means that it will be necessary to substantially enlarge the staff of judges who will deal with detention. It was not argued before us that there is a lack of such judges. In any case, even if the claim had been raised before us, we would have rejected it and quoted President Shamgar’s words in Sajadia, at 821:
What are the practical implications of what has been said? If there are a large number of detainees, it will be necessary to increase the number of judges. Difficulty in organizing such an arrangement, which will increase the number of judges who are called to service in order that a detainee’s appeal be heard promptly and effectively, cannot justify the length of the period during which the detainee is held before his case has been judicially reviewed. The current emergency conditions undoubtedly demanded large-scale deployment of forces to deal with the riots occurring in Judea, Samaria and the Gaza Strip, and the matter at hand – the establishment of a special facility in Kziot – is an example of this deployment of forces. However, by the same standards, effort and resources must be invested into the protection of the detainees’ rights, and the scope of judicial review should be broadened. If the large number of appeals so demands, ten or more judges may be called upon to simultaneously review the cases, and not only the smaller number of judges who are currently treating these matters. Such is the case – aside from the differences which stem from the nature of the matter – with regard to prosecutors as well. The number of prosecutors may also be increased, due to the need to hasten the appeal proceedings and the preparations thus involved.
Notably, under international law, judicial intervention may be carried out by a judge or by any other public officer authorized by law to exercise judicial power. This public officer must be independent of the investigators and prosecutors. He must be free of any bias. He must be authorized to order the release of the detainee. See Ireland v. United Kingdom, 2 EHRR 25 (1978); Schiesser v. Switzerland, 2 EHRR 417 (1979).
36. Thus, we hold the 18-day detention period without judicial oversight under Order 1500, and the 12-day detention period without judicial oversight under Orders 1505, 1512, and 1518, to be null and void. They will be substituted by a different period, to be set by the respondents. To this end, the respondents should be allowed to consider the matter. Therefore, we hold that this declaration of nullification will be effective six months from the date at which this judgment is given. Compare Tzemach, at 284. We have considered respondents’ request to present us with classified information. We are of the opinion that such is neither appropriate nor desirable. We hope that the half-year suspension will allow for the reorganization required by both international and internal law. 
Israel, High Court of Justice, Marab case, Judgment, 5 February 2003, §§ 25–36.
Israel
In its judgment in the A. v. State of Israel case in 2008, concerning the legality of national law with regard to unlawful combatants, Israel’s High Court of Justice stated:
With regard to the periods of time between the detention of the detainee and the initial judicial review of the detention order, it has been held in the case law of this court that in view of the status of the right to personal liberty and in order to prevent mistakes of fact and discretion whose price is likely to be a person’s loss of liberty without just cause, the administrative detainee should be brought before a judge “as soon as possible” in the circumstances (per President M. Shamgar in HCJ 253/88 Sajadia v. Minister of Defence [1988] IsrSC 42(3) 801, at pages 819–820). It should be noted that this case law ruling is consistent with the arrangements prevailing in international law. International law does not stipulate the number of days during which it is permitted to detain a person without judicial involvement, but it determines a general principle that can be applied in accordance with the circumstances of each case on its merits. According to the aforesaid general principle, the detention decision should be brought before a judge or another person with judicial authority “promptly” (see in this regard the provisions of article 9(3) of the International Covenant on Civil and Political Rights, 1966, which is regarded as being of a customary nature. … )
In the case before us, the Internment of Unlawful Combatants Law [(2002)] provides that the date for holding the initial judicial review is “no later than 14 days from the date of issuing the internment order.” The question that arises in this context is whether the aforesaid period of time excessively violates the right to personal liberty. The answer to this question lies in the purpose of the law and the special circumstances of the detention thereunder, as well as in the interpretation of the aforesaid provision of the law. As we have said, the Internment of Unlawful Combatants Law applies to foreign parties who belong to terrorist organizations and who conduct persistent hostilities against the State of Israel. As we have said, the law was intended to apply, inter alia, in circumstances where hostilities are taking place in a territory that is not a part of Israel, in the course of which a relatively large number of enemy combatants may fall into the hands of the military forces. In view of these special circumstances, we do not see fit to hold that the maximum period of time of fourteen days for holding an initial judicial review of the detention order departs from the margin of proportionality in such a way that it justifies our intervention by shortening the maximum period provided in the law. At the same time, it should be emphasized that the period of time provided in the law is a maximum period and it does not exempt the state from making an effort to bring the detainee to an initial judicial review as soon as possible in view of all the circumstances of the case. 
Israel, Supreme Court of Israel, Court of Criminal Appeals, A. v. State of Israel case, Judgment, 11 June 2008, § 41.
Uganda
In the Cherop case before the Uganda Human Rights Commission at Kampala in 2004, the complainant was a sergeant of the Uganda People’s Defence Forces (UPDF) who was detained by the UPDF intelligence after allegedly “disappearing with a firearm”. The Commission stated:
According to the evidence, Jackson Cherop was detained from February 17, to March 28, 2000 which is a period of 39 days. Article 23(4) of the Constitution provides as follows:
23(4) A person arrested or detained –
(a) ______________________________________________________
(b) Upon reasonable suspicion of his or her having committed or being about to commit a criminal offence under the laws of Uganda, shall, if not earlier released, be brought to Court as soon as possible but in any case not later than forty-eight (48) hours from the time of his or her arrest.
The detention of Cherop for 39 days without charge in a Court of law breached this constitutional provision and was therefore illegal and a violation of his right to personal liberty. In the same vein it constituted a violation of his right to personal liberty because the detention violated the procedural rights guaranteed by Article 23 which is that persons detained on suspicion that they have committed an offence must be charged within forty-eight hours. 
