Distr.
GENERAL

E/CN.4/1994/27
17 December 1993

ENGLISH
Original: ENGLISH/FRENCH/SPANISH

COMMISSION ON HUMAN RIGHTS
Fiftieth session
Item 10 of the provisional agenda

QUESTION OF THE HUMAN RIGHTS OF ALL PERSONS SUBJECTED TO
ANY FORM OF DETENTION OR IMPRISONMENT

Report of the Working Group on Arbitrary Detention


CONTENTS
Paragraphs
Introduction
1 - 6
I. ACTIVITIES OF THE WORKING GROUP
7 - 20
A. Communications with Governments
8 - 12
B. Urgent appeals
13
C. Field missions
14- 16
D. Cooperation with other procedures and mechanisms of the Commission on Human Rights
17
E. Cooperation with non-governmental organizations
18 - 20
II. DELIBERATIONS OF THE WORKING GROUP
21 - 22
GOVERNMENT REACTIONS THERETOIII. DECISIONS ADOPTED BY THE WORKING GROUP AND GOVERNMENT REACTIONS THERETO
23 - 30
A. General information regarding decisions adopted by the Working Group
23 - 25
B. Replies to decisions adopted in 1992
26
C. Replies to decisions adopted in 1993
27 - 28
D. Governments' reactions to decisions
29 - 30
IV. CONCLUSIONS AND RECOMMENDATIONS
31 - 77
A. General Conclusions
31 - 70
B. Recommendations
71 - 77
Annex I
Revised methods of work as of December 1993
Annex II
Decisions adopted by the Working Group:
Decision No. 43/1992 (Turkey)
Decision No. 45/1992 (Ethiopia)
Decision No. 46/1992 (Egypt)
Decision No. 47/1992 (Republic of Korea)
Decision No. 52/1992 (Myanmar)
Decision No. 53/1992 (Syrian Arab Republic)
Decision Nos. 1/1993, 2/1993, 3/1993, 4/1993 and 5/1993 (Philippines)
Decision No. 8/1993 (Dominican Republic)
Decision No. 9/1993 (Turkey)
Decisions Nos. 10/1993 and 11/1993 (Syrian Arab Republic)
Decision No. 12/1993 (Cuba)
Decision No. 13/1993 (Malawi)
Decisions Nos. 14/1993 and 15/1993 (Viet Nam)
Decision No. 16/1993 (Indonesia)
Decisions Nos. 17/1993 and 18/1993 (Israel)
Decision No. 20/1993 (Nigeria)
Decision No. 21/1993 (Morocco)
Decision No. 22/1993 (Nigeria)
Decision No. 23/1993 (Ethiopia)
Decision No. 24/1993 (Libyan Arab Jamahiriya)
Decision No. 25/1993 (Haiti)
Decision No. 26/1993 (Israel)
Decision No. 27/1993 (Philippines)
Decision No. 28/1993 (Republic of Korea)
Decision No. 30/1993 (Philippines)
Decision No. 31/1993 (Azerbaijan)
Decision No. 32/1993 (Uzbekistan)
Decision No. 33/1993 (Ethiopia)
Decision No. 34/1993 (Greece)
Decision No. 35/1993 (Syrian Arab Republic)
Decision No. 36/1993 (Indonesia)
Decision No. 38/1993 (Myanmar)
Decision No. 39/1993 (Niger)
Decision No. 40/1993 (Djibouti)
Decision No. 41/1993 (Morocco)
Decision No. 42/1993 (Peru)
Decision No. 45/1993 (Sudan)
Decision No. 48/1993 (United States of America)
Decision No. 49/1993 (Zambia)
Decision No. 50/1993 (Peru)
Annex III
Decision on cases of reportedly released detainees
and list of such persons
Annex IV
List of persons whose release was notified by the
Governments concerned following the adoption by
the Working Group of a decision concerning
these persons
Annex V
Statistics


Introduction

1. At its forty-seventh session, the Commission on Human Rights adopted resolution 1991/42, entitled "Question of arbitrary detention", in which it decided to create, for a three-year period, a working group composed of five independent experts, with the task of investigating cases of detention 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.

2. The Working Group presented its first and second reports (E/CN.4/1992/20 and E/CN.4/1993/24) to the Commission at its forty-eighth and forty-ninth sessions respectively. The first report contained, inter alia, the Working Group's methods of work and the principles applicable in the consideration of cases submitted to it, thus laying down the criteria according to which it proceeded in the consideration and adoption of decisions on individual cases of alleged arbitrary detention. The second report contained, inter alia, the full text of the decisions adopted by the Working Group in 1992, as well as four deliberations providing the Group's views on certain legal situations; statistical data covering the period September 1991 to December 1992, and the Working Group's conclusions and recommendations.

