UNIItL )
NATIONS
Economic and Social
Council
COMMISSION ON HUMAN RIGHTS
Sixtieth session
Item 11(a) of the provisional agenda
Distr.
GENERAL
E/CN.4/2004/3
15 December 2003
ENGLISH
Original: ENGLISHIFRENCH/
SPANISH
CIVIL AND POLITICAL RIGHTS, INCLUDING THE QUESTIONS
OF TORTURE AND DETENTION
Report of the Working Group on Arbitrary Detention
Chairperson-Rapporteur: Lella Zerroflgui
C
GE.03-17072 (E) 100304 160304
E/CN. 4/2004/3
page 2
Summary
The Working Group on Arbitrary Detention was established by the Commission on
Human Rights in its resolution 1991/42 and entrusted with the investigation of instances of
alleged arbitrary deprivation of liberty. The mandate of the 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.
During 2003, the Working Group visited the Islamic Republic of Iran and Argentina at
the invitation of the Governments of those countries. The reports on these visits are contained in
addenda 2 and 3 to the present document.
During the same period, the Working Group adopted 26 Opinions concerning
151 persons in 12 countries. In 131 cases, it considered the deprivation of liberty to be arbitrary.
Also during the period 23 November 2002-7 November 2003, the Working Group
transmitted a total of 157 urgent appeals concerning 812 individuals to 47 Governments; 147
were joint appeals with other thematic or country-oriented mandates of the Commission on
Human Rights. Thirty-three concerned Governments informed the Working Group that they had
taken measures to remedy the situation of the detainees. In some cases, the detainees were
released. In other cases, the Working Group was assured that the detainees concerned would
receive fair trial guarantees.
The Working Group has continued to develop its follow-up procedure and has sought to
engage in continuous dialogue with those countries visited by the Group, in respect of which it
had recommended changes of domestic legislation governing detention. Following its
thirty-seventh session, the Group requested the Governments of hidonesia, Peru and Romania to
provide follow-up information on the recommendations resulting from the Group's visit to those
countries in 1998 and 1999.
In its recommendations in this annual report, the Working Group attaches particular
importance to the question of protection of human rights and fundamental freedoms in the
context of the fight against terrorism.
As issues of concern, the Working Group mentions this year:
(a) Discrimination;
(b) Deprivation of liberty of vulnerable persons;
(c) Pre-trial detention; and
(d) Deprivation of liberty linked to the use of the Internet.
E/CN.4/2004/3
page 3
CONTENTS
Paragraphs Page
Introduction 1 - 5 4
I. ACTIVITIES OF THE WORKING GROUP 6-49 4
A. Handling of communications addressed to the
WorkingGroup 7-32 4
B. Country missions 33 - 49 13
II. THE QUESTION OF PROTECTION OF HUMAN RIGHTS
AND FUNDAMENTAL FREEDOMS IN THE CONTEXT
OF THE FIGHT AGAINST TERRORISM 50-71 17
III. ISSUES OF CONCERN 72 - 78 21
A. Discrimination 72 - 73 21
B. Deprivation of liberty of vulnerable persons 74 21
C. Pre-trial detention 75 - 76 22
D. Deprivation of liberty linked to the use of the Internet 77 - 78 22
IV. CONCLUSIONS 79- 83 22
V. RECOMMENDATIONS 84-87 23
Annex: Statistics 25
E/CN. 4/2004/3
page 4
Introduction
1. The Working Group on Arbitrary Detention was established by the Commission on
Human Rights in its resolution 1991/42 and entrusted with the investigation of instances of
alleged arbitrary deprivation of liberty, of the standards set forth in the Universal Declaration of
Human Rights and of the relevant international instruments accepted by the States concerned.
The mandate of the 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.
2. During 2003, the Working Group was composed of the following experts: Soledad
Villagra de Biedermann (Paraguay), Lella ZerroUgui (Algeria), Tamás Ban (Hungary), Seyyed
Mohammad Hashemi (Islamic Republic of Iran) and Louis Joinet (France), later replaced by
Manuela Carmena Castrillo (Spain).
3. The Working Group has so far submitted 12 reports to the Commission, covering the
period 199 1-2002 (E/CN.4/1992/20, E/CN.4/1993/24, E/CN.4/1994/27, E/CN.4/1995/31 and
Add.1-4, E/CN.4/1996/40 and Add.1, E/CN.4/1997/4 and Add.1-3, E/CN.4/1998/44 and Add.1
and 2, E/CN.4/1999/63 and Add.1-4, E/CN.4/2000/4 and Add.1 and 2, E/CN.4/2001/14 and
Add.1, E/CN.4/2002/77 and Add.1 and 2 and E/CN.4/2003/8 and Add.1-3). The Working
Group's initial three-year mandate was first extended by the Commission in 1994 and again
extended in 1997, 2000 and 2003 for another three years.
4. As a result of Commission on Human Rights decision 2000/109 on enhancing the
effectiveness of the mechanisms of the Commission, the composition of the Working Group has
gradually changed during the last three years. Pursuant to the decision, Mr. Joinet resigned from
the Working Group in July 2003 and was replaced in August 2003 by Ms. Carmena Castrillo.
The Working Group has thus culminated the process of renewal of its membership recommended
by the above-mentioned decision.
5. At its thirty-seventh session, on 4 September 2003, Ms. ZerroUgui was unanimously
elected Chairperson-Rapporteur of the Working Group, after resigning as Vice-Chairperson. At
the same session, the Working Group unanimously elected Mr. Ban as its new Vice-Chairperson.
I. ACTIVITIES OF THE WORKING GROUP
6. During 2003, the Working Group held its thirty-sixth, thirty-seventh and
thirty-eighth sessions. It also carried out an official mission to the Islamic Republic
of Iran (15-27 February 2003) and another mission to Argentina (22 September-2 October 2003).
A. Handling of communications addressed to the Working Group
1. Communications transmitted to Governments
7. 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 (E/CN.4/2004/3/Add. 1).
E/CN.4/2004/3
page 5
8. During its three sessions in 2003, the Working Group adopted 26 Opinions
concerning 151 persons in 12 countries. Some details of the Opinions adopted during those
sessions appear in the table hereunder and the complete texts of Opinions Nos. 1/2003 to
18/2003 are reproduced in addendum ito the present report. The table also provides
information about eight Opinions adopted during the thirty-eighth session, details of which could
not, for technical reasons, be included in an annex to the present report.
2. Opinions of the Working Group
9. Pursuant to its methods of work (E/CN.4/1998/44, annex I, para. 18), the Working
Group, in addressing its Opinions to Governments, drew their attention to Commission
resolutions 1997/50, 2000/36 and 2003/31 requesting them 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.
Opinions adopted during the thirty-sixth, thirty-seventh and
thirty-eighth sessions of the Working Group
Opinion
No.
