A/HRC/14/46
detention, is not permissible under international human rights law.144 If national law permits
intelligence services to apprehend and detain individuals, it is good practice for the exercise
of these powers to be subject to the same degree of oversight applying to the use of these
powers by law enforcement authorities.145 Most importantly, international human rights law
requires that individuals have the right to challenge the lawfulness of their detention before
a court.146
Practice 29. If intelligence services possess powers of arrest and detention, they
comply with international human rights standards on the rights to liberty and fair
trial, as well as the prohibition of torture and inhuman and degrading treatment.
When exercising these powers, intelligence services comply with international
standards set out in, inter alia, the Body of Principles for the Protection of All
Persons under Any Form of Detention or Imprisonment, the Code of Conduct for
Law Enforcement Officials and the Basic Principles on the Use of Force and
Firearms by Law Enforcement Officials.
43.
If intelligence services are given powers of arrest and detention, they are required to
comply with international standards applying to the deprivation of liberty (see also practice
28 above).147 These standards are further elaborated in several international and regional
codes of conduct of law enforcement officials codifying a range of good practices that can
be applied to intelligence services with powers of arrest and detention.148 In addition to the
legal obligation (pertaining to the judicial review of detention) outlined in practice 28
above, there are three additional sets of standards that apply the use of powers of arrest and
detention by intelligence services. First, intelligence services are bound by the absolute
prohibition on the use of torture and inhuman and degrading treatment.149 Second, any use
of force during arrest and detention must comply with international standards, including the
requirements that any use of force be strictly necessary, proportionate to the perceived
danger and properly reported.150 Third, it is good practice for intelligence services to
comply with the following international standards on the apprehension and detention of
individuals: that all arrests, detentions and interrogations are recorded from the moment of
apprehension;151 that officers making an arrest identify themselves to the individual
concerned and inform them of the reasons and legal basis for their
144
145
146
147
148
149
150
151
GE.10-13410
Venice Commission (1998), sect. E.
Cyprus, Reply; Norway (footnote 140), sects. 183–185; Bulgaria (footnote 15), art. 125(5); Mexico,
reply.
International Covenant on Civil and Political Rights, art. 9(4); OSCE-ODIHR, Countering Terrorism,
Protecting Human Rights, pp. 158–160; Arab Charter on Human Rights, art. 8; American Convention
on Human Rights, art. 7(6); Council of Europe (footnote 4), arts. VII (3) and VIII; General Assembly
resolution A/RES/43/173, annex, principle 4.
Venice Commission (1998), sect. E.
See Code of Conduct for Law Enforcement Officials in General Assembly resolution 34/169; Basic
Principles on the Use of Force and Firearms by Law Enforcement Officials; General Assembly
resolution 43/173, annex. See also Committee of Ministers of the Council of Europe, European Code
of Police Ethics, recommendation (2001)10 (hereafter, European Code of Police Ethics).
Convention against Torture, art. 1; African Charter on Human and People’s Rights, art. 5; Code of
Conduct for Law Enforcement Officials, art. 5; European Code of Police Ethics, arts. 35 and 36; Body
of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment,
principle 6.
Code of Conduct for Law Enforcement Officials, art. 3; European Code of Police Ethics, art. 37;
Council of Europe (footnote 4), art. VI (2); Morocco, IER Report, vol. 1, chap. IV, 8–6.
Bulgaria (footnote 15), art. 125 (8); OSCE Guidebook on Democratic Policing, 2008, arts 55–64;
Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment,
principle 12.
25
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