39/45 Report of the Working Group on Arbitrary Detention - Note by the Secretariat
Document Type: Final Report
Date: 2018 Jul
Session: 39th Regular Session (2018 Sep)
Agenda Item: Item3: Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development
GE.18-10869(E)
Human Rights Council Thirty-ninth session
10–28 September 2018
Agenda item 3
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
Note by the Secretariat
In 2017, the Working Group on Arbitrary Detention, under its regular procedure,
adopted 94 opinions concerning the detention of 225 persons in 48 countries. It also
transmitted 98 urgent appeals to 45 Governments concerning 311 individuals, and 41 letters
of allegations and other letters to 32 Governments. States informed the Working Group that
they had taken measures to remedy the situations of detainees, and in an increasing number
of cases the detainees were released. The Working Group is grateful to those Governments
that responded to its appeals and took steps to provide it with the information requested on
the situation of detainees.
The Working Group engaged in continuous dialogue with countries that it visited,
particularly in connection with the implementation of its recommendations. In 2017, the
Working Group undertook two country visits, to Argentina and Sri Lanka. The reports on
those visits are contained in addenda to the present report (A/HRC/39/45/Add.1 and
A/HRC/39/45/Add.2, respectively).
In the present report, the Working Group considers the issue of consular assistance
and diplomatic protection for persons deprived of liberty. It also examines the linkages
between arbitrary detention and instances of torture and ill-treatment.
In its recommendations, the Working Group calls for increased cooperation from
States, especially in relation to its requests for country visits, in relation to their responses
to its urgent appeals and communications, and for the enforcement of its opinions, with a
view to preventing and ending arbitrary detention. Furthermore, it calls upon the States
concerned to take appropriate measures to prevent acts of reprisal against individuals who
were the subject of an urgent appeal or opinion or who gave effect to a recommendation of
the Working Group.
In November 2017, the Working Group adopted its revised deliberation No. 5 on
deprivation of liberty of migrants, which is included in an annex to the present report.
United Nations A/HRC/39/45
Report of the Working Group on Arbitrary Detention*
Contents
Page
I. Introduction ................................................................................................................................... 3
II. Activities of the Working Group in 2017 ...................................................................................... 3
A. Handling of communications addressed to the Working Group during 2017 ....................... 3
B. Country visits ........................................................................................................................ 25
III. Thematic issues ............................................................................................................................. 27
A. Consular assistance and diplomatic protection for persons deprived of liberty .................... 27
B. Linkages between arbitrary detention and instances of torture and ill-treatment ................. 28
IV. Conclusions ................................................................................................................................... 30
V. Recommendations ......................................................................................................................... 31
Annex
Revised deliberation No. 5 on deprivation of liberty of migrants ................................................. 32
* The annex is being circulated without formal editing, in English.
I. Introduction
1. The Working Group on Arbitrary Detention was established by the Commission on
Human Rights in its resolution 1991/42. It was entrusted with the investigation of cases 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. Pursuant to General Assembly resolution 60/251 and
Human Rights Council decision 1/102, the Council assumed the mandate of the
Commission. The mandate of the Working Group was most recently extended for a three-
year period in Council resolution 33/30 of 30 September 2016.
2. During the period from 1 January to 31 December 2017, the Working Group was
composed of Sètondji Roland Jean-Baptiste Adjovi (Benin), José Antonio Guevara
Bermúdez (Mexico), Seong-Phil Hong (Republic of Korea), Elina Steinerte (Latvia) and
Leigh Toomey (Australia).
3. Mr. Adjovi served as Chair-Rapporteur of the Working Group from April 2016 to
April 2017, and Mr. Guevara Bermúdez and Ms. Toomey as Vice-Chairs. At the seventy-
eighth session of the Working Group, in April 2017, Mr. Guevara Bermúdez was elected as
Chair-Rapporteur and Ms. Steinerte and Ms. Toomey as Vice-Chairs.
II. Activities of the Working Group in 2017
4. During the period from 1 January to 31 December 2017, the Working Group held its
seventy-eighth, seventy-ninth and eightieth sessions. The Working Group also undertook
two country visits to Argentina (8–18 May 2017) and Sri Lanka (4–15 December 2017)
(see A/HRC/39/45/Add.1 and A/HRC/39/45/Add.2 respectively).
5. In order to facilitate outreach and information-sharing, the Working Group met with
a group of non-governmental organizations in the context of its seventy-ninth session.
6. At its eightieth session, in November 2017, the Working Group adopted its revised
deliberation No. 5 on deprivation of liberty of migrants, which is included in an annex to
the present report. The document updates a deliberation issued in 1999 to tackle the
situation of immigrants and asylum seekers held in prolonged custody without the
possibility of administrative or judicial remedy. The new deliberation reflects changes in
international law and the Working Group’s jurisprudence since then, as well as concern
over the growing use of detention in the context of migration.
A. Handling of communications addressed to the Working Group during
2017
1. Communications transmitted to Governments
7. At its seventy-eighth, seventy-ninth and eightieth sessions, the Working Group
adopted a total of 94 opinions concerning 225 persons in 48 countries (see the table below).
2. Opinions of the Working Group
8. Pursuant to its methods of work (A/HRC/36/38), in addressing its opinions to
Governments, the Working Group drew their attention to Commission on Human Rights
resolutions 1997/50 and 2003/31 and Human Rights Council resolutions 6/4, 24/7 and
33/30, by which those bodies requested 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 have
taken. At the expiry of a 48-hour deadline, the opinions were transmitted to the relevant
sources.
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Opinions adopted at the seventy-eighth, seventy-ninth and eightieth sessions of the Working Group
Opinion No. State(s) Government reply Person(s) concerned Opinion
Follow-up information
received
1/2017 Turkey No1 Rebii Metin Görgeç Detention arbitrary, categories I and III
Following the release of Mr. Görgeç, no further action taken to implement the opinion, information from the Government and the source
2/2017 Bhutan and India Bhutan (yes)
India (no)
Loknath Acharya Case kept pending without prejudice to the receipt of further information (paragraph 17 (c) of methods of work)
N/A
3/2017 Israel No A minor (whose name is known by the Working Group)
Detention arbitrary, categories III and V
-
4/2017 China No Tsegon Gyal Detention arbitrary, categories I, III and V
No action taken to implement the opinion, information from the source
5/2017 China Yes Huang Wenxun, Yuan Bing and Yuan Xiaohua
Detention arbitrary, categories I, II and III
-
6/2017 Libya No Yousif Abdul Salam Faraj Ahbara, Abubakr Hamad Ali Dayoum, Masoud Abdel Azeim al-Shafei, Abdu Rabo al-Sharief Abdu Rabu al-Mabrouk, Abdul Rahman Abdul Jalil Mohammed al-Firjani,
Detention arbitrary, categories I and III
-
1 The Government of Turkey submitted a late response in this case.
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5
Opinion No. State(s) Government reply Person(s) concerned Opinion
Follow-up information
received
Ahmed Mahmoud Mohamed al-Farisi and Abdalla Faraj Abdalla Aburas Ali
7/2017 Islamic Republic of Iran
No Kamal Foroughi Detention arbitrary, categories I, III and V
-
8/2017 Pakistan No Hassan Zafar Arif Detention arbitrary, categories I, II, III and V
Mr. Arif allegedly died in suspicious circumstances after his release, information from the source
9/2017 Islamic Republic of Iran
Yes Hana Aghighian, Soudabeh Mehdinejad Behnamiri, Kamelia Bideli, Navid Moallemi, Houshmand Dehghan, Maryam Dehghan, Sheida Ghoddousi, Behnam Hasani, Bita Hedayati, Mona Amri Hesari, Nazi Khalkhali, Hena Koushk-Baghi, Tina Mowhebati, Mitra Nouri, Roufia Pakzadan, Shiva Rowhani, Shohreh Samimi, Shahnam Jazbani, Pouneh Sanaie, Vesagh Sanaie, Parisa Shahidi, Parivash Shojaei, Farah Tebyanian and Mojdeh Zhohori
Detention arbitrary, categories II, III and V
-
10/2017 Saudi Arabia No Salim Abdullah Hussain Abu Abdullah
Detention arbitrary, categories I and III
No action taken to implement the opinion, information from the
6
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Opinion No. State(s) Government reply Person(s) concerned Opinion
Follow-up information
received
Government and the source2
11/2017 Morocco Yes Salah Eddine Bassir Detention arbitrary, categories II, III and V
-
12/2017 Cuba Yes Danilo Maldonado Machado
Detention arbitrary, categories I and III
Following the release of Mr. Maldonado Machado, no further action taken to implement the opinion, information from the Government and the source
13/2017 Republic of Korea Yes Twelve female defectors of the Democratic People’s Republic of Korea (whose names are known by the Working Group)
Case filed (paragraph 17 (a) of methods of work)
N/A
14/2017 Cameroon Yes Cornelius Fonya Detention arbitrary, categories I, II, III and V
No action taken to implement the opinion, information from the source
15/2017 Maldives Yes Ahmed Mahloof Detention arbitrary, categories II, III and V
Mr. Mahloof has been released and no further action has been taken to implement the opinion, information from the Government
16/2017 Kazakhstan Yes Max Bokayev and Talgat Ayanov
Detention arbitrary, categories II, III and V
Following appeals to all three instances, sentences were upheld.
