Administrative Detention

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Contents

Background

Criminal law traditionally looks to punish individuals who have already committed a crime. Administrative detention on the other hand typically involves the prophylactic arrest and detention of a person without trial for security reasons. Typical reasons for administrative detention include prevention of terrorism, control of immigration and the protection of society at large from sexually violent individuals.

Administrative detention is criticized because these individuals are not granted the rights that are afforded individuals in the traditional criminal justice system. The practice remains controversial because administrative detention eliminates the judiciary from the criminal justice process. The review process is often shrouded in administrative secrecy and the individual may be detaineed almost indefinitely without counsel or review of their detention.

International Law

Many believe that administrative detention violates Article 9 of the International Covenant on Civil and Political Rights (ICCPR) which "makes clear that no-one should be subjected to arbitrary detention and that deprivation of liberty must be based on grounds and procedures established by law".

The ICCPR does permit a government to temporarily derogate from its obligation not to engage in arbitrary detention under narrow circumstances, such as a public emergency threatening the life of a nation.[1]

The United Nations has created the Working Group on Arbitrary Detention[2] on the issue. One of the issues the group has focused on is the determination whether a detention is arbitrary or not – which is not as clear-cut in the case of administrative detention as it is in the case of criminal arrest. U.N. Resolution 1997/50 states that a deprivation of liberty is not arbitrary if it is a final decision from a domestic court and (a) follows domestic law; and (b) is in line with the relevant international standards agreed upon in the Universal Declaration of Human Rights and other applicable international instruments.[3]

According to the Working Group on Arbitrary Detention, a detention is arbitrary if:

(a) When it is clearly impossible to invoke any legal basis justifying the deprivation of liberty (as when a person is kept in detention after the completion of his sentence or despite an amnesty law applicable to him)(category I);
(b) When the deprivation of liberty results from the exercise of the rights of freedoms guarantees by articles 7, 13, 14, 18, 19, 10, and 21 of the Universal Declaration of Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22, 25, 26, and 27 of the International Covenant on Civil and Political Rights (category II);
(c) When the total or partial non-observance of the international norms relating to the right to a fair trial, spelled out in the Universal Declaration of Human Rights and in the relevant international instruments accepted by the States concerned, is of such gravity as to give the deprivation of liberty an arbitrary character (category III).

According to the Working group on Arbitrary Detention a declaration of a state of emergency (sometimes called state of siege, state of alert, martial law, etc.) must fulfil the following criteria:

  1. exceptional circumstances (it must not concern a structural situation, such as endemic poverty)
  2. legality (it must involve an emergency in a State based on the rule of law)
  3. duration (it may not be renewed indefinitely, as has been done in a number of cases which have come to the Group’s attention, in which it has been prolonged for 28 or even 46 consecutive years)
  4. seriousness (its sole purpose must be for dealing with an event which has placed the “life of the nation” at risk, and no other lesser circumstance)
  5. necessity (the situation which must be addressed cannot be corrected by other means)
  6. publicity (there are no de facto states of emergency

Administrative detention must always be subject to review by at least one court. This right, embodied in Article 9(4) of the ICCPR states that "Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful." This right is known as habeas corpus.

Administrative Detention of Immigrants

Administrative Detention and Military Tribunals

Administrative Detention and Violent Sexual Predators

Some jurisdictions call for the administrative detention of sexual predators. In Missouri, for instance, Missouri Code 632.484[4] provides one example of the administrative detention of a sexual predator:

When the attorney general receives written notice from any law enforcement agency that a person, who has pled guilty to or been convicted of a sexually violent offense and who is not presently in the physical custody of an agency with jurisdiction has committed a recent overt act, the attorney general may file a petition for detention and evaluation with the probate division of the court in which the person was convicted, or committed pursuant to chapter 552, RSMo, alleging the respondent may meet the definition of a sexually violent predator and should be detained for evaluation for a period of up to nine days. The written notice shall include the previous conviction record of the person, a description of the recent overt act, if applicable, and any other evidence which tends to show the person to be a sexually violent predator. The attorney general shall provide notice of the petition to the prosecuting attorney of the county where the petition was filed.

Country Specific Application

China

Administrative Detention is common in China and comes in many forms: administrative detention (xingzheng juliu) under the Security Administrative Punishments Regulations (Zhi’an Guanli Chufa Tiaoli “SAPR”), re-education through labour (laodongjiaoyang), detention for repatriation (shourong qiansong) and stop and detain for questioning(liuzhi panwen). Administrative detention is often used to detain and reform prostitutes, their clients, and drug users. Detaining prostitutes and drug addicts is viewed as the second line of defense in China's strategy of crime prevention. China maintains that their goal in detaining these individuals is to educate, rescue, and reform not to punish. [5]

In 1951, prostitution was banned in Shanghai. Shortly thereafter the government started detaining prostitutes and sending them to the newly created Women's Labour Training Centres to educate and reform them. [6] By the end of the 1970s, China saw a resurgence of prostitution. In 1984, the education centers were re-established in Shanghai and Wuhan. [7] Between 1983 and 1993 in Shanghai, 1,210 prostitutes were sent to detention centers for labour, 5,730 sent to education centers, and 1,230 were detained for investigation. [8]

Singapore

Singapore's Criminal Law (Temporary Provisions) Act (CLTPA)[9] permits the executive branch of Singapore to detain suspected criminals without trial. Introduced in 1955 during the colonial era but the statute has been renewed frequently. It is currently set to expire on 20 October 2014.