Uganda, The Uganda Human Rights Commission at Kampala, Cherop case, Decision, 14 April 2004, § 23.
Sri Lanka
In its judgment in the Weerawansa case in 2000, the Supreme Court of Sri Lanka stated:
Article 9 of the Covenant [on Civil and Political Rights] mandates, inter alia, that “no one shall be subjected to arbitrary arrest or detention”; that “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 that “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”. A person deprived of personal liberty has a right of access to the judiciary, and that right is now internationally entrenched, to the extent that a detainee who is denied that right may even complain to the Human Rights Committee.
Should this Court have regard to the provisions of the Covenant? I think it must. Article 27(15) requires the State to “endeavour to foster respect for international law and treaty obligations in dealings among nations”. That implies that the State must likewise respect international law and treaty obligations in its dealings with its own citizens, particularly when their liberty is involved. The State must afford to them the benefit of the safeguards which international law recognises.
In that background, it would be wrong to attribute to Parliament an intention to disregard those safeguards. The PTA [Prevention of Terrorism (Temporary Provisions) Act] cannot be interpreted as dispensing, by implication or inference, with the safeguard of prompt production before a judicial officer under and in terms of Article 13(2) [of the Sri Lankan Constitution]. Such production is imperative. Since the petitioner was never brought before a judicial officer during the entire period of detention, I hold that his fundamental right under Article 13(2) was infringed for which infringement the State is liable. 
Sri Lanka, Supreme Court, Weerawansa case, Judgment, 3 August 2000, pp. 409–410.
Azerbaijan
In 2007, in its third periodic report to the Human Rights Committee, Azerbaijan stated:
Any person arrested or detained in accordance with the circumstances set out above must be brought without delay before a judge with the authority to consider the matter or to order the person’s release pending trial. Such persons have the right to be tried within the time limit set by law, or to be released pending trial. 
Azerbaijan, Third periodic report to the Human Rights Committee, 10 December 2007, UN Doc. CCPR/C/AZE/3, submitted 4 October 2007, § 38.
Canada
In 2004, in its fifth periodic report to the Human Rights Committee, Canada stated: “Anyone arrested must be taken before a judge within 24 hours if a judge is available and otherwise as soon as possible.” 
Canada, Fifth periodic report to the Human Rights Committee, UN Doc. CCPR/C/CAN/2004/5, 18 November 2004, § 63.
Chile
In 2006, in its fifth periodic report to the Human Rights Committee, Chile stated: “Accused persons who have been deprived of their liberty also have the following rights: … to be brought promptly before the court that ordered the arrest or detention”. 
Chile, Fifth periodic report to the Human Rights Committee, 5 July 2006, UN Doc. CCPR/C/CHL/5, submitted 7 February 2006, § 155.
(footnote in original omitted)
Croatia
In 2007, in its second periodic report to the Human Rights Committee, Croatia stated that its Constitution provides: “Anyone who is detained and accused of a criminal offence shall have the right to be brought before the court within the shortest term specified by law, and to be acquitted or sentenced within the statutory term.” 
Croatia, Second periodic report to the Human Rights Committee, 2 December 2008, UN Doc. CCPR/C/HRV/2, submitted 28 November 2007, § 205.
Poland
In 2004, in its fifth periodic report to the Human Rights Committee, Poland stated: “The arrested person should be handed over to the court within 48 hours of his arrest”. 
Poland, Fifth periodic report to the Human Rights Committee, UN Doc. CCPR/C/POL/2004/5, 26 January 2004, submitted13 January 2004, § 157.
Sri Lanka
In 2009, in its combined third and fourth periodic reports to the Committee against Torture, Sri Lanka stated: “The officer in charge of the police station has to forthwith take all measures to … produce a child [soldier who is arrested] within 24 hours before the Magistrate.” 
Sri Lanka, Combined third and fourth periodic reports to the Committee against Torture, 23 September 2010, UN Doc. CAT/C/LKA/3-4, submitted 17 August 2009, § 82.
Sri Lanka further stated:
Persons arrested under [the] Emergency Regulations and Prevention of Terrorism Act, for certain offences could be detained up to maximum of one year, for investigation and interrogation purposes. Even … persons arrested under these special provisions should be produced before the relevant Magistrate’s Court within a certain period and periodically according to the relevant law. 
Sri Lanka, Combined third and fourth periodic reports to the Committee against Torture, 23 September 2010, UN Doc. CAT/C/LKA/3-4, submitted 17 August 2009, Annex, § 21.
United Kingdom of Great Britain and Northern Ireland
In 2006, in its sixth periodic report to the Human Rights Committee, the United Kingdom stated:
Length and conditions of detention
405. Part 5 of, and Schedule 8 to, the Terrorism Act 2000, as amended by the Terrorism Act 2006, allow for the arrest of those suspected of being a terrorist and their detention prior to charge for a maximum of 28 days. However, all detention beyond 48 hours is subject to judicial authorization. Extension of detention warrants can be granted by a judicial authority for periods of no more than seven days at a time up to the maximum of 28 days. A judge can only agree to issue an extension of detention warrant if he is satisfied that it is necessary and that the investigation is being conducted as expeditiously as possible. A person must be released as soon as the reason for his detention no longer exists, regardless of how long his detention has been authorized.
407. Subparagraphs 33(4)–33(9) of Schedule 8 to the Terrorism Act 2000 (as amended by the Criminal Justice & Police Act 2001) provide for a direction to be given by the judicial authority hearing applications for extension of pre-charge detention under the Act. The judicial authority may direct that hearings may be held by live video link if the Secretary of State has given notification that such facilities exist at the place where the detainee is held. This allows applications for extension of detention to be held which give all parties the opportunity to make representations to the judicial authority where appropriate, without the disruption and resource intensive security requirements associated with a physical hearing. 
