Aadel Collection
IMPLEMENTATION OF GENERAL ASSEMBLY RESOLUTION 60/251 OF 15 MARCH 2006 ENTITLED “HUMAN RIGHTS COUNCIL”
UNITED A
NATIONS
Distr.
tt General Assembly GENERAL
- -
AIHRC/4/40
9 January 2007
Original: ENGLISH
HUMAN RIGHTS COUNCIL
Fourth session
Item 2 of the provisional agenda
IMPLEMENTATION OF GENERAL ASSEMBLY RESOLUTION 60/251
OF 15 MARCH 2006 ENTITLED “HUMAN RIGHTS COUNCIL”
Report of the Working Gronp on Arbitrary Detention
Chairperson-Rapportenr: Leila Zerrongni
GE.07-1012l (E) 170107
AIHRC/4/40
page 2
Sununary
The present report is being submitted to the Human Rights Council at the conclusion of
the fifteenth year of activity of the Working Group on Arbitrary Detention. In the first part, the
Working Group recalls its main activities during these 15 years, including the thematic issues it
dealt with in its reports and the countries it visited.
The second part provides an overview of the Opinions issued by the Working Group in
the course of 2006 on communications received and the urgent appeals addressed to
Governments. It also includes the reactions of Governments to these communications. It
discusses the follow-up to the visits undertaken by the Working Group in 2004, namely to
Belarus, China and Latvia.
The third part of the report discusses the problem of arbitrary detention in the context of
the international transfer of detainees, particularly in efforts to counter terrorism. As reflected in
the rising number of cases being dealt with by the Working Group (some of which are reviewed
in the present report), this is an issue of growing concern. The Working Group argues that both
human rights law and the anti-terror conventions adopted under the auspices of the
United Nations enshrine a clear preference for extradition as the legal framework for such
transfers. The practice of so-called “renditions”, on the contrary, because it is aimed at avoiding
all procedural safeguards, is not compatible with international law.
The Working Group further argues that, in applying the principle of non-refoulement,
Governments should not only examine whether the person to be removed will be at risk of
extrajudicial killing or torture but also whether there is a substantial risk of arbitrary detention.
In this respect, diplomatic assurances (which are not acceptable with regard to the risk of torture)
can be a legitimate means to protect against arbitrary detention and unfair trial, provided
stringent conditions are satisfied. A current practice in the context of countering terrorism,
however, is to seek what could be called “reverse diplomatic assurances”, i.e. assurances that a
detainee to be transferred will continue to be detained in the country of destination even in the
absence of a legal basis therefore.
The fourth part of the report discusses concerns of the Working Group which have arisen
primarily in the context of its recent country visits. These include:
— Insufficiency of resources allocated to the penitentiary system and the resulting
failure to protect prisoners' rights;
— Excessive recourse to and duration of pretrial detention;
— Infringements of the right to an effective defence caused by conditions of detention
and insufficient funding of legal aid programmes.
On the basis of the matters discussed, the Working Group makes recommendations aimed
at both preventing arbitrary detention in the context of the international transfer of detainees and
reducing the duration of remand detention.
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CONTENTS
Paragraphs Page
Introduction 1 - 3 4
I. FIFTEEN YEARS OF WORKING GROUP ACTIVITIES 4-7 4
II. ACTIVITIES OF THE WORKING GROUP IN 2006 8-29 6
A. Handling of communications addressed to the
Working Group during 2006 8 - 21 6
B. Country missions 22-29 14
III. LEGAL OPINION ON PREVENTING ARBITRARY
DETENTION IN THE CONTEXT OF INTERNATIONAL
TRANSFER OF DETAINEES, PARTICULARLY IN
COUNTERING TERRORISM 30-58 16
A. Introduction 30-31 16
B. Cases illustrating the Working Group's concerns 32 - 39 17
C. Preference for criminal justice and extradition
proceedings 40 - 43 19
D. Non-refoulement 44 - 49 20
E. Renditions 50- 51 22
F. Diplomatic assurances with regard to detention
andfairtrial 52-56 22
G. “Reverse diplomatic assurances” 57 - 58 23
IV. OVERVIEW OF THE PENITENTIARY SYSTEMS AND
THE CONDITIONS OF DETAINEES 59-72 24
V. CONCLUSIONS 73 -76 26
VI. RECOMMENDATIONS 77-80 27
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Introduction
1. The Working Group on Arbitrary Detention was established by the former Commission
on Human Rights in its resolution 199 1/42 and entrusted with investigating instances of alleged
arbitrary deprivation of liberty, according to the standards set forth in the Universal Declaration
of Human Rights and the relevant international instruments accepted by the States concerned.
The mandate of the Working Group was clarified and extended by the Commission in its
resolution 1997/50 to cover the issue of administrative custody of asylum-seekers and
immigrants. The mandate was confirmed by Commission resolution 2003/31 and assumed by
the Human Rights Council in its decision 2/102.
2. During 2006, the Working Group was composed of the following experts:
— Ms. Manuela Carmena Castrillo (Spain);
— Ms. Soledad Villagra de Biedermann (Paraguay);
— Ms. Lella Zerrougui (Algeria);
- Mr. Tamás Ban (Hungary);
— Mr. Seyed Mohammad Hashemi (Islamic Republic of Iran).
3. Since 4 September 2003, Ms. Lella Zerrougui has been the Chairperson-Rapporteur of
the Working Group and Mr. Tamás Ban the Vice-Chair.
I. FIFTEEN YEARS OF WORKING GROUP ACTIVITIES
4. During 2006, the Working Group held its forty-fifth, forty-sixth and forty-seventh
sessions. It also carried out official missions to Ecuador (12 to 22 February), Honduras (23 to
31 May), Nicaragua (15 to 23 May) and Turkey (9 to 20 October) (see addenda 2-5 to the current
report).
5. In the framework of the review of the mechanisms initiated by the Human Rights
Council, the Working Group would like to outline some of the work it has accomplished during
the 15 years of uninterrupted activities in the exercise of its mandate. The Working Group is the
only non-treaty-based human rights mechanism whose mandate expressly provides for
consideration of individual complaints. In addition to the adoption of Opinions on individual
cases of detention, the Working Group has also formulated the following Deliberations and
Legal Opinions on matters of a general nature, in order to develop a set of guidelines and support
States in their efforts to prevent arbitrary deprivation of liberty:
— Restricted residence or house arrest (Deliberation No. 1);
— Rehabilitation through labour (Deliberation No. 4);
AIHRC/4/40
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— Guarantees concerning detention of immigrants and asylum-seekers
(Deliberation No. 5);
— Legal Analysis of allegations against the International Criminal Tribunal for the
Former Yugoslavia (Deliberation No. 6);
— Issues related to psychiatric detention (Deliberation No. 7);
— Deprivation of liberty linked to/resulting from the use of the Internet
(Deliberation No. 8).
Deliberations Nos. 2 and 3 were adopted in response to specific questions which had been put
forward by a Government concerning the Working Group's criteria and methods of work.
Furthermore, the Working Group adopted Legal Opinions on Allegations of detention ordered by
the International Criminal Tribunal for Rwanda and on the Deprivation of liberty of persons
detained in the naval base of Guantánamo Bay.