3. At its forty-ninth session, the Commission adopted resolution 1993/36, entitled "Question of arbitrary detention", in which it, inter alia, took note with satisfaction of the Working Group's report (E/CN.4/1993/24) and thanked the experts for the rigour with which they had performed their task, in the light of the very specific nature of their mandate of investigating cases; and requested the Working Group to submit a report to it, at its fiftieth session, and to make all suggestions and recommendations for better fulfilment of its task, particularly in regard to ways and means of ensuring the follow-up to its decisions, in cooperation with Governments.

4. In conformity with paragraph 18 of Commission resolution 1993/36, the Working Group hereby presents its third report to the Commission.

5. Chapter I of the report describes the activities of the Working Group since the submission of its second report to the Commission, including data on the number of communications and cases transmitted by the Working Group to Governments during 1993 and the number of replies received, data on urgent appeals sent and the replies received thereto; contacts made by the Working Group with certain Governments with a view to carrying out field missions, and the results of such contacts; contacts with special rapporteurs of the Commission and contacts with non-governmental organizations. Chapter II sets out the Working Group's views, at the end of the third year of its mandate, regarding the procedure it has followed in the adoption of "deliberations" (the term it used to distinguish between "decisions", which concern individual cases, and decisions on certain legal situations involving questions of principle, which it referred to as "deliberations"). Chapter III of the report describes the general framework in which the Working Group adopted decisions on individual cases submitted to it, and reactions by several Governments to decisions adopted in 1992 and 1993 concerning their countries. Chapter IV contains the Working Group's general conclusions and recommendations.

6. Annex I contains the methods of work of the Working Group, as revised by it at its eighth session. Annex II contains the full text of 54 decisions adopted by the Working Group, including 6 decisions adopted in 1992 which, for technical reasons, were not published in the Working Group's second report to the Commission (E/CN.4/1993/24) and the decisions adopted by the Working Group during its sixth and seventh sessions, in 1993. Annex III contains a decision regarding cases of persons no longer in detention, which the Working Group decided to file since it deemed that there were no special circumstances warranting it to consider the nature of the detention, and the list of those persons. Annex IV contains a list of persons whose release was announced by Governments following the adoption by the Working Group of decisions concerning these persons. Annex V contains statistical data regarding the number of cases dealt with by the Working Group during the period covered by the present report and the breakdown of the types of decision adopted by the Working Group.


I. ACTIVITIES OF THE WORKING GROUP

7. The activities described below refer to the period February to December 1993, when the present report was finalized. During this period the Working Group held three sessions: its sixth, seventh and eighth, from 26 to 30 April, from 27 September to 1 October and from 1 to 10 December 1993, respectively.


A. Communications with Governments

8. During the period under consideration the Working Group transmitted 45 communications containing 183 newly reported individual cases of alleged arbitrary detention to the following Governments (the number of individuals concerned is given in parentheses): Azerbaijan (2), Bahrain (1), China (2 communications totalling 8 cases), Colombia (2 communications totalling 5 cases), Croatia (1), Cuba (1), Djibouti (14), Egypt (2 communications totalling 6 cases), Ethiopia (3 communications totalling 6 cases), Greece (1), Guinea-Bissau (5), Indonesia (2 communications totalling 2 cases), Iraq (1), Kuwait (1), Mexico (2), Morocco (2 communications totalling 3 cases), Niger (7), Nigeria (4), People's Democratic Republic of Korea (3), Peru (2 communications totalling 35 cases), Republic of Korea (1), Saudi Arabia (3 communications totalling 2 cases), Sudan (10), Syrian Arab Republic (3 communications totalling 5 cases), Tunisia (1), Turkey (1), United Kingdom (9 cases concerning Hong Kong), Uzbekistan (2 communications totalling 3 cases), Viet Nam (2 communications totalling 24 cases), Yemen (1), Zaire (2) and Zambia (16).

9. Out of the 31 Governments concerned, 15 provided the Working Group with information regarding the cases transmitted to them. They were the Governments of: China (with respect to one communication concerning one person), Colombia, Croatia, Egypt, Ethiopia, Greece, Iraq, Kuwait, Morocco, Nigeria, Republic of Korea, Syrian Arab Republic, United Kingdom, Viet Nam and Yemen.

