Derogation in Times of Emergency

• Extraordinary situations such as natural disasters, riots, acts of

terrorism or wars confront states with a challenge, if not crisis.
Such situations raise the question as to what measures states
may take in response, particularly whether extraordinary
circumstances justify or even require extraordinary powers.

• Preserving the state and public order and security in times of

crisis, it may be argued, calls for absolute powers.

• However, this option is problematic as it may easily result in

authoritarianism and abuse of power.

• There are numerous examples where states have abused

emergency powers, turning what should have been a response to
1
an extraordinary situation into the norm.
• At the other end of the spectrum would be a response that
limits states to using powers within the existing rights
framework.

• The fact that qualified rights already permit balancing and the
risk of abuse are good arguments in favour of such a position.

• International human rights law, however, has essentially chosen

a compromise solution, providing states with the option of
taking special measures

• States may derogate from certain rights, but such derogation is

subject to limitations and safeguards.

• This model is followed in key treaties, such as the ICCPR, the

ACHR and the ECHR. 2
Any derogation presupposes the existence of a ‘public
emergency’.

This has been defined as a situation that ‘threatens the life of

the nation’.

The ECtHR, in its first judgment in Lawless v. Ireland, described

it as ‘an exceptional situation of crisis or emergency which
affects the whole population and constitutes a threat to the
organised life of the community of which the State is
composed’.

The jurisprudence on whether or not such a situation exists has

been characterised by considerable deference, particularly in
the European context where states have been granted a wide
margin of appreciation in the determination of what constitutes
3
an emergency.
Several rights are non-derogable, and must therefore be
respected fully in times of emergency.

Treaties explicitly set out several non-derogable rights, such as

the right to life (with the exception of lawful acts of war), the
prohibition of torture and other ill-treatment, the prohibition of
slavery and non-retroactivity of the law.

In addition, human rights treaty bodies and courts, have

considerably broadened the scope of non-derogable rights.

It is also recognised that the principle of non-discrimination is

largely non-derogable.

This jurisprudence substantially limits the scope of rights that

may be derogated from.
4
Even where a right is derogable, any measures taken are
subject to a proportionality test.

* Restrictions must be strictly necessary to counter the threat

(not blanket in scope), have a link to the threat, be limited in
time and non-discriminatory.

In addition, where states invoke emergencies, for example to

justify prolonged detention without judicial supervision,
adequate safeguards against abuse must be in place.

States of emergency are also subject to important formal

requirements.

5
States need to proclaim a state of emergency, specify the
rights derogated from, and notify the human rights treaty
bodies concerned.

In the absence of such notification, treaty bodies may treat the

state as if it has not derogated from the rights concerned,
thereby effectively preventing a state from invoking
derogation as justification for a breach.

Further, a state of emergency must be lifted as soon as there is

no longer a threat to the life of the nation, as it is considered a
temporary, extraordinary measure.

However, there are considerable concerns that states invoke

emergency rationales, either explicitly or implicitly, by using
the language of security and counter-terrorism to undermine
human rights. 6
Scope of Application

The scope of application of a human rights treaty is confined to a

state’s jurisdiction.

This is understood to be primarily territorial, which means that

states have to respect and ensure the rights of all individuals
within their territory.

In principle, this applies to ‘everyone’ within the state territory

without distinction, with the exception of rights which by their
nature belong to members of certain groups, such as citizens’
rights and the rights of minorities….

7
‘Developing countries, with due regard to human rights and their
national economy, may determine to what extent they would
guarantee the economic rights recognized in the present
Covenant to non-nationals’.

There are a growing number of situations where the conduct of

states outside their territory has a bearing on human rights,
which raises the question of the extraterritorial application of
human rights treaties.

However, treaty bodies and courts have widened the scope of

application, largely using the test of ‘effective control’ to
determine whether the existing degree of control justifies
bringing certain conduct within the jurisdiction of the state
concerned

8
Implementation

Upon becoming party to a treaty a state commits itself to give

effect to a series of obligations in the domestic sphere (and
extraterritorially in so far as applicable).