6. Among the issues analysed over the years in the Working Group's reports, the following
deserve particular mention:
— Applicability of provisions of conventions on human rights to States that are not party
to them;
— Interpretation of the term “detention”;
— Excesses of military justice;
— Abuses of states of emergency;
— Protection of human rights defenders;
— Detention prior to extradition and extradition not followed by trial;
— Detention of conscientious objectors;
— Arrest and detention for dissemination of State secrets;
— Protective custody and detention as a means of protecting victims;
— Imprisonment related to insolvency;
— Failure to take pretrial detention into account;
— Detention motivated by sexual orientation;
AIHRC/4/40
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— Deprivation of liberty of vulnerable persons;
— Discrimination in detention;
— Impact of inadequate conditions of detention on the right to defence;
— Deprivation of liberty as a measure to countering terrorism;
— Hostage-taking and arbitrary detention;
— Secret prisons;
— Over-incarceration.
7. The Working Group considers that its official visits to countries constitute an important
instrument to strengthen its cooperation with States. To date, the Working Group has visited the
following countries:
Argentina (2003); Australia (2002); Bahrain (2001); Belarus (2004); Bhutan (1994 and
1996); Canada (2005); China (1996, 1997 and 2004); Ecuador (2006); Honduras (2006);
Indonesia (1999); Iran (Islamic Republic of) (2003); Latvia (2004); Mexico (2002);
Nepal (1996); Nicaragua (2006); Peru (1998); Romania (1998); South Africa (2005);
Turkey (2006); United Kingdom of Great Britain and Northern Ireland (1998); and
Viet Nam (1994).
II. ACTIVITIES OF THE WORKING GROUP IN 2006
A. Handling of communications addressed
to the Working Group during 2006
1. Communications transmitted to Governments
8. A description of the cases transmitted and the contents of the Governments' replies will
be found in the relevant Opinions adopted by the Working Group (AIHRC/4/40/Add. 1).
9. During its forty-fifth, forty-sixth and forty-seventh sessions, held in 2006, the Working
Group adopted 47 Opinions concerning 104 cases in 23 countries. Some details of these
Opinions are given in the table below. The complete texts of Opinions Nos. 1/2006 to 3 1/2006
are reproduced in addendum ito the present report.
2. Opinions of the Working Group
10. Pursuant to its revised methods of work (E/CN.4/1998/44, annex I, para. 18), the
Working Group, in addressing its Opinions to Governments, drew attention to Commission on
Human Rights resolutions 1997/50, 2000/36 and 2003/31 in which Governments were requested
to take account of the Working Group's Opinions and, where necessary, to take appropriate steps
to remedy the situation of persons arbitrarily deprived of their liberty, and to inform the Working
Group of the steps they had taken. On the expiry of a three-week deadline, the Opinions were
transmitted to the source.
AIHRC/4/40
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Table 1
Opinions adopted during the forty-fifth, forty-sixth and
forty-seventh sessions of the Working Group
Opinion
No.
Country
Government's
reply
Person(s) concerned
Opinion
1/2006 Uzbekistan Yes Ms. Elena Urlaeva Case filed (released)'
2/2006 Egypt Yes Mr. Metwalli Ibrahim Case filed (released)
Metwalli
3/2006 United Yes Mr. Tosin Fred Adegbuji Case filed (released)
Kingdom of
Great Britain
and Northern
Ireland
4/2006 Myanmar Yes Ms. Su Su Nway Detention arbitrary,
categories II and III
5/2006 Iraq/United Iraq: No Mr. Majeed Hameed Case filed (released)
States of United States
America of America:
Yes
6/2006 Japan Yes Mr. Kyaw Htin Aung Case filed (released)
7/2006 Yemen Yes Mr. Muhammad Abdullah Case filed (released)
Salah Al-Assad
8/2006 Libyan Arab Yes Mr. Abdel Razak Al-Mansuri Case filed (released)
Jamahiriya
9/2006 Saudi Arabia No Mr. Mustapha Muhamed Detention arbitrary,
Mubarak Saad Al-Jubairi, category I
Mr. Faysal Muhammad
Mubarek Al-Jubairi
10/2006 Algeria Yes Messrs. Salaheddine Bennia, Messrs. Salaheddine
Mohamed Harizi, Bennia, Mohamed Harizi
Amar Medriss and and Mohamed Ayoune:
Mohamed Ayoune cases filed (released)
Mr. Amar Medriss:
detention not arbitrary
11/2006 China Yes Mr. Zheng Zhihong Detention arbitrary,
category II
12/2006 Saudi Arabia No Messrs. Abdelghani Saad Detention arbitrary,
Muhamad Al Nahi Al Chehri category I
and Abdurahman Nacer
Abdullah Al Dahmane
Al Chehri
1 Under paragraph 17(a) of its revised methods of work, the Working Group shall generally file
the case, i.e. end consideration of a communication without adopting an opinion on the merits of
the case, if the person concerned is released before the Working Group adopts an opinion.
AIHRC/4/40
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Opinion
No.
Country
Government's
reply
Person(s) concerned
Opinion
13/2006 United Yes Mr. Paul Ikobonga Lopo Detention not arbitrary
Kingdom of
Great Britain
and Northern
Ireland
14/2006 Iran (Islamic Yes Ms. Kobra Rahmanpour Detention arbitrary,
Republic of) category III
15/2006 Syrian Arab Yes Mr. Ryad Hamoud Al-Darrar Detention arbitrary,
Republic categories II and III
16/2006 Syrian Arab Yes Messrs. Ahmet Muhammad Mr. Ahmet Muhammad
Republic Ibrahim, Muhammad Fa'iq Ibrahim: detention
Mustafa, Muhammed Osama arbitrary from
Sayes, Nabil Al-Marabh and 25 March 2005 until
‘Abd Al-Rahman Al-Musa his release on
3 November 2005,
category III
Mr. Muhammad Fa'iq
Mustafa: detention
arbitrary from
22 November 2002
until his release on
22 January 2006,
category III
Messrs. Muhammed
Osama Sayes,
Nabil Al-Marabh and
‘Abd Al-Rahman:
detention arbitrary,
category III
17/2006 Lebanon Yes Mr. Nehmet NaIm El Haj Detention arbitrary,
category III
18/2006 Libyan Arab No Messrs. Fardj Al Marchal, Detention arbitrary,
Jamahiriya Salah Eddine Al Aoudjili, category I
Khaled Chebli, Idris Al
Maqsubi, Djamel Aquila
Abdullah Al Abdli,
Rejib Salem Al Raqal and
Assaad Mohamed
Salem Assabar
19/2006 Iran (Islamic Yes Mr. Arash Sigarchi Detention arbitrary,
Republic of) category II
20/2006 Gabon Yes Mr. Robert Sobek Case filed (released)
21/2006 Syrian Arab Yes Messrs. Muhamad Ra'dun Cases filed (released)
Republic and Mi Al-Abdullah
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Opinion
No.
Country
Government's
reply
Person(s) concerned
Opinion
22/2006 Cameroon Yes Messrs. François Ayissi, Detention arbitrary,
Pascal Antagama Obama, category II
Alim Mongoche, Marc
Lambert Lamba, Christian
Angoula, Blaise Yankeu
Yankam Tchatchoua,
Stéphane Serge Noubaga,
Balla Adamou Yerima and
Raymond Mbassi Tsimi
23/2006 Replaced by
Opinion No.
