Search Tips
sorted by
300 shown of 575 entities
Article 1: The right to self-determination of peoples
- Body
- Human Rights Committee
- Legal status
- Non-negotiated soft law
- Document type
- General Comment / Recommendation
- Year
- 1984
Document
Article 1: The right to self-determination of peoples 1984, para. 1
- Paragraph text
- In accordance with the purposes and principles of the Charter of the United Nations, article 1 of the International Covenant on Civil and Political Rights recognizes that all peoples have the right of self determination. The right of self determination is of particular importance because its realization is an essential condition for the effective guarantee and observance of individual human rights and for the promotion and strengthening of those rights. It is for that reason that States set forth the right of self determination in a provision of positive law in both Covenants and placed this provision as article 1 apart from and before all of the other rights in the two Covenants.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 1984
Paragraph
Article 1: The right to self-determination of peoples 1984, para. 2
- Paragraph text
- Article 1 enshrines an inalienable right of all peoples as described in its paragraphs 1 and 2. By virtue of that right they freely "determine their political status and freely pursue their economic, social and cultural development". The article imposes on all States parties corresponding obligations. This right and the corresponding obligations concerning its implementation are interrelated with other provisions of the Covenant and rules of international law.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Social & Cultural Rights
- Person(s) affected
- All
- Year
- 1984
Paragraph
Article 1: The right to self-determination of peoples 1984, para. 3
- Paragraph text
- Although the reporting obligations of all States parties include article 1, only some reports give detailed explanations regarding each of its paragraphs. The Committee has noted that many of them completely ignore article 1, provide inadequate information in regard to it or confine themselves to a reference to election laws. The Committee considers it highly desirable that States parties' reports should contain information on each paragraph of article 1.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- N.A.
- Year
- 1984
Paragraph
Article 1: The right to self-determination of peoples 1984, para. 4
- Paragraph text
- With regard to paragraph 1 of article 1, States parties should describe the constitutional and political processes which in practice allow the exercise of this right.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 1984
Paragraph
Article 1: The right to self-determination of peoples 1984, para. 5
- Paragraph text
- Paragraph 2 affirms a particular aspect of the economic content of the right of self determination, namely the right of peoples, for their own ends, freely to "dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic cooperation, based upon the principle of mutual benefit, and international law. In no case may a people be deprived of its own means of subsistence". This right entails corresponding duties for all States and the international community. States should indicate any factors or difficulties which prevent the free disposal of their natural wealth and resources contrary to the provisions of this paragraph and to what extent that affects the enjoyment of other rights set forth in the Covenant.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Economic Rights
- Environment
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 1984
Paragraph
Article 1: The right to self-determination of peoples 1984, para. 6
- Paragraph text
- Paragraph 3, in the Committee's opinion, is particularly important in that it imposes specific obligations on States parties, not only in relation to their own peoples but vis à vis all peoples which have not been able to exercise or have been deprived of the possibility of exercising their right to self determination. The general nature of this paragraph is confirmed by its drafting history. It stipulates that "The States parties to the present Covenant, including those having responsibility for the administration of Non Self Governing and Trust Territories, shall promote the realization of the right of self determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations". The obligations exist irrespective of whether a people entitled to self determination depends on a State party to the Covenant or not. It follows that all States parties to the Covenant should take positive action to facilitate realization of and respect for the right of peoples to self determination. Such positive action must be consistent with the States' obligations under the Charter of the United Nations and under international law: in particular, States must refrain from interfering in the internal affairs of other States and thereby adversely affecting the exercise of the right to self determination. The reports should contain information on the performance of these obligations and the measures taken to that end.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 1984
Paragraph
Article 1: The right to self-determination of peoples 1984, para. 7
- Paragraph text
- In connection with article 1 of the Covenant, the Committee refers to other international instruments concerning the right of all peoples to self determination, in particular the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, adopted by the General Assembly on 24 October 1970 (General Assembly resolution 2625 (XXV)).
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- N.A.
- Year
- 1984
Paragraph
Article 1: The right to self-determination of peoples 1984, para. 8
- Paragraph text
- The Committee considers that history has proved that the realization of and respect for the right of self determination of peoples contributes to the establishment of friendly relations and cooperation between States and to strengthening international peace and understanding.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 1984
Paragraph
Article 2: Implementation at the national level - replaced by GC No. 31
- Body
- Human Rights Committee
- Legal status
- Non-negotiated soft law
- Document type
- General Comment / Recommendation
- Year
- 1981
Document
Article 2: Implementation at the national level - replaced by GC No. 31 1981, para. 1
- Paragraph text
- The Committee notes that article 2 of the Covenant generally leaves it to the States parties concerned to choose their method of implementation in their territories within the framework set out in that article. It recognizes, in particular, that the implementation does not depend solely on constitutional or legislative enactments, which in themselves are often not per se sufficient. The Committee considers it necessary to draw the attention of States parties to the fact that the obligation under the Covenant is not confined to the respect of human rights, but that States parties have also undertaken to ensure the enjoyment of these rights to all individuals under their jurisdiction. This aspect calls for specific activities by the States parties to enable individuals to enjoy their rights. This is obvious in a number of articles (e.g. article 3 which is dealt with in general comment No. 4 below), but in principle this undertaking relates to all rights set forth in the Covenant.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- N.A.
- Year
- 1981
Paragraph
Article 2: Implementation at the national level - replaced by GC No. 31 1981, para. 2
- Paragraph text
- In this connection, it is very important that individuals should know what their rights under the Covenant (and the Optional Protocol, as the case may be) are and also that all administrative and judicial authorities should be aware of the obligations which the State party has assumed under the Covenant. To this end, the Covenant should be publicized in all official languages of the State and steps should be taken to familiarize the authorities concerned with its contents as part of their training. It is desirable also to give publicity to the State party’s cooperation with the Committee.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- N.A.
- Year
- 1981
Paragraph
Article 3: Equal right of men and women to the enjoyment of all civil and political rights - replaced by GC No. 28
- Body
- Human Rights Committee
- Legal status
- Non-negotiated soft law
- Document type
- General Comment / Recommendation
- Year
- 1981
Document
Article 3: Equal right of men and women to the enjoyment of all civil and political rights - replaced by GC No. 28 1981, para. 1
- Paragraph text
- Article 3 of the Covenant requiring, as it does, States parties to ensure the equal right of men and women to the enjoyment of all civil and political rights provided for in the Covenant, has been insufficiently dealt with in a considerable number of States reports and has raised a number of concerns, two of which may be highlighted.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Men
- Women
- Year
- 1981
Paragraph
Article 3: Equal right of men and women to the enjoyment of all civil and political rights - replaced by GC No. 28 1981, para. 2
- Paragraph text
- Firstly, article 3, as articles 2 (1) and 26 insofar as those articles primarily deal with the prevention of discrimination on a number of grounds, among which sex is one, requires not only measures of protection but also affirmative action designed to ensure the positive enjoyment of rights. This cannot be done simply by enacting laws. Hence, more information has generally been required regarding the role of women in practice with a view to ascertaining what measures, in addition to purely legislative measures of protection, have been or are being taken to give effect to the precise and positive obligations under article 3 and to ascertain what progress is being made or what factors or difficulties are being met in this regard.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Equality & Inclusion
- Gender
- Person(s) affected
- Men
- Women
- Year
- 1981
Paragraph
Article 3: Equal right of men and women to the enjoyment of all civil and political rights - replaced by GC No. 28 1981, para. 3
- Paragraph text
- Secondly, the positive obligation undertaken by States parties under that article may itself have an inevitable impact on legislation or administrative measures specifically designed to regulate matters other than those dealt with in the Covenant but which may adversely affect rights recognized in the Covenant. One example, among others, is the degree to which immigration laws which distinguish between a male and a female citizen may or may not adversely affect the scope of the right of the woman to marriage to non-citizens or to hold public office.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Movement
- Person(s) affected
- Persons on the move
- Women
- Year
- 1981
Paragraph
Article 3: Equal right of men and women to the enjoyment of all civil and political rights - replaced by GC No. 28 1981, para. 4
- Paragraph text
- The Committee, therefore, considers that it might assist States parties if special attention were given to a review by specially appointed bodies or institutions of laws or measures which inherently draw a distinction between men and women insofar as those laws or measures adversely affect the rights provided for in the Covenant and, secondly, that States parties should give specific information in their reports about all measures, legislative or otherwise, designed to implement their undertaking under this article.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Equality & Inclusion
- Gender
- Governance & Rule of Law
- Person(s) affected
- Men
- Women
- Year
- 1981
Paragraph
Article 3: Equal right of men and women to the enjoyment of all civil and political rights - replaced by GC No. 28 1981, para. 5
- Paragraph text
- The Committee considers that it might help the States parties in implementing this obligation, if more use could be made of existing means of international cooperation with a view to exchanging experience and organizing assistance in solving the practical problems connected with the insurance of equal rights for men and women.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Men
- Women
- Year
- 1981
Paragraph
Article 3: The equality of rights between men and women - replaces GC No. 4
- Body
- Human Rights Committee
- Legal status
- Non-negotiated soft law
- Document type
- General Comment / Recommendation
- Year
- 2000
- Document code
- CCPR/C/21/Rev.1/Add.10
Document
Article 3: The equality of rights between men and women - replaces GC No. 4 2000, para. 1
- Paragraph text
- The Committee has decided to update its general comment on article 3 of the Covenant and to replace general comment No. 4 (thirteenth session, 1981), in the light of the experience it has gathered in its activities over the last 20 years. The present revision seeks to take account of the important impact of this article on the enjoyment by women of the human rights protected under the Covenant.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Gender
- Governance & Rule of Law
- Person(s) affected
- Men
- Women
- Year
- 2000
Paragraph
Article 3: The equality of rights between men and women - replaces GC No. 4 2000, para. 2
- Paragraph text
- Article 3 implies that all human beings should enjoy the rights provided for in the Covenant, on an equal basis and in their totality. The full effect of this provision is impaired whenever any person is denied the full and equal enjoyment of any right. Consequently, States should ensure to men and women equally the enjoyment of all rights provided for in the Covenant.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Equality & Inclusion
- Person(s) affected
- Men
- Women
- Year
- 2000
Paragraph
Article 3: The equality of rights between men and women - replaces GC No. 4 2000, para. 3
- Paragraph text
- The obligation to ensure to all individuals the rights recognized in the Covenant, established in articles 2 and 3 of the Covenant, requires that States parties take all necessary steps to enable every person to enjoy those rights. These steps include the removal of obstacles to the equal enjoyment of such rights, the education of the population and of State officials in human rights, and the adjustment of domestic legislation so as to give effect to the undertakings set forth in the Covenant. The State party must not only adopt measures of protection, but also positive measures in all areas so as to achieve the effective and equal empowerment of women.States parties must provide information regarding the actual role of women in society so that the Committee may ascertain what measures, in addition to legislative provisions, have been or should be taken to give effect to these obligations, what progress has been made, what difficulties are encountered and what steps are being taken to overcome them.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Education
- Equality & Inclusion
- Gender
- Governance & Rule of Law
- Person(s) affected
- Men
- Women
- Year
- 2000
Paragraph
Article 3: The equality of rights between men and women - replaces GC No. 4 2000, para. 4
- Paragraph text
- States parties are responsible for ensuring the equal enjoyment of rights without any discrimination. Articles 2 and 3 mandate States parties to take all steps necessary, including the prohibition of discrimination on the ground of sex, to put an end to discriminatory actions, both in the public and the private sector, which impair the equal enjoyment of rights.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Equality & Inclusion
- Person(s) affected
- Men
- Women
- Year
- 2000
Paragraph
Article 3: The equality of rights between men and women - replaces GC No. 4 2000, para. 5
- Paragraph text
- Inequality in the enjoyment of rights by women throughout the world is deeply embedded in tradition, history and culture, including religious attitudes. The subordinate role of women in some countries is illustrated by the high incidence of prenatal sex selection and abortion of female foetuses. States parties should ensure that traditional, historical, religious or cultural attitudes are not used to justify violations of women's right to equality before the law and to equal enjoyment of all Covenant rights. States parties should furnish appropriate information on those aspects of tradition, history, cultural practices and religious attitudes which jeopardize, or may jeopardize, compliance with article 3, and indicate what measures they have taken or intend to take to overcome such factors.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Equality & Inclusion
- Gender
- Health
- Person(s) affected
- Men
- Women
- Year
- 2000
Paragraph
Article 3: The equality of rights between men and women - replaces GC No. 4 2000, para. 6
- Paragraph text
- In order to fulfil the obligation set forth in article 3, States parties should take account of the factors which impede the equal enjoyment by women and men of each right specified in the Covenant. To enable the Committee to obtain a complete picture of the situation of women in each State party as regards the implementation of the rights in the Covenant, this general comment identifies some of the factors affecting the equal enjoyment by women of the rights under the Covenant and spells out the type of information that is required with regard to these rights.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Equality & Inclusion
- Gender
- Person(s) affected
- Men
- Women
- Year
- 2000
Paragraph
Article 3: The equality of rights between men and women - replaces GC No. 4 2000, para. 7
- Paragraph text
- The equal enjoyment of human rights by women must be protected during a state of emergency (art. 4). States parties which take measures derogating from their obligations under the Covenant in time of public emergency, as provided in article 4, should provide information to the Committee with respect to the impact on the situation of women of such measures and should demonstrate that they are non-discriminatory.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Equality & Inclusion
- Gender
- Humanitarian
- Person(s) affected
- Men
- Women
- Year
- 2000
Paragraph
Article 3: The equality of rights between men and women - replaces GC No. 4 2000, para. 8
- Paragraph text
- Women are particularly vulnerable in times of internal or international armed conflicts.States parties should inform the Committee of all measures taken during these situations to protect women from rape, abduction and other forms of gender-based violence.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Gender
- Humanitarian
- Violence
- Person(s) affected
- Men
- Women
- Year
- 2000
Paragraph
Article 3: The equality of rights between men and women - replaces GC No. 4 2000, para. 9
- Paragraph text
- In becoming parties to the Covenant, States undertake, in accordance with article 3, to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the Covenant, and in accordance with article 5, nothing in the Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights provided for in article 3, or at limitations not covered by the Covenant. Moreover, there shall be no restriction upon or derogation from the equal enjoyment by women of all fundamental human rights recognized or existing pursuant to law, conventions, regulations or customs, on the pretext that the Covenant does not recognize such rights or that it recognizes them to a lesser extent.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Equality & Inclusion
- Gender
- Governance & Rule of Law
- Person(s) affected
- Men
- Women
- Year
- 2000
Paragraph
Article 3: The equality of rights between men and women - replaces GC No. 4 2000, para. 10
- Paragraph text
- When reporting on the right to life protected by article 6, States parties should provide data on birth rates and on pregnancy- and childbirth-related deaths of women. Gender-disaggregated data should be provided on infant mortality rates. States parties should give information on any measures taken by the State to help women prevent unwanted pregnancies, and to ensure that they do not have to undergo life-threatening clandestine abortions. States parties should also report on measures to protect women from practices that violate their right to life, such as female infanticide, the burning of widows and dowry killings. The Committee also wishes to have information on the particular impact on women of poverty and deprivation that may pose a threat to their lives.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Equality & Inclusion
- Gender
- Health
- Poverty
- Person(s) affected
- Women
- Year
- 2000
Paragraph
Article 3: The equality of rights between men and women - replaces GC No. 4 2000, para. 11
- Paragraph text
- To assess compliance with article 7 of the Covenant, as well as with article 24, which mandates special protection for children, the Committee needs to be provided information on national laws and practice with regard to domestic and other types of violence against women, including rape. It also needs to know whether the State party gives access to safe abortion to women who have become pregnant as a result of rape. The States parties should also provide the Committee with information on measures to prevent forced abortion or forced sterilization. In States parties where the practice of genital mutilation exists information on its extent and on measures to eliminate it should be provided. The information provided by States parties on all these issues should include measures of protection, including legal remedies, for women whose rights under article 7 have been violated.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Harmful Practices
- Person(s) affected
- Children
- Men
- Women
- Year
- 2000
Paragraph
Article 3: The equality of rights between men and women - replaces GC No. 4 2000, para. 12
- Paragraph text
- Having regard to their obligations under article 8, States parties should inform the Committee of measures taken to eliminate trafficking of women and children, within the country or across borders, and forced prostitution. They must also provide information on measures taken to protect women and children, including foreign women and children, from slavery, disguised, inter alia, as domestic or other kinds of personal service. States parties where women and children are recruited, and from which they are taken, and States parties where they are received should provide information on measures, national or international, which have been taken in order to prevent the violation of women's and children's rights.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Equality & Inclusion
- Violence
- Person(s) affected
- Children
- Men
- Women
- Year
- 2000
Paragraph
Article 3: The equality of rights between men and women - replaces GC No. 4 2000, para. 13
- Paragraph text
- States parties should provide information on any specific regulation of clothing to be worn by women in public. The Committee stresses that such regulations may involve a violation of a number of rights guaranteed by the Covenant, such as: article 26, on non-discrimination; article 7, if corporal punishment is imposed in order to enforce such a regulation; article 9, when failure to comply with the regulation is punished by arrest; article 12, if liberty of movement is subject to such a constraint; article 17, which guarantees all persons the right to privacy without arbitrary or unlawful interference; articles 18 and 19, when women are subjected to clothing requirements that are not in keeping with their religion or their right of self-expression; and, lastly, article 27, when the clothing requirements conflict with the culture to which the woman can lay a claim.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Men
- Women
- Year
- 2000
Paragraph
Article 3: The equality of rights between men and women - replaces GC No. 4 2000, para. 14
- Paragraph text
- With regard to article 9, States parties should provide information on any laws or practices which may deprive women of their liberty on an arbitrary or unequal basis, such as by confinement within the house (see general comment No. 8, paragraph 1).
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Equality & Inclusion
- Gender
- Governance & Rule of Law
- Person(s) affected
- Men
- Women
- Year
- 2000
Paragraph
Article 3: The equality of rights between men and women - replaces GC No. 4 2000, para. 15
- Paragraph text
- As regards articles 7 and 10, States parties must provide all information relevant to ensuring that the rights of persons deprived of their liberty are protected on equal terms for men and women. In particular, States parties should report on whether men and women are separated in prisons and whether women are guarded only by female guards. States parties should also report about compliance with the rule that accused juvenile females shall be separated from adults and on any difference in treatment between male and female persons deprived of liberty, such as access to rehabilitation and education programmes and to conjugal and family visits.Pregnant women who are deprived of their liberty should receive humane treatment and respect for their inherent dignity at all times, and in particular during the birth and while caring for their newborn children; States parties should report on facilities to ensure this and on medical and health care for such mothers and their babies.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Children
- Infants
- Men
- Women
- Year
- 2000
Paragraph
Article 3: The equality of rights between men and women - replaces GC No. 4 2000, para. 16
- Paragraph text
- As regards article 12, States parties should provide information on any legal provision or any practice which restricts women's right to freedom of movement, for example the exercise of marital powers over the wife or of parental powers over adult daughters; legal or de facto requirements which prevent women from travelling, such as the requirement of consent of a third party to the issuance of a passport or other type of travel documents to an adult woman. States parties should also report on measures taken to eliminate such laws and practices and to protect women against them, including reference to available domestic remedies (see general comment No. 27, paragraphs 6 and 18).
