Aadel Collection
Report of the Working Group on Arbitrary Detention
UNITED
NATIONS
E
Economic and Social Distr.
GENERAL
Council
E/CN. 4/1995/31
21 December 1994
ENGLISH
Original: ENGLISH/FRENCH !
SPANISH
COMMISSION ON HUMAN RIGHTS
Fifty-first session
Item 10 of the provisional agenda
QUESTION OF THE HUMAN RIGHTS OF ALL PERSONS SUBJECTED
TO ANY FORM OF DETENTION OR IMPRISONMENT
Report of the Working Group on Arbitrary Detention
CONTENTS
Paragraphs Page
Introduction . . . . 1 -
I. ACTIVITIES OF THE WORKING GROUP . . . . 6 - 26
A. Communications with Governments
B. Urgent appeals
C. Field missions
D. Cooperation with the Commission on Human Rights
E. Cooperation with non-governmental organizations
II. DECISIONS ADOPTED BY THE WORKING GROUP AND
FOLLOW-UP THERETO . . . 27 - 37
A. General information regarding the decisions
adopted by the Working Group
B. Governments' reactions to decisions
C. Follow-up mechanism
III. CONCLUSIONS AND RECOMMENDATIONS .
A. General conclusions
B. Recommendations .
2
3
3
4
S
6
9
10
27 - 28 10
29 - 31 13
32 - 37 14
38 - 62 15
38 - 55 15
56 - 62 19
7 - 12
13 - 14
15 - 21
22 - 25
26
I. Revised methods of work .
II. Statistics
Jthnexes
21
24
GE.94-75129 (E)
E/CN. 4/1995/31
page 2
Introduction
1. At its forty-seventh session, the Commission on Human Rights adopted
resolution 1991/42, entitled “Question of arbitrary detention”, in which it
decided to create, for a three-year period, a working group composed of five
independent experts, with the task of investigating cases of detention imposed
arbitrarily or otherwise inconsistently with the relevant international
standards set forth in the Universal Declaration of Human Rights or in the
relevant international legal instruments adopted by the State concerned. The
Working Group presented its first, second and third reports (E/cN.4/1992/20,
E/CN.4/1993/24 and E/cN.4/1994/27 to the Commission at its forty-eighth,
forty-ninth and fiftieth sessions, respectively.
2. At its fiftieth session, the Commission adopted resolution 1994/32,
entitled “Question of arbitrary detention”, in which it decided to extend for
a three-year period the mandate of the Working Group. In the same resolution
the Commission also, inter alia , requested the Working Group to continue, in
discharging its mandate, 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; took
note of the “deliberations” adopted by the Working Group on issues of a
general nature with a view to achieving better prevention and to facilitating
the consideration of future cases as well as helping to further strengthen the
impartiality of its work; and requested the Working Group to submit a report
to the Commission, at its fifty-first session, and to make any suggestions and
recommendations which would enable it to discharge its task even better,
particularly in regard to ways and means of ensuring effective follow-up to
its decisions, in cooperation with Governments and to continue its
consultations to that end within the framework of its terms of reference.
3. In conformity with paragraph 19 of Commission resolution 1994/32, the
Working Group hereby presents its fourth report to the Commission.
4. Chapter I of the report describes the activities of the Working Group
since the submission of its third report to the Commission, including data on
the number of communications and cases transmitted by the Working Group to
Governments during 1994 and the number of replies received, data on urgent
appeals sent and the replies received thereto; contacts made by the Working
Group with certain Governments with a view to carrying out field missions and
the results of such contacts; the participation of the Group's Chairman in the
meeting of special rapporteurs held in Geneva from 30 May to 1 June 1994; and
the meeting with non-governmental organizations held on 28 September 1994.
Chapter II of the report describes the general framework in which the Working
Group adopted decisions on individual cases submitted to it and reactions by
several Governments to decisions adopted concerning their countries, as well
as the proposal made by the Working Group concerning a follow-up procedure to
its decisions, in conformity with the request made in Commission on Human
Rights resolution 1994/32, and Governments' reactions to that proposal.
Chapter III contains the Working Group's general conclusions and
recommendations.
E/cN. 4/1995/31
page 3
S. The present report also contains two annexes: annex I contains the
revised methods of work of the Working Group and annex II contains statistical
data regarding the number of cases dealt with by the Working Group during the
period covered by the present report and the breakdown of the types of
decisions adopted by the Working Group. Decisions adopted by the Working
Group during its 1994 spring session, as well as several decisions adopted by
the Working Group in previous sessions which, for technical reasons, were not
included in the Working Group's third report to the Commission, are contained
in document E/CN.4/1995/31/Add.1. The decisions adopted by the Working Group
in its 1994 autumn session are contained in document E/CN.4/1995/31/Add.2.
The reports prepared pursuant to the Working Group's missions to Bhutan and to
Viet Nam are contained in documents E/CN.4/1995/31/Add.3 and
E/CN.4/1995/31/Add.4, respectively.
I. ACTIVITIES OF THE WORKING GROUP
6. The activities described below refer to the period January to
December 1994, when the present report was finalized. During this period the
Working Group held three sessions in Geneva: its ninth, tenth and eleventh,
from 16 to 20 May, from 26 to 30 September and from 23 November to
2 December 1994, respectively.
A. Communications with Governments
7. During the period under consideration the Working Group transmitted
36 communications containing 293 newly reported individual cases of alleged
arbitrary detention (38 females and 255 males) to the following Governments
(the number of individuals concerned is given in parentheses) : Algeria (16);
Bangladesh (2); Benin (3); Brazil (13); China (89); Colombia (1); Cuba (4);
Ecuador (11) ; Guatemala (2) ; India (1) ; Indonesia (6) ; Iran (Islamic
Republic of) (1); Iraq (1); Israel (1); Mali (8); Mexico (1); Morocco (18);
Myanmar (4); Pakistan (3); Peru (25); Republic of Korea (13);
Saudi Arabia (5); South Africa (2); Sri Lanka (37); Tajikistan (3);
Tunisia (3); Turkey (4); Uzbekistan (11); and Zaire (5).
8. Out of the 29 Governments concerned, 16 provided the Working Group with
information regarding all, or some of the cases transmitted to them. They
were the Governments of: Algeria; Benin; China; Colombia; Cuba; Guatemala;
India; Indonesia; Iraq; Israel; Morocco; Myanmar; Pakistan; Peru; Tunisia and
Turkey.
9. The Governments of Brazil, the Islamic Republic of Iran, Mali, Mexico,
the Republic of Korea, South Africa and Tajikistan did not provide the Working
Group with any reply concerning the cases submitted to them in April 1994.
With regard to the other Governments mentioned in paragraph 7 above, the
90-day deadline set by the Working Group had not yet expired at the time the
present report was finalized.
10. In respect of communications transmitted prior to the period
January-December 1994, the Working Group received replies from the following
Governments: Bahrain; Colombia; Indonesia; Mexico; People's Democratic
Republic of Korea; Peru; Syrian Arab Republic; Tunisia; and Turkey.
