Prohibition on Arbitrary Detention

Detaining an individual without judgment is prohibited by all international human rights texts, as well as the criminal laws of most States. This point is set forth clearly in Article 9 of the 1948 Universal Declaration of Human Rights, and it is echoed and expanded by Article 9 of the 1966 International Covenant on Civil and Political Rights (ICCPR).

• All individuals have the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention, or deprived of his or her liberty, except on such grounds and in accordance with such procedures as are established by law.
• Any individual who is arrested must be informed, at the time of arrest, of the reasons for the arrest, and must be promptly informed of any charges against him or her.
• Any individual arrested or detained on a criminal charge must be brought promptly before a judge or other officer authorized by law to exercise judicial power. The individual must be tried within a reasonable amount of time or must be released. Detaining people in custody while awaiting trial should be the exception, not the rule. The release of persons being held may be conditional upon certain guarantees, such as their appearing for trial and other parts of the proceedings.
• A release may also be requested if the investigation is completed and there is no risk that the accused will hinder the trial proceedings.
• All individuals deprived of liberty, by arrest or detention, are entitled to take proceedings before a court, in order that the court may decide without delay on the lawfulness of their detention and order their release if the detention is unlawful.
• Any person who has been the victim of unlawful arrest or detention has an enforceable right to compensation.

Limits to Provisional Detention

Most States provide the possibility of provisional or preventive detention for individuals suspected of having committed a crime for which they have not yet been judged. This decision should be taken by the judicial authority whose role it is to facilitate the inquiry or prevent the individuals from fleeing.

Specific time frames are established for provisional detention by the criminal laws of the country in question. At the end of the legislated time, the detained person must be released automatically, unless he or she has been charged with an offence or an official and justified decision has been taken to prolong the period of provisional detention.

Minimum Material Conditions of Detention

Article 10 of the ICCPR states:

1. All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.
2. 1. Accused persons shall, save in exceptional circumstances, be segregated from convicted persons and shall be subject to separate treatment appropriate to their status as unconvicted persons;
3. Accused juvenile persons shall be separated from adults and brought as speedily as possible for adjudication.
4. The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation.

The set of regulations for the Standard Minimum Rules for the Treatment of Prisoners are set forth in Resolution 2076 of the UN Economic and Social Council, which completes and expands Article 10 of the ICCPR. The Standard Minimum Rules are not binding on States since they are only presented in a UN resolution. Hence, from a legal point of view, it would be feasible for national authorities to challenge these standards. In practice, however, such a challenge would be highly questionable since the standards set forth do not present an ideal set of rules but rather the minimum acceptable threshold for treating detainees.

Furthermore, these principles were reiterated, in similar form, in the 1988 Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (UN General Assembly Resolution 43/173, of 9 December 1988) and in the 1990 Basic Principles for the Treatment of Prisoners (UN General Assembly Resolution 45/111), by which we can conclude that these norms have become customary and are therefore binding upon all States. They must therefore serve as a standard of reference and be defended through concrete relief or advocacy actions.

The minimum conditions established by ECOSOC Resolution 2076, which must be respected in times of crisis, emergency, or conflict, as well as during times of peace, are the following:

• Rule 7—Holding a register: In every place where persons are imprisoned, a bound registration book with numbered pages must be kept, indicating for each prisoner his or her identity; the reasons for his or her detention and the authority that decided it; and the day and hour of his or her admission and release. No person shall be received in an institution without a valid commitment (or detention) order, the details of which shall have been previously entered in the register.
• Rule 8—Separation of categories of prisoners: The different categories of prisoners must be held in separate institutions or parts of institutions. For instance, young prisoners shall be separate from adults; untried prisoners shall be separate from convicted prisoners; men and women must be detained in separate institutions, or at least in entirely separate premises; and the reason for the detention should be taken into account.
• Rules 9 to 14—Accommodation: All accommodation provided, in particular sleeping accommodations, must meet the health requirements, including air, minimum floor space, lighting, heating, ventilation, and the necessary sanitary equipment and installations to ensure a decent and dignified life.
• Rules 15 to 20—Living conditions: Prisoners must be able to maintain their self-respect, and must therefore be able to wash themselves, wear clean clothes, have individual underclothing, eat food in sufficient quantity, and be able to exercise.
• Rules 21 to 26—Medical services: See section 3: medical services in prison settings.
• Rules 27 to 32—Discipline and punishment: Order and discipline may be maintained inside detention institutions but must always be enforced according to written laws or internal regulations that clearly set forth which conduct constitutes a disciplinary offense, the types and duration of punishment that may be inflicted, and the authority competent to impose such punishment. Corporal punishment and all cruel, inhuman, or degrading punishments are prohibited as punishment for disciplinary offenses. Punishment by close confinement or a reduction of diet shall never be inflicted unless the medical officer has examined the prisoner and certified in writing that he or she is fit to sustain it. The medical officer shall visit prisoners undergoing disciplinary punishment every day.
• Rules 33 and 34—Instruments of restraint
• Rules 35 and 36—Information for, and complaints by, prisoners
• Rules 37 to 39—Contact with the outside world
• Rules 40 to 42—Books and religion
• Rule 43—Retention of prisoners’ property
• Rules 44 and 45—Notification of death, illness, transfer, etc.
• Rules 46 to 55—Personnel working for the detention institution and inspection