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Movement
- Person(s) affected
- Men
- Women
- Year
- 2000
Paragraph
Article 3: The equality of rights between men and women - replaces GC No. 4 2000, para. 17
- Paragraph text
- States parties should ensure that alien women are accorded on an equal basis the right to submit arguments against their expulsion and to have their case reviewed, as provided in article 13. In this regard, they should be entitled to submit arguments based on gender-specific violations of the Covenant such as those mentioned in paragraphs 10 and 11 above.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Equality & Inclusion
- Gender
- Movement
- Person(s) affected
- Men
- Women
- Year
- 2000
Paragraph
Article 3: The equality of rights between men and women - replaces GC No. 4 2000, para. 18
- Paragraph text
- States parties should provide information to enable the Committee to ascertain whether access to justice and the right to a fair trial, provided for in article 14, are enjoyed by women on equal terms with men. In particular, States parties should inform the Committee whether there are legal provisions preventing women from direct and autonomous access to the courts (see communication No. 202/1986, Ato del Avellanal v. Peru, Views of 28 October 1988); whether women may give evidence as witnesses on the same terms as men; and whether measures are taken to ensure women equal access to legal aid, in particular in family matters. States parties should report on whether certain categories of women are denied the enjoyment of the presumption of innocence under article 14, paragraph 2, and on the measures which have been taken to put an end to this situation.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Equality & Inclusion
- Gender
- Governance & Rule of Law
- Person(s) affected
- Families
- Men
- Women
- Year
- 2000
Paragraph
Article 3: The equality of rights between men and women - replaces GC No. 4 2000, para. 19
- Paragraph text
- The right of everyone under article 16 to be recognized everywhere as a person before the law is particularly pertinent for women, who often see it curtailed by reason of sex or marital status. This right implies that the capacity of women to own property, to enter into a contract or to exercise other civil rights may not be restricted on the basis of marital status or any other discriminatory ground. It also implies that women may not be treated as objects to be given, together with the property of the deceased husband, to his family. States must provide information on laws or practices that prevent women from being treated or from functioning as full legal persons and the measures taken to eradicate laws or practices that allow such treatment.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Men
- Women
- Year
- 2000
Paragraph
Article 3: The equality of rights between men and women - replaces GC No. 4 2000, para. 20
- Paragraph text
- States parties must provide information to enable the Committee to assess the effect of any laws and practices that may interfere with women's right to enjoy privacy and other rights protected by article 17 on the basis of equality with men. An example of such interference arises where the sexual life of a woman is taken into consideration in deciding the extent of her legal rights and protections, including protection against rape. Another area where States may fail to respect women's privacy relates to their reproductive functions, for example, where there is a requirement for the husband's authorization to make a decision in regard to sterilization; where general requirements are imposed for the sterilization of women, such as having a certain number of children or being of a certain age, or where States impose a legal duty upon doctors and other health personnel to report cases of women who have undergone abortion. In these instances, other rights in the Covenant, such as those of articles 6 and 7, might also be at stake. Women's privacy may also be interfered with by private actors, such as employers who request a pregnancy test before hiring a woman. States parties should report on any laws and public or private actions that interfere with the equal enjoyment by women of the rights under article 17, and on the measures taken to eliminate such interference and to afford women protection from any such interference.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Health
- Person(s) affected
- Children
- Women
- Year
- 2000
Paragraph
Article 3: The equality of rights between men and women - replaces GC No. 4 2000, para. 21
- Paragraph text
- States parties must take measures to ensure that freedom of thought, conscience and religion, and the freedom to adopt the religion or belief of one's choice - including the freedom to change religion or belief and to express one's religion or belief - will be guaranteed and protected in law and in practice for both men and women, on the same terms and without discrimination. These freedoms, protected by article 18, must not be subject to restrictions otherthan those authorized by the Covenant and must not be constrained by, inter alia, rules requiring permission from third parties, or by interference from fathers, husbands, brothers or others. Article 18 may not be relied upon to justify discrimination against women by reference to freedom of thought, conscience and religion; States parties should therefore provide information on the status of women as regards their freedom of thought, conscience and religion, and indicate what steps they have taken or intend to take both to eliminate and prevent infringements of these freedoms in respect of women and to protect their right not to be discriminated against.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Equality & Inclusion
- Social & Cultural Rights
- Person(s) affected
- Men
- Women
- Year
- 2000
Paragraph
Article 3: The equality of rights between men and women - replaces GC No. 4 2000, para. 22
- Paragraph text
- In relation to article 19, States parties should inform the Committee of any laws or other factors which may impede women from exercising the rights protected under this provision on an equal basis. As the publication and dissemination of obscene and pornographic material which portrays women and girls as objects of violence or degrading or inhuman treatment is likely to promote these kinds of treatment of women and girls, States parties should provide information about legal measures to restrict the publication or dissemination of such material.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Equality & Inclusion
- Gender
- Person(s) affected
- Girls
- Men
- Women
- Year
- 2000
Paragraph
Article 3: The equality of rights between men and women - replaces GC No. 4 2000, para. 23
- Paragraph text
- States are required to treat men and women equally in regard to marriage in accordance with article 23, which has been elaborated further by general comment No. 19 (1990). Men and women have the right to enter into marriage only with their free and full consent, and States have an obligation to protect the enjoyment of this right on an equal basis. Many factors may prevent women from being able to make the decision to marry freely. One factor relates to the minimum age for marriage. That age should be set by the State on the basis of equal criteria for men and women. These criteria should ensure women's capacity to make an informed and uncoerced decision. A second factor in some States may be that either by statutory or customary law a guardian, who is generally male, consents to the marriage instead of the woman herself, thereby preventing women from exercising a free choice.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Equality & Inclusion
- Harmful Practices
- Person(s) affected
- Men
- Women
- Year
- 2000
Paragraph
Article 3: The equality of rights between men and women - replaces GC No. 4 2000, para. 24
- Paragraph text
- Another factor that may affect women's right to marry only when they have given free and full consent is the existence of social attitudes which tend to marginalize women victims of rape and put pressure on them to agree to marriage. A woman's free and full consent to marriage may also be undermined by laws which allow the rapist to have his criminal responsibility extinguished or mitigated if he marries the victim. States parties should indicate whether marrying the victim extinguishes or mitigates criminal responsibility and, in the case in which the victim is a minor, whether the rape reduces the marriageable age of the victim, particularly in societies where rape victims have to endure marginalization from society. A different aspect of the right to marry may be affected when States impose restrictions on remarriage by women that are not imposed on men. Also, the right to choose one's spouse may be restricted by laws or practices that prevent the marriage of a woman of a particular religion to a man who professes no religion or a different religion. States should provide information on these laws and practices and on the measures taken to abolish the laws and eradicate the practices which undermine the right of women to marry only when they have given free and full consent. It should also be noted that equality of treatment with regard to the right to marry implies that polygamy is incompatible with this principle. Polygamy violates the dignity of women. It is an inadmissible discrimination against women. Consequently, it should be definitely abolished wherever it continues to exist.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Equality & Inclusion
- Harmful Practices
- Violence
- Person(s) affected
- Women
- Year
- 2000
Paragraph
Article 3: The equality of rights between men and women - replaces GC No. 4 2000, para. 25
- Paragraph text
- To fulfil their obligations under article 23, paragraph 4, States parties must ensure that the matrimonial regime contains equal rights and obligations for both spouses with regard to the custody and care of children, the children's religious and moral education, the capacity to transmit to children the parent's nationality, and the ownership or administration of property, whether common property or property in the sole ownership of either spouse. States parties should review their legislation to ensure that married women have equal rights in regard to the ownership and administration of such property, where necessary. Also, States parties should ensure that no sex-based discrimination occurs in respect of the acquisition or loss of nationality by reason of marriage, of residence rights, and of the right of each spouse to retain the use of his or her original family name or to participate on an equal basis in the choice of a new family name. Equality during marriage implies that husband and wife should participate equally in responsibility and authority within the family.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Social & Cultural Rights
- Person(s) affected
- Children
- Families
- Men
- Women
- Year
- 2000
Paragraph
Article 3: The equality of rights between men and women - replaces GC No. 4 2000, para. 26
- Paragraph text
- States parties must also ensure equality in regard to the dissolution of marriage, which excludes the possibility of repudiation. The grounds for divorce and annulment should be the same for men and women, as well as decisions with regard to property distribution, alimony and the custody of children. Determination of the need to maintain contact between children and the non-custodial parent should be based on equal considerations. Women should also have equal inheritance rights to those of men when the dissolution of marriage is caused by the death of one of the spouses.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Equality & Inclusion
- Person(s) affected
- Children
- Men
- Women
- Year
- 2000
Paragraph
Article 3: The equality of rights between men and women - replaces GC No. 4 2000, para. 27
- Paragraph text
- In giving effect to recognition of the family in the context of article 23, it is important to accept the concept of the various forms of family, including unmarried couples and their children and single parents and their children, and to ensure the equal treatment of women in these contexts (see general comment No. 19, paragraph 2). Single-parent families frequently consist of a single woman caring for one or more children, and States parties should describe what measures of support are in place to enable her to discharge her parental functions on the basis of equality with a man in a similar position.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Children
- Families
- Men
- Women
- Year
- 2000
Paragraph
Article 3: The equality of rights between men and women - replaces GC No. 4 2000, para. 28
- Paragraph text
- The obligation of States parties to protect children (art. 24) should be carried out equally for boys and girls. States parties should report on measures taken to ensure that girls are treated equally to boys in education, in feeding and in health care, and provide the Committee with disaggregated data in this respect. States parties should eradicate, both through legislation and any other appropriate measures, all cultural or religious practices which jeopardize the freedom and well-being of female children.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Health
- Person(s) affected
- Boys
- Children
- Girls
- Women
- Year
- 2000
Paragraph
Article 3: The equality of rights between men and women - replaces GC No. 4 2000, para. 29
- Paragraph text
- The right to participate in the conduct of public affairs is not fully implemented everywhere on an equal basis. States parties must ensure that the law guarantees to women the rights contained in article 25 on equal terms with men and take effective and positive measures to promote and ensure women's participation in the conduct of public affairs and in public office, including appropriate affirmative action. Effective measures taken by States parties to ensure that all persons entitled to vote are able to exercise that right should not be discriminatory on the grounds of sex. The Committee requires States parties to provide statistical information on the percentage of women in publicly elected office, including the legislature, as well as in high- ranking civil service positions and the judiciary.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Equality & Inclusion
- Gender
- Person(s) affected
- Men
- Women
- Year
- 2000
Paragraph
Article 3: The equality of rights between men and women - replaces GC No. 4 2000, para. 30
- Paragraph text
- Discrimination against women is often intertwined with discrimination on other grounds such as race, colour, language, religion, political or other opinion, national or social origin, property, birth or other status. States parties should address the ways in which any instances of discrimination on other grounds affect women in a particular way, and include information on the measures taken to counter these effects.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Equality & Inclusion
- Person(s) affected
- Men
- Women
- Year
- 2000
Paragraph
Article 3: The equality of rights between men and women - replaces GC No. 4 2000, para. 31
- Paragraph text
- The right to equality before the law and freedom from discrimination, protected by article 26, requires States to act against discrimination by public and private agencies in all fields. Discrimination against women in areas such as social security laws (communications Nos. 172/84, Broeks v. Netherlands, Views of 9 April 1987; 182/84, Zwaan de Vries v. the Netherlands, Views of 9 April 1987; 218/1986, Vos v. the Netherlands, Views of 29 March 1989) as well as in the area of citizenship or rights of non-citizens in a country (communication No. 035/1978, Aumeeruddy-Cziffra et al. v. Mauritius, Views adopted 9 April 1981) violates article 26. The commission of so-called "honour crimes" which remain unpunished constitutes a serious violation of the Covenant and in particular of articles 6, 14 and 26. Laws which impose more severe penalties on women than on men for adultery or other offences also violate the requirement of equal treatment. The Committee has also often observed in reviewing States parties' reports that a large proportion of women are employed in areas which are not protected by labour laws and that prevailing customs and traditions discriminate against women, particularly with regard to access to better paid employment and to equal pay for work of equal value. States parties should review their legislation and practices and take the lead in implementing all measures necessary to eliminate discrimination against women in all fields, for example by prohibiting discrimination by private actors in areas such as employment, education, political activities and the provision of accommodation, goods and services. States parties should report on all these measures and provide information on the remedies available to victims of such discrimination.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Economic Rights
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Women
- Year
- 2000
Paragraph
Article 3: The equality of rights between men and women - replaces GC No. 4 2000, para. 32
- Paragraph text
- The rights which persons belonging to minorities enjoy under article 27 of the Covenant in respect of their language, culture and religion do not authorize any State, group or person to violate the right to the equal enjoyment by women of any Covenant rights, including the right to equal protection of the law. States should report on any legislation or administrative practices related to membership in a minority community that might constitute an infringement of the equal rights of women under the Covenant (communication No. 24/1977, Lovelace v. Canada, Views adopted July 1981) and on measures taken or envisaged to ensure the equal right of men and women to enjoy all civil and political rights in the Covenant. Likewise, States should report on measures taken to discharge their responsibilities in relation to cultural or religious practices within minority communities that affect the rights of women. In their reports, States parties should pay attention to the contribution made by women to the cultural life of their communities.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Equality & Inclusion
- Social & Cultural Rights
- Person(s) affected
- Ethnic minorities
- Women
- Year
- 2000
Paragraph
Article 4: Derogations
- Body
- Human Rights Committee
- Legal status
- Non-negotiated soft law
- Document type
- General Comment / Recommendation
- Year
- 1981
Document
Article 4: Derogations 1981, para. 1
- Paragraph text
- Article 4 of the Covenant has posed a number of problems for the Committee when considering reports from some States parties. When a public emergency which threatens the life of a nation arises and it is officially proclaimed, a State party may derogate from a number of rights to the extent strictly required by the situation. The State party, however, may not derogate from certain specific rights and may not take discriminatory measures on a number of grounds. The State party is also under an obligation to inform the other States parties immediately, through the Secretary-General, of the derogations it has made including the reasons therefor and the date on which the derogations are terminated.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Humanitarian
- Person(s) affected
- N.A.
- Year
- 1981
Paragraph
Article 4: Derogations 1981, para. 2
- Paragraph text
- States parties have generally indicated the mechanism provided in their legal systems for the declaration of a state of emergency and the applicable provisions of the law governing derogations. However, in the case of a few States which had apparently derogated from Covenant rights, it was unclear not only whether a state of emergency had been officially declared but also whether rights from which the Covenant allows no derogation had in fact not been derogated from and further whether the other States parties had been informed of the derogations and of the reasons for the derogations.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Humanitarian
- Person(s) affected
- All
- N.A.
- Year
- 1981
Paragraph
Article 4: Derogations 1981, para. 3
- Paragraph text
- The Committee holds the view that measures taken under article 4 are of an exceptional and temporary nature and may only last as long as the life of the nation concerned is threatened and that, in times of emergency, the protection of human rights becomes all the more important, particularly those rights from which no derogations can be made. The Committee also considers that it is equally important for States parties, in times of public emergency, to inform the other States parties of the nature and extent of the derogations they have made and of the reasons therefor and, further, to fulfil their reporting obligations under article 40 of the Covenant by indicating the nature and extent of each right derogated from together with the relevant documentation.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Humanitarian
- Person(s) affected
- N.A.
- Year
- 1981
Paragraph
Article 4: States of Emergency
- Body
- Human Rights Committee
- Legal status
- Non-negotiated soft law
- Document type
- General Comment / Recommendation
- Year
- 2001
- Document code
- CCPR/C/21/Rev.1/Add.11
Document
Article 4: States of Emergency 2001, para. 1
- Paragraph text
- Article 4 of the Covenant is of paramount importance for the system of protection for human rights under the Covenant. On the one hand, it allows for a State party unilaterally to derogate temporarily from a part of its obligations under the Covenant. On the other hand, article 4 subjects both this very measure of derogation, as well as its material consequences, to a specific regime of safeguards. The restoration of a state of normalcy where full respect for the Covenant can again be secured must be the predominant objective of a State party derogating from the Covenant. In this general comment, replacing its General Comment No 5, adopted at the thirteenth session (1981), the Committee seeks to assist States parties to meet the requirements of article 4.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Humanitarian
- Person(s) affected
- N.A.
- Year
- 2001
Paragraph
Article 4: States of Emergency 2001, para. 2
- Paragraph text
- Measures derogating from the provisions of the Covenant must be of an exceptional and temporary nature. Before a State moves to invoke article 4, two fundamental conditions must be met: the situation must amount to a public emergency which threatens the life of the nation, and the State party must have officially proclaimed a state of emergency. The latter requirement is essential for the maintenance of the principles of legality and rule of law at times when they are most needed. When proclaiming a state of emergency with consequences that could entail derogation from any provision of the Covenant, States must act within their constitutional and other provisions of law that govern such proclamation and the exercise of emergency powers; it is the task of the Committee to monitor the laws in question with respect to whether they enable and secure compliance with article 4. In order that the Committee can perform its task, States parties to the Covenant should include in their reports submitted under article 40 sufficient and precise information about their law and practice in the field of emergency powers.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Humanitarian
- Person(s) affected
- All
- N.A.
- Year
- 2001
Paragraph
Article 4: States of Emergency 2001, para. 3
- Paragraph text
- Not every disturbance or catastrophe qualifies as a public emergency which threatens the life of the nation, as required by article 4, paragraph 1. During armed conflict, whether international or non-international, rules of international humanitarian law become applicable and help, in addition to the provisions in article 4 and article 5, paragraph 1, of the Covenant, to prevent the abuse of a State's emergency powers. The Covenant requires that even during an armed conflict measures derogating from the Covenant are allowed only if and to the extent that the situation constitutes a threat to the life of the nation. If States parties consider invoking article 4 in other situations than an armed conflict, they should carefully consider the justification and why such a measure is necessary and legitimate in the circumstances. On a number of occasions the Committee has expressed its concern over States parties that appear to have derogated from rights protected by the Covenant, or whose domestic law appears to allow such derogation in situations not covered by article 4.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Humanitarian
- Person(s) affected
- All
- Year
- 2001
Paragraph
Article 4: States of Emergency 2001, para. 4
- Paragraph text
- A fundamental requirement for any measures derogating from the Covenant, as set forth in article 4, paragraph 1, is that such measures are limited to the extent strictly required by the exigencies of the situation. This requirement relates to the duration, geographical coverage and material scope of the state of emergency and any measures of derogation resorted to because of the emergency. Derogation from some Covenant obligations in emergency situations is clearly distinct from restrictions or limitations allowed even in normal times under several provisions of the Covenant. Nevertheless, the obligation to limit any derogations to those strictly required by the exigencies of the situation reflects the principle of proportionality which is common to derogation and limitation powers. Moreover, the mere fact that a permissible derogation from a specific provision may, of itself, be justified by the exigencies of the situation does not obviate the requirement that specific measures taken pursuant to the derogation must also be shown to be required by the exigencies of the situation. In practice, this will ensure that no provision of the Covenant, however validly derogated from will be entirely inapplicable to the behaviour of a State party. When considering States parties' reports the Committee has expressed its concern over insufficient attention being paid to the principle of proportionality.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Humanitarian
- Person(s) affected
- All
- Year
- 2001
Paragraph
Article 4: States of Emergency 2001, para. 5
- Paragraph text
- The issues of when rights can be derogated from, and to what extent, cannot be separated from the provision in article 4, paragraph 1, of the Covenant according to which any measures derogating from a State party's obligations under the Covenant must be limited "to the extent strictly required by the exigencies of the situation". This condition requires that States parties provide careful justification not only for their decision to proclaim a state of emergency but also for any specific measures based on such a proclamation. If States purport to invoke the right to derogate from the Covenant during, for instance, a natural catastrophe, a mass demonstration including instances of violence, or a major industrial accident, they must be able to justify not only that such a situation constitutes a threat to the life of the nation, but also that all their measures derogating from the Covenant are strictly required by the exigencies of the situation. In the opinion of the Committee, the possibility of restricting certain Covenant rights under the terms of, for instance, freedom of movement (article 12) or freedom of assembly (article 21) is generally sufficient during such situations and no derogation from the provisions in question would be justified by the exigencies of the situation.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Humanitarian
- Person(s) affected
- All
- Year
- 2001
Paragraph
Article 4: States of Emergency 2001, para. 6
- Paragraph text
- The fact that some of the provisions of the Covenant have been listed in article 4 (paragraph 2), as not being subject to derogation does not mean that other articles in the Covenant may be subjected to derogations at will, even where a threat to the life of the nation exists. The legal obligation to narrow down all derogations to those strictly required by the exigencies of the situation establishes both for States parties and for the Committee a duty to conduct a careful analysis under each article of the Covenant based on an objective assessment of the actual situation.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Humanitarian
- Person(s) affected
- All
- N.A.
- Year
- 2001
Paragraph
Article 4: States of Emergency 2001, para. 7
- Paragraph text
- Article 4, paragraph 2, of the Covenant explicitly prescribes that no derogation from the following articles may be made: article 6 (right to life), article 7 (prohibition of torture or cruel, inhuman or degrading punishment, or of medical or scientific experimentation without consent), article 8, paragraphs 1 and 2 (prohibition of slavery, slave-trade and servitude), article 11 (prohibition of imprisonment because of inability to fulfil a contractual obligation), article 15 (the principle of legality in the field of criminal law, i.e. the requirement of both criminal liability and punishment being limited to clear and precise provisions in the law that was in place and applicable at the time the act or omission took place, except in cases where a later law imposes a lighter penalty), article 16 (the recognition of everyone as a person before the law), and article 18 (freedom of thought, conscience and religion). The rights enshrined in these provisions are non-derogable by the very fact that they are listed in article 4, paragraph 2. The same applies, in relation to States that are parties to the Second Optional Protocol to the Covenant, aiming at the abolition of the death penalty, as prescribed in article 6 of that Protocol. Conceptually, the qualification of a Covenant provision as a non-derogable one does not mean that no limitations or restrictions would ever be justified. The reference in article 4, paragraph 2, to article 18, a provision that includes a specific clause on restrictions in its paragraph 3, demonstrates that the permissibility of restrictions is independent of the issue of derogability. Even in times of most serious public emergencies, States that interfere with the freedom to manifest one's religion or belief must justify their actions by referring to the requirements specified in article 18, paragraph 3. On several occasions the Committee has expressed its concern about rights that are non-derogable according to article 4, paragraph 2, being either derogated from or under a risk of derogation owing to inadequacies in the legal regime of the State party.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2001
Paragraph
Article 4: States of Emergency 2001, para. 8
- Paragraph text
- According to article 4, paragraph 1, one of the conditions for the justifiability of any derogation from the Covenant is that the measures taken do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin. Even though article 26 or the other Covenant provisions related to non-discrimination (articles 2, 3, 14, paragraph 1, 23, paragraph 4, 24, paragraph 1, and 25) have not been listed among the non-derogable provisions in article 4, paragraph 2, there are elements or dimensions of the right to non-discrimination that cannot be derogated from in any circumstances. In particular, this provision of article 4, paragraph 1, must be complied with if any distinctions between persons are made when resorting to measures that derogate from the Covenant.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Equality & Inclusion
- Humanitarian
- Person(s) affected
- All
- Year
- 2001
Paragraph
Article 4: States of Emergency 2001, para. 9
- Paragraph text
- Furthermore, article 4, paragraph 1, requires that no measure derogating from the provisions of the Covenant may be inconsistent with the State party's other obligations under international law, particularly the rules of international humanitarian law. Article 4 of the Covenant cannot be read as justification for derogation from the Covenant if such derogation would entail a breach of the State's other international obligations, whether based on treaty or general international law. This is reflected also in article 5, paragraph 2, of the Covenant according to which there shall be no restriction upon or derogation from any fundamental rights recognized in other instruments on the pretext that the Covenant does not recognize such rights or that it recognizes them to a lesser extent.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Humanitarian
- Person(s) affected
- N.A.
- Year
- 2001
Paragraph
Article 4: States of Emergency 2001, para. 10
- Paragraph text
- Although it is not the function of the Human Rights Committee to review the conduct of a State party under other treaties, in exercising its functions under the Covenant the Committee has the competence to take a State party's other international obligations into account when it considers whether the Covenant allows the State party to derogate from specific provisions of the Covenant. Therefore, when invoking article 4, paragraph 1, or when reporting under article 40 on the legal framework related to emergencies, States parties should present information on their other international obligations relevant for the protection of the rights in question, in particular those obligations that are applicable in times of emergency. In this respect, States parties should duly take into account the developments within international law as to human rights standards applicable in emergency situations.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Humanitarian
- Person(s) affected
- N.A.
- Year
- 2001
Paragraph
Article 4: States of Emergency 2001, para. 11
- Paragraph text
- The enumeration of non-derogable provisions in article 4 is related to, but not identical with, the question whether certain human rights obligations bear the nature of peremptory norms of international law. The proclamation of certain provisions of the Covenant as being of a non derogable nature, in article 4, paragraph 2, is to be seen partly as recognition of the peremptory nature of some fundamental rights ensured in treaty form in the Covenant (e.g., articles 6 and 7). However, it is apparent that some other provisions of the Covenant were included in the list of non-derogable provisions because it can never become necessary to derogate from these rights during a state of emergency (e.g., articles 11 and 18). Furthermore, the category of peremptory norms extends beyond the list of non-derogable provisions as given in article 4, paragraph 2. States parties may in no circumstances invoke article 4 of the Covenant as justification for acting in violation of humanitarian law or peremptory norms of international law, for instance by taking hostages, by imposing collective punishments, through arbitrary deprivations of liberty or by deviating from fundamental principles of fair trial, including the presumption of innocence.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Humanitarian
- Person(s) affected
- N.A.
- Year
- 2001
Paragraph
Article 4: States of Emergency 2001, para. 12
- Paragraph text
- In assessing the scope of legitimate derogation from the Covenant, one criterion can be found in the definition of certain human rights violations as crimes against humanity. If action conducted under the authority of a State constitutes a basis for individual criminal responsibility for a crime against humanity by the persons involved in that action, article 4 of the Covenant cannot be used as justification that a state of emergency exempted the State in question from its responsibility in relation to the same conduct. Therefore, the recent codification of crimes against humanity, for jurisdictional purposes, in the Rome Statute of the International Criminal Court is of relevance in the interpretation of article 4 of the Covenant.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Humanitarian
- Person(s) affected
- N.A.
- Year
- 2001
Paragraph
Article 4: States of Emergency 2001, para. 13a
- Paragraph text
- [In those provisions of the Covenant that are not listed in article 4, paragraph 2, there are elements that in the Committee's opinion cannot be made subject to lawful derogation under article 4. Some illustrative examples are presented below.] All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person. Although this right, prescribed in article 10 of the Covenant, is not separately mentioned in the list of non-derogable rights in article 4, paragraph 2, the Committee believes that here the Covenant expresses a norm of general international law not subject to derogation. This is supported by the reference to the inherent dignity of the human person in the preamble to the Covenant and by the close connection between articles 7 and 10.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Humanitarian
- Person(s) affected
- All
- Year
- 2001
Paragraph
Article 4: States of Emergency 2001, para. 13b
- Paragraph text
- [In those provisions of the Covenant that are not listed in article 4, paragraph 2, there are elements that in the Committee's opinion cannot be made subject to lawful derogation under article 4. Some illustrative examples are presented below.] The prohibitions against taking of hostages, abductions or unacknowledged detention are not subject to derogation. The absolute nature of these prohibitions, even in times of emergency, is justified by their status as norms of general international law.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Humanitarian
- Person(s) affected
- N.A.
