UNITED
NATIONS
General Assembly Distr.
GENERAL
A IHRC/7/4
10 January 2008
Original: ENGLISH
HUMAN RIGHTS COUNCIL
Seventh session
Item 3 of the provisional agenda
PROMOTION AND PROTECTION OF ALL HUMAN RIGHTS, CIVIL,
POLITICAL, ECONOMIC, SOCIAL AND CULTURAL RIGHTS,
INCLUDING THE RIGHT TO DEVELOPMENT
Report of the Working Group on Arbitrary Detention
Chairperson-Rapporteur: Leila ZERROUGUI
A
GE.08-10091 (E) 220108
AIHRC/7/4
page 2
Sununary
During 2007, the Working Group visited Norway and the Republics of Angola and
Equatorial Guinea at the invitation of the Governments of these countries. The reports on these
visits are contained in addenda 2, 3 and 4 to the present document.
During that period, the Working Group adopted 40 Opinions concerning 146 persons in
24 countries. These Opinions are contained in addendum ito the present document.
Also during the period 9 November 2006 to 30 November 2007, the Group transmitted a
total of i69 urgent appeals concerning 1,344 individuals, including i29 women, 119 boys and
4 girls, to 55 Governments. 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 enjoy fair trial
guarantees.
The Working Group has continued to develop its follow-up procedure and has sought to
engage in a continuous dialogue with those countries visited by the Group, in respect of which it
had recommended changes of domestic legislation governing detention. Information about the
implementation of the Working Group's recommendations was received from the Governments
of Belarus and Latvia, countries visited by the Working Group in 2004.
The present report includes several issues which have given rise to concern during 2007. In
particular, the Working Group identifies several shortcomings it has observed in connection with
the detention of illegal immigrants and asylum-seekers. The Working Group recalls the
obligation of States to consider alternatives to administrative custody from which foreigners can
benefit.
The report also analyses the situation of certain vulnerable groups of detainees and
prisoners susceptible to sexual violence by co-inmates and prison staff, including minors, young
women, the mentally disabled, indigenous people, vulnerable men and the poor.
The Working Group recommends that States establish an effective complaint procedure to
assure that abuses do not go unpunished.
The Working Group reiterates its concerns that states of emergency are a root cause of
arbitrary detentions. It recalls that, in addition to those enumerated in article 4, paragraph 2 of the
International Covenant on Civil and Political Rights, certain other rights are non-derogable
during a state of emergency, such as the right to take proceedings before a court to enable the
court to decide without delay on the lawfulness of detention. The Working Group also reiterates
its concern about the recourse to military, special or emergency codes, especially in the context
of countering terrorism.
The report also considers the question of registration systems in detention facilities as well
as the establishment by law of time limits for pretrial detention.
A/HRC/7/4
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The Working Group recommends that the Human Rights Council carry out an in depth
urgent deliberation on illegal immigrants and asylum-seekers in detention around the world, in
view of their specific vulnerability. To that effect, the Working Group recommends the
organization of a seminar with the participation of all stakeholders. It also recommends that
States use detention of these persons only as a last resort. Concerning vulnerable groups in
detention susceptible to sexual abuse, the Working Group recommends that States ensure that
juveniles are held separately from adults and women separately from men. Detention facility
staff should be appropriately trained to ensure that sexual abuses in detention do not occur. There
should be no impunity for perpetrators of sexual abuse and victims of such abuse should enjoy
access to an effective complaints procedure.
The report also includes recommendations regarding measures to be adopted in the context
of counter-terrorism and in states of emergency, as well as for registration books at detention
facilities.
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CONTENTS
Paragraphs Page
Introduction 1 - 3 5
I. ACTIVITIES OF THE WORKING GROUP IN 2007 4-39 5
A. Handling of communications addressed to the
Working Group during 2007 S - 24 5
B. Country missions 25 - 39 14
II. INTERNATIONAL TRENDS ON DEPRIVATION OF
LIBERTY OF CONCERN TO THE WORKING GROUP 40-73 17
A. Detention of non-citizens 41 - 54 17
B. Groups in detention which are susceptible to
sexual abuse 55-58 20
C. Detention in the context of counter-terrorism
measures and states of emergency 59 - 68 21
D. Detention registries and powers to release
prisoners 69 - 73 24
III. CONCLUSIONS 74 - 79 25
IV. RECOMMENDATIONS 80-84 26
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Introduction
1. Working Group on Arbitrary Detention was established by the former Commission on
Human Rights in its resolution 1991/42 and entrusted with the investigation of 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. At its sixth session the Human Rights Council assessed the mandate of the Working
Group and adopted resolution 6/4 which confirmed the scope of its mandate and extended it for a
further three-year period.
2. During 2007, the Working Group was composed of the following experts: Manuela
Carmena Castrillo (Spain); Soledad Villagra de Biedermann (Paraguay); Lella Zerrougui
(Algeria); Tamás Ban (Hungary) and Seyed Mohammad Hashemi (Islamic Republic of Iran).
3. On 30 November 2007, LeIla Zerrougui was confirmed as Chairperson-Rapporteur of the
Working Group and Manuela Carmena Castrillo was appointed as the Working Group's
Vice-Chairperson.
I. ACTIVITIES OF THE WORKING GROUP IN 2007
4. During the period 1 January to 30 November 2007, the Working Group held its
forty-eighth, forty-ninth and fiftieth sessions. It also carried out official missions to Norway
(22 April-2 May 2007), Equatorial Guinea (8-13 July 2007) and Angola (17-27 September 2007)
(see addenda 2, 3 and 4).
A. Handling of communications addressed to the Working Group during 2007
1. Communications transmitted to Governments
5. A description of the cases transmitted and the contents of the replies of Governments will
be found in the relevant Opinions adopted by the Working Group (AIHRC/7/4/Add. 1).
6. During its forty-eighth, forty-ninth and fiftieth sessions, the Working Group
adopted 40 Opinions concerning 146 persons in 24 countries. Some details of the Opinions
adopted during that session appear in the table below and the complete texts of Opinions
Nos. 1/2007 to 13/2007 and 32/2007 to 47/2007 are reproduced in addendum ito the present
report.
2. Opinions of the Working Group
7. Pursuant to its methods of work,' the Working Group, in addressing its Opinions to
Governments, drew their attention to Commission on Human Rights resolutions 1997/50 and
E/CN.4/1998/44, annex I.
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2003/31 and Human Rights Council resolution 6/4, 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 the three-week deadline the Opinions were transmitted to
the source.
Table 1
Opinions adopted during the forty-eighth, forty-ninth
and fiftieth sessions of the Working Group
Opinion
No.
Country
Government's
reply
Person(s) concerned
Opinion
1/2007
Canada
Yes
Ms. Nathalie Gettlife
Case filed (paragraph 17(a)
of the Working Group's
methods of work - person
released).
2/2007
Myanmar
Yes
Ms. Aung San Suu Kyi
Detention arbitrary,
categories II and III.
3/2007
Egypt
No
Mr. Ahmed A u Mohamed
Moutwala and 45 other persons
Detention arbitrary,
categories II and III.
4/2007
Saudi Arabia
No
Messrs. Faiz Abdel Moshen
Al Qaid and Khaled B.