United Kingdom, Sixth periodic report to the Human Rights Committee, UN Doc. CCPR/C/GBR/6, 18 May 2007, submitted 1 November 2006, §§ 405 and 407.
UN General Assembly
In a resolution adopted in 2005 on torture and other cruel, inhuman or degrading treatment or punishment, the UN General Assembly:
Recalls its resolution 43/173 of 9 December 1988 on the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, and in this context stresses that ensuring that any individual arrested or detained is promptly brought before a judge or other independent judicial officer in person and permitting prompt and regular medical care and legal counsel as well as visits by family members and independent monitoring mechanisms are effective measures for the prevention of torture and other cruel, inhuman or degrading treatment or punishment.  
UN General Assembly, Res. 60/148, 16 December 2005, § 10, adopted without a vote.
UN General Assembly
In a resolution adopted in 2006 on torture and other cruel, inhuman or degrading treatment or punishment, the UN General Assembly:
Recalls its resolution 43/173 of 9 December 1988 on the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, and in this context stresses that ensuring that any individual arrested or detained is promptly brought before a judge or other independent judicial officer in person and permitting prompt and regular medical care and legal counsel as well as visits by family members and independent monitoring mechanisms are effective measures for the prevention of torture and other cruel, inhuman or degrading treatment or punishment. 
UN General Assembly, Res. 61/153, 19 December 2006, § 11, adopted without a vote.
UN General Assembly
In a resolution adopted in 2007 on torture and other cruel, inhuman or degrading treatment or punishment, the UN General Assembly:
Recalls its resolution 43/173 of 9 December 1988 on the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, and in this context stresses that ensuring that any individual arrested or detained is promptly brought before a judge or other independent judicial officer in person and permitting prompt and regular medical care and legal counsel as well as visits by family members and independent monitoring mechanisms are effective measures for the prevention of torture and other cruel, inhuman or degrading treatment or punishment. 
UN General Assembly, Res. 62/148, 18 December 2007, § 14, adopted without a vote.
UN Commission on Human Rights
In a resolution adopted in 2005 on enforced or involuntary disappearances, the UN Commission on Human Rights urged States:
To prevent the occurrence of enforced disappearances, including by guaranteeing that any person deprived of liberty is held solely in officially recognized and supervised places of detention, guaranteeing access to all places of detention by authorities and institutions whose competence in this regard has been recognized by the concerned State, maintaining official, accessible, up-to-date registers and/or records of detainees and ensuring that detainees are brought before a judicial authority promptly after detention. 
UN Commission on Human Rights, Res. 2005/27, 19 April 2005, § 4(c), adopted without a vote.
UN Human Rights Council
In a resolution adopted in 2007 on arbitrary detention, the UN Human Rights Council encouraged all States:
To respect and promote the right of anyone who is arrested or detained on a criminal charge to be brought promptly before a judge or other officer authorized by law to exercise judicial power and to be entitled to trial within a reasonable time or to release. 
UN Human Rights Council, Res. 6/4, 28 September 2007, § 5(c), adopted without a vote.
No data.
No data.
Extraordinary Chambers in the Courts of Cambodia
In the Kaing case before the ECCC, the accused was charged, both individually and as a superior, with, inter alia, various crimes against humanity and grave breaches of the 1949 Geneva Conventions. In its judgment in 2010, the Trial Chamber considered the prohibition on arbitrary imprisonment, stating:
347. Imprisonment refers to the arbitrary deprivation of an individual’s liberty without due process of law. The customary status of the prohibition of arbitrary imprisonment under international law initially developed from the laws of war and is supported by human rights instruments.
349. Not every minor infringement of liberty forms the material element of imprisonment as a crime against humanity; the deprivation of liberty must be of similar gravity and seriousness as the other crimes enumerated as crimes against humanity in Article 5 of the ECCC Law[Law on the Establishment of the ECCC (2001), as amended in 2004].
350. It must be shown that the perpetrator intended to arbitrarily deprive the individual of liberty, or that he [or she] acted in the reasonable knowledge that his or her actions were likely to cause the arbitrary deprivation of physical liberty. 
ECCC, Kaing case, Judgment, 26 July 2010, §§ 347 and 349–350.
[footnotes in original omitted]
The Trial Chamber also considered the offence of unlawful confinement, stating:
464. The elements of the offence of unlawful confinement under Article 6 of the ECCC Law are in substance the same as those of imprisonment under Article 5 of the ECCC Law (crimes against humanity).
465. Unlawful confinement of a civilian is expressly prohibited as a grave breach in [the 1949] Geneva Convention IV. … Further, an initially lawful internment becomes unlawful if the detaining party fails to respect the detainee’s basic procedural rights …
466. The jurisprudence of the ICTY has established that the requisite mental element for this offence, in common with all grave breaches of the Geneva Conventions, includes both culpable intent and recklessness. 
ECCC, Kaing case, Judgment, 26 July 2010, §§ 464–466.
[footnotes in original omitted]
International Criminal Tribunal for Rwanda
In the Kajelijeli case before the ICTR in 2001, the accused, Juvénal Kajelijeli, who was bourgmestre (mayor) of the Mukingo commune, Rwanda, from 1988 to 1993 and was re-appointed bourgmestre in June 1994 until mid-July 1994, was charged for his alleged involvement with various crimes committed against the Tutsi population in Rwanda in 1994. The Trial Chamber subsequently found the accused guilty of both genocide and of extermination, for which he received two sentences of imprisonment for the remainder of his life. He was also found guilty of direct and public incitement to commit genocide, for which he was sentenced to 15 years’ imprisonment. 
ICTR, Kajelijeli case, Judgment, 1 December 2003, §§ 942 and 968.