Country
Government's
reply
Person(s) concerned
Opinion
1/2003 VietNam Yes Le Chi Quang Detention arbitrary,
category II
2/2003 China Yes Yang Jianli Detention arbitrary,
category III
3/2003 Egypt Yes (after Mu'awwadhMohammad Detention arbitrary,
the adoption Youssef Gawda category I
of the
Opinion)
4/2003 Algeria Yes Karim Abrica, Chabane Adryen, Case filed (para. 17(a) of
Kader Belaidi, Kamel Bendou, the Working Group's
Khadir Benouareth, methods of work - persons
Karim Benseddouk, provisionally released)
Azeddine Ikane, Hocine Kaci, (Ms. ZerroUgui did not
Fares Ouedjdi, HacCne Saleh, participate in the
Abderrahmane Si-Yahia, deliberations on or the
Kamel Soufi, Kamel Talbi and adoption of this Opinion)
Chabane Tiza
5/2003 United States of No Mourad Benchellali, Khaled Ben Detention arbitrary,
America Mustafa, Nizar Sassi and Hamed category I
Abderrahman Ahmed
6/2003 Tunisia Yes Abdallah Zouari Cases filed (para. 17(d) of
the Working Group's
methods of work)
E/CN. 4/2004/3
page 6
Opinion
No.
Country
Government's
Person(s) concerned
Opinion
7/2003 China Yes Zhong Bo, Liu Li and Gai Suzhi Cases filed (para. 17(a) of
the Working Group's
methods of work)
Chen Gang, Zhang Wenfu, Detention arbitrary,
Wu Xiaohua, Liu Junhua, category II
Zhang Jiuhai and Zhu Xiaofei
8/2003 Iran (Islamic Yes Syamak Pourzand Detention arbitrary,
Republic of) category II (Mr. Hashemi
did not participate in the
deliberations on or the
adoption of this Opinion)
9/2003 Cuba Yes Nelson Aguiar RamIrez and 78 Detention arbitrary,
other persons category II
10/2003 China Yes Yue Wu and Ms. Zhang Qi Detention arbitrary,
category I
Wang Bingzhang Detention arbitrary,
category III
11/2003 Syrian Arab Yes Jaramani Najib Youcef Detention arbitrary,
Republic category III
12/2003 China Yes Bifeng Li and LiuXianbin Detention arbitrary,
category II
13/2003 China Yes Tenzin Choewang, Sey Khedup, Detention arbitrary,
T serin Lhagon, Yeshi T enzin, category II
Thraba Yeshi, Ngawang Tsultrim,
Nyima Dhakpa
Gyurmey Case pending until further
information is received
(para. 17(c) of the Working
Group's methods of work)
14/2003 Maldives Yes Mohammed Zaki, Ibrahim Moosa Detention arbitrary,
Luthfee, Ahmed Ibrahim Didi and category III
Fathimath Nisreen
15/2003 Tunisia Yes Zouhair Yahyaoui Detention arbitrary,
categories II and III
16/2003 Cuba Yes Lester Téllez Castro, Carlos Detention arbitrary,
Brizuela Yera, Carlos Alberto category II
DomInguez and Bemardo Arévalo
Padrón
17/2003 Cuba Yes Leonardo Miguel Bruzón Avila, Detention arbitrary,
Juan Carlos Gonzalez Leyva and category II
Oscar ElIas Biscet Gonzalez
E/CN.4/2004/3
page 7
Opinion
No.
Country
Government's
reply
Person(s) concerned
Opinion
18/2003
Syrian Arab
Republic
Yes
Tanious Kamil El-Habr
Detention arbitrary,
category I
19/2003
Thailand
Yes
Abdelkader Tigha
Case filed (para. 17(a) of
the Working Group's
methods of work)
20/2003
Viet Nam
Yes
Thadeus Nguyen van Ly
Detention arbitrary,
category II
21/2003
China
Yes
Li Ling and P ci Jilin
Detention arbitrary,
category II
22/2003
Algeria
Yes
Khaled Matari
Detention arbitrary,
category III
23/2003
China
No
Xu Wenli
Detention arbitrary,
categories II and III
24/2003
Israel
Yes
Matan Kaminer, Adam Maor,
Noam Bahat and Jonathan
Ben-Artzi
Detention arbitrary,
category III
25/2003
China
No
Di Liu
Detention arbitrary,
categories II and III
26/2003
China
No
Yi Ouyang and Changqing Zhao
Detention arbitrary,
category II
Note: Opinions Nos. 19/2003 to 26/2003, adopted during the thirty-eighth session, could
not be reproduced in the annex to the present report; they will be reproduced as an annex to the
next annual report.
3. Government reactions to Opinions
10. On 28 April 2003, the Chairperson-Rapporteur of the Working Group wrote to the
Permanent Representative of Egypt to the United Nations Office at Geneva requesting updated
information on the so-called “Queen Boat” case. By note verbale dated 2 May 2003, the
Permanent Mission replied the following:
“Given that decisions of the High Court of State Security are not subject to appeal and
cannot be overruled, the matter was referred to the President of the Republic, who, as
commander-in-chief of the armed forces, issued a decision confirming the sentence
passed on the first two offenders, namely five years' imprisonment, and overruling the
judgements handed down on the other 21 offenders, which were all referred back to the
ordinary courts, the Qasr el-Nil court of the first instance (thus the case is no longer under
the jurisdiction of the special courts).”
11. In connection with Opinion No. 3/2003 (Egypt), the Government of Egypt reported that
Mr. Mu'Awwadh Mohammad Youssef Gawda was released on 20 July 2003, after he no longer
seemed to pose a threat. He had been arrested because of the threat he posed to public security
E/CN. 4/2004/3
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as a member of the terrorist organization Al-Jama'ah Al-Islamiyyah (the Islamic Group), an
illegal organization under the terms of the Constitution. His case was processed in accordance
with all the legal and judicial procedures stipulated in the Emergency Act.
12. The source informed the Working Group of the liberation in China of Mrs. Wu Xiachua
as referred to in Opinion No. 7/2003. The Working Group welcomes the liberation of this
person.
13. Regarding Opinion No. 2 1/2002 (United States of America), the Government of the
United States reported that Mr. Ayub Ali Khan (alias Syed Gul Mohammed Shah) was
transferred to immigration custody on 25 October 2002, upon completing his criminal sentence.
He was subsequently removed from the United States. Mr. Azmath Jaweed (alias
Mohammed Azmath) was transferred to immigration custody on 19 September 2002. He was
subsequently removed from the United States. The men had been detained on immigration
violations on 12 September 2001 in Texas, after law enforcement officials found box cutters,
hair dye, a knife and several thousand dollars among their belongings. They were detained on
charges of overstaying their immigration visas, were charged with conspiracy to commit credit
card fraud on 13 December 2001 and were indicted on 14 January 2002.
14. The Government of Tunisia informed the Working Group that Mr. Zouhair Yahiaoui
had been released on parole on 18 November 2003 and requested it to reconsider Opinion
No. 15/2003 on the grounds that the defendant had been given a fair trial and had been sentenced
for telephone fraud, misinformation on an Internet site and disturbing public security. The
Working Group welcomes the early release of Mr. Zouhair Yahaoui but, while noting the
Government's position, cannot find any new information that might, given the Group's methods
of work, invalidate the arguments on which its Opinion is based.
