Akha Culture

Working Group on Arbitrary Detention

"No one shall be subjected to arbitrary arrest, detention or exile."

(Article 9, the Universal Declaration of Human Rights)

Contents

I. Introduction

II. Membership and mandate of the Working Group

III. Criteria adopted by the Working Group to determine whether a deprivation of liberty is arbitrary

IV. Procedures followed by the Working Group

A. The procedure involving investigation of individual cases

B. The Working Group's "deliberations"

C. The urgent action procedure

D. Field missions

V. Coordination with United Nations Human Rights bodies

VI. Practical information

VII.Model questionnaire

I. Introduction

The United Nations Commission on Human Rights has addressed the disturbing expansion of the practice of administrative detention without charge or trial since 1985.1/ In 1990, it requested the Sub-Commission on Prevention of Discrimination and Protection of Minorities to undertake a thorough study of the matter and submit to it a report including recommendations for the reduction of such practices.

At the same time, concern about the guarantees to be enjoyed by all persons deprived of their liberty was concretized in 1988 in the adoption by the United Nations General Assembly of the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (see annex I).

In 1991, in pursuance of the recommendations made in the above-mentioned report of the Sub-Commission 2/ the Commission on Human Rights set up the Working Group on Arbitrary Detention.

II. Membership and mandate of the Working Group

The Working Group is composed of five independent experts appointed following consultations by the Chairman of the Commission on Human Rights in the light of the criteria on equitable geographical distribution which apply in the United Nations.

The Group holds three sessions per year, each lasting between five and eight working days.

The Commission on Human Rights has entrusted the Working Group with the following mandate (resolution 1997/50):

(a) To seek and gather information from Governments and intergovernmental and non-governmental organizations, as well as from the individuals concerned, their families or their legal representatives;

(b) To re-examine its methods of work, in particular those relating to the admissibility of communications received, to the "urgent appeals" procedure and to the deadlines set for Governments to reply to requests concerning individual cases, and, in the application of the 90-day deadline for replies, to show flexibility as appropriate by granting an extension of this deadline where necessary without, however, prejudging its final conclusions, and to report regularly to the Commission, in its annual report, on these matters;

(c) To carry out its task with discretion, objectivity, impartiality and independence, within the framework of its mandate, and the independent experts to continue to perform their task with rigour, having regard to the very specific nature of their mandate, and to respond effectively to credible and reliable information that comes before them;

(d) To take gender-specificity into account in its reports, including by giving particular attention to the situation of women subjected to arbitrary deprivation of liberty;

The mandate also stipulates that the Working Group must carry out its task with discretion, objectivity and independence. Against this background the Group has adopted the rule that when the case under consideration concerns a country of which one of the members of the Group is a national, that member shall not participate in the discussion.

III. Criteria adopted by the Working Group to determine whether a deprivation of liberty is arbitrary

The question of when a deprivation of freedom is or becomes arbitrary is not clearly answered by the international instruments. The Universal Declaration of Human Rights merely provides in article 9 that "No one shall be subjected to arbitrary arrest, detention or exile". Article 9 (1) of the International Covenant on Civil and Political Rights is scarcely any clearer: "Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law."

To enable it to carry out its tasks on the basis of precise standards, the Working Group has adopted criteria for the consideration of cases submitted to it, drawing on the above-mentioned provisions of the Universal Declaration and the Covenant as well as on the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment. According to these criteria, detention is considered arbitrary if a case falls into one, or more, of the following three categories:

1. Cases in which the deprivation of freedom is arbitrary as it manifestly cannot be linked to any legal basis (such as continued detention beyond the execution of the sentence or despite an amnesty act, etc.);

2. Cases of deprivation of freedom when the facts giving rise to the prosecution or conviction concern the exercise of certain fundamental freedoms which are protected by the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR) (for States Parties), and in particular:

* freedom of thought, conscience and religion (art. 18 of the UDHR and art. 18 of the ICCPR);

* freedom of opinion and expression (art. 19 of the UDHR and art. 19 of the ICCPR);

* the right of peaceful assembly and association (art. 20 of the UDHR and arts. 21 and 22 of the ICCPR);

3. Cases in which non-observance of all or part of the international provisions relating to the right to a fair trial is such that it confers on the deprivation of freedom, of whatever kind, an arbitrary character.

