Art. 9(1) ICCPR Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest … No one shall be deprived of his liberty except on such grounds and in accordance with such procedures as are established by law.

• Arrest with warrant is general rule.
• Magistrate or other judicial officer should be notified of arrests without warrant.
• Due presentation of person before justice official within a short time period.
• Limits on police custody of persons arrested without warrant.

Ensure that the NHRI understands its responsibilities with regard to arrest issues; provide advice them on possible activities/best practices.

Provide the necessary technical assistance, specialised training, expertise and material support to the NHRI when they are undertaking activities such as

• Developing a database of persons arrested under criminal laws and emergency powers
• establishing a 24/7 Hotline to report disappearances, arrests/ emergency situations
• communications to police or other authorities to follow up on reported cases

Art. 4 ICCPR

• During states of emergency, arrests may result in lengthy preventive detentions.
• Security forces arrest without warrant or reasonable grounds, or conduct mass arrests or round-ups.
• Arrests are carried out on grounds such as “national security”, “terrorism”, or “maintenance of public order” without further specificity.

Support the NHRI’s position when it issues advice to the government to limit derogations, to bring extraordinary arrest and detention powers in line with international standards and to ensure that permitted derogations are announced to the OHCHR.

Art. 9(2) ICCPR

Art. 13(1) ICCPR
… Any person arrested shall be informed of the reason for the arrest.

• Right to know reasons for arrest, to see arrest warrant.
• Arresting officer must issue a document to the detainee’s family acknowledging arrest (and upon release).
• Failing to document arrest should be an offence.

Support the NHRI’s position when it:

• issues advice to the government to ensure that suspects are advised of reasons for arrest,
• strives to ensure that procedural guarantees are given legal force and that penalties can be imposed on security personnel for non-compliance,
• attempts to ascertain whether security forces ignore instructions or act with impunity.

Provide the NHRI with the necessary technical assistance, specialised training, expertise and material support to systematically review documentation regarding the arrest of persons, to ensure adequacy of procedures, or to interview advocates to determine if reasons for arrest are obtained in a timely manner.

Art. 21 ICCPR
… Subject to restrictions necessary in a democratic society in the interests of national security or public safety, public order, public health or morals or the protection of the rights and freedoms of others.

• Countries may restrict protections in the interests of racial and religious harmony.
• Countries may require permission for assemblies by security forces without any reasonable basis being required for refusal.
• Assemblies and meetings are unduly restricted and / or criminalized. It is illegal to join any group or person engaged in terrorist offences.

Ensure that the NHRI understands its responsibilities with regard to freedom of assembly and advise them on possible activities/best practices.

Support the NHRI’s position when it provides advice to the government on restrictions that are not prescribed by law or subject to sole discretion of executive.

Art. 22(1) ICCPR Everyone shall have the right to freedom of association with others, including the right to form and join trade unions for the protection of his interests.

• The government has criminalised meetings held by, or membership held in, particular groups.

Ensure that the NHRI understands its responsibilities with regard to freedom of association and advise them on possible activities/best practices.

Provide the NHRI with the necessary technical assistance, specialised training, expertise and material support to inquire into situations where minorities, activists, etc. are targeted in

Art. 4(1) ICCPR Derogation permitted in cases of public emergency, provided not discriminatory.

Subject to art. 4(2): No derogation from 6,1 7,2 8 (1 and 23) , 11, 16 and 184 ICCPR

Only to the extent strictly required; cannot be inconsistent with other international law obligations.

See also Siracusa Principles, outlined opposite.

• The use of omnibus derogations from core rights in times of emergency
• Security forces are shielded from prosecution.
• Reversals of the legal burden of proof on the State.

Ensure that the NHRI understands its responsibilities with regard to derogation issues and advise them on possible activities/best practices.

Aid the NHRI in encouraging the government to abide by the Siracusa Principles, which state that:

1. No limitations or grounds for applying them to rights guaranteed by the Covenant [ICCPR] are permitted other than those contained in the terms of the Covenant itself.

[…]

5. All limitations on a right recognized by the Covenant shall be provided for by law and be compatible with the objects and purposes of the Covenant.

[…]

7. No limitation shall be applied in an arbitrary manner.

[…]

“Public Emergency which Threatens the Life of the Nation”

[…]

40. Internal conflict and unrest that do not constitute a grave and imminent threat to the life of the nation cannot justify derogations under Article 4.5

Art. 9(3) ICCPR
… It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees …

• Legislation creating a presumption of access to bail.

• Country prohibits or unduly restricts bail.

Ensure that the NHRI understands its responsibilities with regard to detention issues; advise them on possible activities/best practices.

