Freedom from Arbitrary Arrest / Detention / Exile

The Supreme Court of Bangladesh ruled in favor of sex workers and ordered the government to clean up its police force, which had problems with corruption. The police had violently evicted sex workers from their homes in the middle of the night, raising issues of unreasonable search and seizure. The Court encouraged the government to adopt a Code of Conduct for the police immediately, modeled on the Code of Conduct for Law Enforcement Agencies, which had been adopted by the General Assembly of the United Nations.

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A person had been imprisoned for over ten years. He argued that this violated domestic and international law regarding provisional detention.

The Court noted that the Extraordinary Chambers in the Courts of Cambodia (ECCC) was meant to follow procedure in line with Cambodian law. However, the Court said, the ECCC was allowed to adopt its own Internal Rules that complied with international standards. “The ECCC law not only authorizes the ECCC to apply domestic criminal procedure, but also obligates it to interpret these rules and determine their conformity with international standards prescribed by human rights conventions and followed by international criminal courts. Moreover the ECCC must consider Article 31 of the Constitution of the Kingdom of Cambodia which states that ‘the Kingdom of Cambodia shall recognize and respect human rights as stipulated in the United Nations Charter, the Universal Declaration of Human Rights, the covenants and conventions related to human rights.’ Even if a violation of the Accused’s right cannot be attributed to the ECCC, international jurisprudence indicates that an international criminal tribunal has both the authority and the obligation to consider the legality of his prior detention.”

The Court then held that the imprisoned person’s detention before the Military Court constituted a violation of Cambodian law. It also violated his internationally-recognized right to a fair and speedy trial.

However, the Court held that the ECCC did not violate domestic or international law by ordering the prisoner to provisional detention. However, the Court also held that if he were to be convicted, he would be entitled to not only credit for time already served, but also to a reduction in sentence, owing to “previous violations to his rights”. If he were to be acquitted, the Court held, international case law indicated that he could seek compensation for violations of his rights, here, those committed by the Cambodian Military Court.

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The government of Papua New Guinea had declared a state of emergency in the resource-rich province of Southern Highlands. The Supreme Court had to consider whether the declaration of the state of emergency was valid. The Court looked for guidance to the ECHR, the Inter-American Convention on Human Rights, and especially to the Siracusa Principles on the Limitation and Derogation Provisions in the ICCPR, which gave guidelines for when states could derogate from their ICCPR obligations so as to protect the state or populace. The Court noted that though Papua New Guinea had not ratified the ICCPR, it could provide assistance.

The Court ultimately ruled that the incidents in this case did not allow for the declaration of a state of emergency. Rather, they were “ordinary problems” which could be dealt with by ordinary criminal laws. The Court then declared the declaration of the state of emergency invalid.

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Tonga: Fa'aoso v Paongo & Ors,TOSC 37 [11 September 2006]

The applicant (F) claimed damages of $29,000 for being wrongfully assaulted by the police. F, aged 13 years (12 at the time of the incident), was savagely beaten by police officers after being falsely accused of theft. F was detained by the police for 20 hours before being released. F also claimed that he had suffered injuries as a result of the attack. Upon his release, F further claimed that he had been threatened. The police pleaded guilty and accepted that F had been wrongly accused.


F was awarded damages of $10,000, comprising $5,000 for wrongful confinement and $5,000 for exemplary damages. The court referred to the case of Akau'ola v Fungalei [1991] Tonga LR 22, and issued the following admonition to police officers:

A number of police officers still appear to believe that they have the right to exercise discipline over the public … such abuse of authority will not be tolerated, and where it is proved to have occurred it will be stamped on, with increasing severity, until the bully boy in uniform no longer roams our streets.

Police officers had to understand that their role in criminal investigation was exactly that ? to investigate cases through interviewing witnesses and, through appropriate use of forensic methods, to gather hard factual evidence that would stand up in a court of law.