2 See the section on reprisals.
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7
Opinion No. State(s) Government reply Person(s) concerned Opinion
Follow-up information
received
No action taken to implement the opinion, information from the Government and the source
17/2017 Jordan Yes Ghassan Mohammed Salim Duar
Detention arbitrary, categories I and III
-
18/2017 Bolivarian Republic of Venezuela
Yes Yon Alexander Goicoechea Lara
Detention arbitrary, categories I, III and V
Mr. Lara has been released, information from the Government
19/2017 Colombia No Pedro César Pestana Rojas and Antonio de Jesús Martínez Hernández
Detention arbitrary, category I
No action taken to implement the opinion, information from the Government and the source
20/2017 Kuwait Yes Musallam Mohamed Hamad al-Barrak
Detention arbitrary, category II
Following the release of Mr. Al-Barrak, no further action taken to implement the opinion, information from the Government and the source
21/2017 United Arab Emirates Yes Mohamad Ismat Mohamad Shaker Az
Detention arbitrary, categories I, II and III
No action taken to implement the opinion, information from the source3
22/2017 Republic of Korea Yes Sang-gyun Han and Young-joo Lee
Detention arbitrary, category II
Mr. Han was subsequently convicted and then released, and Ms. Lee has been arrested, information from the Government
3 See the section on reprisals.
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Opinion No. State(s) Government reply Person(s) concerned Opinion
Follow-up information
received
and the source
23/2017 Mexico No Pablo López Alavez Detention arbitrary, categories I, II, III and V
No action taken to implement the opinion, information from the source
24/2017 Mexico No Mario Olivera Osorio Detention arbitrary, categories I, II and III
Mr. Olivera Osorio was acquitted and released. Investigations into torture allegations ongoing, information from the Government
25/2017 Congo No Jean-Claude Mbango, Samba Mountou Loukossi and Ismaël Chrislain Mabarry
Detention arbitrary, categories I and III
The individuals remain in detention and trials are ongoing, information from the source
26/2017 Viet Nam Yes Nguyen Van Dai Detention arbitrary, categories I, II, III and V
Mr. Van Dai has been released and granted asylum in Germany, information from the source
27/2017 Viet Nam Yes Nguyen Ngoc Nhu Quynh
Detention arbitrary, categories II and III
Appeal dismissed and Ms. Quynh remains in prison, information from the Government and the source4
28/2015 Australia No5 Abdalrahman Hussein Detention arbitrary, categories II, IV and V
No action taken to implement the opinion, information from the Government and the source
4 See the section on reprisals.
5 The Government of Australia submitted a late response in this case.
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9
Opinion No. State(s) Government reply Person(s) concerned Opinion
Follow-up information
received
29/2017 Uzbekistan No6 Aramais Avakyan Detention arbitrary, categories I, III and V
No action taken to implement the opinion, information from the source
30/2017 Egypt Yes Mohamed Serria Detention arbitrary, categories I and III
Following the release of Mr. Serria, no further action taken to implement the opinion, information from the Government and the source
31/2017 Israel No Omar Nazzal Detention arbitrary, categories III and V
-
32/2017 Iraq No7 Salih Mohammed Salih Mansour al Dulaimi
Detention arbitrary, categories I and III
-
33/2017 Iraq Yes Rasha Nemer Jaafar al- Husseini, Ghassan Abbas Jasim al- Kubaisi, Omar Sameer Jawad al-Noaemy, Uday Ghazy Amin al- Ithawi, Yasser Saadi Hassoun al-Zubaidi, Osama Hamid Hammoud al-Halbusi, Asim Jabbar Aath Fayyad al-Mashhadani, Natek Abdullah Ibrahim al-Aqidi, Ahmed Shawki Saoud al-Kubaisi, Hekmat Nasser Hamad Dahi al-
Detention arbitrary, categories I, III and V
Ms. Al-Husseini has been released and all other individuals remain in detention. No further action taken to implement the opinion. Death sentences in relation to some of the individuals upheld upon appeal, information from the Government and the source
6 The Government of Uzbekistan submitted a late response in this case.
7 The Government of Iraq submitted a late response in this case.
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Opinion No. State(s) Government reply Person(s) concerned Opinion
Follow-up information
received
Obeidi, Sohail Akram Salman al-Gehiche, Ali Mahmoud al-Dulaimi, Marwan Mokhayber Ahmed al-Dulaimi, Amjad Hamid Ozgar M’hidi al-Dulaimi, Arshad Hamid Ozgar M’hidi al-Dulaimi, Raad Hammoud Salloum Hussein al- Dulaimi, Ahmed Shawki Abdel Karim Mohammed al- Sharabati, Mohammed Hussein Obaid Hussein al-Janabi and Qais Qader Mohammad Ali Abbas al-Bayati
34/2017 Algeria Yes Kamel Eddine Fekhar Detention arbitrary, categories II and III
Following the release of Mr. Fekhar, no further action taken to implement the opinion, information from the Government and the source
35/2017 Mauritania Yes Mohammed Shaikh Ould Mohammed Ould Mkhaitir
Detention arbitrary, categories II and III
-
36/2017 Iraq Yes Ahmad Suleiman Jami Muhanna al-Alwani
Detention arbitrary, categories I, II, III and V
-
37/2017 Bolivarian Republic of Venezuela
Yes Braulio Jatar Detention arbitrary, categories I, II and III
Mr. Jatar has been transferred to house arrest, information from the Government
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1
1
Opinion No. State(s) Government reply Person(s) concerned Opinion
Follow-up information
received
38/2017 Turkey Yes Kursat Çevik Detention arbitrary, categories I and III
No action taken to implement the opinion. Mr. Çevik was subsequently convicted, information from the Government and the source8
39/2017 Burkina Faso Yes Djibril Bassolé Detention arbitrary, category III
Mr. Bassolé has been transferred to house arrest, information from the Government and the source
40/2017 Cameroon Yes Yves Michel Fotso Detention not arbitrary N/A
41/2017 Turkey Yes Akin Atalay, Önder Çelik, Turhan Günay, Mustafa Kemal Güngör, Kadri Gürsel, Hakan Kara, Haci Musa Kart, Murat Sabuncu, Bülent Utku and Güray Tekin Öz
Detention arbitrary, categories II and III
Final verdicts have been announced for nine of the individuals, and one was acquitted. All nine individuals have been released pending the appeal to the Supreme Court. No further action taken to implement the opinion, information from the Government and the source
42/2017 Australia Yes Mohammad Naim Amiri
Detention arbitrary, categories II, IV and V
No action taken to implement the opinion, information from the Government and the source
43/2017 Tajikistan Yes Daniil Islamov Detention arbitrary, categories I, II, III and
Mr. Islamov has been released, following the completion of his
8 See the section on reprisals.
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Opinion No. State(s) Government reply Person(s) concerned Opinion
Follow-up information
received
V sentence. No further action taken to implement the opinion, information from the source
44/2017 Israel No Ali Abdul Rahman Mahmoud Jaradat
Detention arbitrary, categories III and V
-
45/2017 Bangladesh No Hasnat Karim Detention arbitrary, categories I and III
No action taken to implement the opinion, information from the source
46/2017 Jordan Yes Hatem Al Darawsheh Detention arbitrary, categories I and III
Mr. Al Darawsheh is serving his three-year prison term, information from the Government
47/2017 United Arab Emirates Yes Ahmad Ali Mekkaoui Detention arbitrary, categories I and III
Mr. Mekkaoui is currently serving his sentence, information from the Government
48/2017 Islamic Republic of Iran
No Narges Mohammadi Detention arbitrary, categories II, III and V
-
49/2017 Islamic Republic of Iran
No Siamak Namazi and Mohammed Baquer Namazi
Detention arbitrary, categories III and V
The individuals remain in detention, information from the Government
50/2017 Malaysia Yes Maria Chin Abdullah Detention arbitrary, categories II, III and V
Following the release of Ms. Chin, no further action taken to implement the opinion, information from the Government and the source
51/2017 Thailand No Sasiphimon Detention arbitrary, -
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1
3
Opinion No. State(s) Government reply Person(s) concerned Opinion
Follow-up information
received
Patomwongfangam categories II and III
52/2017 Bolivarian Republic of Venezuela
No Gilbert Alexander Caro Alfonzo
Detention arbitrary, categories III and V
-
53/2017 Lebanon Yes Nizar Bou Nasr Eddine Detention arbitrary, categories I and III
Following the release of Mr. Eddine, no further action taken to implement the opinion, information from the Government
54/2017 Burundi No Elvis Arakaza Detention arbitrary, categories I, II and III
No action taken to implement the opinion, information from the source
55/2017 Cuba Yes Manuel Rodríguez Alonso
Detention arbitrary, categories I and II
No action taken to implement the opinion, information from the Government and the source
56/2017 Thailand Yes Thiansutham Suthijitseranee
Detention arbitrary, categories I, II and III
-
57/2017 Uganda No Stella Nyanzi Detention arbitrary, categories I, II and III
Ms. Nyanzi has been released on bail, but no further action taken to implement the opinion, information from the Government and the source
58/2017 United Arab Emirates Yes Taysir Hasan Mahmoud Salman
Detention arbitrary, categories I, II and III
-
59/2017 China Yes Hu Shigen, Xie Yang and Zhou Shifeng
Detention arbitrary, categories II and III
Messrs. Shigen and Shifeng remain in detention, and Mr. Yang has been released on bail under tight
1 4
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Opinion No. State(s) Government reply Person(s) concerned Opinion
Follow-up information
received
police control at his home, information from the source
60/2017 Ethiopia No Andualem Aragie Walle
Detention arbitrary, categories I, II, III and V
Mr. Walle was released as part of a mass pardon, rearrested and then released again, information from the source
61/2017 Lao People’s Democratic Republic
Yes Lodkham Thammavong, Somphone Phimmasone and Soukan Chaithad
Detention arbitrary, categories I, II and III
-
62/2017 Kazakhstan Yes Teymur Akhmedov Detention arbitrary, categories II, III and V
Following a presidential pardon, Mr. Akhmedov has been released, information from the Government and the source
63/2017 Saudi Arabia Yes Jaber bin Saleh Hamdan Aal Suleiman al-Amri
Detention arbitrary, categories I, II and III
No action taken to implement the opinion, information from the Government
64/2017 Cuba Yes Julio Alfredo Ferrer Tamayo
Detention arbitrary, categories I and II
Mr. Tamayo has been released, under strict restrictions, information from the Government and the source
65/2017 Mexico Yes Rubén Sarabia Sánchez Detention arbitrary, categories I and V
Mr. Sánchez has been released, information from the Government and the source. Legislative developments have been undertaken, including the adoption
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Opinion No. State(s) Government reply Person(s) concerned Opinion
Follow-up information
received
of a law against torture, information from the Government
66/2017 Mexico Yes Daniel García Rodríguez and Reyes Alpízar Ortiz
Detention arbitrary, categories I and III
No action taken to implement the opinion, information from the source
67/2017 Malaysia No Adilur Rahman Khan Detention arbitrary, categories I, II and V
No action taken to implement the opinion, as all actions carried out in accordance with domestic law, information from the Government
68/2017 Trinidad and Tobago No Zaheer Seepersad Detention arbitrary, categories I and V
-9
69/2017 China Yes Tashi Wangchuk Detention arbitrary, categories I, II and III
Mr. Wangchuk has been convicted of “inciting separatism”, information from the source
70/2017 Turkmenistan Yes Mekan Yagmyrov, Dovletgeldi Orazov, Gurbanmuhammet Godekov, Shatlyk Durdygylyjov, Mekan Godekov, Nurmuhammet Orazov, Merdan Gylycdurdyyev, Guvanch Gazakbayev, Sapardurdy Yagshybayev, Myrat