32/2006
(Qatar)
24/2006 Colombia Yes Mr. Jhon Jaime Case filed (released)
Romafla Denis
25/2006 Romania Yes Mr. Hayssam Omar Case filed (released)
26/2006 Iran (Islamic Yes Mr. Abdolfattah Soltani From 30 July 2005 until
Republic of) 6 March 2006: detention
arbitrary, categories II
and III
27/2006 China Yes Mr. Shi Tao Detention arbitrary,
categories II and III
28/2006 Uruguay Yes Messrs. Jorge, José and Cases filed (para. 17 (d)
Dante Peirano Basso of the Working Group's
methods of work -
abandon of the complaint)
29/2006 United States No Messrs. Ibn Al-Shaykh Detention arbitrary,
of America Al-Libi; Abul Faisal; category I
Abdul Aziz; Abu Zubaydah;
Abdul Rahim Al-Sharqawi;
Abd Al-Hadi Al-Iraqi;
Muhammed Al-Darbi; Ramzi
bin Al-Shibh; Abd Al-Rahim
Al-Nashiri; Mohammed
Omar Abdel-Rahman;
Mustafa Al-Hawsawi; Khalid
Sheikh Mohammed; Majid
Khan; Yassir Al-Jazeeri; Mi
Abdul Aziz Mi; Waleed
Mohammed bin Attash; Adil
Al-Jazeeri; Hambali;
Mohamad Nazir bin Lep;
Mohammad Farik Amin;
Tariq Mahmood; Hassan
Ghul; Musaad Aruchi;
Mohammed Naeem Noor
Khan; Ahmed Khalfan
Ghailani; Abu Faraj Al-Libi
AIHRC/4/40
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Opinion
No.
Country
Government's
reply
Person(s) concerned
Opinion
30/2006 Colombia No (response Ms. Natalia Tangarife Detention arbitrary,
received after Avendaflo; Juan David category III
the end of the Ordoflez Montoya; Juan
forty-sixth David Espinoza Henao; Juan
session) Camilo Mazo Arenas; Carlos
Andres Pelaez Zapata; David
Esneider Mejia Estrada;
Andrés Maurio Zuluaga
Rivera and Yeison Arlet
Garcia Perez
31/2006 Iraq/United Iraq: No Mr. Saddam Hussein Detention arbitrary,
States of United States Al-Tikriti category III
America of America:
Yes
32/2006 Qatar Yes Mr. Amar Mi Ahmed Case filed (released)
Al Kurdi
33/2006 Iraq/ Iraq: No Mr. Tarek Aziz Detention arbitrary,
United States United States category III
of America of America:
No
39 /2006 Tajikistan Yes Mr. Mahmadruzi Iskandarov Detention not arbitrary
40/2006 Algeria Yes Mr. Abdelmadjid Touati Detention arbitrary,
category III
41/2006 China Yes Mr. Wu Hao Case filed (released)
42/2006 Japan Yes Mr. Daisuke Mon Detention not arbitrary
43/2006 United States Yes Mr. Mi Salem Kahlah Detention arbitrary,
of America Al Marri category III
44/2006 Saudi Arabia Yes Mr. Syed Asad Humayun Detention not arbitrary
45/2006 United Yes Mr. Mustafa Abdi Detention arbitrary
Kingdom of
Great Britain
and Northern
Ireland
46/2006 Democratic No Mr. Theodore Ngoyi Detention arbitrary,
Republic of categories II and III
the Congo
47/2006 China Yes Mr. Chen Guangcheng Between 12 July 2005 and
12 March 2006: detention
arbitrary, category I.
Since 12 March 2006:
detention arbitrary,
_________ _______________ _______________ _____________________________ category II
Note: As Opinions 32/2006 to 47/2006 were adopted at the forty-seventh session, they
could therefore not be reproduced as an annex to the present report but will be reproduced as an
annex to the next annual report.
AIHRC/4/40
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3. Government reactions to Opinions
11. The Government of the United States of America reacted to three Opinions of the
Working Group, arguing that the Working Group had no mandate to consider situations
governed by international humanitarian law. With regard to Opinion No. 44/2005 (United States
of America) concerning the case of Mr. Abdul Jaber Al Kubaisi, in which the Working Group
had stated that the detention of this person by the multinational force in Iraq (MNF-I) violated
the provisions of article 9 of the International Covenant on Civil and Political Rights and the
Fourth Geneva Convention, the Government stated that, since the situation in Iraq was an armed
conflict covered by international humanitarian law, the Working Group did not have a mandate
to assess the validity of security internment in that country. It further argued that under the
Geneva Conventions, a Detaining Power is able to use an administrative board to review and
decide on challenges by protected persons on their detention. It was of the opinion that the
Working Group had therefore erred in its assumption that security internees were entitled to
initiate proceedings before a judicial court. Additionally, the Covenant had no application
outside the territory of a Member State. It said that the multinational force was authorized under
Security Council resolution 1546 to intern individuals “where necessary for imperative reasons
of security”. Its mandate had been extended by the Council in its resolution 1637 (2005).
Lastly, the Government pointed out that the multinational force had released Mr. Al Kubaisi in
December 2005.
12. The Government reiterated this stance in relation to the Working Group's Opinion
No. 29/2006 (United States of America). It added that, as recently confirmed by the
United States Supreme Court in Hanidan v. Runisfelci, the law of armed conflicts governs the
armed conflict with Al-Qaida. The Supreme Court held that Common Article 3 of the Geneva
Conventions applies to that conflict. Fourteen detainees had been transferred from classified
locations to Department of Defense custody at the United States naval base at Guantánamo Bay,
Cuba. The Permanent Mission pointed out that the International Committee of the Red Cross
had had access to these detainees at Guantánamo.
13. In connection with Opinion No. 46/2005 (Iraq/United States of America), the
Government of the United States welcomed “the conclusion that the Working Group will not
take a position on the alleged arbitrariness of the deprivation of liberty of Mr. Saddam Hussein
during the period of international armed conflict”.
14. In relation to these observations, the Working Group notes that in section IV of its last
report (E/CN.4/2006/7) it had pointed out that “the application of international humanitarian
law ... does not exclude the application of international human rights law”. As explained in the
joint report by five special rapporteurs on the situation of detainees at Guantánamo Bay
(E/CN.4/2006/120, para. 83), international armed conflicts, including situations of occupation,
imply the full applicability of relevant provisions of international humanitarian law and of
international human rights law, with the exception of guarantees derogated from, provided such
derogations have been declared in accordance with article 4 of the International Covenant on
Civil and Political Rights by the State party. The United States has not notified any official
derogation from the Covenant. The Working Group's methods of work are based on the
rationale that the Geneva Conventions applying to international armed conflicts as a lex special/s
provide for specific legal grounds for deprivation of liberty, providing ICRC with the right of
access to prisoners of war, civilian internees and security or common law internees.
AIHRC/4/40
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15. However, if the detained persons are denied the protection of the Third or Fourth Geneva
Conventions, the Working Group considers that its mandate allows it to deal with
communications arising from situations of international armed conflict. Lastly, the Working
Group wishes to point out that a State's jurisdiction and responsibility extend beyond its
territorial boundaries. Thus, the Human Rights Committee has consistently held that the
Convention can have extraterritorial application.
16. With regard to Opinion No. 46/2005 (Iraq/United States of America), the Government of
the United States also stated that criminal proceedings against Saddam Hussein were ongoing
and that the Working Group had recognized his opportunities to avail himself of domestic
remedies. Such remedies had not been exhausted in this case.
17. As the Working Group noted in its last report (E/CN.4/2006/7, para. 11), the requirement
to exhaust domestic remedies applies to communications to United Nations human rights treaty
bodies but does not find application in the practice of the special procedures. On the contrary, as
far as the Working Group is concerned, Commission resolution 1997/50 establishes that, as a
rule, the Working Group shall deal with cases in which the national judiciary has not yet spoken
its final word. In accordance with these principles, during its forty-sixth session the Working
Group adopted a final Opinion on the case of Saddam Hussein (Opinion No. 31/2006)
(Iraq/United States of America).