- Year
- 2001
Paragraph
Article 4: States of Emergency 2001, para. 13c
- Paragraph text
- [In those provisions of the Covenant that are not listed in article 4, paragraph 2, there are elements that in the Committee's opinion cannot be made subject to lawful derogation under article 4. Some illustrative examples are presented below.] The Committee is of the opinion that the international protection of the rights of persons belonging to minorities includes elements that must be respected in all circumstances. This is reflected in the prohibition against genocide in international law, in the inclusion of a non-discrimination clause in article 4 itself (paragraph 1), as well as in the non-derogable nature of article 18.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Humanitarian
- Person(s) affected
- Ethnic minorities
- Year
- 2001
Paragraph
Article 4: States of Emergency 2001, para. 13d
- Paragraph text
- [In those provisions of the Covenant that are not listed in article 4, paragraph 2, there are elements that in the Committee's opinion cannot be made subject to lawful derogation under article 4. Some illustrative examples are presented below.] As confirmed by the Rome Statute of the International Criminal Court, deportation or forcible transfer of population without grounds permitted under international law, in the form of forced displacement by expulsion or other coercive means from the area in which the persons concerned are lawfully present, constitutes a crime against humanity. The legitimate right to derogate from article 12 of the Covenant during a state of emergency can never be accepted as justifying such measures.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Humanitarian
- Movement
- Person(s) affected
- All
- Year
- 2001
Paragraph
Article 4: States of Emergency 2001, para. 13e
- Paragraph text
- [In those provisions of the Covenant that are not listed in article 4, paragraph 2, there are elements that in the Committee's opinion cannot be made subject to lawful derogation under article 4. Some illustrative examples are presented below.] No declaration of a state of emergency made pursuant to article 4, paragraph 1, may be invoked as justification for a State party to engage itself, contrary to article 20, in propaganda for war, or in advocacy of national, racial or religious hatred that would constitute incitement to discrimination, hostility or violence.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Humanitarian
- Person(s) affected
- All
- Year
- 2001
Paragraph
Article 4: States of Emergency 2001, para. 14
- Paragraph text
- Article 2, paragraph 3, of the Covenant requires a State party to the Covenant to provide remedies for any violation of the provisions of the Covenant. This clause is not mentioned in the list of non-derogable provisions in article 4, paragraph 2, but it constitutes a treaty obligation inherent in the Covenant as a whole. Even if a State party, during a state of emergency, and to the extent that such measures are strictly required by the exigencies of the situation, may introduce adjustments to the practical functioning of its procedures governing judicial or other remedies, the State party must comply with the fundamental obligation, under article 2, paragraph 3, of the Covenant to provide a remedy that is effective.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Humanitarian
- Person(s) affected
- N.A.
- Year
- 2001
Paragraph
Article 4: States of Emergency 2001, para. 15
- Paragraph text
- It is inherent in the protection of rights explicitly recognized as non-derogable in article 4, paragraph 2, that they must be secured by procedural guarantees, including, often, judicial guarantees. The provisions of the Covenant relating to procedural safeguards may never be made subject to measures that would circumvent the protection of non-derogable rights. Article 4 may not be resorted to in a way that would result in derogation from non-derogable rights. Thus, for example, as article 6 of the Covenant is non-derogable in its entirety, any trial leading to the imposition of the death penalty during a state of emergency must conform to the provisions of the Covenant, including all the requirements of articles 14 and 15.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Humanitarian
- Person(s) affected
- All
- Year
- 2001
Paragraph
Article 4: States of Emergency 2001, para. 16
- Paragraph text
- Safeguards related to derogation, as embodied in article 4 of the Covenant, are based on the principles of legality and the rule of law inherent in the Covenant as a whole. As certain elements of the right to a fair trial are explicitly guaranteed under international humanitarian law during armed conflict, the Committee finds no justification for derogation from these guarantees during other emergency situations. The Committee is of the opinion that the principles of legality and the rule of law require that fundamental requirements of fair trial must be respected during a state of emergency. Only a court of law may try and convict a person for a criminal offence. The presumption of innocence must be respected. In order to protect non-derogable rights, the right to take proceedings before a court to enable the court to decide without delay on the lawfulness of detention, must not be diminished by a State party's decision to derogate from the Covenant.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Humanitarian
- Person(s) affected
- All
- Year
- 2001
Paragraph
Article 4: States of Emergency 2001, para. 17
- Paragraph text
- In paragraph 3 of article 4, States parties, when they resort to their power of derogation under article 4, commit themselves to a regime of international notification. A State party availing itself of the right of derogation must immediately inform the other States parties, through the United Nations Secretary General, of the provisions it has derogated from and of the reasons for such measures. Such notification is essential not only for the discharge of the Committee's functions, in particular in assessing whether the measures taken by the State party were strictly required by the exigencies of the situation, but also to permit other States parties to monitor compliance with the provisions of the Covenant. In view of the summary character of many of the notifications received in the past, the Committee emphasizes that the notification by States parties should include full information about the measures taken and a clear explanation of the reasons for them, with full documentation attached regarding their law. Additional notifications are required if the State party subsequently takes further measures under article 4, for instance by extending the duration of a state of emergency. The requirement of immediate notification applies equally in relation to the termination of derogation. These obligations have not always been respected: States parties have failed to notify other States parties, through the Secretary-General, of a proclamation of a state of emergency and of the resulting measures of derogation from one or more provisions of the Covenant, and States parties have sometimes neglected to submit a notification of territorial or other changes in the exercise of their emergency powers. Sometimes, the existence of a state of emergency and the question of whether a State party has derogated from provisions of the Covenant have come to the attention of the Committee only incidentally, in the course of the consideration of a State party's report. The Committee emphasizes the obligation of immediate international notification whenever a State party takes measures derogating from its obligations under the Covenant. The duty of the Committee to monitor the law and practice of a State party for compliance with article 4 does not depend on whether that State party has submitted a notification.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Humanitarian
- Person(s) affected
- N.A.
- Year
- 2001
Paragraph
Article 6: right to life
- Body
- Human Rights Committee
- Legal status
- Non-negotiated soft law
- Document type
- General Comment / Recommendation
- Year
- 2019
- Document code
- CCPR/C/GC/36
Document
Article 6: The right to life
- Body
- Human Rights Committee
- Legal status
- Non-negotiated soft law
- Document type
- General Comment / Recommendation
- Year
- 1982
Document
Article 6: The right to life
- Body
- Human Rights Committee
- Legal status
- Non-negotiated soft law
- Document type
- General Comment / Recommendation
- Year
- 1985
Document
Article 6: The right to life 1982, para. 1
- Paragraph text
- The right to life enunciated in article 6 of the Covenant has been dealt with in all State reports. It is the supreme right from which no derogation is permitted even in time of public emergency which threatens the life of the nation (art. 4). However, the Committee has noted that quite often the information given concerning article 6 was limited to only one or other aspect of this right. It is a right which should not be interpreted narrowly.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Humanitarian
- Person(s) affected
- All
- Year
- 1982
Paragraph
Article 6: The right to life 1982, para. 2
- Paragraph text
- The Committee observes that war and other acts of mass violence continue to be a scourge of humanity and take the lives of thousands of innocent human beings every year. Under the Charter of the United Nations the threat or use of force by any State against another State, except in exercise of the inherent right of self-defence, is already prohibited. The Committee considers that States have the supreme duty to prevent wars, acts of genocide and other acts of mass violence causing arbitrary loss of life. Every effort they make to avert the danger of war, especially thermonuclear war, and to strengthen international peace and security would constitute the most important condition and guarantee for the safeguarding of the right to life. In this respect, the Committee notes, in particular, a connection between article 6 and article 20, which states that the law shall prohibit any propaganda for war (para. 1) or incitement to violence (para. 2) as therein described.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Humanitarian
- Violence
- Person(s) affected
- All
- Year
- 1982
Paragraph
Article 6: The right to life 1982, para. 3
- Paragraph text
- The protection against arbitrary deprivation of life which is explicitly required by the third sentence of article 6 (1) is of paramount importance. The Committee considers that States parties should take measures not only to prevent and punish deprivation of life by criminal acts, but also to prevent arbitrary killing by their own security forces. The deprivation of life by the authorities of the State is a matter of the utmost gravity. Therefore, the law must strictly control and limit the circumstances in which a person may be deprived of his life by such authorities.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 1982
Paragraph
Article 6: The right to life 1982, para. 4
- Paragraph text
- States parties should also take specific and effective measures to prevent the disappearance of individuals, something which unfortunately has become all too frequent and leads too often to arbitrary deprivation of life. Furthermore, States should establish effective facilities and procedures to investigate thoroughly cases of missing and disappeared persons in circumstances which may involve a violation of the right to life.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Movement
- Person(s) affected
- Persons on the move
- Year
- 1982
Paragraph
Article 6: The right to life 1982, para. 5
- Paragraph text
- Moreover, the Committee has noted that the right to life has been too often narrowly interpreted. The expression “inherent right to life” cannot properly be understood in a restrictive manner, and the protection of this right requires that States adopt positive measures. In this connection, the Committee considers that it would be desirable for States parties to take all possible measures to reduce infant mortality and to increase life expectancy, especially in adopting measures to eliminate malnutrition and epidemics.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Food & Nutrition
- Governance & Rule of Law
- Health
- Person(s) affected
- Infants
- Year
- 1982
Paragraph
Article 6: The right to life 1982, para. 6
- Paragraph text
- While it follows from article 6 (2) to (6) that States parties are not obliged to abolish the death penalty totally they are obliged to limit its use and, in particular, to abolish it for other than the “most serious crimes”. Accordingly, they ought to consider reviewing their criminal laws in this light and, in any event, are obliged to restrict the application of the death penalty to the “most serious crimes”. The article also refers generally to abolition in terms which strongly suggest (paras. 2 (2) and (6)) that abolition is desirable. The Committee concludes that all measures of abolition should be considered as progress in the enjoyment of the right to life within the meaning of article 40, and should as such be reported to the Committee. The Committee notes that a number of States have already abolished the death penalty or suspended its application. Nevertheless, States’ reports show that progress made towards abolishing or limiting the application of the death penalty is quite inadequate.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 1982
Paragraph
Article 6: The right to life 1982, para. 7
- Paragraph text
- The Committee is of the opinion that the expression “most serious crimes” must be read restrictively to mean that the death penalty should be a quite exceptional measure. It also follows from the express terms of article 6 that it can only be imposed in accordance with the law in force at the time of the commission of the crime and not contrary to the Covenant. The procedural guarantees therein prescribed must be observed, including the right to a fair hearing by an independent tribunal, the presumption of innocence, the minimum guarantees for the defence, and the right to review by a higher tribunal. These rights are applicable in addition to the particular right to seek pardon or commutation of the sentence.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 1982
Paragraph
Article 6: The right to life 1985, para. 1
- Paragraph text
- In its general comment No. 6 [16] adopted at its 378th meeting on 27 July 1982, the Human Rights Committee observed that the right to life enunciated in the first paragraph of article 6 of the International Covenant on Civil and Political Rights is the supreme right from which no derogation is permitted even in time of public emergency. The same right to life is enshrined in article 3 of the Universal Declaration of Human Rights adopted by the General Assembly of the United Nations on 10 December 1948. It is basic to all human rights.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Humanitarian
- Person(s) affected
- All
- Year
- 1985
Paragraph
Article 6: The right to life 1985, para. 2
- Paragraph text
- In its previous general comment, the Committee also observed that it is the supreme duty of States to prevent wars. War and other acts of mass violence continue to be a scourge of humanity and take the lives of thousands of innocent human beings every year.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Humanitarian
- Person(s) affected
- All
- Year
- 1985
Paragraph
Article 6: The right to life 1985, para. 3
- Paragraph text
- While remaining deeply concerned by the toll of human life taken by conventional weapons in armed conflicts, the Committee has noted that, during successive sessions of the General Assembly, representatives from all geographical regions have expressed their growing concern at the development and proliferation of increasingly awesome weapons of mass destruction, which not only threaten human life but also absorb resources that could otherwise be used for vital economic and social purposes, particularly for the benefit of developing countries, and thereby for promoting and securing the enjoyment of human rights for all.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Environment
- Humanitarian
- Person(s) affected
- All
- Year
- 1985
Paragraph
Article 6: The right to life 1985, para. 4
- Paragraph text
- The Committee associates itself with this concern. It is evident that the designing, testing, manufacture, possession and deployment of nuclear weapons are among the greatest threats to the right to life which confront mankind today. This threat is compounded by the danger that the actual use of such weapons may be brought about, not only in the event of war, but even through human or mechanical error or failure.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Humanitarian
- Person(s) affected
- All
- Year
- 1985
Paragraph
Article 6: The right to life 1985, para. 5
- Paragraph text
- Furthermore, the very existence and gravity of this threat generates a climate of suspicion and fear between States, which is in itself antagonistic to the promotion of universal respect for and observance of human rights and fundamental freedoms in accordance with the Charter of the United Nations and the International Covenants on Human Rights.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 1985
Paragraph
Article 6: The right to life 1985, para. 6
- Paragraph text
- The production, testing, possession, deployment and use of nuclear weapons should be prohibited and recognized as crimes against humanity.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Environment
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 1985
Paragraph
Article 6: The right to life 1985, para. 7
- Paragraph text
- The Committee accordingly, in the interest of mankind, calls upon all States, whether Parties to the Covenant or not, to take urgent steps, unilaterally and by agreement, to rid the world of this menace.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 1985
Paragraph
Article 7: Prohibition of torture, or other cruel, inhuman or degrading treatment or punishment - replaces GC No. 7
- Body
- Human Rights Committee
- Legal status
- Non-negotiated soft law
- Document type
- General Comment / Recommendation
- Year
- 1992
Document
Article 7: Prohibition of torture, or other cruel, inhuman or degrading treatment or punishment - replaces GC No. 7 1992, para. 1
- Paragraph text
- This general comment replaces general comment No. 7 (the sixteenth session, 1982) reflecting and further developing it.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- N.A.
- Year
- 1992
Paragraph
Article 7: Prohibition of torture, or other cruel, inhuman or degrading treatment or punishment - replaces GC No. 7 1992, para. 2
- Paragraph text
- The aim of the provisions of article 7 of the International Covenant on Civil and Political Rights is to protect both the dignity and the physical and mental integrity of the individual. It is the duty of the State party to afford everyone protection through legislative and other measures as may be necessary against the acts prohibited by article 7, whether inflicted by people acting in their official capacity, outside their official capacity or in a private capacity. The prohibition in article 7 is complemented by the positive requirements of article 10, paragraph 1, of the Covenant, which stipulates that "All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person."
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Equality & Inclusion
- Governance & Rule of Law
- Health
- Person(s) affected
- All
- Year
- 1992
Paragraph
Article 7: Prohibition of torture, or other cruel, inhuman or degrading treatment or punishment - replaces GC No. 7 1992, para. 3
- Paragraph text
- The text of article 7 allows of no limitation. The Committee also reaffirms that, even in situations of public emergency such as those referred to in article 4 of the Covenant, no derogation from the provision of article 7 is allowed and its provisions must remain in force. The Committee likewise observes that no justification or extenuating circumstances may be invoked to excuse a violation of article 7 for any reasons, including those based on an order from a superior officer or public authority.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Humanitarian
- Person(s) affected
- All
- Year
- 1992
Paragraph
Article 7: Prohibition of torture, or other cruel, inhuman or degrading treatment or punishment - replaces GC No. 7 1992, para. 4
- Paragraph text
- The Covenant does not contain any definition of the concepts covered by article 7, nor does the Committee consider it necessary to draw up a list of prohibited acts or to establish sharp distinctions between the different kinds of punishment or treatment; the distinctions depend on the nature, purpose and severity of the treatment applied.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- N.A.
- Year
- 1992
Paragraph
Article 7: Prohibition of torture, or other cruel, inhuman or degrading treatment or punishment - replaces GC No. 7 1992, para. 5
- Paragraph text
- The prohibition in article 7 relates not only to acts that cause physical pain but also to acts that cause mental suffering to the victim. In the Committee's view, moreover, the prohibition must extend to corporal punishment, including excessive chastisement ordered as punishment for a crime or as an educative or disciplinary measure. It is appropriate to emphasize in this regard that article 7 protects, in particular, children, pupils and patients in teaching and medical institutions.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Health
- Person(s) affected
- Children
- Year
- 1992
Paragraph
Article 7: Prohibition of torture, or other cruel, inhuman or degrading treatment or punishment - replaces GC No. 7 1992, para. 6
- Paragraph text
- The Committee notes that prolonged solitary confinement of the detained or imprisoned person may amount to acts prohibited by article 7. As the Committee has stated in its general comment No. 6 (16), article 6 of the Covenant refers generally to abolition of the death penalty in terms that strongly suggest that abolition is desirable. Moreover, when the death penalty is applied by a State party for the most serious crimes, it must not only be strictly limited in accordance with article 6 but it must be carried out in such a way as to cause the least possible physical and mental suffering.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Health
- Person(s) affected
- All
- Year
- 1992
Paragraph
Article 7: Prohibition of torture, or other cruel, inhuman or degrading treatment or punishment - replaces GC No. 7 1992, para. 7
- Paragraph text
- Article 7 expressly prohibits medical or scientific experimentation without the free consent of the person concerned. The Committee notes that the reports of States parties generally contain little information on this point. More attention should be given to the need and means to ensure observance of this provision. The Committee also observes that special protection in regard to such experiments is necessary in the case of persons not capable of giving valid consent, and in particular those under any form of detention or imprisonment. Such persons should not be subjected to any medical or scientific experimentation that may be detrimental to their health.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Equality & Inclusion
- Governance & Rule of Law
- Health
- Person(s) affected
- All
- Year
- 1992
Paragraph
Article 7: Prohibition of torture, or other cruel, inhuman or degrading treatment or punishment - replaces GC No. 7 1992, para. 8
- Paragraph text
- The Committee notes that it is not sufficient for the implementation of article 7 to prohibit such treatment or punishment or to make it a crime. States parties should inform the Committee of the legislative, administrative, judicial and other measures they take to prevent and punish acts of torture and cruel, inhuman and degrading treatment in any territory under their jurisdiction.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 1992
Paragraph
Article 7: Prohibition of torture, or other cruel, inhuman or degrading treatment or punishment - replaces GC No. 7 1992, para. 9
- Paragraph text
- In the view of the Committee, States parties must not expose individuals to the danger of torture or cruel, inhuman or degrading treatment or punishment upon return to another country by way of their extradition, expulsion or refoulement. States parties should indicate in their reports what measures they have adopted to that end.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 1992
Paragraph
Article 7: Prohibition of torture, or other cruel, inhuman or degrading treatment or punishment - replaces GC No. 7 1992, para. 10
- Paragraph text
- The Committee should be informed how States parties disseminate, to the population at large, relevant information concerning the ban on torture and the treatment prohibited by article 7. Enforcement personnel, medical personnel, police officers and any other persons involved in the custody or treatment of any individual subjected to any form of arrest, detention or imprisonment must receive appropriate instruction and training. States parties should inform the Committee of the instruction and training given and the way in which the prohibition of article 7 forms an integral part of the operational rules and ethical standards to be followed by such persons.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 1992
Paragraph
Article 7: Prohibition of torture, or other cruel, inhuman or degrading treatment or punishment - replaces GC No. 7 1992, para. 11
- Paragraph text
- In addition to describing steps to provide the general protection against acts prohibited under article 7 to which anyone is entitled, the State party should provide detailed information on safeguards for the special protection of particularly vulnerable persons. It should be noted that keeping under systematic review interrogation rules, instructions, methods and practices as well as arrangements for the custody and treatment of persons subjected to any form of arrest, detention or imprisonment is an effective means of preventing cases of torture and ill treatment. To guarantee the effective protection of detained persons, provisions should be made for detainees to be held in places officially recognized as places of detention and for their names and places of detention, as well as for the names of persons responsible for their detention, to be kept in registers readily available and accessible to those concerned, including relatives and friends. To the same effect, the time and place of all interrogations should be recorded, together with the names of all those present and this information should also be available for purposes of judicial or administrative proceedings. Provisions should also be made against incommunicado detention. In that connection, States parties should ensure that any places of detention be free from any equipment liable to be used for inflicting torture or ill treatment. The protection of the detainee also requires that prompt and regular access be given to doctors and lawyers and, under appropriate supervision when the investigation so requires, to family members.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- Families
- Year
- 1992
Paragraph
Article 7: Prohibition of torture, or other cruel, inhuman or degrading treatment or punishment - replaces GC No. 7 1992, para. 12
- Paragraph text
- It is important for the discouragement of violations under article 7 that the law must prohibit the use of admissibility in judicial proceedings of statements or confessions obtained through torture or other prohibited treatment.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 1992
Paragraph
Article 7: Prohibition of torture, or other cruel, inhuman or degrading treatment or punishment - replaces GC No. 7 1992, para. 13
- Paragraph text
- States parties should indicate when presenting their reports the provisions of their criminal law which penalize torture and cruel, inhuman and degrading treatment or punishment, specifying the penalties applicable to such acts, whether committed by public officials or other persons acting on behalf of the State, or by private persons. Those who violate article 7, whether by encouraging, ordering, tolerating or perpetrating prohibited acts, must be held responsible. Consequently, those who have refused to obey orders must not be punished or subjected to any adverse treatment.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 1992
Paragraph
Article 7: Prohibition of torture, or other cruel, inhuman or degrading treatment or punishment - replaces GC No. 7 1992, para. 14
- Paragraph text
- Article 7 should be read in conjunction with article 2, paragraph 3, of the Covenant. In their reports, States parties should indicate how their legal system effectively guarantees the immediate termination of all the acts prohibited by article 7 as well as appropriate redress. The right to lodge complaints against maltreatment prohibited by article 7 must be recognized in the domestic law. Complaints must be investigated promptly and impartially by competent authorities so as to make the remedy effective. The reports of States parties should provide specific information on the remedies available to victims of maltreatment and the procedure that complainants must follow, and statistics on the number of complaints and how they have been dealt with.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 1992
Paragraph
Article 7: Prohibition of torture, or other cruel, inhuman or degrading treatment or punishment - replaces GC No. 7 1992, para. 15
- Paragraph text
- The Committee has noted that some States have granted amnesty in respect of acts of torture. Amnesties are generally incompatible with the duty of States to investigate such acts; to guarantee freedom from such acts within their jurisdiction; and to ensure that they do not occur in the future. States may not deprive individuals of the right to an effective remedy, including compensation and such full rehabilitation as may be possible.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 1992
Paragraph
Article 7: Torture or cruel, inhuman or degrading treatment or punishment - replaced by GC No. 20
- Body
- Human Rights Committee
- Legal status
- Non-negotiated soft law
- Document type
- General Comment / Recommendation
- Year
- 1982
Document
Article 7: Torture or cruel, inhuman or degrading treatment or punishment - replaced by GC No. 20 1982, para. 1
- Paragraph text
- In examining the reports of States parties, members of the Committee have often asked for further information under article 7 which prohibits, in the first place, torture or cruel, inhuman or degrading treatment or punishment. The Committee recalls that even in situations of public emergency such as are envisaged by article 4 (1) this provision is non-derogable under article 4 (2). Its purpose is to protect the integrity and dignity of the individual. The Committee notes that it is not sufficient for the implementation of this article to prohibit such treatment or punishment or to make it a crime. Most States have penal provisions which are applicable to cases of torture or similar practices. Because such cases nevertheless occur, it follows from article 7, read together with article 2 of the Covenant, that States must ensure an effective protection through some machinery of control. Complaints about ill-treatment must be investigated effectively by competent authorities. Those found guilty must be held responsible, and the alleged victims must themselves have effective remedies at their disposal, including the right to obtain compensation. Among the safeguards which may make control effective are provisions against detention incommunicado, granting, without prejudice to the investigation, persons such as doctors, lawyers and family members access to the detainees; provisions requiring that detainees should be held in places that are publicly recognized and that their names and places of detention should be entered in a central register available to persons concerned, such as relatives; provisions making confessions or other evidence obtained through torture or other treatment contrary to article 7 inadmissible in court; and measures of training and instruction of law enforcement officials not to apply such treatment.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Humanitarian
- Person(s) affected
- All
- Families
- Year
- 1982
Paragraph
Article 7: Torture or cruel, inhuman or degrading treatment or punishment - replaced by GC No. 20 1982, para. 2
- Paragraph text
- As appears from the terms of this article, the scope of protection required goes far beyond torture as normally understood. It may not be necessary to draw sharp distinctions between the various prohibited forms of treatment or punishment. These distinctions depend on the kind, purpose and severity of the particular treatment. In the view of the Committee the prohibition must extend to corporal punishment, including excessive chastisement as an educational or disciplinary measure. Even such a measure as solitary confinement may, according to the circumstances, and especially when the person is kept incommunicado, be contrary to this article. Moreover, the article clearly protects not only persons arrested or imprisoned, but also pupils and patients in educational and medical institutions. Finally, it is also the duty of public authorities to ensure protection by the law against such treatment even when committed by persons acting outside or without any official authority. For all persons deprived of their liberty, the prohibition of treatment contrary to article 7 is supplemented by the positive requirement of article 10 (1) of the Covenant that they shall be treated with humanity and with respect for the inherent dignity of the human person.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Education
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 1982
Paragraph
Article 7: Torture or cruel, inhuman or degrading treatment or punishment - replaced by GC No. 20 1982, para. 3
- Paragraph text
- In particular, the prohibition extends to medical or scientific experimentation without the free consent of the person concerned (art. 7, second sentence). The Committee notes that the reports of States parties have generally given little or no information on this point. It takes the view that at least in countries where science and medicine are highly developed, and even for peoples and areas outside their borders if affected by their experiments, more attention should be given to the possible need and means to ensure the observance of this provision. Special protection in regard to such experiments is necessary in the case of persons not capable of giving their consent.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Health
- Person(s) affected
- All
- Year
- 1982
Paragraph
Article 9: Liberty and security of person
- Body
- Human Rights Committee
- Legal status
- Non-negotiated soft law
- Document type
- General Comment / Recommendation
- Year
- 2014
- Document code
- CCPR/C/GC/35
Document
Article 9: Liberty and security of person 2014, para. 1
- Paragraph text
- The present general comment replaces general comment No. 8 (sixteenth session), adopted in 1982.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- N.A.