Special Conditions of Detention

Additional rules are applicable to specific categories of detainees or to especially vulnerable individuals such as children, mentally or physically ill persons, or pregnant women. These rules are also included in the Standard Minimum Rules for the Treatment of Prisoners (Resolution 2076 of the Economic and Social Council).

• Rules 56 to 81—Sentenced prisoners: These rules serve as a reminder that being deprived of liberty is their punishment, the purpose and justification of which are to allow the offenders to improve themselves. The means of detention must not create new suffering and should ultimately enable the individual to reinsert him- or herself into society. The rules suggest concrete measures to put these principles into practice, in terms of treatment of the detainees, their work, education, and social relations.
• Rules 82 and 83—Insane and mentally abnormal prisoners: Persons who are found to be mentally ill shall not be detained in prisons and should be taken to mental institutions as soon as possible. The medical or psychiatric service of the penal institutions shall provide for the psychiatric treatment of all other prisoners who are in need of such treatment.
• Rules 84 to 93—Prisoners under arrest or awaiting trial; and Rule 95—Persons arrested or detained without charge: All persons who have not yet been convicted must be presumed innocent and treated as such. Untried prisoners shall be kept separate from convicted prisoners, and young untried prisoners shall be kept separate from adults. Untried prisoners shall be allowed to keep their own clothing. If they wear prison dress, it shall be different from that supplied to convicted prisoners. They must be offered the opportunity to work, but are not required to do so. If they work, they shall be paid for it.

An untried prisoner shall be allowed to inform his or her family and lawyer immediately and shall be given all reasonable facilities to communicate with them, including the possibility to communicate in confidence with his or her lawyer. No measures of reeducation or rehabilitation may be imposed on persons not convicted of a criminal offense.

• Rule 94—Civil prisoners: In countries where the law allows individuals to be imprisoned for debt, persons so imprisoned shall be treated no less favorably than untried prisoners, with the exception that they may be required to work to pay off their debts.
• Rules 8a, 23, and 53—Women: Women and men must be detained in separate institutions, as far as possible. In an institution that houses men and women, the whole of the premises allocated to women shall be entirely separate and shall be under the authority of a responsible woman officer.

Women prisoners shall be attended to and supervised only by women officers. This does not, however, preclude male members of the staff, particularly doctors and teachers, from carrying out their professional duties in institutions or parts of institutions set aside for women.

In women’s institutions there shall be special accommodation for all necessary pre- and postnatal care and treatment. Arrangements shall be made, wherever possible, for children to be born in a civilian hospital. If a child is born in prison, this fact shall not be mentioned in the birth certificate.

• Children: The principle according to which young prisoners shall be kept separate from adults is reaffirmed in all relevant legal documents, such as Rules 8.d and 85 of the Standard Minimum Rules for the Treatment of Prisoners (Resolution 2076 of the Economic and Social Council), and Article 10.2.b of the ICCPR.

The 1989 International Convention on the Rights of the Child (CRC) adds several important elements to this rule:

1. No child shall be subjected to torture or other cruel, inhuman, or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age.
2. No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention, or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time.
3. Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner that takes into account the needs of persons of his or her age (namely, in terms of food and education). In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child’s best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances.
4. Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent, and impartial authority, and to a prompt decision on any such action (Art. 37 of CRC).

