In law, the use of terms can substantially modify a cause, its repercussions and responsibilities. Even the same term or situation may be experienced differently in different legislations, depending on the country to which it belongs or the legal scope it is intended to have.
Unlawful detentions in international law
In the face of unlawful detentions, international law often considers such acts to be arbitrary rather than criminalized. It is up to each individual State to identify the legal form of unlawful detention. In this sense, arbitrariness is a term found in various international legal instruments related to human rights, while the term crime (referring to unlawful detention) can be found more strongly in the criminal law applied to each country's regulations.
The Universal Declaration of Human Rights states that no one shall be arbitrarily detained.prisoner or exile. For its part, the American Declaration of the Rights and Duties of Man emphasizes that no individual may be deprived of his liberty without due process in accordance with the forms established by pre-existing laws. Likewise, it establishes the right of anyone who has been detained to be tried through the proper channels, without undue delay, and to be treated with full respect for his human dignity. The International Covenant on Civil and Political Rights also clarifies that any individual who has been deprived of liberty without proper conditions has the power to order redress for wrongs.
Similar but not equal under international law
The Inter-American Court of Human Rights (IACHR) and the Human Rights Committee established a position on the difference between an illegal act and an arbitrary act. In 1990, the body ruled that the concept of arbitrariness should be looked at in greater depth with the intention of including within it elements of impropriety, injustice and unpredictability and defined arbitrary detention as a deprivation carried out in accordance with procedures other than those prescribed by law, or following the precepts of a law whose fundamental purpose is incompatible with the individual's respect for liberty and security.
The IACHR also clarifies that detention for improper purposes in itself is a penalty that constitutes a form of punishment without process or extralegal, which violates the guarantees of prior trial, which brings the term arbitrary closer to the synonyms: irregular, abusive and contrary to law.
The United Nations Working Group found that arbitrary deprivations of liberty occur in the following situations when they have no legal basis, constitute a punishment against the peaceful exercise of the individual's fundamental freedoms (as in the case of freedom of expression or opinion), or when the conviction is the result of a trial without due process.
Regarding unlawful detention, the Court established that no one may be deprived of personal liberty except for causes of detention.In this sense, it emphasizes that failure to comply with any requirement established by domestic law will define the immediate illegality of the action, contrary to the American Convention. In this sense, it emphasizes that failure to comply with any requirement established by domestic law will define the immediate illegality of the action, contrary to the American Convention.
Consequently, an official who arrests a person without just cause shallshould be prosecuted for the crime of unlawful deprivation of liberty, The crime is foreseen and sanctioned in universal substantive criminal texts.
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