| Chapter 2: | Investigative Detention and International Human Rights Law |
procedure, and final decisions by the ECtHR are largely considered to be binding.68
Human Rights and Investigative Detention
Cassel noted that, for member states of the Council of Europe, the ECtHR's interpretation of article 5 and its jurisprudence have served to limit European investigative detention powers―at least in theory.69 Those limitations―and the resultant legislative responses―are discussed more fully in the chapters addressing the United Kingdom and France. It is worth noting here, however, that the nature of the ECHR and its robust human rights regime has resulted in a far more detailed body of law on the subject for European countries than exists vis-à-vis their North American counterpart.70
The key instrument bearing on detention to which the United States is a party, the ICCPR, implicitly permits the practice of investigative detention. The language of General Comment 8, which elaborates on the rights contained in article 9 of the ICCPR, never expressly mentions investigative detention but does state that preventive detention―its more potent corollary―is permissible so long as it is controlled by the provisions of article 9. This means that preventive detention is permissible so long as it is not arbitrary, it is based on grounds and procedures established by law, information of the reasons for detention are given to the suspect, courts are in control of the detention, and compensation is available in the case of a breach.71 From this express allowance of preventive detention, one may deduce a fortiori (a maiore ad minus) that investigative detention is permissible so long as the same safeguards are granted.
Further, the HRC's General Comment 8 states that