On 29 November 1985, the UN General Assembly adopted the UN Standard Minimum Rules for the Administration of Juvenile Justice (known as the “Beijing Rules,” UN General Assembly Resolution 40/33), which further elaborates on the principles relating to criminal responsibility of minors and the principles governing sanctions enacted against them. These guidelines were complemented with the adoption of the UN Rules for the Protection of Juveniles Deprived of Their Liberty (UN General Assembly Resolution 45/113, of 14 December 1990). ▸ Children

Medical Services and Medical Ethics in Prison Settings

Various rules make up the framework for carrying out medical services in detention centers or prisons. Deprivation of liberty sometimes has grave consequences on the health of detainees, as well as on the very notion of medical practice. The rules that the medical personnel must follow are guided by the respect for medical ethics and by the standards imposed on medical services in prison settings.

The Principles of Medical Ethics Relevant to the Role of Health Personnel, Particularly Physicians, in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Resolution 37/194) was adopted by the UN General Assembly on 18 December 1982:

• These principles establish that health personnel charged with the medical care of prisoners and detainees have a duty to provide them with treatment and care of the same quality and standard as is afforded to those who are not imprisoned or detained (principle 1).
• They provide a broad definition of medical ethics and therefore of the responsibility of physicians, since they establish that “it is a gross contravention of medical ethics, as well as an offence under applicable international instruments, for health personnel, particularly physicians, to engage, actively or passively, in acts that constitute participation in, complicity in, incitement to or attempts to commit torture or other cruel, inhuman or degrading treatment or punishment” (principle 2). This text indicates that a physician’s presence in a place of detention may place him or her in the position of a passive accomplice of inhuman acts committed against the detainees. Medical personnel can only break with this passive complicity by taking concrete measures of alertness and prevention, in addition to the normal medical procedures.

Other organizations, such as the World Health Organization (WHO) and the World Medical Association (WMA) also adopt guidelines and declarations relating to specific aspects of practicing medicine in prison settings (concerning, e.g., mandatory AIDS testing). States are not bound by these texts; however, humanitarian organizations may use them as standards of reference for their field operations.

Finally, the Standard Minimum Rules for the Treatment of Prisoners (ECOSOC Resolution 2076), presented earlier, sets forth the rights and duties governing medical services in places of detention:

• Rule 22: At every penitentiary institution, at least one qualified medical officer shall be available. In the absence of a physician certified by the penitentiary administration, it is important that the substitute medical personnel have knowledge of the responsibilities, beyond straightforward care, to which physicians are beholden in prison settings.
• Rule 23 concerns care for women; see section 2, earlier.
• Rules 24 and 25.1: The medical officer must examine every prisoner as soon as he or she is admitted and, being responsible for the physical and mental health of the prisoners, shall see all sick prisoners every day, as well as all those complaining of illness, and any to whom his or her attention is specially directed.
• Rule 25.2: The medical officer shall report to the director whenever he or she considers that a prisoner’s physical or mental health has been, or will be, injuriously affected by continued imprisonment or by any condition of imprisonment.
• Rule 26: The medical officer shall regularly inspect and advise the director on issues of food, hygiene, and other issues of sanitation, such as heating, lighting, and ventilation, and the quality and cleanliness of the bedding. The prison director must take the reports and advice of the medical officer into consideration, as prescribed under Articles 25 and 26.
• Rule 32: The medical officer must examine any prisoner who is going to undergo punishment and must certify in writing that he or she is fit to sustain it. The medical officer must also daily visit prisoners undergoing such punishments and advise the director if the punishment should be terminated or altered on grounds of physical or mental health.
• The specific rules that protect medical services and ethics in times of armed conflict, addressing medical care both for prisoners of war and for the population as a whole, are detailed in the entries on ▸ Medical ethics ▸ P risoners of war; Wounded and sick persons .

International Armed Conflicts

Noninternational Armed Conflicts

The distinction between civilians and combatants is more complex during non-international armed conflicts. The 1977 Additional Protocol to the Geneva Conventions Relating to the Protection of Victims of Non-International Armed Conflicts (Additional Protocol II) does not define different categories of detained persons when setting forth the guarantees that must be respected. Instead, it applies consistently to “persons deprived of their liberty for reasons related to the armed conflict” (APII Art. 5.1).

The rights it protects are as a minimum applicable to both detained and interned persons and are coupled with obligations that the detaining powers must respect.

Detained individuals who come under the category of combatants may be able to benefit from the status of prisoners of war or the guarantees attached to that status, according to the Third Geneva Convention (GCIII Arts. 4.a.1–3, 4.a.6), following specific conditions of reciprocity and according to special agreements signed between the parties to the conflict. This status is thus not granted automatically. It would be the result of a reciprocal agreement signed between the parties to the internal conflict.

▸ Civilians ▸ Combatants ▸ Non-state armed groups ▸ Prisoners of war ▸ Special agreement