FREEDOM AND SECURITY OF THE PERSON
CONTENTS:
FREEDOM AND SECURITY OF THE PERSON 1
India 4
PREVENTIVE DETENTION 4
Art 22: 4
S.Krishan v. State of MAdras AIR 1951 SC 301 5
The State of Bombay v Atma Ram Sridhar Vaidya AIR 1951 SC 157 6
The State of West Bengal v. Ashok Dey AIR 1972 SC 1660 6
Rajendra Kumar v State of Gujarat AIR 1988 SC 1255 6
ZIMBABWE: 7
Liberty 7
Makomboredze v Minister of State Security 1986 (1) ZLR 73 (HC) 7
Protection against inhuman or degrading punishment 7
S v Ncube 1987 (2) ZLR 246 (SC); 1988 (2) SA 702 (ZS): Whipping of adults 7
S v Juvenile 1989 (2) ZLR 61 (SC); 1990 (4) SA 151 (ZS): Constitutionality of sentences of corporal punishment imposed upon juveniles 7
S v Arab 1990 (1) ZLR 253 (SC): Mandatory minimum sentence 8
S v Masitere 1990 (2) ZLR 289 (SC): Punishments of solitary confinement and spare diet amounts to torture, and to inhuman and degrading punishment 8
S v Nkomo & Anor 1993 (2) ZLR 131 (S): Confrontation is a permissible element of police interrogation 9
NAMIBIA 9
Sentence: Life imprisonment 9
S v Tooeib 1992 NR 198 9
EUROPEAN COMMUNITY 9
Lalljee v United Kingdom App No 10556/83: 10
East African Asians v United Kingdom 3 EHRR 76 1973: 10
Soering v United Kingdom 11 EHRR 439: 11
X, Y and Z v Sweden 5 EHRR 147 1982: 11
Education: respect for parent’s religious and philosophical convictions: 11
CHAHAL v. THE UNITED KINGDOM (70/1995/576/662) 15 November 1996: order for deportation to India of Sikh separatist for national security reasons - detention for six years pending deportation - adequacy of judicial review 11
SILVA ROCHA v. PORTUGAL (82/1995/588/674) 15 November 1996: detention in a psychiatric hospital for a minimum period of three years of person prosecuted for homicide and found not to be criminally responsible on account of his mental disturbance 12
AHMED v. AUSTRIA (71/1995/577/663) 17 December 1996: deportation of Somali national convicted of criminal offence: right of Contracting States to control entry, residence and expulsion of aliens – refugee status 15
Refugee status: 15
AKSOY v. TURKEY (100/1995/606/694) 18 December 1996: alleged torture in South-East Turkey; Court considers that where individual is taken into police custody in good health but found to be injured on release, incumbent on State to provide plausible explanation. Ill-treatment was of such a serious and cruel nature that it can only be described as torture. 16
SCOTT v. SPAIN (84/1995/590/676) 18 December 1996: lawfulness and length of pre-trial detention of person also sought for extradition; Rape investigation provided at all times justification for applicant's ongoing detention - 18
D. v. THE UNITED KINGDOM (146/1996/767/964) 2 May 1997: proposed removal of an alien drug courier dying of Aids to his country of origin where he has no accommodation, family, moral or financial support and no access to adequate medical treatment 19
GÜLEÇ v. TURKEY (54/1997/838/1044) 27 July 1998: – alleged unlawful killing by security forces during a demonstration and lack of an appropriate investigation into the circumstances. 19
AERTS v. BELGIUM (61/1997/845/1051) 30 July 1998: applicant held, for seven months of his total detention, in the psychiatric wing of an ordinary prison, rather than in a social protection centre designated by the relevant mental health board 20
ANDRONICOU AND CONSTANTINOU v. CYPRUS (86/1996/705/897) 9 October 1997: alleged unlawful killing of a young couple by officers of a special police unit in the course of a rescue operation. Court only concerned to establish whether in circumstances authorities had taken appropriate care in planning and control of rescue operation. 22
ENGLAND 23
Torture: 23
Criminal Justice Act 1988 s134: 23
Cruel and Unusual Punishment: 23
Objective test: 23
Violations committed by officials 23
CANADA 23
R. v. Stillman [1997] 1 S.C.R. 607: Police taking hair samples, buccal swabs and teeth impressions from accused without his consent while he was in custody -- Whether accused's right to security of person infringed in manner not consistent with principles of fundamental justice -- Security of person-- Search and seizure-- Admissibility of evidence 24
R. v. Sarson [1996] 2 S.C.R. 223: Prerogative writs -- Habeas corpus -- Accused convicted of murder and sentenced to life imprisonment without eligibility for parole for 15 years -- Accused convicted under provision subsequently struck down as unconstitutional -- Whether accused`s continued detention gives rise to right to habeas corpus. 31
R. v. Montour [1995] 2 S.C.R. 416: Arbitrary detention or imprisonment -- Random stopping of accused's vehicle by police -- Trial judge finding that random stopping of vehicle violated s. 9 of Canadian Charter of Rights and Freedoms and excluding evidence -- Accused acquitted -- Court of Appeal setting aside acquittals -- Acquittals restored. 33
R. v. Pontes [1995] 3 S.C.R. 44: Motor Vehicle Act provides that a person convicted of an offence under certain sections of the Act is "automatically and without notice" prohibited from driving a motor vehicle for 12 months -- creates absolute liability offence -- Ignorance of the law 34
