出典(authority):フリー百科事典『ウィキペディア（Wikipedia）』「2012/10/02 08:13:18」(JST)
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Preventive detention is an imprisonment that is putatively justified for non-punitive purposes.
In contrast to this, under preventive detention the government can imprison a person for some time without a criminal charge. It means that if the government feels that a person being at liberty can be a threat to the law and order or the unity and integrity of the nation, it can detain or arrest that person to prevent him from doing this possible harm. Some jurisdictions allow preventive detention only in specific cases, for example only for persons who have already been sentenced for a serious crime (or as part of the sentence for that crime).
A related, but different form of detention is detention of suspects. In contrast to preventive detention, detention of suspects must quickly be followed by a criminal charge (or happen after the charge).
In most jurisdictions, people suffering from serious mental illness may be subject to involuntary commitment under mental health legislation. This is undertaken on health grounds or in order to protect the person or others. It does not strictly speaking constitute a form of preventive detention, because the person is detained for treatment and released once this has proved effective.
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Australian laws authorize preventive detention in a variety of circumstances. For example, asylum seekers who arrive in Australian water or territory are detained in immigration detention until their status as an asylum seeker is established.
In Canada, anyone declared a dangerous offender by the courts is subject to an indefinite period of detention
The Republic of Costa Rica, where the 1998 Criminal Proceedings Code allows for a normal "preventive" imprisonment of 12 months if the person is considered a "flight risk", but if the case is declared "complex", it can be increased to up to three years and a half of imprisonment without conviction, or even more in some cases. In fact, in Costa Rica, as of 2006, over 4,000 people were serving terms of preventive detention.[citation needed]
The police can detain people for 6 hours without involving the courts or pay compensation for wrongful arrest.[1] In relation to the ongoing gang war in Copenhagen between the biker gangs and second generation youth gangs it has been suggested to extend the 6 hour limit to several weeks.[2] Before the Copenhagen Climate Council a new set of emergency laws was introduced allowing the police to detain people for up to 12 hours without charging them for a crime.[3] Critics fear that they will remain as permanent laws when the summit is over.[4]
In Germany, "preventive detention" (German: Sicherungsverwahrung, §66 Strafgesetzbuch) has a similar meaning to that in New Zealand. Sicherungsverwahrung can only be imposed as part of a criminal sentence, and it is handed down to individuals who have committed a grave offence and are considered a danger to public safety. It is an indeterminate life sentence that follows a regular jail sentence. To assure the suitability of the preventive detention, it has to be reviewed every two years to determine the ongoing threat posed by the individual. Preventive detention is typically served in regular prisons, though separated from regular prisoners and with certain privileges.
The Sicherungsverwahrung is usually imposed in the original verdict, but can be imposed later under certain circumstances. This practice of subsequent incapacitation orders was ruled a violation of Art 7 of the European Convention on Human Rights by the European Court of Human Rights.[5] Subsequently a huge discussion in Germany over the handling of this verdict occurred. In reaction to this the Federal Constitutional Court of Germany issued a verdict on Sicherungsverwahrung in May 2011, deeming it unconstitutional.[6]
In India, preventive detention can be extended for only three months. After three months, such a case is brought before an advisory board for review. In India, this is given in the Constitution of India under Right to Freedom, a Fundamental Right.
Protection against Arrest and Detention
Article 22 of the Constitution of India is titled as “Protection against arrest and detention in certain cases”. It embodies procedural safeguards against arrest or detention, which are available in the following two cases— Firstly, where the arrest or detention is made under the ordinary law relating to commission of offences. Secondly, where the detention is made under a law providing for preventive detention.