In December 1995, Tonga acceded to the CRC. The judge further said that though it still had to be properly ratified, the accession indicated a willingness by the nation to be bound by its terms. Article 37 of the convention sets out the obligations of a state concerning the apprehension and detention of a child (defined as a person under the age of 18 years). The opening words of each paragraph of the article are relevant to the present case. They read:
No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment …
No child shall be deprived of his or her liberty, unlawfully or arbitrarily …
Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age …
Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance …
In the present case, all of these obligations were flagrantly abused. However, in the assessment of damages, the fact that some Tongans have no regular source of cash income was taken into account with a view to keeping awards of damages in proportion to the value of money and general conditions in the Kingdom.

Fourteen defendants were awaiting trial and all but one had been released on bail. The respective court had ordered them all to be remanded back into custody on the sole ground that the trial was being held on four days of the week. The defendants appealed this remand, arguing that it was an arbitrary refusal of bail in violation of the Sri Lankan constitution. However, the court rejected their appeal, saying that the remand was an “interim order” against which there was no right of appeal. The Supreme Court of Sri Lanka held that the defendants had been denied bail arbitrarily. In so holding, the Court cited Article 9 of the UDHR and also Article 9 of the ICCPR when it said that “[t]he right to liberty and security of person is a basic tenet of our public law and is universally recognized as a human right guaranteed to every person”. The Court held that granting bail was the rule, not the exception, and that a court could only refuse bail for certain reasons laid out in Sri Lankan law. The Court then quashed the previous order refusing the defendants bail.

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India: Nilabatibehera v State of Orissa, 1993 SCC 746

Petitioner's  son,  aged about 22 years was taken  from  his home  In  police  custody at about 8 a.m.  on 1.12.1987  by respondent  No.6, Assistant Sub-Inspector of Police  of  the Police  Outpost in connection with the investigation  of  an offence of theft.  He was detained at the Police outpost. On 2.12.1987, at about 2 p.m. the petitioner came  to   know that the dead body of her son was found on the railway track. There  were multiple injuries on the body and his death was unnatural, caused by those injuries.

The petitioner alleged in her letter dated 14.9.1988, which was  treated as  a writ petition under Article 32 of  the Constitution,  that it was a case of custodial  death since her son died as a result of the multiple injuries  inflicted to  him   while he was in police custody and  thereafter his dead body was thrown on the railway track.  It was prayed in the petition that award of compensation be made to her, for contravention  of the fundamental right to  life  guaranteed under Article 21 of the Constitution.

This Court directed the District Judge to hold an  inquiry into the matter and to submit a  report. After hearing  the  parties  and  appreciating  the  evidence  the District Judge submitted the Inquiry Report dated  4.9.1991. The  District  Judge  found that petitioner's son  died  on account  of multiple injuries inflicted to him while he  was in police custody at the Police Outpost.

Court ruling:

Award  of  compensation  in  a  proceeding   under Article 32 by this Court or by the High Court under  Article 226 of the Constitution is a remedy available in public law, based  on strict liability for contravention of  fundamental rights to which the principle of sovereign immunity does not apply, even  though  it may be available as a defence  in private  law  in an  action  based  on  tort. This  is  a distinction  between  the two remedies to be borne  in mind which  also  indicates the basis on  which  compensation is awarded in such proceedings.

Enforcement of the constitutional right and  grant of  redress  embraces award of compensation as part  of the legal consequences of its contravention. A  claim  in  public  law  for  compensation  for contravention of human rights and fundamental freedoms, the protection of which is guaranteed in the Constitution, is an acknowledged remedy for enforcement and protection, of  such rights, and such a claim based on strict liability made  by resorting  to  a  constitutional  remedy  provided  for the enforcement of a fundamental right is distinct from, and  in addition  to, the remedy in private law for damages for  the tort  resulting  from the contravention of  the   fundamental right. The defence of sovereign immunity being inapplicable, and alien to the concept of guarantee of fundamental  rights,  there  can be no question of  such  a defence being available in the constitutional remedy.  It is this   principle   which   justifies  award  of  monetary compensation for contravention of fundamental rights guaranteed by the Constitution, when that is the only  practicable mode of redress available for the contravention made by the State  or  its servants in the purported exercise  of  their powers, and enforcement of the fundamental right is  claimed by resort to the remedy in public law under the Constitution by recourse to Articles 32 and 226 of the Constitution.