In cases other than those falling within one or more of the three categories specified above, the Working Group is not competent to declare whether a deprivation of freedom is arbitrary. In too many cases the Group receives communications requesting it to declare a detention "unfair", or to take a view on the value of evidence produced during a trial. These are areas which fall outside the Group's remit. It is not for the Group to convert itself into a kind of Supreme Court.

IV. Procedures followed by the Working Group

A. The procedure involving investigation of individual cases

This procedure comprises the following four stages:

Stage 1: Bringing the matter to the attention of the Working Group

The Working Group's involvement in a case is generally triggered by communications sent to it either by Governments and intergovernmental or non-governmental organizations or by the individuals directly concerned, their families or their representatives. The Working Group has prepared a model questionnaire to facilitate the task of those submitting communications, who are referred to as "sources". The questionnaire, which appears in annex III, is not obligatory. Failure to use it to submit cases to the Working Group does not result in the inadmissibility of the communication.

It should be noted that since 1993 the Commission on Human Rights has authorized the Working Group to take up cases on its own initiative when its attention is drawn to allegations of arbitrary detention resulting, for example, from a crisis situation which de facto or de jure entails the application of emergency measures (See resolution 1993/36 of 5 March 1993)

Stage 2: Offering the Government an opportunity to refute the allegations

The Working Group attaches great importance to the adversarial nature of its procedure. Consequently, communications are forwarded to the Government concerned through diplomatic channels, with an invitation to communicate to the Working Group, preferably within 90 days, its comments and observations on the allegations made, both as regards the facts and the applicable legislation and concerning the progress and outcome of any investigations that may have been ordered.

If the Government has not communicated its response within the deadline, granted to it, the Working Group may take a position on the case on the basis of the information available. However, at the request of the State concerned, the Group may exceptionally agree to grant an additional period of time, particularly when, for lack of sufficient resources, the Government's administrative machinery is not yet in a position to respond speedily to the many requests it may receive.

The Working Group, whose terms of reference require it to discharge its duties with discretion, does not reveal the identity of the source to the Government to which it forwards the communication.

Stage 3: Offering the source an opportunity to make comments on the Government's response

Any reply sent by the Government to the Working Group is transmitted to the source for any further comments or observations.

Stage 4: The Working Group's opinions

In the light of the information collected under this adversarial procedure, the Working Group considers the matter in private session and renders one of the following opinions:

(a) If the person has been released, for whatever reason, since the Working Group took up the case, the Group decides in principle to file the case; nevertheless, it reserves the right to decide whether or not the detention was arbitrary, notwithstanding the release of the person concerned, when, for example, the circumstances surrounding the detention raise a matter of principle or are of a particularly serious nature.

(b) If the Working Group determines that the case is not one of arbitrary detention, it renders an opinion to this effect.

(c) If the Working Group deems it necessary to obtain additional information from the Government or the source, it may decide to keep the case pending while the additional information is awaited.

(d) If the Working Group considers that it is not in a position to obtain sufficient information on the case, it decides to file it.

(e) If the Working Group deems that the arbitrary nature of the detention is established, it declares the detention arbitrary by reference to one or more of the three categories mentioned above, and makes recommendations to the Government concerned.

The opinion is sent to the Government, together with the recommendations. Three weeks after this notification, the opinion is also conveyed to the source for information.

Opinions are published in an annex to the report presented by the Working Group to the Commission on Human Rights at each of its annual sessions.

Very exceptionally, and at the request of the source or the Government concerned, the Group may review its opinions on becoming acquainted with facts which, firstly, are entirely new to the Group and, if they had been known to the Group, would have been likely to modify its opinion and, secondly, which were not known or were not accessible to the party from which the request originated. If it is a Government who makes the request, it must have complied with the deadline granted to it for the Working Group to consider reviewing its opinion.