E/CN. 4/1995/31
page 4
11. A description of the cases transmitted and the contents of the
Government's reply are contained in the relevant decisions adopted by the
Working Group (see addenda 1 and 2 to the present report)
12. As regards the sources which submitted information on cases of
alleged arbitrary detention to the Working Group, it may be noted that of
the 293 individual cases sent by the Working Group to Governments during the
period under consideration, 8 were based on information submitted by family
members or relatives of the detained persons, 69 were based on information
submitted by local or regional non-governmental organizations and 216 were
based on information provided by international non-governmental organizations
in consultative status with the Economic and Social Council.
B. Urgent appeals
13. During the period under consideration the Working Group transmitted
41 urgent appeals to 29 Governments. Six appeals were addressed to the
Government of Ethiopia (involving 26 persons) , four appeals were transmitted
to China (involving 7 persons) , two appeals were transmitted to each of the
following Governments: Egypt (2 persons), Nigeria (2), Turkey (7) and
Zaire (19), and one appeal was sent to each of the following Governments:
Brazil (1); Cameroon (1); Canada (1); Comores (4); Cuba (1);
Dominican Republic (2); Gabon (266); Ghana (1); Guatemala (2); Haiti (1);
Israel (1); Mauritania (1); Myanmar (6); Pakistan (2); Peru (4); Republic of
Korea (30); Saudi Arabia (2); Senegal (1) ; Sudan (6); Suriname (1) ; Syrian
Arab Republic (8) ; Tajikistan (1) ; and Viet Nam (1) . In conformity with
paragraph 11 (a) of its methods of work, the Working Group, without in any way
prejudging the final assessment of whether the detention was arbitrary or not,
drew the attention of the Government concerned to the specific case as
reported and appealed to it to take the necessary measures to ensure that the
detained persons' rights to life and to physical integrity were respected. In
some cases, in view of the particularly dangerous health condition in which
the detained persons were reported to be, or in view of other particular
circumstances, such as the existence of a court order to release the person,
the Working Group also appealed to the Government to consider releasing the
persons without delay.
14. The following Governments provided the Working Group with information on
the situation of some or all of the persons concerned: Brazil, China, Cuba,
Egypt, Ethiopia, Gabon, Ghana, Guatemala, Israel, Myanmar, Nigeria, Peru,
Republic of Korea, Saudi Arabia, Senegal, Turkey and Viet Nam. In some of the
cases, the Working Group was informed, either by the Government or by the
source, that the persons concerned were released from detention. Such
releases were reported in Brazil, Cameroon, China, Ethiopia, Mauritania, Peru,
the Syrian Arab Republic and Tajikistan. The Working Group wishes to thank
those Governments which heeded its appeal to provide it with information on
the situation of the persons concerned, and in particular those which released
such persons.
E/cN. 4/1995/31
page 5
C. Field missions
15. During the period under consideration the Working Group, represented by
its Chairman and by two of its members, carried out field missions to Bhutan
and to Viet Nam, at the invitation of the Governments concerned. The mission
to Bhutan is described in addendum 3 to this report. The mission to Viet Nam
is described in addendum 4 to this report. In carrying out the visits, the
Working Group's task was greatly facilitated by the United Nations Development
Programme (tJNDP) in Bhutan and in Viet Nam. Resident Coordinators
Mrs. A. Naito-Yuge (Bhutan) and Mr. R. Morey (Viet Nam), and their dedicated
staff, spared no effort in assisting the Working Group with logistical
support, good advice and encouragement.
16. In addition to the aforementioned, the Chairman of the Working Group
addressed a letter to the Government of the Russian Federation in connection
with the situation which was reported to prevail in labour camps situated in
the Russian Far East, operated by the authorities of the People's Democratic
Republic of Korea. The Working Group requested the Russian Federation's
cooperation with a view to carrying out a visit to these camps. To date, the
Russian Federation has not replied to the letter.
17. As regards the situation of Haitians held at the Guantmnamo Naval Base in
Cuba, it may be recalled that the Working Group, in the spring of 1993, had
requested the United States authorities to facilitate a visit to that base.
After having been informed that the Haitians involved were being brought to
the United States, following an order to that effect issued by a United States
district court judge, the Working Group decided to drop its request for a
visit (E/cN.4/1994/27, para. 15) . In 1994 the Working Group was informed that
many Haitians and Cubans were again being held at the GuantInamo Naval Base,
and the source has reiterated its suggestion that the Group carry out a visit
there. The Chairman of the Working Group addressed a letter to the
United States Government regarding the possibility of carrying out such a
visit. While no substantive reply has so far been received from the
United States Government, the source has in the meantime informed the Working
Group that, due to the recent events in Haiti, it considered that the Working
Group's intervention was no longer necessary. The Working Group was still
seeking information with regard to the situation of Cubans held at the
GuantInamo Naval Base as well as those transferred to camps in Panama.
18. Contacts which began in the course of 1993 with the Chinese authorities
with a view to receiving an invitation to visit the country (see
E/CN.4/1994/27, para. 50), have so far not yielded any concrete results.
19. In connection with its consideration of the case of Xanana Gusmao, the
Working Group, recalling Commission on Human Rights resolution 1993/97 which
urged, inter alia , the Government of Indonesia to invite thematic special
rapporteurs and working groups, including the Working Group on Arbitrary
Detention, to visit East Timor, requested the Government of Indonesia to
permit such a visit by the Working Group in order to enable it to ascertain
the facts, in cooperation with the Government, for the purpose of better
understanding certain contentious issues involved in the case of
E/CN. 4/1995/31
page 6
Xanana Gusmao. The decision was adopted by the Working Group at its
tenth session, in September 1994, and transmitted to the Government of
Indonesia in November 1994 (see E/CN.4/1995/31/Add.2, Interim
Decision 34/1994)
20. By letter dated 24 November 1994, addressed to the Chairman of the
Working Group, the Indonesian Government reacted to the request for invitation
by stating the following:
“With regard to the invitation by the Government of the Republic of
Indonesia to the Rapporteur on Extrajudicial, Summary or Arbitrary
Executions, I would like to convey to you that the invitation was
extended on the basis of the consensus Chairman's Statement of the
fiftieth session of the Commission on Human Rights rather than of
resolution 1993/97 of the forty-ninth session of the Commission which was
adopted with a vote in which 12 members voted against and 15 members
abstained. Therefore, Indonesia was not bound by that resolution, which
was not achieved by consensus and went against the will of a substantial
number of sovereign countries.
“The consensus Chairman's Statement also mentioned ‘the intention
of the Government of Indonesia to continue to cooperate with other
relevant thematic special rapporteurs and/or working groups, and to
invite them to visit East Timor when necessary for the fulfilment of
their duties' . In the endeavours to fulfil this commitment, the
Government of Indonesia has not only demonstrated its willingness to
always cooperate with all of the United Nations human rights machineries
to promote and protect all human rights as well as the human rights
situation in East Timor, but also to give careful and genuine
consideration to inviting relevant thematic special rapporteurs and/or
working groups to visit East Timor province, Indonesia”.