15 With regard to Opinion No. 19/2002, the Government of Peru informed the Working
Group that the Supreme Council of Military Justice's decision had found private Rolando Quispe
Berrocal guilty of fraud, which is classified as an offence in article 301, paragraph 4, of the
Military Justice Code. At the same time, the civil courts were conducting investigations in order
to determine the criminal responsibility of Mr. Federico Ayarza Richter, Mr. Elvys Paucar
Ipchas and Mr. Wilber Llactahuaman Astoray, accused by Mr. Quispe Berrocal of having
committed a crime against humanity in the form of torture, and a crime against the
administration ofjustice by mounting a cover-up.
16. The Government of the United States of America disagreed with the legal opinion
contained in chapter III of the last report of the Working Group to the Commission on Human
Rights (E/CN.4/2003/8) regarding the deprivation of liberty of persons detained at
Guantánamo Bay. It reported that there were approximately 625 persons detained at
Guantánamo and the detainees had begun arriving in January 2002. They were enemy
combatants detained in the course of an armed conflict under the laws and customs of war. None
had been charged with a criminal offence. Should a detainee be charged, that detainee would be
provided fundamental procedural safeguards, including counsel.
17. The Government of the United States of America added that under the laws and customs
of war, the detaining power was not obliged to prosecute detained enemy combatants or release
them prior to the end of the conflict. Captured enemy combatants had no right of access to
E/CN.4/2004/3
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counsel to challenge their detention. In appropriate cases, the United States would return
detainees to their country of origin or nationality. In fact, it had released 64 detainees
(July 2003).
18. The Government further stated that the consequences of conflating human rights law and
the law of war-international humanitarian law would be dramatic and unprecedented. The two
systems were distinct. On the other hand, the enemy combatants were not entitled to
prisoner-of-war (POW) status. Shortly after the arrival of the detainees at Guantánamo, the
President of the United States determined that the conflict with the international terrorist group
al-Qa'idah was not covered by the Geneva Conventions. Members of al-Qa'idah and the Taliban
did not enjoy POW status because they did not meet the criteria applicable to lawful combatants.
Consequently, they could be detained at least for the duration of hostilities. They were not
honourable soldiers who abided by the law of armed conflict, but terrorist combatants who
violated the law of armed conflict and basic principles of international humanitarian law. Their
detention was not an act of punishment but one of security and military necessity.
19. For the same reasons, the Government of the United States also disagreed with Opinion
No. 5/2003 (United States of America). The Government explained that, for reasons of national
security, it was not in a position to provide information regarding the four persons detained in
Guantánamo mentioned in the Opinion.
20. In conclusion, the Government of the United States considered that the Working Group
on Arbitrary Detention lacked competence to address law-of-armed-conflict issues.
21. Regarding Opinion No. 10/2003 (China), the Government of China reported that the
courts had determined that, since the 1980s, Wang Bingzhang had collected military secrets of
mainland China for Taiwan intelligence agencies, advocated violence and assassination,
organized a terrorist group and planned to conduct explosions in Beijing and against the Chinese
Embassy in Thailand. He was not a so-called internationally recognized activist in
pro-democracy movements, but rather a criminal who had been engaged in espionage and
terrorist activities endangering the national and public security of China. During his judicial
process, Mr. Wang benefited from the right to legal counsel, to presumption of innocence and to
a fair and speedy trial.
22. The Government of Cuba considered that in rendering its Opinion No. 9/2003 the
Working Group was violating the principles of objectivity, impartiality and non-selectivity. All
the persons mentioned in the Opinion had been found guilty of taking part regularly in meetings
organized by the United States Interest Section in Havana, for the purposes of maintaining the
trade embargo and discouraging possible foreign investment; conspiring to subvert Cuba's
constitutional and institutional order; fabricating false information about Cuban society and the
economy; meeting and communicating regularly with officials and agents of the United States
intelligence services and Cuban-American terrorist organizations, and other offences, none of
which had anything to do with freedom of opinion, expression or assembly. According to the
Government of Cuba, the Working Group assumed that all the arguments put forward by the
source were valid, and had not considered, as it should have done, any of the information duly
and promptly furnished by the Government.
E/CN. 4/2004/3
page 10
4. Communications giving rise to urgent appeals
23. During the period 23 November 2002-7 November 2003, the Working Group
transmitted 157 urgent appeals to 47 Governments concerning 812 individuals (778 men
and 34 women). In accordance 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. When the appeal made reference to the critical state of health of certain persons
or to particular circumstances, such as failure to execute a court order for release, the Working
Group requested the Government concerned to take all necessary measures to have the persons
concerned released.
24. During the period under review, 157 urgent appeals were transmitted by the Working
Group as follows:
Government concerned
Number of urgent
appeals
Persons concerned
Reply
Azerbaijan 4 70 men Reply to 1
Bangladesh 5 1 woman, 12 men Reply to S
Burundi 1 8 men Reply to 1
China 7 2 women, 11 men Reply to 7
Colombia 1 1 man Reply to 1
Comoros 1 1 man No reply
Cuba 3 1 woman, 4 men Reply to 3
Democratic Republic of the Congo 5 4 women, 20 men Reply to 1
Dominican Republic 1 2 men Reply to 1
Egypt 5 25 men Reply to 3
Equatorial Guinea 1 1 man No reply
Eritrea 3 26 men No reply
Gabon 1 5 men No reply
Honduras 1 3 men Reply to 1
Indonesia 2 21 men No reply
Iran (Islamic Republic of) 8 23 men Reply to 2
Israel 5 3 women, 10 men Reply to S
Jamaica 1 1 man No reply
Jordan 1 1 man No reply
Kenya 1 2 men No reply
Kyrgyzstan 1 1 man Reply to 1
Lebanon 1 1 man Replyto 1
Libyan Arab Jamahiriya 1 1 man No reply
Malaysia 3 7 men Reply to 3
E/CN.4/2004/3
page 11
Government concerned
Number of urgent
Persons concerned
Reply
appeals
Mauritania
3
94 men
No reply
Mexico
1
1 woman,
8 men
Reply to
1
Myanmar
4
2 women,
55 men
Reply to
2
Nepal
24
2 women,
49 men
Reply to
3
Niger
1
2 men
No reply
Pakistan
3
6 men
No reply
Philippines
2
1 woman,
9 men
Reply to
1
Russian Federation
1
1 man
Reply to
1
Rwanda
1
1 man
No reply
Saudi Arabia
2
1 woman,
83 men
Reply to
1
Sri Lanka
1
1 man
Reply to
1
Sudan
24
6 women,
145 men
Reply to
3
Syrian Arab Republic
6
4 women,
9 men
Reply to
6
Tajikistan
1
1 man
No reply
Thailand
2
13 men
Reply to
2
Tunisia
2
2 men
Reply to
2
Turkey
3
5 men
Reply to
3
Uganda
1
2 men
No reply
United States of America
1
1 man
No reply
Uzbekistan
4
2 women,
S men
Reply to
4
Viet Nam
2
2 men
Reply to
1
Yemen
1
1 man
No reply
Zimbabwe
4
2 women,
55 men
Reply to
1
25. Of these 157 urgent appeals, 147 were appeals issued jointly by the Working Group and
thematic or geographical special rapporteurs (the Special Rapporteur on the question of torture;
the Special Rapporteur on freedom of opinion and expression; the Special Rapporteur on the
independence ofjudges and lawyers; the Special Rapporteur on extrajudicial, summary or
arbitrary executions; the Special Representaive of the Secretary-General on human rights
defenders; the Special Rapporteur on the situation of human rights and fundamental freedoms of
indigenous people; the Special Rapporteur on adequate housing; the Special Rapporteur on the
right of everyone to the enjoyment of the highest attainable standard of physical and mental
health; the Special Rapporteurs on the situation of human rights in the Democratic Republic of
the Congo, in Myanmar and in the Sudan).
