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General Comment No. 35 on liberty and security of person (art. 9), CCPR/C/GC/35, 16 December 2014

I. General remarks

3. Liberty of person concerns freedom from confinement of the body, not a general freedom of action.[1] Security of person concerns freedom from injury to the body and the mind, or bodily and mental integrity, as further discussed in paragraph 9 below. Article 9 guarantees those rights to everyone. “Everyone” includes, among others, girls and boys, soldiers, persons with disabilities, lesbian, gay, bisexual and transgender persons, aliens, refugees and asylum seekers, stateless persons, migrant workers, persons convicted of crime, and persons who have engaged in terrorist activity.

9. The right to security of person protects individuals against intentional infliction of bodily or mental injury, regardless of whether the victim is detained or non-detained. For example, officials of States parties violate the right to personal security when they unjustifiably inflict bodily injury.[14] The right to personal security also obliges States parties to take appropriate measures in response to death threats against persons in the public sphere, and more generally to protect individuals from foreseeable threats to life or bodily integrity proceeding from any governmental or private actors.[15] States parties must take both measures to prevent future injury and retrospective measures, such as enforcement of criminal laws, in response to past injury. For example, States parties must respond appropriately to patterns of violence against categories of victims such as intimidation of human rights defenders and journalists, retaliation against witnesses, violence against women, including domestic violence, the hazing of conscripts in the armed forces, violence against children, violence against persons on the basis of their sexual orientation or gender identity,[16] and violence against persons with disabilities.[17] They should also prevent and redress unjustifiable use of force in law enforcement,[18] and protect their populations against abuses by private security forces, and against the risks posed by excessive availability of firearms.[19] The right to security of person does not address all risks to physical or mental health and is not implicated in the indirect health impact of being the target of civil or criminal proceedings.[20]

II. Arbitrary detention and unlawful detention

17. Arrest or detention as punishment for the legitimate exercise of the rights as guaranteed by the Covenant is arbitrary, including freedom of opinion and expression (art. 19),[38] freedom of assembly (art. 21), freedom of association (art. 22), freedom of religion (art. 18) and the right to privacy (art. 17). Arrest or detention on discriminatory grounds in violation of article 2, paragraph 1, article 3 or article 26 is also in principle arbitrary.[39] Retroactive criminal punishment by detention in violation of article 15 amounts to arbitrary detention.[40] Enforced disappearances violate numerous substantive and procedural provisions of the Covenant and constitute a particularly aggravated form of arbitrary detention. Imprisonment after a manifestly unfair trial is arbitrary, but not every violation of the specific procedural guarantees for criminal defendants in article 14 results in arbitrary detention.[41]

Link to full text of the report: General Comment-CCPR-35-2014-eng

Footnotes    (↵ returns to text)

  1. 1. 854/1999, Wackenheim v. France, para. 6.3.
  2. 14. 613/1995, Leehong v. Jamaica, para. 9.3.
  3. 15. 1560/2007, Marcellana and Gumanoy v. Philippines, para. 7.7. States parties also violate the right to security of person if they purport to exercise jurisdiction over a person outside their territory by issuing a fatwa or similar death sentence authorizing the killing of the victim. See concluding observations: Islamic Republic of Iran (CCPR/C/79/Add.25, 1993), para. 9; paragraph 63 below (discussing extraterritorial application).
  4. 16. See concluding observations: El Salvador (CCPR/CO/78/SLV, 2003), para. 16.
  5. 17. See concluding observations: Norway (CCPR/C/NOR/CO/6, 2011), para. 10.
  6. 18. 613/1995, Leehong v. Jamaica, paras. 9.3; see Basic Principles on the Use of Force and Firearms by Law Enforcement Officials (1990).
  7. 19. See concluding observations: Philippines (CCPR/C/PHL/CO/4, 2012), para. 14.
  8. 20. 1124/2002, Obodzinsky v. Canada, para. 8.5.
  9. 38. 328/1988, Zelaya Blanco v. Nicaragua, para. 10.3.
  10. 39. 1314/2004, O’Neill and Quinn v. Ireland, para. 8.5 (finding no violation); see concluding observations: Honduras (CCPR/C/HND/CO/1, 2006), para. 13 (detention on the basis of sexual orientation), and Cameroon (CCPR/C/CMR/CO/4, 2010), para. 12 (imprisonment for consensual same-sex activities of adults).
  11. 40. 1629/2007, Fardon v. Australia, para. 7.4 (b).
  12. 41. 1007/2001, Sineiro Fernández v. Spain, paras. 6.3 (absence of review of conviction by higher court violated paragraph 5 of article 14, but not paragraph 1 of article 9).