Aadel Collection
Report of the Working Group on Arbitrary Detention
UNITED
NATIONS
E
Economic and Social Distr.
GENERAL
Council
E / CN. 4 /1996/4 0
15 December 1995
ENGLISH
Original: ENGLISH/FRENCH/
COMMISSION ON HUMAN RIGHTS
Fifty-second session
Item 8 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
Introduction
I. ACTIVITIES OF THE WORKING GROUP
A. Communications with Governments
B. Urgent appeals
C. Field missions
D. Cooperation with the Commission on
Human Rights
E. Cooperation with other United Nations
bodies
F. Cooperation with non-governmental
organi zations
Paragraphs Page
1- 5 3
6 - 71 4
8 - 15 4
16 - 19 5
20 - 42 6
43 - 69 10
70 14
71 15
GE.95-14844 (E)
E/CN. 4/1996/40
page 2
CONTENTS ( continued )
Paragraphs
Page
I. Revised methods of work.
II. Statistics
31
II.
DECISIONS ADOPTED BY THE WORKING GROUP AND
FOLLOW-UP THERETO
72 - 81
15
A. General information regarding the decisions
adopted by the Working Group
B. Governments' reactions to decisions . . .
.
III.
OBSERVATIONS OF THE WORKING GROUP
IV.
CONCLUSIONS AND RECOMMENDATIONS
A. General conclusions
B. Recommendations
124
30
72
75
82
106
106
- 74
- 81
- 105
- 124
- 123
15
20
21
26
26
Jthnexes
35
E/cN. 4/1996/40
page 3
Introduction
1. The Working Group on Arbitrary Detention was established by the
Commission on Human Rights at its forty-seventh session, in 1991, by
resolution 1991/42. The Working Group's initial three-year mandate was
extended by the Commission in 1994 for a further three years. Under the terms
of resolution 1991/42 the Commission decided to create 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 legal instruments adopted by the States concerned. The
Working Group consists of the following five independent experts:
Mr. L. Joinet (France) - Chairman-Rapporteur; Mr. R. Garretôn (Chile) -
Vice-Chairman; Mr. L. Kama (Senegal) ; Mr. K. Sibal (India) and Mr. P. Uhl
(Slovakia) . The Group has so far submitted four reports to the Commission,
covering the period 1992-1995 (docs. E/cN.4/1992/20, E/CN.4/1993/24,
E/CN.4/1994/27 and E/cN.4/1995/31 and Add.1-4, respectively).
2. At its fifty-first session, the Commission on Human Rights adopted
resolution 1995/59, entitled “Question of arbitrary detention”, in which it
requested the Working Group to submit a report to the Commission, at its
fifty-second session, and to make any suggestions and recommendations which
would enable it to discharge its task in the best possible way, 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 18 of resolution 1995/59, the Working Group
hereby presents its fifth report to the Commission.
4. Chapter I of the report describes the activities of the Working Group
since the submission of its fourth report to the Commission, including data on
the number of communications and cases transmitted by the Working Group to
Governments during 1995 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
contacts made by the Working Group with other United Nations bodies, other
human rights mechanisms and non-governmental organizations. Chapter II
describes the general framework in which the Working Group adopted decisions
on individual cases submitted to it, a table containing data on the decisions
adopted by the Working Group during 1995 and the reactions of some Governments
to decisions adopted concerning them. Chapter III contains the Working
Group's observations regarding some criticisms made of it at the most recent
session of the Commission on Human Rights, while Chapter IV contains the
Working Group's general conclusions and recommendations.
5. The present report also contains two annexes: annex I, which, taking
account of experience acquired, describes the revised methods of work of the
Working Group, and annex II, which 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
E/CN. 4/1996/40
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Working Group. The decisions adopted by the Working Group at its
November 1994 session and its May 1995 session, as well as 13 of the decisions
which it adopted at its September 1995 session, are contained in document
E/CN. 4/1996/40/Add. 1.
I. ACTIVITIES OF THE WORKING GROUP
6. The present report, at the time of drafting, describes activities in the
period from January to December 1995. During that period the Working Group
held its twelfth, thirteenth and fourteenth sessions.
7. The Working Group wishes to point out that, in a spirit of cooperation
with the Secretariat, which is facing budgetary difficulties, it agreed that
two days (29 and 30 May) initially assigned to its May 1995 session should be
transferred to the meeting of the special rapporteurs and chairpersons of
working groups of the Commission.
A. Communications with Governments
8. During the period under consideration, the Working Group
transmitted 37 communications containing 829 new cases of alleged arbitrary
detention (17 women and 812 men) concerning the following countries (the
number of individuals concerned is given in parentheses) : Azerbaijan (2)
Bahrain (534), Canada (1), China (63), Colombia (9), Cuba (4), Democratic
People's Republic of Korea (2) , Egypt (12) , Ethiopia (1) , Indonesia (13) , Iran
(Islamic Republic of) (2), Israel (6), Libyan Arab Jamahiriya (1)
Maldives (2), Morocco (5), Nepal (1), Nigeria (26), Pakistan (6), Peru (10),
Republic of Korea (3), Saudi Arabia (10), Sudan (19), Tunisia (4),
Turkey (11) , Viet Nam (2) and Zaire (6) , as well as the Palestinian
Authority (6)
9. In addition to these communications, the Working Group transmitted a
communication to the Government of Rwanda concerning the massive detentions
reported in that country.
10. Out of the 28 Governments concerned, 14 provided the Working Group with
information regarding all or some of the cases transmitted to them. They were
the Governments of the following countries: Azerbaijan, Bahrain, Canada,
Colombia, Cuba, Democratic People's Republic of Korea, Ethiopia, Indonesia,
Nepal, Peru, Republic of Korea, Saudi Arabia, Sudan and Viet Nam.
11. The Governments of Egypt, the Islamic Republic of Iran, Israel, the
Libyan Arab Jamahiriya, Maldives, Pakistan, Rwanda, Turkey and Zaire, and the
Palestinian Authority, did not provide the Working Group with any reply
concerning the cases submitted to them during the period February-July 1995.
With regard to the other Governments (cf. para. 7 above) , the 90-day deadline
laid down in the Working Group's methods of work had not yet expired at the
time the present report was finalized.
12. In respect of communications transmitted prior to the period
January-December 1995, the Working Group received replies from the Governments
of Mexico, Peru and Sri Lanka.
E/cN. 4/1996/40
page 5
13. A description of the cases transmitted and the contents of the
Governments' replies are contained in the relevant decisions adopted by the
Working Group (see E/cN.4/1996/40/Add.1).
14. As regards the sources which reported alleged cases of arbitrary
detention to the Working Group, it may be noted that of the 829 individual
cases sent by the Working Group to Governments during the period under
consideration, 11 were based on information submitted by family members or
relatives of the detained persons, 694 were based on information submitted by
local or regional non-governmental organizations and 124 were based on
information provided by international non-governmental organizations in
consultative status with the Economic and Social Council.
15. In one case, that of Rwanda, the Working Group had recourse to its power
to take up cases on its own initiative, as it was authorized to do by the
Commission on Human Rights in resolution 1993/36 (para. 4), by requesting the
Special Rapporteur on the situation of human rights in Rwanda to provide it
with information on the question of detention in that country (see para. 9
above and para. 119 below)
B. Urgent appeals
16. During the period under consideration the Working Group
transmitted 62 urgent appeals to 38 Governments (the number of persons
concerned by these appeals is given between parentheses) . Five appeals were
addressed to the Government of China (10) ; four appeals were transmitted to
the Governments of Myanmar (19) and Nigeria (16) ; three appeals were
transmitted to the Governments of Bahrain (4) , Bangladesh (15) , Turkey (7)
and Viet Nam (4); two appeals were sent to the Governments of Bhutan (2),
Cuba (8) , Ethiopia (4) Pakistan (2) , the Syrian Arab Republic (3) and
Tunisia (2) , and one appeal was sent to the Governments of Albania (1)
Azerbaijan (2), Colombia (4), Costa Rica (7), Croatia (1), Ecuador (1),
Guatemala (1) , Honduras (many cases of minors detained with adults)
India (1), Kazakstan (1), Kenya (6), Kuwait (34), Lao People's Democratic
Republic (1), Maldives (3), Morocco (8), Nepal (11), Panama (12), Peru (1),
Republic of Korea (1) , Russian Federation (1) , Rwanda (1) , Sudan (3)
Thailand (1) , United Kingdom of Great Britain and Northern Ireland (1) and
Venezuela (7)
17. In addition to the communications mentioned above, the Working Group
addressed urgent appeals jointly with other thematic and/or country special
rapporteurs to the following Governments: Israel (concerning the situation of
260 persons detained in southern Lebanon) , Turkey (concerning the situation of
civilians in the north of Iraq) and Sudan (concerning demonstrations which
were reportedly followed by numerous arrests)
18. In conformity with paragraph 11 (a) of its revised methods of work
(see annex I), the Working Group, without in any way prejudging the final
assessment of whether the detention was arbitrary or not, drew the attention
of each of the Governments 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 critical state of health in which the detained persons
E/CN. 4/1996/40
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were reported to be, or in view of other particular circumstances, such as the
failure to execute a court order for the release of a detained person, the
Working Group also appealed to the Government concerned to consider releasing
the persons without delay.
