Article 9 – Prohibition of arbitrary detention

What does this right mean?

No one may be arbitrarily arrested, taken prisoner or exiled from their own country. The word ‘arbitrarily’ means that a government may never arrest, detain or exile anyone just like that, except in certain situations, such as being suspected of a crime. Thus, for what someone has done, but never for who someone is.

A man who takes away another man's freedom is a prisoner of hatred, he is locked behind the bars of prejudice and narrow mindedness.

What is the history of this right?

Under the Nazi regime during the Second World War, many laws were so vague that the police and the judiciary could give their own interpretations to the meanings of these laws. This made it unclear what exactly was or was not allowed. The law was also intentionally used against certain groups. Large groups of people were persecuted for who they were and what they said. People could be arrested just like that without any protection from arbitrary action. This intentional terror made for much uncertainty and fear. It went against the ancient starting point that no one may just be locked up without an independent judge looking into whether or not this is allowed.

While formulating Article 9, the word ‘arbitrary’ was chosen because this word clearly shows the goal of the article: preventing your arrest, captivity or exile for no valid reason.

The drafters of the UDHR believed people had to be protected from arbitrary action and terror. An honest legal system is required for that. This is why Article 6 up to and including 11 of the UDHR each protect a specific part of an honest legal system.

Where and how is this right documented?

In the Netherlands, you may only be arrested and prosecuted if you are suspected of a criminal act. An act is only criminal if it has been determined to be so by law. And you may only be a suspect the moment someone, such as a police officer, has a good reason to believe you committed something criminal. And if you are held captive, an independent judge will always look whether or not this is justified. This way, the law protects everyone from arbitrary arrest and prosecution.

Article 9 of the Universal Declaration has later been documented in human-rights treaties. In a European context, Article 5 of the European Convention on Human Rights applies: the right to freedom. It states that no one's liberty may be taken from them just like that and that there always has to be a decision by a judge to imprison someone. On top of that, it may only be done if it is arranged clearly in the law. This right is also documented at a global level, in Article 9 of the International Covenant on Civil and Political Rights.

How topical is this human right?

Arrests and imprisonments always lead to discussions. One good example of this are the arrests of climate activists. The climate activists were arrested after they had called for a protest. In 2023, The Netherlands Institute for Human Rights expressed its concerns about this. According to the Institute, arrest was too serious of an action to prevent the protest,  and the arrest could therefore not be justified. Many activists have sued over this.