Article 22 of the Constitution of India reads as under: - “ (1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice. (2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for journey from the place of arrest to court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate. (3) Nothing in clauses (1) and (2) shall apply— (a)to any person who for the time being is an enemy alien; or (b)to any person who is arrested or detained under any law providing for preventive detention. (4) No law providing for preventive detention shall authorize the detention of a person for a longer period than three months unless— (a)an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court, has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention : Provided that nothing in this sub-clause shall authorize the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub-clause (b) of clause (7); or (b)such person is detained in accordance with the provisions of any law made by Parliament under sub-clauses (a) and (b) of clause (7). (5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order (6) Nothing in clause (5) shall require the authority making any such order as is referred to in that clause to disclose facts, which such authority considers to be against the public interest to disclose. (7) Parliament may by law prescribe— (a)the circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of sub-clause (a) of clause (4); (b)the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention; and (c)the procedure to be followed by an Advisory Board in an inquiry under sub-clause (a) of clause (4).”[7]
Meaning of the word “Arrest”— The word “arrest” is not defined either in the procedural Acts or in the various substantive Acts, though Section 46 of the Criminal Procedure Code, 1973 lays down mode of arrest to be effected. Stroud’s Judicial Dictionary,[8] defines the word ‘arrest’ as follows: “’arrest’, is when one is taken and restrained from his liberty.” In the Bouvier’s Law Dictionary,[9] the meaning is given thus: “Arrest : to deprive a person of his liberty by legal authority.”
Detention of an accused— Section 57, Cr.P.C. is a pointer to the intendment to uphold personal liberty and to restrict to the minimum the curtailment of liberty. Section 73, Cr.P.C. provides that when a person against whom a warrant is issued by a Magistrate is arrested, he is required without loss of time, to be taken to the nearest police station and the police officer is required to produce him before a Magistrate. These provisions indicate that the police has been given the least powers to detain an accused person without a proper authority in that behalf. The powers of arrest and detention conferred under Section 4 (c) read with Section 5 of the Armed Forces (Special Powers) Act, 1958, has to be exercised in consonance with the overriding requirements of Clauses (1) and (2) of Article 22 of the Constitution.[10]
On a reading of Section 57 of the Code of Criminal Procedure it is evident that no police officer can detain in custody a person arrested without warrant for a period longer than twenty-four hours besides the time taken for journey.
Object behind Article 22— The safeguards are provided with a view to avoid any miscarriage of justice. It is to correct or check the use of power by the executive in arresting or detaining a person. Who can claim Article 22— The safeguards contained in Article 22 can be claimed by every person whether a citizen or a non-citizen. Even a foreigner can claim these safeguards. However, these safeguards are not available to an enemy alien (i.e., a national of a country with whom India is at war). When Article 22 does not apply— The words “arrest and detention” in Article 22 have been interpreted to mean arrest and detention upon an accusation for a criminal or quasi-criminal offence. It, thus, does not apply to detentions made in civil matters, e.g., arrests made for the recovery of arrears of land revenue. Again, Article 22 would not apply where there is no allegation or accusation of any actual or apprehended commission by a person of any offence.
In Raj Bahadur v. Legal Remembrancer,[11] the Calcutta High Court held that removal of a minor girl from a brothel and detaining her in police custody under Section 13 of the Bengal Suppression of Immoral Traffic Act, 1923, did not constitute “arrest and detention” within the meanings of Article 22.
Safeguards against Arrest or Detention made under the Ordinary law relating to commission of offences {Article 22(1) & (2)}— Article 22 guarantees the following safeguards against arrest or detention made under the ordinary law relating to the commission of offences— (a)Right to be informed, as soon as may be, of the grounds for arrest or detention. (b)Right to consult and to be defended by a legal practitioner of his choice. (c)Right to be produced before the nearest Magistrate within 24 hours of arrest. (d)Right not to be detained in custody beyond 24 hours without the authority of the Magistrate. Right to be informed of the grounds of arrest— Clause (1) of Article 22 requires that any person who is arrested should be informed of the grounds for such arrest. The grounds must be furnished “as soon as may be”. The words “as soon as may be” mean as early as is reasonable in the circumstances of the particular case. No hard and fast rule can be laid down in this regard. The object is to enable the person arrested to know as to why and for what offence he has been arrested. It is to afford him the earliest opportunity to remove any mistake or misapprehension or misunderstanding in the mind of the executive authority making the arrest. Right to consult and to be defended by a legal practitioner— Clause (1) of Article 22 further provides that the person arrested “shall not be denied the right to consult and to be defended by a legal practitioner of his choice”. This right is guaranteed with a view to enable the detenue to prepare for his defence. This right belongs to the arrested person not only at the pre-trial stage, but also at the trial before a criminal Court or before a special tribunal and whether the arrest is made under the general law or under a special Statute. Personal liberty is invaded by arrest and continues to be restrained during the period a person is on bail and it matters not whether there is or is not a possibility of imprisonment. An accused has a right to consult his lawyers when he is brought by the police to a Magistrate to record a confession. It is fundamental to the rule of law that the services of a lawyer shall be available for consultation to any accused person under circumstances of near-custodial interrogation. The accused should not only be defended by a pleader at the time of the trial or inquiry but he should have a reasonable opportunity of getting into communication with his pleader for the purpose of preparing his defence while in the custody of the police before the charge-sheet is submitted. The police must not in anyway obstruct such interviews on arbitrary or fanciful ground with a view to deprive the accused of his fundamental right.