4. Communications giving rise to urgent appeals
18. During the period from 9 November 2005 to 8 November 2006, the Working Group
transmitted 156 urgent appeals to 58 Governments concerning 1,615 individuals (1,394 men,
151 women, and 70 minors). In conformity with paragraphs 22 to 24 of its methods of work, the
Working Group, without prejudging whether the detention was arbitrary, drew the attention of
each of the Governments concerned to the specific case as reported, and appealed to them to take
the necessary measures to ensure that the detained persons' rights to life and to physical integrity
were respected.
19. The following table provides an overview of the urgent appeals sent.
Table 2
Urgent appeals
Government
concerned
Number of
urgent
appeals
Persons concerned
Reply
Persons released/
Information
received by
Algeria
Armenia
Azerbaijan
Bahrain
Belarus
Bhutan
Burundi
1
1
3
1
2
1
3
2 men
1 man
7 men and 3 minors
7 men
217 men, 36 women,
45 minors
2 men
5 men
Reply to 1
No reply
Reply to 1
Reply to 1
No reply
Reply to 1
No reply
2 (Source)
50 (Source)
2 (Source)
AIHRC/4/40
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Government
Number of
Persons concerned
Reply
Persons released!
concerned
urgent
appeals
Information
received by
Cambodia 2 4 men No reply
Chile 1 1 woman No reply 1 (Source)
China 9 25 men, 5 women Reply to 7 3 (Government)
3 (Source)
Colombia 3 22 men, 3 women Reply to 3
Cuba 3 4 men, 1 woman Reply to 3
Democratic 1 1 man Reply to 1
People's
Republic of
Korea
Djibouti 1 2 men No reply 2 (Source)
Ecuador 1 1 man No reply 1 (Source)
Egypt 2 3 men Reply to 2
Eritrea 1 172 men No reply
Ethiopia 5 150 men, Reply to 2 62 (Source)
2 women, 2 minors
Gambia 2 25 men, 1 woman No reply 2 (Source)
Georgia 1 1 man No reply 1 (Source)
Equatorial 1 4 men No reply
Guinea
India 2 3 men No reply 3 (Source)
Indonesia 1 58 men Reply to 1
Iran (Islamic 22 98 men, 7 women, Reply to 7 9 (Source)
Republic of) 9 minors
Iraq 1 14 men No reply
Israel 6 10 men Reply to 1
Kazakhstan 1 1 man No reply
Kyrgyzstan 2 4 men No reply
Libyan Arab 1 215 men, 80 women No reply
Jamahiriya and 5 children
Maldives 3 8 men, 3 women Reply to 2
Morocco 2 4 men, 1 woman No reply
Mauritania 1 18 men Reply to 1
Mexico 3 14 men, 2 women, Reply to 2 1 (Source)
2 minors
Mozambique 1 3 men No reply
Myanmar 5 20 men, 2 women, No reply
1 minor
Nepal 1 1 man No reply 1 (Source)
Niger 2 3 women No reply
Nigeria 2 3 men, 1 woman No reply 2 (Source)
Pakistan 4 9 men, 1 woman Reply to 2
Philippines 1 9 men, 2 minors Reply to 1
AIHRC/4/40
page 14
Governmen
concerned
t
Number of
urgent
appeals
Persons concerned
Reply
Persons released!
Information
received by
Republic of
1
2 men
Reply to 1
Korea
Moldova
2
2 men
Reply to 1
2 (Source)
Democratic
5
13 men,
1 woman
No reply
2 (Source)
Republic of
the Congo
Russian
4
16 men
Reply to 3
4 (Source)
Federation
Saudi Arabia
1
1 man
No reply
Senegal
1
1 man
Reply to 1
1 (Government)
Singapore
2
2 men
Reply to 1
Sudan
8
129 men
Reply to 2
34 (Source)
Syrian Arab
11
29 men
Reply to 5
15 (Source)
Republic
Chad
2
6 men, 1
minor
No reply
1 (Source)
Tunisia
1
1 man
No reply
Turkey
1
1 man
Replyto 1
Turkmenistan
2
6 men, 3
women
No reply
4 (Source)
United Arab
2
14 men
No reply
Emirates
United States
of
1
1 man
No reply
America
Uzbekistan
4
18 men,
1 woman
No reply
Venezuela
1
1 man
No reply
Yemen
1
1 man
No reply
1 (Source)
20. The Working Group wishes to thank the Governments that heeded its appeals and took
steps to provide it with information on the situation of the persons concerned, and especially the
Governments that released those persons. In other cases, the Working Group was assured that
the detainees concerned would receive a fair trial.
21. The Working Group notes that 54 of its 156 urgent appeals were replied to, which
amounts to 34.62 per cent. This figure is 3.5 per cent less than that for the same period last year.
The Working Group therefore invites Governments to increase their cooperation with the Group
under its urgent action procedure.
B. Country missions
1. Request for visits
22. The Working Group has been invited to visit Equatorial Guinea and Norway, although no
specific dates have yet been fixed. It has requested to visit Colombia, Italy and Sierra Leone,
three countries which, in spite of having extended an open formal invitation to all the thematic
AIHRC/4/40
page 15
mechanisms of the Human Rights Council, have not yet replied to the Working Group's
requests. During its forty-sixth session, the Working Group held meetings with representatives
of the Governments of Angola, India, the Libyan Arab Jamahiriya and the United States to
examine the possibility of visiting those countries in 2007. During its forty-seventh session, the
Working Group made a revision of the list of countries it had requested to visit in the past and
decided to reiterate its request to be authorized to visit, in addition to those already mentioned,
the following countries: Afghanistan, Angola, Ethiopia, Guinea Bissau, India, Libyan Arab
Jamahiriya, Turkmenistan and the United States of America.
2. Follow-up to country visits of the Working Group
23. In its resolution 1998/74, the Commission on Human Rights requested those responsible
for the Commission's thematic mechanisms to keep the Commission informed on the follow-up
to all recommendations addressed to Governments. In response to this request, the Working
Group in 1998 decided (see E/CN.4/1999/63, para. 36) to address a follow-up letter to the
Governments of the countries it had visited, together with a copy of the relevant
recommendations adopted by the Working Group contained in the reports on its country visits.
24. Communications were addressed to the Governments of Belarus, Latvia and China
requesting information on such initiatives as the authorities might have taken to give effect to the
recommendations contained in the reports to the Commission on the Working Group's visits to
these countries in 2004 (E/CN.4/2005/6/Add.3, 2 and 4, respectively).
Latvia
25. At the end of the Working Group's visit to Latvia, the Government informed the
Working Group that its recommendations were being carefully examined with a view to
amending legislative norms and improving administrative practices. The Government's
priorities in the area of criminal justice were to improve the effectiveness of control over
detention, paying special attention to the situation ofjuveniles; to facilitate the work for
probation services; to promote alternative sanctions and to improve the physical conditions of
detention. The Ministry of Justice was implementing a juvenile court system and had prepared a
draft of a new Criminal Procedure Code. A Law on State-guaranteed Free Legal Assistance had
been adopted and another Law on the imposition of Coercive Measures on Children had entered
into force. The Imprisonment Facility Management Board had placed among its priorities the
establishment of a central national register of imprisoned persons.
Belarus
26. At the end of the Working Group's visit to Belarus, the Government reported that some
amendments and additions were being made to the legislation on the conditions of pretrial
detention, as well as to the law on criminal proceedings for minors. It was working to implement
the Working Group's recommendations, particularly through the adoption of a code on the
administration ofjustice and the status ofjudges. A draft law on the legal status of foreigners
had been drawn up. Efforts were continuing to improve the Criminal Procedure Code. It further
reported that the Working Group's recommendations on the judicial decisions of forced
placement in psychiatric hospitals were also under due consideration.
