Working Group on Arbitrary Detention

Applies to/Se aplica a

State practice
State law
Individual cases
For Urgent Action
Only under 18-s
A

Summary

The Working Group on Arbitrary Detention, established as a Special Procedure in 1991, under the mandate of the former UN Commission on Human Rights (replaced by the Human Rights Council in 2006), investigates cases of arbitrarily detained people worldwide. It receives information regarding alleged cases of arbitrary detention by the individuals directly concerned, their families, their representatives or NGOs, and sends urgent appeals and communications to the concerned Governments to clarify the conditions of those allegedly detained. Under this mandate the Working Group on Arbitrary Detention considers cases without legal basis for the detention, cases where the right to a fair trial has been so badly violated that it makes the subsequent detention invalid, and cases of prisoners of conscience.

Examples of the kind of issues the Working Group examines include:

  • detention arising from a fundamental breach of human rights such as freedom of expression or freedom of thought, conscience and religion;
  • excessive time being spent on remand before being brought to trial;
  • where a person is detained after they should have been released;
  • house arrest.

Furthermore it conducts country visits to countries that issued an invitation and presents annual reports to the Human Rights Council.

There is an online database of documents of the Working Group at http://www.unwgaddatabase.org/un/.

1. Likely results from use of mechanism

a) Individual cases

After the Working Group on Arbitrary Detention has received information on cases of alleged arbitrary detentions, it might send either an urgent appeal or a letter of allegation to the government concerned. When the Working Group decides to issue an opinion on a case, a response received from a government will be forwarded to the original source for comment. These opinions are reported to the Human Rights Council and are published on the website of the Working Group at http://ap.ohchr.org/documents/dpage_e.aspx?m=117 and in the online database at http://www.unwgaddatabase.org/un/.

Opinions of the Working Group on Arbitrary Detention are quasi-judicial, in that they are not legally binding, but are argued like a legal decision, and will be taken into account by other UN special bodies, such as the Human Rights Committee.

Urgent action

In cases in which there are sufficiently reliable allegations that a person may be detained arbitrarily and that the alleged violations may be time-sensitive in terms of involving loss of life, life-threatening situations or either imminent or ongoing damage of a very grave nature to victims in the event of the continuation of the detention, the Working Group transmit an urgent appeal to the Government. An urgent appeal does not prejudge any Opinion the Working Group might subsequently render in the case.

b) State law and practice

While the focus of the mandate of the Working Group on Arbitrary Detention is on individual cases, it also considers state law and practice. The Working Group on Arbitrary Detention conducts at least two country visits annually, during which it will discuss issues around arbitrary detention with the government of the country. Following a country visit, the Working Group will make observations on the information received from the government, NGOs and individuals, and will make recommendations to the government.
Reports of visits are made available online at http://www.ohchr.org/EN/Issues/Detention/Pages/Visits.aspx, and are submitted to the Human Rights Council.

2. To which States does the mechanism apply?

All States.

3. Who can submit information?

Everybody

4. When to submit information?

Information on individual cases should be submitted as soon as possible, especially in cases where an urgent action by the Working Group on Arbitrary Detention is desired.
Information on State law and practice can be submitted at any time, but is especially relevant before a planned country visit by the Working Group.

5. Special rules of procedure or advice for making a submission?

According to the revised methods of work of the Working Group, submission need to be in writing, and need to include the name and address of the person and/or organisation submitting the information.
A communication should include as a minimum:

  • date of arrest
  • place of detention
  • formal charges, if any
  • access to counsel/outside organisation/family, etc
  • date of presentation to a judge, if applicable
  • date and information about trial, if applicable.

The Working Group prefers to receive information using its model questionnaire, which is available at http://www.ohchr.org/EN/Issues/Detention/Pages/Complaints.aspx.