In Joginder Kumar v. State of U.P.,[12] the Supreme Court has ruled that the right of arrested person to have someone informed about his arrest and to consult privately with his lawyer were inherent in Articles 21 and 22. Thus the right to consult the lawyer means the right to consult him away from the hearing of the police. The right to be defended by a legal practitioner cannot be excluded by a Statute because of the constitutional mandate under Article 22(1). In State of M.P. v. Shobhram,[13] certain persons were arrested under the provisions of the Criminal Procedure Code for committing the offence of criminal trespass and were prosecuted under the M.P. Panchayat Act in the Court of Nayaya Panchayat. Section 63 of the Panchayat Act had excluded the legal practitioners from practicing before the Court of Nayaya Panchayat. The Court imposed a fine of Rs.75/- on each accused. The Supreme Court struck down Section 63 of the Panchayat Act as violative of Article 22(1).
Right to be produced before the Nearest Magistrate— Clause (2) of Article 22 provides that “every person who is arrested and detained in custody shall be produced before the nearest Magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the Court of the Magistrate”. The right to be produced before the nearest Magistrate is guaranteed with a view to avoid any miscarriage of justice. It is with the object to correct and approve the executive action of arresting a person. In Re Madhu Limaye,[14] it was held by the Supreme Court that the Magistrate must apply his judicial mind to determine whether the arrest is regular or legal and in accordance with the law. The Magistrate, therefore, while authorizing the extension of arrest must not act mechanically. The words “nearest Magistrate” means the Magistrate found to be nearest to the place of arrest. It is immaterial whether the Magistrate has or does not have jurisdiction to try the case or that the Magistrate sits in a court or not, at the time the arrested person is produced before him. The arrest is legal when the arrested persons were kept in custody for more than 24 hours but the time spent up was used for preparation of recovery list and taking the statements of the accused and it was then too late in the day to put them before a Magistrate and the accused persons were therefore put up before the Magistrate the next day.[15]
Where the Investigating Officer has satisfactorily explained the detention of the accused from time to time till the production before the Magistrate, the production of the accused before the Magistrate after 24 hours of his arrest did not render the custody illegal.[16] Only under two conditions can the said direction be obviated. One is when the arrested person is an “enemy alien”. The second is when the arrest is under any law for preventive detention. In all other cases the Constitution has prohibited peremptorily that “no person shall be detained in custody beyond the said period without the authority of a Magistrate”.
Right not to be Detained in Custody beyond 24 hours without the authority of the Magistrate— Clause (2) of Article 22 mandates that the arrested person shall not be detained in custody beyond the said period of 24 hours without the authority of a Magistrate. In, Ganpati K. Reddy v. Nafisal Hasan,[17] it was interpreted by the Supreme Court that it would mean that if there is failure to produce the arrested person before the nearest Magistrate within 24 hours, it would make the detention illegal.
Exceptions to Clause (1) and Clause (2) of Article 22— Article 22(3) Clause (3) of Article 22 provides that the safeguards guaranteed by Clauses (1) and (2) of Article 22 are not available to the following persons— (a)Any person who for the time being is an enemy alien; (b)Any person who is arrested or detained under any law providing for preventive detention. In case of a person arrested or detained under a law providing for preventive detention, special provisions are contained in Clauses (4) to (7) of Article 22.