26. The Working Group wishes to thank those Governments that heeded its appeals and took
steps to provide it with information on the situation of the persons concerned, especially the
Governments that released those persons. In other cases, the Working Group was assured that
the detainees concerned would receive fair trial guarantees. The Government of Bangladesh
reported that Zaiba Malik, journalist, and L. Bruno Sorrentino, cameraman, of the British TV
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company Channel-4, were released from detention and returned to their respective countries.
The two journalists apologized for having entered the country improperly by concealing
their professional identities. The Government of Bangladesh also reported that
Mohiuddin Khan Alamgir, Shahriar Kabir, Allalou Farid, Muntasir Mamun,
Saber Hossain Chowdhury and Saleem Samad, were released on 18 September 2002, and
on 7, 9, 12 and 19 January 2003, respectively. The Government of Burundi reported that
Alexandre Nzeyimana had been released on 17 February 2003. The Government of the
Dominican Republic reported that José Gonell Franco and Abraham Corniel, who had been
interrogated in connection with charges of defamation against the son of the President of the
Republic, were released pending investigation.
27. The Government of China reported that Liu Shujie, who had been sentenced to two
years' re-education through labour, was sent home since she was suffering from coronary heart
disease. Wang Yuzhi was allowed to serve her term of re-education through labour outside the
custodial facility, for health reasons. Later, she left the country. Zha Peng (Shongdu), Dan Zeng
(Tamding), Xiong Di (Palzin) and Renzeng Enli (Ngodup), who had taken part in the December
2002 disturbances at the Wuming (Serthar) Buddhist seminary in Sichuan province, were
released after serving their terms of 10-15 days' administrative detention.
28. The Government of Egypt reported the liberation of one of the persons who were
arrested on 1 January 2003 pursuant to the terms of a warrant issued by the Department of
Higher State Security. Concerning the arrest of 13 other supposed members of the banned
Muslim Brotherhood group, the Government advised that they were being kept in custody
pending further investigation. The Government of Egypt also reported that the persons
detained during a manifestation against the war in Iraq had been released after interrogation.
Mohammed Hassan Hassan and Ramez Gehad Fathi, who were detained for breaching public
order and encouraging disorder, were released on 6 June 2003. Marwan Ahmad was released on
the day of his arrest, without any action being taken against him.
29. On 6 May 2003, the Government of the Islamic Republic of Iran reported that all
Iranian Jews arrested in 2000 in Shiraz on charges of espionage had been released on parole.
On 23 October 2003, it reported that Mazaheri Kalahroudi was released on 4 September 2003.
The Government of Israel reported that Anan Nabih Labadeh was released on 24 April 2003.
Jihad Abu Ayesh (aged 15) and Hussam Zeitun (aged 14) were stopped briefly at the Huwara
checkpoint on 1 June 2003. They were never arrested and were free to continue on their way
within the hour. The Government of Kyrgyzstan reported that Erlan Bektemirov had been
released but that he was subject to a restricted residence order. Mr. Bektemirov had been
charged with distributing leaflets for an extremist religious organization. The Government of
Lebanon reported that Hanna Chalita had been released on bail according to an order from
investigating magistrate Abdallah Bitar.
30. The Government of Myanmar reported that Soc Pa Pa Hlaing was released after
interrogation. Ninety-six persons who were arrested for their participation in the incidents which
took place on 30 May 2003 were released after necessary interrogation, including Khin Win,
Maung Maung, Ko Than Aung and Ko Aung Them Myint. The Government of Saudi Arabia
reported that Abdul Mohsen Musalam was released on 3 April 2002. He had been detained on
the basis of a civil action brought against him after he wrote a poem besmirching the reputation
ofjudges. The Government of the Sudan advised that Ghazi Suleiman, Chairman of the
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Sudanese Association for Human Rights, was released on 15 July 2003. Hassan Abdalla
Alturabi, leader of the opposition party “The Popular Congress”, was released
on 13 October 2003. The Government stated that there were no more political detainees in
the Sudan.
31. The Government of the Syrian Arab Republic advised that Abd al-Razaq Shular was
released after questioning. Fathiya Rajab Damur, who was arrested when she arrived from Iraq
on 9 April 2003, was released once it was established that she had no case to answer. The
Government of Thailand reported that Pirjo Svensson-Rytilahti, a nurse of Swedish nationality
who was arrested on 29 April 2003, was deported on 5 June 2003. The Government of Tunisia
advised that the most senior examining magistrate of the first instance court of Tunis had
ordered, on 25 December 2002, the liberation of Fadhel Ben Hedi Naouar, arrested in the context
of investigations into the attack against the La Bhriba synagogue in Djerba. The Government of
Turkey reported that journalists Anestis Mutatis and Joannis Canellakis were released promptly
after their detention. The Government of Uzbekistan reported that Halima Ismailova was
released from custody on 16 June 2003. Lastly, the Government of Zimbabwe reported that
Lovemore Madhuku was released on bail.
32. The Group notes that only 43.21 per cent of its urgent appeals were replied to and
consequently invites Governments to increase their cooperation under the urgent action
procedure.
B. Country missions
1. Visits carried out
33. During 2003, delegations of the Working Group visited the Islamic Republic of Iran
(15-27 February) and Argentina (22 September-2 October). The reports on those visits are
contained in addenda 2 and 3 to the present report.