19. The following Governments provided the Working Group with information on
the situation of some or all of the persons concerned: Bahrain, Bhutan,
China, Cuba, Ecuador, Egypt, Ethiopia, Guatemala, Honduras, India, Kazakstan,
Kuwait, Maldives, Morocco, Myanmar, Nepal, Nigeria, Panama, Peru, Sudan,
Thailand, Tunisia, Turkey, United Kingdom and Viet Nam. The Governments of
Israel and Turkey replied to the urgent appeals that the Working Group had
addressed to them jointly with other Special Rapporteurs. In some of the
cases, the Working Group was informed, either by the Government or by the
source, that the persons concerned had been released from detention. Such
releases were reported in Bahrain, Bhutan, China, Ecuador, Guatemala, India,
Peru, Sudan, Thailand, Tunisia and Turkey. 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 the Governments
which released such persons.
C. Field missions
20. Colombia . On 28 February, during the proceedings of the fifty-first
session of the Commission, the Ambassador of Colombia sent a letter to the
head of the Special Procedures Branch of the Centre for Human Rights, in which
he invited various special rapporteurs and working groups of the Commission to
undertake missions to Colombia.
21. In this connection, the Deputy Minister for Foreign Affairs sent out
invitations on 18 April, among others to the Chairman of the Working Group on
Arbitrary Detention, expressing his readiness to receive him in May. However,
owing to the proximity of the date, as well as to the fact that the
arrangement had not been previously agreed with the Working Group - which had
not met since the fifty-first session of the Commission and had therefore not
been informed of the Government's commitment - the mission could not be
carried out.
22. During the annual meeting of special rapporteurs and chairpersons of
working groups of the special procedures, held in Geneva on 29 and 30 May, the
participants (Special Rapporteur on the independence of judges and lawyers,
Special Rapporteur on the question of torture and other cruel, inhuman or
degrading treatment or punishment, Special Rapporteur on extrajudicial,
summary or arbitrary executions, Representative of the Secretary-General on
internally displaced persons, Chairman of the Working Group on Arbitrary
Detention, and Chairman of the Working Group on Enforced or Involuntary
Disappearances) agreed, as a matter of priority, to request the Government to
provide detailed information on the measures taken to implement the
recommendations made as a result of previous visits, in particular the
recommendation made jointly in 1994 by the Special Rapporteur on the question
of torture and the Special Rapporteur on extrajudicial, summary or arbitrary
executions (E/CN.4/1995/111) - and the Representative of the Secretary-General
on internally displaced persons - and on the difficulties that the present
Government may have encountered in following up those recommendations. Once
E/cN. 4/1996/40
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the contents of the Government's reply had been analysed, the Special
Rapporteurs would decide on the possibility of undertaking a visit jointly or
separately. This decision was communicated to the Government on 31 May by the
Centre for Human Rights in a note verbale.
23. At the time the present report was being drafted, the Working Group had
not received the information requested, so that the visit proposed by the
Government of Colombia has not yet taken place.
24. Indonesia . The Working Group put forward three reasons for requesting
the Government of Indonesia to extend an invitation to it.
25. The first reason, of a more general nature, is that the resolutions of
the Commission on Human Rights relating to the question of arbitrary detention
(resolutions 1993/36; 1994/32 and 1995/59) , as well as those relating to human
rights and thematic procedures (resolutions 1993/47; 1994/53 and 1995/87),
urged Governments to invite those responsible for the special procedures of
the Commission.
26. Secondly - and this specifically concerns Indonesia - in the statements
made by the Chairmen of the forty-eighth, fiftieth and fifty-first sessions of
the Commission, as well as in Commission resolution 1993/97, which all relate
to the situation of human rights in East Timor, the Government was urged to
invite special rapporteurs and working groups so that they could discharge
their mandates.
27. Thirdly, the Working Group submitting this report decided in its Interim
Decision No. 34/1994 concerning Xanana Gusmao that it could not adopt a
definitive decision without a prior visit to Indonesia and East Timor, of
which it duly informed the Government.
28. Accordingly, the Working Group once again contacted the Government of
Indonesia on 8 June 1995, requesting it to extend an invitation which it
considered necessary for the discharge of its mandate.
29. The Government, in a letter dated 1 September 1995, reaffirmed its
undertaking to cooperate with the special rapporteurs and working groups,
adding that “in this connection, the Government of Indonesia has decided to
invite Mr. José Ayala-Lasso, the United Nations High Commissioner for Human
Rights, to visit Indonesia, including the province of East Timor, within the
framework of the implementation of the consensus Chairman's Statement of the
[ fifty-first] session of the CDH”.
30. The Working Group transmitted this reply to the High Commissioner and
requested him, in the course of the visit that he would be making to the
country at the Government's invitation, to stress the need for an invitation
to be extended to the Working Group, as requested. At the time of drafting
this report, no such invitation had been received.
31. Cuba . In its report for 1994, the Working Group stated that, as a rule,
thematic special rapporteurs and working groups should not make visits to
countries for which a special mechanism has been designated, “other than at
E/CN. 4/1996/40
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the request, or at any rate with the consent”, of the Special Rapporteur for
that country (E/CN.4/1995/31, para. 22 (a)). Consequently, the Working Group
had not planned to visit Cuba, despite the request made by the Commission in
resolution 1994/71, paragraph 8.
32. On 28 February 1995 the Special Rapporteur on the situation of human
rights in Cuba, Mr. C.J. Groth, faced with that Government's lack of
cooperation, requested the Working Group to ask for an invitation to that
country. A similar request was also made to the Special Rapporteur on the
independence of judges and lawyers and the Special Rapporteur on freedom of
opinion and expression.
33. After the annual meeting of special rapporteurs and chairpersons of
working groups, the three above-mentioned special rapporteurs separately
conferred with the High Commissioner for Human Rights, and, since he had
already discussed with the various Cuban authorities the advisability of
cooperation by the Government with the United Nations organs, bodies and
mechanisms acting in the field of human rights (Report of the United Nations
High Commissioner for Human Rights, E/CN.4/1995/98, para. 25), requested him
to intervene so that missions could be undertaken to the country. The High
Commissioner sent a note to this effect to the Government of Cuba on
12 June 1995.
34. By the time this report was drafted, no invitation had been sent to the
Working Group.
35. Peru . Several non-governmental organizations contacted the Working Group
with the request that it undertake a mission to that country. The Working
Group received this request with interest, particularly in view of the fact
that many of the cases of alleged arbitrary detention submitted to it have had
to be left pending for want of more complete information. In many of the
cases the lack of information stems from the complexity of the laws, which are
constantly being amended and which often do not seem to be in conformity with
international standards relating to due process of law. In this connection,
the Vice-Chairman of the Working Group held discussions with the Permanent
Representative of Peru in Geneva, and on 13 November 1995 the Chairman of the
Working Group formally requested an invitation to the country. No reply has
been received to date.
36. Bhutan and Viet Nam . Following the missions undertaken by the Working
Group to Bhutan and Viet Nam in October 1994 (see E/CN.4/1995/31, para. 15 and
E/CN.4/1995/31/Add.3 and Add.4), the Working Group informed the
two Governments concerned of its wish to carry out a follow-up visit, in
connection with the implementation of the recommendations made by the Working
Group and with a view to visiting certain places of detention which it had
been unable to visit in the course of its first visit.