Mohamed Al Rashed
Detention arbitrary,
categories II and III.
5/2007
Qatar
Yes
Mr. Hamed Alaa Eddine
Chehadda
Case filed (paragraph 17(a)
of the Working Group's
methods of work - person
released).
6/2007
Mauritania
No
Mr. Mohamed Sidiya Ould
Ajdoud
Detention arbitrary,
category I.
7/2007
Australia
Yes
Messrs. Amer Haddara,
Shane Kent, Izzydeen Attik,
Fadal Sayadi, Abdullah Merhi,
Ahmed Raad, Ezzit Raad,
Hany Taha, Aimen Joud,
Shoue Hammoud, Majed Raad,
Bassan Raad, and Abdul Nacer
Benbrilsa
Detention not arbitrary.
8/2007
Syrian Arab
Republic
Yes
Messrs. Ayman Ardenli and
Muhammad Haydar Zammar
Mr. Ayman Ardenli: Since
August 2003 until his release:
Detention arbitrary,
category I.
Mr. Muhammad Haydar
Zammar: Detention arbitrary,
category III.
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Opinion
No.
Country
Government's
reply____
Person(s) concerned
Opinion
9/2007 Saudi Arabia No Messrs. Hussain Khaled Detention arbitrary,
Albuluwy, Abdullah b. category I.
Slimane Al Sabih, Sultan b.
Slimane Al Sabih, Salah
Hamid Amr Al Saidi,
A I im ed Abdo Ali Gubran,
Maima Mohamed Al Ahmed
Al Ghamidi and Jasser b.
Mohamed Al Khanfari
Al Qahtani
10/2007 Lebanon Yes Mr. YoussefMahmoud Detention arbitrary,
Chaabane category III.
11/2007 Afghanistan and No Mr. Am inc Mohamm ad Detention arbitrary,
United States Al Bakry category I.
of America
12/2007 Ecuador Yes Mr. Antonio José Garcés Loor Detention not arbitrary.
13/2007 Viet Nam Yes Dr. Pham Hong Son Between 27 March 2002 and
30 August 2006: Detention
arbitrary, categories II and III.
14/2007 United Kingdom Yes Mr. Abdesslam Mahdi Case filed (paragraph 17(a)
of the Working Group's
methods of work - person
released).
15/2007 Central African No Mr. Bertrand Namour Detention arbitrary,
Republic category I.
16/2007 Libyan Arab No Mr. Mohamed Hassan Detention arbitrary,
Jamahiriya Aboussedra category I.
17/2007 United States of Yes Mr. Ahmed Mohamed Barodi Case filed (paragraph 17(a)
America of the Working Group's
methods of work - person
deported to third country).
18/2007 Jordan Yes Mr. Issam Mohamed Tahar Detention arbitrary,
Al Barqaoui Al Uteibi category II.
19/2007 Saudi Arabia Yes Mr. Zhiya Kassem Khammam Detention arbitrary,
Al Hussain category I.
20/2007 Mexico Yes Messrs. Jorge Marcial Detention arbitrary,
Zompaxtle Tecpile, Gerardo category III.
Zompaxtle Tecpile and
Gustavo Robles Lopez
21/2007 Egypt Yes Mr. Yasser Essayed Chaabane Detention arbitrary, category I
Al Dib and 18 other persons and II.
22/2007 Egypt Yes Mr. Abdeldjouad Mahmoud Detention arbitrary, category I
Am cur Al Abadi and III.
23/2007 Eritrea Yes Mr. Petros Solomon and Detention arbitrary, category I
10 more persons and II.
24/2007 Egypt Yes Mr. Mustapha Hamed Ahmed Detention arbitrary, category I
Cham ia and II.
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Opinion
No.
Country
Government's
Person(s) concerned
Opinion
25/2007 Australia Yes Mr. Konstantinos Georgiou Detention not arbitrary.
26/2007 Israel Yes Mr. Issam Rashed Hasan Detention arbitrary,
Asquar category III.
27/2007 Saudi Arabia Yes Mr. Saud Mukhtar Al Hashimi Detention arbitrary, category I
and 8 other persons and II.
28/2007 Algeria Yes Mr. Fouad Lakel Detention not arbitrary.
29/2007 Mexico Yes Messrs. Aifredo Santiago Case filed (paragraph 17(a)
Rivera and Nickel Santiago of the Working Group's
Rivera methods of work - person
released).
30/2007 Mexico Yes Ms. Concepción Moreno Case filed (paragraph 17(a)
Arteaga of the Working Group's
methods of work - person
released).
3 1/2007 Mexico Yes Mr. Pablo Juventino Solano Case filed (paragraph 17(a)
Martinez of the Working Group's
methods of work - person
released).
32/2007 China Yes Messrs. Jin Haike and Detention arbitrary,
Zhang Honghai category II.
33/2007 China Yes Mr. Sonam Gyalpo Detention arbitrary,
category II.
34/2007 Rwanda Yes Mr. François-Xavier Byuma Case filed (paragraph 17(a)
of the Working Group's
methods of work - person
released).
35/2007 United States Yes Ms. Vatcharee Pronsivakulchai Detention not arbitrary.
of America
36/2007 China Yes Mr. Dolma Kyab Detention arbitrary,
category II.
37/2007 Lebanon Yes Messrs. Jamil Al Sayed and Detention arbitrary,
Raymond Azar category III.
38/2007 Bangladesh Yes Mr. Md. Abdul Kashem Palash Case filed (paragraph 17(a)
of the Working Group's
methods of work - person
released).
39/2007 Mexico Yes Mr. Alvaro RodrIguez Damián Case filed (paragraph 17(a)
of the Working Group's
methods of work - person
released).
40/2007 Mexico Yes Mr. Jayro Vásquez Garcia Case filed (paragraph 17(a)
of the Working Group's
methods of work - person
released).
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3. Government reactions to Opinions
8. In a letter dated 21 May 2007, the Permanent Representative of Viet Nam to the
United Nations Office at Geneva reacted to Opinion No. 13/2007 (Viet Nam) concerning the
detention of Mr. Pham Hong Son. According to the communication, Pham Hong Son violated
Vietnamese laws. He was arrested and brought to trial in due process of law and according to
international human rights standards. His trial was open and fair and the sentence of the Court
was completely judicious. During his detention, Pham Hong Son was treated on an equal basis to
all other inmates, having access to the same nutritional regime and medical care. In no case did
he fall sick in prison without receiving adequate treatment. He refused an operation for his
inguinal hernia and considered that, in his capacity as a medical doctor, he could cure himself
The President of Viet Nam, implementing humanitarian and tolerant policy of the State, granted
him a special amnesty in August 2006.
9. In a letter dated 23 July 2007, the Permanent Representative of the United States
of America to the United Nations Office at Geneva, reacted to Opinion No. 33/2006
(Iraq/United States of America), particularly its paragraphs 9 and 15, concerning Mr. Tariq Aziz.
The communication points out that the United States is not aware of any complaint made by
Mr. Aziz or his lawyers regarding a lack of privacy or denial of access. Mr. Aziz's meetings with
his lawyers are completely private. There are no guards or United States personnel present in
these meetings. Likewise, Mr. Aziz and his counsel are free to pass documents, with the only
restriction that they are screened by a non-interested party to ensure they do not affect security
matters at the detention facility. There has never been a time that a request for a private visit with
Mr. Aziz has been denied. A qualified defence attorney has visited Mr. Aziz four times over the
last two months (i.e. May and June 2007) and another visit was scheduled for the following
week.