Preventive Justice and Punitive Justice— Preventive justice consists in restraining a man from committing a crime, which he may commit but has not yet committed, or doing some act injurious to members of the community, which he may commit but has not yet done. In almost every case where preventive justice is put in force, some suffering and inconvenience may be caused to a suspected person. That is inevitable. But the suffering is inflicted for something much more important than his liberty or convenience namely, for securing the public safety and defence of the realm.[18] As preventive justice proceeds upon the principle that a person should be restrained from doing something which, if free and unfettered, it is reasonable probable that he would do, it must necessarily proceed in all cases, to some extent, on suspicion or anticipation as distinct from proof.[19] Preventive detention is not punitive but a precautionary measure. The object is not to punish a man for having done something but to interpret before he does it and to prevent him from doing it. Justification of such detention is suspicion or reasonable probability and not criminal conviction, which can only be warranted by legal evidence.[20] Preventive detention is devised to afford protection to society. Any preventive measures, even if they involve some restraint or hardship upon individuals, do not partake in any way of the nature of punishment, but are taken by way of precaution to prevent mischief to the state.[21] When we consider the question of validity of conditions of detention, it is necessary to bear in mind the distinction between ‘preventive detention’ and ‘punitive detention’. There is a vital distinction between these two kinds of detention. ‘Punitive detention’ is intended to inflict punishment on a person, who is found by the judicial process to have committed an offence, while ‘Preventive detention’ is not by way of punishment at all, but it is intended to prevent a person from indulging in conduct injurious to the society. The power of preventive detention has been recognized as a necessary evil and is tolerated in a free society in the larger interest of security of the State and maintenance of public order. It is a drastic power to detain a person without trial and there are many countries where it is not allowed to be exercised except in times of war of aggression.[22] Our Constitution does not recognize the existence of this power, but it is hedged in by various safeguards set out in Articles 21 and 22. Article 22 in Clauses (4) to (7), deals specifically with safeguards against preventive detention and any law of preventive detention or action by way of preventive detention taken under such law must be in conformity with the restrictions laid down by those clauses on pain of invalidation. But apart from Article 22, there is also Article 21, which lay down restrictions on the power of preventive detention.[22]
Purpose and intent of Preventive detention— Preventive detention is an anticipatory measure and does not relate to an offence, while the criminal proceedings are to punish a person for an offence committed by him. They are not parallel proceedings. The object of the law of preventive detention is not punitive but only preventive. It is resorted to when the Executive is convinced that such detention is necessary in order to prevent the person detained from acting in a manner prejudicial to certain objects, which are specified by the concerned law. The action of the Executive in detaining a person being only precautionary, normally the matter has necessarily to be left to the discretion of the executive authority. It is not practicable to lay down objective rules of detention. The satisfaction of the Detaining Authority may act on any material and on any information that it may have before it. Such material and information may merely afford for a sufficiently strong suspicion to take action, but may not satisfy the tests of legal proof on which alone a conviction for offence will be tenable. The compulsions of the primordial need to maintain order in society without which the enjoyment of all rights, including the right to personal liberty of citizens, would lose all their meanings, provide the justification for the laws of preventive detention. Laws that provide for preventive detention posit that an individual’s conduct prejudicial to the maintenance of public order or to the security of State or corroding financial base provides grounds for satisfaction for a reasonable prognostication of possible future manifestation of similar propensities on the part of the offender. This jurisdiction has at times been even called a jurisdiction of suspicion. The compulsions of the very preservation of the values of freedom of democratic society and of social order might compel a curtailment for individual liberty. Thomas Jefferson once said, “To lose our country by a scrupulous adherence to the written law would be to lose the law itself, with life, liberty and all those who are enjoying with us, thus absurdly sacrificing the end to the needs”. This, no doubt, is the theoretical jurisdictional justification for the law enabling preventive detention. But the actual manner of administration of the law of preventive detention is of utmost importance. The law has to be justified by striding the right balance between individual liberties on the one hand and the needs of an orderly society on the other.[23]
Safeguards in use of preventive detention— The framers of the Constitution were of the view that in free India, when there will be democratic and representative government, the need for framing such preventive detention laws will rarely arise and shall be sparingly and cautiously used. But it was right that in 1950 that the Parliament passed the Preventive Detention Act to curb the ‘violent and terrorist’ activities of the communists in Hyderabad, West Bengal and Madras State. The Constitutional validity of the Act was upheld by the Supreme Court in terms of the Parliament’s power to enact such a law but Chief Justice Kania and Justice Mahajan and Mukherjee, observed in A.K.Gopalan v. State of Madras,[24] that preventive detention laws were repugnant to democratic Constitutions and did not exist in democratic countries.