37. In the case of Bhutan, the Bhutanese authorities invited the Working
Group to return six months after the first visit, but the Working Group
decided, for reasons connected with its timetable of work, to undertake the
follow-up visit to Bhutan in the spring of 1996.
E/cN. 4/1996/40
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38. As for a follow-up visit to Viet Nam, the Chairman of the Working Group
had several contacts on this subject with the Vietnamese authorities and
reiterated the Working Group's request for such a visit in a letter dated
22 September 1995. The Vietnamese authorities replied in a letter dated
23 November 1995 that “the Vietnamese Government is in principle favourable to
the idea of another visit by the Working Group to Viet Nam”, but that owing to
several important events planned for 1996 in Viet Nam, that visit might have
to take place at a later date.
39. Nepal . In connection with the follow-up visit to Bhutan, the
Working Group contacted the Nepalese authorities with a view to going to Nepal
in order to visit the Bhutanese refugee camps in the east of the country and,
on the same occasion, to undertake a visit within the country under the terms
of its mandate. The initial response to this request was positive, subject to
a formal invitation being sent to the Working Group by the Nepalese
Government.
40. United States of America (Guantanamo Naval Base) . Following an approach
by the Working Group to the authorities of the United States of America, the
Government of that country invited the Working Group to visit the Guantanamo
Naval Base in order to investigate the legal status of the Cuban asylum
seekers who were there (see E/cN.4/1995/31, para. 17) . The Working Group
decided to go there in October 1995 and, on the same occasion, to contact
officials in Washington in order to discuss matters concerning immigration and
asylum seekers. However, on account of the financial crisis affecting the
United Nations and the temporary freeze on missions, the Working Group was
unable, to its great regret, to carry out the visit at the time planned.
Meanwhile, the source which had brought the situation in Guantanamo to the
attention of the Working Group informed the Group that all the asylum
seekers - both Haitians and Cubans - at the Guantanamo Naval Base were to be
allowed to settle in the United States by the end of January 1996. In the
light of this information, the source suggested that the Working Group should
maintain the principle of undertaking a visit, pending such a positive
outcome.
41. China . As regards the request made by the Working Group to the Chinese
authorities for an invitation to visit that country (see E/CN.4/1995/31,
para. 18), the Chairman of the Working Group took up the matter again in a
letter dated 22 September 1995. Following contacts that took place in Geneva
in November 1995 between the Chairman of the Working Group and a senior
official for the Ministry for Foreign Affairs of China, the Chinese
authorities indicated their intention to invite the Group to visit China
in 1996.
42. Russian Federation . With regard to the request made by the Working Group
to the Government of the Russian Federation to facilitate a visit to labour
camps situated in the Russian Far East, operated by the Democratic People's
Republic of Korea (see E/CN.4/1995/31, para. 16), no reply has yet been
received.
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D. Cooperation with the Commission on Human Rights
43. The Working Group attaches particular importance to all resolutions of
the Commission on Human Rights, as will be apparent from its reports
E/CN.4/1995/31, E/cN.4/1994/27 and E/CN.4/1993/24. The following resolutions
of the Commission were the object of the Working Group's particular attention.
44. Resolution 1995/59 concerning the question of arbitrary detention and
resolution 1995/87 concerning human rights and thematic procedures . These
resolutions deal with several subjects that are covered in other chapters of
this report, such as visits to countries, follow-up missions, cooperation with
non-governmental organizations and data broken down according to sex. In this
part, the Working Group wishes to mention several aspects connected with
resolution 1995/59 on the question of arbitrary detention and its own mandate.
1. Coordination with thematic or country special rapporteurs and
working groups
45. In its fourth report (E/CN.4/1995/31), the Working Group made various
proposals to the Commission:
(a) That visits to countries already handled by the Commission through
its thematic mechanisms should be carried out only at the request, or at any
rate with the consent, of the respective country special rapporteur;
(b) That machinery be established in the Centre for Human Rights for
coordinating requests for visits under all special procedures. It was
recommended that coordination should include the missions of the High
Commissioner;
(c) That a system be established for visits to follow up
recommendations made in the reports of missions carried out under special
procedures.
46. The Commission took note, in resolution 1995/59, paragraph 5, of the
importance that the Working Group attached to coordination with other
mechanisms of the Commission and to the strengthening of the role of the
Centre for Human Rights in such coordination, and encouraged it to avoid
unnecessary duplication. Thus, it is the understanding of the Working Group
that its proposals have been accepted by the Commission, principally with
regard to follow-up visits, which are of special interest to the Commission
(resolution 1995/87, para. 2)
47. The Working Group, on learning of cases of alleged arbitrary detention,
considered it advisable to bring the facts to the attention of the Special
Rapporteur on the question of torture (15 cases) and the Special Rapporteur on
freedom of opinion and expression (41 cases)
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48. Similarly, the Working Group received reports from several country
special rapporteurs of cases of arbitrary detention that had occurred in the
countries for which they were responsible.
49. In a desire to coordinate its activities more effectively with those of
other mechanisms of the Commission on Human Rights, during its fourteenth
session the Working Group held two working meetings with the Special
Rapporteur on the independence and impartiality of the judiciary, jurors and
assessors and the independence of lawyers, Mr. P. Cumaraswamy, and with the
Special Rapporteur on the elimination of all forms of religious intolerance
and of discrimination based on religion or belief, Mr. A. Amor, in order to
discuss questions of common interest.
2. Timely replies from Governments
50. The Group regrets the delay with which Governments often submit their
replies to it. As already noted, only 25 per cent of Governments reply within
the 90-day deadline. Far more serious is the fact that the replies are in
many cases patently incomplete, and merely assert that there are no arbitrary
detentions in the country in question because they are prohibited by the
Constitution. This situation places the Group before a difficult choice:
either it takes no decision, thereby failing to perform the mandate it has
received from the Commission, or it takes a decision on the basis of the
available information. The Commission will appreciate that the first choice
is unacceptable, while the second could lead to errors. Faced with this
dilemma, the Group has not hesitated to discharge its mandate. It is only
when a detention is declared arbitrary that a Government reacts by providing
the information it failed to submit when requested, and asks for the decision
to be reconsidered.
51. In the circumstances, the Working Group has decided to change its methods
of work in order to remedy any errors which might have been made. It has
accepted to reconsider decisions under certain conditions, inter alia , if the
Government or source invokes facts of which it was not aware when the case was
considered by the Group (see annex I, para. 14.2).
3. Follow-up to recommendations
52. For three years the Working Group has concerned itself with the follow-up
to its decisions, in response to the concerns of the Commission and out of its
own interest in rendering its action more effective, and has even put forward
a proposal to Governments. In last year's report it addressed this issue at
length (E/CN.4/1995/31, paras. 32 to 37 and 56 (c) ) . However, since in his
statement to the Commission and in his report (E/CN.4/1995/98, paras. 19, 48,
49 and 127-129) the High Commissioner for Human Rights has stated that the
follow-up to the recommendations of thematic procedures is an essential part
of his mandate, the Group hopes that it will be possible to establish an
effective procedure to this effect at the next meeting of special rapporteurs
and chairpersons of working groups.
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4. Prevention
53. A number of recommendations made by the Group in its previous reports
focused on preventing arbitrary detentions. In this respect, particular
importance has been attached to the need for a correct description of
punishable conduct, for domestic law to be in conformity with international
instruments and for moderation in the use of states of constitutional
emergency. In conformity with the Commission's mandate, the Group will pursue
its efforts in these areas.
5. Annual meetings of special rapporteurs and chairpersons of working
groups
54. The Group attaches great importance to these meetings, although it must
place on record that it was only possible to hold the meeting in 1995 to the
detriment of the Group's activities, on account of the lack of conference
services and the fact that it was held at the same time as the Group's twelfth
session. On behalf of the Working Group the Chairman proposed that the agenda
for those meetings should include, in addition to essential questions of
coordination, an analysis of substantive problems, such as the impact of
terrorist groups on the enjoyment of human rights. The meeting should also
address the problem of follow-up to recommendations, and to the “urgent
appeals” by the various mechanisms.