10. In respect of communications transmitted prior to the period February-December 1993, the Working Group received replies from the following Governments: Bhutan, Costa Rica, Philippines, Republic of Korea and United States of America.

11. A description of the cases transmitted and the text of the Government's reply are contained in the pertinent decisions adopted by the Working Group.

12. As regards the sources which submitted information on cases of alleged arbitrary detention to the Working Group, it may be noted that of the 45 communications sent by the Working Group to Governments during the period under consideration 6 communications concerning 8 individual cases, were based on information submitted by family members or relatives of the detained persons; 7 communications concerning 65 individual cases were based on information submitted by local or regional non-governmental organizations and 32 communications concerning 110 individual cases were based on information provided by international non-governmental organizations.


B. Urgent appeals

13. During the period under consideration the Working Group resorted more often than in the past, and in a larger variety of situations, to the "urgent action" procedure. Whereas in the entire year 1992 it addressed 12 appeals to Governments, in the first 10 months of 1993 alone it addressed 17 appeals to 14 Governments. Three appeals were addressed to the Government of Cuba, 2 to the Government of Viet Nam and 1 appeal to each of the following Governments: Burundi, China, Djibouti, Indonesia, Kenya, Malawi, Maldives, Mexico, Myanmar (an appeal sent jointly with the Special Rapporteur on the human rights situation in Myanmar), Nigeria, Sierra Leone and Tunisia. Most of the appeals concerned persons who were allegedly detained in an arbitrary manner and regarding whom fears were expressed by the source that their continued detention could constitute a danger to their health or even to their life. In conformity with paragraph 11 (a) of its methods of work, the Working Group, without in any way prejudging its final assessment of whether the detention was arbitrary or not, drew the attention of the Government concerned to the specific case as reported and appealed to it to take the necessary measures to ensure that the detained persons' rights to life and to physical integrity were respected. In some cases, in view of the particularly dangerous health condition in which the detained person was reported to be, the Working Group also appealed to the Government to consider releasing that person. The Governments of China, Cuba, Djibouti, Indonesia, Maldives, Mexico, Nigeria, Tunisia and Viet Nam provided the Working Group with information on the persons concerned. In most of the cases, the replies provided by the Governments affirmed that the persons concerned were in a satisfactory condition and their continued detention constituted no risk to their health. In three of the cases (Cuba, Nigeria and Viet Nam), the Governments informed the Working Group that some of the persons concerned had been released. As is the practice regarding Government replies to communications transmitted to them by the Working Group, replies received from Governments with regard to urgent appeals were also transmitted to the sources for their information. The Working Group wishes to thank those Governments which heeded its appeal to provide it with information on the situation of the persons concerned, and in particular those which released such persons.


C. Field missions

14. In its second report to the Commission (E/CN.4/1993/24) the Working Group expressed its intention to carry out, in the third year of its mandate, the first mission in situ, as a means to foster an effective spirit of cooperation between the country visited and the Working Group. Governments must perceive these visits as opportunities to explain their point of view with reference to ground realities. This spirit of cooperation will enable the Group to perform its task with discretion and objectivity. The Commission, in its resolution 1993/36, has also encouraged Governments to consider inviting the Working Group to their countries so as to enable the Group to discharge its mandate even more effectively. It is in this spirit that the Working Group has, in the third year of its mandate, taken initial steps with a view to carrying out its first visits in situ.

15. In April 1993 an international non-governmental organization informed the Working Group of the detention, in controversial conditions, of over 200 Haitian asylum-seekers at the United States Naval Base at Guantanamo, Cuba, and suggested that the Working Group carry out a mission to the United States and to the above-mentioned base. The Working Group undertook initial contacts with the Chargé d'affaires of the Permanent Mission of the United States at Geneva with a view to proposing such a visit, and later addressed to him a detailed list of issues which could be clarified during the proposed visit. But on 22 June 1993 the United States Chargé d'affaires informed the Working Group that all the Haitians held in Guantanamo Bay were being brought to the United States, following an order issued by a district court judge in New York. The subject of the proposed visit therefore no longer existed.

16. In September 1993 representatives of the Government of Viet Nam approached the Chairman of the Working Group to discuss the possibility of carrying out a visit to that country. Following further consultations with representatives of that Government a formal invitation was extended to the Working Group during its eighth session, in December 1993. The Working Group decided to respond favourably, and steps are being taken to discuss the dates and the modalities of the visit.


