A/HRC/14/46 K. The use of powers of arrest and detention Practice 27. Intelligence services are not permitted to use powers of arrest and detention if they do not have a mandate to perform law enforcement functions. They are not given powers of arrest and detention if this duplicates powers held by law enforcement agencies that are mandated to address the same activities. 41. It is widely accepted as good practice for intelligence services to be prohibited explicitly from exercising powers of arrest and detention if their legal mandate does not require them to exercise law enforcement functions in relation to national security offences, such as terrorism.138 Strong arguments have been made against combining intelligence and law enforcement functions.139 However, if national law provides intelligence services with powers of arrest and detention, it is good practice for this to be explicitly within the context of a mandate that gives them the responsibility for performing law enforcement functions pertaining to specified threats to national security, such as terrorism.140 If national or regional law enforcement bodies have a mandate to enforce criminal law in relation to national security offences, there is no legitimate reason for a separate intelligence service to be given powers of arrest and detention for the same activities. There is a risk of the development of a parallel enforcement system, whereby intelligence services exercise powers of arrest and detention in order to circumvent legal safeguards and oversight that apply to the law enforcement agencies.141 Practice 28. If intelligence services have powers of arrest and detention, they are based on publicly available law. The exercise of these powers is restricted to cases in which there is reasonable suspicion that an individual has committed or is about to commit a specific criminal offence. Intelligence services are not permitted to deprive persons of their liberty simply for the purpose of intelligence collection. The use of any powers and arrest and detention by intelligence services is subject to the same degree of oversight as applies to their use by law enforcement authorities, including judicial review of the lawfulness of any deprivation of liberty. 42. If intelligence services are given powers of arrest and detention, national law outlines the purposes of such powers and circumstances under which they may be used.142 It is good practice for the use of these powers to be strictly limited to cases where there is reasonable suspicion that a crime (falling under the mandate of the intelligence services) has been, or is about to be, committed. It follows that intelligence services are not permitted to use these powers for the mere purpose of intelligence collection.143 The apprehension and detention of individuals when there is no reasonable suspicion that they have committed or are about to commit a criminal offence, or other internationally accepted ground for 138 139 140 141 142 143 24 Albania (footnote 21), art. 9; United Republic of Tanzania (footnote 61), art. 4 (2)a; Argentina (footnote 2), art. 4 (1); New Zealand (footnote 8), sect. 4(2); Germany (footnote 2), art. 2(1). A/HRC/10/3, paras. 31, 69; Secretary-General of the Council of Europe, report under art. 52 of the European Convention of Human Rights on the question of secret detention and transport of detainees suspected of terrorist acts, notably by or at the instigation of foreign agencies, SG/Inf (2006) 5, para. 41; Parliamentary Assembly of the Council of Europe, recommendation 1402, paras. 5–6; International Commission of Jurists, “Assessing damage, urging action”, pp. 73–78, 89; Canada, MacDonald Commission, pp. 422–423 and 613–614. Norway, Criminal Procedure Act. International Commission of Jurists, “Assessing damage, urging action”, pp. 73–78. Hungary (footnote 77), art. 32; Bulgaria (footnote 15), arts. 121(2)3, 125 and 128; Norway (footnote 140), sects. 171–190. Norway, Criminal Procedure Act (footnote 140), sects. 171–173 (implied); Hungary (footnote 77), art. 32 (implied); Lithuania (footnote 9), art. 18 (implied); Switzerland (footnote 5), art. 14 (3). GE.10-13410