55. It is also appropriate in this chapter to emphasize that the meetings
enabled the Working Group effectively to coordinate with the Special
Rapporteurs who had been invited to visit Colombia (see paras. 20 to 23) and
with those with whom the Special Rapporteur on the situation of human rights
in Cuba had conferred (paras. 31 to 34)
56. Resolution 1995/40 concerning the right to freedom of opinion and
expression . In this resolution, as in resolution 1994/59, the Commission
expresses its concern at the extensive occurrence of detention resulting from
the exercise of the right to freedom of opinion and expression. Detentions of
persons who exercise that right were one of the most typical and commonest
types of detention which the Group found to be arbitrary under category II of
its methods of work. The Group attaches special importance to this
resolution, and continues to cooperate with the relevant thematic Rapporteur,
to whom it sent 12 decisions in the course of the year (relating to
112 persons) , which also came within his mandate.
57. Resolution 1995/79 concerning the rights of the child and
resolution 1995/41 concerning human rights in the administration of
justice, in particular of children and juveniles in detention . This topic is
very closely related to the Group's mandate, and category III of arbitrary
detentions consists of violations of due process of law, frequently
attributable to shortcomings in the administration of justice. The Group only
dealt occasionally with detentions of juveniles (decisions 13/1995 and 17/1995
concerning Peru and 20/1995 concerning Pakistan)
E/cN. 4/1996/40
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58. Resolution 1995/43 concerning human rights and terrorism . The Working
Group endorses the condemnation contained in paragraph 1 of the Commission's
resolution and joins in the call for Governments to take all necessary and
effective measures to prevent, combat and eliminate terrorism, in accordance,
as the resolution states, “with international standards of human rights”. In
any event, the Group wishes to reiterate the position expressed in its third
and fourth reports, namely that deprivation of liberty by terrorist groups
lies outside its mandate, and that special legislation adopted to combat
terrorism is frequently employed to prevent the exercise of legitimate rights.
59. Resolution 1995/53 concerning advisory services and the Voluntary Fund
for Technical Cooperation in the Field of Human Rights . A number of topics
that may come within advisory services to Governments are connected with
individual freedom: they include the whole sphere of the administration of
justice, the prison system, rules of criminal procedure and substantive
legislation (strict classification of offences, rules relating to minors,
alternative penalties to deprivation of liberty, etc.), anti-terrorist
legislation, provisions relating to states of emergency and many others. In
addition, the Group's experience has led it to the conclusion that technical
assistance should primarily benefit law enforcement officials, essentially the
police and prison staff.
60. In any event, the Group emphasizes the view expressed in its 1994 report
regarding the need to strengthen coordination between thematic and country
mandates and the advisory services of the Centre for Human Rights, and with
other services providing assistance in this field, whether through bilateral
cooperation or outside the United Nations system.
61. Resolution 1995/57 concerning internally displaced persons and
resolution 1995/88 concerning human rights and mass exoduses . The Group has
received no communications relating to arbitrary detentions of displaced
persons. However, it has been informed, by the reports of country special
rapporteurs, that human rights violations result in displacements of persons.
This has occurred, for example, in Rwanda (see E/CN.4/1996/7).
62. The Working Group has been particularly concerned about asylum seekers in
foreign countries who are deprived of their liberty while their application is
being processed, as in the case of Vietnamese exiles in Hong Kong and Haitian
and Cuban refugees at the United States Naval base in Guantanamo.
63. In considering this question, the Group during its thirteenth session
received representatives of a New York law office and of the Lawyers Committee
for Human Rights and during its fourteenth session held a working meeting with
representatives of the United Nations High Commissioner for Refugees
(see, para. 70)
64. Resolution 1995/65 concerning human rights violations on the Papua New
Guinea island of Bougainville . No cases of detention in this territory have
been submitted to the Group.
E/CN. 4/1996/40
page 14
65. Resolution 1995/66 concerning the situation of human rights in Cuba .
Information on this topic contained in paragraphs 31 to 34 of this report
concerning field missions and the decisions adopted by the Group in 1995
relating to Cuba.
66. Resolution 1995/75 concerning cooperation with representatives of
United Nations human rights bodies . In connection with its finding that
certain persons had been arbitrarily detained, the Working Group is studying
the situation of lawyers who submitted the cases in question to the Group and
who have allegedly been threatened in their respective countries.
67. Resolution 1995/80 concerning comprehensive implementation of and
follow-up to the Vienna Declaration and Programme of Action . In discharging
its duties, the Working Group has constantly borne in mind the Vienna
Declaration and Programme of Action. The Declaration recognizes that
arbitrary detentions constitute manifest and systematic violations of human
rights. The Group's concern to take full account of the Vienna Declaration
and Programme of Action is manifest in those paragraphs of this report devoted
to the coordination of the activities of the various thematic and country
mechanisms, as well as in its recommendations and conclusions.
68. Resolution 1995/85 concerning the elimination of violence against women .
This resolution requests thematic special rapporteurs to cooperate with and
assist the Special Rapporteur on violence against women. Although detentions
of women have been reported to the Working Group, it is not aware of cases in
which a person was deprived of liberty on account of being a woman. In any
event, the Group is prepared to provide any cooperation and assistance
requested by the Commission.
69. Resolution 1995/86 concerning the question of integrating the human
rights of women into the human rights mechanism of the United Nations . For
two years now, the Working Group has been presenting its statistics separately
for men and women, a practice it has maintained in this report. The Group
hopes that the agenda for the next meeting of special rapporteurs and
chairpersons of working groups on improving cooperation and the exchange of
information will address the issue of the human rights of women.
E. Cooperation with other United Nations bodies
70. As a number of cases of deprivation of liberty affecting asylum seekers
in several regions of the world have been brought to its attention, at its
fourteenth session in November 1995 the Group invited representatives of the
Office of the United Nations High Commissioner for Refugees (UNHCR) to a
working meeting on the problem. At the meeting legal advisers described the
rules and principles applicable in the light of tJNHCR's statutes and
experience, to administrative detention of asylum seekers; regional officials
of UNHCR described the situations faced by asylum seekers in the various parts
of the world. The Working Group wishes to thank the representatives of UNHCR
for their diligence and cooperativeness.
E/cN. 4/1996/40
page 15
F. Cooperation with non-governmental organizations
71. During the past year, the Working Group has maintained its contacts with
non-governmental organizations, which are one of the main sources of
information available to it, in order to improve its working methods and make
them more effective. At its fourteenth session the Group organized a working
meeting with Amnesty International, at the latter's request, to discuss
questions relating to the Group's methods of work.
II. DECISIONS ADOPTED BY THE WORKING GROUP AND THE FOLLOW-UP THERETO
A. General information regarding the decisions
adopted by the Working Group
72. During the three sessions held in 1995 (its twelfth, thirteenth and
fourteenth sessions) , the Working Group adopted 49 decisions concerning
847 persons in 22 countries as well as in the territory controlled by the
Palestinian Authority. Some details of the decisions adopted in 1995 appear
in the following table and the complete text of decisions 1/1995 to 34/1995
may be found in addendum 1 to this report. Decisions 35/1995 to 49/1995 will
be reproduced in the next compilation of the Group's decisions, to be
published at a later date.
Decisions adopted during 1995 by the Working Group on Arbitrary Detention
Decision
No.
Country
Government's
reply
Person(s)
concerned
Decision
1/1995 Republic of No Lee Jang-hyong Arbitrary,
Korea and Kim Sun-myung Category III
Ahn Jae-Ku and 8 Arbitrary,
others* Category II
2/1995 Democratic Yes Shin Sook Ja and Not detained -
People's 2 daughters cases filed
Republic of
Korea
3/1995 Uzbekistan No Salavat Umurzakov Arbitrary,
and 10 others* Category II
4/1995 Iraq Yes Mohammad Ahmad Not Arbitrary
El-Khalili
5/1995 Bangladesh No Toab Khan and Arbitrary,
Borhan Ahmed Category II
6/1995 Algeria No Ali Barka and 14 Arbitrary,
others* Category III
7/1995 Turkey Yes Gunay Aslan, Arbitrary,
Haluk Gerger and Category II
Sedat Aslantas
E/CN. 4/1996/40
page 16
Decision
No.