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 2
- Paragraph text
- Article 9 recognizes and protects both liberty of person and security of person. In the Universal Declaration of Human Rights, article 3 proclaims that everyone has the right to life, liberty and security of person. That is the first substantive right protected by the Universal Declaration, which indicates the profound importance of article 9 of the Covenant both for individuals and for society as a whole. Liberty and security of person are precious for their own sake, and also because the deprivation of liberty and security of person have historically been principal means for impairing the enjoyment of other rights.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 3
- Paragraph text
- Liberty of person concerns freedom from confinement of the body, not a general freedom of action. Security of person concerns freedom from injury to the body and the mind, or bodily and mental integrity, as further discussed in paragraph 9 below. Article 9 guarantees those rights to everyone. "Everyone" includes, among others, girls and boys, soldiers, persons with disabilities, lesbian, gay, bisexual and transgender persons, aliens, refugees and asylum seekers, stateless persons, migrant workers, persons convicted of crime, and persons who have engaged in terrorist activity.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Equality & Inclusion
- Governance & Rule of Law
- Movement
- Person(s) affected
- Boys
- Girls
- LGBTQI+
- Persons on the move
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 4
- Paragraph text
- Paragraphs 2 to 5 of article 9 set out specific safeguards for the protection of liberty and security of person. Some of the provisions of article 9 (part of paragraph 2 and the whole of paragraph 3) apply only in connection with criminal charges. But the rest, in particular the important guarantee laid down in paragraph 4, i.e. the right to review by a court of the legality of detention, applies to all persons deprived of liberty.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 5
- Paragraph text
- Deprivation of liberty involves more severe restriction of motion within a narrower space than mere interference with liberty of movement under article 12. Examples of deprivation of liberty include police custody, arraigo, remand detention, imprisonment after conviction, house arrest, administrative detention, involuntary hospitalization, institutional custody of children and confinement to a restricted area of an airport, as well as being involuntarily transported. They also include certain further restrictions on a person who is already detained, for example, solitary confinement or the use of physical restraining devices. During a period of military service, restrictions that would amount to deprivation of liberty for a civilian may not amount to deprivation of liberty if they do not exceed the exigencies of normal military service or deviate from the normal conditions of life within the armed forces of the State party concerned.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- Children
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 6
- Paragraph text
- Deprivation of personal liberty is without free consent. Individuals who go voluntarily to a police station to participate in an investigation, and who know that they are free to leave at any time, are not being deprived of their liberty.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 7
- Paragraph text
- States parties have the duty to take appropriate measures to protect the right to liberty of person against deprivation by third parties. States parties must protect individuals against abduction or detention by individual criminals or irregular groups, including armed or terrorist groups, operating within their territory. They must also protect individuals against wrongful deprivation of liberty by lawful organizations, such as employers, schools and hospitals. States parties should do their utmost to take appropriate measures to protect individuals against deprivation of liberty by the action of other States within their territory.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Movement
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 8
- Paragraph text
- When private individuals or entities are empowered or authorized by a State party to exercise powers of arrest or detention, the State party remains responsible for adherence and ensuring adherence to article 9. It must rigorously limit those powers and must provide strict and effective control to ensure that those powers are not misused, and do not lead to arbitrary or unlawful arrest or detention. It must also provide effective remedies for victims if arbitrary or unlawful arrest or detention does occur.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 9
- Paragraph text
- The right to security of person protects individuals against intentional infliction of bodily or mental injury, regardless of whether the victim is detained or non-detained. For example, officials of States parties violate the right to personal security when they unjustifiably inflict bodily injury. The right to personal security also obliges States parties to take appropriate measures in response to death threats against persons in the public sphere, and more generally to protect individuals from foreseeable threats to life or bodily integrity proceeding from any governmental or private actors. States parties must take both measures to prevent future injury and retrospective measures, such as enforcement of criminal laws, in response to past injury. For example, States parties must respond appropriately to patterns of violence against categories of victims such as intimidation of human rights defenders and journalists, retaliation against witnesses, violence against women, including domestic violence, the hazing of conscripts in the armed forces, violence against children, violence against persons on the basis of their sexual orientation or gender identity, and violence against persons with disabilities. They should also prevent and redress unjustifiable use of force in law enforcement, and protect their populations against abuses by private security forces, and against the risks posed by excessive availability of firearms. The right to security of person does not address all risks to physical or mental health and is not implicated in the indirect health impact of being the target of civil or criminal proceedings.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Violence
- Person(s) affected
- Children
- Women
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 10
- Paragraph text
- The right to liberty of person is not absolute. Article 9 recognizes that sometimes deprivation of liberty is justified, for example, in the enforcement of criminal laws. Paragraph 1 requires that deprivation of liberty must not be arbitrary, and must be carried out with respect for the rule of law.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 11
- Paragraph text
- The second sentence of paragraph 1 prohibits arbitrary arrest and detention, while the third sentence prohibits unlawful deprivation of liberty, i.e., deprivation of liberty that is not imposed on such grounds and in accordance with such procedure as are established by law. The two prohibitions overlap, in that arrests or detentions may be in violation of the applicable law but not arbitrary, or legally permitted but arbitrary, or both arbitrary and unlawful. Arrest or detention that lacks any legal basis is also arbitrary. Unauthorized confinement of prisoners beyond the length of their sentences is arbitrary as well as unlawful; the same is true for unauthorized extension of other forms of detention. Continued confinement of detainees in defiance of a judicial order for their release is arbitrary as well as unlawful.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 12
- Paragraph text
- An arrest or detention may be authorized by domestic law and nonetheless be arbitrary. The notion of "arbitrariness" is not to be equated with "against the law", but must be interpreted more broadly to include elements of inappropriateness, injustice, lack of predictability and due process of law, as well as elements of reasonableness, necessity and proportionality. For example, remand in custody on criminal charges must be reasonable and necessary in all the circumstances. Aside from judicially imposed sentences for a fixed period of time, the decision to keep a person in any form of detention is arbitrary if it is not subject to periodic re-evaluation of the justification for continuing the detention.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 13
- Paragraph text
- The term "arrest" refers to any apprehension of a person that commences a deprivation of liberty, and the term "detention" refers to the deprivation of liberty that begins with the arrest and continues in time from apprehension until release. Arrest within the meaning of article 9 need not involve a formal arrest as defined under domestic law. When an additional deprivation of liberty is imposed on a person already in custody, such as detention on unrelated criminal charges, the commencement of that deprivation of liberty also amounts to an arrest.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 14
- Paragraph text
- The Covenant does not provide an enumeration of the permissible reasons for depriving a person of liberty. Article 9 expressly recognizes that individuals may be detained on criminal charges, and article 11 expressly prohibits imprisonment on ground of inability to fulfil a contractual obligation. Other regimes involving deprivation of liberty must also be established by law and must be accompanied by procedures that prevent arbitrary detention. The grounds and procedures prescribed by law must not be destructive of the right to liberty of person. The regime must not amount to an evasion of the limits on the criminal justice system by providing the equivalent of criminal punishment without the applicable protections. Although conditions of detention are addressed primarily by articles 7 and 10, detention may be arbitrary if the manner in which the detainees are treated does not relate to the purpose for which they are ostensibly being detained. The imposition of a draconian penalty of imprisonment for contempt of court without adequate explanation and without independent procedural safeguards is arbitrary.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- Persons on the move
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 15
- Paragraph text
- To the extent that States parties impose security detention (sometimes known as administrative detention or internment) not in contemplation of prosecution on a criminal charge, the Committee considers that such detention presents severe risks of arbitrary deprivation of liberty. Such detention would normally amount to arbitrary detention as other effective measures addressing the threat, including the criminal justice system, would be available. If, under the most exceptional circumstances, a present, direct and imperative threat is invoked to justify the detention of persons considered to present such a threat, the burden of proof lies on States parties to show that the individual poses such a threat and that it cannot be addressed by alternative measures, and that burden increases with the length of the detention. States parties also need to show that detention does not last longer than absolutely necessary, that the overall length of possible detention is limited and that they fully respect the guarantees provided for by article 9 in all cases. Prompt and regular review by a court or other tribunal possessing the same attributes of independence and impartiality as the judiciary is a necessary guarantee for those conditions, as is access to independent legal advice, preferably selected by the detainee, and disclosure to the detainee of, at least, the essence of the evidence on which the decision is taken.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 16
- Paragraph text
- Egregious examples of arbitrary detention include detaining family members of an alleged criminal who are not themselves accused of any wrongdoing, the holding of hostages and arrests for the purpose of extorting bribes or other similar criminal purposes.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- Families
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 17
- Paragraph text
- Arrest or detention as punishment for the legitimate exercise of the rights as guaranteed by the Covenant is arbitrary, including freedom of opinion and expression (art. 19), freedom of assembly (art. 21), freedom of association (art. 22), freedom of religion (art. 18) and the right to privacy (art. 17). Arrest or detention on discriminatory grounds in violation of article 2, paragraph 1, article 3 or article 26 is also in principle arbitrary. Retroactive criminal punishment by detention in violation of article 15 amounts to arbitrary detention. Enforced disappearances violate numerous substantive and procedural provisions of the Covenant and constitute a particularly aggravated form of arbitrary detention. Imprisonment after a manifestly unfair trial is arbitrary, but not every violation of the specific procedural guarantees for criminal defendants in article 14 results in arbitrary detention.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 18
- Paragraph text
- Detention in the course of proceedings for the control of immigration is not per se arbitrary, but the detention must be justified as reasonable, necessary and proportionate in the light of the circumstances and reassessed as it extends in time. Asylum seekers who unlawfully enter a State party's territory may be detained for a brief initial period in order to document their entry, record their claims and determine their identity if it is in doubt. To detain them further while their claims are being resolved would be arbitrary in the absence of particular reasons specific to the individual, such as an individualized likelihood of absconding, a danger of crimes against others or a risk of acts against national security. The decision must consider relevant factors case by case and not be based on a mandatory rule for a broad category; must take into account less invasive means of achieving the same ends, such as reporting obligations, sureties or other conditions to prevent absconding; and must be subject to periodic re-evaluation and judicial review. Decisions regarding the detention of migrants must also take into account the effect of the detention on their physical or mental health. Any necessary detention should take place in appropriate, sanitary, non-punitive facilities and should not take place in prisons. The inability of a State party to carry out the expulsion of an individual because of statelessness or other obstacles does not justify indefinite detention. Children should not be deprived of liberty, except as a measure of last resort and for the shortest appropriate period of time, taking into account their best interests as a primary consideration with regard to the duration and conditions of detention, and also taking into account the extreme vulnerability and need for care of unaccompanied minors.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Health
- Movement
- Person(s) affected
- Persons on the move
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 19
- Paragraph text
- States parties should revise outdated laws and practices in the field of mental health in order to avoid arbitrary detention. The Committee emphasizes the harm inherent in any deprivation of liberty and also the particular harms that may result in situations of involuntary hospitalization. States parties should make available adequate community-based or alternative social-care services for persons with psychosocial disabilities, in order to provide less restrictive alternatives to confinement. The existence of a disability shall not in itself justify a deprivation of liberty but rather any deprivation of liberty must be necessary and proportionate, for the purpose of protecting the individual in question from serious harm or preventing injury to others. It must be applied only as a measure of last resort and for the shortest appropriate period of time, and must be accompanied by adequate procedural and substantive safeguards established by law. The procedures should ensure respect for the views of the individual and ensure that any representative genuinely represents and defends the wishes and interests of the individual. States parties must offer to institutionalized persons programmes of treatment and rehabilitation that serve the purposes that are asserted to justify the detention. Deprivation of liberty must be re-evaluated at appropriate intervals with regard to its continuing necessity. The individuals must be assisted in obtaining access to effective remedies for the vindication of their rights, including initial and periodic judicial review of the lawfulness of the detention, and to prevent conditions of detention incompatible with the Covenant.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Health
- Person(s) affected
- Persons with disabilities
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 20
- Paragraph text
- The Covenant is consistent with a variety of schemes for sentencing in criminal cases. Convicted prisoners are entitled to have the duration of their sentences administered in accordance with domestic law. Consideration for parole or other forms of early release must be in accordance with the law and such release must not be denied on grounds that are arbitrary within the meaning of article 9. If such release is granted upon conditions and later the release is revoked because of an alleged breach of the conditions, then the revocation must also be carried out in accordance with law and must not be arbitrary and, in particular, not disproportionate to the seriousness of the breach. A prediction of the prisoner's future behaviour may be a relevant factor in deciding whether to grant early release.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 21
- Paragraph text
- When a criminal sentence includes a punitive period followed by a non-punitive period intended to protect the safety of other individuals, then once the punitive term of imprisonment has been served, to avoid arbitrariness, the additional detention must be justified by compelling reasons arising from the gravity of the crimes committed and the likelihood of the detainee's committing similar crimes in the future. States should only use such detention as a last resort and regular periodic reviews by an independent body must be assured to decide whether continued detention is justified. State parties must exercise caution and provide appropriate guarantees in evaluating future dangers. The conditions in such detention must be distinct from the conditions for convicted prisoners serving a punitive sentence and must be aimed at the detainee's rehabilitation and reintegration into society. If a prisoner has fully served the sentence imposed at the time of conviction, articles 9 and 15 prohibit a retroactive increase in sentence and a State party may not circumvent that prohibition by imposing a detention that is equivalent to penal imprisonment under the label of civil detention.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 22
- Paragraph text
- The third sentence of paragraph 1 of article 9 provides that no one shall be deprived of liberty except on such grounds and in accordance with such procedure as are established by law. Any substantive grounds for arrest or detention must be prescribed by law and should be defined with sufficient precision to avoid overly broad or arbitrary interpretation or application. Deprivation of liberty without such legal authorization is unlawful. Continued detention despite an operative (exécutoire) judicial order of release or a valid amnesty is also unlawful.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 23
- Paragraph text
- Article 9 requires that procedures for carrying out legally authorized deprivation of liberty should also be established by law and States parties should ensure compliance with their legally prescribed procedures. Article 9 further requires compliance with domestic rules that define the procedure for arrest by identifying the officials authorized to arrest or specifying when a warrant is required. It also requires compliance with domestic rules that define when authorization to continue detention must be obtained from a judge or other officer, where individuals may be detained, when the detained person must be brought to court and legal limits on the duration of detention. It also requires compliance with domestic rules providing important safeguards for detained persons, such as making a record of an arrest and permitting access to counsel. Violations of domestic procedural rules not related to such issues may not necessarily raise an issue under article 9.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 24
- Paragraph text
- Paragraph 2 of article 9 imposes two requirements for the benefit of persons who are deprived of liberty. First, they shall be informed, at the time of arrest, of the reasons for the arrest. Second, they shall be promptly informed of any charges against them. The first requirement applies broadly to the reasons for any deprivation of liberty. Because "arrest" means the commencement of a deprivation of liberty, that requirement applies regardless of the formality or informality with which the arrest is conducted and regardless of the legitimate or improper reason on which it is based. The second, additional requirement applies only to information regarding criminal charges. If a person already detained on one criminal charge is also ordered detained to face an unrelated criminal charge, prompt information must be provided regarding the unrelated charge.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 25
- Paragraph text
- One major purpose of requiring that all arrested persons be informed of the reasons for the arrest is to enable them to seek release if they believe that the reasons given are invalid or unfounded. The reasons must include not only the general legal basis of the arrest, but also enough factual specifics to indicate the substance of the complaint, such as the wrongful act and the identity of an alleged victim. The "reasons" concern the official basis for the arrest, not the subjective motivations of the arresting officer.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 26
- Paragraph text
- Oral notification of reasons for arrest satisfies the requirement. The reasons must be given in a language that the arrested person understands.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 27
- Paragraph text
- That information must be provided immediately upon arrest. However, in exceptional circumstances, such immediate communication may not be possible. For example, a delay may be required before an interpreter can be present, but any such delay must be kept to the absolute minimum necessary.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 28
- Paragraph text
- For some categories of vulnerable persons, directly informing the person arrested is required but not sufficient. When children are arrested, notice of the arrest and the reasons for it should also be provided directly to their parents, guardians, or legal representatives. For certain persons with mental disabilities, notice of the arrest and the reasons should also be provided directly to persons they have designated or appropriate family members. Additional time may be required to identify and contact the relevant third persons, but notice should be given as soon as possible.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Equality & Inclusion
- Person(s) affected
- Children
- Persons with disabilities
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 29
- Paragraph text
- The second requirement of paragraph 2 concerns notice of criminal charges. Persons arrested for the purpose of investigating crimes that they may have committed or for the purpose of holding them for criminal trial must be promptly informed of the crimes of which they are suspected or accused. That right applies in connection with ordinary criminal prosecutions and also in connection with military prosecutions or other special regimes directed at criminal punishment.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 30
- Paragraph text
- Paragraph 2 requires that the arrested person be informed "promptly" of any charges, not necessarily "at the time of arrest". If particular charges are already contemplated, the arresting officer may inform the person of both the reasons for the arrest and the charges, or the authorities may explain the legal basis of the detention some hours later. The reasons must be given in a language that the arrested person understands. The requirement to give notice of charges under paragraph 2 serves to facilitate the determination of whether the provisional detention is appropriate or not, and therefore paragraph 2 does not require that the arrested person is given as much detail regarding the charges as would be needed later to prepare for trial. If the authorities have already informed an individual of the charges being investigated prior to making the arrest, then paragraph 2 does not require prompt repetition of the formal charges so long as they communicate the reasons for the arrest. The same considerations as mentioned in paragraph 28 above apply to prompt information concerning any criminal charges when minors or other vulnerable persons are arrested.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- Adolescents
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 31
- Paragraph text
- The first sentence of paragraph 3 applies to persons "arrested or detained on a criminal charge", while the second sentence concerns persons "awaiting trial" on a criminal charge. Paragraph 3 applies in connection with ordinary criminal prosecutions, military prosecutions and other special regimes directed at criminal punishment.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- N.A.
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 32
- Paragraph text
- Paragraph 3 requires, firstly, that any person arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power. That requirement applies in all cases without exception and does not depend on the choice or ability of the detainee to assert it. The requirement applies even before formal charges have been asserted, so long as the person is arrested or detained on suspicion of criminal activity. The right is intended to bring the detention of a person in a criminal investigation or prosecution under judicial control. If a person already detained on one criminal charge is also ordered to be detained to face an unrelated criminal charge, the person must be promptly brought before a judge for control of the second detention. It is inherent to the proper exercise of judicial power that it be exercised by an authority which is independent, objective and impartial in relation to the issues dealt with. Accordingly, a public prosecutor cannot be considered as an officer exercising judicial power under paragraph 3.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 33
- Paragraph text
- While the exact meaning of "promptly" may vary depending on objective circumstances, delays should not exceed a few days from the time of arrest. In the view of the Committee, 48 hours is ordinarily sufficient to transport the individual and to prepare for the judicial hearing; any delay longer than 48 hours must remain absolutely exceptional and be justified under the circumstances. Longer detention in the custody of law enforcement officials without judicial control unnecessarily increases the risk of ill-treatment. Laws in most States parties fix precise time limits, sometimes shorter than 48 hours, and those limits should also not be exceeded. An especially strict standard of promptness, such as 24 hours, should apply in the case of juveniles.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- Adolescents
- All
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 34
- Paragraph text
- The individual must be brought to appear physically before the judge or other officer authorized by law to exercise judicial power. The physical presence of detainees at the hearing gives the opportunity for inquiry into the treatment that they received in custody and facilitates immediate transfer to a remand detention centre if continued detention is ordered. It thus serves as a safeguard for the right to security of person and the prohibition against torture and cruel, inhuman or degrading treatment. In the hearing that ensues, and in subsequent hearings at which the judge assesses the legality or necessity of the detention, the individual is entitled to legal assistance, which should in principle be by counsel of choice.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 35
- Paragraph text
- Incommunicado detention that prevents prompt presentation before a judge inherently violates paragraph 3. Depending on its duration and other facts, incommunicado detention may also violate other rights under the Covenant, including articles 6, 7, 10 and 14. States parties should permit and facilitate access to counsel for detainees in criminal cases from the outset of their detention.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 36
- Paragraph text
- Once the individual has been brought before the judge, the judge must decide whether the individual should be released or remanded in custody for additional investigation or to await trial. If there is no lawful basis for continuing the detention, the judge must order release. If additional investigation or trial is justified, the judge must decide whether the individual should be released (with or without conditions) pending further proceedings because detention is not necessary, an issue addressed more fully by the second sentence of paragraph 3. In the view of the Committee, detention on remand should not involve a return to police custody, but rather to a separate facility under different authority, where risks to the rights of the detainee can be more easily mitigated.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- Persons on the move
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 37
- Paragraph text
- The second requirement expressed in the first sentence of paragraph 3 is that the person detained is entitled to trial within a reasonable time or to release. That requirement applies specifically to periods of pretrial detention, that is, detention between the time of arrest and the time of judgment at first instance. Extremely prolonged pretrial detention may also jeopardize the presumption of innocence under article 14, paragraph 2. Persons who are not released pending trial must be tried as expeditiously as possible, to the extent consistent with their rights of defence. The reasonableness of any delay in bringing the case to trial has to be assessed in the circumstances of each case, taking into account the complexity of the case, the conduct of the accused during the proceeding and the manner in which the matter was dealt with by the executive and judicial authorities. Impediments to the completion of the investigation may justify additional time, but general conditions of understaffing or budgetary constraint do not. When delays become necessary, the judge must reconsider alternatives to pretrial detention. Pretrial detention of juveniles should be avoided, but when it occurs they are entitled to be brought to trial in especially speedy fashion under article 10, paragraph 2 (b).