The Appeals Chamber subsequently found that the appellant had been impermissibly detained for a total of 306 days in Benin and the UN Detention Facility (UNDF), Arusha, because 1) he was not promptly informed of the reasons for his arrest or of the provisional charges against him, and 2) he was not promptly granted an initial appearance before a judge or an official acting in a judicial capacity without undue delay. It therefore set aside the sentences imposed by the Trial Chamber and converted them into a single sentence consisting of a fixed term of imprisonment of 45 years. 
ICTR, Kajelijeli case, Judgment on Appeal, 23 May 2005, §§ 251–253 and 323.
Human Rights Committee
In its General Comment on Article 9 of the 1966 International Covenant on Civil and Political Rights in 1982, the Human Rights Committee held:
2. Paragraph 3 of article 9 [of the 1966 International Covenant on Civil and Political Rights] requires that in criminal cases any person arrested or detained has to be brought “promptly” before a judge or other officer authorized by law to exercise judicial power. More precise time-limits are fixed by law in most States parties and, in the view of the Committee, delays must not exceed a few days …
3. Another matter is the total length of detention pending trial. In certain categories of criminal cases in some countries this matter has caused some concern within the Committee, and members have questioned whether their practices have been in conformity with the entitlement “to trial within a reasonable time or to release” under paragraph 3. Pre-trial detention should be an exception and as short as possible. 
Human Rights Committee, General Comment No. 8 (Article 9 of the 1966 International Covenant on Civil and Political Rights), 30 July 1982, §§ 2 and 3.
Human Rights Committee
In its concluding observations on the combined fourth and fifth periodic reports of Sri Lanka in 2003, the Human Rights Committee stated:
The Committee is concerned that the Prevention of Terrorism Act (PTA) remains in force and that several of its provisions are incompatible with the [1966 International Covenant on Civil and Political Rights] (arts. 4, 9 and 14). The Committee welcomes the decision of the Government, consistent with the Ceasefire Agreement of February 2002, not to apply the provisions of the PTA and to ensure that normal procedures for arrest, detention and investigation prescribed by the Criminal Procedure Code are followed. The Committee is also concerned that the continued existence of the PTA allows arrest without a warrant and permits detention for an initial period of 72 hours without the person being produced before the court (sect. 7), and thereafter for up to 18 months on the basis of an administrative order issued by the Minister of Defence (sect. 9) … The Committee is concerned that such provisions, incompatible with the Covenant, still remain legally enforceable, and that it is envisaged that they might also be incorporated into the Prevention of Organized Crimes Bill 2003.
The State party is urged to ensure that all legislation and other measure enacted taken to fight terrorism are compatible with the provisions of the Covenant. The provisions of the Prevention of Terrorism Act designed to fight terrorism should not be incorporated into the draft Prevention of Organized Crime Bill to the extent that they are incompatible with the Covenant. 
Human Rights Committee, Concluding observations on the combined fourth and fifth periodic reports of Sri Lanka, UN Doc. CCPR/CO/79/LKA, 1 December 2003, § 13.
[emphasis in original]
Human Rights Committee
In 2004, in its concluding observations on the situation of civil and political rights in The Gambia, the Human Rights Committee noted the following on The Gambia’s Code of Criminal Procedure:
Decree No. 45 (1995) and Decree No. 66 (1996) of the Armed Forces Provisional Ruling Council (AFPRC), extending the period of detention up to 90 days and which remain in force, are neither compatible with the constitutional provisions governing arrest and detention (sections 19 (2) and (3) of the Constitution), nor with the [1966 International Covenant on Civil and Political Rights] (art. 9).
The State party should repeal Decrees Nos. 45 and 66. It is requested to provide information on whether the constitutional provision under which any arrested person must be produced before a judge or judicial officer as soon as possible or within 72 hours of arrest at the latest is in fact consistently applied in practice. The Committee considers that the delay of 72 hours is difficult to reconcile with article 9, paragraph 3, of the Covenant.  
Human Rights Committee, Concluding observations on the situation of civil and political rights in The Gambia, UN Doc. CCPR/CO/75/GMB, 12 August 2004, § 13.
[emphasis in original]
Human Rights Committee
In its concluding observations on the second periodic report of Uzbekistan in 2005, the Human Rights Committee stated:
The Committee considers that the length of custody for which a suspect may be held without being brought before a judge or an officer authorized to exercise judicial power – 72 hours – is excessive ([1966 International Covenant on Civil and Political Rights], art. 9).
The State party should ensure that a judge reviews all detentions to determine if they are legal and that all cases of detention are brought before a judge for that purpose, in conformity with the provisions of article 9 of the Covenant. 
Human Rights Committee, Concluding observations on the second periodic report of Uzbekistan, UN Doc. CCPR/CO/83/UZB, 26 April 2005, § 14.
[emphasis in original]
Human Rights Committee
In its concluding observations on the initial report of Tajikistan in 2005, the Human Rights Committee stated:
12. The Committee is concerned that a procurator, rather than a judge, remains responsible for authorizing arrests. This creates an imbalance in the equality of arms between the accused and the prosecution, as the procurator may have an interest in the detention of those who are to be prosecuted. Further, detainees are not brought before the procurator following their arrest.
An appeal to a court to review the lawfulness and grounds of arrest is possible, but it does not guarantee the participation of the detainee (art. 9 [of the 1966 International Covenant on Civil and Political Rights]).
The State party should revise its criminal procedure legislation and introduce a system that ensures that all detainees are as a matter of course brought promptly before a judge who will decide without delay on the lawfulness of the detention.
13. The Committee is concerned that a person may be placed under administrative arrest for up to 15 days, and that such detention is not subject to judicial supervision (art. 9 [of the 1966 International Covenant on Civil and Political Rights]).