Country
Government's
reply
Person(s)
concerned
Decision
8/1995 Cuba yes Joel Mesa Morales Released -
case filed
9/1995 Guatemala yes Arturo Federico Released -
Mendez Ortiz and cases filed
Alfonso Morales
Jimenez
10/1995 Peru No Cesar Flores Arbitrary,
Gonzalez Category II
11/1995 Cuba No Francisco Arbitrary,
Chaviano Category II
Gonzalez
12/1995 Peru Yes Melquiades Released -
Calderon case filed
Ventocilla and
Fresia Calderon Pending for
further
information
13/1995 Peru Yes Alfredo Pablo Arbitrary,
Carillo Antayhua Category III
14/1995 Peru No Teodosia Cahuaya Released -
Flores case filed
15/1995 Colombia Yes Gerardo Bermudez Arbitrary,
Sanchez Category III
16/1995 Peru Yes Julio Cesar Allca Pending for
Hito further
information
17/1995 Peru Yes Abad Aguilar Arbitrary,
Rivas and Category III
Edilberto Rivas
Roj as
18/1995 Indonesia Yes Jannes Hutahaen Arbitrary,
and 3 others* Category II
19/1995 Saudi Arabia No Fouad Dehlawi and Arbitrary,
4 others* Category III
20/1995 Pakistan Yes Manzoor Masih and Released -
2 others* cases filed
E/cN. 4/1996/40
page 17
Decision
No.
Country
Government's
reply
Person(s)
concerned
Decision
21/1995 Ecuador No Carmen Celina Arbitrary,
Bolanos and 10 Category III
others
22/1995 Peru No J.A. Castiglione Pending for
Mendoza further
information
23/1995 Peru No Maria Elena Pending for
Foronda Faro and further
Oscar Diaz information
Ba rbo z a
24/1995 Peru No A. Gargurevich Pending for
Oliva further
information
25/1995 Peru No A.E. Irrazabal Pending for
Cruzado further
information
26/1995 Peru No J.C. Lapa Campos Pending for
further
information
27/1995 Peru No R. Mon Zavaleta Pending for
and W. Cruz Mon further
information
28/1995 Palestinian No Attiya Abu Mansur Released -
Authority and 4 others* cases filed
29/1995 Democratic Yes Kang Jung Sok and Pending for
People's Ko Sang Mun further
Republic of information
Korea
30/1995 Libyan Arab No Rashid el-Orfia Arbitrary,
Jamahiriya Category II
31/1995 Zaire No Kalunga Akili Arbitrary,
Mali, Magara Deus Category III
and Nasser Hassan
32/1995 Zaire No J.M. de Oliveira Pending for
Yumba di Tchibuka further
information
Adalbert Arbitrary,
Nkutuyisila and 3 Category III
others *
E/CN. 4/1996/40
page 18
Decision
No.
Country
Government's
reply
Person(s)
concerned
Decision
33/1995 Turkey No Leyla Zana and S Pending for
others* further
information
Fikret Baskaya Arbitrary,
Category II
34/1995 Turkey No Selahettin Simsek Arbitrary,
Category III
35/1995 Bahrain Yes 532 persons* Arbitrary,
Category III
(513 persons)
Released -
cases filed
(19 persons)
36/1995 Maldives No Mohammed Nasheed Arbitrary,
and Mohammed Category II
Shafeek
37/1995 Democratic (same case as in Not detained
People's decision 29/1995) cases filed
Republic of
Korea
38/1995 Bahrain Yes Sheik Abdoul Amir Released -
al-Jamri and cases filed
Malika Singais
39/1995 Ethiopia Yes Daniel Kifle Released -
case filed
40/1995 Turkey (same case as in Arbitrary,
decision 33/1995) Category III
41/1995 Colombia Yes Oscar Eliecer Not Arbitrary
Pefla Navarro and
2 others*
42/1995 Peru No Luis Rob Huaman Released -
Morales and cases filed
Julian Oscar
1-luaman Morales
Pablo A. Huaman Pending for
Morales and further
Mayela A. Huaman information
Morales
E/cN. 4/1996/40
page 19
Decision
No.
Country
Government's
reply
Person(s)
concerned
Decision
43/1995 Peru Yes Alfredo Raymundo Arbitrary,
Chaves and 4 Category III
others *
Meves Mallqui Released -
Rodriguez case filed
44/1995 Peru No Maria Elena Released -
Foronda Faro and cases filed
Oscar Diaz
Barbosa
45/1995 Egypt No Hassan Gharbawi Arbitrary,
Shehata Farag and Category I
S others*
Mohammed Sayid Arbitrary,
L'eed Hassanien Category III
and 4 others*
46/1995 China Yes 79 persons* Arbitrary,
Category II
(64 persons)
Released -
cases filed
(11 persons)
Not detained
cases filed
(4 persons)
47/1995 China No James Dong Peng Insufficient
information -
case filed
48/1995 Saudi Arabia Yes Sheik Salman bin Arbitrary,
Fahd al-Awda and Category II
7 others*
49/1995 Republic of Yes Kim Sam-sok, Ki Arbitrary,
Korea Seh—Moon and Lee Category II
Kyung - ryol
* The complete list of the persons concerned is available for
consultation at the secretariat of the Working Group.
73. As in the past, the decisions were adopted by the Working Group
unanimously, with one exception (the case of Teodosia Cahuaya Flores, under
decision 14/1995 (Peru) )
E/CN. 4/1996/40
page 20
74. In accordance with its revised methods of work (annex I, paras. 2
and 14.1 (c)), the Working Group transmitted its decisions to the Governments
concerned, drawing their attention to resolution 1995/59, by which, among
other things, the Commission invited “Governments concerned to take note of
the Working Group's decisions and, where necessary, to take appropriate steps
and to inform the Working Group of the steps they have taken”. Three weeks
later, it also transmitted them to the source.
B. Governments' reactions to decisions
75. During the period under consideration, the Working Group received
information from a 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) : Azerbaijan (31/1993), China (43/1993, 44/1993,
53/1993, 63/1993, 65/1993 and 66/1993) , Colombia (26/1994 and 15/1995),
Cuba (46/1994, 47/1994 and 11/1995) , Ecuador (21/1995) , Ethiopia (55/1993)
Indonesia (18/1995), Myanmar (13/1994), Republic of Korea (29/1994, 30/1994
and 1/1995), Democratic People's Republic of Korea (29/1995), Peru (41/1994,
42/1994, 43/1994, 44/1994, 45/1994, 17/1995 and 22/1995) and Turkey (38/1994
and 34/1995) , as well as the Palestinian Authority (28/1995)
76. 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 Azerbaijan (with regard to Vilik Ilitch Oganessov and
Artavaz Aramovitch Mirzoyan, decision 31/1993); Indonesia (Muchtar Pakpahan,
decision 18/1995); China (Qi Dafeng, Zu Guoqiang and Mao Wenke,
decision 44/1993; Wang Juntao and Chen Ziming, decision 63/1993; Yulu Dawa
Tsering, decision 65/1993; Liu Guandong, Wang Yijun, Wei Jingyi,
Zhang Youshen, Zhang Dapeng, Zhou Lunyou, Su Zhimin, Yang Libo, Xu Guoxing,
Liu Qinglin, Zhang Weiming, Ngawang Chosum, Ngawang Pema, Lobsang Choedon,
Phuntsong Tenzin, Pasang Dolma, Dawa Lhanzum and Hu Hai, decision 66/1993);
and Myanmar (Dr. Aung Khin Sint and Tin Moe, decision 13/1994) . The Chinese
Government further informed the Working Group that, according to its
investigations, Zang Jianjun and Zhao Chingjian (decision 44/1993) had not
apparently been detained or subjected to any other form of punishment. The
Government of the Democratic People's Republic of Korea informed the Working
Group that the two persons concerned by decision 29/1995 had never been
detained during their stay in that country.
77. As the Working Group has already noted in previous reports to the
Commission, it considers that the release of persons whose detention it
declared to be arbitrary should be seen as a positive response to its
recommendations, particularly with regard to the norms and principles
contained in the relevant international instruments. The Working Group again
wishes to express its thanks to the above-mentioned Governments and, in
accordance with the Commission's wish, to encourage the other Governments
concerned to take similar measures.
E/cN. 4/1996/40
page 21
78. Certain Governments (including the Chinese Government, regarding
decisions 53/1994, 63/1993 and 65/1993; the Cuban Government, regarding
decisions 46/1994, 47/1994 and 11/1995; and the Indonesian Government,
concerning decision 18/1995) rejected the conclusions of the Working Group by
which it declared the detention of the persons concerned to be arbitrary. The
Indonesian Government stated that it could not “take the necessary steps to
remedy the situation” in accordance with the Working Group's recommendation,
as that would violate the national Constitution and be tantamount to
interference with the principle of the independence of the judiciary, given
that the persons concerned had been tried by an independent tribunal. Other
Governments provided additional information on the cases which concerned them,
explaining why they considered that the detentions in question were not
arbitrary.
