JORGE RODRIGUES SIMÃO

ADVOCACI NASCUNT, UR JUDICES SIUNT

(13) Human Rights

DETENTION AND IMPRISONMENT

Arbitrary Detention

HR

Detention

 The human rights movement has often concerned itself with those who have been detained for their politics or expressing their opinion. Recall the symbolism attributed to the figure of Solzhenitsyn by Kundera. The founding of Amnesty International in 1961 was prompted by its founder, the barrister Peter Benenson, reading about two Portuguese students publicly raising their glasses in a toast to freedom and then being convicted and sentenced to seven years' imprisonment. The Observer newspaper carried Benenson's 'Appeal for Amnesty' under the banner headline 'The Forgotten Prisoners'. This was the culmination of years of reflection and consultation with others on issues related to persecution and imprisonment. The article included photographs of six prisoners: Constantin Noica (a Romanian philosopher), the civil rights supporter the Reverend Ashton from the United States, the Angolan poet Agostinho Neto (held by the Portuguese), Archbishop Beran of Prague, Toni Ambatielos (a trade unionist detained in Greece), and Cardinal Mindszenty of Hungary (taking refuge in the US Embassy in Budapest). Other prisoners from Spain and South Africa were included in the article. The original Appeal for Amnesty had four aims: to work impartially for the release of those imprisoned for their opinions; to seek for them a fair and public trial; to enlarge the right of asylum and help political refugees to find work; and to urge effective international machinery to guarantee freedom of opinion.

Since that time, Amnesty International has expanded its focus and now explains that its mission is 'to undertake research and action focused on preventing and ending grave abuses of the rights to physical and mental integrity, freedom of conscience and expression, and freedom from discrimination, within the context of its work to promote all human rights'. The original campaigns, however, mobilized public support for a membership-based movement focused on such forgotten prisoners. This is part of the story of the growth of concern for human rights during the Cold War.

Known sometimes as 'prisoners of conscience' or 'political prisoners', such detainees were, and still are, the subjects of human rights campaigns and protests. Their detention has come to be associated with regimes that generally disregard basic freedoms. Such detainees are arrested for expressing political opinions or claiming democratic rights, and their trials are often sorely lacking in the basic elements of a fair trial: the presumption of innocence, access to a lawyer of one's choice, and the chance to challenge the evidence before an independent judge.

A contemporary challenge to detainees' rights concerns the detention of suspected terrorists in the 'global war on terror'. The United States sought in 2006 to explain its detention without trial of terrorist suspects in Guantanamo Bay (Cuba) before the UN Committee against Torture. The United States argued that, although it has detained around 10,000 people since its 2001 war with Afghanistan, it: only wishes to hold those enemy combatants who are part of or are supporting Taliban or al-Qaida forces (or associated forces) and who, if released, would present a threat of reengaging in belligerent acts or directly aiding and supporting ongoing hostilities against the United States or its allies.

The United States has released about 90% of those it detained in this way, but its report to the UN explains: We have made mistakes: of the detainees we have released, we have later recaptured or killed about 5% of them while they were engaged in hostile action against U.S. forces. The particular situation of the detainees in the US facilities at Guantanamo Bay has been subject to harsh human rights criticism from multiple sources. The UN special procedures recommended that the detainees either be swiftly brought to trial, or released without further delay. As with the discussion concerning torture, there is a continuing risk that the rules which were thought to protect individuals from arbitrary detention are being reinterpreted to allow for considerable flexibility in the context of counter-terrorism. Defenders of the US's policy argue by analogy: because we accept that mentally ill people who pose a danger to society can be incarcerated without having committed any crime, the same logic applies to those labelled as dangerous terrorists. Alternatively, the analogy is made to traditional situations of armed conflict in which combatants and civilians who pose a security threat can be detained without trial. The argument made is that exceptional times call for exceptional measures. The response of human rights advocates is to recall that the idea of human rights was to protect the unpopular and vulnerable from mistreatment and arbitrariness. Suspected terrorists and 'enemy combatants' fit this description. As already stated, the point of human rights thinking is to recognize the worth of an individual human being even when the majority demands a simple sacrifice for the greater good. The technique of human rights is to demand that interferences with individual liberty only be undertaken in accordance with properly constituted legal proceedings.