Detention arbitrary, categories I, II and III
-
9 See the section on reprisals.
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Opinion No. State(s) Government reply Person(s) concerned Opinion
Follow-up information
received
Gullyyev, Resulberdi Atageldiyev, Dovletgeldi Amangeldiyev, Dovletmyrat Atayev, Annamammet Orazmammedov, Tachmuhamet Orazmuhamedov, Batyr Atayev, Ovezdurdy Melayev and Saparmyrat Ibrayymov
71/2017 Australia Yes Said Imasi Detention arbitrary, categories II, IV and V
No action taken to implement the opinion, information from the Government
72/2017 United States of America
No Marcos Antonio Aguilar-Rodríguez
Detention arbitrary, categories II, IV and V
-
73/2017 Argentina Yes María Laura Pace and Jorge Oscar Petrone
Detention not arbitrary N/A
74/2017 Democratic Republic of the Congo
No Franck Diongo Shamba Detention arbitrary, categories I, II, III and V
-
75/2017 Viet Nam Yes Tran Thi Nga Detention arbitrary, categories I, II, III and V
-
76/2017 United Arab Emirates Yes Nasser Bin Ghaith Detention arbitrary, categories I, II and III
-
77/2017 Colombia No Beatriz del Rosario Rivero Martínez
Detention arbitrary, categories II and III
Ms. Rivero has been conditionally released for a probation period of 25 months, information from the Government
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Opinion No. State(s) Government reply Person(s) concerned Opinion
Follow-up information
received
78/2017 Egypt No A minor (whose name is known by the Working Group), Assem Adawy, Ameen Mashaly, Omar Al Sagheer, Ahmed Al Khateeb, Sherine Bekhit, Ahmed Sayed Ahmed, Mahmoud Al Barbery, Ahmed Mabrouk, Ahmed Shawky Amasha, Abdelrehim Mohamed, Bassma Rabi’, Adel Al Haddad, Reem Gobara, Omar Ali, Mahmoud Ahmed Abou-Leil, Hanane Othman and Mohamed Dessouky
Detention arbitrary, categories I, II (in relation to Mr. Adawy, Ms. Bekhit, Mr. Amasha, Ms. Gobara, Ms. Othman, Mr. Ahmed, Mr. Al Sagheer, Mr. Sayed Ahmed, Mr. Al Barbery, Mr. Mabrouk, Mr. Mohamed, Ms. Rabi’, Mr. Al Haddad, Mr. Ali and Mr. Dessouky) and III
Mr. Mabrouk has been released, no information provided about two of the individuals and the rest remain in pretrial detention, information from the Government
79/2017 Viet Nam Yes Can Thi Theu Detention arbitrary, categories I, II, III and V
-
80/2017 Democratic People’s Republic of Korea
Yes Il Joo, Cheol Yong Kim, Eun Ho Kim, Kwang Ho Kim and Seong Min Yoon
Detention arbitrary, categories I and II
-
81/2017 Democratic People’s Republic of Korea and China
Democratic People’s Republic of Korea (no) China (yes)
Mi Sook Kang and Ho Seok Kim
Detention arbitrary (with regard to the Democratic People’s Republic of Korea, categories I and III; and with regard to China, categories I and II)
-
82/2017 Zimbabwe No Evan Mawarire Detention arbitrary, categories I and II
Mr. Mawarire was released one week after his arrest and
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Opinion No. State(s) Government reply Person(s) concerned Opinion
Follow-up information
received
subsequently acquitted of all charges, information from the source
83/2017 Egypt Yes Mahmoud Hussein Gommaa Ali
Detention arbitrary, categories I, II, III and V
-
84/2017 Bolivarian Republic of Venezuela
Yes Roberto Antonio Picón Herrera
Detention arbitrary, categories I, II, III and V
-
85/2017 Rwanda No10 Franck Kanyambo Rusagara, Tom Byabagamba and François Kabayiza
Detention arbitrary, (with regard to Messrs. Rusagara and Byabagamba, categories I, II and III; and with regard to Mr. Kabayiza, category III)
-
86/2017 Israel No Salem Badi Dardasawi Detention arbitrary, categories I, III and V
-
87/2017 Bolivarian Republic of Venezuela
Yes Marcelo Eduardo Crovato Sarabia
Detention arbitrary, categories I, II, III and V
-
88/2017 India No Thirumurugan Gandhi Detention arbitrary, categories I, II, III and V
-
89/2017 United States of America
Yes Ammar al Baluchi Detention arbitrary, categories I, III and V
-
90/2017 Mauritania No Amadou Tidjani Diop, Ahmed Hamar Vall, Hamady Lehbouss, Mohamed Daty, Balla
Detention arbitrary, categories I, II and III
Three of the individuals have been acquitted and released, one was released after serving
10 The Government of Rwanda submitted a late response in this case.
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Opinion No. State(s) Government reply Person(s) concerned Opinion
Follow-up information
received
Touré, Moussa Biram, Khatry Rahel, Mohamed Jaroulah, Abdallahi Matala Saleck and Abdallah Abou Diop
his sentence, and the others were convicted and appeals are ongoing, information from the Government
91/2017 Maldives Yes Imran Abdullah Detention arbitrary, categories I, II, III and V
-
92/2017 Islamic Republic of Iran
No Ahmadreza Djalali Detention arbitrary, categories I and III
No action taken to implement the opinion, information from the Government
93/2017 Saudi Arabia Yes Muhammed Al Saqr Detention arbitrary, categories I and III
No action taken to implement the opinion, information from the Government
94/2017 Oman Yes Yousuf bin Khamis bin Moosa al Balouchi
Detention arbitrary, categories I, II and III
Following the release of Mr. Al Balouchi, no further action taken to implement the opinion, information from the Government
3. Follow-up procedure
9. The table above shows information received by the Working Group as at 21 June
2018, pursuant to the follow-up procedure adopted by the Working Group at its seventy-
sixth session, held in August 2016. The Working Group is encouraged that a response was
received from the source and/or the Government in more than 50 per cent of cases in which
follow-up information was sought, and it urges both sources and Governments to keep it
updated on the implementation of its opinions.
10. If the Working Group, in accordance with its methods of work and while examining
the allegations of violations of human rights in the above opinions, has considered that the
allegations could also be dealt with by another special procedure, it has referred such
allegations to the relevant working group or special rapporteur within whose competence
they fall, for appropriate action.1 During 2017, the Working Group made 119 referrals to
other special procedure mandate holders in relation to the 94 opinions adopted.
4. Release of the subjects of the Working Group’s opinions
11. The Working Group notes with appreciation the information received on the release
of the following subjects of its opinions during the period from 1 January to 31 December
2017:
• Akzam Turgonov (opinion No. 53/2011, Uzbekistan)
• Danilo Maldonado Machado (opinion No. 12/2017, Cuba)
• Ahmed Mahloof (opinion No. 15/2017, Maldives)
• Yon Alexander Goicoechea Lara (opinion No. 18/2017, Bolivarian Republic of
Venezuela)
• Musallam Mohamed Hamad Al Barrak (opinion No. 20/2017, Kuwait)
• Mario Olivera Osorio (opinion No. 24/2017, Mexico)
• Mohamed Serria (opinion No. 30/2017, Egypt)
• Omar Nazzal (opinion No. 31/2017, Israel)
• Rasha Nemer Jaafar al-Husseini (opinion No. 33/2017, Iraq)
• Kamel Eddine Fekhar (opinion No. 34/2017, Algeria)
• Önder Celik (opinion No. 41/2017, Turkey)
• Turhan Günay (opinion No. 41/2017, Turkey)
• Mustafa Kemal Güngör (opinion No. 41/2017, Turkey)
• Güray Tekin Öz (opinion No. 41/2017, Turkey)
• Hakan Kara (opinion No. 41/2017, Turkey)
• Haci Musa Kart (opinion No. 41/2017, Turkey)
• Bülent Utku (opinion No. 41/2017, Turkey)
• Kadri Gürsel (opinion No. 41/2017, Turkey)
• Ali Abdul Rahman Mahmoud Jaradat (opinion No. 44/2017, Israel)
• Maria Chin Abdullah (opinion No. 50/2017, Malaysia)
• Nizar Bou Nasr Eddine (opinion No. 53/2017, Lebanon)
• Stella Nyanzi (opinion No. 57/2017, Uganda)
• Julio Ferrer Tamayo (opinion No. 64/2017, Cuba)
1 See A/HRC/36/38, para. 33 (a).
• Rubén Sarabia Sánchez (opinion No. 65/2017, Mexico)
• Adilur Rahman Khan (opinion No. 67/2017, Malaysia)
• Zaheer Seepersad (opinion No. 68/2017, Trinidad and Tobago)
• Marcos Antonio Aguilar-Rodríguez (opinion No. 72/2017, United States of
America)
• Ewan Mawarire (opinion No. 82/2017, Zimbabwe)
• Roberto Antonio Picón Herrera (opinion No. 84/2017, Bolivarian Republic of
Venezuela)
• Thirumurugan Gandhi (opinion No. 88/2017, India)
• Yousuf bin Khamis bin Moosa al Balouchi (opinion No. 94/2017, Oman)
12. The Working Group expresses its gratitude to those Governments that undertook
positive actions and released detainees that had been subjects of its opinions. However, it
also expresses regret that various Member States have not cooperated in implementing the
opinions and urges those States to do so as a matter of urgency. The Working Group recalls
that the continued detention of those individuals is a continued violation of their right to
liberty, under article 9 of the Universal Declaration of Human Rights and article 9 of the
International Covenant on Civil and Political Rights.