Art. 10 ICCPR
All persons deprived of liberty shall be treated with humanity and with respect for the inherent dignity of the human person.

• No more force should be used than necessary.
• Prohibition of corporal punishment.
• Domestic legislation criminalizing torture.

• Inhuman or cruel conditions, including overcrowding, lack of access to a medical officer.

Provide the NHRI with the necessary technical assistance, specialised training, expertise and material support to

• implement a prisons inspection programmes (including through the development of a manual, with standard templates and forms)
• look into and report on living conditions and access to medical care
• report on or study long-term detention in facilities that are designed for short term detention
• work to prevent incommunicado detentions which increase risk of ill-treatment and torture.

Art. 17(d) Intl. Convention for the Protection of All Persons from Enforced Disappearance
(d) Guarantee that any person deprived of liberty shall be authorized to communicate with and be visited by his or her family, counsel or any other person of his or her choice, subject only to the conditions established by law, or, if he or she is a foreigner, to communicate with his or her consular authorities, in accordance with applicable international law.

• Art. 37 Standard Minimum Rules for the Treatment of Prisoners (1955) Prisoners can communicate with family and reputable friends at regular intervals (with necessary supervision).

Provide the NHRI with the necessary technical assistance, specialised training, expertise and material support to ensure that detainees receive confidential communication with their legal counsel.

Support the NHRI in advocating that the State makes provisions against incommunicado detention and prohibits such practices by law.6

Art. 9 ICCPR (general)

Art. 17(c) Intl. Convention for the Protection of All Persons from Enforced Disappearance Without prejudice to other int’l obligations of the State Party … each State Party shall, in its legislation:
(c) Guarantee that any person deprived of liberty shall be held solely in officially recognized and supervised places of deprivation of liberty.

• All places of detention should be official and published.

• The law permits detention in irregular or temporary facilities or movement between facilities without notice.

Support the NHRI in advocating that the government be open and transparent about the location of authorized places of detention and that informal places of detention are closed or regularised.

Art. 9(1) ICCPR Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary … detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedures as are established by law.

• Preventative detentions should be reasonably justified, proportional and undertaken with discrimination against persons based on ethnic origin (see ICCPR and Siracusa Principles).

• Excessive use of preventative detentions; use of security forces for policing.

Support NHRI’s work in seeking to reduce the length and use of preventative detention.

Provide the NHRI with the necessary technical assistance, specialised training, expertise and material support to document and report on cases of preventative detention through prison inspections and through comparative study of jurisdictions that do not rely excessively on preventative detention.

Support training security forces / armed forces that are used as a de facto policing force.

Art. 11 CAT
Each State party shall keep under systematic review interrogation rules, instructions, methods and practices … for the custody and treatment of … persons subjected to any form of arrest, detention or imprisonment … with a view to preventing any cases of torture.

• Systematic review of places of detention.

Provide the NHRI with the necessary technical assistance, specialised training, expertise and material support to:

• establish an effective systematic review of places of detention, including regular and unannounced visits
• produce reports / publicity / information about the results and impacts of prison inspection programs.

The UNCT can support the general discussion and debate by holding seminars, workshops, etc on relevant findings and recommendations of NHRIs.

Arts. 9(3), 14 ICCPR Derogation in Art. 4.

• Must maintain documentation regarding arrest and detention, timeliness of hearing, habeas corpus
• Person to be brought before a magistrate or judicial officer within a reasonable period of time.

• Restrictions because of national security, public order and protection of public health or morality.

Provide the NHRI with the necessary technical assistance, specialised training, expertise and material support to document and report instances of detention when detainees are not brought before a judge within the period prescribed in law and pre-trial detention that extends beyond international standards.

Arts. 2, 3 ICCPR

Art. 26 ICCPR
All persons are equal … without any discrimination on any ground … such as ... national or social origin, birth … or other status.

• Constitutional guarantees of equality.

• Differential treatment as regards minority groups or vulnerable persons, including treatment that has an adverse impact on persons based on race, sex, ethnic origin and other grounds.

Ensure that the NHRI understands its responsibilities with regard to equality and non-discrimination, and provide advice on possible activities/best practices.

Provide the NHRI with the necessary technical assistance, specialised training, expertise, and material support to investigate allegations of unequal or discriminatory treatment in the administration of justice, and legal system generally, especially as regards minority groups or vulnerable persons.

Art. 9, 13 ICCPR

• Habeas corpus must remain available even during public emergencies threatening the nation.7

• Laws that extend the period before which a person has the right to be brought before a judicial officer.
• Restrictions of powers of release without written permission.
• Members of proscribed organizations are excluded from the complaint process.

Ensure that the NHRI understands its responsibilities with regard to habeas corpus and advise them on possible activities/best practices.