Constitutional validity of Preventive Detention Act— The Constitution permits the Parliament and the State Legislature to enact Preventive Detention Acts under Entry 9 of the Union List. The Parliament has power to pass laws relating to Preventive Detention for reasons connected with defence, foreign affairs or the security of India and also in respect of persons subjected to such detention. Both the Parliament and the State Legislatures have under Entry 3 of the Concurrent List power to pass laws in respect of the Preventive Detention for reasons connected with the Security of State, the maintenance of public order or the maintenance of supplies and services essential to the community and persons subject to such detention. The constitutionality of the Preventive Detention Act, 1950 was challenged in A.K.Goplan’s case[20] The Act was held to be valid. Kania C.J., said: “Preventive detention in normal times, i.e. without the existence of an emergency like war, is recognized as a normal topic of legislation in List I, Entry 9 and List III, entry 3 of Schedule 7. Even in the Chapter on Fundamental Rights, Article 22 envisages legislation in respect of preventive detention in normal times. The provisions of Article 22 (4) to (7) by their very wording leave unaffected the large powers of legislation on point and emphasis particularly by Article 22 (7) the powers of the Parliament to deprive a person of a right to have his case considered by an Advisory Board. Part III and Article 22 in particular are the only restrictions on that power and but for those provisions the power to legislate on the subject would have been quite unrestricted. Parliament could have made a law without any safeguard or any procedure for preventive detention. Such an autocratic supremacy of the legislature is certainly cut down by Article 21.” The law of preventive detention has therefore now to pass the test not only of Article 22, but of Article 21 and if the constitutional validity of any such law is challenged, the court would have to decide whether the procedure laid down by such law for depriving a person of his personal liberty is reasonable, fair and just. Public Order— The true distinction between the areas of ‘public order’ and ‘law and order’ lies not in the nature or equality of the act, but in the degree and extent of its reach upon society. The distinction between the two concepts of ‘law and order’ and ‘public order’ is a fine one but this does not mean that there can be no overlapping. Acts similar in nature but committed in different contexts and circumstances might cause different reactions. In one case it might affect specific individuals only and therefore touch the problem of law and order, while in another it might affect public order. The act by itself therefore is not determinant of its own gravity. It is the potentiality of the act to disturb the even tempo of the life of the community, which makes it prejudicial to the maintenance of public order.[25]
In Malaysia the Internal Security Act 1960 or ISA (Malay: Akta Keselamatan Dalam Negeri) is a preventive detention law in force. The legislation was enacted after Malaysia gained independence from Britain in 1957. The ISA allows for detention without trial or criminal charges under limited, legally defined circumstances. The ISA is invoked against terrorism activity and against anyone deemed a threat to National security. On 15 September 2011, the Prime Minister of Malaysia, Najib Razak said that this legislation will be repealed and replaced by two new laws.[26] The ISA would only be repealed in March 2012.[27]
In New Zealand, "preventive detention" is an indeterminate life sentence, and is handed down to individuals convicted of violent and/or sexual crimes (such as sociopathic murderers, serial rapists or recidivist pedophiles) where it is likely that the offender will reoffend if released. Such individuals will only receive parole if they can demonstrate they no longer pose a threat to the community. In October 2010, a total of 269 prisoners in New Zealand were serving terms of preventive detention.
Preventive detention has a minimum non-parole period of five years in prison, but the sentencing judge can extend this if they believe that the prisoner's history warrants it. Prisoners on preventive detention are very rarely, if ever, released, and generally persons given the sentence are kept in prison for life. Currently only 16 of the 269 persons serving sentences of preventive detention are on parole.[28]
The longest non-parole period on a sentence of preventive detention is one of 26 years, being served by Graeme Burton, who killed two people and injured four others between 1992-2007.
Currently, New Zealand's longest serving inmate, Alfred Thomas Vincent, who became eligible for parole in 1975, is still serving a sentence of preventive detention after 43 years.[29]
England and Wales has provisions to deal with dangerous offenders similar to what is used in Canada.
In the United States, the Sixth Amendment to the United States Constitution guarantees the right to "a speedy and public trial". Thus, arrested persons may not be held for extended periods of time without trial.
In late June 2009, United States President Barack Obama was reported to have been considering indefinite preventive detention for some Guantanamo captives.[30][31][32]
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