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China
27. Following the Working Group's visit to China, the Government informed the Group that
it had taken due note of its recommendations and that the relevant departments were studying
them carefully.
Ecuador
28. Concerning the visits carried out during 2006, the Government of Ecuador reported that it
was working on the implementation of the Group's recommendations. By Executive Decree
No. 1339 of 20 April 2006, it has established the Sub-Secretariat of Citizen Security, which will
have, as a main responsibility, to guarantee the respect of human rights of detainees through the
necessary coordination of the activities of the National Police, the Attorney-General's Office, the
Judiciary and the National Directorate for Social Rehabilitation. The municipalities of Cuenca,
Guayaquil and Quito were drafting a legal norm which would allow them to participate in
issues concerning contraventions and minor offences. This would accelerate the judicial
processes for such infractions and guarantee the rights of the detainees. Lastly, by Executive
Decree No. 1330-A of 7 April 2006, the Government had declared all the penitentiary
establishments to be in a state of emergency, thus obtaining the necessary financial resources to
urgently attend to the needs of such detention centres. A sum of USS 8 million was immediately
assigned.
Nicaragua
29. The Government of Nicaragua reported that it had undertaken measures to comply with
the recommendations of the Working Group. For instance, concerning the situation of the
detention centres in the Southern Atlantic Autonomous Region (RAAS), it announced that it had
decided to build a new penitentiary in the city of Bluefields and was trying to obtain the required
financial resources.
III. LEGAL OPINION ON PREVENTING ARBITRARY DETENTION IN
THE CONTEXT OF INTERNATIONAL TRANSFER OF DETAINEES,
PARTICULARLY IN COUNTERING TERRORISM
A. Introduction
30. Cooperation among States in law enforcement and criminal justice matters is crucial to
international efforts to bring to justice perpetrators of terrorist acts, their accomplices and
financial supporters, and thereby prevent further terrorist attacks. In reacting to the
unprecedented terrorist attacks on the United States of America, the Security Council decided in
resolution 1373 (2001) of 28 September 2001 that all States shall “Afford one another the
greatest measure of assistance in connection with criminal investigations or criminal proceedings
relating to the financing or support of terrorist acts, including assistance in obtaining evidence in
their possession necessary for the proceedings” (para. 2 (1)). In the same resolution, the Council
also called upon all States to “Cooperate, particularly through bilateral and multilateral
arrangements and agreements, to prevent and suppress terrorist attacks and take action against
perpetrators of such acts” (para. 3 (c)).
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31. It is therefore not surprising that the Working Group has seen an increase in the number
of cases brought to its attention in which more than one Government is involved in the, allegedly
arbitrary, deprivation of a suspected terrorist's freedom. The following cases dealt with by the
Working Group provide some recent examples.
B. Cases illustrating the Working Group's concerns
32. Opinion No. 43/2005 relates to a man handed over by the security forces of Myanmar to
the police of China, although he had been recognized as a refugee by the Office of the
United Nations High Commissioner for Refugees. In China he was detained and put on trial on
charges of terrorist activities, which the Working Group found to be aimed at suppressing his
“legitimate political and not violent activities carried out peacefully and in exercise of his rights
to the freedom of association and expression” (para. 23).
33. Opinion No. 47/2005 concerns three men of Yemeni origin. One of them was arrested in
the Islamic Republic of Iran and handed over by the security forces to the Government of
Afghanistan, which, after three months of keeping him in detention, in turn handed him over to
the Government of the United States. After one month at Baghram Air Base, outside Kabul, he
was transported to Guantánamo Bay, were he remained for approximately two years. In
May 2004, the United States authorities removed him to Yemen, where he has been in detention
ever since. The second man was arrested by the police in Indonesia and removed to Jordan; the
third man also lived in Indonesia and was arrested at Amman airport. Both were interrogated
and tortured by Jordanian security forces before being handed over to United States military
forces, which held them consecutively at two secret underground detention facilities (so-called
“black sites”) for 18 and 20 months respectively. In both places, the two men were interrogated
about their activities in Afghanistan and Indonesia, and about their knowledge of other persons
suspected of terrorist activities. Thereafter, the Government of the United States transferred
them to Yemen, where they remain detained since May 2005. None of the transfers from the
custody of one State to another was accompanied by any judicial or other hearing or extradition
proceedings. Iii all three cases, the Yemeni authorities informed the source that the detainees
were being held without charges at the request of the United States authorities and would remain
detained in Yemen pending receipt of their files from the United States authorities for
investigation. Such files, however, have not been forthcoming notwithstanding the respectively
one and two years that have elapsed. 2
34. Opinion No. 16/2006 concerns five men of Syrian origin who had been living in the
United Kingdom, Turkey, the United States (two) and Bulgaria. All were deported to the Syrian
Arab Republic, where they were immediately arrested at the airport, detained at secret locations
or otherwise incommunicado, and put on trial before special courts grossly violating fair-trial
guarantees.
2 The Working Group was informed that subsequent to the adoption of its opinion, a Yemeni
court sentenced them to a short prison term and they were released.
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35. Opinion No. 29/2006 concerns 26 men held, some of them for five years by now, by the
United States Central Intelligence Agency (CIA) at secret detention facilities around the world
for the purpose of interrogation. They were arrested by the authorities (generally the intelligence
services) of their country of residence, in most cases Pakistan, but also the United Arab
Emirates, Thailand and Iraq, and handed over to the CIA without any procedure contemplated by
law. Allegations were also received regarding the existence of a related system of secretly
returning prisoners to their home country when they have outlived their usefulness to the
United States. The transfer practice is also known as “rendition” or “extraordinary rendition”.
36. In December 2005 and June 2006 the Chairperson of the Working Group joined the
Special Rapporteur on torture, inhuman or degrading treatment or punishment and the Special
Rapporteur on the independence ofjudges and lawyers in two urgent appeals to the Government
of Kyrgyzstan, asking that it desist from returning five Uzbek refugees to the authorities of
Uzbekistan. The Chairperson of the Working Group did so out of concerns that “the Uzbek
authorities might not guarantee these persons the right to a fair trial. [ .1 These concerns regard
irregularities in the preparation of the trial, inadequate defence procedures, the definition of the
crime of terrorism in national law, which might not be compatible with the requirements of
articles 6 and 15 of the International Covenant on Civil and Political Rights, and the excessive
reliance of the courts on confessions”. The Government of Kyrgyzstan did not reply to the
special procedures' urgent communication. The five men were returned to Uzbekistan in
August 2006.
37. Finally, the joint report on the situation of detainees at Guantánamo Bay
(E/CN.4/2006/120) also illustrates the Working Group's concerns regarding the transfer of
terrorism suspects from one jurisdiction to another. The six men of Algerian origin transferred
to Guantánamo from Bosnia and Herzegovina (see paragraph 25 of the report) were handed over
to United States forces by the authorities of Bosnia and Herzegovina in violation of an order by
the highest human rights court of the country. 3 Five years later, they are still detained without
charges. Five of the Uighurs (see paragraph 28 (e) of the report), who according to the
Combatant Status Review Tribunal were not “enemy combatants”, were subsequently transferred
from Guantánamo to Albania, where - according to information received in the meantime by the
Working Group - they are held at a refugee camp in Tirana, a former prison, enclosed with
barbed wire, which they are permitted to leave only for short periods.
