36/38 Methods of work of the Working Group on Arbitrary Detention / RightDocs

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Document Type: Final Report

Date: 2017 Jul

Session: 36th Regular Session (2017 Sep)

Agenda Item: Item3: Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development

GE.17-11805(E)

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Human Rights Council Thirty-sixth session

Agenda item 3

Promotion and protection of all human rights, civil,

political, economic, social and cultural rights,

including the right to development

Methods of work of the Working Group on Arbitrary Detention*

I. Introduction

1. The methods of work take account of the specific features of the terms of reference

of the Working Group on Arbitrary Detention under Commission on Human Rights

resolutions 1991/42, 1992/28, 1993/36, 1994/32, 1995/59, 1996/28, 1997/50, 1998/41,

1999/37, 2000/36, 2001/40, 2002/42, 2003/31 and 2004/39, as well as Human Rights

Council resolutions 6/4, 10/9, 15/18, 24/7 and 33/30. In resolution 1991/42, the

Commission gave the Working Group the task not only of informing the Commission by

means of a comprehensive report, but also of investigating cases of deprivation of liberty

imposed arbitrarily.

II. Functioning of the Working Group

2. The Working Group was established by the Commission on Human Rights in its

resolution 1991/42. The initial mandate of the Working Group was renewed by the

Commission and the Human Rights Council. The Council assumed the mandate of the

Commission in its decision 1/102, and it renewed the Working Group’s mandate in its

resolutions 6/4, 15/18, 24/7 and 33/30. The Working Group’s mandate is considered for

renewal every three years.

3. The Working Group is organized internally as follows:

(a) The Working Group shall elect, at its spring session, a Chair-Rapporteur and

two Vice-Chairs for a term of one year, taking due account of the need for rotation among

the geographical regions and the gender balance, among other considerations. They shall

take office at the end of the same session. Each officer can be re-elected;

(b) The Chair-Rapporteur shall perform the functions conferred upon him or her

by the resolution that creates or renews the mandate of the Working Group, the methods of

work and the decisions of the Working Group. The Chair-Rapporteur shall represent the

Working Group before the Human Rights Council, States and other relevant stakeholders.

She or he shall chair the sessions of the Working Group;

* The present methods of work supersede those contained in document A/HRC/33/66.

United Nations A/HRC/36/38

individual complaints; the other shall be the focal point for follow-up on all actions taken

by the Working Group;

(d) In the exercise of their functions, the Chair-Rapporteur and the Vice-Chairs

shall remain under the authority of the Working Group. In the absence of the Chair-

Rapporteur, one of the Vice-Chairs shall temporarily assume the assigned functions of the

Chair-Rapporteur as required by the circumstances;

(e) Each of these three officers shall report fully to the Working Group at the

beginning of each session on activities they have undertaken during the intersessional

period, and on any activity undertaken during a session without the other members of the

Working Group;

(f) The Working Group can appoint at any time a rapporteur on specific issues of

interest.

4. The Working Group meets at least three times a year, for at least five to eight

working days, generally in Geneva.

5. When the case under consideration or the country visit concerns a country of which

one of the members of the Working Group is a national, or in other situations where there

may be a conflict of interest, that member shall not participate in the discussion of the case,

in the visit or in the preparation of the report on the visit.

6. During the course of its deliberations, when dealing with individual cases or

situations, the Working Group renders opinions, which are listed in the annual report it

submits to the Human Rights Council. The opinions of the Working Group are the result of

consensus; where consensus is not reached, the view of a majority of the members of the

Working Group is adopted as the view of the Working Group.

III. Implementation of the mandate of the Working Group

7. The mandate of the Working Group is to investigate cases of deprivation of liberty

imposed arbitrarily. In the discharge of its mandate, the Working Group refers to the

relevant international standards set forth in the Universal Declaration of Human Rights, as

well as to the relevant international instruments accepted by the States concerned, in

particular the International Covenant on Civil and Political Rights, the Convention relating

to the Status of Refugees of 1951 and the Protocol relating to the Status of Refugees of

1967, the International Convention on the Elimination of All Forms of Racial

Discrimination and, when appropriate, any other relevant standards, including the

following:

(a) The Convention on the Rights of the Child;

(b) The Convention against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment;

Workers and Members of Their Families;

(d) The Convention on the Rights of Persons with Disabilities;

(e) The Body of Principles for the Protection of All Persons under Any Form of

Detention or Imprisonment;

(f) The United Nations Standard Minimum Rules for the Treatment of Prisoners

(the Nelson Mandela Rules);

(g) The United Nations Rules for the Protection of Juveniles Deprived of their

Liberty;

(h) The United Nations Standard Minimum Rules for the Administration of

Juvenile Justice (the Beijing Rules);

(i) The United Nations Basic Principles and Guidelines on Remedies and

Procedures on the Right of Anyone Deprived of Their Liberty to Bring Proceedings Before

a Court.