Treaties, or customary international law for that matter, are

built on the assumption that states will comply with their
obligations.

Compliance denotes the degree to which a state succeeds in

respecting and ensuring human rights.

It also refers to a phenomenon of international relations and

politics that describes complex processes affecting a state’s
ability and willingness to meet its obligations under 9
Yet international law does not prescribe a particular mode of
incorporation; what matters is that states fulfil their
obligations.

Modes of incorporation are traditionally distinguished as

 monism, where international law and domestic law are part

of the same legal order and the former takes precedence
over the latter, mainly applicable in civil law countries,

 and dualism, where international law is separate and not

directly applicable in the domestic order unless
incorporated, a mode mainly followed in common law
countries.

10
Civil & Political Rights
“Civil and political rights are a class of
rights that protect individuals' freedom
from infringement violation) by
governments, social organizations, and
private individuals.

They ensure one's entitlement to participate

in the civil and political life of society and
the state without discrimination or
repression.”
www.ohchr.org
11
Civil and political rights emerged out of fundamental rights conceptions protecting life,
integrity, liberty and opinion of a person against an overbearing state.

The 20th century demonstrated that these rights were at risk in multiple contexts, ranging
from genocidal campaigns, dictatorships and arbitrary law-enforcement to armed conflict
and a breakdown of law and order.

Rights such as the right to life and freedom from ill-treatment may also be at risk from
other sources, namely non-state actors in the domestic and other spheres, ...

While international human rights standards have been developed to provide adequate
protection in these circumstances, their implementation requires certain structures
without which it is unlikely that core civil and political rights can be effectively protected

12
 While international human rights law does
not mandate that a particular political
system be in place, it is difficult to see
 The rule of law, how rights can be effectively protected
The administration without having at least a minimum of
of justice
checks and balances.
Democratic
institutions are key
components in this
regard.
Indeed, there are deep-seated structural
factors that can, and have, undermined
the effective protection of rights in all
systems.
13
 Social exclusion, inequality and
discrimination in particular ...
 The rule of law, significantly increase vulnerability,
The administration
of justice
as evident in the higher likelihood of
Democratic
persons from certain ethnic or class
institutions are key
components in this
or national backgrounds being
regard.
subject to arbitrary arrest, detention,
ill-treatment and other violations.

14
THIS CHAPTER IDENTIFIES THE NORMATIVE CONTENT OF:

the right to life,

the prohibition of torture and other cruel, inhuman or
degrading treatment or punishment (other ill-treatment),
the right to liberty and security,
the right to a fair trial,
particularly freedom of expression,
The right not be discriminated …

15
 1. The Right To Life
Nobody, including the Government, can try to end your life.

It also means the Government should take appropriate

measures to safeguard life by making laws to protect you and, in
some circumstances, by taking steps to protect you if your life is
at risk

Life is at risk both through a state’s use of force and its failure to
provide adequate protection from threats to life.
The use of dangerous force comprises the deliberate killing of
individuals or groups, including targeted extra-judicial
executions, torturing to death in custody, enforced
disappearances (where they result in murder), (unlawful)
killings in armed conflicts, massacres or even genocides.

Members of marginalized groups and opposition movements,

as well as journalists, have been particularly vulnerable to
extrajudicial killings.

17
… there is a growing trend towards the abolition of judicially
sanctioned killing, i.e. capital punishment…

Force may also be used without the direct intention to kill but in
the knowledge that this may be the outcome, for example the
use of live-bomb to quell a protest.

The state may also accidentally cause the death of persons

through its agents, for example soldiers mistakenly shooting a
passer-by during an exercise...

18
Individuals and groups face numerous threats to
their life from sources other than the state

This is often most pronounced during armed

conflict where rebel groups may be responsible for
more killings than governmental forces

Life is also threatened during peace-time, both in

relation to acts of violence, such as deadly
domestic violence…

19
• Legal Sources of Right to Life

The right to life is recognised in all major

international and regional human rights
instruments. Its mention as the first
substantive right in most of these treaties
reflects its fundamental importance.