D. Cooperation with other procedures and mechanisms of the Commission on Human Rights

17. It may be recalled that the Vienna Declaration and Programme of Action (A/CONF.157/23, para. 95) affirmed that the procedures and mechanisms (of the Commission on Human Rights and of the Sub-Commission) should be enabled to harmonize and rationalize their work through periodic meetings. A step in that direction was taken by the Working Group at its eighth session, in December 1993, when it held a meeting with the Special Rapporteur on the question of torture in order to exchange views regarding the criteria of admissibility adopted in the discharge of their respective mandates, their methods of work and other matters of concern to both mechanisms.


E. Cooperation with non-governmental organizations

18. During the period under consideration the Working Group continued its cooperation with non-governmental organizations, both international and regional. In addition to being the Working Group's main source of information, non-governmental organizations continued to show interest in the Working Group's activities and methods of work by proposing ways to increase the transparency and efficiency of the Group's work.

19. At its seventh session (September-October 1993) the Working Group received representatives of the American Association of Jurists, at their request. They made several pertinent observations regarding the Working Group's methods of work and expressed reservations about some conclusions reached by the Working Group in several decisions it had adopted (see para. 55 (b) below).

20. At its eighth session (December 1993) the Working Group decided to convene, during the course of 1994, a meeting with the non-governmental organizations which have been providing it with most of the individual cases, as well as general information, in order to discuss ways to enhance the cooperation with the Working Group and, in particular, to examine how non-governmental organizations could assist the Working Group in carrying out the task of taking up cases on its own initiative, in conformity with Commission resolution 1993/36 (para. 4).


II. DELIBERATIONS OF THE WORKING GROUP

21. In its first report to the Commission, the Working Group, in chapter IV, entitled "Special situations receiving the consideration of the Working Group", identified certain legal situations which deserved particular attention. The following situations were identified: (a) failure to take pre-trial detention into account; (b) failure to take detention prior to extradition into account; (c) restricted residence; (d) rehabilitation through labour; (e) extradition not followed by trial; and (f) grave and multiple violations of the right to a fair trial, in connection with the Working Group's category III of principles applicable in the consideration of cases submitted to it. These situations were identified in order to facilitate the future work of the Working Group. As and when the legal situations identified arose, either in the context of an individual's detention or otherwise, the Working Group felt that it would then consider whether these legal situations could characterize a detention as arbitrary. The Working Group deemed that this would make it possible for the Governments concerned to appreciate, not in the abstract but with reference to the identity of the legal situations prevailing in their respective jurisdictions, why detentions in the context of these legal situations were declared arbitrary. In addition, the Working Group felt that consideration of these situations would help formalize certain principles which might hitherto not have been considered relevant for the purposes of declaring a particular detention arbitrary.

22. In its second report to the Commission the Working Group dealt with two of the aforementioned legal situations, i.e. those regarding restricted residence or house arrest (Deliberation 01), and rehabilitation through labour (Deliberation 04). The two other deliberations contained in the report were adopted in response to specific questions which had been put forward by the Government of Cuba concerning the Working Group's criteria and methods of work. With regard to the other legal situations referred to in the Working Group's first report, the Group decided that it would consider such situations, and adopt deliberations thereon, on the occasion of the examination of individual cases involving such legal questions.


III. DECISIONS ADOPTED BY THE WORKING GROUP AND GOVERNMENT REACTIONS THERETO


A. General information regarding decisions adopted by the Working Group

23. At its sixth session, from 26 to 30 April 1993, the Working Group adopted 30 decisions (Decisions Nos. 1 to 30), concerning 84 persons in 19 countries. At its seventh session, held from 27 September to 1 October 1993, the Working Group adopted 20 decisions (Decisions Nos. 31 to 50) concerning 102 persons in 17 countries. At its eighth session, from 1 to 10 December 1993, the Working Group adopted 17 decisions (Decisions Nos. 51 to 67) concerning 85 persons in 13 countries. The decisions adopted at the Working Group's sixth and seventh sessions, together with 6 decisions adopted by the Group at its fifth session in December 1992 (Decisions 43/1992, 45/1992, 46/1992, 47/1992, 52/1992 and 53/1992 which, for technical reasons, could not be reproduced in the Working Group's second report to the Commission), are reproduced in Annex II, in their order of adoption by the Working Group, or reflected in Annex III.

