General Procedures and Period of Detention

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CHAPTER III Procedures and Period of Detention

A. General

A person that is arrested or detained must be given notification on the reason of the arrest or the detention and their rights, including the right to a lawyer and the right to know the charges. This information is crucial for a person to examine the legality of the arrest or the detention. And if they are charged, this information is important for them to prepare their defense. 338 The main objectives in informing the reason of arrest or detention is to examine the legality of the detention. Therefore, the reason must be specified, which covers the elaboration and factual reason on the arrest and detention. In regards to this, the United Nations Human Rights Committee states that it is not sufficient of the arrest or detentiona against a person is executed for security reasons, without any clear indication. 339 ICCPR also states that anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him. 340 Meanwhile, under the Body of Principles for the Protection of All Persons Any Form of Detention or Imprisonment states that anyone who is arrested shall be informed at the time of his arrest of the reason for his arrest and shall be promptly informed of any charges against him. 341 A detained person and his counsel, if any, shall receive prompt and full communication of any order of detention, together with the reasons therefor. 342 Some Affirmation The United Nations Human Rights Committee showed its concern on the detention in Sudan under the easo of atio al se u it . The Cou il e o e ded that the atio al se u it must be defined under a law and by the law enforcers such as the police, and the detention must be accompanied by the reason for detention, must be available for the public, and must be able to be examined before the court. 343 The Council also said that there was a violation against Article 9 2 of ICCPR on the case where a detainee just been informed regarding the reason of the arrest and detention for murder investigation, when he asked it during trial. During few weeks, he did not know the detail on the reason of the arrest and detention, including the facts on the crimes. 344 In regional context, the European Human Rights Court explained that Article 5 2 of the European Convention states that everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him. 345 Furthermore, the 338 Article 9 2 ICCPR; Paragraph 2 B African Commission Resolution; Principle 10, the Body of Principles for the Protection of All Persons Any Form of Detention or Imprisonment; Article 7 4 American Convention; Article 5 2 European Convention; Princple 11 2, the Body of Principles for the Protection of All Persons Any Form of Detention or Imprisonment. 339 Drescher Caldas v. Uruguay, 431979, 21 July 1983, 2 Sel.Doc.80. 340 Article 9 2 ICCPR. 341 Principle 10, the Body of Principles for the Protection of All Persons Any Form of Detention or Imprisonment. 342 Principle 11 2, the Body of Principles for the Protection of All Persons Any Form of Detention or Imprisonment. 343 Concluding observations of the Human Rights Committee on Sudan, UN Doc. CCPRC79add.85, 19 November 1997, paragraph 13. 344 Kelly v. Jamaica 2531987, 8 April 1991, HRC Report, A4640, 1991, paragraph 5. In another case, the Human Rights Council said that there were violations against Article 9 2 ICCPR, when a local lawyer was detained for 50 hours without being informed on the reason of detention Portorea Case, Republic of Dominique, 1881984, 2 Sel.Doc.214. 345 Fox, Campbell and Hartley, 181989178234-236, 30 August 1990, paragraph 40-41. 24 European Convention states that the reason on detention must be informed promptly. The term p o ptl ust e i te p eted as di e tl , u less the e a e se e al issues, su h as the la k of interpreter. 346 The Eu opea Hu a ‘ights Cou t has stated that the li it o se e al hou s between detention and interrogation, which made the detainee knew the reason for detention during interrogation, cannot be considered as the reason for postponing such notification. 347 The European Commission states that Article 5 2 of the European Convention required that every person that is detained must be informed on the facts and events that become the basis of the detention. It means that the defendant must be able to say that whether heshe admits the charges or not. 348 The requirements on prompt information has two objectives. Firstly, to inform the detainees that they may examine the legality of their detention. Secondly, to open the possibility for anyone that are facing trial and being detained, to prepare the defense. 349 The European Convention is the only international convention that explicitly states the obligation to inform the reason of the detention. 350 To be more effective, information must be given in the language that is understood by the suspectdefendant. Any person that is arrested, indicted, or detained, and does not understand the language of the authorized official, has the right to obtain information in the language that heshe undestands —what are the rights, how to use it, why they are arrested or detained, and what are the charges. They also have the right on written explanation on the reason of detention, the time of detention, and the transfer of detention place, date and the time of judge examination, who conducts the arrest or detention, and where are they detained. 351 In addition, they also have the right to an interpreter that will help them during the legal process after the arrest for free or paid —if necessary. 352 If a detained or imprisoned person is a foreigner, he shall also be promptly informed of his right to communicate by appropriate means with a consular post or the diplomatic mission of the State of which he is a national or which is otherwise entitled to receive such communication in accordance with international law or with the representative of the competent international organization, if he is a refugee or is otherwise under the protection of an intergovernmental organization. 353

B. Detention procedures