The right not to be arbitrarily deprived of

one’s life is considered to have attained the
status of customary international law and to
be non-derogable. 20
Under article 2(2) of the European Convention on Human
Rights (ECHR), the use of such force may be justified

(1) ‘in defence of any person from unlawful violence’;

(2) ‘in order to effect a lawful arrest or to prevent the
escape of a person lawfully detained’;
(3) ‘in action lawfully taken for the purpose of quelling a
riot or insurrection’.

Killings that are lawful under international humanitarian

law are recognised as a further exception.

As a general rule the use of force must be regulated by

law and must be exceptional 21
The right to life is recognised in all major
international and regional human rights
instruments.

Its mention as the first substantive right in

most of these treaties reflects its
fundamental importance.

The right not to be arbitrarily deprived of

one’s life is considered to have attained
the status of customary international law
and to be non-derogable.

The taking of life may also constitute an

international crime, namely genocide,
crimes against humanity, murder,
extermination, ... 22
The Prohibition of Arbitrary Deprivation of
Life
Even though the right to life has repeatedly been referred to as a
‘fundamental right’, it is not absolute in so far as international treaties such
as:

the International Covenant on Civil and Political Rights (ICCPR),

American Convention on Human Rights (ACHR)
African Charter on Human and Peoples’ Rights (ACHPR)

permit the use of force resulting in the deprivation of life that is not
‘arbitrary’.

Under article 2(2) of the European Convention on

Human Rights (ECHR), the use of such force may be 23
The Cases That The Use Of Such Force May Be Justified
According To Article 2(2) Of The European Convention
On Human Rights (ECHR)

‘in defence of any person from unlawful violence’;

‘in order to effect a lawful arrest or to prevent the

escape of a person lawfully detained’;

‘in action lawfully taken for the purpose of quelling a

riot or insurrection’.

24
Killings that are lawful under international humanitarian law are recognised
as a further exception. As a general rule the use of force must be regulated
by law and must be exceptional.

Where its use may be justifiable it must be absolutely necessary and strictly
proportionate to the legitimate aim sought.

This means that there are no less serious alternatives available to achieve
the aim. It requires that the means used, i.e. dangerous force, is not out of
proportion to the aim pursued, for example shooting to arrest an unarmed
man who has committed a petty theft.

25
The Death Penalty under International Law

The ICCPR, and the ACHR explicitly acknowledge the death penalty as an
exception to the right to life, and the death penalty has been interpreted
as not constituting an ‘arbitrary’ deprivation of life...

ICCPR- Article 6(6). Nothing in this article shall be invoked to delay or to

prevent the abolition of capital punishment by any State Party to the
present Covenant.

This objective has found expression at the international level in the Second
Optional Protocol to the ICCPR, aiming at the abolition of the death
penalty, which had eighty-seven parties as of 27 March 2019.

26
• At the regional level, developments are most advanced in the Americas
and Europe, as reflected in the Protocol to the ACHR to Abolish the
Death Penalty and Protocols no. 6 and no. 13 to the ECHR.

The latter two protocols successively and effectively abolished the death
penalty in the European system.

• The African Commission on Human and Peoples’ Rights (ACmHPR)

called for a moratorium on the death penalty, and the majority of
African states have either abolished capital punishment or observe a
moratorium-pause.

Despite this trend the death penalty as such is arguably not yet unlawful
under present international human rights law.
27
• Where it is still imposed and applied, however, the death penalty is
subject to a series of conditions, particularly procedural safeguards that
must be complied with strictly for it to be lawful.

• It may only be imposed for the most serious crimes and must not be
mandatory because a court has to be able to consider mitigating or
special circumstances when imposing it as a punishment.

• Certain categories of persons should be exempt from the death penalty,

namely children who were under eighteen years of age at the time
when the crime was committed and mentally ill persons.