2. Visits scheduled
34. The Working Group has expressed interest in visiting the following countries:
(a) Belarus. During the fifty-first session of the Sub-Commission on the Promotion
and Protection of Human Rights (20 August 1999), the Permanent Representative of Belarus to
the United Nations Office at Geneva stated that the Government of Belarus would invite the
Working Group on Arbitrary Detention to visit the country. By letter dated 4 December 2001,
the Deputy Permanent Representative of Belarus to the United Nations Office at Geneva
informed the Chairperson of the Working Group that the issue of the organization of the
Working Group's visit to Belarus was under consideration by the competent authorities and that
final dates would be agreed upon through diplomatic channels. During the Working Group's
thirty-eighth session, consultations were held between the Permanent Mission of Belarus to the
United Nations Office at Geneva and the Working Group. The visit is now planned to take place
during May/June 2004 or September/October 2004;
(b) Canada. lii November 2002, the Working Group initiated consultations with the
Permanent Mission of Canada to the United Nations Office at Geneva, with a view to conducting
E/CN. 4/2004/3
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a mission to that country. The Government has issued a standing invitation to all thematic
mechanisms of the Commission on Human Rights. The visit is now scheduled to take place in
June 2005
(c) Latvia. The Government of Latvia has also issued a standing invitation to all
thematic mechanisms of the Commission. In January 2002 the Working Group initiated
consultations with the Permanent Mission of Latvia to the United Nations Office at Geneva, with
a view to conducting a mission to that country to study the legal, judicial and administrative
aspects of the question of detention in Latvia. During the Working Group's thirty-seventh and
thirty-eighth sessions, meetings were held with the Counsellor at the Permanent Mission in
Geneva. The visit is scheduled to take place from 23 to 28 February 2004;
(d) Nauru and Papua New Guinea. The Working Group wrote to both Governments
in 2002 expressing its interest in receiving an invitation to visit those countries in order to study
the question of the administrative detention of unauthorized arrivals, asylum-seekers and
refugees. No response has been received so far. The Working Group's request to visit those
countries is a consequence of its mission to Australia. Since September 2001, large numbers of
asylum-seekers arriving without authorization in Christmas Island, Cocos Island and Ashmore
Reef have been transferred to Nauru and Manus Island in Papua New Guinea where they are
reportedly housed in detention centres pending an asylum determination process;
(e) Angola and Guinea-Bissau. No response has been received from the
Governments of these African countries. The Working Group hopes to receive invitations to
visit them in the near future;
(f) Libyan Arab Jamahiriya. In January 2003, the Working Group requested a
formal invitation from the Libyan authorities to conduct an official mission to the
Libyan Arab Jamahiriya. In February 2003, the Working Group was informed by the Permanent
Mission of the Libyan Arab Jamahiriya to the United Nations Office at Geneva that the
competent authorities in Tripoli were considering attentively the possibilities of extending an
official invitation for such a visit;
(g) South Africa. The Working Group considered the standing invitation extended by
the Government of South Africa on 23 July 2003 to all the thematic mechanisms of the
Commission on Human Rights and decided to write to the Government expressing its interest in
receiving an invitation to visit South Africa during 2004. During the Working Group's
thirty-seventh session, conversations were held in this regard with the Chargé d'affaires a.i. of
the Permanent Mission of South Africa to the United Nations Office at Geneva.
35. On 22 January 2002, the Working Group requested an invitation to visit the United States
of America and the military base of Guantánamo Bay in order to examine in situ the legal
aspects of the detention of people as a consequence of the 11 September 2001 attacks.
On 17 December 2002, the Government of the United States declined the request, considering
that the Working Group lacked the competence to address what it considered
law-of-armed-conflict issues, not international human rights matters. According to the
Government, representatives of the International Committee of the Red Cross (ICRC), which it
considered to be the organization vested with the competence to conduct such visits, had access
to the detainees on a regular basis.
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3. Follow-up to country visits of the Working Group
36. By resolution 1998/74, the Commission on Human Rights requested those responsible for
the Commission's thematic mechanisms to keep the Commission informed about the follow-up
to all recommendations addressed to Governments in the discharge of their mandates. In
response to this request, the Working Group decided, in 1998 (see E/CN.4/1999/63, para. 36), to
address a follow-up letter to the Governments of the countries it visited, together with a copy of
the relevant recommendations adopted by the Group contained in the reports on its country
visits.
37. Communications were addressed on 4 September 2002 and 16 July 2003 to the
Governments of Indonesia, Peru and Romania requesting information on such initiatives as the
authorities might have taken to give effect to the recommendations contained in the reports of the
Group to the Commission on its visits to those countries in 1998 and 1999
(E/CN. 4/2000/4/Add.2; E/CN.4/1 999/63/Add.2 and E/CN.4/1 999/63/Add.4).
38. The Government of Indonesia informed the Working Group about the various measures
that it had adopted since the visit of the Working Group in 1999. In particular, the Government
pointed out that since 1999, hundreds of political prisoners had been released or had their parole
restrictions removed. In addition, a National Police Commission had been formed to advise the
President and to exercise oversight of police management and performance.
39. In order to ensure independence of the judiciary, a Judicial Commission and a
Constitutional Court had been created under an amendment to the Constitution. The Judicial
Commission will act as an external supervisor, including for the appointment and inspection of
judges across the country. The Constitutional Court will have the authority to review judicial
laws, adjudicate disputes between State institutions, dissolve political parties and resolve
electoral disputes. A Human Rights Court was also created to try cases of grave human rights
abuses, genocide and crimes against humanity.
40. The Government of Indonesia further informed the Working Group that other measures
to help strengthen the judiciary included the revocation of the controversial Law on Subversion
and the Internal Security Act. Emergency laws and measures were now dealt with
comprehensively within the legal system, which included two types of emergency law: civilian
and military. Such measures were recently adopted in Aceh to help restore security in the face of
a deteriorating situation.
41. Finally, the Government informed the Working Group that the Law on Criminal
Procedure and the Penal Code were being reviewed. A legal aid system was being set up by law
societies and universities.
42. The Government of Mexico informed the Working Group that it considered the report on
the visit to its country (E/CN.4/2003/8/Add.3), which had taken place between 27 October and
10 November 2002, to be an objective report that reflected the problems still facing the country
in the area of human rights and the administration ofjustice. The recommendations in the report
would be examined by the Inter-Ministerial Commission on Government Policy on Human
Rights and the Federal Government's mechanism for dialogue with civil society. Both the report
and the recommendations would be very useful for the overall stocktaking of the human rights
E/CN. 4/2004/3
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situation in the country being carried out during the second phase of the cooperation programme
signed between the Government of Mexico and the Office of the United Nations High
Commissioner for Human Rights.
43. The Government of Mexico also made some comments on the report to follow up on the
Working Group's recommendations.
44. The Working Group thanks the Government of Mexico for having implemented some of
its recommendations.
45. The Government of Australia rejected the report of the Working Group on its mission to
that country in 2002 (E/CN.4/2003/8/Add.2). According to the Government, the report
contained fundamental factual errors, misrepresented its policies and was confused about the
relationship between international and Australian law. Examples of factual errors included
claims that asylum-seekers were routinely handcuffed when outside detention centres, the
existence of barbed wire around a small residential housing project at Woomera, and the
affirmation that unauthorized arrivals were not able to challenge their continued detention before
a court.
46. Immigration detention is an essential element underpinning the integrity of Australia's
migration programme and the protection of Australia's borders. There is no recognition in the
Working Group's report of the role Australia plays every year in the resettlement of thousands of
refugees around the world. In conclusion, the Government considered that, yet again, a
United Nations human rights body had produced a report misguidedly critical of Australia.
