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2. Secret detention and the right to a fair trial
3. Secret detention and enforced disappearance
4. Secret detention and the absolute prohibition of torture and other forms of ill-treatment
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2. Secret detention and the right to a fair trial




  1. Secret detention outside the protection of the law is often resorted to with the purpose of depriving the detainee of the rights that he or she would otherwise enjoy as a person charged with a criminal offence, namely the right to a fair trial, as enunciated in article 14 of the International Covenant on Civil and Political Rights and the complementary guarantees contained in article 9, paragraphs 2 and 3. Article 9, paragraph 2 of the Covenant stipulates that anyone who is arrested should be promptly informed of any charges against him. Paragraph 3 of the same article requires that anyone arrested or detained on a criminal charge be brought promptly before a judge or other officer authorized by law to exercise judicial power.



  1. The above mentioned provisions presuppose that anyone suspected of having committed a recognizable criminal offence and arrested on these grounds must be informed about the underlying charges if the interest of justice requires the prosecution of such a crime. Otherwise, the State could circumvent the additional rights extended to suspects of a crime spelled out in articles 9 and 14 of the Covenant. Equally, if someone suspected of a crime and detained on the basis of article 9 of the Covenant is charged with an offence but not brought to trial, the prohibitions of unduly delaying trials as provided for by article 9, paragraph 3, and article14, paragraph 3 (c) of the Covenant may be violated at the same time.18



  1. As will be shown in the present study, in the majority of cases, State authorities who arrest and detain people incommunicado in a secret location often do not intend to charge the detainee with any crime, or even to inform him or her about any charges or to put the person on trial without undue delay before a competent, independent and impartial tribunal established by law where the guilt or innocence of the accused could be established, in violation of article 14, paragraphs 1, cl. 2, 2, 3 (a) and (c) of the International Covenant on Civil and Political Rights . Such detainees do not have adequate time and facilities for the preparation of their defence, and cannot communicate freely with counsel of their own choosing as required by article 14, paragraph 3 (c) of the Covenant.



  1. Consequently, the Working Group on Arbitrary Detention has considered secret detention a violation of the right to fair trial.19 Certain practices inherent in secret detention, such as the use of secrecy and insecurity caused by denial of contact to the outside world and the family’s lack of knowledge of the whereabouts and fate of the detainee to exert pressure to confess to a crime, also infringe the right not to be compelled to testify against oneself or to confess guilt derived from the principle of presumption of innocence.20 . Secret detention is furthermore conducive to confessions obtained under torture and other forms of ill-treatment.

3. Secret detention and enforced disappearance




  1. Every instance of secret detention also amounts to a case of enforced disappearance. Article 2 of the International Convention for the Protection of All Persons from Enforced Disappearance defines “enforced disappearance” as:

the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.

This definition does not require intent to put the person concerned outside the protection of the law as a defining element, but rather refers to it as an objective consequence of the denial, refusal or concealment of the whereabouts and fate of the person.21 The International Convention, in its article 17, paragraph 1, explicitly prohibits secret detention. The Working Group on Enforced or Involuntary Disappearances confirmed in its general comment on article 10 of the Declaration on the Protection of All Persons from Enforced Disappearance that under no circumstances, including states of war or public emergency, can any State interest be invoked to justify or legitimize secret centres or places of detention which, by definition, would violate the Declaration, without exception.”22

  1. Article 24, paragraph 1, of the International Convention explicitly includes in the definition of “victim” of enforced disappearances not only the disappeared person, but also any individual who has suffered harm as the direct result of an enforced disappearance.” When exercising its mandate to monitor the implementation by Member States to the Declaration on the Protection of All Persons from Enforced Disappearance, the Working Group on Enforced or Involuntary Disappearances has always adopted the perspective that families of the disappeared are to be considered victims themselves. According to article 1.2 of the Declaration, any act of enforced disappearance places the persons subjected thereto outside the protection of the law and inflicts severe suffering on them and their families.”



  1. Since secret detention amounts to an enforced disappearance, if resorted to in a widespread or systematic manner, such aggravated form of enforced disappearance can reach the threshold of a crime against humanity. In its article 7, the Rome Statute of the International Criminal Court labels the “enforced disappearance of persons” as a crime against humanity if it is committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.23 Article 5 of the International Convention for the Protection of All Persons from Enforced Disappearance, states that the widespread or systematic practice of enforced disappearance constitutes a crime against humanity as defined in applicable international law, and should attract the consequences provided for under such applicable international law, thus confirming this approach.



4. Secret detention and the absolute prohibition of torture and other forms of ill-treatment

  1. Every instance of secret detention is by definition incommunicado detention. According to the Human Rights Committee, even comparably short periods of incommunicado detention may violate the obligation of States, as contained in article 10, paragraph 1 of the International Covenant on Civil and Political Rights to treat all persons deprived of their liberty with humanity and with respect for the inherent dignity of the human person. The Committee confirmed that “prisoners should be allowed under necessary supervision to communicate with their family and reputable friends at regular intervals, by correspondence as well as by receiving mail.”24 Although shorter time periods may also be prohibited incommunicado detention of 15 days constitutes a violation of article 10 of the Covenant.25 Incommunicado detention includes situations where a detainee's family is informed that the person is “safe”, without disclosure of the location or nature of the person’s detention.



  1. The ill-treatment threshold may be reached when the period of incommunicado detention is prolonged and additional circumstances prevail. For example, in the case of Polay Campos v. Peru26 the Human Rights Committee found a violation of both articles 727 and 10 of the Covenant as the detained submitter of the complaint had not been allowed to speak or to write to anyone, including legal representatives, for nine months, and had been kept in an unlit cell for 23 and a half hours a day in freezing temperatures. It held that the incommunicado detention to which the author was subjected for longer than eight months constituted inhuman and degrading treatment28. Similarly, the Inter-American Court of Human Rights has stated that prolonged isolation and deprivation of communications are in themselves cruel and inhuman treatment, even if it is not known what has actually happened during the prolonged isolation of the particular individual.29 In El-Megreisi v. Libyan Arab Jamahiriya,30 the Human Rights Committee found that the Government of the Libyan Arab Jamahiriya had violated articles 10, paragraphs 1 and 7 of the Covenant by detaining an individual for six years, the last three of which incommunicado and in an unknown location, which in the view of the Committee reached the torture threshold.



  1. The practice of secret detention as reflected by the cases covered in the present study, also confirms that incommunicado detention, including secret detention, facilitates the commission of acts of torture.



  1. The General Assembly, in its resolution 60/148, and the Human Rights Council have both stated that prolonged incommunicado detention or detention in secret places may facilitate the perpetration of torture and other cruel, inhuman or degrading treatment or punishment, and could in itself constitute a form of such treatment.31 Hence, the link between secret detention and torture and other forms of ill-treatment is twofold: secret detention as such may constitute torture or cruel, inhuman and degrading treatment; and secret detention may be used to facilitate torture or cruel, inhuman and degrading treatment.



  1. In addition, secret detention not only violates the prohibition against torture and other forms of ill-treatment as defined above with regard to the victim of secret detention. The suffering caused to family members of a disappeared person may also amount to torture or other forms of ill-treatment,32 and also violates the right to family in terms of article 17, paragraph 1, and article 23, paragraph 1 of the International Covenant on Civil and Political Rights.