Chapter 5 • Human Rights and Arrest, Pre-Trial and Administrative Detention
Article 5(1)(f) of the European Convention authorizes “the lawful arrest or
detention of a person to prevent his affecting an unauthorized entry into the country or
of a person against whom action is being taken with a view to deportation or
extradition”. This means, for instance, that the detention must not pursue an aim
different from that for which it was ordered.82 Further, in case of extradition, for
instance, the deprivation of liberty under this subparagraph “will be justified only for as
long as extradition proceedings are being conducted”, and, consequently, “if such
proceedings are not being prosecuted with due diligence, the detention will cease to be
justified under article 5 § 1 (f)”.83 A detention of almost two years has thus been
considered “excessive” by the Court, which considered that the reasonable time had
already been exceeded after 18 months, when the extradition order was in fact given.84
4.7.4 Preventive detention and detention for reasons of ordre public
Cases involving preventive detention for reasons of public security or public
order often raise particular concerns in a State governed by the rule of law, in view of
the difficulty inherent in defining such terms with sufficient clarity and the resulting
legal uncertainty to which it gives rise. However, insofar as article 9 of the Covenant is
concerned, the Human Rights Committee has stated in General Comment No. 8 that
“... if so-called preventive detention is used, for reasons of public security,
it must be controlled by these same provisions, i.e. it must not be arbitrary,
and must be based on grounds and procedures established by law (para. 1),
information of the reasons must be given (para. 2) and court control of the
detention must be available (para. 4) as well as compensation in the case of
a breach (para. 5). And if, in addition, criminal charges are brought in such
cases, the full protection of article 9(2) and (3), as well as article 14, must
also be granted”.85
In the case of Cámpora Schweizer, the author was held in accordance with the
“prompt security measures” under Uruguayan law. Without pronouncing itself on the
compatibility of this legal measure per se with the Covenant, the Committee
emphasized that, although
“administrative detention may not be objectionable in circumstances where
the person concerned constitutes a clear and serious threat to society which
cannot be contained in any other manner, ... the guarantees enshrined in the
following paragraphs of article 9 fully apply in such instances”.86
In this case, however, article 9(3) and (4) of the Covenant had been violated
because of the particular modalities under which the “prompt security measures” had
been “ordered, maintained and enforced”.87
*****
82 Eur. Court HR, Case of Quinn v. France, judgment of 22 March 1995, Series A, No. 311, pp. 18-19, para. 47.
83 Ibid., p. 19, para. 48.
84 Ibid., pp. 19-20, para. 48.
85 United Nations Compilation of General Comments, p. 118, para. 4.
86 Communication No. 66/1980, D. A. Cámpora Schweizer v. Uruguay (Views adopted on 12 October 1982), in UN doc. A/38/40,
p. 122, para. 18.1.
87 Ibid., p. 122, para. 18.1 and p. 123, para. 19.
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Human Rights in the Administration of Justice: A Manual on Human Rights for Judges, Prosecutors and Lawyers
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