Chan v. Canada (Minister of Employment and Immigration) [1995] 3 S.C.R. 593: Immigration -- Convention refugee -- Well-founded fear of persecution because of membership in particular social group or political opinion -- Likelihood of forced sterilization following breach of China's one-child policy -- Confession as to involvement in pro-democracy movement -- Whether or not appellant had well-founded fear of persecution for reasons of membership in a particular social group (his family) or political opinion 37
R. v. Brown [1994] 3 S.C.R. 749: Cruel and unusual punishment -- Criminal law -- Sentencing -- Mandatory minimum sentence for use of firearm while committing indictable offence -- Sentence to be served consecutively to punishment imposed for an offence arising from same event -- Sentence imposed on conviction for armed robberies using shotgun 40
R. v. Goltz [1991] 3 S.C.R. 485: Cruel and unusual punishment -- Minimum sentence -- Provincial motor vehicle legislation providing for mandatory minimum sentence of seven days' imprisonment together with fine for first conviction of driving while prohibited 41
R. v. Heywood [1994] 3 S.C.R. 761: Criminal Code prohibiting convicted sexual offenders from loitering in school yards, playgrounds and public parks -- Convicted sexual offender convicted of loitering by play area in public park -- Definition of "loitering"-- the right not to be subjected to cruel and unusual treatment or punishment, the right not to be arbitrarily detained or imprisoned 43
Cunningham v. Canada [1993] 2 S.C.R. 143: Parole -- Mandatory supervision -- Parole Act amended to change conditions for release on mandatory supervision -- Whether amendment amounts to denial of prisoner's liberty contrary to principles of fundamental justice 48
Canada (Attorney General) v. Ward [1993] 2 S.C.R. 689: Immigration -- Refugee status -- "Particular social group" -- Political opinion -- "Well-founded fear of persecution" necessary to establishment of claim to Convention refugee status -- Claimant a former member of Irish terrorist organization sentenced to death by organization for complicity in assisting escape of hostages -- Claimant citizen of Ireland and of United Kingdom -- Whether state complicity requirement for persecution -- Whether terrorist organization a "particular social group" -- Whether dissention from politico-military organization basis for persecution for political opinion 49
R. v. Macooh [1993] 2 S.C.R. 802: Arbitrary detention -- Peace officer entering private home without a warrant to arrest accused for a provincial offence-- Common law traditionally recognizing hot pursuit exception to principle of sanctity of home -- Whether exception should be extended to arrests for provincial offences -- Whether entry by peace officer lawful. 53
Rodriguez v. British Columbia (Attorney General) [1993] 3 S.C.R. 519: Terminally ill patient seeking assistance to commit suicide -- Whether Criminal Code provision prohibiting aiding a person to commit suicide infringes s. 7 of Canadian Charter of Rights and Freedoms; Equality rights -- Discrimination on basis of physical disability-- Cruel and unusual punishment 55
Reference Re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.) [1990] 1 S.C.R. 1123 Vagueness -- Criminal Code prohibiting communications in public for the purpose of prostitution and keeping of common bawdy-houses -- Whether the Code impermissibly vague – protection of economic rights-- Freedom of expression 60
Constitutional law -- Charter of Rights -- Freedom of expression -- Criminal Code prohibiting under s. 195.1(1)(c) communications in public for the purpose of prostitution and under s. 193 the keeping of common bawdy-houses 60
Canada (Minister of Employment and Immigration) v. Chiarelli [1992] 1 S.C.R. 711 Right to liberty and right not to be deprived thereof except in accordance with principles of fundamental justice -- Deportation of permanent resident convicted of serious crime -- Appeal to Immigration Appeal Board on compassionate grounds barred if Security Intelligence Review Committee finding involvement with organized crime -- Cruel and unusual punishment or treatment –Equality Rights – natural justice 65
Idziak v. Canada (Minister of Justice) [1992] 3 S.C.R. 631: -- Extradition -- Application to Minister to exercise discretion not to extradite -- Internal memorandum advising minister -- Minister not informing fugitive of memorandum -- Whether s. 7 right to fundamental justice infringed -- Canadian Charter of Rights and Freedoms, s. 7. Prerogative writs -- Habeas corpus with certiorari in aid 69
R. v. Pearson [1992] 3 S.C.R 665: -- Habeas corpus -- Accused charged with trafficking in narcotics and denied bail -- Accused challenging constitutionality of bail provisions -- Whether habeas corpus available remedy-- Right to bail -- Reverse onus Presumption of innocence -- Arbitrary detention 72