Provide the NHRI with the necessary technical assistance, specialised training, expertise, and material support to investigate the extent to which habeas corpus is difficult to access either because courts decline applications on a systematic basis, or restrict access to lawyers. Activities could be undertaken in coordination with Bar associations and lawyers’ associations, as well as NGOs.

Art. 14(3)(f) ICCPR

• Accused have access to interpreters in court.

• No mention of access to qualified interpreters during questioning by law enforcement officers and limited access to interpretation in court.

Ensure that the NHRI understands its responsibilities and advise them on possible activities/best practices. E.g. Support monitoring of judicial hearings in areas where minority language rights are an issue and support the preparation of reports on the state of practice and availability of interpreters.

Provide the NHRI with the necessary technical assistance, specialised training, expertise, and material support to work with law enforcement to ensure that arrested persons have access to interpretation, emphasising language capacity for languages spoken by minority communities.

Art. 14(3)(d) ICCPR Right to defend himself in person or through legal assistance …; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require …

• A Legal Aid system and/ or state funded counsel in appropriate cases.

Provide the NHRI with the necessary technical assistance, specialised training, expertise and material support to investigate the extent to which legal aid is available, especially for vulnerable groups. E.g. “mapping” of legal aid systems, formal and informal, in the country; preparation of accessible and relevant legal aid manuals; training of legal aid lawyers on human rights; linking NHRIs with judicial reform efforts and sectoral reform initiatives from other donors.

Art. 14(3)(g) ICCPR

• Confessions made to law officers are inadmissible unless in immediate presence of a Magistrate.

• Admissibility of confessional evidence or incriminatory statements in any circumstances.
• Persons of interest are forced to answer police questions and are not permitted to exercise a right to remain silent.
• Reversals of the burden of proof.

Provide the NHRI with the necessary technical assistance, specialised training, expertise, and material support to report systematically on criminal procedure issues, notably as regards convictions secured through confessions.

E.g. Documenting case; support NHRI efforts to secure amendments to laws that infringe the right not to self-incriminate or that result in reversals of the burden of proof.

Support a “Gap analysis”: preparation of documentation comparing domestic law and practice with international standards.

Art. 6(1) ICCPR
Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.

• Prohibitions against corporal punishment, abolition of death penalty; criminalisation of torture; right to seek pardon.

Ensure that the NHRI understands its responsibilities with regard to the right to life and advise them on possible activities/best practices.

E.g. “Gap analysis”: Support the preparation of documentation comparing domestic law and practice with international standards.

Provide NHRI with the necessary technical assistance, specialised training, expertise, and material support to use its promotional programmes to educate the public and key stakeholders on the merits of the abolition of the death penalty. The UNCT can support the general discussion and debate by holding seminars, workshops, etc on issues using and showcasing NHRI findings and information as a springboard.

Art. 6 ICCPR (general)

Int’l Convention for the Protection of All Persons from Enforced Disappearance.8

• All persons detained should be handed over immediately to the nearest police station and arrests reported and documented.
• Failing to respect procedural safeguards should be an offence.

• Forced disappearances, extrajudicial killings.
• Search, detention and arrest without warrant of persons under any emergency regulation.

Provide the NHRI with the necessary technical assistance, specialised training, expertise, and material support to:

• systematically document and report on all forced disappearances
• take effective steps to keep disappearances under control by, for example, investigating them.
• develop a database of persons arrested under criminal laws, emergency powers.
• establish a 24/7 Hotline to report disappearances, arrests/ emergency situations.

Art. 12(1) ICCPR Everyone lawfully within the territory… shall have the liberty of movement and freedom to choose his residence.

• Restrictions must be appropriate to achieve their purpose, and be the least intrusive instrument among available options and proportionate to the interest to be protected.9
• Lawful restrictions should use “precise criteria and may not confer unfettered discretion.”10

• Laws preventing entry of unauthorized persons from “High Security Zones”, “Prohibited Zones” and “Restricted Zones” designated by authorities.
• Permits are required to enter or leave certain areas.
• Household registration is used as a tool to monitor people’s whereabouts and to control freedom of association

Ensure that the NHRI understands its responsibilities with regard to the right of mobility and advise them on possible activities/best practices, e.g. support the NHRI’s work with the government to phase out laws that restrict mobility and examine and critique, as appropriate, the use of techniques such as household registration lists as law enforcement tools.

Provide the NHRI with the necessary technical assistance, specialised training, expertise, and material support to investigate reports of restrictions of movements of citizens, residents or minorities.

Support training and monitoring for situations of forced expulsions, deportations and exit controls.

Art. 14(2) ICCPR Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty.