One of the dangers with focusing on the legitimacy of detention in the Cold War, for political opponents, or for suspected terrorists, is that we lose sight of the bigger picture with regard to those deprived of their liberty. There is a worldwide population of nearly 9 million detainees. The criteria of ‘unpopular', 'marginalized', and 'vulnerable' can also be applied to these millions of individuals incarcerated around the world. A huge number of these prisoners are subjected to conditions that fall far short of human rights standards. Writers and diplomats may have lost interest in prisoners in countries such as Russia but the human rights reports of contemporary prison conditions there make grim reading.

In closing this chapter, we should mention that the right to freedom is in fact now interpreted as a right that continues throughout detention. An individual's freedom is not extinguished on arrest or conviction, the freedom is restricted to the extent that this is necessary. The detaining authority is continually required to re-evaluate the necessity of all detention. Furthermore, the International Covenant on Civil and Political Rights demands that prison systems shall have, as an essential aim, reformation and social rehabilitation.

World Prison Population List (6th ed), February 2005

 

Over 9 million people are held in penal institutions throughout the world, mostly as pre-trial detainees (remand prisoners) or having been convicted and sentenced. Almost half of these are in the United States (2.09m), China (1.55m plus pre-trial detainees and prisoners in 'administrative detention') or Russia (0.76m).

The United States has the highest prison population rate in the world, some 714 per 100,000 of the national population, followed by Belarus, Bermuda and Russia (all 532), Palau (523), U.S. Virgin Islands (490), Turkmenistan (489), Cuba (487), Suriname (437), Cayman Islands (429), Belize (420), Ukraine (417), Maldive Islands (416), St Kitts and Nevis (415), South Africa (413) and Bahamas (410).

 

US State Department 2005, Country Report on Human Rights: Russia

 

Prison conditions remained extremely harsh and frequently life-threatening. ...As of July 1, approximately 797,500 persons were in the custody of the criminal justice system, including 48,600 women and 14,500 juveniles. In 2004 according to official statistics approximately two thousand persons died in SIZOS [pre-trial detention facilities, known as investigation isolation facilities]. Most died as a result of poor sanitary conditions or lack of medical care (the leading cause of death was heart disease).... Abuse of prisoners by other prisoners continued to be a problem. Violence among inmates, including beatings and rape, was common. There were elaborate inmate-enforced caste systems in which informers, homosexuals, rapists, prison rape victims, child molesters, and others were considered to be 'untouchable' and were treated very harshly, with little or no protection provided by the prison authorities. Penal institutions frequently remained overcrowded, but there were reports of some improvements. For example, while many penal facilities remained in urgent need of renovation and upgrading, some reports indicated that these facilities were closer to meeting government standards, which include the provision of four square meters per inmate. Inmates in the prison system often suffered from inadequate medical care; however, there were some signs of improvement. The Public Council in the MOJ reported that during the 3 years ending in 2004, the number of sick prisoners and detainees decreased by 27 percent. According to the MOJ, as of September 1, 2005, there were approximately 49 thousand tuberculosis-infected persons and 31 thousand HIV-infected persons in SIZOs and correction colonies.

 

Balancing rights - the issue of privacy

 

So far we have resisted the temptation to claim that human rights are about balancing individual freedoms and the collective interests of the community. Such claims say very little about these rights as they melt away into the interests of the majority to live in peace and security. The thrust of international human rights law is that curtailment of rights must be justified by reference to pre-existing laws that allow for proportionate action necessary to achieve a legitimate aim (such as national security or public order). We now ought to look at how this formula works in a little more detail, in order to understand when it may indeed be legitimate to 'balance' rights in situations in which rights holders are competing with each other for priority to be given to their interests. We have already seen how, by contrast, the right not to be tortured can be considered to be absolute. We have also seen how the right to freedom under the rule of law may not be spirited away in the face of claims that some individuals appear to be potentially dangerous. Let us now look at some situations in which human rights claims do have to give way in the face of competing interests.

 

Privacy

 

Thinking about the notion of privacy forces us to confront fundamental issues at the heart of human rights. Although there is a popular perception that 'time-honoured' rights to privacy are now constantly under attack, it is not at all clear where the notion of privacy came from. If we trace the origin of the concept, we find that privacy is not a traditional constitutional right; one does not find 18th-century revolutionary demands for privacy. In

fact, the protection of privacy seems to have developed in an ad hoc way in response to feelings of outrage or embarrassment as the need arose. In human rights law, privacy has become a residual right, used to buttress claims that might otherwise be based on respect for dignity, home, correspondence, sexuality, identity, or family. Some might suggest that privacy is a natural demand and references are often made to religious texts, which suggest that from ancient times it has been clear that human beings should shield their private parts from public view. But the fact that many people accept that some things, such as nudity, going to the toilet, and sexual activity, should take place in private, rather than in public, does not really help to define where a universal right to privacy comes from, or what it is supposed to protect.

