Difference between revisions of "Arrest"

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== Background ==
 
== Background ==
  
An individual has the right not to be arbitrarily arrested or detained. In many countries, an officer must have probable cause to arrest an individual. Probable cause to arrest exists when, at the time of the arrest, the officer is relying on reasonably trustworthy facts and circumstances sufficient to lead a reasonably prudent person to believe that the acused has committed or is committing a crime.
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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. 
  
 
== International Sources ==
 
== International Sources ==
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'''Article 9''' -
 
'''Article 9''' -
  
#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.
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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.
#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.
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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.
#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.
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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.
#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.
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4. 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.
#Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.
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5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.
  
 
==Regional Instruments==
 
==Regional Instruments==
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===American Convention on Human Rights===
 
===American Convention on Human Rights===
  
'''Article 7 -'''
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Article 7 -  
  
 
1. Every person has the right to personal liberty and security
 
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.
 
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.
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3. No one shall be subject to arbitrary arrest or imprisonment.
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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.
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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.
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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.
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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===
 
===European Convention on Human Rights===
  
'''Article 5 -'''
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'''Article 5'''
  
Everyone has the right to liberty and security of person.
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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:
 
 
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;
 
*(a) the lawful detention of a person after conviction by a competent court;
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*(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.
 
*(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.
  
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.
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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.
  
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.
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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.
  
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.
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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.
  
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.
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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.  
  
== Examples of standards for arrest ==
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== Standards for Arrest: Examples ==
  
 
===Cambodia===
 
===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)
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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===
 
===China===
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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)
 
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)
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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===  
 
===India===  
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*(a) any person whom he suspects upon reasonable grounds of having committed a cognizable offence;  
 
*(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;  
 
*(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;  
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*(c) any person who obstructs a police officer while in the execution of his duty, or who has escaped or attempts to escape from  
*(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;  
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lawful custody;  
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*(d) any person in whose possession anything is found which may reasonably be suspected to be stolen property or who may reasonably  
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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;  
 
*(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;  
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*(f) any person whom he finds in a highway, yard or other place during the night and whom he suspects upon reasonable grounds of  
*(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;  
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having committed or being about to commit a felony;  
*(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;  
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*(g) any person whom he finds in a street or public place during the hours of darkness and whom he suspects upon reasonable grounds  
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of being there for an illegal or disorderly purpose, or who is unable to give a satisfactory account of himself;  
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*(h) any person whom he suspects upon reasonable grounds of having been concerned in an act committed at a place out of  
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Kenya which, if committed in Kenya, would have been punishable as an offence, and for which he is liable to be extradited under the  
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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;  
 
*(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;  
 
*(j) any released convict committing a breach of any provision prescribed by section 344 or of any rule made thereunder;  
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===Rwanda===
 
===Rwanda===
  
When an offence is punishable by at least an imprisonment of two (2) years or if there exist reasonable grounds to suspect that the accused is likely to escape or if his or her identity is unknown or is doubtful, a Judicial Police Officer can, if it is deemed necessary for the purposes of investigation, arrest and detain him or her in an official remand in a custody which is situated at a police station if there are serious reasons to suspect that he or she committed the offence (Rwanda Criminal Procedure Code Article 37)
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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===
 
===Tanzania===
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===Uganda===
 
===Uganda===
  
Criminal Procedure Act, 1950, Article 10
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Criminal Procedure Act, 1950
  
  
*(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 warrant;  
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*(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;  
 
*(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;  
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*(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  
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lawful custody;  
 
*(d) any person whom he or she suspects upon reasonable grounds of being a deserter from the Uganda Peoples' Defence Forces;  
 
*(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;  
 
*(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;  
 
*(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;
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*(g) any person having in his or her possession without lawful excuse, the burden of proving which excuse shall lie on that person, any  
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implement of housebreaking;
 
*(h) any person for whom he or she has reasonable cause to believe a warrant of arrest has been issued;  
 
*(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.
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*(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===
 
===Zimbabwe===
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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).
 
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)). Constitution
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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).
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== Rights of the accused ==
 
== Rights of the accused ==

Revision as of 12:10, 1 June 2010