21. The Working Group considers the above as an encouraging sign on the part
of the Indonesian Government, and will continue its efforts to obtain an
invitation for a visit in situ .
D. Cooperation with the Commission on Human Rights
1. Coordination with thematic or country special
rapporteurs and working groups
22. This year the Working Group wishes to place special emphasis on
coordination issues related to in situ visits, on the basis of the following
guidelines:
(a) As a rule, thematic special rapporteurs and working groups should
not make visits to countries for which a special rapporteur or other similar
mechanism has been designated, other than at the request, or at any rate with
the consent, of the latter;
(b) In other cases, as soon as a rapporteur or group plans to approach
a particular Government with a view to a possible on-the-spot visit, it should
be able to contact a specially designated representative of the Centre for
E/cN. 4/1995/31
page 7
Human Rights in order to ensure coordination. This person should also be
informed of the visits of the High Commissioner for Human Rights, so that
contact can be established with the High Commissioner's office before the
rapporteur or group concerned goes to a country that the High Commissioner has
already visited. Such an initiative would make it possible, in particular, to
circumvent the following difficulty: in one case, the Working Group on
Arbitrary Detention, which had been conducting consultations for nearly eight
months with a view to a visit, happened to learn that two special rapporteurs
were also engaged in discussions for that purpose. Such a fragmented approach
will tempt a Government either to take advantage of the fact by playing on the
contradictions that always exist as to method or to relinquish any initiative
on the ground that it is the subject of harassment or the victim of
selectivity.
23. The Working Group would like these proposals to be discussed and acted
upon at the next meeting of special rapporteurs and chairmen of working
groups. The Working Group is also reflecting on the problems posed by the
follow-up to in situ visits, or at any rate some of them. On this point, too,
it would like to draw on the experience of other thematic mechanisms at the
next meeting of special rapporteurs and chairmen of working groups.
2. Coordination with the Commission on Human Rights
24. This report, as was done for the first time in 1993, gives an account of
the follow-up to Commission on Human Rights resolutions addressing
recommendations to the Group.
25. These resolutions prompt the following comments:
(a) Resolution 1994/33 concerning the right to freedom of opinion and
expression . The Commission expressed its concern at the number of cases of
arbitrary detention ordered following the exercise of the right to freedom of
opinion and expression as noted in the Group's third report. This tendency
remains extremely disturbing: of the decisions adopted, 16 concerning
33 persons declared the detention to be arbitrary for reasons either wholly
(30 persons) or partly (3 persons) related to violation of the freedom of
opinion or expression. The Secretariat has made a start on establishing
coordination between the Working Group and the Special Rapporteur on the
promotion and protection of the right to freedom of opinion and expression;
(b) Resolution 1994/42 concerning staff members of the United Nations
and of the specialized agencies in detention . In May 1994, the Chairman of
the Working Group sent a letter to the Association for the Security and
Independence of International Civil Servants expressing the Group's interest
in being informed, and possibly seized, of cases of international civil
servants in detention. At its eleventh session, in November-December 1994,
the Group received the Vice-President of the Association, who informed it of
the situation of international civil servants, and in particular of local
recruits reportedly detained in a number of countries. The Group decided to
give priority to studying those situations, particularly cases submitted to
it, inter alia , by resorting to the urgent action procedure;
E/CN. 4/1995/31
page 8
(c) Resolution 1994/45 concerning the integration of the rights of
women into human rights mechanisms . This report, like last year's report to
the Commission, shows (annex II - Statistics) the number of cases of arbitrary
detention involving women that were dealt with by the Group. In accordance
with the Commission's wishes, initial contact was established, again at the
Secretariat level, between the Working Group and the recently appointed
Special Rapporteur on violence against women with a view to establishing
effective cooperation;
(d) Resolution 1994/46 concerning human rights and terrorism . This
resolution calls upon States to take all necessary and effective measures, in
conformity with international standards of human rights, to prevent, combat
and eliminate terrorism and urges thematic (. . . ) working groups to address the
consequences of terrorist acts, methods and practices in their forthcoming
reports to the Commission. The Working Group feels bound to draw the
Commission's attention to the complexity of the matter in the light of the
Group's mandate. First, the practice of hostage taking or imprisonment in
so-called “peoples' prisons” carried out by movements using violence for
political ends, results in deprivation of liberty. Such deprivation has
per se no legal basis as it does not owe its genesis to either law or decree
and its legal consequences, if any, are totally different from those resulting
from arbitrary detentions carried out by States. It is de facto deprivation
of liberty and nothing more. As it already indicated in its previous report
to the Commission on Human Rights (E/CN.4/1994/27, paras. 40-41), the Working
Group believes that deprivation of liberty of individuals by terrorist groups
does not fall within its mandate. Furthermore, the Working Group notes with
concern frequent attempts by Governments to use normal legislation or to have
recourse to emergency or special laws and procedures to combat terrorism and
thereby permit, or at least increase, the risk of arbitrary detention. Such
laws, either per se or in their application, by using an extremely vague and
broad definition of terrorism, bring within their fold the innocent and the
suspect alike and thereby increase the risk of arbitrary detention,
disproportionately reducing the level of guarantees enjoyed by ordinary
persons in normal circumstances. Legitimate democratic opposition, as
distinct from violent opposition, becomes a victim in the application of such
laws;
(e) Resolution 1994/69 concerning advisory services and the Voluntary
Fund for Technical Cooperation in the Field of Human Rights . The Commission
invited the Working Group to continue to include in its recommendations,
whenever appropriate, proposals for specific projects to be realized under the
programme of advisory services. In the opinion of the Working Group, this
matter is far more closely related to possible recommendations following
in situ visits, as was the case for the first time this year, than to
recommendations made pursuant to decisions on communications taken by the
Group in individual cases. Bearing in mind this first experience in situ , the
Working Group considers it essential to establish a minimum of coordination
between multilateral and bilateral cooperation in this field. For instance,
on the occasion of one of its visits, the Group discovered after the event
that there were a number of bilateral assistance and legal cooperation
E/cN. 4/1995/31
page 9
agreements with various countries on subjects which the Group was planning to
entrust to the attention of the Centre for Human Rights. This aspect of
coordination might usefully be included in the agenda of the next meeting of
special rapporteurs and chairmen of working groups;
(f) Resolution 1994/70 concerning cooperation with representatives of
United Nations human rights bodies . The Commission requested the Working
Group to continue to take urgent steps to help prevent the hampering of access
to United Nations human rights procedures in any way or the occurrence of
intimidation and reprisals, and also to give an account in its reports of any
allegations received in this respect and action taken thereon. During the
past year, the Group has not been apprised of any cases of intimidation or
reprisals against individuals who had been in contact with it. However, it
decided to consider this matter in greater detail at its next session, notably
in connection with a case in respect of which it did not have sufficient
information to be able to report to the Commission.
