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First Chapter
Arbitrary Detention and Emergency Law
In the light of International Standards of Human Rights
First:
Arbitrary Detention:
Arbitrary detention in its different forms is one of the serious violations which are wide spread.
It is well known that detention itself as a means of punishment is not a violation, as long as it has certain limits within the criminal justice standards.
But it becomes a violation if it exceeds these limits, whether the detention is managerial or judiciary.
There are reasons for the arbitrary detention of individuals as follows:
1- They performed one of their major rights as stated in international agreements and as stated in the Universal Declaration of Human Rights like the right of freedom of opinion and expression, the right to form assemblies and the right of the individual to leave his country and return.
2- They could not make use of the major right for a fair trial, and as a result they were detained without a detention warrant, were not faced with accusations or were not trialed by an independent judiciary body.
Or they were not allowed to appoint a lawyer.
Taking into consideration that sometimes the detainees are subject to solitary confinement for months and even for years if it wasn't for a non-specified period.
3- They are still confined even after doing their sentence.
4- The increase of arbitrary detention which is controversial, especially asylum seekers' detention.
These four reasons conflicts with the rights given by International Legislation of freedom and personal safety.
Arbitrary detention is defined as deprivation of freedom without a legal instrument.
The Universal Declaration of Human Rights states in its act number 9 that: "No one can be detained, arrested or put to exile arbitrary".
It also states in its 10th act that: "For every human being- as being equal to everybody else- the right that his case be produced to an independent and neutral court, to be looked at fairly and publicly, to be decided on his rights and obligations and in every criminal accusation he is faced with".
In act number 9 of the international accord for civil and political rights, a lengthy description of the right of freedom and personal safety as follows:
1- Every individual has the right of freedom and personal safety.
No body should be arrested or detained arbitrary.
No body should be deprived of his freedom, excepting for reasons stated in the law and according to the procedures written for that law.
2- The person detained should be told the reasons of the detention and the charges set against him.
3- The detainee or defendant should be faced as quick as possible with penal charges and referred to one of the judges or employees who are legally responsible.
He should have the right to be put in front of a court in a short instance or to be released.
Detention of the defendants waiting to be trialed is not supposed to be the general rule.
But conditions can be put to guarantee that they come to court in any level of the legal procedures levels, and to guarantee the execution of the verdict when issued.
4- For everyone who has been deprived of his freedom by apprehension or detention , has the right to get back to court so that it would be decided if his detention is legal and to release him if the detention is illegal.
5- Every one who has been subject to an illegal apprehension or detention has the right to get compensation.
Usually arbitrary detention- as an illegal procedure - is related to a number of other serious violations like the violation of the right of living, forced disappearance, violation of the right to a fair trial, torture and other humiliating crimes.
In addition to all the rights provided for detainees and prisoners.
Secondly:
Conditions and international standards to declare the emergency state:
Procedural conditions to declare a state of emergency
The human rights law outlined a number of conditions that should be applied when declaring a state of emergency.
These conditions state that the country has to declare a state of emergency formally (act number ¼), to inform other participating countries immediately(act number ¾), act number ¼ from the international accord of civil and political rights states the obligation of the formalization of the declaration of the emergency state.
Act number ¾ from the international accord states that the countries participating in the accord should immediately inform other participating countries, if they formally declare a state of emergency.
The informing should include the rules that the country in unwilling to commit to, and the reasons that forced it to do so.
Also the other participating countries should be informed of the date of the end of the state of emergency.
In both cases the informative act should be done through the UN Secretary General.
The objective conditions to declare a state of emergency:
Act number 4 from the international accord of civil and political rights includes two kinds of civil and political rights: The first kind: is concerned with a number of rights in the acts 6, 7, 8 (sections 1, 2) 11,15,16,18 from the accord. These rights- in its nature- are not to be taken lightly under any conditions. The second kind includes the other rights that were stated in the International accord which enables the countries who declared an emergency state formally to take- in the narrowest scope -exceptional procedures that violates these rights to face the dangerous state that endangers the country, under the condition that this is under certain rules and measures. The following are details describing these two kinds of civil and political rights:
The first kind: The rights that can not be violated in a state of emergency:
Act number 2/4 from the international accord of civil and political rights states that the rights states in the acts numbered 6, 7, 8(sections 1, 2)11, 15, 16, 18 from the accord can not be violated at all under any emergency state.
- The right of living (act number 6)
- To be freed of torture and other kinds of cruel, inhumane, or degrading treatment (act number 7).
- To be freed of slavery (act number 8).
- No one should be put to confinement solely because he can not commit to a written agreement.
- To prohibit the application of criminal law with a retroactive effect (act number 15).
- The right to a legal personality (act number 16).
- The freedom of thought, conscience, and religion (act number 18).
The practical application confirms that some governments-including the Egyptian government- concedes the stated measures and rules while applying the emergency law.
This is done through violating the unapproachable rights even in the light of exceptional states.
Nevertheless there is a growing tendency to reinforce and extend the basic rights that can not be restricted during an emergency state. On top of these unapproachable rights is the right to a fair trial.
It is noticed that in the light of the emergency law a lot of authorities violate this right abominably, so that the fairness standard is hindered through exceptional trials whose verdicts are not applicable for repeal.
The second kind: The rights that are subject for restriction in an emergency state:
Countries who formally declare an emergency state - in a limited scope- can take exceptional measures that involve a number of civil and political rights, which their restriction- as their nature goes- might be necessary to overcome sudden or exceptional dangers on the states' lives.
An exception from this are the rights that can not be restricted or approached in the emergency state which are stated in act number ¼ from the international accord for civil and political rights, or these other rights that human rights committees initiatives in the UN decided the non-probability of their restriction.
The numbers of rights that can be restricted in the case of emergency and are stated in the act number 2/4 from the international accord are the following rights:
- Freedom of travel and movement (act number 21).
- The sanctity of privacy and the secrecy of correspondence.
(act number 17).
- Freedom of opinion and expression (act number 19).
- The right of peaceful gathering.
- The right to form committees and unions (act number 22).
- The right to participate in public affairs (act number 25).
That way the emergency state is an exceptional and temporary state by nature because of the restrictions it puts on essential human rights, which violate these rights.
The mechanism of the European accord for human rights (the European Committee and the European court for human rights) settled on a number of legal standards that fulfill the equity basis between the emergency procedures and the danger that faces the nation.
These standards acquired the strength of a settled international custom, and it became a representative of a three components measurement to decide on the urgency to apply the emergency procedure.
And these standards are:
1. Exceptional procedures should aim at decreasing or eliminating the serious states that endanger the nation's livelihood.
2. The followed procedures in ordinary times should be proven to fail to face serious states in the nation.
3. That there are other emergency procedures that have a lesser effect on human rights and is capable of fixing the problem at hand.
Last but not least the emergency procedures should not execute any discrimination whether based on gender, color, religion or social status.
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