10. The communication also notes the long-standing position of the United States that the
International Covenant on Civil and Political Rights (ICCPR) does not apply to conduct by the
United States Government outside the territory of the United States. Mr. Aziz is being held
pending trial by the Iraqi High Tribunal, pursuant to arrangements made between Multi-National
Force - Iraq and the Iraqi Ministry of Justice. He awaits adjudication of his case.
11. In relation to this observation the Working Group notes that the Human Rights Committee,
which monitors implementation of the Covenant, has clarified that “a State party must respect
and ensure the rights laid down in the Covenant to anyone within the power or effective control
of that State party, even if not situated within the territory of the State party”. 2 Similarly, the
International Court of Justice (ICJ) in its advisory opinion on the Legal Consequences of the
Construction of a Wall in the Occupied Palestinian Territories 3 recognized that the jurisdiction of
States is primarily territorial, but concluded that the ICCPR extends to “acts done by a State in
2 Human Rights Committee, general comment No. 31(2004) on the Nature of the General Legal
Obligation Imposed on States Parties to the Covenant, para. 10.
hiternational Court of Justice, Legal Consequences of the Construction of a Wall in the
Occupied Palestinian Territories, Advisory Opinion of 9 July 2004.
AIHRC/7/4
page 10
the exercise of its jurisdiction outside its own territory”. 4 Accordingly, the Working Group
considers that the ICCPR applies to the conduct of the United States Government in cases in
which it exercises jurisdiction outside its territory.
12. By note verbale dated 3 August 2007, the Permanent Mission of Egypt reacted to the
adoption of Opinion No. 3/2007 (Egypt) concerning the detention of Mr. Ahmed Ali
Mohammed Moutawala and 44 other persons. According to the communication, the 45 persons
mentioned in the Opinion were released on various dates. However, 17 of them resumed their
radical activities, thereby endangering security and public order, and have been returned to
detention, in accordance with the State of Emergency Act No. 162 of 1958, in order to prevent
their criminal activities aimed at committing acts of terrorism.
13. By note verbale dated 9 October 2007, the Permanent Mission of the Kingdom of
Saudi Arabia reacted to the adoption of Opinion No. 9/2007 (Saudi Arabia) concerning,
inter alia, the detention of Mr. Salah Hamid Amr Al Saidi. The Government reported that
Mr. Al Saidi was arrested after returning from a visit to Iran for the purpose of participating in
activities in Afghanistan after the events of September 2001. He had also contacted members of
Al-Qaida and collected funds for terrorist operations. During his detention he was treated in
accordance with the standards ofjustice applicable in the Kingdom which respect human rights.
In conformity with those standards, an accused person has the right to avail himself of the
services of a lawyer and to receive family visits. It is prohibited to subject an accused person to
degrading treatment or physical or mental harm and he is guaranteed a fair trial by the judiciary,
which enjoys full independence to deliver its judgements following conviction.
14. The Government of Saudi Arabia reaffirmed its willingness to cooperate with the Working
Group by providing the requested information on individual cases while, at the same time,
trusting that the Working Group understands the high priority that the Government must
currently accord to the campaign against terrorism.
4. Request for review of Opinions
15. The Permanent Mission of the Syrian Arab Republic to the United Nations Office at
Geneva, in a note verbale dated 7 November 2007, reacted to Opinion No. 8/2007
(Syrian Arab Republic) concerning the detention of Messrs. Ayman Ardenli and
Muhammad Haydar Zammar. The Government reported that the trials of these two persons were
conducted in conformity with Syrian law and the international norms law to which the
Syrian Arab Republic subscribes and requested the Working Group to review its Opinion.
16. The Government confirmed that Mr. Ardenli was sentenced to 12 years' imprisonment and
released on 2 November 2005 pursuant to an amnesty decree issued by the President of the
Republic. Mr. Zammar was sentenced to 12 years' imprisonment and he is serving his sentence.
In addition to this confession, compelling evidence was provided establishing that he had
4
Ibid., para. 111.
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page 11
committed the offences with which he had been charged. Both of them are Syrian citizens who
joined a terrorist organization, which is an offence under Syrian law. The Syrian courts had
competence to hear their cases and both persons were given a fair trial.
17. The Government further confirmed that Mr. Zammar received consular assistance from the
German Embassy, as he has German as well as Syrian nationality. He has received regular visits
to verify his state of well-being and has access to free health care.
18. Acting in conformity with paragraph 21 of its methods of work, 5 the Working Group
decided to maintain its Opinion No. 8/2007 (Syrian Arab Republic) given that the facts on which
the request of review was based were not new and had been known by the Government and the
Working Group at the moment it rendered its Opinion.
19. In connection with these cases, on 18 May 2007 the Working Group wrote to the
Permanent Representative of Germany to the United Nations Office at Geneva requesting
information on the circumstances of Mr. Zammar's arrest, detention, interrogation and
subsequent transfer to Syria. On 23 May 2007 it also wrote to the Government of the
Kingdom of Morocco requesting the same information. No response to these communications
has been received.
20. In communications dated 14 February 2007 and 31 October 2007, the Government of
Colombia requested the Working Group to review its Opinion No. 30/2006 (Colombia) in which
the Working Group had considered the arbitrary detention of Ms. Natalia Tangarife Avendaflo
and seven other students of the University of Antioquia. The Government reported on
31 October 2007 that the eight students were already at liberty at the moment of the adoption of
Opinion No. 30/2006 (Colombia) on 1 September 2006. The Working Group considered that in
its reply to the Working Group before the adoption of the Opinion, the Government did not
submit that information.
21. Acting in conformity with paragraph 21, paragraph (b) of its methods of work, 6 the
Working Group decided to maintain its Opinion, given that the facts had been known to the
Government at the moment on which the Opinion was rendered.
5. Communications giving rise to urgent appeals
22. During the period 9 November 2006 to 30 November 2007, the Working Group
transmitted 169 urgent appeals to 55 Governments concerning 1,348 individuals (799 men,
129 women, 119 boys, 4 girls and 297 unidentified persons). In conformity with paragraphs 22
to 24 of its methods of work, 7 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
E/CN.4/1998/44, annex I.
6 Ibid.
Ibid.
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page 12
persons' right 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. In accordance with
Human Rights Council resolution 5/2, the Working Group integrated into its methods of work
the prescriptions of the Code of Conduct relating to urgent appeals and has since applied them.