The State party should ensure that administrative detention is subject to the same right to challenge the lawfulness of the detention as ought to pertain to other forms of detention, in light of the Committees recommendations in paragraph 12 above. 
Human Rights Committee, Concluding observations on the initial report of Tajikistan, UN Doc. CCPR/CO/84/TJK, 18 July 2005, §§ 12–13.
[emphasis in original]
Human Rights Committee
In its concluding observations on the second periodic report of the Central African Republic in 2006, the Human Rights Committee stated:
The Committee is concerned about the legal duration of police custody, which can be extended to 16 days, an excessively long period which is often exceeded in practice … (articles 7 and 9 of the [1966 International Covenant on Civil and Political Rights]).
The State party should ensure that limits are set to the legal period of police custody and pretrial detention in the new Code of Criminal Procedure, consistent with the provisions of the Covenant, and ensure compliance with those limits. 
Human Rights Committee, Concluding observations on the second periodic report of the Central African Republic, UN Doc. CCPR/C/CAF/CO/2, 27 July 2006, § 14.
[emphasis in original]
Human Rights Committee
In 2006, in its concluding observations on the report submitted by the United Nations Interim Administration Mission in Kosovo (UNMIK) on the human rights situation in Kosovo since June 1999, the Human Rights Committee stated:
The Committee notes with concern that criminal suspects have been arrested solely under a detention directive of the Commander of KFOR [NATO Kosovo Force] and under executive orders of the Special Representative of the Secretary-General without being brought before a judge promptly and without access to an independent judicial body to determine the lawfulness of their detention (arts. 9 and 14 [of the 1966 International Covenant on Civil and Political Rights]).
UNMIK should revoke the Regulation conferring power on the Special Representative of the Secretary-General to detain and expel individuals, seek the cessation of detentions under Commander of KFOR Detention Directive 42, and ensure that all persons arrested under the discretionary powers of UNMIK police or under a court order are informed of the reasons for their arrest and of any charges against them, brought promptly before a judicial authority, granted access to a lawyer and to proceedings before a court to determine the lawfulness of their detention, and are tried without undue delay. 
Human Rights Committee, Concluding observations on the report submitted by the United Nations Interim Administration Mission in Kosovo on the human rights situation in Kosovo since June 1999, UN Doc. CCPR/C/UNK/CO/1, 14 August 2006, § 17.
[emphasis in original]
Human Rights Committee
On numerous occasions, the Human Rights Committee has found violations of Article 9(3) of the 1966 International Covenant on Civil and Political Rights because of the delay in bringing arrested persons before a judge. 
See, e.g., Human Rights Committee, García Lanza de Netto v. Uruguay, Views, 3 April 1980, § 8; Buffo Carballal v. Uruguay, Views, 27 March 1981, § 13; Lafuente Peñarrieta and Others v. Bolivia, Views, 2 November 1987, § 16; Terán Jijón v. Ecuador, Views, 26 March 1992, § 5(3); Stephens v. Jamaica, Views, 18 October 1995, § 9(6); P. Grant v. Jamaica, Views, 22 March 1996, § 8(2).
In Martínez Portorreal v. the Dominican Republic in 1987, however, the Human Rights Committee ruled that 50 hours of detention did not justify a finding as to the alleged violation of Article 9(3) of the 1966 International Covenant on Civil and Political Rights. 
Human Rights Committee, Martínez Portorreal v. the Dominican Republic, Views, 5 November 1987, § 10(2).
Human Rights Committee
In Kurbanov v. Tajikistan in 2003, the Human Rights Committee stated:
[A]ccording to the judgment of 2 November 2001 by the Military Chamber of the Supreme Court, the author was detained on 5 May 2001. This information is not refuted by the State party’s contention that an arrest warrant was issued on 12 May 2001. In the absence of any further explanations from the State party, the Committee concludes that Mr. Kurbanov was detained for seven days without an arrest warrant and without being brought before a judge. The Committee concludes that his rights under article 9, paragraphs 2 and 3, of the [1966 International Covenant on Civil and Political Rights] have been violated. 
Human Rights Committee, Kurbanov v. Tajikistan, Views, 12 November 2003, § 7.2.
Human Rights Committee
In Nazarov v. Uzbekistan in 2004, the Human Rights Committee stated:
In relation to article 9(3) [of the 1966 International Covenant on Civil and Political Rights], the author notes that his arrest was confirmed by the relevant authority on 31 December 1997, 5 days after his detention, however it does not appear that the confirmation of the arrest involved the author being brought before a judge or other authorized judicial officer. In any event, the Committee does not consider that a period of 5 days could be considered “prompt” for the purpose of article 9(3). Accordingly, in the absence of an explanation from the State party, the Committee considers that the communication discloses a violation of article 9(3) by the State party. 
Human Rights Committee, Nazarov v. Uzbekistan, Views, 19 August 2004, § 6.2.
Human Rights Committee
In Khomidova v. Tajikistan in 2004, the Human Rights Committee held:
The author has claimed that her son was detained for one month, during which time … he was not brought promptly before a judge or other official officer authorized by law to exercise judicial power to review the legality of his detention. In the absence of any State party observations, due weight must be given to the author’s allegations. Accordingly, the Committee considers that the facts before it disclose a violation of article 9, paragraphs 1 and 2, of the [1966 International Covenant on Civil and Political Rights]. 
Human Rights Committee, Khomidova v. Tajikistan, Views, 25 August 2004, § 6.3.
Human Rights Committee
In Pagdayawon v. Philippines in 2004, the Human Rights Committee held:
As to the author’s claims under article 9 [of the 1966 International Covenant on Civil and Political Rights], in light of the State party’s failure to contest the factual submissions of the author, the Committee concludes that … after his arrest, [the author] was not brought promptly before a judge. Consequently, there has been a violation of article 9, paragraph[…] … 3, of the Covenant. 