India

Administrative detention played a key role in what India refers to as "The Emergency." This period, often called the "darkest hour of India's history after Independence," started following the conviction of Indira Gandhi in June of 1975. [10] On June 25, 1975, a state of emergency was declared, postponing elections and curtailing civil liberties. [11] Among the rights suspended was the right to liberty, which allowed the police to detain individuals under the Maintenance of Internal Security Act. Once detained the individuals were essentially stuck, because habeas corpus was suspended. [12] In 1977, The Emergency ended and rights were restored. [13] In response to The Emergency, the 44th Amendment to the Indian Constitution was added to ensure that habeas corpus will not be suspended in the future. [14]

Morocco

Under Moroccan law a suspect can be held for 12 days in garde a vue detention.[15] At best, the 12-day limit, when followed, appears to violate the International Covenant on civil and Political Rights article 9(4) because it does not ensure that the person is brought promptly before a judge. The 12-day limit, however, is not always followed. There are reports of men being held in incommunicado detention for longer periods of time. During which time they are not allowed to speak with counsel or family.[16]

Despite international laws requiring that the suspect be informed, at the time of arrest, of the reason for arrest, there have been reports of individuals being arrested by plain clothed officers without an arrest warrant.[17]

Sri Lanka

Administrative detention in Sri Lanka is authorized through Emergency Regulations 19 and 22. An Emergency Regulation are orders made by the president, bypassing the legislative process, during a state of emergency. Emergency Regulations are supreme, superseding any conflicting laws.

Regulation 19 of EMPPR 2005 gives the Secretary of the Ministry of Defense the power to detain an individual for up to one year. Regulation 19 is design to be a preventative measure by giving the police the power to detain individuals before committing a crime. [18]

Regulation 22 of EMPPR 2005 allows for the commitment of a "surrendee" for up to 12 months with the option to extend the commitment up to 24 months. [19] A "surrendeee" is a person who turns himself in to the authorities in connection to one of a number of offenses, including firearms and explosive offenses. [20] If the surrendee turns himself in connections with one of these offenses he is usually held while the police investigate the crime he has committed. A surrendee may also surrender for "fear of terrorist activities," meaning that they fear being the victim of terrorism. [21]

Often, when a suspect is detained under an Emergency Regulation he is denied human treatment, is not informed of the reasons for his detention, and is unable to challenge the detention. [22] He is also denied his right to a fair trial, the presumption of innocence, and is not allowed to communicate with his lawyer or family.[23]

The Emergency Regulations concerning administrative detention violate the International Covenant on Civil and Political Rights articles 9(3) and (4).[24] Additionally, the United Nations Committee Against Torture and the United Nations Human Rights Committee have voiced concerns that essential benefits that should be accorded to people in administrative detention are not available to people detained in Sri Lanka.[25]

Netherlands

In the Netherlands administrative detention is commonly used to hold illegal immigrants awaiting deportation because criminal detention is not available as illegal residence is not a crime. [26] Currently, an illegal immigrant can be held until he is deported or as long as deportation is still a possibility, but it is rare for the detention to last more than three months. [27] In theory, this means the person can be held in administrative detention indefinitely. The laws concerning the length of detention will have to change soon, however, because of the recent adoption of the European Returns Directive which limits the length a person can be detained to eighteen months. [28]

The immigrant population of the Netherlands is primarily made up of people from Morocco, Turkey, Surinam, Ukraine, India, Philippines, Somalia, Iraq, Afghanistan, Brazil, Thailand, Russia, and China. [29] Chinese immigrants pose a unique problem in the Netherlands because the Chinese government will often refuse to let them reenter China after spending too much time in a democratic state claiming that their exposure to democracy has made them too dangerous. As a result, Chinese immigrants often end up trapped in a revolving door, constantly being taken off the streets and then returned once deportation is deemed impossible. [30]

United States

The question of whether the President of the United States has the power to detain individuals without judicial review came before the U.S. Supreme Court in Boumediene v. Bush. [31] This case involved the habeas petition of an "enemy combatant"held in Guantanamo Bay. In 2006, the United States Congress passed the Military Commissions Act of 2006 (MCA). The MCA eliminated federal courts' jurisdiction to hear habeas applications from detainees who had been designated as enemy combatants. The petitioner claimed the MCA was unConstitutional. In a 5-4 decision, the Supreme Court of the United States concluded that detainees had the right to collateral habeas review if they were held in administrative detention.

