| Chapter 2: | Investigative Detention and International Human Rights Law |
Thus, a delay of a few days for investigative purposes before bringing a suspect before a judge would not violate the provisions of the ICCPR.73 This allowance of “a few days” of detention before presentment before a judge is another implicit acknowledgment of the practice of investigative detention―albeit with some time constraints.
There are, in addition, other strong indicia of the acceptance of investigative detention under the provisions of the ICCPR. The United Nations Office on Drugs and Crime, Terrorism Prevention Branch, has subtly indicated that investigative detention may be required in order to safeguard the rights contained in the ICCPR:
That same report also noted that “there is no precise or universally authoritative answer to how many hours or days the rule of law permits a person to be detained in a terrorism case before being charged or released” and that “[n]ational legislation varies widely, and many systems allow extended investigative detention under judicial supervision once a preliminary determination has been made by a neutral magistrate that grounds for investigation or trial exist.”75 Thus, a regime of investigative detention is compatible with the ICCPR so long as such detentions are not arbitrary, remain controlled by the judiciary, and otherwise comport with the requirements of article 9.
Lastly, it is worth noting that one of the key requirements of article 9 is that the detention must not be arbitrary. According to the UN Working Group on Arbitrary Detention, the deprivation of liberty is arbitrary when a case falls into one of three categories.76 The first category is when there is no legal basis to justify the deprivation of liberty. The second category is when the deprivation of liberty violates certain articles of the Universal Declaration of Human Rights or the ICCPR, namely, when