24. With regard to 39 of the cases considered, the Working Group decided that they should be filed since the persons concerned were no longer in detention and there were no special circumstances, in the Working Group's view, warranting the Group to consider and decide on the nature of their detention. Such cases are listed in annex III to this report. Nevertheless, decisions involving several persons, including persons belonging to the group of released persons mentioned in annex III, are reproduced in full in annex II.

25. In keeping with its view, as expressed in its methods of work (E/CN.4/1993/24, para. 2), that the investigation of cases transmitted to it should be of an adversarial nature, the Working Group transmitted the decisions, as adopted, to the Governments concerned, drawing their attention to resolution 1993/36, in which the Commission, inter alia requested "Governments concerned to pay due heed to the Working Group's decisions and, where necessary, to take appropriate steps and inform the Working Group, within a reasonable period of time, of the follow-up to the Group's recommendations so that it can report thereon to the Commission". In the same spirit, the Working Group also transmitted relevant excerpts of the decisions to the sources from which the original communications were received, three weeks after the transmittal of the decisions to the Governments concerned.


B. Replies to decisions adopted in 1992

26. Following the transmittal of the Working Group's 54 decisions adopted in 1992 to the Governments concerned, 7 Governments addressed to the Working Group replies regarding the cases subject to decisions. These figures should however be seen in the light of the fact that the Group's first 54 decisions concerned 24 Governments, out of which in one case (Peru) the detention was declared not arbitrary, and in five other cases (Mexico, Uganda, Chile, C_te d'Ivoire and United Republic of Tanzania) all the persons concerned had been released and the Working Group did not consider the nature of their detention. In these circumstances only the following 18 Governments were asked by the Working Group to take the necessary steps to remedy the situation in order to bring it into conformity with the norms and principles incorporated in the relevant international instruments: Burundi, Cuba, Egypt, Ethiopia, Islamic Republic of Iran, Israel, Lao People's Democratic Republic, Libyan Arab Jamahiriya, Malawi, Malaysia, Morocco, Myanmar, Republic of Korea, Saudi Arabia, the Sudan, Syrian Arab Republic, Tunisia and Turkey. Of these 18 Governments, 7, those of Burundi, Ethiopia, Lao People's Democratic Republic, Malawi, Malaysia, the Sudan and Tunisia, sent replies to the Working Group.


C. Replies to decisions adopted in 1993

27. The 30 decisions adopted at the Working Group's sixth session in April 1993 concerned 18 countries, out of which in 3 cases (Tunisia, Cameroon and the Federal Republic of Yugoslavia) all the persons concerned had been released and the Working Group did not consider the nature of their detention. The Working Group made recommendations with regard to the following 15 Governments: Cuba, Dominican Republic, Ethiopia, Haiti, Israel, Indonesia, Libyan Arab Jamahiriya, Malawi, Morocco, Nigeria, Philippines, Republic of Korea, Syrian Arab Republic, Turkey and Viet Nam. Out of the 15 Governments, the following 8 addressed replies to the Working Group regarding the cases subject to decisions: Malawi, Morocco, Nigeria, Philippines, the Republic of Korea, the Syrian Arab Republic, Turkey and Viet Nam.

28. The Governments of Morocco, Peru and Saudi Arabia addressed replies to the Working Group with regard to decisions adopted by it at its seventh session (September 1993).


D. Governments' reactions to decisions

29. Governments' reactions to decisions concerning them may be divided into three categories:

(a) Governments informing the Working Group that persons concerned by its decision are no longer in detention. The following Governments provided the Working Group with such information: Ethiopia, Lao People's Democratic Republic, Malawi, Morocco, Nigeria, Philippines, the Sudan and Viet Nam. (For the names of the persons released and the number of the decision concerning them, see annex IV). The Working Group considers that the release of persons whose detention was declared by it to be arbitrary can be seen as a step in the direction recommended by the Group towards remedying the situation and bringing it into conformity with the norms and principles incorporated in the relevant international instruments. The Working Group further deems that such releases can be seen as conforming with the request contained in resolution 1993/36 in which the Commission called upon Governments concerned to pay due heed to the Working Group's decisions and, where necessary, to take appropriate steps and inform the Working Group, within a reasonable period of time, of the follow-up to the Group's recommendation. The Working Group therefore wishes to express its thanks to the above-mentioned Governments and to encourage other Governments concerned to take similar measures.