23. During the period under review, 169 urgent appeals were transmitted by the Working
Group as follows:
Table 2
Urgent appeals transmitted to Governments by the Working Group
Government concerned
Number
of urgent
appeals
Persons concerned
Persons
released/Tnfo
received from
Algeria
2
2 men
1 (Source)
Azerbaijan
1
2 men
Bahrain
5
6 men and 3 minors
(boys)
3 (Government)
2 (Source)
Bangladesh
6
7 men, 1 woman
1 (Source)
Bulgaria
1
1 man
1 (Source)
Burundi
2
12 men, 1 woman
2 (Source)
Cameroon
1
11 men
11 (Source)
Canada
1
3 men
Central African Republic
1
1 man
Chad
2
2men
China (People's Republic of)
14
17 men, 10 women,
6 boys
Colombia
2
5 men
Democratic Republic of the Congo
4
7 men, 1 woman,
2 unidentified persons
Egypt
1
17 men,
140 unidentified persons
Eritrea
3
12 men, 76 unidentified
persons
9 (Government)
Ethiopia
2
7 men, 2 women,
70 unidentified persons
Georgia
1
3 men
Honduras
1
1 man
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Government concerned
Number
of urgent
appeals
Persons concerned
Persons
released/Info
received from
India 3 2 men, 1 boy
Iran (Islamic Republic of) 20 53 men, 28 women 22 (Source)
Iraq 4 37 men, 2 women, 1 boy 3 (Government)
7 (Source)
Israel 3 3 men
Jordan 2 2 men
Kyrgyzstan 1 1 man
Lebanon 1 1 man
Liberia 1 1 man
Libyan Arab Jamahiriya 2 3 men
Malaysia 1 30 men, 3 women,
2 boys
Maldives 1 15 men, 1 woman
Mexico 6 124 men, 37 women,
6 boys, 2 unidentified
persons
Myanmar 9 90 men, 6 women, 1 (Source)
4 girls, 4 unidentified
persons
Nepal 3 5 men, 6 boys
Pakistan 2 32 men, 24 women 55 (source)
Peru 1 8 men
Philippines 5 3 men, S women
Qatar 1 3 women
Russian Federation 4 7 men, 1 woman, 7 (Source)
2 unidentified persons
Rwanda 1 1 man 1 (Source)
Saudi Arabia 5 10 men, 1 woman,
2 boys, 3 unidentified
persons
Somalia 1 2 men
Sri Lanka 2 4 men
Sudan 4 16 men 15 (Source)
Switzerland 1 1 man
Syrian Arab Republic 4 14 men 4 (Government)
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Government concerned
Number
of urgent
appeals
Persons concerned
Persons
released/Tnfo
received from
Thailand
2
60 men, 90 boys
Tonga
1
Undetermined
Tunisia
3
11 men, 1 woman
Ukraine
1
1 man
United Arab Emirates
1
1 man
United Kingdom of Great Britain
2
2 men
and Northern Ireland
United States of America
2
2 men
Uzbekistan
6
5 men, 1 boy
Viet Nam
4
14 men, 1 woman,
1 boy
Yemen
5
10 men
1 (Source)
Zimbabwe
4
116 men, 1 woman
24. Governments reported that 19 persons had been released. Sources reported the release
of 127 persons. 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.
B. Country missions
1. Request for visits
25. The Working Group has been invited to visit Italy, Malta, Mauritania, Senegal and the
United States of America, although no concrete dates have yet been established. The
Government of Malta has suggested that the visit take place during the months of March or
April 2008. During its forty-eighth session, the Chairperson of the Working Group held meetings
with representatives of the Government of Japan in order to examine the possibility of visiting
that country during 2008.
26. During its fiftieth session, the Working Group also held meetings with representatives of
the Governments of Mauritania and the United States to discuss possible dates for visits in the
first semester of 2008. The Working Group has also asked to visit Colombia and Sierra Leone,
two countries which, in spite of having extended an open formal invitation to all the thematic
mechanisms of the Human Rights Council, have not yet replied to the Working Group's
requests. It has also made requests to visit Afghanistan, Ethiopia, Guinea Bissau, India,
the Libyan Arab Jamahiriya and Turkmenistan. The Working Group decided during its
fiftieth session to request an invitation for a visit to Egypt, Malaysia, the Russian Federation,
Saudi Arabia, Thailand, Ukraine and Uzbekistan.
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page 15
2. Follow-up to country visits of the Working Group
27. In accordance with its methods of work, the Working Group decided in 1998 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. 8
28. In 2007, communications were addressed to the Governments of Canada and South Africa
requesting information on such initiatives as the authorities might have taken to give effect to the
recommendations contained in the Group's reports to the Commission on its visits to these
countries in 2005. During 2006, communications were also addressed to the Governments of
Belarus and Latvia.
29. In 2007 the Working Group received replies from the Governments of Belarus and Latvia.
In a note verbale dated 6 February 2007, the Permanent Mission of Belarus to the United Nations
Office at Geneva submitted information on the implementation of the Working Group's
recommendations after its visit to the country in August 2004. In a note verbale dated
10 January 2007, the Permanent Mission of Latvia to the United Nations Office at Geneva
submitted a report on the implementation of the recommendations of the Working Group
pursuant to its visit to Latvia in February 2004. The Working Group wishes to express its
appreciation for the comprehensive responses provided by the two Governments. Both
Governments went to great trouble to provide detailed comments on each recommendation the
Working Group had made in its reports on these country visits, a methodology welcomed by the
Working Group.
Belarus
30. In response to the recommendation relating to the conditions of pretrial detention, the
Government informed the Working Group that the National Programme for the Enhancement of
the Penal Correction System on the Ministry of Internal Affairs (2006-2010) was approved by
Decision No. 1564 of the Council of Ministers of 29 December 2005 and is currently being
implemented. This programme specifies arrangements for the construction of short-stay prisons
within correctional institutions and remand centres (SIZO). This will address the problem of
overcrowding in such facilities, as well as improving conditions of detention.
31. The Government also informed the Working Group that the Code on the Judicial System
and the Status of Judges was adopted on 29 June 2006 and entered into force on
13 January 2007. This enactment defines the legal framework of the judicial system and the
status of judges in Belarus, the functions and jurisdiction of the courts, measures to safeguard
judicial independence, and the rights and duties of judges.
32. The Government further reported that the powers of defence counsel in criminal
proceedings have been significantly broadened. Defence counsel has the right of access to all
8 E/CN.4/1999/63, para. 36.
E/CN.4/2006/7/Add.2 and 3.
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evidence in the case, on the same footing as the prosecutor. He or she is provided with all
inculpatory evidence as soon as a case is referred to court; this enables him or her to file motions,
which the court must consider, and to work out a defence strategy and tactics. In respect of the
other recommendations of the Working Group, the Government explained in detail how existing
legislation addressed the concerns of the Working Group.
Latvia
33. In its communication the Government of Latvia went into great detail to explain the
numerous measures it had adopted to comply with each recommendation contained in the report
of the Working Group. These measures are contained in a number of recent legislative
developments.
34. In relation to access to counsel, the Government informed the Working Group that in cases
where a person cannot afford a lawyer due to lack of financial means, legal costs and expenses
shall be paid by the State. In order to bring this provision into life, a specific Law on
State-provided Legal Aid was adopted, by which a special governmental agency - the
State-provided Legal Aid Administration - was established.
35. The Latvian Government further reported that the maximum terms of detention on remand
for different types of crimes are now strictly fixed in article 277 of the Criminal Procedure Law
(which entered into force on 1 October 2005) - the shortest maximum term of detention on
remand is 3 months (2 months for the pretrial investigation stage and 1 month for adjudication).
The longest maximum term provided for especially serious crimes is 24 months (15 months for
investigation, 9 months for adjudication).
