1995/59. Question of arbitrary detention

The Commission on Human Rights,

Recalling its resolution 1985/16 of 11 March 1985, in which it requested the Subcommission on Prevention of Discrimination and Protection of Minorities to analyse the available information concerning the practice of administrative detention without charge or trial, and to make appropriate recommendations on the use of this practice,

Reaffirming articles 3, 9, 10 and 29 as well as other relevant provisions of the Universal Declaration of Human Rights,

Recalling articles 9, 10, 11 and 14 to 22 of the International Covenant on Civil and Political Rights,

Taking into account General Assembly resolution 49/181 of 23 December 1994,

Having taken note, at its forty-seventh session, of the revised report by Mr. Louis Joinet on the practice of administrative detention (E/CN.4/Sub.2/1990/29 and Add.1) and of the recommendations formulated therein,

Recalling that the General Assembly, in its resolution 43/173 of 9 December 1988, adopted the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, which also covers administrative detention, and that, consequently, there is no longer a purpose in treating the question of administrative detention independently, even if, in certain cases, the procedure of administrative detention gives rise to specific abuses,

Recalling also its resolutions 1991/42 of 5 March 1991, 1992/28 of 28 February 1992, 1993/36 of 5 March 1993 and 1994/32 of 4 March 1994,

Bearing in mind that, in accordance with resolution 1991/42, the task of the Working Group on Arbitrary Detention is to investigate cases of detentions imposed arbitrarily or otherwise inconsistently with the relevant international standards set forth in the Universal Declaration of Human Rights, or in the relevant international legal instruments accepted by the States concerned,

Having considered the report of the Working Group (E/CN.4/1995/31 and Add.1-4),

Having heard the comments made during the fifty-first session of the Commission,

1. Takes note of the way with which the Working Group on Arbitrary Detention has revised its methods of work and recalls the importance to respect the procedures in its dialogue with States and in seeking the cooperation of all those concerned by the cases submitted to it for consideration, in accordance with its mandate;

2. Takes note also of the Working Group's report (E/CN.4/1995/31 and Add.1-4);

3. Requests the Working Group to continue, in discharging its mandate, to seek and gather information from Governments and intergovernmental and non-governmental organizations, as well as from the individuals concerned, their families or their legal representatives;

4. Invites the Working Group to take account of the need to carry out its task with discretion, objectivity, impartiality and independence, within the framework of its mandate and invites the experts to perform their tasks with rigour, in the light of the very specific nature of their mandate, which is notably to investigate cases, and to respond effectively to credible and reliable information that comes before them;

5. Takes note in this context of the importance that the Working Group attaches to coordination with other mechanisms of the Commission and with the treaty-monitoring bodies, as well as to the strengthening of the role of the Centre for Human Rights in such coordination, and encourages the Working Group to avoid unnecessary duplication;

6. Takes note also of the "deliberations" adopted by the Working Group on issues of a general nature with a view to achieving better prevention and to facilitating the consideration of future cases as well as helping further to strengthen the impartiality of its work;

7. Expresses its profound thanks to Governments which have extended their cooperation to the Working Group and responded to its requests for information, and asks all Governments concerned to demonstrate the same spirit of cooperation;

8. Requests Governments concerned to give the necessary attention to the "urgent appeals" addressed to them by the Working Group on a strictly humanitarian basis and without prejudging the character of the detention;

9. Invites Governments concerned to take note of the Working Group's decisions and, where necessary, to take appropriate steps and to inform the Working Group of the steps they have taken;

10. Encourages Governments to pay attention to the recommendations of the Working Group concerning persons who have been detained for a number of years;

11. Notes with appreciation that two Governments have invited the Working Group to carry out on-site missions and encourages all Governments to consider inviting the Working Group to their countries so as to enable the Group to fulfil its mandate;

12. Also welcomes the fact that the Working Group has been informed of the release of many individuals whose situation had been brought to its attention;

13. Expresses its concern at the fact that, according to the data of the Working Group, most cases of arbitrary deprivation of liberty are motivated by denial of the exercise of the right to freedom of opinion and expression, and recalls the need to pay due attention to cases of arbitrary detention motivated by violation of other human rights and fundamental freedoms;

14. Notes with concern that, according to the Working Group, the practice of arbitrary detention is facilitated and aggravated by several factors such as abuse of states of emergency, exercise of the powers specific to states of emergency without a formal declaration, non-observance of the principle of proportionality between the gravity of the measures taken and the situation concerned, too vague a definition of offences against State security, and the existence of special or emergency jurisdictions;

15. Encourages States to endeavour to take appropriate measures to ensure that their legislation in these fields is in conformity with the relevant international instruments, and not to prolong states of emergency beyond what is strictly required by the situation, or to limit their effects;

16. Requests the Special Rapporteur on states of emergency of the Subcommission on Prevention of Discrimination and Protection of Minorities to extend assistance to Governments expressing the wish to receive it, as well as to Special Rapporteurs and Working Groups, with a view to ensuring promotion and observance of the guarantees relating to states of emergency that are laid down in the relevant international instruments;

17. Requests the Secretary-General to ensure that the Working Group receives all necessary assistance, particularly in regard to staffing and resources needed to discharge its mandate;

18. Requests the Working Group to submit a report to the Commission, at its fifty-second session, and to make any suggestions and recommendations which would enable it to discharge its task in the best possible way, in cooperation with Governments, and to continue its consultations to that end within the framework of its terms of reference;

19. Decides to continue its consideration of the question at its fifty-second session under the agenda item entitled "Question of the human rights of all persons subjected to any form of detention or imprisonment".
59th meeting
7 March 1995
[Adopted without a vote. See chap. X. E/CN.4/1995/176]


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