Arrest

Globe3.png English  • español


Background

Every individual has the right to be free from arbitrary arrest and detention. In many countries, probable cause is needed before an arrest can be made. Probable cause exists when an officer, at the time of arrest, reasonably believes the accused has committed or is committing a crime. The standard for reasonable belief is that of a reasonably prudent person under the circumstances, not simply the officer's arbitrary perspective.

Spectrumofstops.jpg

International Sources

International Covenant on Civil and Political Rights

Article 9 -

1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.

3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.

4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that the court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.

5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.

Regional Instruments

African Charter on Human and Peoples' Rights

Article 6 -

Every individual shall have the right to liberty and to the security of his person. No one shall be deprived of his freedom except for reasons and conditions previously laid down by law. In particular, no one may be arbitrarily arrested or detained.

American Convention on Human Rights

Article 7 -

1. Every person has the right to personal liberty and security

2. No one shall be deprived of his physical liberty except for the reasons and under the conditions established beforehand by the constitution of the State Party concerned or by a law established pursuant thereto.

3. No one shall be subject to arbitrary arrest or imprisonment.

4. Anyone who is detained shall be informed of the reasons for his detention and shall be promptly notified of the charge or charges against him.

5. Any person detained shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to be released without prejudice to the continuation of the proceedings. His release may be subject to guarantees to assure his appearance for trial.

6. Anyone who is deprived of his liberty shall be entitled to recourse to a competent court, in order that the court may decide without delay on the lawfulness of his arrest or detention and order his release if the arrest or detention is unlawful. In States Parties whose laws provide that anyone who believes himself to be threatened with deprivation of his liberty is entitled to recourse to a competent court in order that it may decide on the lawfulness of such threat, this remedy may not be restricted or abolished. The interested party or another person in his behalf is entitled to seek these remedies.

7. No one shall be detained for debt. This principle shall not limit the orders of a competent judicial authority issued for nonfulfillment of duties of support.

European Convention on Human Rights

Article 5

1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

  • (a) the lawful detention of a person after conviction by a competent court;
  • (b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
  • (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority of reasonable suspicion of having committed and offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
  • (d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
  • (e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts, or vagrants;
  • (f) the lawful arrest or detention of a person to prevent his effecting an unauthorized entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and the charge against him.

3. Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this article shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation.

Standards for Arrest: Examples

Cambodia

Judicial Police officers can arrest a person if they suspect his participation/if he will not provide required information/ if written permission has been received from the prosecutor. (Art 96 CCCP)

China

An arrest of a crime suspect or a defendant must be approved by a people's procuratorate or decided by a people's court, and shall be executed by a public security organ. (art. 59 CPL)

No citizens may be arrested except with the approval or by decision of a people's procurator or by decision of a people's court, and arrests must be made by a public security organ. (art.37 Constitution)

India

The police may arrest a person without a warrant except in non-cognizable offences if it is based on a probable cause. This exists if at the time of the arrest the officer is relying on reasonable facts sufficient to lead him to believe that the person committed or is committing a crime. (Indian Criminal Procedure Code Section 41)

Kenya

The right not to have one’s freedom curtailed without a justifiable case is guaranteed by Article 29 (a) of the Constitution, which provides that every person shall have the right to freedom and security and shall not be deprived of freedom arbitrarily and without just cause. Since an arrest amounts to a curtailment of a person’s freedom, a lawful arrest is that which is founded on a justifiable cause.

An arrest is lawful if it is made pursuant to a valid arrest warrant. For a warrant of arrest to be lawful, it must conform to the standards set forth under the law. In Kenya, the law governing the form, content and manner of execution of a valid warrant are to be found in Section 102 through to Section 109 of the CPC.

An arrest without a warrant is allowable only on grounds listed in the CPC. Instances when a police officer, a private person or a magistrate may make an arrest are outlined in Section 29. In the exercise of the power to make an arrest, the use of violence by both public and private sources is prohibited, Article 29(c) of the Constitution. Further, the CPC allows the use of only that amount of restraint that is necessary to prevent escape (Section 24). Thus, the validity of an arrest without a warrant may be challenged if the ground for arrest falls outside those expressly listed in the CPC or if the arrest is effected by the application of unjustifiable force