36. The Working Group was informed that the State Police has carried out extensive work to
improve conditions in places of temporary detention. The new Law on Procedure of the
Apprehension of Individuals of 21 October 2005 contains provisions regarding conditions of
detention, internal regulation and health care in police temporary detention units.
37. In response to the recommendations on the detention of juveniles, the Government of
Latvia informed the Working Group that the provisions of the Criminal Procedure Law provide
for a wide set of alternative security measures, which may be applied to juveniles. Discussions
are currently ongoing on the juvenile justice system, including the necessity to introduce a
separate system. A draft policy concept on juvenile imprisonment and detention for 2006-2010 is
pending approval in the Cabinet of Ministers.
38. Lastly, the Government reported that the draft law on asylum in the Republic of Latvia is
currently pending approval in the Cabinet of Ministers before being submitted to Parliament. A
new law on psychiatric assistance is currently being drafted, which will establish a new
procedure on involuntary committals to psychiatric hospitals.
39. The Working Group has also received information from non-governmental organizations
on the implementation of the Working Group's recommendations after its visits to Australia and
Mexico. It has transmitted them to these Governments for their comments. During its forty-ninth
and fiftieth sessions, the Working Group received a delegation from Oaxaca, Mexico, which
reported the detentions carried out in Oaxaca State during 2006.
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II. INTERNATIONAL TRENDS ON DEPRIVATION OF LIBERTY
OF CONCERN TO THE WORKING GROUP
40. During the course of the period reported upon, the Working Group has observed a number
of disturbing trends related to the issue of deprivation of liberty. Some of the more general
themes have been taken up by the Working Group on earlier occasions. The Working Group
feels inclined to raise them again in view of new facets observed. The issues discussed below
relate to the detention of non-citizens, to the situation of vulnerable groups in detention
susceptible to sexual abuse, to detention in the context of counter-terrorism measures and in
states of emergency, as well as to the demarcation of competences amongst the various State
authorities involved in the deprivation of liberty and to registration at detention facilities.
A. Detention of non-citizens
41. In its resolution 1997/50, the Commission on Human Rights requested the Working Group
to devote all necessary attention to reports concerning the situation of immigrants and
asylum-seekers allegedly being held in prolonged administrative custody without the possibility
of administrative or judicial remedy, and to include observations on this question in its report.
Recent country visits as well as communications received and Opinions adopted within the past
year or so prompted the Working Group yet again to make the following comments.
42. The phenomenon of immigration has been steadily increasing worldwide. Nowadays
immigration concerns not only the wealthier countries located for the most part in the northern
hemisphere, to some of which the Working Group has paid a visit and has laid particular
emphasis in its reports and Opinions on problems faced by (illegal) immigrants and
asylum-seekers.'° During some of its most recent country visits the Working Group observed
that migration has also become an issue for other countries in the southern hemisphere, whose
level of preparation to deal with the matter varies. There are enormous differences between
immigration regulations in the respective countries. In this report the Working Group addresses
issues of concern observed in both developed and developing countries.
43. Some States are entirely lacking a legal regime governing immigration and asylum
procedures. Others have enacted immigration laws, but have omitted to provide for a legal
framework of detention, which, however, does not always guarantee that these States are not
resorting to detention. If there is a legal framework for detention, its design differs. States allow
for detention of asylum-seekers and immigrants outside the criminal or national security context
in order to establish the identity of illegal immigrants and rejected asylum-seekers or to secure
expulsion to their countries of origin. In other States detention is mandatory and is sometimes
even used as a means of deterring future refugee or migration flows. In some countries there is
legislation which provides for a maximum period of detention, whereas others are lacking such a
time limit. Some national laws require that detention be ordered by ajudge but most States resort
10 See the respective reports on the missions to the United Kingdom (E/CN.4/1999/63/Add.3),
Australia (E/CN.4/2003/8/Add.2) and Canada (E/CN.4/2006/7/Add.2). See also
Opinions Nos. 45/2006 (addendum ito this report), 34/1999 (E/CN.4/200 1/14/Add. 1), 18/2004
(E/CN. 4/2005/6/Add. 1).
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to administrative detention. The degree of procedural safeguards varies in terms of the
possibilities for review of the legality of detention and its frequency. In practice some States
misleadingly label immigration detention centres as “transit centres” or “guest houses” and
detention as “retention” in the absence of legislation authorizing deprivation of liberty.
44. The Working Group has witnessed numerous problems surrounding the detention of
asylum-seekers and illegal immigrants, which are informed by the existence of different legal
frameworks, or a lack thereof, or by practices which are in violation of national immigration
legislation or applicable international human rights laws.
45. Mandatory detention of illegal immigrants or even of asylum-seekers, who are not
criminals, is an issue of growing concern for the Working Group. A straight analysis of the
statistics indicates that in some countries the numbers of non-citizens in administrative detention
exceeds the number of sentenced prisoners or detainees, who have or are suspected of having
committed a crime. Some States even make it a criminal offence punishable with imprisonment
to enter a country illegally.
46. While administrative detention of asylum-seekers and illegal immigrants is not prohibited
a priori by international human rights law, it can amount to arbitrary detention if it is not
necessary in all circumstances of the case. Moreover, detention during the period when attempts
are being made to establish the identities and nationalities of asylum-seekers and illegal
immigrants or to secure their deportation cannot usually be considered an effective solution.
Expulsion proceedings require the cooperation of the country of origin of the person concerned.
The lack of interest or the inability of the country of origin to effectively cooperate with the
country of entry often prevent the completion of such proceedings or cause long delays. In some
countries the immigration rate has significantly increased, others are simply overwhelmed by a
phenomenon new to their Governments, even if the influx of aliens is relatively limited in
numbers. Consequently, illegal immigrants and asylum-seekers, including children and
trafficked persons, may face a detention term of several months or years or even a (potentially)
indefinite one in countries where it is mandatory to keep them in custody, or which otherwise
resort to unlimited or indefinite detention provided for by domestic laws. During its country
missions the Working Group met with many non-citizens who had been detained for months,
some for years.
47. Instances of excessive administrative custody of illegal immigrants may occur even in
countries with strong safeguards against arbitrary detention, particularly if the expulsion of an
illegal immigrant cannot be carried out for legal, logistical or other reasons; for example, if
deportation would violate the principle of non-refoulement, or if means of transportation to the
country of origin are simply not available.
48. In its Opinion 45/2006” the Working Group declared arbitrary, inter alia on the grounds of
its excessive length, the detention of a Somali citizen liable for removal which could not be
11
Addendum ito this report.
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carried out because of security concerns regarding his country of origin. The person concerned
had been detained for four and a half years under immigration powers after having served a
criminal sentence.
49. In addition to the length of their stay in immigration or other facilities and the uncertainty
about its actual duration, non-citizens are at times facing harsh conditions in detention. The
Working Group has been able to observe during missions over the past few years the deplorable
situation in the detention facilities in former conflict countries, countries otherwise in transition,
or countries experiencing a large influx of foreigners either from a neighbour in crisis or because
they are perceived to be a destination to realize the dream of a better life. Illegal immigrants,
irrespective of their age, are detained for months, and held together with other detainees who are
kept in custody pursuant to criminal law. They are often kept in custody without sufficient water,
food, and bedding or any possibility of leaving the cells to go to the yard, to communicate with
their relatives, lawyers, interpreters or consulates, or to challenge the legality of the deprivation
of their liberty or deportation orders. At times they are even left in the dark as to the reasons for
their custody.
