Running Head: OUTLINE

Human Rights in Context of Arrest and Detention

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CHAPTER ONE: INTRODUCTION

Background
Often, the ailments of prison system have been exposed by the press and television,
which portray a bleak picture, common to the entire world: hundreds of penal establishments in
terrible conditions, overcrowded, where the human rights of detainees are the object of
continuous violation (Mariniello, 2019). Without submitting to the classification provided for in
the Penal Execution Law, which is essential for the guidance of an individualised treatment
program, without adequate assistance, prisoners, as a rule, do not have access to an activity that
guarantees their right to redemption (on the grounds of one day's penalty for three days' work,
declared by the execution judge, after hearing the Public Prosecutor's Office) and much less that
it takes into account, under the terms of the law, his qualification, personal condition and future
needs, as well as opportunities offered by the market (Terziev, et al., 2018).
Impaired by the precarious legal assistance and the slowness of justice, one of the main
causes of the rebellions, a large number of prisoners do not obtain benefits such as regime
progression and conditional release; others, exceptionally, remain in detention beyond the time
defined in the sentencing sentence. In the medical field, there is a shortage of professionals and
lack of conditions for appropriate assistance, proliferating diseases of all kinds, especially
sexually transmitted diseases, such as AIDS, which already affects 10 to 20% of the incarcerated
population (Neuman, 2018). Despite the recent effort by the governments to overcome the most
glaring deficiencies in this area - through the construction of new prisons, job offers,
computerisation of data and services, etc.
The current reality, seen as a whole, only ratifies the law and enforcement situation, on
whose pages it was stated that “a large part of the prison population it is confined in public jails,
prisons, detention houses and similar establishments, where highly dangerous prisoners live in
overcrowded cells with occasional criminals, of little or no danger, and patients with prior
criminal enforcement (provisional prisoners or awaiting trial), for whom it is a myth, in this case,
the presumption of innocence. This study is created to assess the implementation of human rights
in case of arrest and detention of individuals. In this regard, this study will conduct an analysis of
the basic legal rules and human rights in case of arrest and detention.
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While conducting the analysis, the researcher will enter alia to deal with the in-depth
reasons governing the arrest and the continued detention of an individual exploring the rights of
that individual who is being deprived of his liberty. The jurisdiction and role played by various
authoritative entities in this process will also be discussed. The jurisprudence of the Inter-
American and European Courts of Human Rights, the Human Rights Committee and the African
Commission on Human and Peoples’ Rights will be considered in depth. The assessment of roles
played by these committees will help in understanding the international rules which are to be
followed while arrest or detaining an individual.
In this regard the treatment of individuals who are arrested or detained with regards to
human rights issues will be explored in detail. Therefore, the primary aim of this study is to get
familiarise with existing international legal standards with reference to the right to security and
liberty in case of arrest and detention. Moreover the idea generated in this study is to illustrate
how different legal guarantees are enforced in a practical manner to protect the human rights of
those being arrested or detained. This will also cover the actions of lawyers, prosecutors and
judges which are taken by these legal representatives to ensure the safeguard of human rights of
those being detained or arrested.

Research Question
Do law and enforcement authorities follow the laws of human rights while arresting or
detaining an individual?

Aim and Objectives of the Study

Even after the declaration of human rights and several manuals are created to provide
guidelines with reference to human rights, we are, in truth, faced with the greater drama of the
prison system, namely: the time elapses, the governors and administrators alternate, but, despite
the denunciations, the optimistic proposals, the speeches in defense of humanisation, the
problems persist before the insensitivity of the majority and, worse, they tend to worsen, due to
the increasing crime and the always proclaimed insufficiency of resources. Therefore the aim of
this study is to assess if the human rights protection laws are used by concerned authorities
during the arrest or detention of an individual. The objectives, however, can be divided into the
following:
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1. To investigate the implementation of human rights protection laws in case of arrest and
detention;
2. To assess the condition in which detainees are kept in; and
3. To assess if appropriate actions are taken against concerned authorities/authoritative
figure in case of violation of human rights.