• A person may only be sentenced to death following a fair trial …

28
• The imposition of the death penalty must also not be
discriminatory.

• Where foreign nationals face the death penalty they need to

be granted consular assistance.

These conditions, which reflect the serious, irreversible nature

of the death penalty, raise the threshold in terms of crimes,
categories of persons and nature of trials, which, taken
together, considerably limit the scope for the punishment to be
lawfully imposed.
29
• The death penalty has a close relationship with the prohibition
of torture and other cruel, inhuman or degrading treatment or
punishment.

• Its imposition following an unfair trial has been considered

inhuman treatment.

• Separately, the conditions of waiting for one’s execution

(death row phenomenon) may in certain circumstances
amount to inhuman treatment.

30
State Obligations Providing Protection against
Threats to Life

CRIMINALIZ
REGULATE MEASURE MINIMIZE PROVIDE
E

(1) regulate the (2) take measures (3) minimize the (4) criminalize, (5) provide
protection of life to protect an risk of potentially investigate, effective remedies
and prohibit the individual or lethal hazards- prosecute and in case of breach.
arbitrary persons at risk; risks punish unjustified
deprivation of life killings;

31
Providing Protection against Threats to Life

… it is recognised that states have a ‘primary

duty ... to put in place a legislative and
administrative framework designed to provide
effective deterrence against threats to the right
to life’.

This includes subjecting unjustified killings to

proportionate criminal and disciplinary sanctions
as appropriate.

States must also ensure that related laws, such32

Highlights of Right to Life

 The right to life is widely recognized as a fundamental human right,

foundational to the enjoyment of all other rights.

 It is enshrined in numerous international, regional, and national legal

instruments, reflecting its status as a core principle of human dignity and
security.

 Legal Basis
1.International Law:
1.Universal Declaration of Human Rights (UDHR), 1948: Article 3 states,
"Everyone has the right to life, liberty and security of person." Though
not legally binding, the UDHR sets a moral and political standard.
33
2. International Covenant on Civil and Political Rights (ICCPR),
1966: Article 6(1) declares, "Every human being has the
inherent right to life. This right shall be protected by law. No
one shall be arbitrarily deprived of his life."

3. Convention on the Rights of the Child (CRC), 1989: Article 6

recognizes every child’s inherent right to life and obliges
states to ensure their survival and development.

34
 Regional Instruments:
1.European Convention on Human Rights (ECHR), 1950: Article 2(1)
provides, "Everyone’s right to life shall be protected by law."
Exceptions are narrowly defined (e.g., lawful self-defense)

2.African Charter on Human and Peoples’ Rights (ACHPR), 1981:

Article 4 asserts, "Human beings are inviolable. Every human being
shall be entitled to respect for his life and the integrity of his
person.”

35
 National Constitutions: Many countries enshrine the right to life in
their constitutions

The right to life in the Turkish Constitution is explicitly protected under

Article 17, titled "Personal Inviolability, Corporeal and Spiritual Existence
of the Individual."

This provision reflects Turkey’s commitment to safeguarding life as a

fundamental human right, consistent with its obligations under
international law, such as the European Convention on Human Rights
(ECHR), to which Turkey is a party.

36
Article 17 of the Turkish Constitution

• Paragraph 1: "Everyone has the right to life and the right to protect
and improve his/her corporeal and spiritual existence.”

• Paragraph 2: "The corporeal integrity of the individual shall not be

violated except under medical necessity and in cases prescribed by
law; and shall not be subjected to scientific or medical experiments
without his/her consent.”

• Paragraph 3: "No one shall be subjected to torture or ill-treatment;

no one shall be subjected to penalties or treatment incompatible
with human dignity."
Scope and Interpretation of Right to Life

• Negative Obligation: States must refrain from arbitrarily taking life

(e.g., extrajudicial killings, genocide).

• Positive Obligation: States must protect life by enacting laws,

preventing foreseeable threats (e.g., violence, preventable deaths),
and investigating violations.