50. Budgetary constraints and lack of appropriate facilities often prevent authorities from
ensuring that all illegal immigrants are detained with dignity and in a humane fashion in
accordance with article 1 of the Universal Declaration of Human Rights and the Body of
Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.' 2
The magnitude of the international migratory phenomenon the Working Group has been able to
observe during its recent visits to certain countries allows it to affirm that it is impossible to
assume that all countries, which currently face a significant influx of aliens, are able to provide
suitable facilities for all illegal immigrants. According to the observations of the Working Group,
there are others, however, which would be able, but are unwilling to provide the necessary
services, and subject asylum-seekers and illegal immigrants to harsh detention conditions as a
deterrent.
51. The Working Group understands that some countries, especially in the southern
hemisphere, might be experiencing a novel situation. Prior to economic development it was their
citizens who tried their luck in neighbouring countries to gain more favourable economic
conditions for themselves and their families. However, it is necessary to remind all States that
illegal immigrants placed in administrative detention are not criminals or suspects. Therefore,
detention must be the exception, not the rule. The Working Group considers that taking aliens
into custody without a legal basis is totally unjustifiable and amounts to arbitrary detention under
category I of the categories applicable to the consideration of cases submitted to the Working
Group.
52. Furthermore, the Working Group feels inclined to remind Governments of the principles
developed in its Deliberation No. ,13 particularly principles 3, 6, 7, 8, and 9:
12 Adopted by the General Assembly in resolution 43/173.
13 E/CN.4/2000/4, annex II. See also the guarantees laid down in the annual report
Working Group for 1998 (E/CN.4/1999/63, paras. 69 and 70).
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— On the right to be brought promptly before a judicial or other authority after having
been taken into custody;
— On the necessity of founding the decision on custody on criteria of legality established
by the law by a duly empowered authority;
— On the desirability to set a maximum period of detention by law which must in no case
be unlimited or of excessive length;
— On the requirement of notification of the custodial measure in a language understood by
the immigrant or asylum-seeker, including the conditions for applying for a remedy to a
judicial authority, which shall decide promptly on the lawfulness of the measure and be
competent to order the release of the person concerned, if appropriate;
— On the obligation of States to place asylum-seekers or immigrants in premises separate
from those persons imprisoned under criminal law.
In all cases detention must not be for a potentially indefinite period of time.
53. The Working Group would further recall the obligation of States to consider alternatives to
administrative custody from which the alien can benefit in accordance with Guarantee 13 as
developed by the Working Group in its legal opinion on the situation regarding immigrants and
asylum-seekers.' 4 In the view of the Working Group, criminalizing illegal entry into a country
exceeds the legitimate interest of States to control and regulate illegal immigration and leads to
unnecessary detention.
54. The Working Group was able to satisfy itself during country missions that there are
alternatives to detention for illegal immigrants, which have been successfully implemented. In
countries which allow for illegal immigrants to be taken into custody but refrain from resorting
to administrative detention, the law provides for strong procedural safeguards, including the
obligation to have a judge decide on the legality of and continuing reasons for detention, and
generally only permits detention as a last resort.
B. Groups in detention which are susceptible to sexual abuse
55. The Working Group is aware that certain vulnerable groups of detainees and prisoners are
specifically susceptible to sexual violence by co-inmates and prison staff, including young
women, minors, non-citizens, the poor, mentally disabled, indigenous people, and vulnerable
men. This list is not exhaustive. The Working Group has made observations relating to this
particularly disturbing trend during some of its country missions. It has received credible
information that women and minors are subjected to sexual exploitation and abuse by prison
staff or by their co-inmates in detention facilities. From its experience, the Working Group can
verify that when juveniles are detained together with adults they are almost systematically
subject to sexual abuse. As far as women are concerned, it has been regularly reported that
“ I E/CN.4/1999/63, para. 69.
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corrupt prison staff facilitate sexual relations between male and female detainees or that prison
staff themselves have sexual relations with female detainees in exchange for favourable
treatment. It is a serious issue of concern and a particularly contemptible form of corruption
when even release from custody may depend on providing sexual favours to the police,
immigration officers or prison authorities. The same goes for the example of a young woman
met by the Working Group during one of its visits who was detained pending her expulsion and
reported that she had received offers from detention facility personnel to remain in the country in
return for sexual services.
56. Such situations fall squarely within the mandate of the Working Group insofar as a
structural lack of legal procedures, the absence or non-observance of legal criteria governing
deprivation of liberty and a culture of impunity for abuses prevail. In the event that officials in
charge of detention facilities offer victims release from custody in return for sexual services, this
also falls within the scope of the mandate of the Working Group. Against this background the
Working Group would like to bring to the attention of the Council the complete picture of
allegations received and observations made.
57. In this context the Working Group reiterates the obligation of States to protect those who
are held in their custody from assaults and abuses by fellow detainees. It is imperative to allocate
entirely separate premises to women in institutions which receive both men and women, if it is
not possible to detain women in separate institutions, and to keep young prisoners separate from
adults as, for example, envisaged by paragraph 8 of the Standard Minimum Rules for the
Treatment of Prisoners. The obligation to protect the right to freedom from violence is even
more obvious as far as abuses committed by State authorities are concerned.
58. The Working Group considers that if the penitentiary system is functioning properly, no
abuses will be found. if there are cases, an effective complaint procedure will ensure that they do
not go unpunished and an efficient correctional service system with professional staff will
guarantee prevention of such incidents in the future. Drawing on the foregoing, the Working
Group would like to highlight the importance of a well-organized penitentiary system with
well-trained staff.
C. Detention in the context of counter-terrorism
measures and states of emergency
59. The Working Group requests States to refrain from directly or indirectly supporting, or
otherwise tolerating terrorist organizations or individual terrorists in their territory planning or
preparing terrorist actions abroad, and welcomes measures taken to combat international
terrorism. However, another issue of concern for the Working Group remains the continuing
tendency towards deprivation of liberty by States abusing states of emergency or derogation,
invoking special powers specific to states of emergency without formal declaration, having
recourse to military, special or emergency courts, not observing the principle of proportionality
between the severity of the measures taken and the situation concerned, and employing vague
definitions of offences allegedly designed to protect State security and combat terrorism.
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1. Situations ifiustrating the concerns of the Working Group
60. The Working Group has in several Opinions and Decisions' 5 considered the detention of
individuals to be arbitrary who were or had been preventively detained for a considerable period
of time, ranging up to more than 13 years, without charge or trial by States invoking emergency
laws and allegedly in the context of countering terrorism. The individuals concerned remain in
detention despite one or even numerous decisions taken by various courts ordering their release.
In these cases, the executive simply disregarded the ruling of the courts or issued a new warrant
of administrative detention upon which the individuals concerned were immediately taken into
custody again.
