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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.
- Organe
- Human Rights Committee
- Type de document
- General Comment / Recommendation
- Thèmes
- Governance & Rule of Law
- Personnes concernées
- All
- Année
- 2014
Paragraphe
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.
- Organe
- Human Rights Committee
- Type de document
- General Comment / Recommendation
- Thèmes
- Civil & Political Rights
- Governance & Rule of Law
- Personnes concernées
- Children
- Année
- 2014
Paragraphe
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.
- Organe
- Human Rights Committee
- Type de document
- General Comment / Recommendation
- Thèmes
- Civil & Political Rights
- Governance & Rule of Law
- Personnes concernées
- All
- Année
- 2014
Paragraphe
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.
- Organe
- Human Rights Committee
- Type de document
- General Comment / Recommendation
- Thèmes
- Civil & Political Rights
- Governance & Rule of Law
- Personnes concernées
- All
- Année
- 2014
Paragraphe
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.
- Organe
- Human Rights Committee
- Type de document
- General Comment / Recommendation
- Thèmes
- Governance & Rule of Law
- Personnes concernées
- All
- Année
- 2014
Paragraphe
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.
- Organe
- Human Rights Committee
- Type de document
- General Comment / Recommendation
- Thèmes
- Civil & Political Rights
- Governance & Rule of Law
- Personnes concernées
- All
- Année
- 2014
Paragraphe
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".
- Organe
- Human Rights Committee
- Type de document
- General Comment / Recommendation
- Thèmes
- Civil & Political Rights
- Governance & Rule of Law
- Personnes concernées
- All
- Année
- 2014
Paragraphe
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.
- Organe
- Human Rights Committee
- Type de document
- General Comment / Recommendation
- Thèmes
- Civil & Political Rights
- Governance & Rule of Law
- Personnes concernées
- All
- Année
- 2014
Paragraphe
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.
- Organe
- Human Rights Committee
- Type de document
- General Comment / Recommendation
- Thèmes
- Civil & Political Rights
- Governance & Rule of Law
- Personnes concernées
- Families
- Année
- 2014
Paragraphe
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.
- Organe
- Human Rights Committee
- Type de document
- General Comment / Recommendation
- Thèmes
- Civil & Political Rights
- Governance & Rule of Law
- Personnes concernées
- All
- Année
- 2014
Paragraphe
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.
- Organe
- Human Rights Committee
- Type de document
- General Comment / Recommendation
- Thèmes
- Civil & Political Rights
- Governance & Rule of Law
- Personnes concernées
- All
- Année
- 2014
Paragraphe
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.
- Organe
- Human Rights Committee
- Type de document
- General Comment / Recommendation
- Thèmes
- Civil & Political Rights
- Governance & Rule of Law
- Personnes concernées
- All
- Année
- 2014
Paragraphe
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.
- Organe
- Human Rights Committee
- Type de document
- General Comment / Recommendation
- Thèmes
- Governance & Rule of Law
- Personnes concernées
- Children
- Families
- Année
- 2014
Paragraphe
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.
- Organe
- Human Rights Committee
- Type de document
- General Comment / Recommendation
- Thèmes
- Civil & Political Rights
- Governance & Rule of Law
- Personnes concernées
- All
- Année
- 2014
Paragraphe
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.
- Organe
- Human Rights Committee
- Type de document
- General Comment / Recommendation
- Thèmes
- Governance & Rule of Law
- Health
- Movement
- Personnes concernées
- Persons on the move
- Année
- 2014
Paragraphe
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.
- Organe
- Human Rights Committee
- Type de document
- General Comment / Recommendation
- Thèmes
- Governance & Rule of Law
- Movement
- Personnes concernées
- All
- Année
- 2014
Paragraphe
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.
- Organe
- Human Rights Committee
- Type de document
- General Comment / Recommendation
- Thèmes
- Civil & Political Rights
- Governance & Rule of Law
- Personnes concernées
- All
- Année
- 2014
Paragraphe
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.
- Organe
- Human Rights Committee
- Type de document
- General Comment / Recommendation
- Thèmes
- Civil & Political Rights
- Governance & Rule of Law
- Personnes concernées
- All
- Année
- 2014
Paragraphe
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.
- Organe
- Human Rights Committee
- Type de document
- General Comment / Recommendation
- Thèmes
- Civil & Political Rights
- Governance & Rule of Law
- Personnes concernées
- All
- Année
- 2014
Paragraphe
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.
- Organe
- Human Rights Committee
- Type de document
- General Comment / Recommendation
- Thèmes
- Civil & Political Rights
- Governance & Rule of Law
- Personnes concernées
- Families
- Année
- 2014
Paragraphe
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.
- Organe
- Human Rights Committee
- Type de document
- General Comment / Recommendation
- Thèmes
- Civil & Political Rights
- Governance & Rule of Law
- Personnes concernées
- All
- Année
- 2014
Paragraphe
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.
- Organe
- Human Rights Committee
- Type de document
- General Comment / Recommendation
- Thèmes
- Equality & Inclusion
- Governance & Rule of Law
- Health
- Personnes concernées
- Persons with disabilities
- Année
- 2014
Paragraphe
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.
- Organe
- Human Rights Committee
- Type de document
- General Comment / Recommendation
- Thèmes
- Civil & Political Rights
- Governance & Rule of Law
- Personnes concernées
- All
- Année
- 2014
Paragraphe
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.
- Organe
- Human Rights Committee
- Type de document
- General Comment / Recommendation
- Thèmes
- Governance & Rule of Law
- Personnes concernées
- Children
- Année
- 2014
Paragraphe
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.
- Organe
- Human Rights Committee
- Type de document
- General Comment / Recommendation
- Thèmes
- Civil & Political Rights
- Governance & Rule of Law
- Personnes concernées
- All
- Année
- 2014
Paragraphe
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.
- Organe
- Human Rights Committee
- Type de document
- General Comment / Recommendation
- Thèmes
- Civil & Political Rights
- Governance & Rule of Law
- Personnes concernées
- Adolescents
- All
- Année
- 2014
Paragraphe
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.
- Organe
- Human Rights Committee
- Type de document
- General Comment / Recommendation
- Thèmes
- Civil & Political Rights
- Governance & Rule of Law
- Personnes concernées
- All
- Année
- 2014
Paragraphe
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.
- Organe
- Human Rights Committee
- Type de document
- General Comment / Recommendation
- Thèmes
- Governance & Rule of Law
- Movement
- Personnes concernées
- Persons on the move
- Année
- 2014
Paragraphe
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.
- Organe
- Human Rights Committee
- Type de document
- General Comment / Recommendation
- Thèmes
- Civil & Political Rights
- Governance & Rule of Law
- Personnes concernées
- All
- Année
- 2014
Paragraphe
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.
- Organe
- Human Rights Committee
- Type de document
- General Comment / Recommendation
- Thèmes
- Civil & Political Rights
- Governance & Rule of Law
- Personnes concernées
- Adolescents
- Année
- 2014
Paragraphe