5. Reactions from Governments concerning previous opinions
13. During the reporting period, the Working Group received several reactions from
Governments concerning its previous opinions.
14. In its notes verbales of 17 January and 21 February 2017, the Government of
Argentina submitted further updates on the judicial process concerning Milagro Sala
(opinion No. 31/2016).
15. In a note verbale dated 27 January 2017, the Government of Cameroon informed the
Working Group that it took note of its opinion No. 22/2016 concerning Marafa Hamidou
Yaya. However, it expressed concern at the imbalance between the way that information
from the Government and information from the source were presented in the opinion, both
in terms of form and substance (opinion No. 22/2016).
16. On 6 February 2017, in response to the joint urgent appeal of 6 October 2016 (IRN
26/2016), the Government of the Islamic Republic of Iran provided updates on the case of
Nazanin Zaghari-Ratcliffe (opinion No. 28/2016).
17. In its note verbale of 23 February 2017, the Government of Viet Nam responded to
the joint urgent appeal dated 5 December 2016 (VNM 10/2016) concerning the situation of
Hung Linh Nguyen. The Government denied the accuracy of allegations transmitted by the
Working Group and other special procedure mandate holders, both in terms of the
investigation, trial and sentencing of Mr. Nguyen and his alleged restricted access to
medical care (opinion No. 46/2015).
18. The Government of Turkey, in its note verbale of 1 May 2017, submitted a late
response in the case of Rebii Metin Görgeç (opinion No. 1/2017).
19. In its note verbale of 4 May 2017, the Government of Uzbekistan submitted a late
response in the case of Aramais Avakyan (opinion No. 29/2017).
20. On 5 May 2017, the Permanent Mission of New Zealand transmitted a note verbale
to the Working Group advising that the Government of New Zealand was not aware of the
Working Group’s consideration of the case of Mr. A, and therefore did not provide its
views on it (opinion No. 21/2015).
21. In a note verbale dated 9 May 2017, the Government of Australia submitted a late
response in the case of Abdalrahman Hussein (opinion No. 28/2017).
22. In a note verbale of 23 June 2017, the Government of Iraq submitted a late response
in the case of Salih Mohammed Salih Mansour al Dulaimi (opinion No. 32/2017).
23. The Government of Egypt, in its note verbale dated 3 October 2017, conveyed
information provided by the Ministry of Justice in relation to Omar Abdulrahman Ahmed
Youssef Mabrouk. Mr. Mabrouk remains in detention and his case is before the judiciary
(opinion No. 60/2016).
24. In a note verbale dated 19 December 2017, the Government of the Islamic Republic
of Iran advised that Zainab Jalalian was currently serving her life sentence in Khoy Prison
and that her legal rights were fully being respected (opinion No. 1/2016).
6. Requests for review of opinions adopted
25. The Working Group considered the requests for review of the following opinions:
• Opinion No. 38/2013 (Cameroon), concerning Michel Thierry Atangana Abega,
adopted on 13 November 2013
• Opinion No. 28/2016 (Islamic Republic of Iran), concerning Nazarin Zaghari-
Ratcliffe, adopted on 23 August 2016
• Opinion No. 57/2016 (Peru), concerning Edith Vilma Huaman, adopted on 25
November 2016
• Opinion No. 39/2017 (Burkina Faso), concerning Djibril Yipene Bassole, adopted
on 28 April 2017
26. After examining the requests for review in relation to its opinions Nos. 28/2016,
57/2016 and 39/2017, the Working Group decided to maintain those opinions, on the basis
that none of the requests met the criteria outlined in paragraph 21 of its methods of work.
The request for review of opinion No. 38/2013 is still under consideration by the Working
Group.
7. Reprisal against subjects of the opinions of the Working Group
27. The Working Group notes with grave concern that it continues to receive
information, including in the context of its follow-up procedure, on reprisals suffered by
individuals who have been the subject of an urgent appeal or an opinion or whose cases
have given effect to a recommendation of the Working Group. Such acts of alleged reprisal
include placement in solitary confinement, harsh prison conditions, threats and harassment
against the individual and/or his or her family members, and accusatory articles in the pro-
government media. With this in mind, the Working Group, at its seventy-eighth session,
appointed a focal point on reprisals.
28. In relation to the present reporting period, the Working Group has received
allegations of reprisals against Salim Abdullah Hussain Abu Abdullah (opinion No.
10/2017, Saudi Arabia), Mohamad Ismat Mohamad Shaker Az (opinion No. 21/2017,
United Arab Emirates), Nguyen Ngoc Nhu Quynh (opinion No. 27/2017, Viet Nam),
Kursat Çevik (opinion No. 38/2017, Turkey) and Zaheer Seepersad (opinion No. 68/2017,
Trinidad and Tobago).
29. In addition, the Working Group remains concerned regarding the continued
detention under house arrest of María Lourdes Afiuni Mora, the subject of its opinion No.
20/2010. The Working Group considers her detention as a measure of reprisal, and it
reiterates its calls on the Government of the Bolivarian Republic of Venezuela to release
her immediately and provide her with effective and adequate reparations.
30. The Working Group has decided to refer reported cases of reprisal, as appropriate
and when such referrals have not already been made, to the Assistant Secretary-General for
Human Rights, who is leading the efforts of the United Nations to put an end to
intimidation and reprisals against those cooperating with it on human rights.
31. In its resolutions 12/2 and 24/24, the Human Rights Council called upon
Governments to prevent and refrain from all acts of intimidation or reprisal against those
who seek to cooperate or have cooperated with the United Nations and its representatives
and mechanisms in the field of human rights, or who have provided testimony or
information to them. The Working Group encourages Member States to take all measures
possible to guard against reprisals.
8. Urgent appeals
32. During the period from 1 January to 31 December 2017, the Working Group sent 98
urgent appeals to 45 Governments, concerning 311 individuals. The list of countries
concerned is as follows:
Algeria (2 urgent appeals)
Australia (1 urgent appeal)
Azerbaijan (2 urgent appeals)
Bahrain (7 urgent appeals)
Bangladesh (1 urgent appeal)
Brazil (1 urgent appeal)
Burundi (2 urgent appeals)
Cambodia (1 urgent appeal)
Cameroon (2 urgent appeals)
Chile (1 urgent appeal)
China (2 urgent appeals)
Congo (1 urgent appeal)
Egypt (8 urgent appeals)
Equatorial Guinea (1 urgent appeal)
Eritrea (1 urgent appeal)
Guatemala (1 urgent appeal)
Hungary (1 urgent appeal)
India (2 urgent appeals)
Iran (Islamic Republic of) (18 urgent appeals)
Iraq (1 urgent appeal)
Italy (1 urgent appeal)
Japan (1 urgent appeal)
Lebanon (2 urgent appeals)
Libya (2 urgent appeals)
Malawi (1 urgent appeal)
Mauritania (1 urgent appeal)
Mexico (1 urgent appeal)
Myanmar (1 urgent appeal)
Nigeria (1 urgent appeal)
Norway (1 urgent appeal)
Papua New Guinea (1 urgent appeal)
Philippines (1 urgent appeal)
Qatar (2 urgent appeals)
Republic of Korea (1 urgent appeal)
Romania (1 urgent appeal)
Russian Federation (3 urgent appeals)
Saudi Arabia (3 urgent appeals)
Slovakia (1 urgent appeal)
Sudan (3 urgent appeals)
Tajikistan (1 urgent appeal)
Turkey (5 urgent appeals)
United Arab Emirates (3 urgent appeals)
United States of America (3 urgent appeals)
Uzbekistan (1 urgent appeal)
Viet Nam (1 urgent appeal)
33. The full text of the urgent appeals can be consulted in the joint reports on
communications.2
34. In conformity with paragraphs 22 to 24 of its methods of work, the Working Group,
without prejudging whether a detention was arbitrary, drew the attention of each of the
Governments concerned to the specific case as reported and appealed to them, often jointly
with other special procedure mandate holders, to take the measures necessary to ensure that
the detained persons’ rights to life, liberty, and physical and psychological integrity were
respected.
35. When an appeal made reference to the critical state of health of certain persons or to
particular circumstances, such as the failure to execute a court order for release or to give
effect to a previous opinion of the Working Group seeking the release of the person, the
Working Group requested that all measures necessary for the immediate release of the
detained person be taken. 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 for Special Procedures Mandate Holders of the Human Rights Council relating to
urgent appeals and has since applied them.
36. During the period under review, the Working Group also sent 41 letters of allegation
and other letters to Australia, Azerbaijan, Bahrain, Bangladesh, Belarus, Belgium, the
Plurinational State of Bolivia, Cambodia, Cameroon, Chad, Egypt (3), France, Haiti, Israel,
Lebanon, Maldives, Malta, Mexico (2), Morocco (2), Nigeria, the Republic of Korea, the
Russian Federation, Saudi Arabia (2), Thailand, Trinidad and Tobago, Turkey (4),
Turkmenistan, Uganda, the United Arab Emirates, the United Republic of Tanzania, the
United States of America and the Bolivarian Republic of Venezuela (2).
37. The Working Group wishes to thank those Governments that responded to its
appeals and that took steps to provide it with information on the situation of the individuals
concerned, especially the Governments who released such individuals. The Working Group
recalls that, in paragraph 4 (f) of its resolution 5/1, the Human Rights Council requested all
States to cooperate and engage fully with the United Nations human rights mechanisms.