61. Other cases the Working Group has dealt with in the context of countering terrorism and
pursuant to special powers attached to states of emergency, concern, for example, potentially
indefinite administrative detention orders alleged to have been carried out for security
or detention for security reasons ordered or legalized by a court of law where, however, the
persons subsequently charged with a crime were not in a position to defend themselves
effectively since the incriminating evidence was kept secret by invoking the necessity to protect
the State;' 7 detention of immigrants deemed to pose a terrorist threat;' 8 or detention following
trials before special courts seriously lacking fair trial guarantees.' 9
62. The Working Group is further concerned about general tendencies in some States to make
use of old security laws adopted to combat a specific threat, which have remained in force after
the disappearance of that particular situation. Nowadays they are resorted to by Governments to
preventively detain without judicial scrutiny, charge or trial, opposition politicians, academics,
trade unionists, human rights activists, or even individuals who have committed relatively minor
offences, labelling them as extremists, militants, or deviants.
63. Recent events have yet again brought to light the relevance of the Working Group's
concerns and recommendations made earlier. States of emergency are still being declared with
the constitutional order, including fundamental rights and freedoms, suspended. In the course of
the imposition of a state of emergency high ranking judges, lawyers and bar association
members, human rights defenders, and opposition politicians are arrested or put under house
‘ Opinions Nos. 2 1/2007, 22/2007 and 24/2007 (to be published in the next annual report),
Opinions Nos. 3/2007, 6/2007, and 9/2007 (addendum ito this report), Opinion No. 5/2005
(E/CN.4/2006/7/Add. 1), Decision No. 45/1995 (E/CN.4/i997/4/Add. 1), and
Decision No. 61/1993. See also Opinion No. 3/2003 (E/CN.4/2004/3/Add.i).
16 E/CN.4/2006/7/Add.2, paras. 84-85.
‘ Opinion No. 43/2006 (addendum ito this report), Opinion No. 26/2007 (to be published in
the next annual report).
18 Opinion No. 37/2007 (to be published in the next annual report).
19 . .
Opinion No. 8/2007 (addendum ito this report).
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arrest. Some have been held incommunicado at undisclosed places of detention, where they are
at risk of ill-treatment. The Working Group was further informed of cases in which military laws
had been amended by executive decree during a state of emergency in order to give power to
military courts to try civilians for a wide range of offences and in some cases with retroactive
effect.
2. Concerns
64. The Working Group reiterates its concerns and recalls that it has continuously considered
that states of emergency are a root cause of arbitrary detentions and cautioned against their
promulgation. Given the frequency of arbitrary detentions occurring in such situations, it would
like to remind Governments that they may only be imposed in strict compliance with the
principle of proportionality. Each measure taken thereunder, including the suspension of and
restrictions on derogable fundamental rights and freedoms, must also pursue a legitimate goal, be
necessary and appropriate to the goal to be achieved. 20 Whatever the threat, under no
circumstances may detention based on emergency legislation last indefinitely. The Working
Group attaches particular importance to the existence of effective internal control mechanisms
over the legality of detention. It considers the remedy of habeas corpus as one of the most
effective means of preventing and combating arbitrary detention. It must not be suspended or
rendered impracticable in states of emergency.
65. Broadening military jurisdiction in order to try civilians with retroactive effect during
states of emergency inevitably touches upon the right to fair trial guarantees entrenched in
article 14 of the International Covenant on Civil and Political Rights (ICCPR) and article 10 of
the Universal Declaration of Human Rights. In the light of its experience, the Working Group
has always taken a cautious approach regarding military or special jurisdictions in general and
extending such jurisdiction to civilians in particular. It has done so since, in almost all cases,
military courts involve serious risks of arbitrariness, because of the applicable procedure and the
corporative nature of their membership. They all too often give the impression of applying a
double standard, depending on whether the person on trial is a civilian or a member of the
military.
66. The Working Group understands that article 14 of the ICCPR does not rule out trials
before military courts as long as all fair trial standards set out in article 14 are guaranteed.
However, it is of the opinion that States must provide objective and serious justification for
trying civilians before military courts. Such trials may only be conducted if civilian courts are
unable to deal with a specific class of individuals or offences. Trials of civilians before military
or special courts must be the exception. 2 '
20 Human Rights Committee general comment No. 29 (2001) on derogations during a state of
emergency, in particular paragraphs 4 and 5.
21 Human Rights Committee general comment No. 32 (2007) on article 14: Right to equality
before courts and tribunals and to a fair trial, paragraph 22.
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67. As regards those States which have not ratified the ICCPR, the Working Group concurs
with the legal analysis by the Human Rights Committee in its general comment No. 29.22 There
it is rightfully stated that, in addition to those enumerated in article 4, paragraph 2 of the ICCPR,
certain other rights are non-derogable even during a state of emergency, such as the right to take
proceedings before a court to enable the court to decide without delay on the lawfulness of
detention. In the view of the Working Group these guarantees represent peremptory norms of
(customary) international law so that they are also binding on States which are not parties to the
Covenant.
68. Likewise, the Inter-American Court of Human Rights 23 concluded that the writ of
habeas corpus is among those judicial remedies that are essential for the protection of various
rights. The African Commission on Human and Peoples' Rights has held that proceedings to
decide on the lawfulness of detention must be brought before a court that is independent of the
executive authority that ordered the detention, in particular in emergency situations where
administrative detention is practised. The European Court of Human Rights has similarly
stressed the requirement that the review of the legality of detention be undertaken by a body
which is independent of the executive.
D. Detention registries and powers to release prisoners
69. During recent country missions to Latin America and Africa the Working Group was able
to observe the absence of a functioning registry system in detention facilities. In some facilities
different registries were used for different stages of detention. The Working Group was
particularly disturbed by the fact that in exceptional cases names of detainees interviewed during
visits to detention facilities did not appear in any record. It is obvious that a proper registration
book is essential for preventing disappearances, abuse of power for corruption purposes and
excessive detention beyond the authorized period of time, which amounts to arbitrary detention
without any legal basis.
70. While visiting these Latin American, African and other countries the Working Group could
observe that the law does not provide for a time limit for pretrial detention or that the maximum
length of detention on remand appeared to have been exceeded for a number of pretrial
detainees. Authorities in charge of detention centres took the stance that, even if it meant keeping
a person in detention without a legal basis, they could not release anyone without an order from a
judge, the Attorney-General, a prosecutor, or authorities other than correctional services
personnel competent to formally order the release. In other words, while the law provides for a
maximum length of detention, the prison authorities are not empowered to set the person
concerned free unless they have received a document from the authority competent to formally
22 . .
Human Rights Committee general comment No. 29 (2001) on article 4 (states of emergency),
paragraph 16.
23 Advisory Opinion OC-8/87, Habeas Corpus in Emergency Situations (arts. 27(2), 25 (1)
and 7 (6), American Convention on Human Rights); Advisory Opinion OC-9/87, Judicial
Guarantees in States of Emergency (arts. 27 (2), 25 and 8, American Convention on
Human Rights).
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order the release. Consequently, they may have to keep the person in detention beyond the
maximum time limit. In addition, the Working Group received information from prisoners
serving their sentence, who had accrued the right to benefits such as conditional release, or had
even served their prison term in full, but remained in detention, because they had no means to
exercise those rights in practice.
71. In order to avoid excesses in relation to detention, the Working Group calls upon States to
establish maximum time limits for pretrial detention in their domestic legislation. The Working
Group is pleased to note that a number of countries to which it had paid a visit and made
recommendations to that effect, have amended their respective laws to address the concern of the
Working Group.