38. In all these cases (with the exception of the urgent appeals, which do not imply an
opinion of the Working Group on the legality of detention), the Working Group found the
detention to be arbitrary. What the Working Group would like to draw attention to here is the
responsibility and obligations of the Governments who cooperate in transferring persons to the
custody of a State where there are substantial grounds for believing that there is a real risk of
arbitrary detention.
For the circumstances of the arrest and transfer of the six men to Guantánamo Bay, see the
decision of the Human Rights Chamber for Bosnia and Herzegovina of 11 October 2002 in case
No. CH/02/8679 et al., Boudellaa & Others v. Bosnia and Herzegovina and Federation of
Bosnia and Herzegovina, available at www.brc.ba.
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39. The Working Group finds it useful to recall two fundamental principles that international
law provides in this respect: first, the preference for criminal justice as instrument to hold
perpetrators of terrorist acts accountable and render them harmless; secondly, the principle of
non-refoulement.
C. Preference for criminal justice and extradition proceedings
40. The International Convention for the Suppression of Terrorist Bombings, 4 which
counts 145 States parties, constitutes a useful starting point for this inquiry. The Convention
provides that a State on whose territory a person suspected of a terrorist bombing crime is found
must either prosecute the suspect or extradite him to another State willing to prosecute
(art. 8 (1)). Furthermore, “ [ ulpon being satisfied that the circumstances so warrant, the State
Party in whose territory the offender or alleged offender is present shall take the appropriate
measures under its domestic law so as to ensure that person's presence for the purpose of
prosecution or extradition” (art. 7 (2)), which under many circumstances will be arresting the
suspect. The Convention contains numerous other provisions aimed at strengthening the
obligation to cooperate through extradition proceedings and international judicial assistance.
41. The Convention for the Suppression of Unlawful Acts Against the Safety of Civil
Aviation, 5 the International Convention Against the Taking of Hostages, 6 the Convention on the
Prevention and Punishment of Crimes against Internationally Protected Persons, including
Diplomatic Agents, 7 and other anti-terrorism conventions ratified by a large majority of
Member States of the United Nations all unmistakably enshrine the same principle: suspected
terrorists must be prosecuted or extradited for prosecution in another country. These
conventions, which the Security Council in the wake of the 11 September 2001 attacks urged all
countries that had not already done so to ratify, do not contemplate prolonged administrative
detention as an alternative to criminal justice, nor do they envisage formless “renditions” as an
alternative to the guarantees of extradition proceedings. 8
“ This Convention entered into force on 23 May 2001. As of 1 January 2006, the Convention
had 148 parties.
Entered into force on 26 January 1973. To date, the Convention has 183 parties.
6 Entered into force on 3 June 1983. To date, the Convention has 153 parties.
Entered into force on 20 February 1977. To date, the Convention has 159 parties (see, in
particular, article 7).
8 On the contrary, article 8 of the Diplomatic Agents Convention, for example, endeavours to
make the Convention a sufficient basis for extradition where extradition would otherwise not be
possible under the domestic laws of one of the two countries.
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42. This preference for accusations of involvement in terrorist crimes to be put in the form of
criminal charges and aired in a criminal trial, where procedures are in place to test them, instead
of remaining amorphous and often as secret suspicions underlying unchallenged administrative
detention is not peculiar to the anti-terror conventions. It is already implied in article 11 of the
Universal Declaration of Human Rights, the first paragraph of which reads: “Everyone charged
with a penal offence has the right to be presumed innocent until proved guilty according to law
in a public trial at which he has had all the guarantees necessary for his defence.” Articles 9 and
14 of the International Covenant on Civil and Political Rights are inspired by the same
preference for criminal proceedings.
43. Extradition proceedings can only take place if there is a request to that end by a State
different from the one on whose territory the terrorism suspect is found. International law also
recognizes the right of States to expel or deport from their territory non-citizens who represent a
threat to national security 9 in the absence of a request for extradition. What distinguishes
deportation or expulsion from the practice of renditions, however, is that they have a basis in
national law and are preceded by an administrative process resulting in a decision which is
notified to the person to be expelled or deported and can be challenged before a court. This
opportunity to challenge the removal from the territory of the State is essential to uphold the
principle of non-refoulement.
D. Non-refoulement
44. The principle of non-refoulement is enshrined in both international refugee law and
international human rights law. Article 33 of the 1951 Convention relating to the Status of
Refugees, which reflects customary international law,'° states as follows:
“1. No Contracting State shall expel or return (‘refouler') a refugee in any manner
whatsoever to the frontiers of territories where his life or freedom would be threatened on
account of his race, religion, nationality, membership of a particular social group or
political opinion.
“2. The benefit of the present provision may not, however, be claimed by a refugee
whom there are reasonable grounds for regarding as a danger to the security of the
country in which he is, or who, having been convicted by a final judgement of a
particularly serious crime, constitutes a danger to the community of that country.”
See paragraph 2 of article 33 of the 1951 Convention relating to the Status of Refugees.
10 . . . .
The United Nations anti-terrorism conventions also acknowledge the need to protect
fundamental rights of those whose extradition is requested in connection with charges of
terrorism (see, for example, articles 12 and 14 of the International Convention for the
Suppression of Terrorist Bombings).
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45. In international human rights law the principle of non-refoulement is explicitly contained
in article 3 of the Convention against Torture and Other Cruel, hthuman or Degrading Treatment
or Punishment, which prohibits the removal of a person to a country where there are substantial
grounds for believing that he or she would be in danger of being subjected to torture. Under the
International Covenant on Civil and Political Rights, though not explicitly enshrined in a
separate provision, the obligation not to extradite, deport, expel or otherwise remove a person is
not limited to the risk of torture but extends also to violations of the right to life and to cruel,
inhuman or degrading treatment or punishment.”
46. While many bilateral and multilateral treaties provide for the possibility of denying a
request for extradition if there are well-founded concerns that the person to be extradited would
not enjoy a fair trial in the receiving State, the reluctance of States and international human rights
bodies to extend the application of the prohibition of refoulement to the rights protected by
articles 9 and 14 of the Covenant is comprehensible. It would constitute a considerable obstacle
to the legitimate faculty to deport or expel non-citizens if the sending State had to assess in every
case whether the person concerned would be at risk of not being tried within a reasonable time if
charged, or of not being compensated if unlawfully arrested, or of not having “adequate time and
facilities for the preparation of his defence” if charged and tried - particularly as deportation and
expulsion are generally not connected to criminal charges in the receiving State.
47. The principle of non-refoulement remains, however, relevant also with regard to arbitrary
detention. Where there are substantial grounds for believing that there is a real risk that the
person to be removed from the territory will be deprived of his or her liberty in the receiving
State (as is often the case when the ground for removal is a suspicion of involvement in terrorist
activities), the sending State should examine whether such detention would be arbitrary within
the meaning of the three categories of arbitrary detention identified in the Working Group's
methods of work:
— Deprivation of liberty without legal basis;
— Deprivation of liberty to repress the exercise of fundamental freedoms, such as
freedom of religion, freedom of opinion, freedom of association;
— Deprivation of liberty in grave violation of international fair-trial norms.
48. In many cases this test will overlap with the prohibition of refoulement already
mandatory for States under international treaty and customary law: prolonged incommunicado
12 . .
detention and indefinite detention can both amount to inhuman treatment; deprivation of liberty
“ See, for example, Human Rights Committee general comment No. 31 on article 2 of the
Covenant, paragraph 12.
12 As stated by the Commission on Human Rights in its resolution 2003/3 8, “prolonged
incommunicado detention may facilitate the perpetration of torture and can in itself constitute a
form of cruel, inhuman or degrading treatment”.