6. What happens to the submission (how long will it take)?

After receiving information on a case of arbitrary detention, the Working Group will send a communication to the Government concerned, which will include the information that the Working Group is authorised to render an opinion on the case. The Government is requested to reply within 60 days to this letter, but can request an extension of no more than one month. A reply received by the Working Group will be forwarded to the source for comment.
Depending on the information received, the Working Group can take one of the following measures:

  • if the person has been released, the case might be filed, but the Working Group reserves the right to render an opinion, whether or not the person has been released;
  • if the Working Group considers that further information is required, it can keep the case pending and request further information;
  • if the Working Group has sufficient information, it will render an opinion, which can either state that the detention was arbitrary, or not. Even in the absence of a State's response, the Working Group can render an opinion, if it considers the information received from the source to be sufficient.

Depending on the complexity of the case, the time it takes the Working Group to come to a final decision varies between 6 months and 24 months.
Any opinion is sent first to the Government concerned, and two weeks later to the source.
Opinions are published in an addendum to the Working Group´s annual report to the Human Rights Council, and are also available on the website of the Working Group at http://www.ohchr.org/EN/Issues/Detention/Pages/Complaints.aspx and http://www.unwgaddatabase.org/.
In exceptional cases, the Working Group can reconsider an Opinion on the request of the source or the government, for example if the facts have changed or have to be considered as entirely new, so that the Working Group would come to a different opinion would it have been aware of the facts at the time. Governments can only request a review if they replied to the original allegation within the above mentioned time limit.

In an urgent case scenario the Working Group sends an urgent appeal to the Government concerned in order to ensure that the detained person’s right to life and to physical and mental integrity are respected.
The government will be urged to safeguard the right not to be arbitrarily deprived of one's liberty.
An urgent appeal to a Government does in no way prejudge the Working Groups final assessment of the case, unless the arbitrary character of the deprivation of liberty has already been determined.
Urgent appeals and responses received by governments will be included in the regular joint communications report of all Special Procedures to the Human Rights Council, and are available online at http://www.ohchr.org/EN/HRBodies/SP/Pages/CommunicationsreportsSP.aspx.

7. History of the use of the mechanism.

The Working Group on Arbitrary Detention has been successfully used by conscientious objectors. It's first known opinion was on the case of Turkish conscientious objector Osman Murat Ülke (Opinion 36/1999), who was imprisoned repeatedly for disobeying orders. In line with the international standards at the time, the Working Group considered any detention from the second detention on as arbitrary, contrary to the principle of ne-bis-in-idem. The Turkish government requested a review of this Opinion in 2000, but the Working Group upheld its original opinion (see Report of the Working Group on Arbitrary Detention, 20 December 2000).
In 2003, the Working Group rendered a similar opinion on five cases from Israel.
Following the development of the jurisprudence of the Human Rights Committee, from 2008 on the Working Group considered any detention of a conscientious objector as arbitrary (see Opinion No 8/2008 [Colombia] and Opinion 16/2008 [Turkey]).
In its Opinion No 8/2008, the Working Group also came to the conclusion that the widespread practice of “batidas” in Colombia (raids on young people in public places) in order to establish the military status of young people and their subsequent transfer to military barracks constitutes arbitrary detention. It then raised this issue also with the Government of Colombia during its country visit from 1-10 October 2008 (see Report on the Mission to Colombia, 16 February 2009).

Contact Details: 
For an individual case or cases, the communication should be sent, if possible accompanied by the model questionnaire prepared for this purpose, to: Working Group on Arbitrary Detention c/o Office of the High Commissioner for Human Rights United Nations Office at Geneva 8-14, avenue de la Paix 1211 Geneva 10, Switzerland facsimile: +41 22 9179006 e-mail: wgad@ohchr.org Communications requesting the Working Group to launch an urgent appeal on humanitarian grounds should be sent to the above address, preferably by e-mail or facsimile.
Further Reading: 

Interpretations

Title Date
Recommendation 2: detention of conscientious objectors 20/12/2000

The Working Group recommends that all States that have not yet done so adopt appropriate legislative or other measures to ensure that conscientious objector status is recognized and attributed, in accordance with an established procedure, and that, pending the adoption of such measures, when de facto objectors are prosecuted, such prosecutions should not give rise to more than one conviction, so as to prevent the judicial system from being used to force conscientious objectors to change their convictions.