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- Adolescents
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 38
- Paragraph text
- The second sentence of paragraph 3 of article 9 requires that detention in custody of persons awaiting trial shall be the exception rather than the rule. It also specifies that release from such custody may be subject to guarantees of appearance, including appearance for trial, appearance at any other stage of the judicial proceedings and (should occasion arise) appearance for execution of the judgment. That sentence applies to persons awaiting trial on criminal charges, that is, after the defendant has been charged, but a similar requirement prior to charging results from the prohibition of arbitrary detention in paragraph 1. It should not be the general practice to subject defendants to pretrial detention. Detention pending trial must be based on an individualized determination that it is reasonable and necessary taking into account all the circumstances, for such purposes as to prevent flight, interference with evidence or the recurrence of crime. The relevant factors should be specified in law and should not include vague and expansive standards such as "public security". Pretrial detention should not be mandatory for all defendants charged with a particular crime, without regard to individual circumstances. Neither should pretrial detention be ordered for a period based on the potential sentence for the crime charged, rather than on a determination of necessity. Courts must examine whether alternatives to pretrial detention, such as bail, electronic bracelets or other conditions, would render detention unnecessary in the particular case. If the defendant is a foreigner, that fact must not be treated as sufficient to establish that the defendant may flee the jurisdiction. After an initial determination has been made that pretrial detention is necessary, there should be periodic re-examination of whether it continues to be reasonable and necessary in the light of possible alternatives. If the length of time that the defendant has been detained reaches the length of the longest sentence that could be imposed for the crimes charged, the defendant should be released. Pretrial detention of juveniles should be avoided to the fullest extent possible.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 39
- Paragraph text
- Paragraph 4 of article 9 entitles anyone who is deprived of liberty by arrest or detention to take proceedings before a court, in order that the court may decide without delay on the lawfulness of the detention and order release if the detention is not lawful. It enshrines the principle of habeas corpus. Review of the factual basis of the detention may, in appropriate circumstances, be limited to review of the reasonableness of a prior determination.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 40
- Paragraph text
- The right applies to all detention by official action or pursuant to official authorization, including detention in connection with criminal proceedings, military detention, security detention, counter-terrorism detention, involuntary hospitalization, immigration detention, detention for extradition and wholly groundless arrests. It also applies to detention for vagrancy or drug addiction, detention for educational purposes of children in conflict with the law and other forms of administrative detention. Detention within the meaning of paragraph 4 also includes house arrest and solitary confinement. When a prisoner is serving the minimum duration of a prison sentence as decided by a court of law after a conviction, either as a sentence for a fixed period of time or as the fixed portion of a potentially longer sentence, paragraph 4 does not require subsequent review of the detention.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- Children
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 41
- Paragraph text
- The object of the right is release (either unconditional or conditional) from ongoing unlawful detention; compensation for unlawful detention that has already ended is addressed in paragraph 5. Paragraph 4 requires that the reviewing court must have the power to order release from the unlawful detention. When a judicial order of release under paragraph 4 becomes operative (exécutoire), it must be complied with immediately, and continued detention would be arbitrary in violation of article 9, paragraph 1.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 42
- Paragraph text
- The right to bring proceedings applies in principle from the moment of arrest and any substantial waiting period before a detainee can bring a first challenge to detention is impermissible. In general, the detainee has the right to appear in person before the court, especially where such presence would serve the inquiry into the lawfulness of detention or where questions regarding ill-treatment of the detainee arise. The court must have the power to order the detainee brought before it, regardless of whether the detainee has asked to appear.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 43
- Paragraph text
- Unlawful detention includes detention that was lawful at its inception but has become unlawful because the individual has completed serving a sentence of imprisonment or the circumstances that justify the detention have changed. After a court has held that the circumstances justify the detention, an appropriate period of time may pass, depending on the nature of the relevant circumstances, before the individual is entitled to take proceedings again on similar grounds.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 44
- Paragraph text
- Unlawful detention includes both detention that violates domestic law and detention that is incompatible with the requirements of article 9, paragraph 1, or with any other relevant provision of the Covenant. While domestic legal systems may establish differing methods for ensuring court review of detention, paragraph 4 requires that there be a judicial remedy for any detention that is unlawful on one of those grounds. For example, the power of a family court to order release of a child from detention that is not in the child's best interests may satisfy the requirements of paragraph 4 in relevant cases.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- Children
- Families
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 45
- Paragraph text
- Paragraph 4 entitles the individual to take proceedings before "a court," which should ordinarily be a court within the judiciary. Exceptionally, for some forms of detention, legislation may provide for proceedings before a specialized tribunal, which must be established by law and must either be independent of the executive and legislative branches or enjoy judicial independence in deciding legal matters in proceedings that are judicial in nature.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 46
- Paragraph text
- Paragraph 4 leaves the option of taking proceedings to the persons being detained or those acting on their behalf; unlike paragraph 3, it does not require automatic initiation of review by the authorities detaining an individual. Laws that exclude a particular category of detainees from the review required by paragraph 4 violate the Covenant. Practices that render such review effectively unavailable to an individual, including incommunicado detention, also amount to a violation. To facilitate effective review, detainees should be afforded prompt and regular access to counsel. Detainees should be informed, in a language they understand, of their right to take proceedings for a decision on the lawfulness of their detention.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- Persons on the move
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 47
- Paragraph text
- Persons deprived of liberty are entitled not merely to take proceedings, but to receive a decision, and without delay. The refusal by a competent court to take a decision on a petition for the release of a detained person violates paragraph 4. The adjudication of the case should take place as expeditiously as possible. Delays attributable to the petitioner do not count as judicial delay.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 48
- Paragraph text
- The Covenant does not require that a court decision upholding the lawfulness of detention be subject to appeal. If a State party does provide for appeal or further instances, the delay may reflect the changing nature of the proceeding and in any event must not be excessive.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 49
- Paragraph text
- Paragraph 5 of article 9 of the Covenant provides that anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation. Like paragraph 4, paragraph 5 articulates a specific example of an effective remedy for human rights violations, which States parties are required to afford. Those specific remedies do not replace, but are included alongside, the other remedies that may be required in a particular situation for a victim of unlawful or arbitrary arrest or detention by article 2, paragraph 3, of the Covenant. Whereas paragraph 4 provides a swift remedy for release from ongoing unlawful detention, paragraph 5 clarifies that victims of unlawful arrest or detention are also entitled to financial compensation.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 50
- Paragraph text
- Paragraph 5 obliges States parties to establish the legal framework within which compensation can be afforded to victims, as a matter of enforceable right and not as a matter of grace or discretion. The remedy must not exist merely in theory, but must operate effectively and payment must be made within a reasonable period of time. Paragraph 5 does not specify the precise form of procedure, which may include remedies against the State itself or against individual State officials responsible for the violation, so long as they are effective. Paragraph 5 does not require that a single procedure be established providing compensation for all forms of unlawful arrest, but only that an effective system of procedures exist that provides compensation in all the cases covered by paragraph 5. Paragraph 5 does not oblige States parties to compensate victims sua sponte, but rather permits them to leave commencement of proceedings for compensation to the initiative of the victim.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 51
- Paragraph text
- Unlawful arrest and detention within the meaning of paragraph 5 include such arrest and detention arising within either criminal or non-criminal proceedings, or in the absence of any proceedings at all. The "unlawful" character of the arrest or detention may result from violation of domestic law or violation of the Covenant itself, such as substantively arbitrary detention and detention that violates procedural requirements of other paragraphs of article 9. However, the fact that a criminal defendant was ultimately acquitted, at first instance or on appeal, does not in and of itself render any preceding detention "unlawful".
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 52
- Paragraph text
- The financial compensation required by paragraph 5 relates specifically to the pecuniary and non-pecuniary harm resulting from the unlawful arrest or detention. When the unlawfulness of the arrest arises from the violation of other human rights, such as freedom of expression, the State party may have further obligations to provide compensation or other reparation in relation to those other violations, as required by article 2, paragraph 3, of the Covenant.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 53
- Paragraph text
- The procedural and substantive guarantees of article 9 both overlap and interact with other guarantees of the Covenant. Some forms of conduct amount independently to a violation of article 9 and another article, such as delays in bringing a detained criminal defendant to trial, which may violate both paragraph 3 of article 9 and paragraph 3 (c) of article 14. At times the content of article 9, paragraph 1, is informed by the content of other articles; for example, detention may be arbitrary by virtue of the fact that it represents punishment for freedom of expression, in violation of article 19.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 54
- Paragraph text
- Article 9 also reinforces the obligations of States parties under the Covenant and the Optional Protocol to protect individuals against reprisals for having cooperated or communicated with the Committee, such as physical intimidation or threats to personal liberty.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 55
- Paragraph text
- The right to life guaranteed by article 6 of the Covenant, including the right to protection of life under article 6, paragraph 1, may overlap with the right to security of person guaranteed by article 9, paragraph 1. The right to personal security may be considered broader to the extent that it also addresses injuries that are not life-threatening. Extreme forms of arbitrary detention that are themselves life-threatening violate the rights to personal liberty and personal security as well as the right to protection of life, in particular enforced disappearances.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Movement
- Person(s) affected
- All
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 56
- Paragraph text
- Arbitrary detention creates risks of torture and ill-treatment, and several of the procedural guarantees in article 9 serve to reduce the likelihood of such risks. Prolonged incommunicado detention violates article 9 and would generally be regarded as a violation of article 7. The right to personal security protects interests in bodily and mental integrity that are also protected by article 7.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Health
- Person(s) affected
- All
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 57
- Paragraph text
- Returning an individual to a country where there are substantial grounds for believing that the individual faces a real risk of a severe violation of liberty or security of person such as prolonged arbitrary detention may amount to inhuman treatment prohibited by article 7 of the Covenant.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- Persons on the move
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 58
- Paragraph text
- Several safeguards that are essential for the prevention of torture are also necessary for the protection of persons in any form of detention against arbitrary detention and infringement of personal security. The following examples are non-exhaustive. Detainees should be held only in facilities officially acknowledged as places of detention. A centralized official register should be kept of the names and places of detention, and times of arrival and departure, as well as of the names of persons responsible for their detention, and made readily available and accessible to those concerned, including relatives. Prompt and regular access should be given to independent medical personnel and lawyers and, under appropriate supervision when the legitimate purpose of the detention so requires, to family members. Detainees should be promptly informed of their rights, in a language they understand; providing information leaflets in the appropriate language, including in Braille, may often assist the detainee in retaining the information. Detained foreign nationals should be informed of their right to communicate with their consular authorities, or, in the case of asylum seekers, with the Office of the United Nations High Commissioner for Refugees. Independent and impartial mechanisms should be established for visiting and inspecting all places of detention, including mental-health institutions.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Health
- Movement
- Person(s) affected
- Families
- Persons on the move
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 59
- Paragraph text
- Article 10 of the Covenant, which addresses conditions of detention for persons deprived of liberty, complements article 9, which primarily addresses the fact of detention. At the same time, the right to personal security in article 9, paragraph 1, is relevant to the treatment of both detained and non-detained persons. The appropriateness of the conditions prevailing in detention to the purpose of detention is sometimes a factor in determining whether detention is arbitrary within the meaning of article 9. Certain conditions of detention (such as denial of access to counsel and family) may result in procedural violations of paragraphs 3 and 4 of article 9. Article 10, paragraph 2 (b), reinforces for juveniles the requirement in article 9, paragraph 3, that pretrial detainees be brought to trial expeditiously.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- Families
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 60
- Paragraph text
- The liberty of movement protected by article 12 of the Covenant and the liberty of person protected by article 9 complement each other. Detention is a particularly severe form of restriction of liberty of movement, but in some circumstances both articles may come into play together. Detention in the course of transporting a migrant involuntarily, is often used as a means of enforcing restrictions on freedom of movement. Article 9 addresses such uses of detention in the implementation of expulsion, deportation or extradition.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Movement
- Person(s) affected
- Persons on the move
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 61
- Paragraph text
- The relationship between article 9 and article 14 of the Covenant, regarding civil and criminal trials, has already been illustrated. Article 9 addresses deprivation of liberty, only some instances of which take place in connection with civil or criminal proceedings within the scope of article 14. The procedural requirements of paragraphs 2 to 5 of article 9 apply in connection with proceedings falling within the scope of article 14 only when actual arrest or detention occurs.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- N.A.
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 62
- Paragraph text
- Article 24, paragraph 1, of the Covenant entitles every child "to such measures of protection as are required by his status as a minor, on the part of his family, society and the State". That article entails the adoption of special measures to protect the personal liberty and security of every child, in addition to the measures generally required by article 9 for everyone. A child may be deprived of liberty only as a last resort and for the shortest appropriate period of time. In addition to the other requirements applicable to each category of deprivation of liberty, the best interests of the child must be a primary consideration in every decision to initiate or continue the deprivation. The Committee acknowledges that sometimes a particular deprivation of liberty would itself be in the best interests of the child. Placement of a child in institutional care amounts to a deprivation of liberty within the meaning of article 9. A decision to deprive a child of liberty must be subject to periodic review of its continuing necessity and appropriateness. The child has a right to be heard, directly or through legal or other appropriate assistance, in relation to any decision regarding a deprivation of liberty, and the procedures employed should be child-appropriate. The right to release from unlawful detention may result in return to the child's family or placement in an alternative form of care that accords with the child's best interests, rather than simple release into the child's own custody.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Social & Cultural Rights
- Person(s) affected
- Children
- Families
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 63
- Paragraph text
- In the light of article 2, paragraph 1, of the Covenant, States parties have an obligation to respect and to ensure the rights under article 9 to all persons who may be within their territory and to all persons subject to their jurisdiction. Given that arrest and detention bring a person within a State's effective control, States parties must not arbitrarily or unlawfully arrest or detain individuals outside their territory. States parties must not subject persons outside their territory to, inter alia, prolonged incommunicado detention or deprive them of review of the lawfulness of their detention. The extraterritorial location of an arrest may be a circumstance relevant to an evaluation of promptness under paragraph 3.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 64
- Paragraph text
- With regard to article 4 of the Covenant, the Committee first observes that, like the rest of the Covenant, article 9 applies also in situations of armed conflict to which the rules of international humanitarian law are applicable. While rules of international humanitarian law may be relevant for the purposes of the interpretation of article 9, both spheres of law are complementary, not mutually exclusive. Security detention authorized and regulated by and complying with international humanitarian law in principle is not arbitrary. In conflict situations, access by the International Committee of the Red Cross to all places of detention becomes an essential additional safeguard for the rights to liberty and security of person.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Humanitarian
- Person(s) affected
- N.A.
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 65
- Paragraph text
- Article 9 is not included in the list of non-derogable rights of article 4, paragraph 2, of the Covenant, but there are limits on States parties' power to derogate. States parties derogating from normal procedures required under article 9 in circumstances of armed conflict or other public emergency must ensure that such derogations do not exceed those strictly required by the exigencies of the actual situation. Derogating measures must also be consistent with a State party's other obligations under international law, including provisions of international humanitarian law relating to deprivation of liberty, and non-discriminatory. The prohibitions against taking of hostages, abductions or unacknowledged detention are therefore not subject to derogation.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Humanitarian
- Person(s) affected
- All
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 66
- Paragraph text
- There are other elements in article 9 that in the Committee's opinion cannot be made subject to lawful derogation under article 4. The fundamental guarantee against arbitrary detention is non-derogable, insofar as even situations covered by article 4 cannot justify a deprivation of liberty that is unreasonable or unnecessary under the circumstances. The existence and nature of a public emergency which threatens the life of the nation may, however, be relevant to a determination of whether a particular arrest or detention is arbitrary. Valid derogations from other derogable rights may also be relevant when a deprivation of liberty is characterized as arbitrary because of its interference with another right protected by the Covenant. During international armed conflict, substantive and procedural rules of international humanitarian law remain applicable and limit the ability to derogate, thereby helping to mitigate the risk of arbitrary detention. Outside that context, the requirements of strict necessity and proportionality constrain any derogating measures involving security detention, which must be limited in duration and accompanied by procedures to prevent arbitrary application, as explained in paragraph 15 above, including review by a court within the meaning of paragraph 45 above.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Humanitarian
- Person(s) affected
- All
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 67
- Paragraph text
- The procedural guarantees protecting liberty of person may never be made subject to measures of derogation that would circumvent the protection of non-derogable rights. In order to protect non-derogable rights, including those in articles 6 and 7, the right to take proceedings before a court to enable the court to decide without delay on the lawfulness of detention must not be diminished by measures of derogation.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2014
Paragraph
Article 9: Liberty and security of person 2014, para. 68
- Paragraph text
- While reservations to certain clauses of article 9 may be acceptable, it would be incompatible with the object and purpose of the Covenant for a State party to reserve the right to engage in arbitrary arrest and detention of persons.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2014
Paragraph
Article 9: Right to liberty and security of persons
- Body
- Human Rights Committee
- Legal status
- Non-negotiated soft law
- Document type
- General Comment / Recommendation
- Year
- 1982
Document
Article 9: Right to liberty and security of persons 1982, para. 1
- Paragraph text
- Article 9 which deals with the right to liberty and security of persons has often been somewhat narrowly understood in reports by States parties, and they have therefore given incomplete information. The Committee points out that paragraph 1 is applicable to all deprivations of liberty, whether in criminal cases or in other cases such as, for example, mental illness, vagrancy, drug addiction, educational purposes, immigration control, etc. It is true that some of the provisions of article 9 (part of paragraph 2 and the whole of paragraph 3) are only applicable to persons against whom criminal charges are brought. But the rest, and in particular the important guarantee laid down in paragraph 4, i.e. the right to control by a court of the legality of the detention, applies to all persons deprived of their liberty by arrest or detention. Furthermore, States parties have in accordance with article 2 (3) also to ensure that an effective remedy is provided in other cases in which an individual claims to be deprived of his liberty in violation of the Covenant.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Health
- Person(s) affected
- All
- Year
- 1982
Paragraph
Article 9: Right to liberty and security of persons 1982, para. 2
- Paragraph text
- Paragraph 3 of article 9 requires that in criminal cases any person arrested or detained has to be brought "promptly" before a judge or other officer authorized by law to exercise judicial power. More precise time limits are fixed by law in most States parties and, in the view of the Committee, delays must not exceed a few days. Many States have given insufficient information about the actual practices in this respect.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 1982
Paragraph
Article 9: Right to liberty and security of persons 1982, para. 3
- Paragraph text
- Another matter is the total length of detention pending trial. In certain categories of criminal cases in some countries this matter has caused some concern within the Committee, and members have questioned whether their practices have been in conformity with the entitlement "to trial within a reasonable time or to release" under paragraph 3. Pre trial detention should be an exception and as short as possible. The Committee would welcome information concerning mechanisms existing and measures taken with a view to reducing the duration of such detention.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- N.A.
- Year
- 1982
Paragraph
Article 9: Right to liberty and security of persons 1982, para. 4
- Paragraph text
- Also 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.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 1982
Paragraph
Article 10: Humane treatment of persons deprived of their liberty - replaces general comment 9 (Annex VI, B)
- Body
- Human Rights Committee
- Legal status
- Non-negotiated soft law
- Document type
- General Comment / Recommendation
- Year
- 1993
Document
Article 10: Humane treatment of persons deprived of their liberty - replaces general comment 9 (Annex VI, B) 1993, para. 1
- Paragraph text
- This general comment replaces general comment No. 9 (the sixteenth session, 1982) reflecting and further developing it.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- N.A.
- Year
- 1993
Paragraph
Article 10: Humane treatment of persons deprived of their liberty - replaces general comment 9 (Annex VI, B) 1993, para. 2
- Paragraph text
- Article 10, paragraph 1, of the International Covenant on Civil and Political Rights applies to any one deprived of liberty under the laws and authority of the State who is held in prisons, hospitals - particularly psychiatric hospitals - detention camps or correctional institutions or elsewhere. States parties should ensure that the principle stipulated therein is observed in all institutions and establishments within their jurisdiction where persons are being held.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 1993
Paragraph
Article 10: Humane treatment of persons deprived of their liberty - replaces general comment 9 (Annex VI, B) 1993, para. 3
- Paragraph text
- Article 10, paragraph 1, imposes on States parties a positive obligation towards persons who are particularly vulnerable because of their status as persons deprived of liberty, and complements for them the ban on torture or other cruel, inhuman or degrading treatment or punishment contained in article 7 of the Covenant. Thus, not only may persons deprived of their liberty not be subjected to treatment that is contrary to article 7, including medical or scientific experimentation, but neither may they be subjected to any hardship or constraint other than that resulting from the deprivation of liberty; respect for the dignity of such persons must be guaranteed under the same conditions as for that of free persons. Persons deprived of their liberty enjoy all the rights set forth in the Covenant, subject to the restrictions that are unavoidable in a closed environment.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 1993
Paragraph
Article 10: Humane treatment of persons deprived of their liberty - replaces general comment 9 (Annex VI, B) 1993, para. 4
- Paragraph text
- Treating all persons deprived of their liberty with humanity and with respect for their dignity is a fundamental and universally applicable rule. Consequently, the application of this rule, as a minimum, cannot be dependent on the material resources available in the State party. This rule must be applied without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 1993
Paragraph
Article 10: Humane treatment of persons deprived of their liberty - replaces general comment 9 (Annex VI, B) 1993, para. 5
- Paragraph text
- States parties are invited to indicate in their reports to what extent they are applying the relevant United Nations standards applicable to the treatment of prisoners: the Standard Minimum Rules for the Treatment of Prisoners (1957), the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (1988), the Code of Conduct for Law Enforcement Officials (1978) and the Principles of Medical Ethics relevant to the Role of Health Personnel, particularly Physicians, in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1982).