The European Court of Human Rights (ECtHR) in Osman v. UK (1998)

established that states must take reasonable measures to protect
individuals from known risks to life.
•Arbitrariness

 The ICCPR’s Human Rights Committee (General Comment No. 36,

2018) interprets "arbitrary" deprivation broadly, encompassing
unlawful killings, excessive use of force by state agents, and failures
to address systemic threats like famine or environmental harm.

•Scope of Protection

 Applies to all human beings without discrimination, though debates

persist about its applicability before birth (e.g., abortion) or at end-
of-life (e.g., euthanasia)
• Exceptions

 Limited exceptions exist, such as lawful executions (where

permitted), self-defense, or necessity in extreme circumstances, but
these are strictly regulated and subject to proportionality.

• Key Developments and Challenges

 Death Penalty: Article 6(2) of the ICCPR allows the death penalty in
countries that have not abolished it, but only for the "most serious
crimes" with strict safeguards.

 The Second Optional Protocol to the ICCPR (1989) aims for its
abolition, ratified by 89 states by 2025.
• Digital and Environmental Contexts

 The right to life increasingly intersects with digital

vulnerabilities (e.g., cyber threats to critical infrastructure)
and environmental degradation (e.g., climate change).

 The UN Human Rights Council’s recognition of a "right to a

healthy environment" (Resolution 48/13, 2021) links
ecological protection to life.
 2. The Right Not To Be Subject
To Torture
The practice of torture persists in many countries
despite its absolute prohibition under international
law.

Authoritarian and dictatorial states have a history of

deliberately using torture as a means to control and
repress the population and destroy their ‘enemies’.

Torture is also a weapon of war used to instill terror

and gather intelligence in order to weaken the enemy.
• The response to the 9/11 attacks in the USA was
characterized by resort to torture and other ill-
treatment, the practice of extraordinary
rendition – transferring someone outside the
protection of the law to a country for
interrogation where he or she is at risk of, or will
be subject to, torture – and allegations of
complicity in the torture of terrorist suspects.

• Torture also frequently constitutes part of

routine law-enforcement.

• This practice is often tolerated if not encouraged

in order to ‘combat crime’ but is simultaneously 43
• Non-state actors have also used torture methods,
although it is often difficult to establish the nature
and extent of practices in these contexts.

• Gender-based violence, particularly sexual violence,

is widespread and has been recognised as a form of
torture.

• The prohibition of torture and other ill-treatment is

enshrined in a series of international and regional
instruments.

• The most detailed treaty is the Convention against

Torture and Other Cruel, Inhuman or Degrading 44
Sources

• There are also separate treaties focusing on the prevention

of torture, namely the European Convention for the
Prevention of Torture and Inhuman or Degrading Treatment or
Punishment and the Optional Protocol to CAT (OPCAT).

• Torture and other ill-treatment are prohibited under

international humanitarian law.

• Moreover, torture is considered an international crime subject

to universal jurisdiction and constitutes an element of
genocide, war crimes and crimes against humanity.

• The prohibition of torture is absolute and non-derogable,

having attained the status of jus cogens.
45
The definition in Article 1 - Convention Against Torture
is widely seen as the most authoritative and has been
referred to by most international and regional human
rights treaty bodies in their jurisprudence.

Broken down into its constitutive elements the

definition sets out the following elements of torture:

• Severe mental or physical pain or suffering: an act of

torture can be objectively severe, i.e. applying
electroshocks or rape, or may be severe because of
the circumstances, including the duration, impact and
personal characteristics, i.e. subjective elements, such
as ‘sex, age and state of health 46
The Definition

•Intent: the intentional infliction is one of the

factors distinguishing torture from other forms
of ill-treatment.

For example, poor conditions of detention as

such do not amount to torture unless they are
used, either solely or in combination, to
deliberately inflict severe pain or suffering for a
particular purpose.

