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ARTÍCULO 9: SER LIBRE DE DETENCIÓN ARBITRARIA. Declaración Universal de Derechos Humanos

Este es uno de una serie de artículos publicados por la Oficina del Alto Comisionado para los Derechos Humanos (ONU-DH) para conmemorar el 70 aniversario de la adopción de la Declaración Universal de Derechos Humanos el 10 de diciembre de 1948. Todos los derechos consagrados en la DUDH están relacionados con entre sí, y todos son igualmente importantes.

Redacción / Revista GM5

editor.@gm5.com.mx

¿Puedes acabar entre rejas por ser poeta? En la Unión Soviética en 1964, sí. Joseph Brodsky, ahora considerado uno de los más grandes poetas rusos, fue llevado ante un tribunal en Leningrado, acusado de ser “un pseudo-poeta con pantalones de terciopelo” – y más concretamente, un aprovechado que no contribuía en nada a la sociedad. Sencillamente, los jueces soviéticos no veían el valor de la poesía. A pesar de no tener ninguna enfermedad mental, Brodsky fue enviado en dos ocasiones a prisiones psiquiátricas en las que fue torturado – uno de los miles que sufrió dicho destino en la Unión Soviética.
El abuso de la psiquiatría para mantener a raya a los disidentes es una de las violaciones contempladas en el artículo 9 de la Declaración Universal de Derechos Humanos (DUDH), que establece que nadie puede ingresar en prisión y permanecer ahí sin una buena razón. Esto se aplica no sólo para las prisiones, sino también para un número cada vez mayor de lugares donde se mantiene a personas sin un juicio justo o una sentencia fundamentada: centros de detención para personas solicitantes de asilo, centros migratorios y de tratamiento de adicciones.

El uso de la “psiquiatría política” – que define la oposición como una enfermedad y confina a los disidentes en hospitales psiquiátricos – desapareció temporalmente tras el colapso de la Unión Soviética en 1991. Sin embargo, un pequeño número de países han sido acusados de seguir abusando de la psiquiatría como medida de control sobre sus ciudadanos.

Ser libre de la detención arbitraria está estrechamente relacionado con otras secciones de la Declaración Universal de Derechos Humanos: el derecho a la vida del artículo 3, la prohibición de la tortura y otros tratos crueles, inhumanos o degradantes del artículo 5. A pesar de que la DUDH nunca usa el término habeas corpus (que en latín significa “tú tienes el cuerpo”), la prohibición de la detención arbitraria se remonta al antiguo derecho de cada preso de ser llevado ante un tribunal para poder determinar si había sido encarcelado ilegalmente y si debería ser puesto en libertad.

El derecho a la libertad personal bajo la DUDH no es ilimitado, pero la detención debe ser llevada a cabo de acuerdo con las leyes nacionales e internacionales. Las autoridades sólo deberían detener a personas siguiendo procedimientos transparentes y públicos. Para evitar ser clasificada como arbitraria, una detención debe ser apropiada, predecible, proporcionada, necesaria y basada en la justicia. Por tanto, los países pueden privar a las personas de la libertad – con ciertos límites – mientras esperan juicio, y tras ser condenados y sentenciados, entre otras situaciones.

La detención es considerada arbitraria si no hay un juicio justo o no hay una base legal para la misma, así como cuando una persona es mantenida bajo custodia tras cumplir su condena. Nadie debe ser encarcelado simplemente por ejercer ciertos derechos establecidos en la DUDH, como la libertad de expresión (artículo 9), la libertad de culto (artículo 18) o el derecho a solicitar asilo (artículo 14).

Estados Unidos ha sido acusado de detención arbitraria en su llamada “Guerra contra el terror”, particularmente en su prisión militar en la Bahía de Guantánamo en Cuba, y en otros lugares alrededor del mundo. Más recientemente, el Grupo de Trabajo de la ONU sobre la detención arbitraria instó a los EEUU a proteger los derechos de los jóvenes migrantes.

«El derecho a la libertad personal es fundamental y se extiende a todas las personas en todo momento y circunstancia, incluyendo a los migrantes y solicitantes de asilo, sin importar su ciudadanía, nacionalidad o estatus migratorio.» Grupo de Trabajo de la ONU sobre la detención arbitraria

Australia ha sido criticada repetidamente por detener de manera rutinaria a los solicitantes de asilo, incluyendo un hombre apátrida que permaneció preso durante nueve años sin cargo o juicio alguno. En 2018, el Grupo de Trabajo dio un paso extraordinario al instar a Australia a revisar sus leyes nacionales, y determinó que dicho país había violado un cierto número de leyes internacionales de derechos humanos. Un hombre iraní, dijo, ha permanecido detenido simplemente por ejercer su derecho a solicitar asilo.

La detención de migrantes no es el único caso preocupante. Por ejemplo, en 2013, en una visita a Hungría, el Grupo de Trabajo encontró un número excesivo de personas que llevaban detenidas un año o más antes de sus juicios por cargos penales. La detención preventiva, dijo, debe ser una excepción y no la regla.

Con el artículo 9, parte de una amplia sección de la DUDH (artículos 6 al 11) se dedica a los estándares para la administración de justicia. La Declaración Universal deja claro que la libertad de una persona no se evapora automáticamente al ser arrestada o condenada. La persona sigue teniendo derechos ante un tribunal o en prisión – y el derecho a que las autoridades que le arrestaron o encarcelaron respeten ciertas normas.

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