This is a picture of a beautiful flower.
Mohammad Moghimi

After recent protests regarding some of the arrests that have taken place, the term “preventive arrests” has been used. This term not only lacks any legal logic or justification, but it also goes against the principles of citizens’ fundamental rights. It should be noted that arrest is one of the harshest punishments that deprives individuals of the greatest human gift, which is freedom. Not only does freedom allow for the realization of other human rights, but justice, creativity, and development are also dependent on it. Therefore, the freedom of individuals must be protected and limited only in exceptional and legal cases. In the following, we will discuss some international criteria for guaranteeing individuals’ freedom against unlawful and arbitrary arrests.

According to Article 3 of the Universal Declaration of Human Rights, Article 9 of the International Covenant on Civil and Political Rights, Article 6 of the African Charter, Article 1 of the American Declaration, Article 7 of the American Convention, and Article 5 of the European Convention, individual freedom is a fundamental human right. The main purpose of this right is to protect individuals from arbitrary and unlawful detention. In fact, governments should not deprive individuals of their freedom, except in exceptional circumstances and under conditions specified by the legislature. In this regard, there are standards in domestic and international human rights law that guarantee that individuals are not deprived of their freedom unlawfully or arbitrarily, and that detainees are protected against potential abuses. Article 4 of the Universal Declaration of Human Rights states: “No one shall be subjected to arbitrary arrest or detention.” This fundamental guarantee must be respected for anyone who is subjected to detention for any reason, whether it be criminal charges, civil obligations, administrative detention,

According to Article 36 of the Constitution, the verdict and its execution must be carried out through a competent court and in accordance with the law. In accordance with Article 37, the principle of innocence is upheld, unless proven otherwise in a competent court. Article 32 also states that no one can be arrested except by the order and procedure prescribed by law, and in the event of arrest, procedures such as informing of charges, written notification of reasons, the right to object to detention, the opportunity to defend oneself, and the right to choose a lawyer must be observed. According to Article 2 of the Islamic Penal Code adopted in 2013, any behavior, whether an act or omission, for which a punishment is specified by law, is considered a crime.

Under what circumstances is detention legal?

Only when detention is carried out in accordance with the principles of fair trial can the freedom of individuals be deprived. In this regard, the European Court of Human Rights has stated that the phrase “in accordance with the law” in Article 5(1) of the European Convention refers to a domestic law that has been adopted in accordance with the principles set out in the aforementioned Convention. According to Article 5(1) of the Convention, the arrest of a person for the purpose of bringing them before a judicial authority is justified when there is a legal basis based on a “reasonable suspicion” that they have committed a crime. According to the European Court, a “reasonable suspicion” is only justified if there are strong reasons to believe that the person has committed the crime.

On the other hand, in some cases, a detention may be lawful, but according to the principles of fair trial as outlined in international human rights documents, it may be considered arbitrary. For example, if the law under which a person is detained is vague or overly broad, or if it violates other fundamental criteria such as freedom of expression. The Human Rights Committee has argued that the term “arbitrary” in Article 9 of the International Covenant on Civil and Political Rights does not only refer to “unlawful detention”, but also includes a broader interpretation that encompasses cases such as “disproportionate”, “unjust”, and “not based on a criminal charge”. The African Commission on Human Rights has also stated that the widespread detention of civil servants in Malawi, on the grounds that they have used office equipment for subversive purposes, is arbitrary and violates Article 6 of the African Charter. The Commission also says that detaining a person after the expiration of their sentence is a

Therefore, the detention of individuals and deprivation of their freedom must be carried out in accordance with laws that align with the principles of fair trial as emphasized in international human rights documents. This is only possible through the observance of good governance principles and adherence to democratic principles in the adoption and implementation of laws.