Recognition of CO Recognised
Repeated punishment Recognised
Opinions and Reports
Title Date
Armenia. Alleged arbitrary detention and harassment of members of the Jehovah's Witnesses community 23/02/2012

According to the information received, members of the Jehovah's Witnesses community had been facing harassment, as well as the imprisonment of the following 72 Jehovah's Witnesses: (...) The individuals have reportedly been charged under the Armenian Criminal Code for their conscientious objection to military service on religious grounds. Reportedly, a further three had been held in pretrial detention. On 19 July 2011, Garegin Avetisyan was allegedly convicted as a conscientious objector, sentenced and arrested for refusing military service.

Recognition of CO Recognised
Turkmenistan: Urgent appeal sent on 12 February 2010 jointly with the Chair-Rapporteur of the Working Group on Arbitrary Detention 14/02/2011

The Special Rapporteur would like to reiterate the observations and recommendations on the issue of conscientious objection in his predecessor’s country report on Turkmenistan (see A/HRC/10/8/Add.4, paras. 17, 50-51, 61 and 68). In paragraph 68 of the country report, the Special Rapporteur recommended that “the Government should ensure that conscientious objectors in Turkmenistan, in particular Jehovah’s Witnesses who refuse to serve in the army due to their religious beliefs, be offered an alternative civilian service which is compatible with the reasons for conscientious objection. As such, the Government should also revise the Conscription and Military Service Act which refers to the possibility of being sanctioned twice for the same offence. The Special Rapporteur would like to recall that according to the principle of “ne bis in idem”, as enshrined in article 14 (7) of the International Covenant on Civil and Political Rights, no one shall be liable to be tried or punished again for an offence for which he or HRC/16/53/Add.1 she has already been convicted or acquitted in accordance with the law and penal procedure of each country.

Recognition of CO Recognised
Repeated punishment Recognised
Opinion No 50/2011 (Egypt) 02/09/2011

18. Finally, the Working Group finds no specific facts capable of justifying Mr. Sanad’s detention. The only reasonable explanation is that Mr. Sanad’s detention is due to his criticism of the military and the police in the country. Recently, he had criticized the army in a series of articles available on the Internet. His complaints to the police and security regarding acts of public violence against him have been of no avail. It follows that Mr. Sanad’s deprivation of liberty is also arbitrary falling into category II of the categories applicable to the consideration of cases submitted to the Working Group.

Disposition

19. In the light of the foregoing, the Working Group renders the following opinion:
The deprivation of liberty of Maikel Nabil Sanad is arbitrary and constitutes a breach of articles 9, 10, 11 and 19 of the Universal Declaration of Human Rights and articles 9, 14 and 19 of the International Covenant on Civil and Political Rights, falling into categories II and III of the categories applicable to the cases submitted to the Working Group.
20. The Working Group requests the Government to take the necessary steps to remedy the situation, which would include the immediate release of Mr. Sanad and the provision of adequate reparation to him.

Report of the Working Group on Arbitrary Detention Addendum Mission to Armenia 17/02/2011

Armenia:

68. The Working Group also received information regarding the arrest and imprisonment of 80 conscientious objectors of the Jehovah Witness faith. In recent years, young men of this faith have been imprisoned due to their refusal to enlist in the military and participate in the alternative civil service offered to enlistment. The Working Group was told that the alternative civil service, established by a 2003 Act, is not functioning in practice. The Ministry of Defence in Armenia has expressed its readiness to discuss the possibility of reducing the length of alternative service to an acceptable limit.