B. The Working Group's "deliberations"

The Working Group may also be prompted to adopt a position of principle, referred to as "deliberations", on matters of a general nature in order to develop a consistent set of precedents and assist States, for purposes of prevention, to guard against the practice of arbitrary detention. The Group has already adopted various such "deliberations", specifically on the questions of house arrest and deprivation of freedom for purposes of rehabilitation through labour; by means of these "deliberations" it defines the criteria on the basis of which deprivation of freedom linked with such situations may become arbitrary.

C. The urgent action procedure

The Working Group on Arbitrary Detention has developed an "urgent action" procedure for cases in which there are sufficiently reliable allegations that a person is being detained arbitrarily and that the continuation of the detention may constitute a serious danger to that person's health or life. The urgent action procedure may also be resorted to in other circumstances, when the Working Group deems that the situation warrants such an appeal (such as failure to release a person despite a court order to that effect). In such cases, an urgent appeal is sent, by cable or facsimile, to the Minister for Foreign Affairs of the State concerned, requesting the Government to take appropriate measures to ensure that the detained person's right to life and to physical and mental integrity are respected. In addressing such communications, the Working Group states that such urgent appeals in no way prejudge the Working Group's final assessment of whether the detention is arbitrary or not. When the state of health of the detained person appears to give grounds for particular concern, or in other appropriate circumstances the Working Group may also appeal to the Government to consider releasing that person without delay.

D. Field missions

Visits to countries constitute an opportunity for the Governments concerned to provide a better explanation of their views on the situation prevailing in their countries. Discussions conducted during such visits with the judicial and penitentiary authorities and with other officials concerned, as well as with detainees or former detainees, enable the Working Group members to enhance their understanding of the state and the evolution of the national legislation from the perspective of international human rights norms, taking into account the social, political and historical context in each country. This is why the Commission on Human Rights has encouraged Governments to invite the Working Group to their countries so as to enable the Group to discharge its mandate even more effectively. Such visits take place on the basis of an invitation from the Government concerned. In principle, the Working Group does not visit countries for which the Commission on Human Rights has appointed a Special Rapporteur (or a similar mechanism), unless the Special Rapporteur requests or agrees that it should do so.

V. Coordination with United Nations Human Rights bodies

The development of the human rights machinery for protection, either through international treaty-based bodies or through non-treaty-based made it necessary to lay down rules for coordination in order to prevent duplication in the consideration of cases. This coordination involves the observance of the principle non bis in idem, under which two bodies may not simultaneously consider a single case involving the same persons, subject-matter and cause of action.

In order to avoid such duplication, as soon as a case is brought before the Group, the secretariat checks whether it does indeed fall under the Group's mandate.

When the alleged violation fundamentally has to do with the lawfulness of detention and when the case has also been brought before another body, the Working Group, with the backing of the Commission on Human Rights, has opted for the following solution:

- If the other body before which the case has been brought does not deal with individual cases, but with the evolution of the human rights situation in a specific thematic or geographical area, the rule non bis in idem does not apply. The Working Group takes up the case and notifies its action to the person responsible for the body already dealing with the same case in order to permit exchanges of information which the Group may, if appropriate, take into account in reaching a decision.

- If, on the other hand, the body is one which deals with individual cases (in practice this means only the Human Rights Committee and its Optional Protocol, the principal non bis in idem does apply. The secretariat checks whether the communication involves a country which has recognized the competence of the Human Rights Committee to consider individual complaints; if it is the case, the secretariat contacts the source which would have to choose between the Human Rights Committee and the Working Group.

VI. Practical information

1. How should a case be brought before the Working Group on Arbitrary Detention?

- For an individual case or cases, the communication should be sent, if possible by using the model questionnaire prepared for this purpose, to:

Working Group on Arbitrary Detention

c/o OHCHR-UNOG

1211 Geneva 10

Switzerland

- Communications requesting the Working Group to launch an urgent appeal on humanitarian grounds should be sent to the above address or, preferably, by facsimile to No. (41-22) 917.90.06, by electronic mail to: webadmin.hchr@unog.ch

2. How to get hold of basic documents?

For model questionnaires to facilitate placing cases before the Working Group and copies of decisions on individual cases, write to the Working Group at the above address.