(g) Resolution 1994/71 concerning the situation of human rights in
Cuba . The Commission recommended that the Working Group should continue to
give attention to the situation in Cuba and, if appropriate, consider visiting
Cuba, and also that it should cooperate fully and exchange information and
findings with the Special Rapporteur on the situation in that country. On the
latter point, the Group transmitted the decisions taken regarding that country
to the Special Rapporteur, in accordance with the Commission's wish. On the
other hand, it has no plans to visit Cuba, since the human rights situation in
that country is already the subject of numerous and extensive monitoring
measures by the international community, particularly the appointment of a
special rapporteur (see para. 22)
E. Cooperation with non-governmental organizations
26. It may be recalled that the Working Group, in its third report to the
Commission (E/CN.4/1994/27, para. 20), informed the Commission of its decision
to convene, in 1994, a meeting with the non-governmental organizations which
have been providing it with most of the individual cases, as well as general
information, in order to discuss ways to enhance the cooperation with the
Working Group and, in particular, to examine how to improve the reliability of
information communicated to the Group, on the one hand, and how NGOs could
assist the Working Group in carrying out the task of taking up cases on its
own initiative, in conformity with Commission resolution 1993/36, on the
other. The meeting was held on 28 September 1994, during the Working Group's
tenth session. The non-governmental organizations that participated were the
following: Amnesty International, International PEN, International Federation
for Human Rights (FIDH) , the American Association of Jurists and the
International Commission of Jurists. Several NGOs that were invited by the
Working Group to attend the meeting regretted that, for practical reasons,
they were not able to participate. They included Article XIX, Reporters sans
Frontières, International Human Rights Law Group and Human Rights Watch. The
major points raised during the course of the debate were the improvement of
communications between the Working Group and the sources; the question of how
the Working Group should deal with short-term detentions when the person
concerned had been released at the time of the submission of the case to the
Working Group; the possibility of examination by the Working Group of domestic
E/CN. 4/1995/31
page 10
law in order to determine its conformity with international standards with
respect to arbitrary detention; the need to ensure a follow-up once a decision
had been rendered by the Working Group; and the question of improved publicity
for the Working Group's activities and decisions.
II. DECISIONS ADOPTED BY THE WORKING GROUP
AND THE FOLLOW-UP THERETO
A. General information regarding the decisions
adopted by the Working Group
27. At its ninth session, from 16 to 20 May 1994, the Working Group
adopted 9 decisions (Decisions 1/1994 to 9/1994) , concerning 22 persons
in 9 countries. At its tenth session, from 26 to 30 September 1994, the
Working Group adopted 25 decisions (Decisions 10/1994 to 33/1994, and
Interim Decision 34/1994), concerning 51 persons in 13 countries. At its
eleventh session, from 28 November to 2 December 1994, the Working Group
adopted 14 decisions (Decisions 35/1994 to 48/1994) , concerning 39 persons
in 7 countries. Some details concerning the decisions adopted during 1994 are
given in the table below. The complete texts of Decisions 1/1994 to Interim
Decision 34/1994 are reproduced in addenda 1 and 2 to the present report.
Decisions 35/1994 to 48/1994 will be reproduced in the next compilation of the
Working Group's decisions, to be published at a later date.
Decisions adopted during 1994 by the Working group
on Arbitrary Detention
Decision
No.
Country
Govt's
reply
Person(s)
concerned
Decision
1/1994 Syrian Arab Yes Mustafa Khalifa Arbitrary,
Republic Category III
2/1994 Uzbekistan No Pulat Akhunov Arbitrary,
Category II
3/1994 Morocco Yes Ahmed Belaichi Arbitrary,
Category II
4/1994 Zaire No Kalala Mbenga Arbitrary,
Kalao and Category II
Chimanuka
Ntagaya-Ngabo
5/1994 Guinea-Bissau No Fô Na Nsofa and Arbitrary,
4 others Category II
6/1994 Bahrain Yes Sayed al Alawi Released-case
filed
7/1994 Viet Nam No Doan Viet Hoat Arbitrary,
and 6 others Category II
E/cN. 4/1995/31
page 11
Decision
No.
Country
Govt's
reply
Person(s)
concerned
Decision
8/1994 Mexico Yes G. R. Ortega Released-cases
Zurita and J.C. filed
Reyes Potenciano
9/1994 Croatia Yes Nenad Miskovic Released-case
filed
10/1994 Tunisia Yes Abderrahmane Released-case
El Hani filed
11/1994 Tunisia Yes Moncef Marzouk Arbitrary,
Category II
12/1994 Tunisia Yes Ahmed Khalaoui Not Arbitrary
13/1994 Myanmar Yes Ma Thida and 3 Arbitrary,
others Category II
14/1994 Mali No Lamine Diabira Arbitrary,
and 7 others Category III
15/1994 South Africa No Nathaniel Arbitrary,
Ngakantsi and Categories II
Johannes Setlae and III
16/1994 Israel Yes Sha'ban Rateb Arbitrary,
Jabarin Category III
17/1994 Peru Yes R.D. Briceflo Released-case
Arias filed
18/1994 Peru Yes E. Laguna Released-case
Villafranco filed
19/1994 Brazil No F. de Asis Pinto Pending for
de Nascimento and further
11 others information
20/1994 Mexico No J.F. Gallardo Pending for
Rodriguez further
information
21/1994 Peru No J. Rondinel Cano Arbitrary,
Category III
22/1994 Peru No L.A. Cantoral Arbitrary,
Benavides Category III
23/1994 Peru No C. Gutierrez Arbitrary,
Quispe and 3 Category III
others
24/1994 Peru No C.F. Molero Coca Peding for
further
information
E/CN. 4/1995/31
page 12
Decision
No.
Country
Govt's
reply
Person(s)
concerned
Decision
25/1994 Peru No L.E. Quinto Facho Pending for
further
information
26/1994 Colombia Yes F.E. Santana Arbitrary,
Mejia and 3 Category III
others
27/1994 Tajikistan No Mir Baba Mir Arbitrary,
Rahim and 2 Category II
others
28/1994 Islamic Rep. No Manouchehr Arbitrary,
of Iran Karimzadeh Category II
29/1994 Rep. of Korea No Lee Khun-hee and Arbitrary,
Choi-Chin-Sup Category II
30/1994 Rep. of Korea Yes Hwang Suk-Yong Arbitrary,
Category II
31/1994 Indonesia No Nuka Soleiman Arbitrary,
Categories II
and III
32/1994 Indonesia No Cheppy Sudrajat Arbitrary,
Category II
33/1994 Tunisia Yes Tawfik Rajhi Released-case
filed
INTERIM Indonesia Yes Xanana Gusmao Pending
34/ 1994
35/1994 Algeria Yes Brahim Taouti Not arbitrary
36/1994 Benin Yes Basile Hundjo and Not arbitrary
2 others
37/1994 Turkey Yes Edip Polat Arbitrary,
Category II
38/1994 Turkey Yes Soner Onder Arbitrary,
Category III
39/1994 Morocco Yes Ali Hrach Erras Released-cases
and 2 others filed
40/1994 Morocco Yes Jthderrahim Chaib Released-cases
and 13 others filed
41/1994 Peru No L.R. Huaman Pending for
Morales and 3 further
others information
E/cN. 4/1995/31
page 13
Decision
No.