79. The Governments of the Republic of Korea and of Peru, which had not
responded to the communications of the Working Group within the 90-day period
(decisions 29/1994 and 1/1995 for the Republic of Korea, and 17/1995 and
22/1995 for Peru) , provided the Working Group with detailed replies after they
had been advised of the Working Group's decisions.
80. As several Governments or non-governmental organizations had requested
that the Working Group be allowed to revise the decisions adopted (including
the Governments of the Republic of Korea, on decision 1/1995, and of Colombia,
regarding decision 15/1995, on which the Government provided the Working Group
with additional information of which the Working Group had not been aware when
it adopted its decision) , in a spirit of cooperation, the Working Group
decided at its fourteenth session to make the requested changes in its methods
of work, but laying down conditions for accepting requests for revision, so as
to consider the information before it at its fifteenth session.
81. Details of this procedure are set out in paragraph 14.2 (c) of the
methods of work (see annex I)
III. OBSERVATIONS OF THE WORKING GROUP
82. At the fifty-first session, a number of delegations of Governments
(Australia, Austria, Bhutan, Chile, China, Colombia, Cuba, Nepal, Peru,
Republic of Korea and Switzerland) , non-governmental organizations (Amnesty
International, Aridean Commission of Jurists, International Federation of
Associations of Relatives of Disappeared Detainees (FEDEFAN) , International
Federation of Human Rights (FIDH), Human Rights Watch, International League
for Human Rights, Robert Kennedy Memorial, Third World Movement against the
Exploitation of Women) and observers (International Committee of the Red Cross
(ICRC)) referred to the Working Group's mandate and to its report. The large
majority approved the Working Group's work. However, two delegations - China
and Cuba - questioned general aspects of the Working Group's work and of its
report, as well as decisions declaring some detentions to be arbitrary, and
stated that the Working Group had been guilty of “irregularities” and
“excesses” (Cuba) and that its work was “harmful” (China) , adding that the
Working Group “had invented pretexts” for declaring detentions arbitrary.
/CN. 4/1996/40
page 22
General criticisms
83. The general aspects queried by the delegations of China and Cuba were:
(a) That the Working Group questioned internal legislation, which was
outside its terms of reference;
(b) That the Working Group gave opinions on detentions after sentences
had been handed down in accordance with internal law; and
(c) That the Working Group acted selectively.
84. With regard to criticisms (a) and (b), the Working Group's mandate was
defined in resolution 1991/42, which created it for the purpose 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 accepted by the States concerned”
85. It is worth pointing out that this mandate is unique, in the sense that
it is the only mechanism established by the Commission which has been
specifically assigned the task of “investigating cases” (resolution 1991/42)
whereas all the other mechanisms are mandated to “report” on human rights
violations related to given situations, themes or countries.
86. The specific nature of its mandate obliged the Working Group, at its
first session, to reflect on its “mandate and legal framework” (Chap. I of its
first report, E/CN.4/1992/20) . Its deliberations are reflected in part in
paragraph 10 of that report:
“The legal framework within which the Working Group will have to
carry out its mandate is made up primarily of international standards and
legal instruments, but in certain instances of domestic legislation as
well. The Working Group will thus have to look into domestic legislation
in investigating individual cases, where it will have to determine
whether internal law has been respected and, in the affirmative, whether
this internal law conforms to international standards. It may thus have
to consider, in certain cases, whether the alleged practice of arbitrary
detention is not made possible as a result of laws which may be in
contradiction with international standards.”
87. It should also be noted that the “principles applicable for the
consideration of cases submitted to the Working Group” (annex I of the first
report) refer specifically to “post-trial situations”.
88. The Commission on Human Rights, “noting the comments made during its
forty-eighth session”, expressed “its satisfaction to the Working Group on
Arbitrary Detention at the diligence with which it has devised its methods of
work”, took note of the Working Group's report and thanked the experts “for
the rigour with which they have discharged their task” (resolution 1992/28,
adopted without a vote)
E/cN. 4/1996/40
page 23
89. Although resolution 1991/42 refers to the Universal Declaration of Human
Rights and international legal instruments - with which internal legislation
must be brought into line - as parameters for determining whether a detention
is arbitrary or not, the Government of Cuba criticized various aspects of the
Working Group's work, which in essence meant that it was dissociating itself
from the consensus by which resolutions 1991/42 and 1992/28 had been adopted.
In a letter dated 24 December 1991, it asked the Working Group a number of
questions which were analysed by the Working Group in its “deliberations”
Nos. 02 and 03, adopted at its third and fourth sessions and described in its
second report (E/CN.4/1993/24)
90. The main conclusions of those deliberations were:
In the performance of its task, the Working Group takes into
consideration not only the national standard but also the international
standard, ensuring, where necessary, that the national standard conforms
to the relevant international standard” (deliberation 02, para. 14)
“The Working Group notes that neither the provisions of
resolution 1991/42, which established its terms of reference, nor the
discussion which led up to its adoption, as reflected in the summary
records (E/CN.4/1991/SR.25-33) , justify the view that such communications
(transmitting reports of arbitrary detention) should be declared
inadmissible on the grounds that there has been a conviction
(deliberation 03,A)
91. In taking note of this report, in its resolution 1993/36 the Commission
expressed its appreciation to the Working Group on Arbitrary Detention for the
way in which it carried out its task, took note “with satisfaction of the
Working Group's report and thanked the Experts for the rigour with which they
had performed their task, in the light of the very specific nature of their
mandate of investigating cases, and 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. This
resolution was also adopted without a vote. In following years, the
Commission, in each of its resolutions concerning the Working Group, took note
of the Working Group's ‘deliberations'”.
92. From the above, it is clear that the Commission has endorsed the Working
Group's criteria regarding the two aspects covered by these comments, namely:
(a) That the Working Group may consider cases of arbitrary detention,
whether pre-trial, in-trial or post-trial; and
(b) That the Working Group must consider the internal legislation of a
country and its consistency with the standards of international instruments in
deciding whether a detention is arbitrary or not.
93. With regard to criticism (c) (para. 83), alleging that the Working Group
works selectively, to the detriment of the developing countries, and does not
consider arbitrary detention in Europe or the United States, in the five years
since its creation the Working Group has been guided by the Commission's
E/CN. 4/1996/40
page 24
resolutions, all of which subsequent to the Working Group's creation have
stressed two key concepts: (a) that the Working Group should continue to seek
and gather information from Governments and intergovernmental and
non-governmental organizations, as well as from the individuals concerned
(para. 3 of resolutions 1992/28, 1993/36, 1994/32 and 1995/59) ; and (b) that
the Working Group should act with objectivity and independence (para. 4 of
resolutions 1992/28, 1994/32 and 1995/59; para. S of resolution 1993/36)
94. According to paragraph 4 of resolution 1993/36, the Working Group may
act on its own initiative. In fact, at all the meetings it has held with
non-governmental organizations, it has encouraged them to submit
communications concerning all areas of the world. In practice, however,
none has been received.
95. If the Governments of China and Cuba feel that the Working Group has
acted selectively, the way is open for them to fill in the gaps, as those
called on first to provide information to the Working Group are Governments,
in accordance with all the resolutions concerning the Working Group's mandate.
96. The Working Group is more concerned than anyone about this situation and
has already referred to it in its second report (E/cN.4/1993/24, para. 28)
Moreover, following a statement by the representative of Cuba at the
fifty-first session of the Commission, alleging that the Working Group had not
said anything about cases of Cuban citizens detained in the United States, the
Chairman of the Working Group, in letters dated 3 March and 20 September 1995,
asked the Ambassador of Cuba to the United Nations Office at Geneva to provide
a list of persons in that situation. At the date of this report, no reply has
been received.
97. Once again, and in conformity with Commission on Human Rights
resolution 1991/42, the Working Group urges Governments, intergovernmental and
non-governmental organizations to provide it with reliable information on
detentions in any region of the world.