B. Country visits
1. Requests for visits
38. During 2017, the Working Group made requests to visit Australia (7 August 2017),
the Bahamas (2 March 2017), Bahrain (17 January 2017), Bhutan (1 March 2017),
Cameroon (24 January 2017), Côte d’Ivoire (24 January 2017), India (6 April 2017),
2 For communications reports of the special procedures, see
www.ohchr.org/EN/HRBodies/SP/Pages/CommunicationsreportsSP.aspx.
Maldives (2 March 2017), Nepal (1 March 2017), Pakistan (30 January 2017), the
Philippines (6 April 2017), Senegal (24 January 2017), Spain (6 October 2017) and
Thailand (6 April 2017).
39. Reminders of its earlier requests were sent to Israel (7 August 2017), the Republic of
Korea (6 October 2017), the Russian Federation (30 January 2017), Turkey (8 November
2017), Uzbekistan (18 October 2017), the Bolivarian Republic of Venezuela (15 August
2017) and Viet Nam (6 April 2017). A request for a follow-up visit was sent to Hungary (6
April 2017).
40. During the course of the year, the Working Group met with the Permanent Missions
of Australia, Bahrain, Bhutan, Guatemala, Israel, Japan, Maldives, Mexico, the Republic of
Korea, Spain, Thailand, Turkey and the United Arab Emirates to discuss the possibility of a
country visit.
41. In 2017, the Working Group considered how it could more effectively follow up on
the recommendations made during country visits and in its reports following such visits, in
order to give effect to paragraph 32 of its methods of work. Among the options under
consideration are the possibility of the Working Group meeting with representatives of
States that it has visited to discuss follow-up to the Working Group’s findings, and seeking
the views of stakeholders. In the future, the Working Group intends to seek further
information from States that it has visited on the implementation of the recommendations
formulated in its mission reports.
2. Responses from Governments to requests for invitations for country visits
42. On 25 April 2017, the Government of Sri Lanka extended an invitation to the
Working Group to conduct a country visit, which took place from 4 to 15 December 2017.
The findings of the visit are contained in an addendum to the present report
(A/HRC/39/45/Add.2).
43. In a note verbale dated 12 January 2017, the Permanent Mission of Guatemala
proposed that the visit of the Working Group could take place in 2018. In April 2017, the
Working Group met with the Permanent Mission to discuss the possibility of a country
visit, and is awaiting confirmation of the dates for the visit.
44. On 14 February 2017, the Government of Senegal responded that owing to a busy
schedule (including ongoing reform of the criminal justice and penitentiary system), it
would not be in a position to receive a visit from the Working Group in 2017. It remained
open to considering such a visit at a later stage.
45. On 7 April 2017, the Permanent Mission of Kazakhstan indicated that the Working
Group should send a letter identifying potential dates for the visit. A follow-up letter to that
effect was sent to the Permanent Mission on 8 November 2017. The Working Group is
awaiting an official response from the Government.
46. On 7 August 2017, the Working Group sent a letter to the Government of Australia
requesting a country visit and specifying its purpose. In a letter dated 24 November 2017,
the country’s Ambassador and Permanent Representative noted his Government’s
agreement in principle to a visit by the Working Group. He indicated that he was not in a
position to agree on a date at that stage, but noted that the Government would work towards
a visit in the first quarter of 2019. His successor would be in touch with the Working Group
in the second half of 2018 to discuss arrangements further.
47. In a note verbale dated 9 August 2017, the Permanent Mission of the Bahamas
conveyed the willingness of the Government to receive the Working Group on its official
mission. The Working Group was invited to propose two dates for the consideration of the
Government. On 5 October 2017, the Working Group sent a letter to the Government
advising that it accepted the invitation and proposed that the visit be conducted between
May and July 2018. The Working Group is awaiting an official response from the
Government.
48. On 17 August 2017, the Secretariat met with the Permanent Mission of Bhutan to
clarify the modalities of country visits by the Working Group. The Working Group has
already carried out an official visit to Bhutan, in October 1994 — the first country visit of
the mandate. On 16 October 2017 the Permanent Mission responded, indicating that the
request for a country visit was under consideration by the Ministry of Foreign Affairs. The
Government subsequently extended an invitation to the Working Group, by note verbale, to
visit at a “mutually agreeable time”.
49. On 27 October 2017, the Government of Hungary responded that it would not be
able to organize and coordinate the requested follow-up visit due to the parliamentary
elections being held in April 2018. Moreover, it might subsequently take a considerable
time for the Government to be formed.
III. Thematic issues
A. Consular assistance and diplomatic protection for persons deprived of
liberty
50. The Working Group has been exploring the issue of consular assistance and
diplomatic protection for persons deprived of liberty.3
51. Consular assistance or consular protection4 is primarily a preventive mechanism,
which constitutes an important safeguard for individuals who are arrested and detained in a
foreign State to ensure that international standards are being complied with. It provides
detainees, as well as consular officials of the detainee’s nationality (of the sending State),
with certain consular rights, such as the right for consular officials to freely communicate
with and have access to their detained nationals and to be informed about the arrest without
delay.5
52. Diplomatic protection, on the other hand, is only engaged in the event of an
internationally wrongful act committed by the detaining State, for example one that has
caused injury to a national of the sending State (i.e. the State of nationality). It is a remedial
mechanism that can be invoked where there is an inter-State dispute surrounding the
internationally wrongful act. It is a right of the State to exercise diplomatic protection on
behalf of its nationals, rather than a duty. A State may, however, have a limited duty to
consider whether or not to exercise diplomatic protection in any given case. Although
diplomatic protection is not codified, it is a principle of customary international law and is
vital for the protection of human rights.6
53. Where dual nationals are detained by one State of nationality, it has been the general
practice that one State of nationality only insists on consular assistance being provided to
the dual national detained by the other State of nationality with the consent of the latter.
However, nothing prohibits a State of nationality from exercising consular assistance.
Similarly, the jurisprudence of international tribunals suggests that a State is not prohibited
from exercising diplomatic protection in instances where dual nationals are subjected to
injury by the other State of nationality. In such cases, consent from the other State of
nationality is not required.
54. In its jurisprudence the Working Group has made specific findings regarding
consular assistance and diplomatic protection where the detaining State has failed to
3 The Working Group would like to express its gratitude to REDRESS (see https://redress.org) for the
support it provided for the organization of an expert meeting on 27 November 2017 on this important
issue, for facilitating the participation of family members of victims of arbitrary detention abroad in
the meeting, and for its contribution to the substantive discussions on this topic.
4 See, for example, the Vienna Convention on Consular Relations, arts. 5 and 36.
5 See the Vienna Convention on Consular Relations, art. 36. See also REDRESS, “Beyond discretion:
the protection of British nationals abroad from torture and ill-treatment”, January 2018, pp.15–23,
available at https://redress.org/wp-content/uploads/2018/01/3CADP-Report_FINAL.pdf.
6 See REDRESS, “Beyond discretion”, pp. 55–61.
provide consular rights, contrary to international standards.7 In the majority of these cases,
the right to consular assistance has been discussed along with the right to access to a lawyer
under category III (violations of fair trial and due process). The Working Group has also
made it clear that consular protection entails a duty to inform not only the State officials,
but also the family,8 and that consular access means “confidential consular assistance”.9
55. There is also a link between torture and consular assistance and diplomatic
protection, in terms of prevention, when there is a risk of violations occurring and as a form
of redress when violations have already occurred. While responsibility for torture and ill-
treatment rests with the detaining State, it should also be emphasized that consular
assistance and diplomatic protection provide sending States with important tools to prevent
and redress torture and ill-treatment where it occurs.
56. Consular assistance is a crucial instrument for protecting detainees from torture and
ill-treatment, in particular in a context where foreign nationals are being suspected of and
being detained because of alleged crimes against the State, such as terrorism, espionage or
treason. While detainees are generally vulnerable to torture and ill-treatment, this
vulnerability is increased in cases of detention abroad, where detainees may not understand
the language, have no contacts and not be familiar with the country’s legal system and
traditions. Consular rights, such as the right to be informed about such rights at the moment
of arrest, the right to private access by consular officials and the right to legal
representation, are key to preventing torture and ill-treatment. Conversely, where such
rights are not provided, or are being delayed, there is an increased risk of torture and ill-
treatment.
57. The Working Group has found that non-national defendants and detainees are
particularly vulnerable to violations of the right to a fair trial.10 Access to the outside world,
including through consular visits, is an important component in securing a fair trial for
detainees. In respect of foreign nationals detained abroad, a meeting with a consular official
may constitute the only avenue for the detainee to be informed about how to exercise his or
her fair trial rights, for instance the right to habeas corpus11 and the right to effective access
to a lawyer. Consular assistance can thus contribute to a fair trial by providing detainees
with effective access to a lawyer, to ensure the provision of exculpatory evidence, for
example that the detained national was not involved in a particular criminal offence, to
monitor trials through regular and comprehensive trial attendance, and to ensure the
provision of evidence on past good character when it comes to sentencing. Consular
assistance and/or diplomatic protection can thus have a significant impact on an individual
who is arbitrarily detained abroad, as such instruments can secure the release and return of
individuals, and prevent unfair trials and torture and ill-treatment.
58. The Working Group plans to continue to raise and integrate issues relating to
consular assistance and diplomatic protection in the context of its opinions and
recommendations, its country visits and its follow-up procedure.
B. Linkages between arbitrary detention and instances of torture and ill-
treatment
59. Since its inception, the Working Group has been increasingly mindful of the links
that exist between situations of arbitrary detention and instances of torture and ill-treatment.
7 See, inter alia, opinions Nos. 89/2017, 45/2017, 7/2017, 56/2016, 53/2016, 28/2016, 16/2016,
12/2016, 56/2015, 54/2015, 51/2015, 44/2015, 2/2015, 50/2014, 37/2014, 22/2014, 15/2014, 57/2013,
38/2013, 30/2013, 28/2013, 18/2013, 10/2013, 69/2012, 40/2012, 21/2012, 52/2011, 45/2011, 2/2011,
31/2010, 23/2010, 2/2010, 4/2009, 3/2009, 2/2009, 30/2008, 8/2007, 9/2007, 34/2000 and 25/2000.