47. With regard to the comments of the Government of Australia, the Working Group notes
that the Human Rights Committee, in its Views adopted on 6 August 2003 on communication
No. 1014/2001 (Oniar SharzfBaban v. Australia) (CCPRIC/78/D/1014/2001, para. 7.2), reached
the same conclusions as did the Working Group following its visit to Australia
(E/CN.4/2003/8/Add.2, para. 63) regarding the incompatibility of the indiscriminate mandatory
detention system with the international norms.
48. The Working Group was informed that, in June 2003, the Australian Family Court
claimed jurisdiction to examine cases of child detainees and ruled that holding minors in
immigration detention centres indefinitely would be illegal. The Family Court stated that it had
an obligation under the Convention on the Rights of the Child to protect minors held under the
Government's immigration policies. The Government considered that the Family Court did not
have jurisdiction over children held in detention centres. The Working Group urges the
Government of Australia to consider urgently the immediate release of the children held in
detention centres for immigration reasons. Their continued detention, as the Working Group
observed during its visit to the country, is harmful to their welfare.
49. The Working Group was also informed that, in June 2003, at least 400 asylum-seekers,
mainly from Afghanistan, the Islamic Republic of Iran and Iraq, remained in Nauru. Australia is
compensating Nauru for hosting the facilities for asylum-seekers with an extensive development
assistance programme.
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II. THE QUESTION OF PROTECTION OF HUMAN RIGHTS AND
FUNDAMENTAL FREEDOMS IN THE CONTEXT OF THE
FIGHT AGAINST TERRORISM
50. Since 11 September 2001, efforts to combat terrorism have accelerated at an astounding
pace to become one of the priorities, if not the priority of all Governments and intergovernmental
systems, at both the regional and international levels. Effective action to combat terrorism is
claimed by some as grounds for relieving States of their obligations under international law,
particularly those relating to human rights and fundamental freedoms. In that connection,
addressing the Security Council Counter-Terrorism Committee, on 6 March 2003, the
Secretary-General said: “Our responses to terrorism as well as our efforts to thwart it and
prevent it should uphold the human rights that terrorists aim to destroy. Human rights,
fundamental freedoms and the rule of law are essential tools in the effort to combat terrorism -
not privileges to be sacrificed at a time of tension.”
51. The General Assembly and the Security Council recalled, on 18 December 2002
and 20 January 2003 respectively, in resolution 57/219 entitled “Protection of human rights and
fundamental freedoms while countering terrorism” and in the declaration on the issue of
combating terrorism attached to resolution 1456 (2003), that States must ensure that any measure
taken to combat terrorism complies with their obligations under international law, in particular
international human rights, refugee and humanitarian law. States were also encouraged to
consider the recommendations of the special procedures and mechanisms of the Commission on
Human Rights and the relevant comments and views of United Nations human rights
treaty-monitoring bodies.
52. On 25 April 2003, the Commission on Human Rights reaffirmed those principles in
resolution 2003/68 entitled “Protection of human rights and fundamental freedoms while
countering terrorism”, and requested the United Nations High Commissioner for Human Rights,
using all relevant special procedures and mechanisms of the Commission, to consider, within his
mandate, the question of the protection of human rights and fundamental freedoms in the context
of measures to combat terrorism.
53. The Working Group takes note of these resolutions and draws the Commission's
attention to the fact that, since 11 September 2001, it has received many communications about
the arbitrary character of detention in several countries where inquiries into terrorist acts are
being conducted. It has also received, from reliable sources, reports of secret detention centres
where suspected terrorists are held; lengthy administrative detention without judicial
supervision; transfers of detainees from one country to another in violation of the principles of
non-refoulement and the guarantees for a normal extradition procedure; and abuses of the law on
immigration to circumvent judicial safeguards and hold aliens in detention indefinitely.
54. Under the circumstances, and in order to comply with the instructions given in
Commission resolution 2003/68, the Working Group considers it worthwhile contributing to the
definition under international law of the legal framework governing detention as part of efforts to
combat terrorism, by clarifying its position on a number of matters falling within its mandate that
are currently the subject of debate. It also considers that there might be merit in recalling the
relevant jurisprudence it has developed since its establishment so as to put detention in the
context of states of emergency in general, and the fight against terrorism in particular.
E/CN. 4/2004/3
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55. It has been the Working Group's experience that when action is taken and/or legislation
is adopted to combat what States rightly or wrongly qualify as terrorism, subversive activities or
attacks against State security, there is an increase in human rights violations. On the subject of
terrorism, the Working Group has stressed from the outset its “concern [ afl frequent attempts by
Governments to use normal legislation or to have recourse to emergency or special laws and
procedures to combat terrorism and thereby permit, or at least to increase, the risk of arbitrary
detention”.'
56. The Working Group is particularly concerned by the studied ambiguity over terrorist acts
and war crimes in a situation, described as an all-out war against terrorism, which is invoked to
set aside certain norms of international law, particularly those on the guarantees available to
suspected terrorists in detention.
57. The Working Group is even more concerned that, in context of the fight against
terrorism, classified information and the protection of national security are often put forward as
grounds for refusing to cooperate, and that its competence to judge the lawfulness of the
detention of suspected terrorists is challenged on the pretext that the Group's mandate does not
cover situations of armed conflict. 2
58. On deprivation of liberty in connection with the fight against terrorism and, states of
emergency generally, the Working Group finds, when it looks at State practice before and after
11 September 2001, that this practice raises in particular the questions:
Derogations that are unlawful and not consistent with States' obligations under
international law;
Loose definitions of terrorism in national legislation;
Recourse to military tribunals and special courts;
Abuse of immigration laws to circumvent judicial guarantees.
59. The Working Group had occasion to state its views on these matters long
before 11 September 2001. Its experience from the outset has been that the main causes of
arbitrary deprivation of liberty are the abuse of states of emergency, the exercise of the powers
specific to a state of emergency without a formal declaration, recourse to military, special or
emergency courts, non-observance of the principle of proportionality between the gravity of the
measures taken and the situation concerned, and loose definitions of offences that are often
described as infringements of State security. 3
60. With regard to derogations that are unlawful and inconsistent with States'
obligations under international law, the Working Group reaffirms that the fight against
terrorism may undeniably require specific limits on certain guarantees, including those
concerning detention and the right to a fair trial. It nevertheless points out that under any
circumstances, and whatever the threat, there are rights which cannot be derogated from, that in
no event may an arrest based on emergency legislation last indefinitely, and it is particularly
E/CN.4/2004/3
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important that measures adopted in states of emergency should be strictly commensurate with the
extent of the danger invoked. On all these points the Working Group refers to Human Rights
Committee general comment No. 29 on derogations from the provisions of the International
Covenant on Civil and Political Rights during a state of emergency.
61. The Working Group recalls that, in carrying out its mandate, it may be called upon to
consider whether a State's domestic legislation is in line with applicable international human
rights standards, especially since, pursuant to Security Council resolution 1373 (2001), virtually
all States have had to take steps to prevent, prosecute and punish all terrorist acts falling under
their jurisdiction, and increase their cooperation in eradicating international terrorism. And some
States are indeed reproached for adopting legal measures that are not always consistent with the
peremptory norms of international human rights and humanitarian law.