98. The Government of Cuba's fourth criticism of the Working Group is that it
has assumed a coordinating role with other mechanisms of the Commission. The
Working Group cannot hide its surprise at being reproached for making
suggestions in an area accorded the utmost importance by the World Conference
on Human Rights. Furthermore, in its resolution 1994/53 on human rights and
thematic procedures, the Commission on Human Rights, among other things,
encouraged the special rapporteurs and working groups to “make recommendations
for the avoidance of human rights violations”. Its resolution 1993/36
welcomed “the importance that the Working Group attaches to coordination with
other mechanisms of the Commission as well as with treaty-monitoring bodies”
and invited it “to take a position in its next report on the issue of the
admissibility of cases submitted to the Working Group when they are under
consideration by other bodies” . This criticism is as unexpected as it is
surprising, given that the last part was added precisely on the proposal of
the Cuban Government at the forty-ninth session of the Commission. In
paragraphs 64-70 of its report (E/CN.4/1994/27), the Working Group did as the
Commission asked.
E/cN. 4/1996/40
page 25
99. In the following report, which is the target of the criticism, the
Working Group, encouraged by the Commission's support, and in the spirit of
the Vienna Declaration and Programme of Action, made other coordination
proposals which it deemed necessary for cases where more than one body might
be interested in visiting the same country or when a special rapporteur had
been appointed for that country. The intention was not to transform it into a
“working group on arbitrary recommendations” or to have its recommendations
become “holy writ”, as has been suggested.
Specific criticisms concerning decisions
100. The Government of China criticizes the Working Group's decisions
concerning that country on grounds which the Working Group finds difficult to
understand.
101. The Government of China maintains that the detentions referred to in
decisions 43/1993 and 44/1993 were declared arbitrary “simply because the
Government did not reply within 90 days”. Although it is true that the
Government failed to reply to the Working Group's request, the detentions were
declared arbitrary not for that reason, but because the individuals in
question had been arrested “without a warrant and for their work in the
autonomous workers' movement in Tianjin” (decision 43/1993) ; and because “the
five persons detained were arrested without a warrant and continue to be in
detention without charge and without bringing them to trial”; furthermore, in
only one case is the place of detention known, and none of the detainees has
access to their families or to a lawyer (decision 44/1993) . In both cases,
the detention is arbitrary under categories II and III.
102. The Working Group has already had the occasion to counter these
criticisms in its 1994 report (E/cN.4/1994/27, para. 55 (b) ) . In any event,
the Government had been given the opportunity to contest the facts related by
the source.
103. Decision 53/1993 is criticized on the grounds that the Government reply
was allegedly not taken into account and that the reason for finding the
detention arbitrary was that it was “based solely on the grounds that [ the
individual in question] .. . listened to the Voice of America”. The truth is
that the Government reply suffered from a “complete absence of details in
respect of [ the] . . . trial”. The grounds for the detention were not only
those indicated by the Government, but also that the person concerned had
distributed leaflets, met with student leaders and called for student strikes,
all of which represent the legitimate exercise of the rights recognized in
international human rights instruments, but which are punishable under Chinese
law. Consequently, the Working Group considered the detention arbitrary and
as falling within category II of its methods of work.
104. Decision 63/1993 is criticized by China on the grounds that the Working
Group declared the detention arbitrary without reason; in reality, the
decision was based on the following: Wang Juntao and Chan Zhimin were held
incommunicado for four months and were convicted of actions that constitute
the exercise of political rights; as the Chinese Government informed the
E/CN. 4/1996/40
page 26
Working Group, “they cobbled together an anti-government coalition of illegal
organization and engaged in a series of anti-government activities in
Beijing”.
105. The Cuban Government, for its part, criticizes decision 47/1994 - without
referring to it specifically - and suggests that “the Working Group appears to
condone and sanction crimes of this kind” (international drug trafficking and
endangering national security and the security of neighbouring countries) . It
also states that the trial was held openly and with full guarantees. In fact,
the Working Group considered the detention arbitrary because the accused was
tried by a special court, as recognized in the Government report, constituted
under a wartime procedure (although the country was not at war) , and the trial
proceedings, which involved a large number of persons accused of very serious
offences, were of a summary nature.
IV. CONCLUSIONS AND RECOMMENDATIONS
A. General conclusions
1. On the causes of arbitrary detentions
106. In its previous reports, the Working Group noted that, in its experience,
the main causes of arbitrary detentions were the exercise of the powers
pertaining to states of emergency, the lack of proportionality between the
alleged emergency and decisions of the authorities, the vague description of
the acts to be punished and the existence of special or emergency courts.
107. The Working Group also noted that one of the most serious causes of
arbitrary detention is the existence of special courts, military or otherwise,
regardless of what they are called. Even if such courts are not in themselves
prohibited by the International Covenant on Civil and Political Rights, the
Working Group has none the less found by experience that virtually none of
them respects the guarantees of the right to a fair trial enshrined in the
Universal Declaration of Human Rights and the said Covenant.
108. The situation is further aggravated by the fact that in many countries
courts do not enjoy the necessary independence. The reports of special
rapporteurs on the human rights situations in specific countries submitted at
the fifty-first session corroborate this by pointing out that, in the
countries in question, courts are not independent, act partially and do not
apply the rules of due process of law, all of which is translated into
impunity for violations of human rights and arbitrary detentions.
109. Other causes of arbitrary detentions have been mentioned by other special
rapporteurs:
(a) The Special Rapporteur on the situation of human rights in Rwanda
mentions as a reason for arbitrary detentions not only the slanderous
accusations motivated by the situation prevailing in that country, but also
the illegal practice of prosecutors issuing blank warrants (E/CN.4/1996/7,
para. 68) . Equally alarming is the fact that most of the 42,000 detainees are
E/cN. 4/1996/40
page 27
being held without charges or indictment, due to a defective, if not
non-existent, judicial machinery. For example, out of 708 judges, only
210 remain, of whom only 55 are trained jurists (ibid., paras. 91 ffj;
(b) The Special Rapporteur on the situation of human rights in Zaire
attributes the practice of arbitrary detentions in that country to the anarchy
in the powers of the security services, which are all authorized de lure or
de facto to carry out arrests (E/cN.4/1995/67, para. 184);
(c) The Special Rapporteur on the independence and impartiality of the
judiciary also refers to this question in his report (E/CN.4/1995/39,
paras. 38 ff.).
110. Arbitrary detentions could be reduced if the “effective remedy” referred
to in article 8 of the Universal Declaration and article 9, paragraph 4, of
the International Covenant on Civil and Political Rights were a reality in all
countries, both in law and in fact. Unfortunately, many legal systems make no
provision for it and, in many other cases, attorneys - in addition to being
frequently persecuted in many countries - do not avail themselves of such
remedy, or if they do, the courts do not show the proper zeal.
111. As the Commission on Human Rights is aware, whenever the Working Group
decides that a detention is arbitrary, it requests Governments “to take the
necessary steps to remedy the situation in order to bring it into conformity
with the provisions and principles incorporated in the Universal Declaration
of Human Rights and in the International Covenant on Civil and Political
Rights”.
112. While some Governments take the suggested steps, for instance by
releasing the persons concerned, they all too often fail to take the
recommended follow-up action.
113. In order to draw the Commission's attention to the harmful effects this
can have, the Working Group would like to submit the list of persons who,
although they have been in detention for many years, in fact over six
(according to information available to the Working Group on 1 December 1995,
and in the absence of any report by the Government concerned or by the source
concerning their release or any other change in their status) , continue to be
deprived of their liberty, despite the fact that the Working Group has
declared their detention arbitrary under categories I and II of the Principles
applicable to the consideration of cases submitted to the Working Group.
E/CN. 4/1996/40
page 28
Country
Decision No.