Country
Govt's
reply
Person(s)
concerned
Decision
42/1994
Peru
No
T. Cahuaya Flores
Pending for
further
information
43/1994
Peru
Yes
A.P. Carrillo
Jthtayhua
Pending for
further
information
44/1994
Peru
No
A.R. Chaves and S
others
Pending for
further
information
45/1994
Peru
No
C.M. Mochcco
Mufloz
Pending for
futher
information
46/1994
Cuba
Yes
D. Torres Roca
Arbitrary,
Category II
47/1994
Cuba
Yes
P. de la Guardia
Font
Arbitrary,
Category III
48/1994
Bhutan
Yes
Tek Nath Rizal
Not arbitrary
28. In keeping with its view, as expressed in its revised methods of work
(E/cN.4/1994/27, annex I, para. 2), that the investigation of cases
transmitted to it should be of an adversarial nature, the Working Group
transmitted the decisions, as adopted, to the Governments concerned, drawing
their attention to resolution 1994/32, in which the Commission, inter alia ,
called upon “Governments concerned to pay due heed to the Working Group's
decisions and, where necessary, to take appropriate steps and inform the
Working Group, within a reasonable period of time, of the follow-up to the
Group's recommendations so that it can report thereon to the Commission”. In
the same spirit, the Working Group also transmitted the decisions to the
sources from which the original communications were received, three weeks
after the transmittal of the decisions to the Governments concerned. To that
end, the Working Group further amended its methods of work to reflect the
transmittal of decisions also to the sources (see annex I, para. 14 (e)
B. Governments' reactions to decisions
29. During the period under consideration the Working Group received
information from a certain number of Governments pursuant to the transmittal
of decisions adopted by the Working Group with regard to cases reported to
have occurred in their countries. The following Governments provided the
Working Group with such information (the decision to which the information
refers is given in parentheses) : Cuba (12/1993) , Ethiopia (45/1992, 23/1993
and 33/1993), Indonesia (16/1993, 31/1994, 32/1994, and Interim Decision
34/1994; see also para. 19 above), Iran (Islamic Republic of) (28/1994),
Kuwait (59/1993), Morocco (3/1994), Niger (39/1993) , Peru (42/1993),
E/CN. 4/1995/31
page 14
Philippines (4/1993), Sudan (45/1993), Syrian Arab Republic (10/1993, 11/1993
and 54/1993) and Viet Nam (7/1994)
30. In some of the cases the Governments informed the Working Group that the
person or persons concerned by the decision had been released. This was the
case of Ethiopia (with regard to Yohannes Gurmessa, Decision 23/1993 and
Yahehirad Kitaw, Decision 33/1993); the Islamic Republic of Iran
(Manouchehr Karimzadeh, Decision 28/1994) ; Morocco (Ahmed Belaichi,
Decision 3/1994); Niger (Mohamed Moussa, Akoli Daouel, Moktar el Incha,
Alhassane Dogo, Elias el Mahadi, Alhadji Kame and Rabdouane Mohamed, Decision
39/1993); Peru (Miguel Fernando Ruiz Conejo MIrquez, Decision 42/1993); the
Philippines (Jesus Salvino, Noe Andalan, Romeo Angot and Gilbert Arsenal (who
had escaped from jail and whose whereabouts are unknown) , Decision 4/1993)
and Viet Nam (Pham Cong Canh, Pham Kim Thanh, Nguyen Quoc Minh and Huynh Xay,
Decision 7/1994) . The release of four persons detained in the Syrian Arab
Republic: Jihad Khazem, Ibrahim Habib, Najib Atalayga (Decision 54/1993) and
Mustafa Khalifa (Decision 1/1994) , and of one person detained in Uzbekistan,
Pulat Akhunov (Decision 2/1994), was brought to the notice of the Working
Group by the source, and not by the Governments.
31. As it already noted in its previous report to the Commission on Human
Rights (E/CN.4/1994/27, para. 29 (a)), the Working Group considers that the
release of persons whose detention was declared by it to be arbitrary should
be seen as a step in the direction recommended by the Group, i.e. bringing the
situation into conformity with the norms and principles incorporated in the
relevant international instruments. The Working Group again wishes to express
its thanks to the above-mentioned Governments and to encourage other
Governments concerned to take similar measures.
C. Follow-up mechanism
32. It may be recalled that in its previous report to the Commission
(E/cN.4/1994/27, para. 39 (b)) the Working Group, responding to the concern
expressed by the Commission in resolutions 1993/36 and 1993/47 about the
follow-up by Governments to the recommendations contained in the decisions of
the Working Group, informed the Commission that it would engage in appropriate
consultations so as to be able to suggest to the Commission at its next
session a follow-up mechanism for its decisions.
33. In its resolution 1994/32, by which it extended the Working Group's
mandate for a three-year period, the Commission specifically requested the
Working Group to make any suggestions and recommendations which would enable
it to discharge its task even better, particularly in regard to ways and means
of ensuring effective follow-up to its decisions, in cooperation with
Governments, and to continue its consultations to that end within the
framework of its terms of reference (para. 19) . In pursuance of that request,
the Chairman of the Working Group on 3 August 1994, addressed a letter to all
Governments proposing a mechanism for a follow-up of its decisions (see
para. 56 (c) below). The Working Group requested Governments to provide their
comments or observations on the proposal by 31 October 1994, so that they
could be taken into account in the present report.
E/cN. 4/1995/31
page 15
34. To date only 13 Governments have provided the Working Group with their
pertinent observations. They are the following: Angola, Argentina, Bahrain,
Egypt, Mauritius, Morocco, Netherlands, Norway, Qatar, Syrian Arab Republic,
Turkey, Venezuela and Viet Nam. The Government of Trinidad and Tobago
acknowledged receipt of the letter.
35. The Governments of Argentina, Bahrain, Mauritius, Morocco, the
Netherlands and Norway expressed support for the proposal. The Governments of
Bahrain and the Netherlands, however, deemed that the three-month deadline for
Governments to inform the Working Group of the steps taken by them in
follow-up of the Group's recommendation was too short. Bahrain proposed that
it be extended to six months. Mauritius proposed the nomination of a “special
assessor” within the Working Group, who would be responsible for assessing the
situation of a particular country, including whether there was a genuine need
for the proclamation of a “state of emergency” allowing derogations from
certain fundamental rights. He or she could be authorized by the Commission
to visit any particular country for that purpose.
