This means that remand in custody pursuant to lawful arrest must
not
only be lawful but reasonable in the circumstances. Remand in custody
must further be necessary in all the circumstances, for example, to prevent
flight, interference with evidence or the recurrence of crime”
See:
Communication
No
458/1991.
A W.
MUKONG
Vs. Cameroun
(views adopted on 21 July 1994) UN. doc GAOR A/49/40 (vol. 11) para
9.8.
Accordingly, remand in custody pursuant to lawful arrest must not only be
“lawful” but also reasonable and necessary in all circumstances for the
aforementioned purposes. It is for the State party concerned to show that
these factors are present in the particular case.
In MUKONG Vs. Cameroun (supra) the Applicant alleged that he had been
arbitrarily arrested and detained for several months, an allegation rejected
by the State party on the basis that the arrest and detention has been carried
out in accordance with the Domestic Law of Cameroun. The Committee
concluded that articles 9 (1) has been violated since the author’s detention
‘was neither reasonable nor necessary in the circumstances of the case’.
For instance, the State party had not shown that the remand in custody was
necessary to prevent flight, interference with evidence or recurrence of
crime, but had merely contended that the author’s arrest and detention
were clearly justified by reference to Article 19 (3) of the Covenant which
allows restriction on the right of freedom of expression.
32