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as a result of the exercise of freedoms of expression or opinion will most of the time fall under
the scope of article 33 of the 1951 Refugee Convention. Moreover, as a matter of experience,
torture, inhuman and degrading treatment are much more likely to occur in detention when
procedural safeguards protecting the legality of detention are disregarded.
49. The cases brought to the Working Group's attention, however, evidence the need for
Governments to include the risk of arbitrary detention in the receiving State per se among the
elements to be taken into consideration when asked to extradite, deport, expel or otherwise hand
a person over to the authorities of another State, particularly in the context of efforts to counter
terrorism. To remove a person to a State where there is a genuine risk that the person will be
detained without legal basis, or without charges over a prolonged time, or tried before a court
that manifestly follows orders from the executive branch, cannot be considered compatible with
the obligation in article 2 of the International Covenant on Civil and Political Rights, which
requires that States parties respect and ensure the Covenant rights for all persons in their territory
and under their control. If the three categories of arbitrary detention identified by the Working
Group are used as standard, extending the prohibition of refoulement to the risk of arbitrary
detention will not place an unrealistic burden on Governments. In fact, the United Nations
Model Treaty on Extradition places a more exigent obligation on Governments. Under its
article 3 (f) it is a mandatory ground to refuse extradition “ [ flf the person whose extradition is
requested ... would not receive the minimum guarantees in criminal proceedings, as contained in
the International Covenant on Civil and Political Rights, article 14”.
E. Renditions
50. The practice of “renditions”, i.e. the informal transfer of a person from the jurisdiction of
one State to that of another on the basis of negotiations between administrative authorities of the
two countries (often the intelligence services), without procedural safeguards is irremediably in
conflict with the requirements of international law. When a Government eludes procedural
safeguards, in particular the affected person's right to be heard, it cannot in good faith claim that
it has taken reasonable steps to protect that person's human rights after removal, including the
right not to be arbitrarily detained. As a consequence, it will share responsibility for ensuing
arbitrary detention.
51. Governments should therefore stop all forms of rendition and return to the extradition,
deportation and expulsion proceedings that are well established in their laws. This is in no way
incompatible with the obligation to cooperate swiftly and effectively in international efforts to
counter terrorism.
F. Diplomatic assurances with regard to detention and fair trial
52. The practice of obtaining “diplomatic assurances” from the receiving State in order to
overcome the obstacle of the non-refoulement principle has been much discussed recently. As
far as detention and fair trial are concerned, such assurances are acceptable only if very stringent
conditions are met.
53. First, they must not be used to circumvent higher applicable standards. Where an
extradition treaty is in force between two States, removal for criminal proceedings must take
place pursuant to that treaty. if the treaty provides, along the lines of article 3 (f) of the
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United Nations Model Treaty on Extradition, that extradition shall be refused if there is a risk of
a trial falling short of article 14 guarantees in the receiving country, then extradition must be
refused if there is such a risk, and no diplomatic assurances (which would constitute recognition
of the existence of the risk) can legitimately overcome the obstacle. Similarly, if extradition is
possible in the absence of a treaty on the basis of the domestic legislation of the sending country,
diplomatic assurances cannot be used to circumvent a prohibition on extradition if there is a risk
of arbitrary detention or unfair trial.
54. A second precondition is that the sending State has reason to consider the assurances
reliable and that the authority in the receiving State that is giving the assurances is in fact in a
position to ensure compliance.
55. Thirdly, diplomatic assurances can never be acceptable where the sending Government
has substantial grounds for believing that there is a real risk of treatment contrary to article 7 of
the Covenant upon removal. In this respect, the Working Group agrees with the Special
Rapporteur on torture, inhuman or degrading treatment or punishment in rejecting diplomatic
assurances as “unreliable and ineffective” insofar as torture is concerned.' 3
56. In the end, diplomatic assurances regarding detention and trial can be a legitimate means
only when, on the one hand, the prohibition of refoulement does not otherwise impede the
removal (in particular, no risk of torture or other ill-treatment) and, on the other hand, the
guarantees provided by extradition proceedings are not available. Instead of such diplomatic
assurances, however, the Working Group notes a phenomenon that could be named “reverse
diplomatic assurances”.
G. “Reverse diplomatic assurances”
57. Whereas in the case of diplomatic assurances a sending Government seeks from the
receiving Government a (however ineffective) guarantee that the person extradited, deported or
expelled will not be subjected to treatment contrary to human rights norms, in the case of
“reverse diplomatic assurances” the sending Government seeks precisely assurances that the
person handed over will be deprived of liberty, although there are no criminal charges against
him and no other legal basis for detention. The cases in Opinion No. 47/2006 are an example of
this practice. The Working Group has also received information that in its efforts to move
detainees from so-called “black sites” and from the Guantánamo Bay detention facilities to the
detainees' country of origin or third countries, the United States Government is seeking such
“reverse diplomatic assurances”, i.e. asking receiving Governments to detain the persons handed
over despite the absence of criminal charges or to otherwise indefinitely place heavy restrictions
on their freedom. The Working Group underlines that Governments cannot accept detainees
under such conditions without incurring serious violations of their obligations under international
human rights law.
‘ Ibid. See also report of the Special Rapporteur on torture and other cruel, inhuman or
degrading treatment or punishment (A160/3 16, para. 51).
AIHRC/4/40
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58. This does not mean that any and all commitments by the receiving State to take measures
to prevent a person suspected of constituting a threat to the sending State even after removal
have to be rejected. It might be acceptable for a receiving State to undertake to keep a person
returned to its territory under surveillance, as long as such surveillance does not amount to a
deprivation of liberty without charges, is not as intrusive as to violate other fundamental rights
(e.g. the right to respect for privacy and family life), and is subject to periodic review.
IV. OVERVIEW OF THE PENITENTIARY SYSTEMS
AND THE CONDITIONS OF DETAINEES
59. Since its establishment, the Working Group on Arbitrary Detention has tried to cooperate
in avoiding detention in violation of the rights enshrined in the Universal Declaration of Human
Rights and the International Covenant on Civil and Political Rights, or at least diminishing the
number of persons so detained. After 15 years of efforts and noting the changes currently
introduced by the Human Rights Council, the Working Group believes this is a good moment to
undertake a general assessment of what it had encountered on the penitentiary systems and the
condition of detainees.
60. The Working Group has so far visited several types of detention centres in 21 countries
and has received a significant number of communications from different sources claiming the
arbitrariness of the detention of hundreds of individuals. It has thereby been able to acquire a
better knowledge of the different penitentiary systems around the world, the conditions of the
detainees in prisons, particularly of the detainees in pretrial detention. Moreover, it has been
made aware of the increase in the number of people in detention in the whole world, but
particularly in the developed countries. Troubled by this information,' 4 it felt that the issue had
to be tackled and evaluated in this annual report. The Working Group, aware that some aspects
of the penitentiary system fall outside its mandate, is nevertheless convinced that a decrease in
the prison population contributes to a better functioning of prisons and, at least indirectly, to a
more effective social rehabilitation.
61. The Working Group observes that the majority of persons in detention come from a poor
milieu and that a large number of them are in pretrial detention. Furthermore, their situation is
often extremely precarious and they do not enjoy the guarantees established by the relevant
international norms, mainly the Universal Declaration of Human Rights, the International
Covenant on Civil and Political Rights and the Body of Principles for the Protection of All
Persons under Any Form of Detention or Imprisonment.
62. The Working Group also notes that, in spite of the fact that many States have ratified the
main international instruments relating to detention, their implementation in many countries
leaves much to be desired. The mechanisms of judicial control set forth are, in many cases, just
formal and do not constitute a real safeguard against arbitrary detentions.