Rationale of the Study

Many of the detention centres that are currently in ruins were considered model at the
time of their inauguration; the employees - prison agents, technicians, directors - who previously
were regularly submitted to training courses, today do not usually receive training of any kind
(Thorn, 2018). All of this leads us to affirm, with emphasis, that the struggle is now also a rescue
of the past. Rare examples of excellence signal that it is possible to face the challenge
successfully, particularly if there is political will, seriousness in administrative management and
community support. Yenisey and Oktar, (2019) conducted an investigation with 33 criminal
institutions and dozens of cases of human rights violations were examined, the study concluded
that the system is in crisis. No one, moreover, surprised.
What other conclusion, after all, could be extracted from detention centres where
prisoners live huddled in dark cells, without ventilation, infested with insects and rodents,
without medical and legal assistance, with serious risk of life, given to the violence of other
inmates, police and prison officers? What could be expected of a system that allows prisoners to
remain in prolonged, overcrowded police stations where their rights are violated to the extreme,
in an environment of degrading promiscuity? It is not for any other reason that the most frequent
claim of sentenced persons collected in police stations is the transfer to penitentiaries, in which it
is actually up to them to serve their sentences.
Ahmad, et al., (2016) conducted a research which reached similar conclusions, indicating
the harsh conditions of the prisons and official neglect, which resulted in dozens of deaths inside
criminal establishments. Referring to the USA, where 40% of the national prison population is
concentrated, he said that chronic overcrowding, corruption and abuses in the local
administration are worrisome, in addition to the ease with which prisoners have access to
weapons and drugs. It criticises the fact that the increase in the number of prisoners has not been
accompanied by the creation of corresponding vacancies, which aggravates the system's ills.
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Governmental and non-governmental entities have therefore shown, with the necessary
vigour, the collapse of the law where the violation of human rights at the hand of police and
other law enforcement figures is not considered something which needs attention. They are all
welcome, not least because they help to break immobility and warn of the absurdity of living
with the hypocritical dualism of a system, whose theoretical framework breaks down every time
a man crosses the gates that will separate him from the free world. Therefore, this study is
dedicated to understanding how human rights are violated while arresting or detaining an
individual.

Justification
Examination of the facts shows that it is not enough to have one of the most advanced
penitentiary laws that the arrested and the detained will be guaranteed all rights not affected by
the sentence or the law which lists the fundamental rights of such individuals. The state will
indemnify the convict for judicial error, as well as what remains arrested beyond the time fixed
in the sentence. As Mariniello, (2019) stated that it is necessary to find ways to respect human
rights and warned that it is no longer possible to pervert the function of language, at the service
of those who steal our faith in the realisation of fundamental rights, of those rights that men have
because they are men, which are immanent to human nature, to their condition of dignity.
More than ever it is necessary, under penalty of decreeing the rule of law and justice and
contributing to the discredit in the Rule of Law, that the constitutional and infraconstitutional
rules that deal with the execution the penalty, with a view to the harmonious social integration of
those who, for different reasons, were involved in crime. The concern with human rights also
extends to those who, having committed crimes of less offensive potential, with reduced social
harm, are sentenced to restrictive penalties of law, such as, for example, the provision of services
to the community or the public entity. It is evident that those sentenced to the execution of
alternative sentences have an advantage over those deprived of their liberty, mainly because they
escape the negative effects of prison, preserve their work and remain with the family, in their
social environment.
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References
Ahmad, N., Atwood, D., Bleich, J.L., Buys, C.G. and Leddy, N.J., 2016. International Human
Rights. Int'l Law., 50, p.471.
Mariniello, T., 2019. Prolonged emergency and derogation of human rights: Why the European
Court should raise its immunity system. German Law Journal, 20(1), pp.46-71.
Neuman, G.L., 2018. Detention as a last resort: the implications of the Human Rights
Committee’s General Comment No. 35. In Protecting Migrant Children. Edward Elgar
Publishing.
Terziev, V., Petkov, M. and Dragomir, K., 2018. European arrest warrant and human rights of
the accused. Proceedings of SOCIOINT.
Thorn, J., 2018. United Nations Police Missions and Human Rights. In The Police and
International Human Rights Law (pp. 245-278). Springer, Cham.
Yenisey, F. and Oktar, S., 2019. Arrest and Detention in Terms of Human Rights. Dokuz Eylul
Universitesi Hukuk Fakultesi Dergisi, 21, p.3127.