8 See opinion No. 12/2016.
9 See opinion No. 45/2017.
10 See footnote 16 above.
11 See 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, A/HRC/30/37, guideline 21,
para. 110.
Through its jurisprudence, both in the individual cases that come before it through the
regular communications and urgent action procedures, as well as during its country visits,
the Working Group has become acutely aware that the safeguards that States are required to
put in place to prevent occurrences of torture and ill-treatment also have a crucial role to
play in minimizing and even preventing instances of arbitrary detention.12
60. As an example, a significant proportion of the 94 opinions adopted by the Working
Group in 2017 revealed the presence of incommunicado detention in the facts submitted by
the source. 13 For the Working Group, incommunicado detention places an individual
outside the protection of the law, contrary to the right to be recognized as a person before
the law under article 6 of the Universal Declaration of Human Rights and article 16 of the
International Covenant on Civil and Political Rights.14 It also violates his or her right to be
brought promptly before a court under article 9 (3) of the Covenant and to challenge the
lawfulness of his or her detention before a court under article 9 (4) of the Covenant. 15
Judicial oversight of detention is a fundamental safeguard of personal liberty 16 and is
essential in ensuring that detention in fact has a legal basis. On that basis, the Working
Group consistently maintains that incommunicado detention constitutes arbitrary detention.
61. However, as the Working Group looks for measures that could effectively prevent
and address instances of arbitrary detention that may arise due to incommunicado detention,
it is mindful that the Committee against Torture has made it clear that incommunicado
detention creates conditions that may lead to violations of the Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment.17 Equally, the Special
Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment has
consistently argued that use of incommunicado detention is unlawful and may lead to
torture and other cruel, inhuman or degrading treatment or punishment. 18 Thus, in the
context of incommunicado detention, the Working Group looks at measures in place to
prevent torture with a view to examining the extent to which these could assist in
preventing occurrences of arbitrary detention.
62. Similarly, in its jurisprudence the Working Group frequently observes instances of
extraction of confessions through ill-treatment or even torture, which are then used in
proceedings against the victims who have been subjected to such treatment. 19 For the
Working Group, the use of a confession extracted through ill-treatment that is tantamount,
if not equivalent, to torture constitutes a breach of article 14 (3) (g) of the Covenant as well
as of the Body of Principles for the Protection of All Persons under Any Form of Detention
or Imprisonment. The latter instrument, in its principle 21, specifically prohibits taking
undue advantage of the situation of detention to compel confessions or incriminating
statements. Confessions extracted through such means which have subsequently been
admitted by judicial bodies as evidence in proceedings against the victims of such treatment
have, in the view of the Working Group, led to situations of arbitrary detention due to
denial of the fair trial guarantees.20
63. In its jurisprudence, the Working Group has also consistently argued that extraction
of confessions through physical or psychological torture constitutes a violation of the
12 See, for example, Human Rights Council resolution 31/31.
13 See opinions Nos. 4/2017, 5/2017, 6/2017, 7/2017, 10/2017, 17/2017, 18/2017, 21/2017, 25/2017,
26/2017, 27/2017, 29/2017, 32/2017, 33/2017, 36/2017, 45/2017, 46/2017, 47/2017, 56/2017,
57/2017, 58/2017, 59/2017, 61/2017, 63/2017, 65/2017, 66/2017, 69/2017, 70/2017, 75/2017,
76/2017, 78/2017, 80/2017, 83/2017, 84/2017, 90/2017, 91/2017, 92/2017, 93/2017 and 94/2017.
14 See, for example, opinions No. 69/2017, para. 38; No. 46/2017, para. 23; and No. 47/2017, para. 25.
15 See, for example, opinions Nos. 79/2017, 46/2017 and 45/2017.
16 See 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, para. 3.
17 See, for example, A/54/44, para. 182 (a).
18 See, for example, A/54/426, para. 42; and A/HRC/13/39/Add.5, para. 156.
19 As regards 2017, for example, see opinions Nos. 3/2017, 6/2017, 10/2017, 17/2017, 21/2017,
24/2017, 29/2017, 32/2017, 33/2017, 36/2017, 46/2017, 56/2017, 59/2017, 60/2017, 61/2017,
63/2017, 69/2017, 70/2017, 78/2017, 83/2017, 92/2017 and 93/2017.
20 See, for example, opinions Nos. 48/2016, 3/2017, 6/2017, 29/2017 and 2/2018.
international obligation of a State under article 15 of the Convention against Torture.21 The
Working Group thus reiterates that it is mindful of measures aimed at eliminating the
possibilities for the extraction of confessions through ill-treatment and torture, as these
could minimize the occurrence of situations of arbitrary detention.
64. In addition, during its 2017 country visits to both Argentina and Sri Lanka, the
Working Group paid special attention to the implementation of the terms of the Optional
Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment and especially to the establishment of national preventive
mechanisms in those two countries.22 Emphasizing that regular independent oversight over
all places of deprivation of liberty also has a significant role to play in reducing instances of
arbitrary detention, the Working Group has encouraged the respective Governments to
establish national preventive mechanisms that would be comprised of entities that are fully
independent of the executive, properly funded, and able to discharge their mandate
effectively by having unfettered access to a wide range of places of deprivation of liberty.
65. The Working Group is liaising with the Committee against Torture, the
Subcommittee on Prevention of Torture, the Special Rapporteur on torture, and the United
Nations Voluntary Fund for Victims of Torture to ensure a common strategic approach to
the fight against torture, thus, in turn, contributing to the eradication of instances of
arbitrary detention.
66. The Working Group invites all States that have not yet done so to become parties to
the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment and to give early consideration to signing and ratifying the Optional Protocol
thereto as a matter of priority. The Working Group urges States to adopt, implement and
fully comply with legal and procedural safeguards against torture and other cruel, inhuman
or degrading treatment or punishment, as these contribute significantly to minimizing
instances of arbitrary detention. The Working Group also urges States to ensure that the
judiciary, and where relevant the prosecution, can be effective in ensuring compliance with
such safeguards.
IV. Conclusions
67. During 2017, the Working Group continued its work on addressing the large
number of submissions received, including through its regular communications
procedure. To that end, the adoption of opinions was set as a priority, resulting in the
adoption of a total of 94 opinions, which constitutes a 35 per cent increase as
compared to 2016.
68. The Working Group is also working to streamline the process for receiving and
responding to requests for its action, always keeping in mind the need to work as
effectively and promptly as possible and to keep all parties informed.
69. The Working Group has also been refining its follow-up procedure, which was
adopted in August 2016, as well as other aspects of its ability to follow up on the
recommendations made in its opinions, during country visits and in the reports it
produces following such visits.
70. In this context, the Working Group welcomes the increased cooperation from
States under its regular communications procedure, and the fact that the States
concerned provided a timely response to the Working Group’s communications and
requests for information in approximately 60 per cent of the cases in which the
Working Group adopted an opinion in 2017 (see the table that starts on page 4 above).
71. The Working Group has also noticed an increased response rate in the context
of its follow-up procedure, both from sources and from Governments, with responses
having been received in more than 50 per cent of cases in which follow-up information
21 Ibid.
22 See A/HRC/39/45/Add.1 and A/HRC/39/45/Add.2.
had been sought from the parties. The Working Group notes, however, that an
increased response rate does not necessarily imply increased enforcement of its
opinions.
72. In addition, recent communications reports of the special procedure mandate
holders reveal a slightly lower rate of response (just above 50 per cent) to urgent
appeals sent by the Working Group alone or together with other special procedure
mandate holders.
73. However, while referring to Human Rights Council resolution 33/30, in which
States were reminded to cooperate fully with the Working Group, the Working Group
notes with concern that this increased cooperation by States does not extend to its
requests for country visits. The Working Group regrets that, despite numerous
requests and the fact that many Governments have issued a standing invitation to
special procedure mandate holders to visit their countries, no State has confirmed the
dates for an official country visit by the Working Group in 2018.
74. Finally, the Working Group notes with grave concern that it continues to
receive information, including in the context of its follow-up procedure, on reprisals
suffered by individuals who have been the subject of an urgent appeal or an opinion
or whose cases have given effect to a recommendation of the Working Group.
V. Recommendations
75. The Working Group reiterates the recommendations made in its previous
reports.
76. The Working Group calls on Member States to continue to increase their
cooperation, especially by responding positively to requests for country visits, through
their responses to urgent appeals and communications, and by enforcing the Working
Group’s opinions, with a view to preventing and/or eradicating arbitrary detention.
The Working Group urges States to continue to engage actively with its follow-up
procedure with regard to the implementation of the recommendations made in its
opinions.
77. With reference to Human Rights Council resolution 33/30, and in order to
allow the Working Group to fulfil its mandate in an effective and sustainable manner,
the Working Group encourages Member States to continue to provide it with the
necessary human and material resources.
78. The Working Group also reiterates its call on the States concerned to take
appropriate measures to prevent acts of reprisal against individuals who have been
the subject of an urgent appeal or an opinion or whose cases have given rise to a
recommendation of the Working Group, and to combat impunity by bringing
perpetrators to justice and by providing victims with appropriate remedies.
Annex
Revised deliberation No. 5 on deprivation of liberty of migrants
1. The Working Group on Arbitrary Detention was established in resolution 1991/42 of
the Commission on Human Rights. In its resolution 1997/50, the Commission extended and
clarified the Working Group’s mandate, and requested that it devote all necessary attention
to reports concerning the situation of immigrants and asylum seekers who are allegedly
being held in prolonged administrative custody without the possibility of administrative or
judicial remedy.
2. In the light of the experience gained from its country visits carried out in that
framework, in 1999 the Working Group took the initiative to develop criteria for
determining whether the deprivation of liberty of asylum seekers and immigrants might be
arbitrary, and to that end adopted its deliberation No. 5.1
3. In 2017, 20 years after it was requested to consider the deprivation of liberty of
immigrants and asylum seekers, the Working Group, concerned by the rising prevalence of
deprivation of liberty of immigrants and asylum seekers in recent years, recognizing the
need to consolidate the developments in its own jurisprudence, taking into account the
important developments in international law in this area and having received contributions,
inter alia, from relevant United Nations agencies and special procedure mandate holders,
has decided to revise and replace its deliberation No. 5 with the present version.