Name
Detained since
Libyan Arab
Jamahiriya
3/1992
24/1993
Al-Ajili Muhammad al-Azhari
Ali Muhammad al-Akrami
Ali Muhammad al-Qajiji
Salih Omar al-Qasbi
Muhammad al-Sadiq al-Tarhouni
Rashid A.H. al-Urfia
April 1973
April 1973
April 1973
April 1973
April 1973
Feb ./1982
Myanmar
52/1992
38/1993
38/1993
62/1993
Nay Mm (alias Win Shwe)
Mm Zeya
Ye Htoon
U Tin Oo
Oct ./1988
Aug ./1989
July 1989
Dec ./1989
Syrian Arab
Republic
6/1992
53/1992
11/1993
11/1993
11/1993
Riad al Turk
Khalil Brayez
Muhammad Munir Missouti
Abdullah Quabbara
Nash' At Tuma
Oct ./1980
Nov ./1970
May 1987
May 1987
Feb ./1989
Republic of
Korea
28/1993
Hwang Tae Kwon
Kim Song Man
June 1985
June 1985
China
53/1993
65/1993
Chen Lantao
Jampa Ngodrup
Lhundrup Ganden
Lobsang Choejor
Lobsang Yeshe
Lobsang Palden
Drakpa Tsultrim
Lobsang Tashi
Tempa Wangdrak
Tenzin Tsultrim
Ngawang Phulchung
Ngawang Oser
Jamphel Changchub
Kelsang Thutob
Ngawang Gyaltsen
Jampal Lobsang
Ngawang Rigzin
Jampal Monlam
Jampel Tsering
Ngawang Kunga
Yulu Dawa Tsering
Ngawang Chamtsul
Tsering Ngodup
June 1989
Oct 1989
March 1988
March 1988
March 1988
March 1988
March 1988
March 1988
March 1988
March 1988
Nov ./1989
Nov ./1989
Nov ./1989
Nov ./1989
Nov ./1989
Nov ./1989
Nov ./1989
Nov ./1989
Nov ./1989
Nov ./1989
Dec ./1987
March 1989
March 1989
E/cN. 4/1996/40
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114. The Working Group otherwise welcomes the release of Aung San Suu Kyi,
which had been called for in its report for 1993.
2. Concerning the Working Group's activities
115. Once again the Working Group deplores the lack of cooperation on the part
of Governments. Out of 37 communications transmitted (concerning
829 persons) , it received information within 90 days only in 11 cases
(578 persons) and beyond the 90-day limit in 4 cases (6 persons), which
represents 40 per cent.
116. The Working Group is bound to point out that the failure to provide a
full and timely reply cannot prevent it from discharging its mandate, since it
will have to decide on the basis of the information available to it, in
accordance with the methods of work approved by the Commission.
117. With regard to the follow-up to its decisions and recommendations, the
Group refers to its comments in paragraph 52 above.
118. The Group is still anxious to carry out a joint study with the Special
Rapporteur on the independence of judges and lawyers regarding the existence
of “faceless”, that is to say, anonymous judges, a phenomenon made necessary
in some countries in order to protect the lives and safety, and thus the
independence of magistrates, but which in many instances has led to a loss of
judicial guarantees.
3. Regarding the situation in Rwanda
119. The Working Group expresses grave concern regarding the situation in
Rwanda, in particular the presence of over 50,000 persons in the country's
detention centres. The Group notes that most of these detentions are of an
arbitrary nature. It notes further, however, that they are the result not so
much of the penal legislation in force as of the lack of judicial authorities
to apply such legislation. For this reason, the Group endorses appeals for
the international community to help Rwanda to restore effective justice as
soon as possible in order to put an end to the situation.
4. Regarding the situation in Nigeria
120. In the course of the year, the Working Group was particularly concerned
by the situation of persons deprived of liberty in Nigeria in conditions which
might imply arbitrary detentions.
121. During the year, it sent four urgent communications concerning
16 persons to the Government of Nigeria. Some of these communications
referred among others to Ken Saro Wiva, Dr. Beko Ransome-Kuti and retired
General Olusegun Obasanjo.
122. In addition, the High Commissioner for Human Rights requested that the
Chairman of the Working Group or a Group member should undertake a mission to
Nigeria with a view to obtaining information concerning the situation of
E/CN. 4/1996/40
page 30
detained persons in danger of incurring the death penalty. Although the Group
of course immediately agreed to undertake the mission, the Government
unfortunately never gave its consent, despite many requests.
123. The Group is at present considering 26 cases of detention denounced as
arbitrary, which are awaiting a reply from the Government, and it will
continue to be attentive to any information which may allow it to reach its
decisions.
B. Recommendations
124. In the light of its four years of experience, the Working Group wishes to
make the following recommendations to the Commission on Human Rights:
1. With regard to its mandate, the Working Group stresses the need for
reports which Governments are requested to provide to be delivered to it
within the stipulated period of 90 days, containing full and detailed
information, with regard to both the facts and the law.
2. The Working Group once again requests that the Commission should
recommend that Governments maintaining declared states of emergency,
particularly where such states are of long standing, should lift them and
restore the normal rule of law, and in cases where the state of emergency is
justified, should strictly apply the principle of proportionality and
limitation in time, considering the frequency with which arbitrary detentions
occur in such conditions.
3. The Working Group also suggests that the Commission should request
that Governments eliminate from their legislation precepts which sanction
modes of conduct without describing them with sufficient clarity. Individuals
must understand clearly which conduct is lawful and which is not, without any
possible room for doubt.
4. The Working Group suggests that the Commission should ask States to
incorporate the remedy of habeas corpus in their legislation, as an individual
right, which has been shown capable of ending arbitrary detention, or at least
preventing its harmful consequences.
S. Once again, the Working Group asks the Commission to recommend that
the Sub-Commission on Prevention of Discrimination and Protection of
Minorities should transmit the declaration on habeas corpus which is currently
being drafted as soon as it has been approved.
6. The Group also suggests that the Commission should renew the
mandate of a rapporteur for the Sub-Commission on the question of states of
emergency, suggesting that the rapporteur's report should identify for each
country the harmful effects of states of emergency on institutions and the
rights likely to be affected by such regimes.
7. The Group proposes that the advisory services should assume
responsibility for the matters referred to in paragraph 59 of this report.
E/cN. 4/1996/40
page 31
Jthnex I
REVISED METHODS OF WORK
1. The methods of work take due account of 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.
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 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;
(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.
E/CN. 4/1996/40
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7. In order to facilitate the Group's work, it is hoped that communications
will be submitted taking into account the model questionnaire.
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.
E/cN. 4/1996/40
page 33
14.1 In the light of the information examined during its investigation, the
Working Group may take one of the following decisions:
(a) If the person has been released, for whatever reason, since the
Working Group took up the case, it shall decide in principle to file the case;
it reserves the right, however, to decide on a case-by-case basis whether or
not the deprivation of liberty was arbitrary, notwithstanding the release of
the person concerned;
(b) If the Working Group considers that the case is not one of
arbitrary detention, it shall so decide;
(c) If the Working Group considers that further information is required
from the Government or source, it may decide to keep the case pending until
that information is received;
(d) If the Working Group considers that it is unable to obtain enough
information on the case, it shall decide to file the case
(e) If the Working Group decides that the arbitrary nature of the
detention is established, it shall so decide and 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.
14.2 Very exceptionally, the Group may, at the request of the Government
concerned or the source, reconsider its decisions on the following conditions:
(a) If the facts on which the request is based are considered by the
Group to be entirely new and such as to have caused the Group to alter its
decision had it been aware of them;
(b) If the facts had not been known or had not been accessible to the
party originating the request;
(c) In a case where the request comes from a Government, on condition
that the latter has replied within 90 days as stipulated in paragraph 10
above.
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
participate in the discussion owing to the possibility of a conflict of
interest.
16. The Working Group shall 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.
E/CN. 4/1996/40
page 34
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 Working 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 Working
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 an appropriate treaty for the purpose of proper coordination
between all organs of the system.
E/cN. 4/1996/40
page 35
Annex II
STATISTICS
(Covering the period from January to December 1995. 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 (-) 7(-) 7(-)
2. Cases of detention declared arbitrary
falling within category II (including
nine cases of persons (male) who
were released) 23(1) 89(29) 112 (30)
3. Cases of detention declared arbitrary
falling within category III (including
four cases of persons (male) who
were released) 4(-) 574 (19) 578(19)
4. Cases of detention declared arbitrary
falling within categories II and III (-) (3) (3)
Total number of cases of detention
declared arbitrary 27(1) 670(51) 697(52)
B. Cases of detention declared not arbitrary
Female Male Total
(-) 4(6) 4(6)
II. CASES WHICH THE WORKING GROUP DECIDED TO FILE
Female Male Total
A. Cases filed because the person
was released, or was not detained 9(1) 50(24) 59(25)
B. Cases filed because of insufficient
information (-) 1(-) 1(-)
E/CN. 4/1996/40
page 36
III. CASES PENDING
Female Male Total
A. Cases which the Working Group decided
to keep pending for further information 2(4) 8(25) 10(29)
B. Cases transmitted to Governments on
which the Working Group has not yet
taken a decision 23(38) 208(177) 231(215)
Total number of cases dealt with by
the Working Group during the period
January to December 1995 61(45) 941(334) 1002 (379)
