Detention not under the control of effective judicial authority
100. The Complainants allege that at least from November 1996, when the
detention of the Victim was ordered under the Emergency Law, the Victim’s
detention was never authorised by, reviewed, or under the control of any
effective judicial authority. The Complainants submit that the Victim was
detained solely on the orders of the Minister of Interior.
101. The Complainants submit that although the detention was based on an
administrative rather than judicial decision, the review was not automatic but
had to be initiated by the Victim or his lawyer. The Complainants further submit
that even this nominal review of the Victim’s detention was wholly ineffective as
the Victim was never physically brought before a judge.
102. The Complainants submit that the repeated disregard of court release orders
demonstrates that the judiciary was not competent and did not have effective
control over the detention of the Victim. The Complainants submit that the lack
of judicial control renders the detention arbitrary.
Detention was unjust and not based on any predictable legal regime
103. The Complainants submit that the detention of the Victim was not based on
any legitimate purpose set out in law, but was unpredictable and lacked any due
process. The Complainants submit that the Victim was never informed of the
reasons behind his detention, neither charged with any offence, nor provided
with the opportunity to answer the claims against him.
104. The Complainants highlight the vague and overbroad definition of persons
who may be detained under the jurisdiction of the Emergency Law as the core
problem. The Complainants point to Article 3(1) of the Emergency Law which
provides for the arrest and detention of criminal suspects, but also of “persons
who are dangerous to security and order”. The Complainants point out that such
detention does not require law enforcement officials to identify specific reasons
that lead them to believe that a person is dangerous. The Complainants submit
that detention under the emergency law is rather often used as a “preventative
measure”.
105. The Complainants allege that the vague definitions under the Emergency Law
have allowed the State to repeatedly use the law as a weapon to silence or punish
political dissidents or citizens who expressed views diverging from the
mainstream.
106. The Complainants allege that the Emergency Law, not requiring a detainee to
be officially charged or brought to trial, is an administrative detention system
which is not tied to judicial holding or procedure.
107. The Complainants aver that the Emergency Law does not define a maximum
limit for administrative detention of an individual considered to be a national
security threat, and that in practice an individual may be detained indefinitely.
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