8. As a general rule, in dealing with situations of arbitrary deprivation of liberty within

the meaning of paragraph 15 of resolution 1997/50, the Working Group shall refer, in the

discharge of its mandate, to the following five legal categories:

(a) When it is clearly impossible to invoke any legal basis justifying the

deprivation of liberty, as when a person is kept in detention after the completion of his or

her sentence or despite an amnesty law applicable to him or her (category I);

(b) When the deprivation of liberty results from the exercise of the rights or

freedoms guaranteed by articles 7, 13-14 and 18-21 of the Universal Declaration of Human

Rights and, insofar as States parties are concerned, by articles 12, 18-19, 21-22 and 25-27

of the International Covenant on Civil and Political Rights (category II);

to the right to a fair trial, established in the Universal Declaration of Human Rights and in

the relevant international instruments accepted by the States concerned, is of such gravity

as to give the deprivation of liberty an arbitrary character (category III);

(d) When asylum seekers, immigrants or refugees are subjected to prolonged

administrative custody without the possibility of administrative or judicial review or

remedy (category IV);

(e) When the deprivation of liberty constitutes a violation of international law on

the grounds of discrimination based on birth, national, ethnic or social origin, language,

religion, economic condition, political or other opinion, gender, sexual orientation,

disability, or any other status, that aims towards or can result in ignoring the equality of

human beings (category V).

IV. Submission and consideration of communications

A. Submission of communications to the Working Group

9. Communications shall be submitted in writing and addressed to the secretariat,

giving the family name, first name and address of the sender and (optionally) his or her

telephone, telex and telefax numbers or e-mail address.

10. As far as possible, each case shall form the subject of a presentation indicating the

circumstances of the arrest or detention and the family name, first name and any other

information making it possible to identify the person detained, as well as the latter’s legal

status, particularly:

(a) The date and place of the arrest or detention or of any other form of

deprivation of liberty and the identity of those presumed to have carried it out, together

with any other information shedding light on the circumstances in which the person was

deprived of liberty;

(b) The reasons given by the authorities for the arrest, detention or deprivation of

liberty;

(d) The action taken, including investigatory action or the exercise of internal

remedies, by the administrative and judicial authorities, as well as the steps taken at the

international or regional levels, and the results of such action or the reasons why such

measures were ineffective or were not taken;

(e) An account of the reasons why the deprivation of liberty is deemed arbitrary;

(f) A report of all elements presented by the source that aim to inform the

Working Group on the full status of the reported situation, such as the beginning of a trial;

the granting of provisional or definitive release; and changes of incarceration conditions or

venue or of any other similar circumstances. An absence of information or an absence of a

response by the source may lead the Working Group to terminate its consideration of the

case.

11. In order to facilitate the Working Group’s work, it is hoped that communications

will be submitted using the model questionnaire available from the Working Group’s

secretariat. Communications shall not exceed 20 pages and any additional material,

including annexes, exceeding that limit may not be taken into account by the Working

Group.

12. Communications addressed to the Working Group may be received from the

individuals concerned, their families or their representatives. Such communications may

also be transmitted by Governments and intergovernmental and non-governmental

organizations as well as by national institutions for the promotion and protection of human

rights. In dealing with communications, the Working Group will give consideration to

articles 9, 10 and 14 of the Code of Conduct for Special Procedures Mandate-Holders of the

Human Rights Council.

13. In accordance with the provisions of paragraph 4 of Human Rights Commission

resolution 1993/36, the Working Group may, on its own initiative, take up cases that might

constitute arbitrary deprivation of liberty.

14. When the Working Group is not in session, the Chair-Rapporteur, or in his or her

absence the Vice-Chairs (see para. 3 (c) and (d) above), may decide to bring the case to the

attention of the Government.