Human Rights Committee, Pagdayawon v. Philippines, Views, 8 December 2004, § 5.5.
Human Rights Committee
In Marques de Morais v. Angola in 2005, the Human Rights Committee held:
As regards the author’s claim that he was not brought before a judge during the 40 days of detention, the Committee recalls that the right to be brought “promptly” before a judicial authority implies that delays must not exceed a few days, and that incommunicado detention as such may violate article 9, paragraph 3 [of the 1966 International Covenant on Civil and Political Rights]. It takes note of the author’s argument that his 10-day incommunicado detention, without access to a lawyer, adversely affected his right to be brought before a judge, and concludes that the facts before it disclose a violation of article 9, paragraph 3. In view of this finding, the Committee need not pronounce itself on the alleged violation of article 14, paragraph 3(b). 
Human Rights Committee, Marques de Morais v. Angola, Views, 18 April 2005, § 6.3.
Human Rights Committee
In Platonov v. Russian Federation in 2005, the Human Rights Committee stated:
2.2 The author contends that following his arrest, he was not given an opportunity to consult a lawyer, and was not brought before a judge or other officer authorized by law to exercise judicial power to allow him to challenge the legality of his detention.
7.2 The Committee notes that, after his arrest on 22 February 1999, the author’s pre-trial detention was approved by the public prosecutor, until the author was brought before a court and convicted on 31 January 2000. The Committee observes that article 9, paragraph 3 [of the 1966 International Covenant on Civil and Political Rights], is intended to bring the detention of a person charged with a criminal offense under judicial control and recalls that it is inherent to the proper exercise of judicial power, that it be exercised by an authority which is independent, objective and impartial in relation to the issues dealt with. In the circumstances of the instant case, the Committee is not satisfied that the public prosecutor could be characterized as having the institutional objectivity and impartiality necessary to be considered an “officer authorized to exercise judicial power” within the meaning of article 9, paragraph 3. The Committee therefore concludes that there has been a violation of this Covenant provision. 
Human Rights Committee, Platonov v. Russian Federation, Views, 16 November 2005, §§ 2.2 and 7.2.
Human Rights Committee
In Boimurodov v. Tajikistan in 2005, the Human Rights Committee noted:
2.1 On the evening of 10 October 2000, policemen came to the author’s apartment, where he lived with his son, and without presenting any search or arrest warrant, searched the premises and arrested his son. From 10 October until 1 November 2000, the author’s son was detained at a temporary detention centre, and was then moved to an investigation detention centre. For a total of 40 days he was held incommunicado; during this period none of his relatives knew where he was, and he had no access to a lawyer.
7.4 Further, the Committee recalls that the right to be brought “promptly” before a judicial authority implies that delays must not exceed a few days, and that incommunicado detention as such may violate article 9, paragraph 3 [of the 1966 International Covenant on Civil and Political Rights]. In the present case, the author’s son was detained incommunicado for 40 days. In the absence of any explanation from the State party, the Committee considers that the circumstances disclose a violation of article 9, paragraph 3. 
Human Rights Committee, Boimurodov v. Tajikistan, Views, 16 November 2005, §§ 2.1 and 7.4.
Human Rights Committee
In Bee and Obiang v. Equatorial Guinea in 2005, the Human Rights Committee held:
The Committee notes that the authors claim that the alleged victims were held for a period of two months without being notified of the reasons and without being brought before a court. In the absence of a reply from the State party contradicting these allegations, the Committee finds that they should be given their due weight, and that the facts described disclose a violation of the authors’ right to liberty and security of person and specifically the right not to be arbitrarily detained and imprisoned. Consequently, the Committee finds that article 9 of the [1966 International Covenant on Civil and Political Rights] has been violated. 
Human Rights Committee, Bee and Obiang v. Equatorial Guinea, Views, 30 November 2005, § 6.2.
Human Rights Committee
In Bandajevsky v. Belarus in 2006, the Human Rights Committee held:
… [T]he author claimed that he was arrested and detained for 23 days under Decree No. 21 (1997), without any possibility to challenge the lawfulness of his detention before a court, as those detained under this Decree are not allowed to do so. This allegation has not been refuted by the State party, which only noted that the author’s arrest and subsequent detention were subject to previous approval by a public prosecutor. The Committee recalls, first, that it is inherent to the proper exercise of judicial power, that it be exercised by an authority which is independent, objective and impartial in relation to the issues dealt with. It further considers that the public prosecutor cannot be characterized as having the institutional objectivity and impartiality to be considered as an “officer authorized to exercise judicial power” within the meaning of article 9, paragraph 3 [of the 1966 International Covenant on Civil and Political Rights]. In the circumstances, the Committee concludes that the author’s rights under article 9, paragraph 3, of the Covenant, were violated. 
Human Rights Committee, Bandajevsky v. Belarus, Views, 18 April 2006, § 10.3.
Human Rights Committee
In Sultanova v. Uzbekistan in 2006, the Human Rights Committee held:
The Committee notes that the author’s sons’ pre-trial detention was approved by the public prosecutor, and that there was no subsequent judicial review of the lawfulness of detention until they were brought before a court and sentenced on 24 July 1999 (Uigun) and 29 July 1999 (Oibek). The Committee observes that article 9, paragraph 3 [of the 1966 International Covenant on Civil and Political Rights], is intended to bring the detention of a person charged with a criminal offence under judicial control and recalls that it is inherent to the proper exercise of judicial power, that it be exercised by an authority which is independent, objective and impartial in relation to the issues dealt with. In the circumstances of the present case, the Committee is not satisfied that the public prosecutor may be characterized as having the institutional objectivity and impartiality necessary to be considered an “officer authorized to exercise judicial power” within the meaning of article 9, paragraph 3. The Committee therefore concludes that there has been a violation of this provision. 