36. The Governments of Turkey and Venezuela felt that the follow-up proposal
created some difficulties regarding the mandate and terms of reference of the
Working Group and the Commission on Human Rights. Venezuela felt that the
proposal could give rise to decisions being adopted by the Commission which
would be of a political and, therefore, of a discriminatory nature. The
Government of Viet Nam held that the establishment of any such mechanism
should be subject to the consent of all Governments. Since this was a new
proposal, more time should be allowed for Governments to study it carefully
before they provided their final observations and comments. The Government of
Egypt affirmed that the best way to guarantee the success of the Group's work
within the framework of its terms of reference and to ensure the optimum
response to its decisions and recommendations would be to strengthen, continue
and develop its dialogue and cooperation with Governments instead of seeking
to impose counter-productive measures against them. The Government of the
Syrian Arab Republic felt that the Working Group's proposal fell outside the
scope of the Group's mandate and comprised an unacceptable ultimatum.
37. The proposal adopted by the Working Group and transmitted to the Chairman
of the Commission is contained in paragraph 56 (c) below.
III. CONCLUSIONS AND RECOMMENDATIONS
A. General conclusions
38. In its resolution 1994/32, the Commission noted with concern that the
practice of arbitrary detention is facilitated and aggravated by several
factors such as abuse of states of emergency, exercise of the powers specific
to states of emergency without a formal declaration, non-observance of the
principle of proportionality between the gravity of the measures taken and the
situation concerned, too vague a definition of offences against State
security, and the existence of special or emergency jurisdictions (para. 14)
E/CN. 4/1995/31
page 16
39. Such concerns had already been expressed by the Group in its previous
reports (E/CN.4/1993/24 and E/cN.4/1994/27). On the basis of the experience
gained during its four years of existence, the Group can affirm that the main
causes of arbitrary deprivation of liberty are those mentioned in the previous
paragraph.
40. The Group notes that cases of arbitrary detention are not exclusive to
repressive regimes - although there they are certainly more numerous and
unjust, entail harsher conditions, afford fewer possibilities of obtaining
release and carry a higher risk of being subjected to torture or enforced
disappearance - but also occur under democratic regimes, especially in
connection with the procedures for the admission or expulsion of aliens.
41. The Working Group therefore accords the greatest importance to all
initiatives aimed at strengthening the rule of law, re-enforcing the
independence of the judiciary and professionalizing the police, particularly
in their knowledge of covenants, declarations and conventions, the Standard
Minimum Rules for the Treatment of Prisoners, the Code of Conduct for Law
Enforcement Officials and the Body of Principles for the Protection of All
Persons under Any Form of Detention or Imprisonment.
42. The advisory services of the Centre for Human Rights should attach
special importance to these matters. Pursuant to the Commission's decision in
paragraph 2 of its resolution 1994/69, the Working Group offers the
cooperation of its members in elaborating, devising and preparing materials
and implementing programmes of this kind.
43. Eighteen of the cases dealt with resulted from the existence of a state
of emergency that had been officially declared, or at any rate invoked by the
Government to vindicate its powers to detain individuals. According to the
Special Rapporteur of the Sub-Commission on Prevention of Discrimination and
Protection of Minorities, a state of emergency was in force in 32 countries in
December 1994 (as against 29 countries in 1993) , to which should be added - as
indicated in the 1993 report - that some countries exercise powers specific to
states of emergency without a formal declaration.
44. The Working Group once again expresses its concern over the existence in
many countries of special, ideologically inspired courts, operating under
various designations. During 1994 the Group continued to receive
communications reporting arrests justified in terms of decisions taken by
courts of this kind, such as “people's courts”, “revolutionary courts”,
“Council of War”, “Supreme Court of the Armed Forces”, “Supreme Court of State
Security”, as well as, more generally, detentions ordered by military courts
which, while they do not appear to be formally prohibited by the Universal
Declaration of Human Rights or by the International Covenant on Civil and
Political Rights, often fail to meet the “independent and impartial”
requirement laid down in article 14 of the Covenant.
45. The Universal Declaration of Human Rights states that “Everyone has the
right to an effective remedy by the competent national tribunals for acts
violating the fundamental rights granted him by the constitution or by law”
(art. 8) , while the International Covenant on Civil and Political Rights
provides that “Jthyone who is deprived of his liberty by arrest or detention
shall be entitled to take proceedings before a court, in order that that court
may decide without delay on the lawfulness of his detention and order his
release if the detention is not lawful” (art. 9 (4)) . This is the remedy or
E/cN. 4/1995/31
page 17
action of habeas corpus. Unfortunately it does not exist in all countries,
thereby depriving citizens of a powerful means of defence against arbitrary
detention, or at least a way of promptly remedying injury caused by unlawful
or unjust imprisonment. The remedy of habeas corpus, characterized by its
non-official character, urgency and ex officio action by the judge, is the
best remedy against this kind of human rights violation. The Group reiterates
its interest in the preparation of a declaration on the subject by the
Sub-Commission on Prevention of Discrimination and Protection of Minorities,
particularly regarding the non-derogable nature of habeas corpus as an
inherent human right.
46. In 1994, the Group received complaints concerning 293 persons who,
according to the sources, were arbitrarily detained (in 1993, 181 persons)
During 1994, the Group adopted 48 decisions regarding the situation
of 112 detained persons.
47. The Group is concerned by the failure of Governments to respond to its
requests for information. Out of the 293 individual cases transmitted, it
received information from Governments regarding 90 persons, or approximately
31 per cent of the total. The Group also regrets that, in many cases,
Governments limit their replies to providing general information or merely
affirming the non-existence of arbitrary detention in the country or
referring to the constitutional measures preventing it from occurring, without
making any direct reference to the case transmitted.
48. The sources that provided the Group with the most information were the
international non-governmental organizations (74 per cent) . National
non-governmental organizations made submissions to the Group in only
23 per cent of cases, while families did so in 3 per cent of cases. While
such intercession means that the Group is informed of the detention with quite
some delay, which prevents it from taking more expeditious action, it may be
noted that the quality of the information provided has improved.
49. In any event, and with a view to making the Group, its mandate and its
working methods more familiar and helping families and national
non-governmental organizations, the Group, under the Human Rights Fact Sheet
publications service of the Centre for Human Rights, is preparing a Fact Sheet
on arbitrary detention, which is due to appear next year.
50. The Working Group wishes to remind the Commission of the cases of
individuals who have been declared to be unlawfully detained and who have been
arbitrarily deprived of their freedom for many years (E/CN.4/1994/27,
para. 62) . The Group has received no information regarding their release.
51. The Working Group wishes to reiterate its concern at the imprecision with
which legislation in many countries describes the conduct charged. The
examples given in earlier reports were again noted in the year covered by this
report (acts described by the Governments concerned as “treason”, “acts
hostile to a foreign State”, “enemy propaganda”, “terrorism”, etc.).