•Purpose: the purpose element makes it clear 47

The Definition

•Official involvement: the formula used in article

1 CAT ‘inflicted by or at the instigation –
provocation- of or with the consent or
acquiescence of a public official or other person
acting in an official capacity’ serves to attribute
responsibility.

48
The Definition

Article 3 ECHR is structured differently, simply

prohibiting torture, inhuman or degrading
treatment or punishment.

The ECtHR has developed a rich, though at times

controversial, jurisprudence on the definition of
torture in which it distinguishes between forms
of ill-treatment (which must reach the required
threshold of a ‘minimum level of severity) and
torture.

The category of cruel, inhuman or degrading

49
The Definition

Treaty bodies have been uniform in their

jurisprudence, according to which officially
sanctioned corporal punishment is:

a degrading attack on a ‘person’s dignity and

physical integrity’, for example in cases of
whipping

Under the prohibition, states have a negative

obligation to refrain from engaging in any
torture or other ill-treatment and a positive
50
Obligations

As is clear from article 2 CAT, the overarching duty and

primary objective of the prohibition is to prevent acts
of torture through ‘effective legislative,
administrative, judicial or other measures’.

The effective implementation of the prohibition

requires state actors to take a series of measures in
law and practice that are designed to significantly
reduce the risk of torture.

These include incorporating the prohibition of torture

in national law, stipulating that statements extracted
under torture are and providing custodial safeguards.
51
Obligations

Safeguards such as prompt access to a lawyer

of one’s choice, the right to inform family
members of the arrest, the right to challenge
the lawfulness of detention before a judge, …
are all meant to minimize the risk of torture,
particularly during the initial phase of
detention.

Visiting mechanisms, particularly in the form of

regular independent external monitoring, can
serve as an important deterrent and as a form
of engagement that may result in gradual
52
Obligations

Such mechanisms are in place at the national,

regional and international level.

According to international treaties and best

practices, visiting mechanisms should be
independent, composed of a group of mixed
professionals with the required expertise and
adequately resourced.

Finally, states must not expose individuals to the

risk of torture or other ill-treatment in other
countries, a principle known as non-refoulement
53
Highlights of Right Not To Be Subject To
Torture
• It is a fundamental human right recognized as absolute and non-derogable across
international, regional, and national legal frameworks.

• It prohibits the intentional infliction of severe physical or mental suffering by or

with the acquiescence of state actors, as well as inhuman or degrading treatment or
punishment.

• Legal Foundations
1.International Law:
1. Universal Declaration of Human Rights (UDHR), 1948: Article 5 states, "No one
shall be subjected to torture or to cruel, inhuman or degrading treatment or
punishment." While not legally binding, it establishes a global norm.
2. International Covenant on Civil and Political Rights (ICCPR), 1966: Article 7
asserts, "No one shall be subjected to torture or to cruel, inhuman or degrading
treatment or punishment. In particular, no one shall be subjected without his free
consent to medical or scientific experimentation." Binding on 173 states as of
2025.

3. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment

or Punishment (CAT), 1984:

Defines torture (Article 1) as severe pain or suffering inflicted intentionally by

public officials for purposes like interrogation or punishment. It mandates
prevention (Article 2), investigation (Article 12), and non-refoulement (Article 3).
Ratified by 173 states as of 2025.

4. Geneva Conventions, 1949: Common Article 3 prohibits torture and cruel

treatment in armed conflicts, applicable universally.
• Regional Instruments:
1. European Convention on Human Rights (ECHR), 1950: Article 3 declares, "No one
shall be subjected to torture or to inhuman or degrading treatment or
punishment." Absolute and non-derogable (Article 15).

2. American Convention on Human Rights (ACHR), 1969: Article 5(2) ensures, "No
one shall be subjected to torture or to cruel, inhuman, or degrading punishment
or treatment.”