Recognition of CO Recognised
Length/terms of service Recognised
Report of the Working Group on Arbitrary Detention. Addendum: Mission to Colombia 16/02/2009

66. The Working Group notes with concern the arrests carried out by military personnel, in particular the practice of round-ups, despite the fact that the army does not have legal powers to do so. On some occasions, soldiers have orders to arrest a few persons, but arrest many more. One variation is forced enlistment: mass detentions of young persons with a view to checking their military status. Those who are deemed to have failed to register, to respond to being called up or to have performed military service are taken to the barracks for forced recruitment. The Deputy Minister of Defence declared that every young male must carry on his person his military service record or the document confirming the postponement of his military service because military service is not only the right, but the obligation of all male citizens. By and large, it is not the army, but illegal armed groups who forcibly recruit minors. The Working Group considered complaints from conscientious objectors who said that their objections were not taken into account. The Working Group has already deemed that the refusal to recognize the right of conscientious objection contravenes international human rights law.

Recognition of CO Recognised
Opinion No 8/2008 (Colombia) 07/08/2008

The Working Group on Arbitrary Detention declared in its Opinion No 8/2008 (Colombia) the practice of recruitment in the form of raids (batidas), and the recruitment of conscientious objectors a form of "arbitrary detention".

Recognition of CO Recognised
Opinion No. 16/2008 (Turkey) 19/07/2008

"The deprivation of liberty of Mr. Halil Savda during the periods between 16 and 28 December 2004, between 7 December 2006 and 2 February 2007, as well as between 5 February and 28 July 2007 was arbitrary. His deprivation of liberty since 27 March 2008 is also arbitrary, being in contravention of articles 9 and 18 of the Universal Declaration of Human Rights and of articles 9 and 18 of the International Covenant on Civil and Political Rights".

Recognition of CO Recognised
Repeated punishment Recognised
Opinion No 24/2003 (Israel) 28/11/2003

The second and subsequent deprivations of liberty of Matan Kaminer, Adam Maor, Noam Bahat and Jonathan Ben-Artzi are contrary to article 14, paragraph 7, of the International Covenant on Civil and Political Rights. The non-observance of the international norms relating to the right to a fair trial is of such gravity as to confer on the deprivation of liberty an arbitrary nature, falling within category III of the categories applicable to the consideration of cases submitted to the Working Group.

Repeated punishment Recognised
Report of the Working Group on Arbitrary Detention 20/12/2000

44. By note of 31 October 2000, the Government of Turkey challenged the Working Group’s Opinion No. 36/1999 (O. Murat Ulke). It argues that rather than evaluating the activities for which Mr. Ulke was convicted as “single offences” (i.e. consisting of a single action and its uninterrupted continuing results), one should interpret Mr. Ulke’s consistent refusal to perform his military service as “continuing offences”: every time he was deprived of his liberty the “continuity” of his offence was broken, and every new refusal to perform military service constituted another new offence for which he was once again convicted and deprived of liberty. (…)
48. The objections of the Government were considered by the Working Group at its twenty-ninth session. The Working Group believes that its Opinion is founded on a solid legal basis consistent with accepted jurisprudential norms.

Repeated punishment Recognised
Opinion No 36/1999 (Turkey) 02/12/1999

It follows that the Working Group considers that Mr.Ülke's detention from 7 October to December 1996 was not arbitrary. Regarding the other periods, and in view of the foregoing, the Working Group considers that Mr. Ülke's detention is arbitrary, it having been ordered in violation of the fundamental principle non bis in idem, a principle generally recognized in countries where the rule of law prevails as being one of the most essential guarantees of the right to a fair trial.
In the light of the foregoing, the Working Group expresses the following opinion: The deprivation of liberty of Mr. Osman Murat Ülke from October to December 1996 was not arbitrary. His detention since 28 January 1997 is, however, arbitrary, being contrary to article 10 of the Universal Declaration of Human Rights, and it falls within category III of the principles applicable in the consideration of the cases submitted to the Working Group.

Repeated punishment Recognised