Notes

  1. ICCPR Section 4.1 "In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin."
  2. http://www2.ohchr.org/english/issues/detention/
  3. The Working Group on Arbitrary Detention, Fact Sheet No. 26, 5
  4. 2009 Missouri Code Title XL ADDITIONAL EXECUTIVE DEPARTMENTS Chapter - 632 Comprehensive Psychiatric Services - 632.484. Detention and evaluation
  5. Sarah Biddulph, The Production of Legal Norms: A Case Study of Administrative Detention in China, The University of Melbourne Faculty of Law Legal Studies Research Paper No. 85, 15 (2004)
  6. Sarah Biddulph, The Production of Legal Norms: A Case Study of Administrative Detention in China, The University of Melbourne Faculty of Law Legal Studies Research Paper No. 85, 10 (2004)
  7. Sarah Biddulph, The Production of Legal Norms: A Case Study of Administrative Detention in China, The University of Melbourne Faculty of Law Legal Studies Research Paper No. 85, 21 (2004)
  8. Sarah Biddulph, The Production of Legal Norms: A Case Study of Administrative Detention in China, The University of Melbourne Faculty of Law Legal Studies Research Paper No. 85, 32 (2004)
  9. http://statutes.agc.gov.sg/non_version/cgi-bin/cgi_retrieve.pl?&actno=Reved-67&date=latest&method=part
  10. Brian R. Farrell, Habeas Corpus in Times of Emergency: A Historical and Comparative View, 1 No. 9 Pace Int'l L. Rev. Online Companion 74, 82 (April 2010)
  11. Brian R. Farrell, Habeas Corpus in Times of Emergency: A Historical and Comparative View, 1 No. 9 Pace Int'l L. Rev. Online Companion 74, 83 (April 2010)
  12. Brian R. Farrell, Habeas Corpus in Times of Emergency: A Historical and Comparative View, 1 No. 9 Pace Int'l L. Rev. Online Companion 74, 83 (April 2010)
  13. Brian R. Farrell, Habeas Corpus in Times of Emergency: A Historical and Comparative View, 1 No. 9 Pace Int'l L. Rev. Online Companion 74, 84 (April 2010)
  14. Brian R. Farrell, Habeas Corpus in Times of Emergency: A Historical and Comparative View, 1 No. 9 Pace Int'l L. Rev. Online Companion 74, 84 (April 2010)
  15. Morocco: "Stop Looking for your Son" (Illegal Detentions under the Counterterrorism Law), UN Human Rights Watch, Oct. 25, 2010, available at http://www.hrw.org/en/reports/2010/10/25/morocco-stop-looking-your-son-0
  16. Morocco: "Stop Looking for your Son" (Illegal Detentions under the Counterterrorism Law), UN Human Rights Watch, Oct. 25, 2010, available at http://www.hrw.org/en/reports/2010/10/25/morocco-stop-looking-your-son-0
  17. Morocco: "Stop Looking for your Son" (Illegal Detentions under the Counterterrorism Law), UN Human Rights Watch, Oct. 25, 2010, available at http://www.hrw.org/en/reports/2010/10/25/morocco-stop-looking-your-son-0
  18. Sri Lanka: Briefing Paper (Emergency Laws and International Standards), International Commission of Jurists, 13 (March 2009)
  19. Sri Lanka: Briefing Paper (Emergency Laws and International Standards), International Commission of Jurists, 15 (March 2009)
  20. Sri Lanka: Briefing Paper (Emergency Laws and International Standards), International Commission of Jurists, 15 (March 2009)
  21. Sri Lanka: Briefing Paper (Emergency Laws and International Standards), International Commission of Jurists, 15 (March 2009)
  22. Kishali Pinto-Jayawardena, The Rule of Law in Decline; Study on Prevalence, Determinants and Causes of Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment in Sri Lanka, 56 (2009)
  23. Kishali Pinto-Jayawardena, The Rule of Law in Decline; Study on Prevalence, Determinants and Causes of Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment in Sri Lanka, 56 (2009)
  24. Kishali Pinto-Jayawardena, The Rule of Law in Decline; Study on Prevalence, Determinants and Causes of Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment in Sri Lanka, 57 (2009)
  25. Kishali Pinto-Jayawardena, The Rule of Law in Decline; Study on Prevalence, Determinants and Causes of Torture and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment in Sri Lanka, 57 (2009)
  26. Arjen Leerks, Dennis Broeders, A Case of Mixed Motives? (Formal and Informal Functions of Administrative Immigration, 50 Brit. J. Criminology 830, 833 (Sept. 2010)
  27. Arjen Leerks, Dennis Broeders, A Case of Mixed Motives? (Formal and Informal Functions of Administrative Immigration, 50 Brit. J. Criminology 830, 834 (Sept. 2010)
  28. Arjen Leerks, Dennis Broeders, A Case of Mixed Motives? (Formal and Informal Functions of Administrative Immigration, 50 Brit. J. Criminology 830, 834 (Sept. 2010)
  29. Arjen Leerks, Dennis Broeders, A Case of Mixed Motives? (Formal and Informal Functions of Administrative Immigration, 50 Brit. J. Criminology 830, 835 (Sept. 2010)
  30. Arjen Leerks, Dennis Broeders, A Case of Mixed Motives? (Formal and Informal Functions of Administrative Immigration, 50 Brit. J. Criminology 830, 831 (Sept. 2010)
  31. Boumediene v. Bush, 128 S. Ct. 2229 (2008