During 1994, the Group observed that there are criminal classifications under
which it is not even clear whether the perpetrator of an “attack on State
security” used violence or merely manifested an opinion. In this connection,
the Group believes that consideration should be given to the possibility of
suggesting that the competent body (the forthcoming Ninth United Nations
Congress on the Prevention of Crime and the Treatment of Offenders) should
make recommendations to ensure that criminal classifications established by
E/CN. 4/1995/31
page 18
national law are in conformity with the general principles guaranteeing that
the right to the principle of restrictiveness or lawfulness is not arbitrarily
disregarded as described.
52. In 1994, the Group conducted its first two in situ missions. Their
results reinforced the Group's opinion concerning the usefulness of such
missions for the performance of its mandate. The Working Group is the only
universal international mechanism which can make visits to places of detention
in order to concern itself not only with conditions of detention (a matter
related to the mandate of the International Committee of the Red Cross) , but
also the legal status of prisoners (date and circumstances of arrest,
officials involved, prisoner's appearance in court, notification of charges,
remedies available to challenge detention, etc.) . This interest even
surprised prison officers and public servants in general in the countries
visited, who apparently expected or were prepared to show the Group sanitary
facilities, food, etc.
53. By reason of its mandate of “investigating cases of detention imposed
arbitrarily”, it was not possible for the Group to have an overall view of the
situation regarding deprivation of liberty in a particular country and to make
recommendations which it deemed relevant. The visits it conducted enabled it
to verify the lawfulness of detentions not only on a case-by-case basis but
also from a general standpoint, in relation both to normative aspects and to
practical implementation. For this purpose, interviews with prisoners, on the
one hand, and judges and police officers, on the other, were enormously
important. Had time permitted - and, for future missions, consideration will
be given to this possibility - it would also have been interesting to consult
case files or attend hearings.
54. The visits afford the Governments concerned a splendid opportunity to
demonstrate both respect for the rights of prisoners and progress made in this
area.
55. The Group notes that, in some countries, the law provides for the
possibility of individuals being tried by anonymous, or so-called “faceless”,
judges. This situation is especially disturbing and may serve to reduce the
population's confidence in judges. The Working Group, conscious of the fact
that the existence of such courts may seriously affect, inter alia , the right
to personal freedom which is the object of its mandate, but at the same time
understanding the need to ensure the life and physical integrity of judges and
their families, hopes that this issue can be discussed with the
Special Rapporteur on the Independence of the Judiciary at the next meeting of
special rapporteurs and chairmen of working groups.
B. Recommendations
56. The Working Group reiterates the recommendations made in its previous
reports, which remain fully applicable. Without prejudice to this fact, the
Group addresses the following recommendations to the Commission on Human
Rights:
(a) The Commission should consider the possibility of converting the
mandate of the Special Rapporteur of the Sub-Commission on Prevention of
Discrimination and Protection of Minorities on the question of states of
emergency and respect for human rights into a mandate of the Commission;
E/cN. 4/1995/31
page 19
(b) The Commission should urge the continuation of the annual meetings
of special rapporteurs and chairmen of working groups, whose usefulness was
demonstrated both at the World Conference on Human Rights held in Vienna
in 1993 and at the first meeting held in May 1994, as provided for by the
Commission in paragraph 13 of its resolution 1994/53;
(c) The Commission, when adopting the resolution on the question of
arbitrary detention, should approve the procedure for following up decisions
declaring a case of detention to be arbitrary. As already explained, the
Group, in compliance with the request made in paragraph 19 of
resolution 1994/32, drew up a proposal for follow-up on which Governments were
consulted. Bearing in mind the Government replies, the Group acknowledged the
point made by the Governments of Bahrain and the Netherlands that the proposed
deadline for replying to the Group might be regarded as short by some
Governments, and therefore modified its original proposal. Consequently, the
procedure for following up the Group's decisions which is proposed to the
Commission is as follows:
“The Working Group suggests that a Government which has been the subject
of a Working Group decision deeming a detention to be arbitrary should be
requested to inform the Working Group, within four months from the date
of transmittal of the decision, of the measures adopted in compliance
with the Group's recommendations. For the time being, it is suggested
that this procedure should be applied only in cases in which the prisoner
has not been released. Should the Government fail to abide by the
Group's recommendations, the Group might proceed to recommend to the
Commission on Human Rights that it should request that Government to
report to the Commission on the matter, in accordance with the modalities
deemed most appropriate by the Commission.
57. The Group also asks the Commission to make the following requests to
Governments:
(a) Long-standing detainees (see para. 50) whose detention has been
deemed arbitrary by the Group should be released, not only in compliance with
the recommendation made by the Group in its decisions but also for
humanitarian reasons;
(b) Governments which have been maintaining states of emergency in
force for many years should lift them, limit their effects or review the
custodial measures that affect many persons, and in particular should apply
the principle of proportionality rigorously.
58. The Group recommends that the Commission should request the
Sub-Commission on Prevention of Discrimination and Protection of Minorities to
consider the possibility of initiating a study on the preparation of a
declaration or protocol concerning the subject of habeas corpus as a human
right and guarantee of the right to personal freedom, as well as respect for
its non-derogability.
59. In the Working Group's opinion, the Commission might request the next
meeting of special rapporteurs and chairmen of working groups to study the
most appropriate coordination mechanisms for increasing the efficiency of its
work and reports and programming in situ visits.
E/CN. 4/1995/31
page 20
60. In the Group's view, the Commission might suggest that the competent
organ (Ninth United Nations Congress on the Prevention of Crime and the
Treatment of Offenders) should study declarations or recommendations designed
to ensure that internal national legislation, in describing conduct warranting
penal sanctions, should be of a rigour consistent with the requirements of
contemporary criminal science regarding the categorization of offences.
61. The Group suggests that the Commission should request the
Special Rapporteur on the independence and impartiality of the judiciary,
jurors and assessors and the independence of lawyers to study the possible
impact of the existence of anonymous judges on the independence of the
judiciary.
62. In the Group's view the Commission might ask the Centre for Human Rights
to study the possibility of including the matters referred to in paragraphs 41
and 42 in advisory services programmes.
E/cN. 4/1995/31
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Jthnex 1
REVISED METHODS OF WORK
1. The methods of work are largely based on those applied, in the light
of 11 years' experience, by the Working Group on Enforced or Involuntary
Disappearances, with due regard for the specific features of the terms of
reference of the Working Group on Arbitrary Detention under Commission on
Human Rights resolution 1991/42, whereby it has the duty of informing the
Commission by means of a comprehensive report (para. 5), and also of
“investigating cases” (para. 2)
2. The Group takes the view that such investigation should be of an
adversarial nature so as to assist it in obtaining the cooperation of the
State concerned by the case considered.
3. In the opinion of the Working Group, situations of arbitrary detention,
in the sense of paragraph 2 of resolution 1991/42, are those described in
accordance with the principles set out in annex I of document E/CN.4/1992/20.
4. In the light of resolution 1991/42, the Working Group shall deem
admissible communications received from the concerned individuals
themselves or their families. Such communications may also be transmitted to
the Working Group by representatives of the above-mentioned individuals as
well as by Governments and intergovernmental and non-governmental
organizations.
