A/HRC/42/39/Add.1
detention and, according to information received, such detention would generally not last
longer than a day.
32.
The Working Group views the current practice as positive and recalls that deprivation
of liberty must be a measure of last resort. It welcomes the restrained approach of the
authorities towards the opening of new detention facilities and invites them to consider
carefully any initiatives that would lead to opening of new types of places of deprivation of
liberty.
H.
Custody registers
33.
During its first visit in 1994, the Working Group made a series of recommendations
concerning the custody registers in places of deprivation of liberty. During its present visit,
the Working Group was pleased to see that all the police stations it visited were using
registers that followed its recommendations issued in 1994. The registers were generally well
kept and up to date. The Working Group recalls that timely and punctual record-keeping is
an essential safeguard against arbitrary detention and is to be commended.
34.
However, all police stations visited also used a large number of other registers, in
some cases over a dozen registers, and often the information recorded in the other registers
was duplicated. In addition, some information could only be located in individual case files
of the detainees despite the numerous registers. That practice may be counterproductive and
the Working Group therefore welcomes the plans to carry out an audit to determine what
registers are actually required so as to ensure a more streamlined approach.
IV. Main findings concerning the right to personal liberty
35.
In determining whether the information provided, including from persons interviewed
during the visit, raised issues regarding the arbitrary deprivation of liberty, the Working
Group referred to the five categories of arbitrary deprivation of liberty outlined in its methods
of work (A/HRC/36/38, para. 8).
A.
Deprivation of liberty in the context of the criminal justice system
1.
Non-bailable offences
36.
According to section 199.8A of the Civil and Criminal Procedure Code, as amended
in 2011, there are certain criminal offences that are considered to be non-bailable. The courts
are not permitted to grant bail to a person who has been charged with either (a) an offence
against the security and sovereignty of the country or (b) “an offence of or above felony of
the second degree”, which includes murder, treason, terrorism, kidnapping, statutory rape,
trafficking of a child between 12 and 18 years of age and aggravated armed robbery.
37.
Mandatory pretrial detention for non-bailable offences deprives a detainee of the right
to seek non-custodial alternatives to detention, such as bail. In addition, the imposition of
pretrial detention for certain non-bailable offences reverses the presumption of innocence
found in article 7 (16) of the Constitution, so that those charged with such offences are
automatically detained without a balanced consideration of their individual circumstances,
including the risk that they may abscond, interfere with evidence or commit an offence.
International standards do not prevent pretrial detention being ordered in the serious cases
that are currently considered as non-bailable in the Civil and Criminal Procedure Code. Those
standards do, however, require that detention only be ordered after a judicial authority has
conducted an individualized assessment of whether pretrial detention in each case is
reasonable and necessary.1
1
Opinions No. 53/2018, No. 16/2018, No. 1/2018, No. 24/2015 and No. 57/2014. See also
A/HRC/19/57, paras. 48–58.
7
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