For the annual report of the Working Group on Arbitrary Detention, write to:

Documents Distribution Service

Counter, Door 40

Palais des Nations

8-14, avenue de la Paix

1211 Geneva 10

Switzerland

------------------------------------------------------------------------

VII. Model questionnaire to be completed by persons alleging arbitrary arrest or detention (a)

I. Identity of the person arrested or detained

1. Family name: ............................................................................................................................................

2. First name: ................................................................................................................................................

3. Sex: (Male) (Female)

4. Birth date or age (at the time of detention): ..................................................................................................

5. Nationality/Nationalities: ............................................................................................................................

6. (a) Identity document (if any): ....................................................................................................................

(b) Issued by: ...........................................................................................................................................

(c) On (date): ..........................................................................................................................................

(d) No.: ..................................................................................................................................................

7. Profession and/or activity (if believed to be relevant to the arrest/detention):

.............................................................................................................................................................

8. Address of usual residence: .....................................................................................................................

................................................................................................................................................................

II. Arrest(b)

1. Date of arrest: ....................................................................................................................................

2. Place of arrest (as detailed as possible):

.......................................................................................................................................................

........................................................................................................................................................

3. Forces who carried out the arrest or are believed to have carried it out:

........................................................................................................................................................

4. Did they show a warrant or other decision by a public authority?

(Yes) (No)

5. Authority who issued the warrant or decision: ...................................................................................

........................................................................................................................................................

6. Relevant legislation applied (if known): ...........................................................................................

.......................................................................................................................................................

........................................................................................................................................................

.........................................................................................................................................................

III. Detention(c)

1. Date of detention: .................................................................................................................................

2. Duration of detention (if not known, probable duration): .........................................................................

3. Forces holding the detainee under custody: ...........................................................................................

............................................................................................................................................................

4. Places of detention (indicate any transfer and present place of detention):

............................................................................................................................................................

5. Authorities that ordered the detention: ..................................................................................................

............................................................................................................................................................

6. Reasons for the detention imputed by the authorities: ............................................................................

............................................................................................................................................................

7. Relevant legislation applied (if known): ....................................................................................................

............................................................................................................................................................

IV. Describe the circumstances of the arrest and/or the detention and indicate precise reasons why you consider the arrest or detention to be arbitrary (c)

............................................................................................................................................................

V. Indicate internal steps, including domestic remedies, taken especially with the legal and administrative authorities, particularly for the purpose of establishing the detention and, as appropriate, their results or the reasons why such steps or remedies were ineffective or why they were not taken

............................................................................................................................................................

VI. Full name and address of the person(s) submitting the information (telephone and fax number, if possible) (d)

............................................................................................................................................................

Date: ................................................ Signature: .......................................

This questionnaire should be addressed to the Working Group on Arbitrary Detention, OHCHR-UNOG, 1211 Geneva 10, Switzerland, fax No. (41-22) 917.90.06.

a/ A separate questionnaire must be completed for each case of alleged arbitrary arrest or detention. As far as possible, all details requested should be given. Nevertheless, failure to do so will not necessarily result in the inadmissibility of the communication.

b/ For the purpose of this questionnaire, "arrest" refers to the initial act of apprehending a person. "Detention" means and includes detention before, during and after trial. In some cases, only section II, or section III may be applicable. None the less, whenever possible, both sections should be filled in.

c/ Copies of documents that prove the arbitrary nature of the arrest or detention, or help to better understand the specific circumstances of the case, as well as any other relevant information, may also be attached to this questionnaire.

d/ If a case is submitted to the Working Group by anyone other than the victim or his family, such person or organization should indicate authorization by the victim or his family to act on their behalf. If, however, the authorization is not readily available, the Working Group reserves the right to proceed without the authorization. All details concerning the persons(s) submitting the information to the Working Group, and any authorization provided by the victim or his family, will be kept confidential.