4. The Working Group wishes to emphasize in particular that 2018 marks the
seventieth anniversary of the Universal Declaration of Human Rights, an instrument that
recognizes that every human being is born free and equal in dignity and rights and that
every person has the same rights and liberties without distinction based on race, colour, sex,
language, religion, political opinion or other, national or social origin, economic position,
birth, nationality or any other status. Furthermore, it proclaims that no one shall be
subjected to arbitrary arrest, detention or exile and that it is the right of every person to
leave any country, including his own, and to return to his country. The instrument also
recognizes the right of every person to seek and enjoy in other countries asylum.
5. The present deliberation aims to consolidate the Working Group’s existing practice
regarding the deprivation of liberty of migrants and, as such, is representative of its existing
jurisprudence.
Revised deliberation No. 5
6. For the purposes of the present deliberation, a “migrant” shall be taken to mean any
person who is moving or has moved across an international border away from his or her
habitual place of residence, regardless of: (a) the person’s legal status; (b) whether the
movement is voluntary or involuntary; (c) the cause of the movement; or (d) the duration of
stay. The term shall also be taken to include asylum seekers, refugees and stateless persons.
I. The right to personal liberty and the right of migrants not to be detained arbitrarily
7. The right to personal liberty is fundamental and extends to all persons at all times
and circumstances, including migrants and asylum seekers, irrespective of their citizenship,
nationality or migratory status. 2 Furthermore, as stated in article 13 of the Universal
1 E/CN.4/2000/4, annex II.
2 See Human Rights Committee general comment No. 35 (2014) on liberty and security of person, para.
3.
Declaration of Human Rights, everyone has the right to leave any country, including his
own, and return to his own country.
8. The prohibition of arbitrary detention is absolute, meaning that it is a non-derogable
norm of customary international law, or jus cogens.3 Arbitrary detention can never be
justified, including for any reason related to national emergency, maintaining public
security or the large movements of immigrants or asylum seekers. This extends both to the
territorial jurisdiction and effective control of a State.
II. The right to seek and enjoy asylum and the non- criminalization of migration
9. Seeking asylum is a universal human right, the exercise of which must not be
criminalized.4
10. The irregular entry and stay in a country by migrants should not be treated as a
criminal offence, and the criminalization of irregular migration will therefore always
exceed the legitimate interests of States in protecting their territories and regulating
irregular migration flows.5 Migrants must not be qualified or treated as criminals, or viewed
only from the perspective of national or public security and/or health.6
11. The deprivation of liberty of an asylum-seeking, refugee, stateless or migrant child,
including unaccompanied or separated children, is prohibited.7
III. Exceptionality of detention in the course of migration proceedings
12. Any form of administrative detention or custody in the context of migration must be
applied as an exceptional measure of last resort, for the shortest period and only if justified
by a legitimate purpose, such as documenting entry and recording their claims or initial
verification of identity if in doubt.8
13. Any form of detention, including detention in the course of migration proceedings,
must be ordered and approved by a judge or other judicial authority.9 Anyone detained in
the course of migration proceedings must be brought promptly before a judicial authority,
before which they should have access to automatic, regular periodic reviews of their
detention to ensure that it remains necessary, proportional, lawful and non-arbitrary.10 This
does not exclude their right to bring proceedings before a court to challenge the lawfulness
or arbitrariness of their detention.11
3 See general comment No. 35, para. 66.
4 See Universal Declaration of Human Rights, art. 14; the Convention relating to the Status of
Refugees; and the Protocol relating to the Status of Refugees.
5 See A/HRC/13/30, para. 58; and A/HRC/7/4, para. 53.
6 See A/HRC/10/21, para. 68.
7 See A/HRC/30/37, para. 46. See also E/CN.4/1999/63/Add.3, para. 37; A/HRC/27/48/Add.2, para.
130 and A/HRC/36/37/Add.2, paras 41–42.
8 See the Convention relating to the Status of Refugees, art. 31.
9 See A/HRC/13/30, para. 61; Body of Principles for the Protection of All Persons under Any Form of
Detention or Imprisonment, Principle 4; E/CN.4/1999/63/Add.4, para. 51; and E/CN.4/2003/8/Add.2,
para. 64 (a). See also A/HRC/13/30/Add.2, para. 79 (e).
10 See A/HRC/30/37, para. 43; A/HRC/13/30, para. 61; and Body of Principles for the Protection of All
Persons under Any Form of Detention or Imprisonment, Principle 11, para. 3. See also
E/CN.4/2003/8/Add.2, para. 64 (a); A/HRC/13/30/Add.2, para. 79 (g); and A/HRC/16/47/Add.2,
para. 120.
11 See A/HRC/30/37, para. 43; A/HRC/13/30, para. 61; Body of Principles for the Protection of All
Persons under Any Form of Detention or Imprisonment, Principle 11, para. 3; and E/CN.4/2006/7,
para. 85. See also E/CN.4/2005/6/Add.2, para. 86; E/CN.4/2005/6/Add.3, para. 86 (d);
E/CN.4/2006/7/Add.3, para. 89.
14. Detention in the course of migration proceedings must be justified as reasonable,
necessary and proportionate in the light of the circumstances specific to the individual case.
Such detention is permissible only for the shortest period of time, it must not be punitive in
nature and must be periodically reviewed as it extends in time.12
15. Non-nationals, including immigrants regardless of their status, asylum seekers,
refugees and stateless persons, in any situation of deprivation of liberty, shall be guaranteed
access to a court of law empowered to order immediate release or able to vary the
conditions of release.
16. Alternatives to detention must be sought to ensure that the detention is resorted to as
an exceptional measure.13
17. Alternatives to detention should be realistic and must not depend upon the ability of
the individual to pay for these. 14 Alternatives to detention may take various forms,
including reporting at regular intervals to the authorities, community-based solutions,
release on bail or other securities, or stay in open centres or at a designated place.15 The
conditions in any such open centres and other facilities must be humane and respectful of
the inherent dignity of all persons.16
18. The application of measures alternative to detention must be reviewed by a judicial
authority and alternatives to detention must not be considered as alternatives to release.17
19. The need to detain should be assessed on an individual basis and not based on a
formal assessment of the migrant’s current migration status.18 The detention must comply
with the principle of proportionality19 and as such, automatic and/or mandatory detention in
the context of migration is arbitrary.20
20. Detention in the course of migration proceedings must be prescribed by law,
justified as reasonable, necessary and proportionate in the light of the circumstances and
reassessed as it extends in time. These cumulative elements must be complied with in each
individual case.21
21. Migration detention policies and procedures must not be discriminatory or make
distinctions based on the legal conditions of the person.22 Detaining someone solely on the
basis of a distinction such as race, colour, sex, language, religion, political or other opinion,
national or social origin, economic position, birth, nationality or any other status will
always be arbitrary.
22. The element of reasonableness requires that the detention be imposed in pursuance
of a legitimate aim in each individual case. This must be prescribed by legislation that
clearly defines and exhaustively lists the reasons that are legitimate aims justifying
detention. 23 Such reasons that would legitimize the detention include the necessity of
12 See A/HRC/30/37, para. 45; E/CN.4/2006/7, para. 85; and A/HRC/10/21, para. 75. See also opinions
No. 42/2017 and No. 28/2017; A/HRC/27/48/Add.4, para. 130 (h); A/HRC/30/36/Add.3, para. 73;
A/HRC/30/36/Add.1, para. 81; A/HRC/36/37/Add.1, para. 99 (a); and general comment No. 35, para.
18.
13 See A/HRC/13/30, para. 59. See also E/CN.4/1999/63/Add.3, para. 33; A/HRC/19/57/Add.3, para. 68
(e); A/HRC/27/48/Add.2, para. 124; and A/HRC/30/36/Add.1, para. 81.
14 See, for example, A/HRC/36/37/Add.2, paras. 28 and 30.
15 See A/HRC/13/30, para. 65. See also A/HRC/30/36/Add.3, para. 48; E/CN.4/2003/8/Add.2, para. 64
(a) (ii); and A/HRC/36/37/Add.2, para. 92 (a) (ii).
16 See, for example, A/HRC/33/50/Add.1, para. 72.
17 See A/HRC/13/30, para. 65. See also A/HRC/36/37/Add.2, paras. 28 and 30.
18 See A/HRC/30/37, para. 115.
19 See, for example, A/HRC/19/57/Add.3, para. 68 (f) and (g); A/HRC/30/36/Add.1, para. 88; and
A/HRC/36/37/Add.1, para. 99 (a).
20 See, for example, A/HRC/36/37/Add.2, para. 92 (a); and opinion No. 42/2017.
21 See general comment No. 35, para. 18; and A/HRC/10/21, para. 67. See also opinions No. 42/2017
and No. 28/2017.
22 See Universal Declaration of Human Rights, arts. 2, 9, 10 and 11; and International Covenant on Civil
and Political Rights, art. 9 (1).
23 See A/HRC/13/30, para. 59; and A/HRC/10/21, paras. 67 and 82.
identification of the person in an irregular situation or risk of absconding when their
presence is necessary for further proceedings.24
23. The element of necessity requires that the detention be absolutely indispensable for
achieving the intended purpose and that no other measure less onerous exists in the
individual circumstances of the person who is in an irregular migration situation.25
24. The element of proportionality requires that a balance be struck between the gravity
of the measure taken, which is the deprivation of liberty of a person in an irregular
situation, including the effect of the detention on the physical and mental health of the
individual, and the situation concerned.26 To ensure that the principle of proportionality is
satisfied, alternatives to detention must always be considered.27
IV. Length of detention in the course of migration proceedings
25. A maximum detention period in the course of migration proceedings must be set by
legislation, and such detention shall be permissible only for the shortest period of time.
