CHAPTER 4 RIGHT TO PERSONAL LIBERTY 2. The Concept of Deprivation of Liberty Despite certain ambiguities during the drafting of Article 9 ICCPR, a careful interpretation in light of the object and purpose of the Covenant leads to the conclusion that this provision does not recognise any other form of deprivation of liberty beyond the two terms ‘arrest and detention’.6 The term ‘arrest’ refers to the act of depriving personal liberty and generally covers the period up to the point where the person is brought before the competent authority.7 The word ‘detention’ refers to the state of deprivation of liberty, regardless of whether this follows from an arrest (police custody, pre-trial detention), a conviction (imprisonment), kidnapping or some other act.8 That the term ‘detention’ covers all forms of deprivation of liberty, both in the context of the administration of criminal justice and beyond, is also confirmed by the use of this term in Article 5 ECHR for the holding of minors, vagrants, drug addicts, migrants or persons in medical quarantine or by the definition of the mandate of the UN Working Group on Arbitrary Detention.9 The Optional Protocol to the UN Convention against Torture (OPCAT) of 2002 establishes a system of regular visits undertaken by independent international and national bodies (the UN Subcommittee for the Prevention of Torture = SPT and national preventive mechanisms = NPMs) to places where people are deprived of liberty. Article 4 OPCAT requires every State party to allow visits ‘to any place under its jurisdiction and control where persons are or may be deprived of their liberty, either by virtue of an order given by a public authority or at its instigation or with its consent or acquiescence (hereinafter referred to as places of detention). ’This provision as well as the practice of the SPT and NPMs confirm that the term ‘places of detention’ covers all places where a person may be deprived of liberty, such as prisons, police lock-ups, pre-trial detention centres, military prisons, social care institutions, foster homes, institutions for persons with disabilities or for persons addicted to drugs or alcohol, orphanages, children homes, institutions for the educational supervision of children, care homes, old peoples’ homes, institutions for palliative care, 6 See Nowak (2005), op. cit., pp. 167 ff. 7 See: UN General Assembly, Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, A/ RES/43/137, 9 December 1988, which defines ‘arrest’ as ‘the act of apprehending a person for the alleged commitment of an offense or by the action of an authority’. 8 Cf. Nowak (2005), op. cit., p. 169. 9 See: UN Commission on Human Rights, Question of Arbitrary Detention, RES/1991/42, 5 March 1991; UN Commission on Human Rights, Question of Arbitrary Detention, RES/1997/50, 15 April 1997. See also more generally the practice of the UN Working Group on Arbitrary Detention. 64