An early reference to a right to privacy can be found in an 1881 case in the United States which arose out of a complaint by a woman that she had been observed against her will during childbirth. Although her complaint succeeded as a case of battery, the court referred to her 'right to the privacy of her apartment'. Further impetus for the right came in the form of a US law review article by Louis Brandeis and Samuel Warren in 1890, called 'The Right to Privacy'. It may be that the inspiration to write the article stemmed from the unwelcome publicity surrounding the wedding of Warren's daughter. In any event, 19th-century preoccupations centred on unauthorized observation or publication. The case studies used by Brandeis and Warren included: an English court's injunction for breach of confidence restraining distribution of etchings made by Prince Albert and Queen Victoria; a French court's protection for the family of an actress, prohibiting the circulation of reproductions of a death-bed portrait; and in Germany, the seizing of death-bed photos of Bismarck following a request by his children.

As various national laws developed to protect these interests, there was a change in the focus of what needed to be protected by the concept of privacy. By the end of the Second World War, the concerns were different. Early on, Cuba made a proposal for an article protecting privacy in the Universal Declaration of Human Rights. It included three headings: protection of honour, reputation, and correspondence. The focus on the protection of honour and dignity remains in the Inter-American system for the protection of human rights. However, the concerns of the drafters of the Universal Declaration were wider, and the eventual formulation in the Universal Declaration and subsequent treaties covers not only attacks on honour and reputation, but also interference with 'privacy, family, home or correspondence'. In addition, the scope of this protection has been further defined to protect certain aspects of human dignity, which we shall examine in detail below.

Articulating the duties that correspond to this right is hard, as other rights immediately raise their heads in seeming opposition. The right to privacy may extend only to the point where it does not restrict someone else's right to freedom of expression or right to information. The scope of the right to privacy is similarly constrained by the general interest in preventing crime or in promoting public health. However, when we move away from the property-based notion of a right (where the right to privacy would protect, for example, images and personality), to modern notions of private and family life, we find it harder to delimit the right. This is, of course, the strength of the notion of privacy, in that it can adapt to meet changing expectations and technological advances.

In sum, what is privacy today? The concept encompasses a claim that we should be unobserved, and that certain information and images about us should not be circulated without our permission. Why did these privacy claims arise? They arose because powerful people took offence at such observation. Furthermore, privacy was assimilated to the need to protect the family, home, and correspondence from arbitrary interference and, in addition, there has been a determination to protect honour and reputation. How is privacy protected? Historically, privacy was protected by restricting circulation of the damaging material. But if the concept of privacy first became interesting legally as a response to reproductions of images through etchings, photography, and newspapers, more recent technological advances, such as data storage, digital images, DNA identification, retina scans, and the internet, pose new threats to privacy. The right to privacy is now being reinterpreted to meet those challenges. We might identify at least five contemporary dimensions to privacy. First, there is a desire to be free from observation. We have already mentioned the sense that some of us want to be shielded from others when we are undressed. From this, rights may flow with regard to strip searches, detention, medical situations, hidden cameras, and other forms of surveillance.

 

Second, there is a desire to restrict circulation of information and images about ourselves, especially where knowledge about such information could be embarrassing or prejudicial to our interests. Third, there is an interest in being able to communicate with others without third parties eavesdropping or monitoring our communications. Although the original protection in the human rights treaties covered 'correspondence', the scope of privacy protection has been extended to challenge telephone tapping, monitoring of the sorts of calls made, and most recently, employers' scrutiny of employees' emails. Fourth, our physical and mental well-being needs protection. The law of privacy has been developed to guarantee protection from domestic violence, sexual abuse, corporal punishment, and environmental hazards. Fifth, it is felt that space should be made so that we can develop our personalities free from control. If we are not free to make certain choices about sex, identity, and association then we may fail to develop our personalities to their full potential. In this way, international human rights treaties have been successfully used to challenge laws that criminalized consensual homosexual activity.

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