B. Consideration of communications

15. In the interest of ensuring mutual cooperation, communications shall be brought to

the attention of the Government and the reply of the latter shall be brought to the attention

of the source of the communication for its further comments. They shall be transmitted by

the Chair-Rapporteur of the Working Group or, if she or he is not available, by the Vice-

Chairs (see para. 3 (c) and (d) above). In the case of Governments, the letter shall be

transmitted through the Permanent Representative to the United Nations Office at Geneva.

In the letter the Working Group shall request the Government to reply within 60 days,

during which appropriate inquiries may be carried out by the Government so as to furnish

the Working Group with the fullest possible information. In the letter the Working Group

shall also inform the Government that the Working Group is authorized to render an

opinion determining whether the reported deprivation of liberty was arbitrary or not.

Replies shall not exceed 20 pages and any additional material, including annexes,

exceeding that limit may not be taken into account by the Working Group. If a reply is not

received from the Government within the time limit, the Working Group may render an

opinion on the basis of the information submitted by the source.

16. If the Government desires an extension of the time limit, it shall inform the Working

Group of the reasons for requesting one, so that it may be granted a further period of a

maximum of one month in which to reply. Even if no reply has been received upon expiry

of the time limit set, the Working Group may render an opinion on the basis of all the

information it has obtained.

C. Action taken on communications

17. In the light of the information obtained, the Working Group shall take one of the

following measures:

(a) If the person has been released, for whatever reason, following the referral of

the case to the Working Group, the case is filed. The Working Group reserves the right to

render an opinion, on a case-by-case basis, whether or not the deprivation of liberty was

arbitrary, notwithstanding the release of the person concerned;

(b) If the Working Group considers that the case is not one of arbitrary detention,

it shall render an opinion to that effect. The Working Group can also make

recommendations in this case if it considers it necessary;

Government or from the source, it may keep the case pending until that information is

received;

(d) If the Working Group considers that the arbitrary nature of the detention is

established, it shall render an opinion to that effect and make recommendations to the

Government.

18. The opinions rendered by the Working Group shall be transmitted to the

Government concerned. Forty-eight hours after their transmittal, they shall be

communicated to the source. An advance unedited version of the opinion will be published

online once the source has been notified.

19. The opinions rendered by the Working Group shall be brought to the attention of the

Human Rights Council in its annual report.

20. Governments, sources and other parties should inform the Working Group of the

follow-up action taken on the recommendations made by the Working Group in its opinion.

This will enable the Working Group to keep the Human Rights Council informed of the

progress made and of any difficulties encountered in implementing the recommendations,

as well as of any failure to take action.

D. Procedure for review of opinions

21. In exceptional circumstances, the Working Group may proprio motu reconsider its

opinions if it becomes aware of new facts that, if known at the time of the decision, would

have led the Working Group to a different outcome. The Working Group may also

reconsider its opinions at the request of the Government concerned or the source under the

following conditions:

(a) If the facts on which the request is based are considered by the Working

Group to be entirely new and such as to have caused the Working Group to alter its

decision had it been aware of them;

(b) If the facts had not been known or had not been accessible to the party

originating the request;

latter has observed the time limit for reply referred to in paragraphs 15-16 above;

V. Urgent action procedure

22. A procedure known as “urgent action” may be resorted to in the following cases:

(a) In cases in which there are sufficiently reliable allegations that a person is

being arbitrarily deprived of his or her liberty and that the continuation of such deprivation

constitutes a serious threat to that person’s health, physical or psychological integrity or

even to his or her life;

(b) In cases in which, even when no such threat is alleged to exist, there are

particular circumstances that warrant an urgent action.

23. After having transmitted an urgent appeal to the Government, the Working Group

may transmit the case through its regular procedure in order to render an opinion on

whether the deprivation of liberty was arbitrary or not. Such appeals, which are of a purely

humanitarian nature, in no way prejudge any opinion the Working Group may render. The

Government is required to respond separately for the urgent action procedure and the

regular procedure.

24. The Chair-Rapporteur, or in his or her absence the Vice-Chairs (see para. 3 (c) and

(d) above), shall transmit the appeal by the most rapid means to the Minister for Foreign

Affairs through the Permanent Mission of the country concerned.