R. v. Morales [1992] 3 S.C.R. 711: Right to bail -- Reverse onus provision -- Order of detention --Justification for detention in custody -- when necessary in the public interest or for the protection or safety of the public -- criteria of public interest and public safety – vagueness-- Arbitrary detention 75
R. v. Sawyer [1992] 3 S.C.R. 809: -- Sentencing -- Sentence including mandatory prohibition against possession of firearms or ammunition -- Appellants' employment as stonemasons involving use of explosives and seasonal employment as hunting guides involving use of hunting rifles -- Whether mandatory prohibition cruel and unusual punishment 80
R. v. SMITH (EDWARD DEWEY) [1987] 1 S.C.R 1987: Minimum sentence for importing narcotics notwithstanding degrees of seriousness of the offence -- Whether or not minimum sentence cruel and unusual punishment 81
R. v. Goltz [1991] 3 S.C.R. 485: -- Cruel and unusual punishment -- Minimum sentence -- Provincial motor vehicle legislation providing for mandatory minimum sentence of seven days' imprisonment together with fine for first conviction of driving while prohibited 84
R. v. Storrey [1990] 1 S.C.R. 241: Arbitrary detention or imprisonment -- Accused arrested for aggravated assault and detained 18 hours before charge laid -- Accused kept in custody for the purposes of conducting an identification parade -- Whether accused's arrest lawful -- Whether accused arbitrarily detained -- 87
Steele v. Mountain Institution [1990] 2 S.C.R. 1385: Indeterminate sentence -- Necessary psychiatric treatment not available -- Parole repeatedly denied -- Whether or not Parole Board erred in refusing to release prisoner -- Whether or not flaw in operation of the parole review process -- Whether or not flaw amounting to cruel and unusual punishment 88
USA v. Cotroni [1989] 1 S.C.R. 1469: Right of Canadian citizen to remain in Canada -- Extradition -- Conspiracy to import drugs into U.S.A. from Canada -- Actions of accused taking place in Canada -- Offence existing under both U.S. law and Canadian law -- Whether or not extradition of Canadian citizen under these circumstances an infringement of citizen's right to remain in Canada 91
Freedom and security of the person
12. (1) Everyone has the right to freedom and security of the person, which includes the right
a. not to be deprived of freedom arbitrarily or without just cause;
b. not to be detained without trial;
c. to be free from all forms of violence from either public or private sources;
d. not to be tortured in any way; and
e. not to be treated or punished in a cruel, inhuman or degrading way.
(2) Everyone has the right to bodily and psychological integrity, which includes the right
a. to make decisions concerning reproduction;
b. to security in and control over their body; and
c. not to be subjected to medical or scientific experiments without their informed consent.
(Note that Zimbabwe and South Africa have also declared corporal punishment to be unconstitutional. See S v Ncube 1988 (2) SA 702 (ZS), S v Juvenile 1990 (4) SA 151 (ZS), S v Williams 1995 (3) SA 632 (CC))
India
This section requires elaboration.
PREVENTIVE DETENTION
(The rights of the accused under the Indian Constitution)
Art 22:
No person shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult and to be defended by, legal practitioner of his choice.
Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty four hours of such areest excluding the time necessary for such journey from the place of arrest to the court of magistrate and no person shall be detained in custody beyond the said period without the authority of the magistrate.
Nothing in clauses (1) and (2) shall apply-
to any person for the time being an enemy alien
to any person who is arrested or detained under any law providing for preventive detention.
(4) No law providing for preventive detention shall authorize the detention of any person for a period longer than three months unless-
an advisory Board consisting of persons who are qualified to be appointed as, Judges of High Court has reported before the expiration of the said period that there is, in its opinion sufficient cause for such detention:
Provided that nothing in this clause shall authorize such detention beyond the period specified by any law made by Parliament
(5)When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.
(6) Nothing in clause (5) shall require the authority making such order to disclose the facts which such authority considers to be against the public interest to disclose.
Preventive detention means the detention of a person without trial in such circumstances that the evidence before the authority is not sufficient to make out a legal charge or to secure the conviction of the detenue by legal proof, but still may be sufficient to justify his detention. The object of preventive detention is to prevent a person from doing something.[1] No offence is proved, nor any charge formulated: and the justification is suspicion or reasonable probability and not criminal conviction which only can be warranted by legal evidence.[2]