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Health
- Person(s) affected
- Persons on the move
- Year
- 1993
Paragraph
Article 10: Humane treatment of persons deprived of their liberty - replaces general comment 9 (Annex VI, B) 1993, para. 6
- Paragraph text
- The Committee recalls that reports should provide detailed information on national legislative and administrative provisions that have a bearing on the right provided for in article 10, paragraph 1. The Committee also considers that it is necessary for reports to specify what concrete measures have been taken by the competent authorities to monitor the effective application of the rules regarding the treatment of persons deprived of their liberty. States parties should include in their reports information concerning the system for supervising penitentiary establishments, the specific measures to prevent torture and cruel, inhuman or degrading treatment, and how impartial supervision is ensured.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 1993
Paragraph
Article 10: Humane treatment of persons deprived of their liberty - replaces general comment 9 (Annex VI, B) 1993, para. 7
- Paragraph text
- Furthermore, the Committee recalls that reports should indicate whether the various applicable provisions form an integral part of the instruction and training of the personnel who have authority over persons deprived of their liberty and whether they are strictly adhered to by such personnel in the discharge of their duties. It would also be appropriate to specify whether arrested or detained persons have access to such information and have effective legal means enabling them to ensure that those rules are respected, to complain if the rules are ignored and to obtain adequate compensation in the event of a violation.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 1993
Paragraph
Article 10: Humane treatment of persons deprived of their liberty - replaces general comment 9 (Annex VI, B) 1993, para. 8
- Paragraph text
- The Committee recalls that the principle set forth in article 10, paragraph 1, constitutes the basis for the more specific obligations of States parties in respect of criminal justice, which are set forth in article 10, paragraphs 2 and 3.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- N.A.
- Year
- 1993
Paragraph
Article 10: Humane treatment of persons deprived of their liberty - replaces general comment 9 (Annex VI, B) 1993, para. 9
- Paragraph text
- Article 10, paragraph 2 (a), provides for the segregation, save in exceptional circumstances, of accused persons from convicted ones. Such segregation is required in order to emphasize their status as unconvicted persons who at the same time enjoy the right to be presumed innocent as stated in article 14, paragraph 2. The reports of States parties should indicate how the separation of accused persons from convicted persons is effected and explain how the treatment of accused persons differs from that of convicted persons.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 1993
Paragraph
Article 10: Humane treatment of persons deprived of their liberty - replaces general comment 9 (Annex VI, B) 1993, para. 10
- Paragraph text
- As to article 10, paragraph 3, which concerns convicted persons, the Committee wishes to have detailed information on the operation of the penitentiary system of the State party. No penitentiary system should be only retributory; it should essentially seek the reformation and social rehabilitation of the prisoner. States parties are invited to specify whether they have a system to provide assistance after release and to give information as to its success.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Year
- 1993
Paragraph
Article 10: Humane treatment of persons deprived of their liberty - replaces general comment 9 (Annex VI, B) 1993, para. 11
- Paragraph text
- In a number of cases, the information furnished by the State party contains no specific reference either to legislative or administrative provisions or to practical measures to ensure the re-education of convicted persons. The Committee requests specific information concerning the measures taken to provide teaching, education and re-education, vocational guidance and training and also concerning work programmes for prisoners inside the penitentiary establishment as well as outside.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Education
- Governance & Rule of Law
- Person(s) affected
- Persons on the move
- Year
- 1993
Paragraph
Article 10: Humane treatment of persons deprived of their liberty - replaces general comment 9 (Annex VI, B) 1993, para. 12
- Paragraph text
- In order to determine whether the principle set forth in article 10, paragraph 3, is being fully respected, the Committee also requests information on the specific measures applied during detention, e.g., how convicted persons are dealt with individually and how they are categorized, the disciplinary system, solitary confinement and high-security detention and the conditions under which contacts are ensured with the outside world (family, lawyer, social and medical services, non-governmental organizations).
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Health
- Person(s) affected
- Families
- Year
- 1993
Paragraph
Article 10: Humane treatment of persons deprived of their liberty - replaces general comment 9 (Annex VI, B) 1993, para. 13
- Paragraph text
- Moreover, the Committee notes that in the reports of some States parties no information has been provided concerning the treatment accorded to accused juvenile persons and juvenile offenders. Article 10, paragraph 2 (b), provides that accused juvenile persons shall be separated from adults. The information given in reports shows that some States parties are not paying the necessary attention to the fact that this is a mandatory provision of the Covenant. The text also provides that cases involving juveniles must be considered as speedily as possible. Reports should specify the measures taken by States parties to give effect to that provision. Lastly, under article 10, paragraph 3, juvenile offenders shall be segregated from adults and be accorded treatment appropriate to their age and legal status insofar as conditions of detention are concerned, such as shorter working hours and contact with relatives, with the aim of furthering their reformation and rehabilitation. Article 10 does not indicate any limits of juvenile age. While this is to be determined by each State party in the light of relevant social, cultural and other conditions, the Committee is of the opinion that article 6, paragraph 5, suggests that all persons under the age of 18 should be treated as juveniles, at least in matters relating to criminal justice. States should give relevant information about the age groups of persons treated as juveniles. In that regard, States parties are invited to indicate whether they are applying the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, known as the Beijing Rules (1987).
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Year
- 1993
Paragraph
Article 10: Humane treatment of persons deprived of liberty
- Body
- Human Rights Committee
- Legal status
- Non-negotiated soft law
- Document type
- General Comment / Recommendation
- Year
- 1982
Document
Article 10: Humane treatment of persons deprived of liberty 1982, para. 1
- Paragraph text
- Article 10, paragraph 1 of the Covenant provides that all persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person. However, by no means all the reports submitted by States parties have contained information on the way in which this paragraph of the article is being implemented. The Committee is of the opinion that it would be desirable for the reports of States parties to contain specific information on the legal measures designed to protect that right. The Committee also considers that reports should indicate the concrete measures being taken by the competent State organs to monitor the mandatory implementation of national legislation concerning the humane treatment and respect for the human dignity of all persons deprived of their liberty that paragraph 1 requires.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 1982
Paragraph
Article 10: Humane treatment of persons deprived of liberty 1982, para. 1a
- Paragraph text
- The Committee notes, in particular, that paragraph 1 of this article is generally applicable to persons deprived of their liberty, whereas paragraph 2 deals with accused as distinct from convicted persons, and paragraph 3 with convicted persons only. This structure quite often is not reflected in the reports, which mainly have related to accused and convicted persons. The wording of paragraph 1, its context especially its proximity to article 9, paragraph 1, which also deals with all deprivations of liberty and its purpose support a broad application of the principle expressed in that provision. Moreover, the Committee recalls that this article supplements article 7 as regards the treatment of all persons deprived of their liberty.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- N.A.
- Year
- 1982
Paragraph
Article 10: Humane treatment of persons deprived of liberty 1982, para. 1b
- Paragraph text
- The humane treatment and the respect for the dignity of all persons deprived of their liberty is a basic standard of universal application which cannot depend entirely on material resources. While the Committee is aware that in other respects the modalities and conditions of detention may vary with the available resources, they must always be applied without discrimination, as required by article 2 (1).
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 1982
Paragraph
Article 10: Humane treatment of persons deprived of liberty 1982, para. 1c
- Paragraph text
- Ultimate responsibility for the observance of this principle rests with the State as regards all institutions where persons are lawfully held against their will, not only in prisons but also, for example, hospitals, detention camps or correctional institutions.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 1982
Paragraph
Article 10: Humane treatment of persons deprived of liberty 1982, para. 2
- Paragraph text
- Subparagraph 2 (a) of the article provides that, save in exceptional circumstances, accused persons shall be segregated from convicted persons and shall receive separate treatment appropriate to their status as unconvicted persons. Some reports have failed to pay proper attention to this direct requirement of the Covenant and, as a result, to provide adequate information on the way in which the treatment of accused persons differs from that of convicted persons. Such information should be included in future reports.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Equality & Inclusion
- Person(s) affected
- All
- Year
- 1982
Paragraph
Article 10: Humane treatment of persons deprived of liberty 1982, para. 2a
- Paragraph text
- Subparagraph 2 (b) of the article calls, inter alia, for accused juvenile persons to be separated from adults. The information in reports shows that a number of States are not taking sufficient account of the fact that this is an unconditional requirement of the Covenant. It is the Committee's opinion that, as is clear from the text of the Covenant, deviation from States parties' obligations under subparagraph 2 (b) cannot be justified by any consideration whatsoever.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Person(s) affected
- Adolescents
- Year
- 1982
Paragraph
Article 10: Humane treatment of persons deprived of liberty 1982, para. 3
- Paragraph text
- In a number of cases, the information appearing in reports with respect to paragraph 3 of the article has contained no concrete mention either of legislative or administrative measures or of practical steps to promote the reformation and social rehabilitation of prisoners, by, for example, education, vocational training and useful work. Allowing visits, in particular by family members, is normally also such a measure which is required for reasons of humanity. There are also similar lacunae in the reports of certain States with respect to information concerning juvenile offenders, who must be segregated from adults and given treatment appropriate to their age and legal status.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Education
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Families
- Year
- 1982
Paragraph
Article 10: Humane treatment of persons deprived of liberty 1982, para. 4
- Paragraph text
- The Committee further notes that the principles of humane treatment and respect for human dignity set out in paragraph 1 are the basis for the more specific and limited obligations of States in the field of criminal justice set out in paragraphs 2 and 3 of article 10. The segregation of accused persons from convicted ones is required in order to emphasize their status as unconvicted persons who are at the same time protected by the presumption of innocence stated in article 14, paragraph 2. The aim of these provisions is to protect the groups mentioned, and the requirements contained therein should be seen in that light. Thus, for example, the segregation and treatment of juvenile offenders should be provided for in such a way that it promotes their reformation and social rehabilitation.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Equality & Inclusion
- Governance & Rule of Law
- Year
- 1982
Paragraph
Article 12: Freedom of movement
- Body
- Human Rights Committee
- Legal status
- Non-negotiated soft law
- Document type
- General Comment / Recommendation
- Year
- 1999
- Document code
- CCPR/C/21/Rev.1/Add.9
Document
Article 12: Freedom of movement 1999, para. 1
- Paragraph text
- Liberty of movement is an indispensable condition for the free development of a person. It interacts with several other rights enshrined in the Covenant, as is often shown in the Committee's practice in considering reports from States parties and communications from individuals. Moreover, the Committee in its General Comment No. 15 ("The position of aliens under the Covenant", 1986) referred to the special link between articles 12 and 13.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Movement
- Person(s) affected
- Persons on the move
- Year
- 1999
Paragraph
Article 12: Freedom of movement 1999, para. 2
- Paragraph text
- The permissible limitations which may be imposed on the rights protected under article 12 must not nullify the principle of liberty of movement, and are governed by the requirement of necessity provided for in article 12, paragraph 3, and by the need for consistency with the other rights recognized in the Covenant.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Movement
- Person(s) affected
- All
- Year
- 1999
Paragraph
Article 12: Freedom of movement 1999, para. 3
- Paragraph text
- States parties should provide the Committee in their reports with the relevant domestic legal rules and administrative and judicial practices relating to the rights protected by this article, taking into account the issues discussed in this General Comment. They must also include information on remedies available if these rights are restricted.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Movement
- Person(s) affected
- N.A.
- Year
- 1999
Paragraph
Article 12: Freedom of movement 1999, para. 4
- Paragraph text
- Everyone lawfully within the territory of a State enjoys, within that territory, the right to move freely and to choose his or her place of residence. In principle, citizens of a State are always lawfully within the territory of that State. The question whether an alien is "lawfully" within the territory of a State is a matter governed by domestic law, which may subject the entry of an alien to the territory of a State to restrictions, provided they are in compliance with the State's international obligations. In that connection, the Committee has held that an alien who entered the State illegally, but whose status has been regularized, must be considered to be lawfully within the territory for the purposes of art 122. Once a person is lawfully within a State, any restrictions on his or her rights guaranteed by article 12, paragraphs 1 and 2, as well as any treatment different from that accorded to nationals, have to be justified under the rules provided for by article 12, paragraph 33. It is, therefore, important that States parties indicate in their reports the circumstances in which they treat aliens differently from their nationals in this regard, and how they justify this difference in treatment.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Movement
- Person(s) affected
- Persons on the move
- Year
- 1999
Paragraph
Article 12: Freedom of movement 1999, para. 5
- Paragraph text
- The right to move freely relates to the whole territory of a State, including all parts of federal States. According to article 12, paragraph 1, persons are entitled to move from one place to another, and to establish themselves in a place of their choice. The enjoyment of this right must not be made dependent on any particular purpose or reason for the person wanting to move or to stay in a place. Any restrictions must be in conformity with paragraph 3.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Movement
- Person(s) affected
- All
- Year
- 1999
Paragraph
Article 12: Freedom of movement 1999, para. 6
- Paragraph text
- The State party must ensure that the rights guaranteed in article 12 are protected not only from public but also from private interference. In the case of women, this obligation to protect is particularly pertinent. For example, it is incompatible with article 12, paragraph 1, that the right of a woman to move freely and to choose her residence be made subject, by law or practice, to the decision of another person, including a relative.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Movement
- Person(s) affected
- Women
- Year
- 1999
Paragraph
Article 12: Freedom of movement 1999, para. 7
- Paragraph text
- Subject to the provisions of article 12, paragraph 3, the right to reside in a place of one's choice within the territory includes protection against all forms of forced internal displacement. It also precludes preventing the entry or stay of persons in a defined part of the territory. Lawful detention, however, affects more specifically the right to personal liberty and is covered by article 9 of the Covenant. In some circumstances, articles 12 and 9 may come into play together.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Movement
- Person(s) affected
- Persons on the move
- Year
- 1999
Paragraph
Article 12: Freedom of movement 1999, para. 8
- Paragraph text
- Freedom to leave the territory of a State may not be made dependent on any specific purpose or on the period of time the individual chooses to stay outside the country. Thus travelling abroad is covered as well as departure for permanent emigration. Likewise, the right of the individual to determine the State of destination is part of the legal guarantee. As the scope of article 12, paragraph 2, is not restricted to persons lawfully within the territory of a State, an alien being legally expelled from the country is likewise entitled to elect the State of destination, subject to the agreement of that State.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Equality & Inclusion
- Governance & Rule of Law
- Movement
- Person(s) affected
- Persons on the move
- Year
- 1999
Paragraph
Article 12: Freedom of movement 1999, para. 9
- Paragraph text
- In order to enable the individual to enjoy the rights guaranteed by article 12, paragraph 2, obligations are imposed both on the State of residence and on the State of nationality. Since international travel usually requires appropriate documents, in particular a passport, the right to leave a country must include the right to obtain the necessary travel documents. The issuing of passports is normally incumbent on the State of nationality of the individual. The refusal by a State to issue a passport or prolong its validity for a national residing abroad may deprive this person of the right to leave the country of residence and to travel elsewhere. It is no justification for the State to claim that its national would be able to return to its territory without a passport.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Equality & Inclusion
- Governance & Rule of Law
- Movement
- Person(s) affected
- All
- Year
- 1999
Paragraph
Article 12: Freedom of movement 1999, para. 10
- Paragraph text
- The practice of States often shows that legal rules and administrative measures adversely affect the right to leave, in particular, a person's own country. It is therefore of the utmost importance that States parties report on all legal and practical restrictions on the right to leave, which they apply both to nationals and to foreigners, in order to enable the Committee to assess the conformity of these rules and practices with article 12, paragraph 3. States parties should also include information in their reports on measures that impose sanctions on international carriers which bring to their territory persons without required documents, where those measures affect the right to leave another country.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Movement
- Person(s) affected
- Persons on the move
- Year
- 1999
Paragraph
Article 12: Freedom of movement 1999, para. 11
- Paragraph text
- Article 12, paragraph 3, provides for exceptional circumstances in which rights under paragraphs 1 and 2 may be restricted. This provision authorizes the State to restrict these rights only to protect national security, public order (ordre public), public health or morals and the rights and freedoms of others. To be permissible, restrictions must be provided by law, must be necessary in a democratic society for the protection of these purposes, and must be consistent with all other rights recognized in the Covenant (see para. 18 below).
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Health
- Person(s) affected
- All
- Year
- 1999
Paragraph
Article 12: Freedom of movement 1999, para. 12
- Paragraph text
- The law itself has to establish the conditions under which the rights may be limited. State reports should therefore specify the legal norms upon which restrictions are founded. Restrictions which are not provided for in the law or are not in conformity with the requirements of article 12, paragraph 3, would violate the rights guaranteed by paragraphs 1 and 2.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Movement
- Person(s) affected
- All
- Year
- 1999
Paragraph
Article 12: Freedom of movement 1999, para. 13
- Paragraph text
- In adopting laws providing for restrictions permitted by article 12, paragraph 3, States should always be guided by the principle that the restrictions must not impair the essence of the right (cf. art 5, para. 1); the relation between right and restriction, between norm and exception, must not be reversed. The laws authorizing the application of restrictions should use precise criteria and may not confer unfettered discretion on those charged with their execution.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- N.A.
- Year
- 1999
Paragraph
Article 12: Freedom of movement 1999, para. 14
- Paragraph text
- Article 12, paragraph 3, clearly indicates that it is not sufficient that the restrictions serve the permissible purposes; they must also be necessary to protect them. Restrictive measures must conform to the principle of proportionality; they must be appropriate to achieve their protective function; they must be the least intrusive instrument amongst those which might achieve the desired result; and they must be proportionate to the interest to be protected.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 1999
Paragraph
Article 12: Freedom of movement 1999, para. 15
- Paragraph text
- The principle of proportionality has to be respected not only in the law that frames the restrictions, but also by the administrative and judicial authorities in applying the law. States should ensure that any proceedings relating to the exercise or restriction of these rights are expeditious and that reasons for the application of restrictive measures are provided.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Movement
- Person(s) affected
- All
- Year
- 1999
Paragraph
Article 12: Freedom of movement 1999, para. 16
- Paragraph text
- States have often failed to show that the application of their laws restricting the rights enshrined in article 12, paragraphs 1 and 2, are in conformity with all requirements referred to in article 12, paragraph 3. The application of restrictions in any individual case must be based on clear legal grounds and meet the test of necessity and the requirements of proportionality. These conditions would not be met, for example, if an individual were prevented from leaving a country merely on the ground that he or she is the holder of "State secrets", or if an individual were prevented from travelling internally without a specific permit. On the other hand, the conditions could be met by restrictions on access to military zones on national security grounds or limitations on the freedom to settle in areas inhabited by indigenous or minorities communities.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Movement
- Person(s) affected
- Ethnic minorities
- Year
- 1999
Paragraph
Article 12: Freedom of movement 1999, para. 17
- Paragraph text
- A major source of concern are the manifold legal and bureaucratic barriers unnecessarily affecting the full enjoyment of the rights of the individuals to move freely, to leave a country, including their own, and to take up residence. Regarding the right to movement within a country, the Committee has criticized provisions requiring individuals to apply for permission to change their residence or to seek the approval of the local authorities of the place of destination, as well as delays in processing such written applications. States' practice presents an even richer array of obstacles making it more difficult to leave the country, in particular for their own nationals. These rules and practices include, inter alia, lack of access for applicants to the competent authorities and lack of information regarding requirements; the requirement to apply for special forms through which the proper application documents for the issuance of a passport can be obtained; the need for supportive statements from employers or family members; exact description of the travel route; issuance of passports only on payment of high fees substantially exceeding the cost of the service rendered by the administration; unreasonable delays in the issuance of travel documents; restrictions on family members travelling together; requirement of a repatriation deposit or a return ticket; requirement of an invitation from the State of destination or from people living there; harassment of applicants, for example by physical intimidation, arrest, loss of employment or expulsion of their children from school or university; refusal to issue a passport because the applicant is said to harm the good name of the country. In the light of these practices, States parties should make sure that all restrictions imposed by them are in full compliance with article 12, paragraph 3.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Equality & Inclusion
- Movement
- Person(s) affected
- Families
- Year
- 1999
Paragraph
Article 12: Freedom of movement 1999, para. 18
- Paragraph text
- The application of the restrictions permissible under article 12, paragraph 3, needs to be consistent with the other rights guaranteed in the Covenant and with the fundamental principles of equality and non-discrimination. Thus, it would be a clear violation of the Covenant if the rights enshrined in article 12, paragraphs 1 and 2, were restricted by making distinctions of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. In examining State reports, the Committee has on several occasions found that measures preventing women from moving freely or leaving the country by requiring them to have the consent or the escort of a male person, constitute a violation of article 12.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Equality & Inclusion
- Person(s) affected
- Women
- Year
- 1999
Paragraph
Article 12: Freedom of movement 1999, para. 19
- Paragraph text
- The right of a person to enter his or her own country recognizes the special relationship of a person to that country. The right has various facets. It implies the right to remain in one's own country. It includes not only the right to return after having left one's own country; it may also entitle a person to come to the country for the first time if he or she was born outside the country (e.g. if that country is the person's state of nationality). The right to return is of the utmost importance for refugees seeking voluntary repatriation. It also implies prohibition of enforced population transfers or mass expulsions to other countries.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Movement
- Person(s) affected
- Persons on the move
- Year
- 1999
Paragraph
Article 12: Freedom of movement 1999, para. 20
- Paragraph text
- The wording of article 12, paragraph 4, does not distinguish between nationals and aliens ("no one"). Thus, the persons entitled to exercise this right can be identified only by interpreting the meaning of the phrase "his own country". The scope of "his own country" is broader than the concept "country of his nationality". It is not limited to nationality in a formal sense, that is, nationality acquired at birth or by conferral; it embraces, at the very least, an individual who, because of his or her special ties to or claims in relation to a given country, cannot be considered to be a mere alien. This would be the case, for example, of nationals of a country who have there been stripped of their nationality in violation of international law and of individuals whose country of nationality has been incorporated into or transferred to another national entity whose nationality is being denied them. The language of article 12, paragraph 4, moreover, permits a broader interpretation that might embrace other categories of long-term residents, including but not limited to stateless persons arbitrarily deprived of the right to acquire the nationality of the country of such residence. Since other factors may in certain circumstances result in the establishment of close and enduring connections between a person and a country, States parties should include in their reports information on the rights of permanent residents to return to their country of residence.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Equality & Inclusion
- Governance & Rule of Law
- Year
- 1999
Paragraph
Article 12: Freedom of movement 1999, para. 21
- Paragraph text
- In no case may a person be arbitrarily deprived of the right to enter his or her own country. The reference to the concept of arbitrariness in this context is intended to emphasize that it applies to all State action, legislative, administrative, and judicial; it guarantees that even interference provided for by law should be in accordance with the provisions, aims and objectives of the Covenant and should be, in any event, reasonable in the particular circumstances. The Committee considers that there are few, if any, circumstances in which deprivation of the right to enter one's own country could be reasonable. A State party must not, by stripping a person of nationality or by expelling an individual to a third country, arbitrarily prevent this person from returning to his or her own country.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Movement
- Person(s) affected
- All
- Persons on the move
- Year
- 1999
Paragraph
Article 14: Administration of justice
- Body
- Human Rights Committee
- Legal status
- Non-negotiated soft law
- Document type
- General Comment / Recommendation
- Year
- 1984
Document
Article 14: Administration of justice 1984, para. 1
- Paragraph text
- The Committee notes that article 14 of the Covenant is of a complex nature and that different aspects of its provisions will need specific comments. All of these provisions are aimed at ensuring the proper administration of justice, and to this end uphold a series of individual rights such as equality before the courts and tribunals and the right to a fair and public hearing by a competent, independent and impartial tribunal established by law. Not all reports provided details on the legislative or other measures adopted specifically to implement each of the provisions of article 14.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- N.A.
