Detention on reasonable suspicion of having committed an offence:
13. Detention pursuant to arrest must satisfy the conditions of lawfulness,
reasonableness and necessity.420 It should be considered the exception.421
14. Pre-trial detention must be based on an assessment of the individual case,
taking into account factors such as the risks of flight,422 tampering with evidence
or the likelihood of recurrence. It should not be mandatory for a class of offences
without individualised considerations.423
15. Alternatives to pre-trial detention, such as bail, electronic bracelets, or other
conditions, must be considered.424
16. A pre-trial detention order or a remand shall be subject to a periodic review 425
and a defendant should be released if he or she has been detained for a period
that is equal to the maximum prison sentence that could be imposed for the
crime charged.426
17. Pre-trial detention of juveniles should be avoided and in the event of detention
they shall be brought to trial in a particularly speedy manner.427
Detention post-conviction
18. Once the prison sentence has been served, the individual must be released.428
Preventative and/or Administrative Detention
19. Administrative detention, namely that ordered by the executive, is controversial,
yet under certain circumstances may be permitted in international human rights
law.429
20. The guarantees under Article 9(1) of the ICCPR will apply to administrative
detention,430 and Article 9(4) is particularly important in such contexts.
420
Communication 305/1988, H. Van Alphen v The Netherlands, 23 July 1990.
Communication 526/1993, Hill v. Spain, 2 April 1997, para. 12.3.
422 Communication 458/1991, A. W. Mukong v. Cameroon 21 July 1994, para. 9.8.
423 Human Rights Committee, Communication 526/1993, Hill v Spain, 2 April 1997, para. 12.3;
Communication 432/1990, W.B.E. v The Netherlands, 23 October 1992, para. 6.3; Communication
305/1988, van Alpen v The Netherlands, 23 July 1990, para. 5.8.
424 Communication 1178/2003, Smantser v. Belarus, 23 October 2008, para. 10.3; Concluding
observations Argentina CCPR/C/ARG/CO/4 (2010), para. 16.
425 Communication 1085/2002, Taright v. Algeria, 15 March 2006, paras. 8.3-8.4; Concluding
observations Moldova 2002, para. 11.
426 Human Rights Committee, Concluding observations Argentina CCPR/C/79/Add.46 (1995), para.
157.
427 Concluding observations Latvia CCPR/CO/79/LVA/Add.1 (2004), para. 10; Human Rights
Committee General Comment No. 21, HRI/GEN/1/Rev.6 at 153 (2003), para. 13; and General
Comment No. 32, CCPR/C/GC/32 (2007) para. 42; Committee on the Rights of the Child, General
Comment No. 10, CRC/C/GC/10 (2007), para. 83.
428 Communication No. R.2/8, A. M. García Lanza de Netto on behalf of B. Weismann Lanza and A.
Lanza Perdomo 3 April 1980, p. 118.
429 See Report on the practice of administrative detention, UN.Doc.E/CN.4/Sub.2/1990/29.
430 Human Rights Committee, General Comment No.8, HRI/GEN/1/Rev.6 at 130 (2003), para 1.
421
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