Human Rights Committee, Sultanova v. Uzbekistan, Views, 19 April 2006, § 7.7.
Human Rights Committee
In Bousroual v. Algeria in 2006, the Human Rights Committee stated:
As to the alleged violation of article 9, paragraph 3 [of the 1966 International Covenant on Civil and Political Rights], the Committee recalls that the right to be brought “promptly” before a judicial authority implies that delays must not exceed a few days, and that incommunicado detention as such may violate article 9, paragraph 3. It takes note of the author’s argument that her husband was held incommunicado for 33 days by the judicial police before being transferred to the Territorial Centre on 3 July 1994, without any possibility of access to a lawyer during that period. It concludes that the facts before it disclose a violation of article 9, paragraph 3. 
Human Rights Committee, Bousroual v. Algeria, Views, 24 April 2006, § 9.6.
Human Rights Committee
In Ilombe and Shandwe v. Democratic Republic of the Congo in 2006, the Human Rights Committee held:
As to the alleged violation of article 9, paragraph 3 [of the 1966 International Covenant on Civil and Political Rights], the Committee takes note of the authors’ claim that they were detained for 9 and 11 months, respectively, without ever being brought before a judge. It recalls that article 9, paragraph 3, provides that anyone arrested or detained on a criminal charge has to be brought promptly before a judge or other officer authorized by law to exercise judicial power, and that pursuant to general comment No. 8 (16), such delays must not exceed a few days. In the absence of any reply from the State party which would challenge the authors’ allegations, the Committee concludes that the facts as submitted reveal a violation of article 9, paragraph 3, of the Covenant. 
Human Rights Committee, Ilombe and Shandwe v. Democratic Republic of the Congo, Views, 16 May 2006, § 6.3.
Human Rights Committee
In Taright et al. v. Algeria in 2006, the Human Rights Committee stated:
8.3 The Committee reaffirms its prior jurisprudence that pretrial detention should be the exception and that bail should be granted, except in situations where the likelihood exists that the accused would abscond or destroy evidence, influence witnesses or flee from the jurisdiction of the State party. The drafting history of article 9, paragraph 1, [of the 1966 International Covenant on Civil and Political Rights] 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. Further, continued pretrial detention following legal arrest must not only be lawful, but also reasonable in all respects. The Committee is of the view, however, that the State party has not sufficiently justified its arguments, either concerning the reasons for placing the authors in pretrial detention or concerning the complexity of the case such that it might justify keeping them in custody.
8.4 The Committee further considers that the authors’ responsibility for delays in the procedure due to their appeals has not been shown. It is of the view that the succession of expert reports was solely the result of a decision by the authorities and in the case of some of them on grounds that cannot be regarded as reasonable. It notes the decision of the Indictments Chamber in its ruling of 10 February 1998 to relieve the panel of three experts of their mission because of their excessive fees, although these experts had been appointed by the Chamber itself in a decision of 17 November 1996, following its rejection of the report of the first expert appointed on 30 March 1996. The Committee also notes that the first appeal by the authors on points of law led the Supreme Court to refer the case back to the Indictments Chamber because of violations of the rights of the defence relating to the expert reports. In the absence of further information or sufficiently convincing justification as to the need and reasonableness of keeping the authors in custody for three years and six months, the Committee finds that there was a violation of article 9, paragraphs 1 and 3. 
Human Rights Committee, Taright et al. v. Algeria, Views, 16 May 2006, §§ 8.3 and 8.4.
Human Rights Committee
In Medjnoune v. Algeria in 2006, the Human Rights Committee held:
As to the alleged violation of article 9, paragraph 3 [of the 1966 International Covenant on Civil and Political Rights], the Committee recalls that the right to be brought “promptly” before a judicial authority implies that any delay should be no more than a few days, and that incommunicado detention may in itself constitute a violation of article 9, paragraph 3. It takes note of the testimony of the author’s son that he was brought before the prosecutor on 4 and 6 March 2000, and the author’s argument that his son was held incommunicado for 218 days until he was brought before the examining magistrate on 2 May 2000, and that he has been awaiting trial for more than six years. In the author’s case, and in the absence of satisfactory explanations from the State party or any other justification in the file, the Committee finds that pretrial detention lasting more than five years constitutes a violation of the right under article 9, paragraph 3. 
Human Rights Committee, Medjnoune v. Algeria, Views, 9 August 2006, § 8.7.
Human Rights Committee
In Ashurov v. Uzbekistan in 2007, the Human Rights Committee held:
The Committee notes that the pre-trial detention of the author’s son was approved by the public prosecutor in May 2002, and that there was no subsequent judicial review of the lawfulness of his detention until April 2003.4 The Committee recalls that article 9, paragraph 3, [of the 1966 International Covenant on Civil and Political Rights] entitles a detained person charged with a criminal offence to judicial control of his/her detention. It is inherent in the proper exercise of judicial power that it be exercised by an authority which is independent, objective and impartial in relation to the issues dealt with. In the circumstances of the case, the Committee is not satisfied that the public prosecutor can be characterized as having the institutional objectivity and impartiality necessary to be considered an “officer authorized to exercise judicial power” within the meaning of article 9, paragraph 3, and concludes that there has been a violation of this provision. 
Human Rights Committee, Ashurov v. Uzbekistan, Views, 3 May 2007, § 6.5.