- Year
- 1984
Paragraph
Article 14: Administration of justice 1984, para. 2
- Paragraph text
- In general, the reports of States parties fail to recognize that article 14 applies not only to procedures for the determination of criminal charges against individuals but also to procedures to determine their rights and obligations in a suit at law. Laws and practices dealing with these matters vary widely from State to State. This diversity makes it all the more necessary for States parties to provide all relevant information and to explain in greater detail how the concepts of "criminal charge" and "rights and obligations in a suit at law" are interpreted in relation to their respective legal systems.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- N.A.
- Year
- 1984
Paragraph
Article 14: Administration of justice 1984, para. 3
- Paragraph text
- The Committee would find it useful if, in their future reports, States parties could provide more detailed information on the steps taken to ensure that equality before the courts, including equal access to courts, fair and public hearings and competence, impartiality and independence of the judiciary are established by law and guaranteed in practice. In particular, States parties should specify the relevant constitutional and legislative texts which provide for the establishment of the courts and ensure that they are independent, impartial and competent, in particular with regard to the manner in which judges are appointed, the qualifications for appointment, and the duration of their terms of office; the condition governing promotion, transfer and cessation of their functions and the actual independence of the judiciary from the executive branch and the legislative.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- All
- N.A.
- Year
- 1984
Paragraph
Article 14: Administration of justice 1984, para. 4
- Paragraph text
- The provisions of article 14 apply to all courts and tribunals within the scope of that article whether ordinary or specialized. The Committee notes the existence, in many countries, of military or special courts which try civilians. This could present serious problems as far as the equitable, impartial and independent administration of justice is concerned. Quite often the reason for the establishment of such courts is to enable exceptional procedures to be applied which do not comply with normal standards of justice. While the Covenant does not prohibit such categories of courts, nevertheless the conditions which it lays down clearly indicate that the trying of civilians by such courts should be very exceptional and take place under conditions which genuinely afford the full guarantees stipulated in article 14. The Committee has noted a serious lack of information in this regard in the reports of some States parties whose judicial institutions include such courts for the trying of civilians. In some countries such military and special courts do not afford the strict guarantees of the proper administration of justice in accordance with the requirements of article 14 which are essential for the effective protection of human rights. If States parties decide in circumstances of a public emergency as contemplated by article 4 to derogate from normal procedures required under article 14, they should ensure that such derogations do not exceed those strictly required by the exigencies of the actual situation, and respect the other conditions in paragraph 1 of article 14.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Humanitarian
- Person(s) affected
- All
- Year
- 1984
Paragraph
Article 14: Administration of justice 1984, para. 5
- Paragraph text
- The second sentence of article 14, paragraph 1, provides that "everyone shall be entitled to a fair and public hearing". Paragraph 3 of the article elaborates on the requirements of a "fair hearing" in regard to the determination of criminal charges. However, the requirements of paragraph 3 are minimum guarantees, the observance of which is not always sufficient to ensure the fairness of a hearing as required by paragraph 1.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 1984
Paragraph
Article 14: Administration of justice 1984, para. 6
- Paragraph text
- The publicity of hearings is an important safeguard in the interest of the individual and of society at large. At the same time article 14, paragraph 1, acknowledges that courts have the power to exclude all or part of the public for reasons spelt out in that paragraph. It should be noted that, apart from such exceptional circumstances, the Committee considers that a hearing must be open to the public in general, including members of the press, and must not, for instance, be limited only to a particular category of persons. It should be noted that, even in cases in which the public is excluded from the trial, the judgement must, with certain strictly defined exceptions, be made public.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 1984
Paragraph
Article 14: Administration of justice 1984, para. 7
- Paragraph text
- The Committee has noted a lack of information regarding article 14, paragraph 2 and, in some cases, has even observed that the presumption of innocence, which is fundamental to the protection of human rights, is expressed in very ambiguous terms or entails conditions which render it ineffective. By reason of the presumption of innocence, the burden of proof of the charge is on the prosecution and the accused has the benefit of doubt. No guilt can be presumed until the charge has been proved beyond reasonable doubt. Further, the presumption of innocence implies a right to be treated in accordance with this principle. It is, therefore, a duty for all public authorities to refrain from prejudging the outcome of a trial.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 1984
Paragraph
Article 14: Administration of justice 1984, para. 8
- Paragraph text
- Among the minimum guarantees in criminal proceedings prescribed by paragraph 3, the first concerns the right of everyone to be informed in a language which he understands of the charge against him (subpara. (a)). The Committee notes that State reports often do not explain how this right is respected and ensured. Article 14 (3) (a) applies to all cases of criminal charges, including those of persons not in detention. The Committee notes further that the right to be informed of the charge "promptly" requires that information is given in the manner described as soon as the charge is first made by a competent authority. In the opinion of the Committee this right must arise when in the course of an investigation a court or an authority of the prosecution decides to take procedural steps against a person suspected of a crime or publicly names him as such. The specific requirements of subparagraph 3 (a) may be met by stating the charge either orally or in writing, provided that the information indicates both the law and the alleged facts on which it is based.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 1984
Paragraph
Article 14: Administration of justice 1984, para. 9
- Paragraph text
- Subparagraph 3 (b) provides that the accused must have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing. What is "adequate time" depends on the circumstances of each case, but the facilities must include access to documents and other evidence which the accused requires to prepare his case, as well as the opportunity to engage and communicate with counsel. When the accused does not want to defend himself in person or request a person or an association of his choice, he should be able to have recourse to a lawyer. Furthermore, this subparagraph requires counsel to communicate with the accused in conditions giving full respect for the confidentiality of their communications. Lawyers should be able to counsel and to represent their clients in accordance with their established professional standards and judgement without any restrictions, influences, pressures or undue interference from any quarter.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 1984
Paragraph
Article 14: Administration of justice 1984, para. 10
- Paragraph text
- Subparagraph 3 (c) provides that the accused shall be tried without undue delay. This guarantee relates not only to the time by which a trial should commence, but also the time by which it should end and judgement be rendered; all stages must take place "without undue delay". To make this right effective, a procedure must be available in order to ensure that the trial will proceed "without undue delay", both in first instance and on appeal.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 1984
Paragraph
Article 14: Administration of justice 1984, para. 11
- Paragraph text
- Not all reports have dealt with all aspects of the right of defence as defined in subparagraph 3 (d). The Committee has not always received sufficient information concerning the protection of the right of the accused to be present during the determination of any charge against him nor how the legal system assures his right either to defend himself in person or to be assisted by counsel of his own choosing, or what arrangements are made if a person does not have sufficient means to pay for legal assistance. The accused or his lawyer must have the right to act diligently and fearlessly in pursuing all available defences and the right to challenge the conduct of the case if they believe it to be unfair. When exceptionally for justified reasons trials in absentia are held, strict observance of the rights of the defence is all the more necessary.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 1984
Paragraph
Article 14: Administration of justice 1984, para. 12
- Paragraph text
- Subparagraph 3 (e) states that the accused shall be entitled to examine or have examined the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him. This provision is designed to guarantee to the accused the same legal powers of compelling the attendance of witnesses and of examining or cross examining any witnesses as are available to the prosecution.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 1984
Paragraph
Article 14: Administration of justice 1984, para. 13
- Paragraph text
- Subparagraph 3 (f) provides that if the accused cannot understand or speak the language used in court he is entitled to the assistance of an interpreter free of any charge. This right is independent of the outcome of the proceedings and applies to aliens as well as to nationals. It is of basic importance in cases in which ignorance of the language used by a court or difficulty in understanding may constitute a major obstacle to the right of defence.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Movement
- Person(s) affected
- Persons on the move
- Year
- 1984
Paragraph
Article 14: Administration of justice 1984, para. 14
- Paragraph text
- Subparagraph 3 (g) provides that the accused may not be compelled to testify against himself or to confess guilt. In considering this safeguard the provisions of article 7 and article 10, paragraph 1, should be borne in mind. In order to compel the accused to confess or to testify against himself, frequently methods which violate these provisions are used. The law should require that evidence provided by means of such methods or any other form of compulsion is wholly unacceptable.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 1984
Paragraph
Article 14: Administration of justice 1984, para. 15
- Paragraph text
- In order to safeguard the rights of the accused under paragraphs 1 and 3 of article 14, judges should have authority to consider any allegations made of violations of the rights of the accused during any stage of the prosecution.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 1984
Paragraph
Article 14: Administration of justice 1984, para. 16
- Paragraph text
- Article 14, paragraph 4, provides that in the case of juvenile persons, the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation. Not many reports have furnished sufficient information concerning such relevant matters as the minimum age at which a juvenile may be charged with a criminal offence, the maximum age at which a person is still considered to be a juvenile, the existence of special courts and procedures, the laws governing procedures against juveniles and how all these special arrangements for juveniles take account of "the desirability of promoting their rehabilitation". Juveniles are to enjoy at least the same guarantees and protection as are accorded to adults under article 14.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- Adolescents
- Year
- 1984
Paragraph
Article 14: Administration of justice 1984, para. 17
- Paragraph text
- Article 14, paragraph 5, provides that everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law. Particular attention is drawn to the other language versions of the word "crime" ("infraction", "delito", "prestuplenie") which show that the guarantee is not confined only to the most serious offences. In this connection, not enough information has been provided concerning the procedures of appeal, in particular the access to and the powers of reviewing tribunals, what requirements must be satisfied to appeal against a judgement, and the way in which the procedures before review tribunals take account of the fair and public hearing requirements of paragraph 1 of article 14.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 1984
Paragraph
Article 14: Administration of justice 1984, para. 18
- Paragraph text
- Article 14, paragraph 6, provides for compensation according to law in certain cases of a miscarriage of justice as described therein. It seems from many State reports that this right is often not observed or insufficiently guaranteed by domestic legislation. States should, where necessary, supplement their legislation in this area in order to bring it into line with the provisions of the Covenant.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- N.A.
- Year
- 1984
Paragraph
Article 14: Administration of justice 1984, para. 19
- Paragraph text
- In considering State reports differing views have often been expressed as to the scope of paragraph 7 of article 14. Some States parties have even felt the need to make reservations in relation to procedures for the resumption of criminal cases. It seems to the Committee that most States parties make a clear distinction between a resumption of a trial justified by exceptional circumstances and a re trial prohibited pursuant to the principle of ne bis in idem as contained in paragraph 7. This understanding of the meaning of ne bis in idem may encourage States parties to reconsider their reservations to article 14, paragraph 7.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- N.A.
- Year
- 1984
Paragraph
Article 14: Right to Equality before Courts and Tribunals and to Fair Trial - replaces GC No. 13
- Body
- Human Rights Committee
- Legal status
- Non-negotiated soft law
- Document type
- General Comment / Recommendation
- Year
- 2007
- Document code
- CCPR/C/GC/32
Document
Article 14: Right to Equality before Courts and Tribunals and to Fair Trial - replaces GC No. 13 2007, para. 1
- Paragraph text
- This general comment replaces general comment No. 13 (twenty-first session).
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- N.A.
- Year
- 2007
Paragraph
Article 14: Right to Equality before Courts and Tribunals and to Fair Trial - replaces GC No. 13 2007, para. 2
- Paragraph text
- The right to equality before the courts and tribunals and to a fair trial is a key element of human rights protection and serves as a procedural means to safeguard the rule of law. Article 14 of the Covenant aims at ensuring the proper administration of justice, and to this end guarantees a series of specific rights.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2007
Paragraph
Article 14: Right to Equality before Courts and Tribunals and to Fair Trial - replaces GC No. 13 2007, para. 3
- Paragraph text
- Article 14 is of a particularly complex nature, combining various guarantees with different scopes of application. The first sentence of paragraph 1 sets out a general guarantee of equality before courts and tribunals that applies regardless of the nature of proceedings before such bodies. The second sentence of the same paragraph entitles individuals to a fair and public hearing by a competent, independent and impartial tribunal established by law, if they face any criminal charges or if their rights and obligations are determined in a suit at law. In such proceedings the media and the public may be excluded from the hearing only in the cases specified in the third sentence of paragraph 1. Paragraphs 2 - 5 of the article contain procedural guarantees available to persons charged with a criminal offence. Paragraph 6 secures a substantive right to compensation in cases of miscarriage of justice in criminal cases. Paragraph 7 prohibits double jeopardy and thus guarantees a substantive freedom, namely the right to remain free from being tried or punished again for an offence for which an individual has already been finally convicted or acquitted. States parties to the Covenant, in their reports, should clearly distinguish between these different aspects of the right to a fair trial.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2007
Paragraph
Article 14: Right to Equality before Courts and Tribunals and to Fair Trial - replaces GC No. 13 2007, para. 4
- Paragraph text
- Article 14 contains guarantees that States parties must respect, regardless of their legal traditions and their domestic law. While they should report on how these guarantees are interpreted in relation to their respective legal systems, the Committee notes that it cannot be left to the sole discretion of domestic law to determine the essential content of Covenant guarantees.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- N.A.
- Year
- 2007
Paragraph
Article 14: Right to Equality before Courts and Tribunals and to Fair Trial - replaces GC No. 13 2007, para. 5
- Paragraph text
- While reservations to particular clauses of article 14 may be acceptable, a general reservation to the right to a fair trial would be incompatible with the object and purpose of the Covenant.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- N.A.
- Year
- 2007
Paragraph
Article 14: Right to Equality before Courts and Tribunals and to Fair Trial - replaces GC No. 13 2007, para. 6
- Paragraph text
- While article 14 is not included in the list of non-derogable rights of article 4, paragraph 2 of the Covenant, States derogating from normal procedures required under article 14 in circumstances of a public emergency should ensure that such derogations do not exceed those strictly required by the exigencies of the actual situation. The guarantees of fair trial may never be made subject to measures of derogation that would circumvent the protection of non-derogable rights. Thus, for example, as article 6 of the Covenant is non-derogable in its entirety, any trial leading to the imposition of the death penalty during a state of emergency must conform to the provisions of the Covenant, including all the requirements of article 14. Similarly, as article 7 is also non-derogable in its entirety, no statements or confessions or, in principle, other evidence obtained in violation of this provision may be invoked as evidence in any proceedings covered by article 14, including during a state of emergency, except if a statement or confession obtained in violation of article 7 is used as evidence that torture or other treatment prohibited by this provision occurred. Deviating from fundamental principles of fair trial, including the presumption of innocence, is prohibited at all times.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Humanitarian
- Person(s) affected
- All
- Year
- 2007
Paragraph
Article 14: Right to Equality before Courts and Tribunals and to Fair Trial - replaces GC No. 13 2007, para. 7
- Paragraph text
- The first sentence of article 14, paragraph 1 guarantees in general terms the right to equality before courts and tribunals. This guarantee not only applies to courts and tribunals addressed in the second sentence of this paragraph of article 14, but must also be respected whenever domestic law entrusts a judicial body with a judicial task.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- All
- N.A.
- Year
- 2007
Paragraph
Article 14: Right to Equality before Courts and Tribunals and to Fair Trial - replaces GC No. 13 2007, para. 8
- Paragraph text
- The right to equality before courts and tribunals, in general terms, guarantees, in addition to the principles mentioned in the second sentence of Article 14, paragraph 1, those of equal access and equality of arms, and ensures that the parties to the proceedings in question are treated without any discrimination.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2007
Paragraph
Article 14: Right to Equality before Courts and Tribunals and to Fair Trial - replaces GC No. 13 2007, para. 9
- Paragraph text
- Article 14 encompasses the right of access to the courts in cases of determination of criminal charges and rights and obligations in a suit at law. Access to administration of justice must effectively be guaranteed in all such cases to ensure that no individual is deprived, in procedural terms, of his/her right to claim justice. The right of access to courts and tribunals and equality before them is not limited to citizens of States parties, but must also be available to all individuals, regardless of nationality or statelessness, or whatever their status, whether asylum seekers, refugees, migrant workers, unaccompanied children or other persons, who may find themselves in the territory or subject to the jurisdiction of the State party. A situation in which an individual's attempts to access the competent courts or tribunals are systematically frustrated de jure or de facto runs counter to the guarantee of article 14, paragraph 1, first sentence. This guarantee also prohibits any distinctions regarding access to courts and tribunals that are not based on law and cannot be justified on objective and reasonable grounds. The guarantee is violated if certain persons are barred from bringing suit against any other persons such as by reason of their race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Movement
- Person(s) affected
- Persons on the move
- Year
- 2007
Paragraph
Article 14: Right to Equality before Courts and Tribunals and to Fair Trial - replaces GC No. 13 2007, para. 10
- Paragraph text
- The availability or absence of legal assistance often determines whether or not a person can access the relevant proceedings or participate in them in a meaningful way. While article 14 explicitly addresses the guarantee of legal assistance in criminal proceedings in paragraph 3 (d), States are encouraged to provide free legal aid in other cases, for individuals who do not have sufficient means to pay for it. In some cases, they may even be obliged to do so. For instance, where a person sentenced to death seeks available constitutional review of irregularities in a criminal trial but does not have sufficient means to meet the costs of legal assistance in order to pursue such remedy, the State is obliged to provide legal assistance in accordance with article 14, paragraph 1, in conjunction with the right to an effective remedy as enshrined in article 2, paragraph 3 of the Covenant.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2007
Paragraph
Article 14: Right to Equality before Courts and Tribunals and to Fair Trial - replaces GC No. 13 2007, para. 11
- Paragraph text
- Similarly, the imposition of fees on the parties to proceedings that would de facto prevent their access to justice might give rise to issues under article 14, paragraph 1. In particular, a rigid duty under law to award costs to a winning party without consideration of the implications thereof or without providing legal aid may have a deterrent effect on the ability of persons to pursue the vindication of their rights under the Covenant in proceedings available to them.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- N.A.
- Year
- 2007
Paragraph
Article 14: Right to Equality before Courts and Tribunals and to Fair Trial - replaces GC No. 13 2007, para. 12
- Paragraph text
- The right of equal access to a court, embodied in article 14, paragraph 1, concerns access to first instance procedures and does not address the issue of the right to appeal or other remedies.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2007
Paragraph
Article 14: Right to Equality before Courts and Tribunals and to Fair Trial - replaces GC No. 13 2007, para. 13
- Paragraph text
- The right to equality before courts and tribunals also ensures equality of arms. This means that the same procedural rights are to be provided to all the parties unless distinctions are based on law and can be justified on objective and reasonable grounds, not entailing actual disadvantage or other unfairness to the defendant. There is no equality of arms if, for instance, only the prosecutor, but not the defendant, is allowed to appeal a certain decision. The principle of equality between parties applies also to civil proceedings, and demands, inter alia, that each side be given the opportunity to contest all the arguments and evidence adduced by the other party. In exceptional cases, it also might require that the free assistance of an interpreter be provided where otherwise an indigent party could not participate in the proceedings on equal terms or witnesses produced by it be examined.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2007
Paragraph
Article 14: Right to Equality before Courts and Tribunals and to Fair Trial - replaces GC No. 13 2007, para. 14
- Paragraph text
- Equality before courts and tribunals also requires that similar cases are dealt with in similar proceedings. If, for example, exceptional criminal procedures or specially constituted courts or tribunals apply in the determination of certain categories of cases, objective and reasonable grounds must be provided to justify the distinction.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- All
- N.A.
- Year
- 2007
Paragraph
Article 14: Right to Equality before Courts and Tribunals and to Fair Trial - replaces GC No. 13 2007, para. 15
- Paragraph text
- The right to a fair and public hearing by a competent, independent and impartial tribunal established by law is guaranteed, according to the second sentence of article 14, paragraph 1, in cases regarding the determination of criminal charges against individuals or of their rights and obligations in a suit at law. Criminal charges relate in principle to acts declared to be punishable under domestic criminal law. The notion may also extend to acts that are criminal in nature with sanctions that, regardless of their qualification in domestic law, must be regarded as penal because of their purpose, character or severity.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2007
Paragraph
Article 14: Right to Equality before Courts and Tribunals and to Fair Trial - replaces GC No. 13 2007, para. 16
- Paragraph text
- The concept of determination of rights and obligations "in a suit at law" (de caractère civil/de carácter civil) is more complex. It is formulated differently in the various languages of the Covenant that, according to article 53 of the Covenant, are equally authentic, and the travaux préparatoires do not resolve the discrepancies in the various language texts. The Committee notes that the concept of a "suit at law" or its equivalents in other language texts is based on the nature of the right in question rather than on the status of one of the parties or the particular forum provided by domestic legal systems for the determination of particular rights. The concept encompasses (a) judicial procedures aimed at determining rights and obligations pertaining to the areas of contract, property and torts in the area of private law, as well as (b) equivalent notions in the area of administrative law such as the termination of employment of civil servants for other than disciplinary reasons, the determination of social security benefits or the pension rights of soldiers, or procedures regarding the use of public land or the taking of private property. In addition, it may (c) cover other procedures which, however, must be assessed on a case by case basis in the light of the nature of the right in question.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- N.A.