2. National Example - Turkish Constitution (1982, as amended):

3. Article 17, Paragraph 3: "No one shall be subjected to torture or ill-treatment; no
one shall be subjected to penalties or treatment incompatible with human
dignity." This reflects Turkey’s obligations under the ECHR and CAT.
• Definitions:
Torture: Per CAT Article 1, it involves severe, intentional pain or suffering by public
officials for specific purposes (e.g., confession, punishment). The threshold is high
(e.g., Ireland v. UK, 1978, ECtHR distinguished torture from inhuman treatment)

Inhuman Treatment: Causes significant suffering but falls short of torture’s severity
(e.g., prolonged isolation, Ahmad v. UK, 2012, ECtHR).

Degrading Treatment: Undermines dignity or causes humiliation (e.g., strip

searches without justification, Wainwright v. UK, 2006, ECtHR).

• Absolute Prohibition:

The right is non-derogable, meaning no exceptions are permitted, even in

emergencies (ICCPR Article 4, ECHR Article 15).
 • State Obligations
Negative: Refrain from torturing or allowing it (e.g., no excessive police
force).
Positive: Prevent torture by non-state actors, investigate allegations, and
provide remedies. The UN Committee Against Torture emphasizes effective
investigations (CAT General Comment No. 3, 2012).
Non-Refoulement: States must not return individuals to places where they
risk torture (CAT Article 3).

• Scope of Application
Applies to all individuals under a state’s jurisdiction, including detainees,
migrants, and minorities.

Extends to mental suffering (e.g., mock executions) and conditions of detention

(e.g., overcrowding, Kudła v. Poland, 2000, ECtHR)
• Significance and Challenges

Jus Cogens Status: The prohibition of torture is a peremptory norm of international

law, binding on all states regardless of treaty ratification (Prosecutor v. Furundžija,
ICTY, 1998).

• Contemporary Issues

Digital Context: Emerging concerns include psychological torture via online

harassment or surveillance, though not yet fully addressed in legal frameworks like
the CAT.

Counter-Terrorism: Post-9/11 practices (e.g., Guantanamo Bay) raised debates, but

international bodies consistently reject "ticking bomb" justifications.
3. THE RIGHT TO LIBERTY AND SECURITY OF
PERSON
The modern system of imprisonment grants states
considerable power to deprive persons of their liberty
and control their freedom.

This power inevitably gives rise to concerns that are

particularly pronounced in respect of :
• special detention regimes,
• including prison camps,
• preventive detention,
• immigration detention,
• detention under emergency laws (curtailing
detainee’s rights)
Practice

Many of these detention regimes are

characterized by their lack of due process and
safeguards, which has often facilitated other
violations, notably torture and enforced
disappearance, and resulted in the denial of
fair trials that require effective defence from
the outset.

In addition, detention regimes tend to be far

from ‘neutral’.

Individuals who belong to marginalized

61
Sources

Arrest and detention can entail disrupting …

consequences such as ….loss of employment, the
breakdown of a relationship, psychological damage and
illnesses contracted in prison.

This makes it necessary that the public’s interest in

punishment and/or safety is counterbalanced by
adequate due process guarantees against arbitrariness
applying to all forms of detention, including confinement
in psychiatric hospitals.

The right to liberty and security is recognised in several

international and regional instruments, which are 62
Sources

International humanitarian law includes numerous

provisions on arrest and detention, particularly regarding
the custody of prisoners of war.

Systematic …. ‘imprisonment or other severe deprivation

of physical liberty in violation of fundamental rules of
international law’ constitutes a crime against humanity
and unlawful confinement (as a grave breach) a war
crime.

The prohibition of arbitrary arrest and detention is

considered to constitute customary international law.
63
Justification of Arrest and Detention

International human rights law prohibits the

‘arbitrary’ deprivation of liberty.

…‘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 – certainty- and due process of law

... rlawful arrest must not only be lawful but

reasonable in the circumstances’. 64
Justification of Arrest and Detention

As a general rule, a state must comply with the

(substantive) law that may justify deprivation
of liberty and the (procedural) law stipulating
arrest and detention procedures, which
themselves must be reasonable, foreseeable
and proportionate.