72. In this context the Working Group further urges States to take appropriate measures, if
necessary, to ensure that warrants for pretrial detention clearly establish the date of the expiry of
the applicable time limit. In order to prevent detention on remand or imprisonment devoid of any
legal basis from occurring, domestic legislation should provide that prison authorities have the
power and are obliged to release pretrial detainees or prisoners automatically upon expiry of this
time limit without a specific release order by a judge, magistrate, prosecutor, or other State
authority competent to order detention on remand or imprisonment, in compliance with
international human rights standards the respective States have undertaken to observe. An
extension of the period of detention on remand should only be possible if domestic laws
complying with applicable international human rights laws allow for such prolongation, and the
respective orders have been duly served on the prison authorities.
73. The Working Group also considers that it is imperative for safeguarding against the
unlawful continuation of pretrial detention devoid of a legal basis or other forms of arbitrary
detention and imprisonment, to have a proper written registry system in place in any detention
facility, complemented by a computerized database if States so wish. Such registries should be
available in any place where individuals are deprived of their liberty by the State. The Working
Group would like to remind States of paragraph 7 (1) of the Standard Minimum Rules for the
Treatment of Prisoners which provides that “In every place where persons are imprisoned there
shall be kept a bound registration book with numbered pages in which shall be entered in respect
of each prisoner received: (a) information concerning his identity; (b) the reasons for his
commitment and the authority therefor; (c) the day and hour of his admission and release.”
IV. CONCLUSIONS
74. The Working Group welcomes the cooperation it has enjoyed from States in the discharge
of its mandate, which was renewed for another three-year period on 28 September 2007 by
Human Rights Council resolution 6/4. In the great majority of cases in which the Group adopted
an Opinion during its three sessions in 2007, the Government concerned had provided
submissions regarding the case.
75. The Working Group welcomes the cooperation on the part of Governments that extended
invitations to the Group for visits. Thanks to their cooperation, the Working Group was able to
visit Norway, Equatorial Guinea and Angola in 2007. The Working Group has also asked to visit
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Afghanistan, Ethiopia, Guinea Bissau, India, the Libyan Arab Jamahiriya and Turkmenistan. The
Working Group decided during its fiftieth session to request invitations for a visit to Egypt,
Malaysia, the Russian Federation, Saudi Arabia, Thailand, Ukraine and Uzbekistan.
76. The Working Group further discusses several issues which have given rise to concern
during the period reported upon and addresses recommendations to States. Concerning the
detention of non-citizens, the Working Group identifies several shortcomings it has observed in
connection with detention of asylum-seekers and illegal immigrants. It calls upon States to make
use of detention only as a last resort and to explore alternatives to detention.
77. The Working Group deplores the situation of vulnerable groups in detention susceptible to
sexual abuse by co-inmates and correctional services staff. It reminds States of their duty to
protect and the necessity of a functioning penitentiary system, with well-trained staff to prevent
such abuses and no impunity from prosecution.
78. In view of events throughout 2007, the Working Group reiterates its concerns over
deprivation of liberty occurring during states of emergency and over recourse to military, special
or emergency courts, especially in the context of countering terrorism, and recalls some of the
applicable international human rights norms and standards which must be adhered to at all times.
79. Finally, the Working Group, drawing on its experience, emphasizes the necessity of having
a proper registration system in place in every detention facility to safeguard against arbitrary
deprivation of liberty. The Working Group stresses that the time limit for pretrial detention
should be established by law and that, upon expiry of this time limit or of a term of
imprisonment, prison authorities should be competent and obliged to release detainees or
prisoners automatically without specific authorization by another State authority.
V. RECOMMENDATIONS
Detention of non-citizens
80. Regarding detention of asylum-seekers and ifiegal immigrants, the Working Group
addresses the following recommendations to States:
(a) The Working Group considers that an in-depth and urgent deliberation by the
Human Rights Council is required to seek effective alternatives to prevent violations of
rights guaranteed by the Universal Declaration of Human Rights and the International
Covenant on Civil and Political Rights affecting the large numbers of asylum-seekers and
illegal immigrants in detention around the world, in view of their specific vulnerability. To
that effect a seminar with the participation of all stakeholders involved should be organized
under the auspices of the Office of the United Nations High Commissioner for Human
Rights;
(b) The Working Group requests States to use detention of asylum-seekers and
illegal immigrants only as a last resort, and encourages them to explore alternatives to
detention, such as supervised release, release on bail, designated residence or regular
reporting to authorities.
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Vulnerable groups in detention which are susceptible to sexual abuse
81. As to vulnerable groups in detention which are susceptible to sexual abuse, the
Working Group makes the following recommendations:
(a) States in which sexual abuse of detainees by fellow inmates or by State
authorities is reported should take measures as a matter of urgency to ensure that juveniles
are held separate from adults and women separate from men. Custodians of female
prisoners should be women;
(b) States should organize their penitentiary systems in such a way as to guarantee
that sexual abuses in detention do not occur. This includes appropriate training of
detention facifity staff;
(c) Victims of such abuses should enjoy access to an effective complaints procedure
before an independent oversight body with decision taking powers;
(d) States should take the necessary steps to make sure that impunity for sexual
abuse does not prevail.
Detention in the context of counter-terrorism measures and in states of emergency
82. With regard to detention in the context of counter-terrorism measures and in states
of emergency the Working Group recommends that:
(a) States of emergencies must only be imposed, and measures taken thereunder,
including deprivation of liberty, must only be carried out, in strict conformity with article 4
of the International Covenant on Civil and Political Rights and in stringent compliance
with the principle of proportionality. The right to habeas corpus must not be suspended;
(b) Governments should duly follow release orders rendered by competent judicial
authorities and refrain from re-detaining the individual concerned on the same grounds,
also during states of emergency;
(c) Countries in legal transition, where civifians may stifi be tried under military
jurisdiction, should provide for an independent and civil judicial authority before which
civilians are able to challenge the competence of the military court.
Demarcation of competences for release of detainees
83. Regarding the demarcation of competences between authorities for release of
detainees, particularly pretrial detainees, the Working Group addresses the following
recommendations to States:
(a) States, which have not done so yet, should establish maximum time limits for
pretrial detention in their domestic legislation;
AIHRC/7/4
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(b) The Working Group urges States to take appropriate measures, if necessary, to
ensure that warrants for detention on remand clearly establish the date of the expiry of the
applicable time limit;
(c) States should ensure that domestic legislation provides that prison authorities
have the power and are obliged to release pretrial detainees or convicted prisoners
automatically upon expiry of the prescribed time limit, without a specific release order by a
judge, magistrate, prosecutor, or other State authority which is competent to order
detention on remand or imprisonment, in compliance with the international human rights,
norms and standards the respective States have undertaken to observe.
Registration at detention facifities
84. In addition to the requirements of section 7 (1) of the Standard Minimum Rules for
the Treatment of Prisoners relating to registration books at detention facilities, the
Working Group is bound to encourage States to further include the following information
on the detainee: (i) the signature of the detainee upon entry, transfer or release; (ii) the
prescribed maximum duration of detention; (iii) date and time of transfer to another
detention facifity, if applicable, and the authority therefor; and (iv) if applicable, the date
when the prisoner is eligible for early release on probation.