• The legal burden of proof should always be on the prosecution

• Legal reversals of the burden of proof; restrictions on the accused to challenge State evidence or cross-examine.
• State is permitted to destroy evidence.

Ensure that the NHRI understands its responsibilities with regard to the presumption of innocence and advise them on possible activities/best practices.

Support the NHRI’s efforts to advocate for legal reform to ensure that the burden of proof in criminal matters rests on the State, and that derogations are lawful and consistent with human rights standards.

Art. 17(1) ICCPR
No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

• State should have to justify intrusions / interceptions of personal privacy, including the home, correspondence and communications.

• Wide search/seizure/break and entry powers (without warrant) can be exercised by officers or security forces in the interests of national security, public order or similar justifications.

Ensure that the NHRI understands its responsibilities with regard to the right of privacy and advise them on possible activities/best practices.

Provide the NHRI with the necessary technical assistance, specialised training, expertise, material, and support to address issues and practices that invade privacy.

Arts. 2, 26 ICCPR

• Constitutional and legislative provisions providing remedies in the event of a violation of rights.
• Functioning and effective judiciary.

• Any laws shielding legislation or government action from constitutional scrutiny.

Ensure that the NHRI understands its responsibilities with regard to remedies where it has jurisdictional authority and advise them on possible activities/best practices.

Support the NHRI’s efforts to seek legislative reform to improve accessibility. Support liaison and coordination efforts with relevant government actors.

Remedies from NHRIs

• NHRIs are empowered to conduct investigations into rights violations and there is a provision for seeking a remedy. NHRIs conduct mediations and other forms of alternative dispute resolution (ADR).

UNCT can provide the NHRI with the necessary technical assistance, specialised training, expertise, and material support for improvements to case management systems to ensure case processing is timely and effective. Help to develop and communicate service standards to the public; ensure functioning and user-friendly case management software that is actually implemented and used.

Training on mediation conducted early in the process, preferably with staff who are separate from investigation staff.

Optional Protocol to the Convention against Torture

First Optional Protocol ICCPR

• Country has ratified Optional protocols.

If no ratification, support the NHRI to advocate for ratification. The UNCT can provide support and information regarding regional practices, public advocacy to build public awareness and support.

Provide technical assistance, specialised training, expertise, and material support to actively follow up on Committee views to ensure that remedies are provided to complainants.

Art. 2(3) a ICCPR
a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;

• Command responsibility; legislation should not confer immunity of security forces.

• Any immunity for any actions taken by public servants or law enforcement or security forces.
• Good faith acts are given blanket immunity.

Support advocacy work that is aimed at victims of violations and its efforts to promote legislative reform to ensure opportunity for redress. Support the development of victim and witness protection legislation.

Provide NHRI with necessary technical assistance, specialised training, expertise, and material support to engage in community justice initiatives or transitional justice where the statutory or constitutional mandate supports this activity. Alternatively if there are other national institutions with transitional justice responsibilities, support efforts to transfer cases that are more appropriately in the other institution’s authority.

Art. 1 CAT
“severe pain or suffering, whether physical or mental” to obtain information/confession from a person or a third person.

Ensure that the NHRI understands its responsibilities with regard to torture and related practices, and advise them on possible activities/best practices.

Support and supplement the NHRI in promoting the enactment of laws prohibiting torture and generally complying with CAT.

Provide the NHRI with the necessary technical assistance, specialised training, expertise, and material support to monitor trials of and convictions secured for torture cases.

Art. 2 CAT
Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.

Art. 7 ICCPR
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.

• Legislation prohibiting torture and creating offences for torture or cruel treatment.
• Criminalizing acts which cause harm to extort confessions or information.
• Prohibition of sexual assault of women in custody and creation of offences.
• Exclusion of any evidence extracted via torture.

• Any legislation, even emergency legislation that authorizes force “as necessary” and shields perpetrators.

Provide the NHRI with the necessary technical assistance, specialised training, expertise, and material support to

• investigate promptly, or report on, allegations of killings and mistreatment in custody
• implement a detention facilities visit programme and work to eliminate the use of unofficial places of detention.
• advocate for policies and practices to prohibit and punish sexual assault in custody.

Support and supplement the NHRI in advocating for adequate training of security forces and law enforcement officials and participate in such training as human rights experts, or help to secure necessary assistance and expertise.

Arts. 12, 13 CAT

• Witness and victim protection legislation.

• Threats against witnesses.

Provide the NHRI with the necessary technical assistance, specialised training, expertise, and material support to investigate and denounce alleged reprisals, intimidation and threats against persons reporting acts of torture and ill treatment as well as the lack of effective witness and victim protection mechanisms. This could include:

• research on victim and witness protection programs
• lobbying government to establish legislation