The authorities must demonstrate the

existence of grounds that justify arrest, such as
reasonable suspicion of a crime having been
committed, or continued detention, for example 65
Justification of Arrest and Detention

International human rights treaties stipulate a

number of procedural safe-guards against
arbitrary arrest and detention.

• As a first step, anyone arrested must be

promptly informed of the reasons for his or
her arrest.

This is meant to enable the arrested or

detained person to effectively exercise his or
her rights, with a view to challenging the 66
Justification of Arrest and Detention

Judicial control constitutes the most important safeguard

against arbitrary deprivation of liberty.

In criminal cases states have to ensure that any suspect is

brought promptly before a judge or judicial authority, that is
normally within the first 48 hours.

States have repeatedly sought to extend the period between

arrest and appearance before a judicial authority, particularly
in emergency situations.

However, human rights treaty bodies have allowed limited

extensions only where they are shown to be necessary and
where adequate safeguards are in place, knowing well that
detainees are most at risk of torture and other ill-treatment in67
Justification of Arrest and Detention

A detainee on remand also has a right to be tried

within a reasonable time (taking into consideration
the complexity of the case and conduct of the parties)
or to be released pending trial.

This right flows from the presumption of innocence

and continued detention can only be justified on
specific, narrow grounds, such as to prevent escape.

It reaches its absolute limit where the time spent on

remand exceeds the maximum length of imprisonment
a detainee would face in the case of conviction
68
Highlights of right to liberty and security of person

The right to liberty and security of person is a cornerstone human right that protects
individuals from arbitrary detention and ensures their physical and personal safety.

Legal Basis
1.International Law:
• Universal Declaration of Human Rights (UDHR), 1948:
Article 3: "Everyone has the right to life, liberty and security of person."
Article 9: "No one shall be subjected to arbitrary arrest, detention or exile."
(Non-binding but foundational.)
• International Covenant on Civil and Political Rights (ICCPR), 1966:
Article 9(1): "Everyone has the right to liberty and security of person. No one
shall be subjected to arbitrary arrest or detention. No one shall be deprived of
his liberty except on such grounds and in accordance with such procedure as are
established by law.”
69
Highlights of right to liberty and security of person

• Convention on the Rights of the Child (CRC), 1989: Article 37 protects children
from arbitrary detention.

2. Regional Instruments:
• European Convention on Human Rights (ECHR), 1950:
1.Article 5(1): "Everyone has the right to liberty and security of person," with
lawful exceptions (e.g., arrest, detention for trial).
2.Safeguards include prompt hearings (Article 5(3)) and habeas corpus (Article
5(4)).

• American Convention on Human Rights (ACHR), 1969:

1.Article 7: Guarantees liberty and security, prohibiting arbitrary arrest and
requiring legal procedures.

70
Highlights of right to liberty and security of person

Turkish Constitution (1982, as amended):

Article 19: "Everyone has the right to personal liberty and security. No one shall be
deprived of his/her liberty except in cases determined by law and in accordance with
the procedure prescribed by law."

Scope and Interpretation

• Freedom from physical restraint (e.g., arrest, imprisonment) unless legally
justified.

• Detention is unlawful if it lacks legal basis, is disproportionate, or bypasses due

process (A v. Australia, 1997, UNHRC).

71
Highlights of right to liberty and security of person

Security
• Protection from threats to physical integrity, such as violence or enforced
disappearance, by state or non-state actors (Delgado Páez v. Colombia, 1990,
UNHRC).

• Includes positive duties to prevent harm (e.g., Osman v. UK, 1998, ECtHR: state
must protect against known risks).

•Procedural Safeguards
• Right to be informed of reasons for arrest (ICCPR 9(2), ECHR 5(2)).
• Prompt appearance before a judge (ICCPR 9(3), ECHR 5(3)).
• Access to challenge detention’s legality (ICCPR 9(4), ECHR 5(4)).
• Compensation for unlawful detention (ICCPR 9(5)).

72