VI. Country visits

25. For the purposes of completing its task, the Working Group frequently pays visits on

official mission. The visits are prepared in collaboration with the Government, the United

Nations agencies in the field and civil society representatives. The visits are an opportunity

for the Working Group to engage in direct dialogue with the Government concerned and

with representatives of civil society, with the aim of better understanding the situation of

deprivation of liberty in the country and the underlying reasons for arbitrary detention. An

important part of these missions are visits to detention centres, including penitentiaries,

prisons, police stations, detention centres for migrants and psychiatric hospitals.

26. When the Working Group receives an invitation from a Government to conduct a

country visit, it responds by inviting the Permanent Representative of the State to the

United Nations Office at Geneva to a meeting to determine the dates and terms of the visit.

The secretariat of the Working Group initiates a dialogue with the parties involved in the

visit with a view to taking all practical measures to facilitate the mission. The preparation

for the visit is conducted in close cooperation with diplomatic authorities of the host

country and United Nations agencies.

27. The Government must assure the Working Group that, during the visit, the Working

Group will have the opportunity to conduct meetings with the highest authorities of the

branches of the State (political, administrative, legislative and judicial authorities), that it

will be able to visit penitentiaries, prisons, police stations, immigration detention centres,

military prisons, detention centres for juveniles and psychiatric hospitals and that it will be

able to meet with all the authorities and officials who affect the personal liberty of persons

subjected to the jurisdiction of the host State. The Working Group shall also conduct

meetings with international bodies and agencies as well as with non-governmental

organizations, lawyers, bar associations and other professional associations of interest,

national human rights institutions, diplomatic and consular representatives and religious

authorities. Absolute confidentiality shall be guaranteed during the interviews between the

Working Group and persons deprived of their liberty. The Government shall guarantee

there will be no reprisals against persons interviewed by the Working Group.

28. The Working Group shall conduct at least two visits per year, and its delegation will

be composed of at least two of its members.

29. At the end of its visit, the Working Group shall submit a preliminary statement to

the Government, informing it about its preliminary findings. It shall inform the public of its

findings by means of a press conference after debriefing the Government.

30. A report shall be prepared by the Working Group, and once adopted it shall be

communicated to the Government of the country visited with a view to gathering its

observations on factual and legal errors. The final report shall take into consideration the

observations of the Government. It shall be published as an addendum to the annual report.

31. During the visit, members of the Working Group shall respect the legislation of the

host country.

32. Two years after its visit, the Working Group shall request the Government to present

a report on the implementation of the recommendations formulated in the mission report.

All of the stakeholders involved in the visit shall be informed during the follow-up

procedure and shall submit their observations. If necessary, the Working Group shall

request a follow-up visit to the country concerned.

VII. Coordination with other human rights mechanisms

33. In order to strengthen the good coordination that already exists between the various

United Nations bodies working in the field of human rights (see Commission on Human

Rights resolution 1997/50, para. 1 (b)), the Working Group takes action as follows:

(a) If the Working Group, while examining allegations of violations of human

rights, considers that the allegations could be more appropriately dealt with by another

working group or special rapporteur, it will refer the allegations to the relevant working

group or special rapporteur within whose competence they fall, for appropriate action;

(b) If the Working Group receives allegations of violations of human rights that

fall within its competence as well as within the competence of another thematic

mechanism, it may consider taking appropriate action jointly with the working group or

special rapporteur concerned;

Council has appointed a special rapporteur, or another appropriate mechanism with

reference to that country, are referred to the Working Group, the latter, in consultation with

the rapporteur or the person responsible, shall decide on the action to be taken;

(d) If a communication addressed to the Working Group is concerned with a

situation that has already been referred to another body, action shall be taken as follows:

(i) If the function of the body to which the matter has been referred is to deal

with the general development of human rights within its area of competence (e.g.

most of the special rapporteurs, representatives of the Secretary-General,

independent experts), the Working Group shall retain competence to deal with the

matter;

(ii) However, if the body to which the matter has already been referred has the

function of dealing with individual cases (e.g. the Human Rights Committee and

other treaty bodies), the Working Group shall transmit the case to that other body if

the person and facts involved are the same.

34. The Working Group shall not make visits to countries for which the Human Rights

Council has already appointed a country rapporteur or another appropriate mechanism with

reference to that country, unless the special rapporteur or the person responsible considers

the visit by the Working Group to be useful.