Original HRC document

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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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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

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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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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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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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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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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

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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.