“ According to statistics prepared by the School of Law, King's College, London, at the end of
February 2005 there were 9 million people detained around the world, the majority of whom
were pretrial detainees.
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63. The situation of detainees varies and depends on the penitentiary systems and the
structures of the judiciary and of the administration ofjustice in each country. Therefore, in
most cases, those who are detained in countries where the system is better structured and well
equipped enjoy better conditions while in detention. Nonetheless, it was also noted that even in
countries where human rights are largely and institutionally recognized and developed, prisons
and detention facilities still fail to fulfil the most elementary needs of the prisoners with regard to
food, health and security.
64. A number of developed countries have increased and gathered large amounts of their
public financial budget for the development of their penitentiary systems. Unfortunately, this
has reinforced the isolation and marginalization of the detainees because their rights are still not
fully guaranteed. This could also be a cause of relapse upon release.
65. The detainees are deprived of their basic needs, which has serious repercussions on their
rights to life and to physical and moral integrity. Some are also affected by being kept in
isolation. Being detained far from their families impedes them from having access to adequate
resources. The disengagement of the State obliges the detainees to find other means to ensure
their security, nutritional and health needs. As a result, prisons are abandoned to the control of
gangs or “mafia” groups, composed mainly of prisoners but also of guards. And what can be
witnessed in these detention facilities or prisons are horrifying human rights violations, going
from modem forms of slavery to the murder of detainees.
66. The Working Group has already expressed its concern over the impact of precarious
conditions of detention on the rights of detainees. In its 2004 annual report, it stated that
inadequate conditions of detention have a negative impact on the exercise of rights that fall
squarely within its mandate, such as the right to legal defence. This issue has principally
affected and weakened pretrial detainees and thereby impaired the principle of “equality of
arms”. Under such circumstances, a fair trial can no longer be ensured even if other procedural
guarantees are scrupulously observed. States have the obligation to protect the basic rights of
people under their custody and cannot disengage themselves from this responsibility. The
Working Group wished to recall that pretrial detainees have the right to be presumed innocent
until proven guilty according to law. In the case of convicts, the punishment is solely the
deprivation of liberty and should not imply threats to the life or to the physical integrity or the
security of detainees.
67. The Body of Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment, adopted by the General Assembly in 1988, establishes that a person detained on a
criminal charge shall be entitled to trial within a reasonable time or to be released pending trial.
68. However, the Working Group notes that in some countries, there are detainees who are
still waiting to be tried after 12 or 13 years. For some of these persons, the time they spend in
pretrial detention will not even count as a credit concerning the sentence to be served. The
Working Group raises the question as to whether these detainees will have to be condemned
based on the evidence set forth against them or in order to avoid the burden of having to justify
the release of a person who has spent such a long time in pretrial detention.
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69. Moreover, the Working Group frequently finds detainees in pretrial detention, who have
been accused of no serious offence. They are kept in custody only to ensure that they will appear
before the judge. Therefore, these individuals are not detained because of the real danger that
they could represent to the society but because States are simply not capable of guaranteeing that
they will appear in court.
70. The increase in the number of detained persons, as well as in the number of proceedings
pending before the courts, also has a negative effect on the administration of justice and its
operators. The judiciary often lacks financial and technical resources, which frequently leads to
ineffective administration of justice and to insufficient control of cases. For instance, in many
lawsuits, the Working Group noted that the detainees had never been directly questioned by the
judge in charge of their cases. Like the judges, defence lawyers are also swamped and are
confronting a serious increase in their workload. Many have neither the technical nor the
financial and management resources to prepare their cases adequately and exercise their defence
in adequate conditions.
71. The Working Group wishes to point out that the systems of legal aid, i.e. public defence
lawyers and lawyers appointed and paid by States in order to ensure a basic defence to the
accused (depending on the legal aid system of the country), do not work satisfactorily
everywhere.
72. Consequently, the guarantees established by article 14 of the International Covenant on
Civil and Political Rights, are not being appropriately fulfilled in several States. These
guarantees include the right to have adequate time and facilities for the preparation of one's
defence and to communicate with counsel of one's own choosing; the right to be heard by a
competent, independent and impartial judge and the right to interrogate witnesses during the
trial.
V. CONCLUSIONS
73. The Working Group welcomes the cooperation it has received from States in the
fulfilment of its mandate. In the great majority of cases in which the Group adopted an Opinion
during its three sessions in 2006, the Government concerned had provided submissions regarding
the case.
74. The Working Group welcomes the cooperation on the part of Governments that extended
invitations to the Group for visits. Thanks to this cooperation, in 2006 the Working Group was
able to visit Ecuador, Honduras, Nicaragua and Turkey. During its forty-seventh session, the
Working Group made a revision of the list of countries it had requested to visit on official
mission. It decided to persist in its requests to receive invitations to visit Afghanistan, Angola,
Ethiopia, Guinea-Bissau, India, Italy, the Libyan Arab Jamahiriya, Turkmenistan and the
United States of America, and to receive specific timing proposals for its visits to Colombia,
Equatorial Guinea and Sierra Leone.
75. In a new Legal Opinion, the Working Group concludes that the transfer of detainees
without procedural safeguards is in conflict with international law. Governments should stop all
forms of rendition and return to the legal proceedings of extradition, deportation and expulsion.
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The practice of diplomatic assurances is acceptable only if the very stringent conditions
mentioned in the Legal Opinion are met. On the contrary, the practice of “reverse diplomatic
assurances”, as described in the current report, constitutes a serious violation of international
human rights law.
76. The Working Group calls upon all States to join political and technical efforts in order to
ensure and guarantee the basic needs and rights of people in detention. The Group considers that
the minimum conditions are the following: the protection of the security, health and nutritional
needs of the detainees and of their rights to have access to an adequate legal defence and to a fair
trial.
VI. RECOMMENDATIONS
Growth in prison populations, particularly in developed countries
77. Having been made aware of an increase in the number of people being detained
around the world, particularly in developed countries, the majority of the detainees being
in pretrial detention, the Working Group recommends that this recent growth in prison
populations should be studied and debated with a view to developing measures favouring
respect of the rights of the detainees.
Detention on remand
78. Regarding detention on remand, the Working Group addresses to States the
following reconunendations:
(a) Time spent in pretrial detention should be credited towards the sentence to
be served;
(b) Detainees acquitted in first instance should be immediately released;
(c) Domestic legislations should establish the maximum duration of pretrial
detention, which should not exceed the sanction established for the offence attributed to the
accused;
(d) Effective remedies to ensure compliance with limits on the duration of
remand detention should be put in place.
Alternatives to deprivation of liberty
79. States should review their legislation in order to establish or enlarge the scope of
alternatives to deprivation of liberty as a sanction for criminal offences.
International transfer of detainees
80. With regard to the international transfer of detainees, particularly in the context of
countering terrorism, the Working Group reconunends:
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(a) Governments removing persons in their custody from their territory and into
the custody of another Government should do so within proceedings that offer adequate
safeguards, in particular to argue before an independent body offering judicial guarantees
that removal would expose those persons to extrajudicial killing, torture or other cruel,
inhuman or degrading treatment, or arbitrary detention and denial of a fair trial;
(b) Governments should not engage in so-called “renditions”, which undermine
such guarantees and are very likely to result in arbitrary detention;
(c) Governments should refuse to give assurances that they wifi deprive of their
freedom persons transferred to their territory, unless such assurances can be given in
accordance with both the domestic legislation and the Government's international human
rights obligations.