Excessive detention in the course of migration proceedings is arbitrary.28 Upon the expiry
of the detention period set by law, the detained person must automatically be released.29
26. Indefinite detention of individuals in the course of migration proceedings cannot be
justified and is arbitrary.30
27. There may be instances when the obstacle for identifying or removal of persons in
an irregular situation from the territory is not attributable to them — including non-
cooperation of the consular representation of the country of origin, the principle of non-
refoulement31 or the unavailability of means of transportation — thus rendering expulsion
impossible. In such cases, the detainee must be released to avoid potentially indefinite
detention from occurring, which would be arbitrary.32
V. The right to challenge the legality of detention
28. The Basic Principles and Guidelines on Remedies and Procedures on the Right of
Anyone Deprived of Their Liberty to Bring Proceedings Before a Court33 applies to all non-
nationals, including immigrants regardless of their status, asylum seekers, refugees and
stateless persons, in any situation of deprivation of liberty.34
29. The right of anyone deprived of his or her liberty to bring proceedings before a court
in order that it may decide without delay on the lawfulness of his or her detention and
obtain appropriate remedies upon a successful challenge, is a self-standing human right, the
absence of which constitutes a human rights violation.35 This right applies to everyone,
24 See A/HRC/13/30, para. 59; and general comment No. 35, para. 18.
25 See A/HRC/7/4, para. 46. See also E/CN.4/1999/63/Add.3, para. 34; and E/CN.4/1999/63/Add.3,
paras. 29 and 34.
26 See A/HRC/30/37, para. 111.
27 Ibid., para. 108.
28 See, for example, opinions No. 5/2009 and No. 42/2017; E/CN.4/1999/63/Add.3, para. 35; and
A/HRC/33/50/Add.1, paras. 49–50.
29 See A/HRC/13/30, para. 61.
30 Ibid., para. 63. See also opinions No. 42/2017 and No. 28/2017.
31 See the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment, art. 3; and the Convention relating to the Status of Refugees, art. 33.
32 See A/HRC/13/30, para. 63; A/HRC/7/4, para. 48; and A/HRC/10/21, para. 82. See also opinion No.
45/2006.
33 A/HRC/30/37.
34 Ibid., para. 8.
35 Ibid., para. 2.
including immigrants regardless of their migration status, refugees and asylum seekers and
stateless persons.36
30. Any detention in the course of migration proceedings that makes it impossible to
mount an effective challenge to the continued detention is arbitrary.37
VI. Respect for rights during detention in the course of migration proceedings
31. Those detained in the course of migration proceedings enjoy the same rights as those
detained in the criminal justice or other administrative context, including the rights
enshrined in the Body of Principles for the Protection of All Persons under Any Form of
Detention or Imprisonment.
32. Those detained in the course of migration proceedings must be treated without
discrimination based on race, colour, sex, property, birth, age, national, ethnic or social
origin, language, religion, economic condition, political or other opinion, sexual orientation
or gender identity, disability, nationality or any other status, or on any ground that aims at
or may result in undermining the enjoyment of human rights on the basis of equality.
33. Those detained in the course of migration proceedings have the right to be informed,
in writing and in a language which they understand, of the nature of and grounds for the
decision to detain, the duration of detention, as well as of the possibility to challenge the
legality and arbitrariness of such decision.38
34. All those detained in the course of migration proceedings must be properly informed
of their right to seek asylum and be able to file an asylum application.39
35. All detained migrants must have access to legal representation and advice and
interpreters, including with the view to challenging the detention order, appealing
deportation decisions or preventing cases of refoulement. If necessary, access to free and
effective legal aid should be ensured.40
36. All detained migrants from the moment of their detention and during the course of
detention must be informed of the right to contact their consular representatives. If the
migrant wishes to exercise that right, it is the duty of the authorities holding the migrant to
facilitate such contact.41
37. All detained migrants must be able to communicate with the outside world and
relatives, including by telephone or email.42
38. All detained migrants must be treated humanely and with respect for their inherent
dignity. The conditions of their detention must be humane, appropriate and respectful,
noting the non-punitive character of the detention in the course of migration proceedings.43
36 Ibid., para. 8.
37 See, for example, opinions No. 42/2017 and No. 28/2017. See also C. v. Australia
(CCPR/C/76/D/900/1999); Baban et al. v. Australia (CCPR/C/78/D/1014/2001); Shafiq v. Australia
(CCPR/C/88/D/1324/2004); Shams et al. v. Australia (CCPR/C/90/D/1255, 1256, 1259, 1260, 1266,
1268, 1270 and 1288/2004); Bakhtiyari v. Australia (CCPR/C/79/D/1069/2002); D. and E. and their
two children v. Australia (CCPR/C/87/D/1050/2002); Nasir v. Australia (CCPR/C/116/D/2229/2012);
and F.J. et al. v. Australia (CCPR/C/116/D/2233/2013).
38 See A/HRC/30/37, para. 42. See also E/CN.4/1999/63/Add.3, paras. 27–28; E/CN.4/1999/63/Add.4,
paras. 49–50; A/HRC/27/48/Add.2, para. 118 (d) (i) and 119 (b); and A/HRC/10/21/Add.5, para. 76.
39 See, for example, A/HRC/27/48/Add.2, para. 133; A/HRC/30/36/Add.3, para. 80; and
A/HRC/10/21/Add.5, para. 76.
40 See, for example, A/HRC/27/48/Add.2, para. 129; A/HRC/30/36/Add.1, para. 90; and
A/HRC/33/50/Add.1, paras. 51–54.
41 See, for example, A/HRC/7/4/Add.3, para. 100 (l); and A/HRC/27/48/Add.2, para. 95.
42 See, for example, A/HRC/27/48/Add.2, para. 118 (d) (ii); and A/HRC/30/36/Add.3, para. 77.
43 See A/HRC/7/4, paras. 49–50. See also E/CN.4/1999/63/Add.3, para. 30; A/HRC/27/48/Add.2, para.
121; A/HRC/30/36/Add.3, para. 75; and A/HRC/36/37/Add.1, para. 99 (c).
Detention conditions and treatment must not be such as to impede the ability to challenge
the lawfulness of detention, and detention should not be used as a tool to discourage asylum
applications.
39. All detained migrants must have free access to appropriate medical care, including
mental health care.44
VII. Migrants in situations of vulnerability and/or at risk
40. Detaining children because of their parents’ migration status will always violate the
principle of the best interests of the child and constitutes a violation of the rights of the
child.45 Children must not be separated from their parents and/or legal guardians.46 The
detention of children whose parents are detained should not be justified on the basis of
maintaining the family unit, and alternatives to detention must be applied to the entire
family instead.
41. Detention of migrants in other situations of vulnerability or at risk, such as pregnant
women, breastfeeding mothers, elderly persons, persons with disabilities, lesbian, gay,
bisexual, transgender and intersex persons, or survivors of trafficking, torture and/or other
serious violent crimes, must not take place.47
42. Men and women in detention should be always separated unless they are a part of an
immediate family unit.
VIII. The prohibition of non-refoulement
43. The principle of non-refoulement must always be respected, and the expulsion of
non-nationals in need of international protection, including migrants regardless of their
status, asylum seekers, refugees and stateless persons, is prohibited by international law.48
IX. Detention facilities
44. The detention of asylum seekers or other irregular migrants must not take place in
facilities such as police stations, remand institutions, prisons and other such facilities since
these are designed for those within the realm of the criminal justice system.49 The mixing of
migrants and other detainees who are held under the remit of the criminal justice system
must not take place.
45. Whether a place where those held in the course of migration proceedings is a place
of detention depends on whether the individuals held there are free to leave it at will or not.
If not, irrespective of whether the facilities are labelled “shelters”, “guest houses”, “transit
centres” “migrant stations” or anything else, these constitute places of deprivation of liberty
and all the safeguards applicable to those held in detention must be fully respected.50
46. If a State outsources the running of migration detention facilities to private
companies or other entities, it remains responsible for the way such contractors carry out
that delegation. The State in question cannot absolve itself of the responsibility for the way
44 See, for example, A/HRC/27/48/Add.2, para. 118 (d) (iii); and A/HRC/30/36/Add.3, para. 75.
45 See A/HRC/30/37, para. 46; and A/HRC/10/21, para. 60.
46 See, for example, A/HRC/36/37/Add.2, paras. 43 and 92 (j).
47 See, for example, A/HRC/13/30/Add.2, para. 79 (f); and A/HRC/16/47/Add.2, para. 119.
48 See Convention against Torture, art. 3; and Convention relating to the Status of Refugees, art. 33. See
also opinion No. 5/2009; A/HRC/27/48/Add.2, para. 129; and A/HRC/27/48/Add.4, para. 130 (c).
49 See, for example, E/CN.4/1999/63/Add.3, para. 30.
50 See A/HRC/7/4, para. 43; and A/HRC/36/37, paras. 50–56. See also A/HRC/33/50/Add.1, para. 36.
the private companies or other entities run such detention facilities, as a duty of care is
owed by that State to those held in such detention.51
X. Access to those held in detention in the course of migration proceedings
47. The Office of the United Nations High Commissioner for Refugees, the
International Committee of the Red Cross and other relevant organizations, including
national human rights institutions, national preventive mechanisms and international and
national non-governmental organizations, must be allowed free access to the places of
detention where those detained in the course of migration proceedings are held.52
XI. Scope of application of the present deliberation
48. The standards restated in the present deliberation apply to all States in all situations,
and factors such as the influx of large numbers of immigrants regardless of their status,
asylum seekers, refugees and stateless persons cannot be used to justify the departure from
these standards. The standards in the present deliberation also apply to migration detention
facilities maintained by a State in the territory of another State, with both States jointly
responsible for the detention.53
[Adopted on 23 November 2017]
51 See, for example, A/HRC/36/37/Add.2, paras. 33–36.
52 See, for example, E/CN.4/1999/63/Add.3, para. 38; E/CN.4/1999/63/Add.4, para. 52;
A/HRC/16/47/Add.2, paras. 126–128; A/HRC/19/57/Add.3, para. 68 (h); A/HRC/27/48/Add.2,
para. 127; and A/HRC/30/36/Add.3, para. 80.
53 See, for example, opinion No. 52/2014.