62. The Working Group stresses that it attaches particular importance to the existence and
effectiveness of internal controls over the legality of detention. In its experience, the right to
challenge the legality of detention is one of the most effective means of preventing and
combating arbitrary detention. As such, it should be regarded not as a mere element in the right
to a fair trial but, in a country governed by the rule of law, as a personal right which cannot be
derogated from even in a state of emergency. That is why it considers that the absence of such a
remedy deprives the persons concerned of a powerful means of defence against arbitrary
detention, or at least a way of promptly remedying injury caused by unlawful or unjust
imprisonment. However, it finds that, even under legal systems where the remedy of aniparo or
habeas corpus exists, in the fight against terrorism, especially when a state of emergency is
declared or related prerogatives are exercised, it is often suspended or in effect rendered
impracticable.
63. In a growing number of cases in the fight against terrorism, legal safeguards concerning
detainees are now observed only insofar as they are consistent with the objectives of military
security. No justification can be used in any circumstances - whether conflict, war, or state of
exception - to abrogate the right to challenge unlawful detention. Such restrictions of rights have
so far not proved to be effective in combating terrorism.
64. Concerning the defmition of terrorism in national legislation, the Working Group
recalls that it is still concerned at the extremely vague and broad definitions of terrorism in
national legislation. On several occasions it has noted that “either per se or in their application,
(these definitions) bring within their fold the innocent and the suspect alike and thereby increase
the risk of arbitrary detention, disproportionately reducing the level of guarantees enjoyed by
ordinary persons in normal circumstances”. 4
65. In the absence of a definition of the offence or when the description of the acts or
omissions with which someone is charged is inadequate, the Working Group considers that the
requirement of a precise definition of the crimes - the key to the whole modern penal system - is
not fulfilled and that the principle of lawfulness is thus violated, with the attendant risk to the
legitimate exercise of fundamental freedoms.
66. Since 11 September 2001, the principle of lawfulness has often been abused. The
Working Group has been sent reports from reliable sources indicating that people have been
arrested, transferred from one country to another and held in detention for belonging to groups
E/CN. 4/2004/3
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appearing on lists of terrorist organizations drawn up by one or more countries. Irrespective of
the controversy surrounding such lists in the absence of an internationally accepted definition of
terrorism, the Working Group is particularly concerned by the fact that accusations of belonging
to, financing or fund-raising for terrorist organizations are not always supported by sound
evidence, and that detainees are not told what they are being blamed for. In that connection, the
Working Group points out that any one arrested must be promptly informed of any accusation,
charges and evidence against him.
67. Concerning recourse to mifitary tribunals and special courts. Bringing suspected
terrorists before special courts is regular practice. Since 1992, the Working Group has expressed
concern about the establishment of special courts going by various names. On several occasions
it has drawn attention to how special courts and military tribunals operate and has warned against
the immoderation of this form ofjustice. It finds from experience that one of the most serious
causes of arbitrary detention is precisely the existence of such courts, virtually none of which
respects the guarantees of the right to a fair trial. The violation of the normal standards for a fair
trial is all the more evident since, in some countries, such “courts” are not established by law and
their competence rat/one mater/ac is not based on objective criteria but on the nationality of the
suspected terrorists. This is discrimination based on nationality.
68. Concerning administrative detention and the transfer of foreigners, the Working
Group is concerned by reports it is receiving of the improper and discriminatory use of
immigration laws to circumvent the presumption of innocence and related judicial guarantees.
Individual communications have been submitted to it on the subject of people arrested for
violating immigration law who, before being deported to their countries of nationality have been
held in solitary confinement for months without being able to contact their families. 5
69. We now know that dozens of people suspected of collaborating with the al-Qa'idah
network or other terrorist organizations are being detained in secret in several countries and that
individuals who had been held at Guantánamo Bay or elsewhere have been transferred to their
countries of nationality where they remain in detention, either at the request of the country that
transferred them or because they were wanted, without a court ever having ruled on the legality
of their detention. 6 Such transfers circumvent judicial guarantees relating to extradition, which
allow the competent court in the requested State to prohibit extradition to countries where people
risk being subjected to torture, not being granted a fair trial, and in cases where capital
punishment has been repealed, the application of the death penalty.
70. It is by no means the Working Group's intention, in highlighting the concerns raised by
the working methods used to combat terrorism, to belittle the threat terrorism poses to world
peace and security, far less to question the right, not to say duty, of States to use all lawful means
to combat terrorism effectively. Nor can there be any doubt that the fight against terrorism calls
for exceptional methods that limit certain guarantees, including those relating to detention and
the right to a fair trial.
71. The Working Group nonetheless considers that, even when fighting terrorism, States are
not entitled to undermine such fundamental principles as the presumption of innocence, legally
defined offences and penalties, the non-retroactive application of harsher criminal laws and the
E/CN.4/2004/3
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right to be tried within a reasonable period of time by a competent, independent and impartial
court; otherwise they will lose any legitimacy they claim to have vis-à-vis the terrorist
organizations, discredit their actions and seriously impair the effectiveness of action to combat
terrorism.
III. ISSUES OF CONCERN
A. Discrimination
72. Discrimination is of course a common phenomenon in the administration of criminal
justice, but since 11 September 2001, differences in treatment and discrimination, particularly
with regard to foreign nationals, have greatly increased. As part of efforts to combat terrorism
and transnational organized crime, countries with large migratory flows have tightened up their
legislation to control illegal immigration and imposed restrictions on the right to asylum which
are not always in conformity with refugee law and international humanitarian law. Some
countries routinely detain anyone found on or entering their territory illegally, while others just
as routinely denigrate or lock up victims of slavery or trafficking in migrants; at the same time,
entire populations are rightly or wrongly assessed as potentially dangerous and, solely for that
reason, risk being subjected to lengthy administrative detention.
73. The Working Group has also been informed that, in some countries, drug addicts,
prostitutes, homosexuals and people suffering from AIDS are locked up on the grounds that
they represent a risk to society, and people are given prison sentences solely because of their
sexual orientation. Having received a communication concerning 55 persons prosecuted and
detained on account of their homosexuality, the Working Group took the view that their
detention was arbitrary because it violated articles 2, paragraph 1, and 26 of the International
Covenant on Civil Rights, which guarantee equality before the law and the right to equal legal
protection against all forms of discrimination, including that based on sex. The Working Group
based its opinion on that of the Committee on Human Rights, according to which the reference to
“sex” in articles 2, paragraph 1, and 26 is to be taken as including sexual orientation
(CCPR/C/50/488/1992, para. 8.7).
B. Deprivation of liberty of vulnerable persons
74. The Working Group has also been informed by several sources that, in some countries,
the disabled, drug addicts and people suffering from AIDS are detained in places that are
incompatible with their state of health, sometimes without treatment and without it having been
established that their detention is justified on medical or public health grounds. The Group is
concerned because it is vulnerable persons that are involved, people who are often stigmatized
by social stereotypes; but it is concerned above all because often such administrative detention is
not subject to judicial supervision.