- Year
- 2007
Paragraph
Article 14: Right to Equality before Courts and Tribunals and to Fair Trial - replaces GC No. 13 2007, para. 17
- Paragraph text
- On the other hand, the right to access a court or tribunal as provided for by article 14, paragraph 1, second sentence, does not apply where domestic law does not grant any entitlement to the person concerned. For this reason, the Committee held this provision to be inapplicable in cases where domestic law did not confer any right to be promoted to a higher position in the civil service, to be appointed as a judge or to have a death sentence commuted by an executive body. Furthermore, there is no determination of rights and obligations in a suit at law where the persons concerned are confronted with measures taken against them in their capacity as persons subordinated to a high degree of administrative control, such as disciplinary measures not amounting to penal sanctions being taken against a civil servant, a member of the armed forces, or a prisoner. This guarantee furthermore does not apply to extradition, expulsion and deportation procedures. Although there is no right of access to a court or tribunal as provided for by article 14, paragraph 1, second sentence, in these and similar cases, other procedural guarantees may still apply.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2007
Paragraph
Article 14: Right to Equality before Courts and Tribunals and to Fair Trial - replaces GC No. 13 2007, para. 18
- Paragraph text
- The notion of a "tribunal" in article 14, paragraph 1 designates a body, regardless of its denomination, that is established by law, is independent of the executive and legislative branches of government or enjoys in specific cases judicial independence in deciding legal matters in proceedings that are judicial in nature. Article 14, paragraph 1, second sentence, guarantees access to such tribunals to all who have criminal charges brought against them. This right cannot be limited, and any criminal conviction by a body not constituting a tribunal is incompatible with this provision. Similarly, whenever rights and obligations in a suit at law are determined, this must be done at least at one stage of the proceedings by a tribunal within the meaning of this sentence. The failure of a State party to establish a competent tribunal to determine such rights and obligations or to allow access to such a tribunal in specific cases would amount to a violation of article 14 if such limitations are not based on domestic legislation, are not necessary to pursue legitimate aims such as the proper administration of justice, or are based on exceptions from jurisdiction deriving from international law such, for example, as immunities, or if the access left to an individual would be limited to an extent that would undermine the very essence of the right.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2007
Paragraph
Article 14: Right to Equality before Courts and Tribunals and to Fair Trial - replaces GC No. 13 2007, para. 19
- Paragraph text
- The requirement of competence, independence and impartiality of a tribunal in the sense of article 14, paragraph 1, is an absolute right that is not subject to any exception. The requirement of independence refers, in particular, to the procedure and qualifications for the appointment of judges, and guarantees relating to their security of tenure until a mandatory retirement age or the expiry of their term of office, where such exist, the conditions governing promotion, transfer, suspension and cessation of their functions, and the actual independence of the judiciary from political interference by the executive branch and legislature. States should take specific measures guaranteeing the independence of the judiciary, protecting judges from any form of political influence in their decision-making through the constitution or adoption of laws establishing clear procedures and objective criteria for the appointment, remuneration, tenure, promotion, suspension and dismissal of the members of the judiciary and disciplinary sanctions taken against them. A situation where the functions and competencies of the judiciary and the executive are not clearly distinguishable or where the latter is able to control or direct the former is incompatible with the notion of an independent tribunal. It is necessary to protect judges against conflicts of interest and intimidation. In order to safeguard their independence, the status of judges, including their term of office, their independence, security, adequate remuneration, conditions of service, pensions and the age of retirement shall be adequately secured by law.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2007
Paragraph
Article 14: Right to Equality before Courts and Tribunals and to Fair Trial - replaces GC No. 13 2007, para. 20
- Paragraph text
- Judges may be dismissed only on serious grounds of misconduct or incompetence, in accordance with fair procedures ensuring objectivity and impartiality set out in the constitution or the law. The dismissal of judges by the executive, e.g. before the expiry of the term for which they have been appointed, without any specific reasons given to them and without effective judicial protection being available to contest the dismissal is incompatible with the independence of the judiciary. The same is true, for instance, for the dismissal by the executive of judges alleged to be corrupt, without following any of the procedures provided for by the law.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2007
Paragraph
Article 14: Right to Equality before Courts and Tribunals and to Fair Trial - replaces GC No. 13 2007, para. 21
- Paragraph text
- The requirement of impartiality has two aspects. First, judges must not allow their judgement to be influenced by personal bias or prejudice, nor harbour preconceptions about the particular case before them, nor act in ways that improperly promote the interests of one of the parties to the detriment of the other. Second, the tribunal must also appear to a reasonable observer to be impartial. For instance, a trial substantially affected by the participation of a judge who, under domestic statutes, should have been disqualified cannot normally be considered to be impartial.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2007
Paragraph
Article 14: Right to Equality before Courts and Tribunals and to Fair Trial - replaces GC No. 13 2007, para. 22
- Paragraph text
- The provisions of article 14 apply to all courts and tribunals within the scope of that article whether ordinary or specialized, civilian or military. The Committee notes the existence, in many countries, of military or special courts which try civilians. While the Covenant does not prohibit the trial of civilians in military or special courts, it requires that such trials are in full conformity with the requirements of article 14 and that its guarantees cannot be limited or modified because of the military or special character of the court concerned. The Committee also notes that the trial of civilians in military or special courts may raise serious problems as far as the equitable, impartial and independent administration of justice is concerned. Therefore, it is important to take all necessary measures to ensure that such trials take place under conditions which genuinely afford the full guarantees stipulated in article 14. Trials of civilians by military or special courts should be exceptional, i.e. limited to cases where the State party can show that resorting to such trials is necessary and justified by objective and serious reasons, and where with regard to the specific class of individuals and offences at issue the regular civilian courts are unable to undertake the trials.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2007
Paragraph
Article 14: Right to Equality before Courts and Tribunals and to Fair Trial - replaces GC No. 13 2007, para. 23
- Paragraph text
- Some countries have resorted to special tribunals of "faceless judges" composed of anonymous judges, e.g. within measures taken to fight terrorist activities. Such courts, even if the identity and status of such judges has been verified by an independent authority, often suffer not only from the fact that the identity and status of the judges is not made known to the accused persons but also from irregularities such as exclusion of the public or even the accused or their representatives from the proceedings; restrictions of the right to a lawyer of their own choice; severe restrictions or denial of the right to communicate with their lawyers, particularly when held incommunicado; threats to the lawyers; inadequate time for preparation of the case; or severe restrictions or denial of the right to summon and examine or have examined witnesses, including prohibitions on cross-examining certain categories of witnesses, e.g. police officers responsible for the arrest and interrogation of the defendant. Tribunals with or without faceless judges, in circumstances such as these, do not satisfy basic standards of fair trial and, in particular, the requirement that the tribunal must be independent and impartial.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Humanitarian
- Person(s) affected
- All
- Year
- 2007
Paragraph
Article 14: Right to Equality before Courts and Tribunals and to Fair Trial - replaces GC No. 13 2007, para. 24
- Paragraph text
- Article 14 is also relevant where a State, in its legal order, recognizes courts based on customary law, or religious courts, to carry out or entrusts them with judicial tasks. It must be ensured that such courts cannot hand down binding judgments recognized by the State, unless the following requirements are met: proceedings before such courts are limited to minor civil and criminal matters, meet the basic requirements of fair trial and other relevant guarantees of the Covenant, and their judgments are validated by State courts in light of the guarantees set out in the Covenant and can be challenged by the parties concerned in a procedure meeting the requirements of article 14 of the Covenant. These principles are notwithstanding the general obligation of the State to protect the rights under the Covenant of any persons affected by the operation of customary and religious courts.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2007
Paragraph
Article 14: Right to Equality before Courts and Tribunals and to Fair Trial - replaces GC No. 13 2007, para. 25
- Paragraph text
- The notion of fair trial includes the guarantee of a fair and public hearing. Fairness of proceedings entails the absence of any direct or indirect influence, pressure or intimidation or intrusion from whatever side and for whatever motive. A hearing is not fair if, for instance, the defendant in criminal proceedings is faced with the expression of a hostile attitude from the public or support for one party in the courtroom that is tolerated by the court, thereby impinging on the right to defence, or is exposed to other manifestations of hostility with similar effects. Expressions of racist attitudes by a jury that are tolerated by the tribunal, or a racially biased jury selection are other instances which adversely affect the fairness of the procedure.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2007
Paragraph
Article 14: Right to Equality before Courts and Tribunals and to Fair Trial - replaces GC No. 13 2007, para. 26
- Paragraph text
- Article 14 guarantees procedural equality and fairness only and cannot be interpreted as ensuring the absence of error on the part of the competent tribunal. It is generally for the courts of States parties to the Covenant to review facts and evidence, or the application of domestic legislation, in a particular case, unless it can be shown that such evaluation or application was clearly arbitrary or amounted to a manifest error or denial of justice, or that the court otherwise violated its obligation of independence and impartiality. The same standard applies to specific instructions to the jury by the judge in a trial by jury.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2007
Paragraph
Article 14: Right to Equality before Courts and Tribunals and to Fair Trial - replaces GC No. 13 2007, para. 27
- Paragraph text
- An important aspect of the fairness of a hearing is its expeditiousness. While the issue of undue delays in criminal proceedings is explicitly addressed in paragraph 3 (c) of article 14, delays in civil proceedings that cannot be justified by the complexity of the case or the behaviour of the parties detract from the principle of a fair hearing enshrined in paragraph 1 of this provision. Where such delays are caused by a lack of resources and chronic under-funding, to the extent possible supplementary budgetary resources should be allocated for the administration of justice.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- N.A.
- Year
- 2007
Paragraph
Article 14: Right to Equality before Courts and Tribunals and to Fair Trial - replaces GC No. 13 2007, para. 28
- Paragraph text
- All trials in criminal matters or related to a suit at law must in principle be conducted orally and publicly. The publicity of hearings ensures the transparency of proceedings and thus provides an important safeguard for the interest of the individual and of society at large. Courts must make information regarding the time and venue of the oral hearings available to the public and provide for adequate facilities for the attendance of interested members of the public, within reasonable limits, taking into account, inter alia, the potential interest in the case and the duration of the oral hearing. The requirement of a public hearing does not necessarily apply to all appellate proceedings which may take place on the basis of written presentations, or to pre-trial decisions made by prosecutors and other public authorities.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2007
Paragraph
Article 14: Right to Equality before Courts and Tribunals and to Fair Trial - replaces GC No. 13 2007, para. 29
- Paragraph text
- Article 14, paragraph 1, acknowledges that courts have the power to exclude all or part of the public for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would be prejudicial to the interests of justice. Apart from such exceptional circumstances, a hearing must be open to the general public, including members of the media, and must not, for instance, be limited to a particular category of persons. Even in cases in which the public is excluded from the trial, the judgment, including the essential findings, evidence and legal reasoning must be made public, except where the interest of juvenile persons otherwise requires, or the proceedings concern matrimonial disputes or the guardianship of children.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Equality & Inclusion
- Governance & Rule of Law
- Person(s) affected
- Children
- Year
- 2007
Paragraph
Article 14: Right to Equality before Courts and Tribunals and to Fair Trial - replaces GC No. 13 2007, para. 30
- Paragraph text
- According to article 14, paragraph 2 everyone charged with a criminal offence shall have the right to be presumed innocent until proven guilty according to law. The presumption of innocence, which is fundamental to the protection of human rights, imposes on the prosecution the burden of proving the charge, guarantees that no guilt can be presumed until the charge has been proved beyond reasonable doubt, ensures that the accused has the benefit of doubt, and requires that persons accused of a criminal act must be treated in accordance with this principle. It is a duty for all public authorities to refrain from prejudging the outcome of a trial, e.g. by abstaining from making public statements affirming the guilt of the accused. Defendants should normally not be shackled or kept in cages during trials or otherwise presented to the court in a manner indicating that they may be dangerous criminals. The media should avoid news coverage undermining the presumption of innocence. Furthermore, the length of pre-trial detention should never be taken as an indication of guilt and its degree. The denial of bail or findings of liability in civil proceedings do not affect the presumption of innocence.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2007
Paragraph
Article 14: Right to Equality before Courts and Tribunals and to Fair Trial - replaces GC No. 13 2007, para. 31
- Paragraph text
- The right of all persons charged with a criminal offence to be informed promptly and in detail in a language which they understand of the nature and cause of criminal charges brought against them, enshrined in paragraph 3 (a), is the first of the minimum guarantees in criminal proceedings of article 14. This guarantee applies to all cases of criminal charges, including those of persons not in detention, but not to criminal investigations preceding the laying of charges. Notice of the reasons for an arrest is separately guaranteed in article 9, paragraph 2 of the Covenant. The right to be informed of the charge "promptly" requires that information be given as soon as the person concerned is formally charged with a criminal offence under domestic law, or the individual is publicly named as such. The specific requirements of subparagraph 3 (a) may be met by stating the charge either orally - if later confirmed in writing - or in writing, provided that the information indicates both the law and the alleged general facts on which the charge is based. In the case of trials in absentia, article 14, paragraph 3 (a) requires that, notwithstanding the absence of the accused, all due steps have been taken to inform accused persons of the charges and to notify them of the proceedings.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2007
Paragraph
Article 14: Right to Equality before Courts and Tribunals and to Fair Trial - replaces GC No. 13 2007, para. 32
- Paragraph text
- Subparagraph 3 (b) provides that accused persons must have adequate time and facilities for the preparation of their defence and to communicate with counsel of their own choosing. This provision is an important element of the guarantee of a fair trial and an application of the principle of equality of arms. In cases of an indigent defendant, communication with counsel might only be assured if a free interpreter is provided during the pre-trial and trial phase. What counts as "adequate time" depends on the circumstances of each case. If counsel reasonably feel that the time for the preparation of the defence is insufficient, it is incumbent on them to request the adjournment of the trial. A State party is not to be held responsible for the conduct of a defence lawyer, unless it was, or should have been, manifest to the judge that the lawyer's behaviour was incompatible with the interests of justice. There is an obligation to grant reasonable requests for adjournment, in particular, when the accused is charged with a serious criminal offence and additional time for preparation of the defence is needed.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2007
Paragraph
Article 14: Right to Equality before Courts and Tribunals and to Fair Trial - replaces GC No. 13 2007, para. 33
- Paragraph text
- Adequate facilities must include access to documents and other evidence; this access must include all materials that the prosecution plans to offer in court against the accused or that are exculpatory. Exculpatory material should be understood as including not only material establishing innocence but also other evidence that could assist the defence (e.g. indications that a confession was not voluntary). In cases of a claim that evidence was obtained in violation of article 7 of the Covenant, information about the circumstances in which such evidence was obtained must be made available to allow an assessment of such a claim. If the accused does not speak the language in which the proceedings are held, but is represented by counsel who is familiar with the language, it may be sufficient that the relevant documents in the case file are made available to counsel
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Person(s) affected
- All
- Year
- 2007
Paragraph
Article 14: Right to Equality before Courts and Tribunals and to Fair Trial - replaces GC No. 13 2007, para. 34
- Paragraph text
- The right to communicate with counsel requires that the accused is granted prompt access to counsel. Counsel should be able to meet their clients in private and to communicate with the accused in conditions that fully respect the confidentiality of their communications. Furthermore, lawyers should be able to advise and to represent persons charged with a criminal offence in accordance with generally recognised professional ethics without restrictions, influence, pressure or undue interference from any quarter.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2007
Paragraph
Article 14: Right to Equality before Courts and Tribunals and to Fair Trial - replaces GC No. 13 2007, para. 35
- Paragraph text
- The right of the accused to be tried without undue delay, provided for by article 14, paragraph 3 (c), is not only designed to avoid keeping persons too long in a state of uncertainty about their fate and, if held in detention during the period of the trial, to ensure that such deprivation of liberty does not last longer than necessary in the circumstances of the specific case, but also to serve the interests of justice. What is reasonable has to be assessed in the circumstances of each case, taking into account mainly the complexity of the case, the conduct of the accused, and the manner in which the matter was dealt with by the administrative and judicial authorities. In cases where the accused are denied bail by the court, they must be tried as expeditiously as possible. This guarantee relates not only to the time between the formal charging of the accused and the time by which a trial should commence, but also the time until the final judgement on appeal. All stages, whether in first instance or on appeal must take place "without undue delay."
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2007
Paragraph
Article 14: Right to Equality before Courts and Tribunals and to Fair Trial - replaces GC No. 13 2007, para. 36
- Paragraph text
- Article 14, paragraph 3 (d) contains three distinct guarantees. First, the provision requires that accused persons are entitled to be present during their trial. Proceedings in the absence of the accused may in some circumstances be permissible in the interest of the proper administration of justice, i.e. when accused persons, although informed of the proceedings sufficiently in advance, decline to exercise their right to be present. Consequently, such trials are only compatible with article 14, paragraph 3 (d) if the necessary steps are taken to summon accused persons in a timely manner and to inform them beforehand about the date and place of their trial and to request their attendance.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2007
Paragraph
Article 14: Right to Equality before Courts and Tribunals and to Fair Trial - replaces GC No. 13 2007, para. 37
- Paragraph text
- Second, the right of all accused of a criminal charge to defend themselves in person or through legal counsel of their own choosing and to be informed of this right, as provided for by article 14, paragraph 3 (d), refers to two types of defence which are not mutually exclusive. Persons assisted by a lawyer have the right to instruct their lawyer on the conduct of their case, within the limits of professional responsibility, and to testify on their own behalf. At the same time, the wording of the Covenant is clear in all official languages, in that it provides for a defence to be conducted in person "or" with legal assistance of one's own choosing, thus providing the possibility for the accused to reject being assisted by any counsel. This right to defend oneself without a lawyer is, however not absolute. The interests of justice may, in the case of a specific trial, require the assignment of a lawyer against the wishes of the accused, particularly in cases of persons substantially and persistently obstructing the proper conduct of trial, or facing a grave charge but being unable to act in their own interests, or where this is necessary to protect vulnerable witnesses from further distress or intimidation if they were to be questioned by the accused. However, any restriction of the wish of accused persons to defend themselves must have an objective and sufficiently serious purpose and not go beyond what is necessary to uphold the interests of justice. Therefore, domestic law should avoid any absolute bar against the right to defend oneself in criminal proceedings without the assistance of counsel.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2007
Paragraph
Article 14: Right to Equality before Courts and Tribunals and to Fair Trial - replaces GC No. 13 2007, para. 38
- Paragraph text
- Third, article 14, paragraph 3 (d) guarantees the right to have legal assistance assigned to accused persons whenever the interests of justice so require, and without payment by them in any such case if they do not have sufficient means to pay for it. The gravity of the offence is important in deciding whether counsel should be assigned "in the interest of justice" as is the existence of some objective chance of success at the appeals stage. In cases involving capital punishment, it is axiomatic that the accused must be effectively assisted by a lawyer at all stages of the proceedings. Counsel provided by the competent authorities on the basis of this provision must be effective in the representation of the accused. Unlike in the case of privately retained lawyers, blatant misbehaviour or incompetence, for example the withdrawal of an appeal without consultation in a death penalty case, or absence during the hearing of a witness in such cases may entail the responsibility of the State concerned for a violation of article 14, paragraph 3 (d), provided that it was manifest to the judge that the lawyer's behaviour was incompatible with the interests of justice. There is also a violation of this provision if the court or other relevant authorities hinder appointed lawyers from fulfilling their task effectively.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2007
Paragraph
Article 14: Right to Equality before Courts and Tribunals and to Fair Trial - replaces GC No. 13 2007, para. 39
- Paragraph text
- Paragraph 3 (e) of article 14 guarantees the right of accused persons to examine, or have examined, the witnesses against them and to obtain the attendance and examination of witnesses on their behalf under the same conditions as witnesses against them. As an application of the principle of equality of arms, this guarantee is important for ensuring an effective defence by the accused and their counsel and thus guarantees the accused the same legal powers of compelling the attendance of witnesses and of examining or cross examining any witnesses as are available to the prosecution. It does not, however, provide an unlimited right to obtain the attendance of any witness requested by the accused or their counsel, but only a right to have witnesses admitted that are relevant for the defence, and to be given a proper opportunity to question and challenge witnesses against them at some stage of the proceedings. Within these limits, and subject to the limitations on the use of statements, confessions and other evidence obtained in violation of article 7, it is primarily for the domestic legislatures of States parties to determine the admissibility of evidence and how their courts assess it.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2007
Paragraph
Article 14: Right to Equality before Courts and Tribunals and to Fair Trial - replaces GC No. 13 2007, para. 40
- Paragraph text
- The right to have the free assistance of an interpreter if the accused cannot understand or speak the language used in court as provided for by article 14, paragraph 3 (f) enshrines another aspect of the principles of fairness and equality of arms in criminal proceedings. This right arises at all stages of the oral proceedings. It applies to aliens as well as to nationals. However, accused persons whose mother tongue differs from the official court language are, in principle, not entitled to the free assistance of an interpreter if they know the official language sufficiently to defend themselves effectively.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Movement
- Person(s) affected
- Persons on the move
- Year
- 2007
Paragraph
Article 14: Right to Equality before Courts and Tribunals and to Fair Trial - replaces GC No. 13 2007, para. 41
- Paragraph text
- Finally, article 14, paragraph 3 (g), guarantees the right not to be compelled to testify against oneself or to confess guilt. This safeguard must be understood in terms of the absence of any direct or indirect physical or undue psychological pressure from the investigating authorities on the accused, with a view to obtaining a confession of guilt. A fortiori, it is unacceptable to treat an accused person in a manner contrary to article 7 of the Covenant in order to extract a confession. Domestic law must ensure that statements or confessions obtained in violation of article 7 of the Covenant are excluded from the evidence, except if such material is used as evidence that torture or other treatment prohibited by this provision occurred, and that in such cases the burden is on the State to prove that statements made by the accused have been given of their own free will.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2007
Paragraph
Article 14: Right to Equality before Courts and Tribunals and to Fair Trial - replaces GC No. 13 2007, para. 42
- Paragraph text
- Article 14, paragraph 4, provides that in the case of juvenile persons, procedures should take account of their age and the desirability of promoting their rehabilitation. Juveniles are to enjoy at least the same guarantees and protection as are accorded to adults under article 14 of the Covenant. In addition, juveniles need special protection. In criminal proceedings they should, in particular, be informed directly of the charges against them and, if appropriate, through their parents or legal guardians, be provided with appropriate assistance in the preparation and presentation of their defence; be tried as soon as possible in a fair hearing in the presence of legal counsel, other appropriate assistance and their parents or legal guardians, unless it is considered not to be in the best interest of the child, in particular taking into account their age or situation. Detention before and during the trial should be avoided to the extent possible.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- Adolescents
- Children
- Families
- Year
- 2007
Paragraph
Article 14: Right to Equality before Courts and Tribunals and to Fair Trial - replaces GC No. 13 2007, para. 43
- Paragraph text
- States should take measures to establish an appropriate juvenile criminal justice system, in order to ensure that juveniles are treated in a manner commensurate with their age. It is important to establish a minimum age below which children and juveniles shall not be put on trial for criminal offences; that age should take into account their physical and mental immaturity.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Health
- Person(s) affected
- Adolescents
- Children
- Year
- 2007
Paragraph
Article 14: Right to Equality before Courts and Tribunals and to Fair Trial - replaces GC No. 13 2007, para. 44
- Paragraph text
- Whenever appropriate, in particular where the rehabilitation of juveniles alleged to have committed acts prohibited under penal law would be fostered, measures other than criminal proceedings, such as mediation between the perpetrator and the victim, conferences with the family of the perpetrator, counselling or community service or educational programmes, should be considered, provided they are compatible with the requirements of this Covenant and other relevant human rights standards.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- Adolescents
- Year
- 2007
Paragraph
Article 14: Right to Equality before Courts and Tribunals and to Fair Trial - replaces GC No. 13 2007, para. 45
- Paragraph text
- Article 14, paragraph 5 of the Covenant provides that anyone convicted of a crime shall have the right to have their conviction and sentence reviewed by a higher tribunal according to law. As the different language versions (crime, infraction, delito) show, the guarantee is not confined to the most serious offences. The expression "according to law" in this provision is not intended to leave the very existence of the right of review to the discretion of the States parties, since this right is recognised by the Covenant, and not merely by domestic law. The term according to law rather relates to the determination of the modalities by which the review by a higher tribunal is to be carried out, as well as which court is responsible for carrying out a review in accordance with the Covenant. Article 14, paragraph 5 does not require States parties to provide for several instances of appeal. However, the reference to domestic law in this provision is to be interpreted to mean that if domestic law provides for further instances of appeal, the convicted person must have effective access to each of them.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Civil & Political Rights
- Governance & Rule of Law
- Person(s) affected
- All
- Year
- 2007
Paragraph
Article 14: Right to Equality before Courts and Tribunals and to Fair Trial - replaces GC No. 13 2007, para. 46
- Paragraph text
- Article 14, paragraph 5 does not apply to procedures determining rights and obligations in a suit at law or any other procedure not being part of a criminal appeal process, such as constitutional motions.
- Body
- Human Rights Committee
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Person(s) affected
- N.A.
- Year
- 2007
Paragraph