5. The communications must be submitted in writing and addressed to the
secretariat giving the family name, first name and address of the sender, and
(optionally) his telephone, telex and telefax numbers.
6. As far as possible, each case shall form the subject of a specific
presentation indicating family name, first name and any other information
making it possible to identify the person detained and all elements clarifying
the legal status of the person concerned, particularly:
(a) The date and place of the arrest or detention and the forces
presumed to have carried them out, together with all other information
shedding light on the circumstances in which the person was arrested or
detained;
(b) The reasons given by the authorities for the arrest or detention or
the offences;
(c) The relevant legislation applied to the case in point;
(d) The internal steps taken, including domestic remedies,
especially approaches to the administrative and legal authorities,
particularly for verification of the detention and, as appropriate, their
results or the reasons why such steps were ineffective or were not taken; and
(e) A short account of the reasons why the deprivation of liberty
is regarded as arbitrary.
7. In order to facilitate the Group's work, it is hoped that communications
will be submitted taking into account the model questionnaire.
E/CN. 4/1995/31
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8. Failure to comply with all formalities set forth in paragraphs 6 and 7
shall not directly or indirectly result in the inadmissibility of the
communication.
9. The cases notified shall be brought to the attention of the Government
concerned by the Chairman of the Group or, if he is not available, by the
Vice-Chairman, by means of a letter transmitted through the Permanent
Representative to the United Nations asking the Government to reply after
having carried out the appropriate inquiries so as to provide the Group with
the fullest possible information.
10. The communication shall be transmitted with an indication of the deadline
established for receipt of a reply. The deadline may not exceed 90 days. If
the reply has not been received by the time the deadline is reached, the
Working Group may, on the basis of all data compiled, take a decision.
11. The procedure known as “urgent action” may be resorted to:
(a) In cases in which there are sufficiently reliable allegations that
a person is being detained arbitrarily and that the continuation of the
detention constitutes a serious danger to that person's health or even life.
In such cases, between the sessions of the Working Group, the Working Group
authorizes its Chairman or, in his absence, the Vice-Chairman, to transmit the
communication by the most rapid means to the Minister for Foreign Affairs of
the country concerned, stating that this urgent action in no way prejudges the
Working Group's final assessment of whether the detention is arbitrary or not;
(b) In other cases, where the detention may not constitute a danger to
a person's health or life, but where the particular circumstances of the
situation warrant urgent action. In such cases, between the sessions of the
Working Group, the Chairman or the Vice-Chairman, in consultation with
two other members of the Working Group, may also decide to transmit the
communication by the most rapid means to the Minister for Foreign Affairs of
the country concerned.
However, during sessions, it devolves on the Working Group to take a decision
whether to resort to the urgent action procedure.
12. Between the sessions of the Working Group, the Chairman may, either
personally or by delegating any of the members of the Group, request an
interview with the Permanent Representative to the United Nations of the
country in question in order to facilitate mutual cooperation.
13. Any information supplied by the Government concerned on specific
cases shall be transmitted to the sources from which the communications were
received, with a request for comments on the subject or additional
information.
14. In the light of the information examined during its investigation, the
Working Group shall take one of the following decisions:
(a) If the person has been released, for whatever reason, since the
Working Group took up the case, the case is filed; nevertheless, the
Working Group reserves the right to decide, on a case-by-case basis, whether
or not the deprivation of liberty was arbitrary, notwithstanding the release
of the person concerned;
E/cN. 4/1995/31
page 23
(b) If the Working Group determines that it is established that the
case is not one of arbitrary detention, the case is also filed;
(c) If the Working Group decides that it does not have enough
information to take a decision, the case remains pending for further
information;
(d) If the Working Group decides that it does not have enough
information to keep the case pending, the case may be filed without further
action;
(e) If the Working Group decides that the arbitrary nature of the
detention is established, it shall make recommendations to the Government
concerned. The decisions and recommendations shall also be transmitted three
weeks after their transmittal to the Government to the source from which the
case was originally received, and be brought to the attention of the
Commission on Human Rights in the annual report of the Working Group to the
Commission.
15. When the case under consideration concerns a country of which one of
the members of the Working Group is a national, that member shall not, in
principle, participate in the discussion because of the possibility of a
conflict of interest.
16. The Working Group will not deal with situations of international
armed conflict in so far as they are covered by the Geneva Conventions
of 12 August 1949 and their Additional Protocols, particularly when the
International Committee of the Red Cross (ICRC) has competence.
17. In accordance with the provisions of paragraph 4 of resolution 1993/36,
the Working Group may, on its own initiative, take up cases which, in the
opinion of any one of its members, might constitute arbitrary detention.
If the Group is in session, the decision to communicate the case to the
Government concerned shall be taken at that session. Outside the session, the
Chairman, or in his absence the Vice-Chairman, may decide on transmittal of
the case to the Government, provided at least three members of the Group so
agree. When acting on its own initiative, the Working Group shall give
preferential consideration to the thematic or geographical subjects to which
the Commission on Human Rights has requested it to pay special attention.
18. The Working Group shall also communicate any decision it adopts to the
Commission on Human Rights, whether thematic or country-oriented, or to the
body set up by the appropriate treaty for the purpose of proper coordination
between all organs of the system.
E/CN. 4/1995/31
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Annex II
STATISTICS
(Covering the period from January to December 1994. The figures given in
parentheses are the corresponding figures from last year's report.)
I. CASES OF DETENTION IN WHICH THE WORKING GROUP ADOPTED A DECISION
REGARDING THEIR ARBITRARY OR NOT ARBITRARY CHARACTER
A. Cases of detention declared arbitrary
Female Male Total
1. Cases of detention declared arbitrary
falling within category I --(1) --(5) --(6)
2. Cases of detention declared arbitrary
falling within category II (including
one case of a person who was released) 1(10) 29(107) 30(117)
3. Cases of detention declared arbitrary
falling within category III (including
one case of a person who was released) - - 19(81) 19(81)
4. Cases of detention declared arbitrary
falling within categories II and III --(2) 3(24) 3(26)
Total number of cases of detention
declared arbitrary 1(13) 51(217) 52(230)
B. Cases of detention declared not arbitrary
Female Male Total
- - 6(1) 6(1)
E/cN. 4/1995/31
page 25
II. CASES WHICH THE WORKING GROUP DECIDED TO FILE
Female Male Total
Cases filed because of the person's
release, in which the Working Group
deemed there were no special
circumstances requiring it to
consider the character of the
detention 1(7) 24(31) 25(38)
III. CASES PENDING
A. Cases which the Working Group decided
to keep pending for further information 4(--) 25(5) 29(5)
B. Cases transmitted to Governments on
which the Working Group has not yet
taken any decision 38(9) 177 (45) 215 (59)
Total number of cases dealt with by
the Working Group during the period
January to December 1994 45(32) 334(307) 379(339)