Criminal Procedure Code, 2009

29. A police officer may, without an order from a magistrate and without a warrant, arrest -

  • (a) any person whom he suspects upon reasonable grounds of having committed a cognizable offence;
  • (b) any person who commits a breach of the peace in his presence;
  • (c) any person who obstructs a police officer while in the execution of his duty, or who has escaped or attempts to escape from lawful custody;
  • (d) any person in whose possession anything is found which may reasonably be suspected to be stolen property or who may reasonably be suspected of having committed an offence with reference to that thing;
  • (e) any person whom he suspects upon reasonable grounds of being a deserter from the armed forces;
  • (f) any person whom he finds in a highway, yard or other place during the night and whom he suspects upon reasonable grounds of having committed or being about to commit a felony;
  • (g) any person whom he finds in a street or public place during the hours of darkness and whom he suspects upon reasonable grounds of being there for an illegal or disorderly purpose, or who is unable to give a satisfactory account of himself;
  • (h) any person whom he suspects upon reasonable grounds of having been concerned in an act committed at a place out of Kenya which, if committed in Kenya, would have been punishable as an offence, and for which he is liable to be extradited under the Extradition (Contiguous and Foreign Countries) Act or the Extradition (Commonwealth Countries) Act;
  • (i) any person having in his possession without lawful excuse, the burden of proving which excuse shall lie on that person, any implement of housebreaking;
  • (j) any released convict committing a breach of any provision prescribed by section 344 or of any rule made thereunder;
  • (k) any person for whom he has reasonable cause to believe a warrant of arrest has been issued.

Rwanda

When an offence is punishable by at least an imprisonment of two years or if reasonable grounds exist to suspect the accused is likely to escape or if his/her identity is unknown or doubtful, a Judicial Police Officer can, if deemed necessary for the purposes of investigation, arrest and detain him/her in an official capacity in custody at a police station, if serious reasons to suspect he/she to have committed the offence (Rwanda Criminal Procedure Code Article 37)

Tanzania

Criminal Procedure Act, 1985

14. A police officer may without a warrant arrest-

  • (a) any person who commits a breach of the peace in his presence;
  • (b) any person who wilfully obstructs a police officer while in the execution of his duty, or who has escaped or attempts to escape from lawful custody;
  • (c) any person in whose possession any thing is found which may reasonably be suspected to be stolen property or who may reasonably be suspected of having committed an offence with reference to such thing;
  • (d) any person whom he finds lying or loitering in any highway, yard or garden or other place during the night and whom he suspects upon reasonable grounds of having committed or being about to commit an offence or who has in his possession without lawful excuse any offensive weapon or house breaking implement;
  • (e) any person for whom he has reasonable cause to believe a warrant of arrest has been issued;
  • (f) any person whom he suspects upon reasonable grounds of having been concerned in any act committed at any place out of Tanzania which, if committed in Tanzania, would have been punishable as an offence, and for which he is, under the Fugitive Criminal Surrender ordinance or the Fugitive Offenders Act, 1881, or otherwise, liable to be apprehended and detained in Tanzania;
  • (g) any person who does any act which is calculated to insult the national emblem or the national flag;
  • (h) any person whom he suspects of being a loiterer in contravention of the provisions of the Human Resources Deployment Act, 1983.

Uganda

Criminal Procedure Act, 1950

Any police officer may, without an order from a magistrate and without a warrant, arrest�

  • (a) any person whom he or she suspects upon reasonable grounds of having committed a cognisable offence, an offence under any of the provisions of Chapter XVI of the Penal Code Act or any offence for which under any law provision is made for arrest without a warrant;
  • (b) any person who commits a breach of the peace in his or her presence;
  • (c) any person who obstructs a police officer while in the execution of his or her duty, or who has escaped or attempts to escape from lawful custody;
  • (d) any person whom he or she suspects upon reasonable grounds of being a deserter from the Uganda Peoples' Defence Forces;
  • (e) any person whom he or she finds in any highway, yard or other place during the night and whom he or she suspects upon reasonable grounds of having committed or being about to commit a felony;
  • (f) any person whom he or she suspects upon reasonable grounds of having been concerned in any act committed at any place out of Uganda which, if committed in Uganda, would have been punishable as an offence, and for which he or she is, under the provisions of any written law, liable to be apprehended and detained in Uganda;
  • (g) any person having in his or her possession without lawful excuse, the burden of proving which excuse shall lie on that person, any implement of housebreaking;
  • (h) any person for whom he or she has reasonable cause to believe a warrant of arrest has been issued;
  • (i) any person in whose possession anything is found which may reasonably be suspected to be stolen property or who may reasonably be suspected of having committed an offence with reference to that thing.

Zimbabwe

No one may be arrested arbitrarily, that is to say there must be a reasonable suspicion that he or she has committed a criminal offence (section 13(2)(e) of the Constitution).

An officer can arrest any person committing an offense in his presence, any person who a police officer reasonably suspects of having committed an offense, any person whom he finds attempting to commit an offense or clearly manifesting intent to do so (part V, div A, s 25(a-c) CPEA).

Arrested persons must be told promptly why they have been arrested and they must be allowed to contact a legal practitioner of their choice without delay (section 13(3) of the Constitution).



See Rights of the Accused