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C. Pre-trial detention
75. The Working Group was informed by a reliable source that 17 persons have been held in
detention in Spuz prison in the Republic of Montenegro since 1995 awaiting a final verdict on
their cases. The source alleges that Montenegrin legal procedure allows indefinite detention
once charges have been filed and that persons are detained for up to six months in pre-trial
detention and during their trials, which can sometimes last for years.
76. The Working Group has transmitted these allegations to the Government of Serbia and
Montenegro.
D. Deprivation of liberty linked to the use of the Internet
77. The Working Group has observed the rise in the number of cases where deprivation of
liberty was connected to the use of the Internet and similar modern communication media. In
recent years the Group has received a number of individual communications of this kind. In
several such cases the Working Group found that the deprivation of liberty had been arbitrary.
78. The Working Group notes that, on the one hand, the Internet may in principle be utilized
for unlawful purposes, for instance impermissible intrusion into individual privacy: the
advocacy of national, racial or religious hatred constituting incitement to discrimination, hostility
or violence; advertisement of prohibited activity such as child pornography; disclosure of
industrial or banking secrets and the like. On the other hand, however, the limitation through the
application of criminal law sanctions of the use of the Internet may amount to restriction of the
freedom to seek, receive and impart information, a restriction which is incompatible with
article 19 of the Universal Declaration of Human Rights and article 19 of the International
Covenant on Civil and Political Rights. In such cases deprivation of liberty may prove to be
arbitrary. This new communication medium, like the postal service or use of the telephone,
allows freedom of expression protected by the right to privacy (article 12 of the Universal
Declaration of Human Rights and article 17 of the International Covenant on Civil and Political
Rights).
IV. CONCLUSIONS
79. The Working Group welcomes the increased cooperation it has received from States in
the fulfilment of its mandate. The great majority of Opinions issued by the Group during its
three sessions in 2003 met with responses by the Governments concerned regarding the cases
brought to their attention.
80. This cooperation on the part of Governments has also been reflected in the greater
number of invitations by States to the thematic mechanisms of the Commission on Human
Rights to visit their countries. Thanks to such cooperation, the Working Group was able to
conduct official missions in 2003 to the Islamic Republic of Iran and Argentina. The Group is in
contact with the Governments of Belarus, Latvia and South Africa with a view to visiting two of
these countries in 2004, and with the Government of Canada to visit that country in 2005. The
Group considers that these visits are important for the implementation of its mandate.
E/CN.4/2004/3
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81. The results of the missions have confirmed the Group's belief in the usefulness of these
missions from the point of view of fulfilling its mandate. For Governments, these visits provide
an excellent opportunity to show that the rights of detainees are respected and that progress is
being achieved in that area.
82. Taking note of resolution 2003/68, the Working Group draws the Commission's attention
to the fact that, since 11 September 2001, it has received many communications about the
arbitrary character of detention in several countries where inquiries into terrorist acts have been
carried out. It has also been sent reports from reliable sources referring to secret detention
centres where suspected terrorists are held, to lengthy administrative detention without judicial
supervision, to transfers of detainees from one country to another in violation of the principle of
non-refoulement and the guarantees accompanying normal extradition proceedings, and to
abuses of immigration law so as to circumvent judicial guarantees and hold aliens in detention
indefinitely.
83. Bearing in mind the rising importance of the Internet and similar modern information
media, the Working Group is concerned that some States unduly interfere, through the
application of criminal law sanctions, with the use of the Internet. Therefore, it considers that
the question of arbitrary detention with regard to the use of the Internet deserves more extensive
study.
V. RECOMMENDATIONS
84. The Working Group reafflnns there can be no doubt that the fight against
terrorism may require the adoption of specific measures limiting certain guarantees,
including those relating to detention and the right to a fair trial; it nonetheless points out
that in all circumstances deprivation of liberty must remain consistent with the norms of
international law.
85. The Working Group considers that the right to challenge the legality of detention or
to petition for a writ of habeas corpus or remedy of amparo is a personal right, which must
in all circumstances be guaranteed by the jurisdiction of the ordinary courts.
86. The Working Group considers that, even where illegal immigrants and
asylum-seekers are concerned, any decision to place them in detention must be reviewed by
a court or a competent, independent and impartial body in order to ensure that it is
necessary and in conformity with the norms of international law and that, where people
have been detained, expelled or returned without being provided with legal guarantees,
their continued detention and subsequent expulsion are to be considered as arbitrary.
87. With regard to persons deprived of their liberty on health grounds, the Working
Group considers that in any event all persons affected by such measures must have judicial
means of challenging their detention.
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Notes
1 See E/CN.4/1995/31, para. 25 (d).
2 In its last annual report (E/CN.4/2003/8) the Working Group adopted a legal opinion of
general scop e, in which it clarifies its position on the lawfulness of detention for the category of
so-called “enemy combatants” and applied that jurisprudence to an individual communication
concerning four persons held at Guantánamo Bay (see Opinion No. 5/2003,
E/CN. 4/2004/3/Add. 1).
See E/CN.4/1995/31, para. 14.
“ See E/CN.4/1993/24, para. 31, E/CN.4/1994/27, paras. 72 and 73, and E/CN.4/1995/31,
para. 25 (d).
See E/CN.4/2004/3/Add. 1, Opinion No. 21/2002, adopted by the Working Group
on 3 December 2002.
6 In a letter addressed to the Working Group, the Government of the United States of America
acknowledged that “some enemy combatants have been transferred to their countries of
nationality for continued detention”.
E/CN.4/2004/3
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Annex
STATISTICS
(Covering the year 2003. Figures in parentheses are
corresponding figures from last year's report)
1. Cases of detention declared arbitrary
Female Male Total
Cases of detention declared arbitrary 1 (0) 8 (2) 9 (2)
falling within category I
Cases of detention declared arbitrary 0 (2) 107 (59) 107 (61)
falling within category II
Cases of detention declared arbitrary 0 (0) 12 (7) 12 (7)
falling within category III
Cases of detention declared arbitrary 0 (2) 3 (20) 3 (22)
falling within categories II and III
Cases of detention declared arbitrary 0 (0) 0 (0) 0 (0)
falling within categories I and II
Cases of detention declared arbitrary 0 (0) 0 (0) 0 (0)
falling within categories I and III
Cases of detention declared arbitrary 0 (0) 0 (0) 0 (0)
falling within categories I, II and III
Total number of cases of detention 1 (4) 130 (88) 131 (92)
declared arbitrary
2. Cases of detention declared not arbitrary
Female Male Total
0(0) 0(13) 0(13)
3. Cases which the Working Group decided to file
Female Male Total
Cases filed because the person was released, 0 (1) 18(17) 18 (18)
or was not detained
Cases filed because of insufficient 0 (0) 2 (2) 2 (2)
information
Female Male Total
Total number of cases dealt with by the 1 (5) 150(120) 151 (125)
Working Group during 2002