Human Rights Committee
In Abbassi v. Algeria in 2007, the Human Rights Committee stated:
According to article 9, paragraph 3 [of the 1966 International Covenant on Civil and Political Rights], anyone detained must be brought promptly before a judge or other officer authorized by law to exercise judicial power and is entitled to trial within a reasonable time or to release. The Committee recalls its jurisprudence that, in order to avoid a characterization of arbitrariness, detention should not continue beyond the period for which the State party can provide appropriate justification. In the present case, the author’s father was released from house arrest on 2 July 2003, in other words after almost six years. The State party has not given any justification for the length of the detention. The Committee concludes that the facts before it disclose a violation of article 9, paragraph 3. 
Human Rights Committee, Abbassi v. Algeria, Views, 21 June 2007, § 8.4.
Human Rights Committee
In Aber v. Algeria in 2007, the Human Rights Committee held:
With regard to the alleged violation of article 9, paragraph 3 [of the 1966 International Covenant on Civil and Political Rights], the Committee recalls that the right to be brought “promptly” before a judicial authority means within a few days and that incommunicado detention per se may be a violation of article 9, paragraph 3. It takes note of the State party’s argument that the author was tried before the Oran criminal court, which acquitted him on 4 February 1992. According to the State party, this decision was upheld on appeal by the Oran court in March 1992. However, the Committee notes that the author was meanwhile arrested on 9 February 1992, despite his acquittal, and kept in detention until 23 November 1995. The Committee also notes the author was never brought before a judge during his second period of detention from 11 October 1997 to 23 March 1998. The Committee considers that these two periods of detention, of three years and eight months and of five months respectively, constitute, in the author’s case and in the absence of satisfactory explanations from the State party or any other justification in the file, a violation of the right set forth in article 9, paragraph 3. 
Human Rights Committee, Aber v. Algeria, Views, 16 August 2007, § 7.6.
African Commission for Human and Peoples’ Rights
In a resolution adopted in 1992 on the right to recourse and fair trial, the African Commission for Human and Peoples’ Rights considered that the right to fair trial included, inter alia, the following: “Persons arrested or detained shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or be released.” 
African Commission for Human and Peoples’ Rights, Eleventh Session, Tunis, 2–9 March 1992, Resolution on the Right to Recourse and Fair Trial, § 2(c).
European Court of Human Rights
In its judgment in Schiesser v. Switzerland in 1979, the European Court of Human Rights held that the function of the judicial officer must be that of “reviewing the circumstances militating for and against detention, of deciding, by reference to legal criteria, whether there are reasons to justify detention and of ordering release if there are no such reasons”. 
European Court of Human Rights, Schiesser v. Switzerland, Judgment, 4 December 1979, § 31.
European Court of Human Rights
In its judgment in the De Jong, Baljet and Van den Brink case in 1984, the European Court of Human Rights held that detention without access to a court for a period exceeding six days was incompatible with Article 5(4) of the 1950 European Convention on Human Rights, which required that “the lawfulness of his detention shall be decided speedily”. 
European Court of Human Rights, De Jong, Baljet and Van den Brink case, Judgment, 22 May 1984, § 58.
European Court of Human Rights
In its judgment in the Brogan and Others case in 1988, the European Court of Human Rights held that the delay in bringing the arrested person before a judge under Article 5(3) of the 1950 European Convention on Human Rights must not exceed three days. It stated that while it accepted that the context of terrorism in Northern Ireland may, subject to the existence of adequate safeguards, have the effect of prolonging the period during which the authorities could lawfully keep persons suspected of serious terrorist offences in custody before bringing them before a judge, the circumstances could not justify dispensing with prompt judicial control altogether. The flexibility in the interpretation of “promptness” in Article 5(3) was very limited according to the Court. To attach such importance to the special features of the case as to justify so lengthy a period of detention without appearance before a judicial officer would be an unacceptably wide interpretation of the plain meaning of the word “promptly”, according to the Court. 
European Court of Human Rights, Brogan and Others case, Judgment, 29 November 1988, §§ 55–62.
European Court of Human Rights
In its judgment in Brannigan and McBride v. UK in 1993, the European Court of Human Rights held that the United Kingdom had not exceeded its margin of appreciation by derogating from its obligations under Article 5 of the 1950 European Convention on Human Rights to the extent that individuals suspected of terrorist offences were allowed to be held for up to seven days without judicial control because there were real guarantees against abuse and incommunicado detention. 
European Court of Human Rights, Brannigan and McBride v. UK, Judgment, 26 May 1993, §§ 61–66.
European Court of Human Rights
In its judgment in Aksoy v. Turkey in 1996, concerning the derogation by Turkey from numerous articles of the 1950 European Convention on Human Rights, including Article 5, on account of the threat to national security in the south-east of the country, the European Court of Human Rights held that it was for each contracting State to determine whether life was threatened by a public emergency and how far it was necessary to go in attempting to overcome the emergency. However, the national authorities did not enjoy an unlimited discretion and it was for the Court to rule whether States had gone beyond the extent strictly required by the exigencies of the situation. It held that although the investigation of terrorist offences undoubtedly presented the authorities with special problems, it could not accept that it was necessary to hold a suspect for 14 days without judicial intervention. 
European Court of Human Rights, Aksoy v. Turkey, Judgment, 18 December 1996, §§ 78 and 83–84.
Inter-American Court of Human Rights
In its judgment in the Castillo Petruzzi and Others case in 1999, the Inter-American Court of Human Rights held that “those Peruvian laws that allow the authorities to hold a person suspected of the crime of treason in preventive custody for 15 days, with the possibility of a 15-day extension, without bringing that person before a judicial authority”, were contrary to Article 7(5) of the 1969 American Convention on Human Rights. It consequently found: “The period of approximately 36 days that elapsed between the time of detention and the date on which the alleged victims were brought before a judicial authority is excessive and contrary to the provisions of the [1969 American Convention on Human Rights].” 
Inter-American Court of Human Rights, Castillo Petruzzi and Others case, Judgment, 30 May 1999, §§ 110–111.
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