Illegal detention and its remedy with reference of National and international laws  

Detention is when someone is arrested or put into custody or imprisoned for any reason. The police can arrest and detain people for investigation of a crime, or political reason. If, the person allegedly involved violates the country panel laws.

If any person arrested or detained the person going loose his/her rights to liberty. The people’s liberty is everything of the human being. Because people lose his/her liberty they lose their freedom, job, works, business, and so on. Therefore, liberty and freedom is the most important fundament right.

The police or authority should arrest and keep detained legitimately. Detention should be according to legal/lawful and reasonable ground. No one shall curtail any person’s liberty illegal or arbitrary.

It must be legal or legitimate ground and with following legitimate procedures. If the police going to arrest anyone, they must inform the grounds of arrest or arrest warrant. Importantly, without authority’s order police cannot arrest anyone.

It is mentioned not only in any national law but also in International laws such as Human rights laws, Universal Declaration of Human Rights (UDHR), ICCPR, etc.

An arbitrary arrest or unlawful arrest

Illegal detention is a crime, authorities should take punishment in the common law system. No person shall be detained in custody without informing of the ground for his/her arrest. Police also can con discriminate on grounds of his or her origin, caste, tribe, community, profession, occupation, or physical condition.

Any arrest or detention with legality or legitimate process is illegal or arbitrary. It shall be subject to punishment.

Authority cannot violate substantive or procedural laws. Police cannot arrest with the reasonable ground, on basis of strong evidence, and legal procedure.

Police also cannot arrest forcefully. They should maintain the legal procedures. If necessary they can use force, which may less harm.

Basically, American context, firstly police inform he/her of the reason and ground of his/her arrest. If, the person is ready to go to the police station, the police cannot put the handcuff. It not, then police put handcuff and use minimum force to arrest him/her.

Derogable and non derogable rights

International human rights law recognizes that some rights are absolute. Some reasonable limits may be placed on most rights and freedoms.

Absolute rights cannot be limited for any period and any reason. No circumstance justifies a limitation of absolute rights. It cannot be suspended or restricted. It cannot be suspended even during a declared state of emergency.

Rights may also be characterized as derogable or non-derogable rights. International Covenant on Civil and Political Rights (ICCPR), article 4, provides for a derogation power. That allows governments to temporarily suspend the enjoyment of some rights in the circumstance of a ‘state of emergency. That is subject to certain conditions, including official notification.

Certain rights are non-derogable. That is, cannot be suspended even in a state of emergency.

Article 4(2) of the ICCPR states that no derogation is permitted for the following rights;

  • Right to life (art 6)
  • Free from torture (art 7)
  • Free from Cruel, inhuman and degrading treatment or punishment (art 7)
  • Free from medical or scientific experimentation without consent (art 7)
  • Free from slavery and servitude (arts 8(1) and (2))
  • Free from imprisonment for inability to fulfill a contractual obligation (art 11)
  • Rights against retrospective application of criminal laws (art 15)
  • Right to identification before the law (art 16)
  • Free of thought, conscience, and religion (art 18)
  • Rights to a fair trial by impartial, impendent, and component authority.

Additionally, the Human Rights Committee has recognized other ICCPR rights that it considers cannot be made subject to lawful derogation.

Legal Provisions

Article 20 of the Constitution of Nepal implicitly prohibited illegal arrest and guaranteed fundamental rights. Section 203 of the Muluki Criminal Code, 2074 (MCC) is also discouraging illegal detention. It provides that authority cannot detain in an unknown place.

Section 206 of MCC considered an offense of disappearance if the police is not inform relative or not resent the before the authority or court within 24 hours.

In Article 9 of the UDHR, Article 9 of ICCPR also prohibited illegal arrest and detention. They provide the rights to liberty, prompt information about the arrest, brought before authority within a reasonable time and grounds. Arrest should fulfill legal provisions and Legal grounds. If authority is seen, there is no reason or ground, it may release the person.

Internationally, the right of liberty is protected by the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment. This Body principle adopted by the General Assembly of United Nation, resolution no. 43/173 of 9 December 1988.

Article 2 of the Body principle prohibited illegal arrest, detention, and imprisonment. Article 1 provides that the person must be treated inhuman manner in detention or imprisonment. Authority should respect the inherent dignity of the human being. Article 10, right to information, article 11 rights defend, and article 9 right to presumption innocent.

Remedy

Mainly, legal remedy and compensation are the remedies of illegal/arbitrary arrest and detention.

The Constitution of Nepal has protected from illegal arrest and detention. Article 20 states that no one shall be arrested or detained illegally. Article 46, 133, and 144 provide the rights remedy in the violation of fundamental rights including rights to liberty.

According to 133, any person can file a writ petition of habeas corpus against illegal detention in the Supreme Court, and under article 144 writ petitions can file in the High Court.

Similarly, according to section 26 of Muluki Civil Code, 2074, any person can file a writ petition of habeas corpus in the Supreme Court, High Court as well as District Courts to release from illegal detention in behalf of the detainee. Justice Administration Act, 2073 also provides these rights.

The complaint in Human Rights Committee

There is some international remedy after completion of all national (domestic) jurisdiction of the country. Under ICCPR the person can file a complaint in the Human Rights Committee against such illegal or arbitrary detention.

Judicial Intervention

Supreme Court of Nepal made lots of precedents and judicial decisions, where provided the remedy from illegal detention. The High Court and District also issued a habeas corpus order in the case of illegal detention.

In the case of Punya Prasad Kafle (NKP 2052 Decision no. 2033), Man Bahadur Tamang (NKP 2052 D.N. 6016), and Sewak Das (NKP 2049, D.N. 4592), Supreme Court set the principles about illegal and arbitrary detention.

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