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Sources Archives: International law

UN Human Rights Committee (CCPR), A. v. Australia, Communication 560/1993, Views of 3 April 1997

The UN Human Rights Committee stated that detention in the course of proceedings for the control of immigration is not per se arbitrary, but the detention must be justified as reasonable, necessary and proportionate in the light of the circumstances and reassessed as it extends in time.

https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CCPR%2fC%2f59%2fD%2f560%2f1993&Lang=en

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UN Human Rights Committee (CCPR), Samba Jalloh v. Netherlands, Communication 794/1998, Views of 15 April 2002

The UN Human Rights Committee noted that under article 9 of the International Covenant on Civil and Political Rights (ICCPR) ‘arbitrariness’ must be interpreted more broadly than ‘against the law’ to include elements of unreasonableness.

https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CCPR%2fC%2f59%2fD%2f560%2f1993&Lang=en

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UN Human Rights Committee (CCPR), Nystrom v. Australia, Communication 1557/2007, Views of 18 July 2011

The UN Human Rights Committee recalled that although under article 9 of the International Covenant on Civil and Political Rights (ICCPR) the detention of aliens residing unlawfully on the State Party’s territory is not per se arbitrary, remand in custody could be considered arbitrary if it is not necessary in all the circumstances of the case: the element of proportionality becomes relevant.

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UN Human Rights Committee (CCPR), Baban v. Australia, Communication 1014/2001, Views of 18 September 2003

The UN Human Rights Committee recalled that, in order to avoid a characterization of arbitrariness, detention should not continue beyond the period for which the State Party can provide appropriate justification. Furthermore, judicial review of the lawfulness of detention under article 9, paragraph 4, of the International Covenant on Civil and Political Rights (ICCPR) is not limited to mere compliance of the detention with domestic law but must include the possibility to order release if the detention is incompatible with the requirements of the Covenant, in particular those of article 9, paragraph 1.

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Saadi v. United Kingdom, ECtHR, Application No. 13229/03, Judgment of 29 January 2008

The Court recalled that it is a fundamental principle that no detention which is arbitrary can be compatible with Article 5 § 1 ECHR and the notion of ‘arbitrariness’ in Article 5 § 1 extends beyond lack of conformity with national law, so that a deprivation of liberty may be lawful in terms of domestic law but still arbitrary and thus contrary to the Convention. To avoid being branded as arbitrary, therefore, detention under Article 5 § 1 (f) must be carried out in good faith; it must be closely connected to the purpose of preventing unauthorised entry of the person to the country; the place and conditions of detention should be appropriate; and the length of the detention should not exceed that reasonably required for the purpose pursued.

https://hudoc.echr.coe.int/eng?i=001-84709

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