(b) Governments which, having received the cases transmitted by the Working Group, provided information to the Working Group within the 90-day deadline indicated and which, following the adoption of the decision concerning them, supplied further information challenging the Working Group's arguments, findings or conclusions. Such was the case of the Government of Turkey, with regard to decision No. 9/1993, and the Government of Tunisia, which, in reaction to Decision No. 51/1992 provided the Working Group with detailed information regarding the competence of military tribunals, the existence of domestic remedies to appeal the decisions of military tribunals and the interpretation of article 19 of the International Covenant on Civil and Political Rights.

(c) Governments which, having received the cases transmitted by the Working Group, did not provide any information within the 90-day deadline, but which, following the adoption of the decision concerning them, supplied pertinent information on the cases which were the object of the decision. The following Governments provided such information: Malawi (with regard to Decision No. 13/1993), Burundi (Decision No. 48/1992), Lao People's Democratic Republic (Decision No. 2/1992), Malaysia (Decision No. 39/1992), Peru (Decision No. 42/1993), the Republic of Korea (Decision No. 28/1992), the Syrian Arab Republic (Decisions Nos. 10/1993 and 35/1993) and Viet Nam (Decision No. 15/1993). In addition to the aforementioned, the Government of Saudi Arabia provided the Working Group with a reaction (to Decision No. 37/1993) despite the fact that the Working Group decided to file the case since the person concerned was no longer in detention.

30. The Working Group takes note with appreciation of any information provided to it by Governments concerned. However, it wishes to encourage all Governments to take heed of the deadline indicated by the Working Group and provide it with a reply within that deadline, so that the Working Group, when it adopts a decision, may have at its disposal not only the version of facts as alleged by the source, but also the Government's version.


IV. CONCLUSIONS AND RECOMMENDATIONS


A. General conclusions

31. In response to various concerns of the Commission, the Working Group has considered it necessary to refer in this its third report to all the resolutions adopted at the forty-ninth session that have a direct or indirect bearing on its mandate. Similarly, in different sections below the Group will discuss its revised methods of work, the possibility of field missions and the Group's general concerns.


1. Response to concerns of the Commission

32. Many Commission resolutions call on special rapporteurs and working groups in general, and on this Working Group in particular, to give "special attention" to the matters contained in the resolutions mentioned below.

Resolution 1993/41, on human rights in the administration of justice

33. In the Working Group's view, this question is closely connected with its own mandate, as shown in particular by the consideration of all the cases of detention referred to in "category III" of the Principles applicable in the consideration of cases submitted to the Group (first report (E/CN.4/1992/20, annex I)), which relate to guarantees of due process and an impartial trial. In the decisions adopted during the period under review, it was found in 82 cases that detention was arbitrary because of non-observance of these provisions.

34. Also in relation to this question, the Working Group once again draws the Commission's attention to the operation of special courts or military courts. As to the former category, it has found in some of its decisions cases involving "revolutionary" or "people's" courts. The impression gained from these cases is that they are courts based on an ideology which is customarily incompatible with the guarantees provided for in the international provisions to which the Group, in the discharge of its mandate, is compelled to refer.

35. As to the second category, "military courts", the Working Group shares the view of the Human Rights Committee that the provisions of article 14 of the International Covenant on Civil and Political Rights apply to all kinds of courts, whether ordinary or emergency courts. Undoubtedly, the Covenant does not prohibit military courts, even when they try civilians, but conditions reveal no less clearly that trials of civilians by such courts must be exceptional and must be held under conditions of full respect for all the guarantees set out in article 14. In this very connection, the Commission on Human Rights, in resolution 1993/69, called on the Government of Equatorial Guinea to put an end to the use of military courts to try ordinary law offences. The Working Group shares the view of both the Commission and the Human Rights Committee and therefore considers that, in terms of principles, the name given to a special court is less important than whether or not it meets the requirements of article 14 of the Covenant. In the light of its experience, the Group notes that in almost all cases military courts involve serious risks of arbitrariness, on the one hand because of the procedure applicable and on the other because of the corporative nature of their membership, and all too often they give the impression that a double standard is being applied, depending on whether the person being tried is a civilian or a member of the military.

36. In paragraph 43 (c) of its second report (E/CN.4/1993/24), the Working Group recommended the strengthening of the institution of habeas corpus, which, as experience shows, is indispensable in a State governed by the rule of law as a safeguard against arbitrary detention. The Commission endorsed this suggestion (resolution 1993/36, para. 16). The Group regrets that in many countries habeas corpus actions do not exist or have been suspended or are not readily available or relied on very little, since the sources very rarely indicate that this remedy has been applied for, although this step is required in the Working Group's principles for the submission of cases.

Resolution 1993/45, on the right to freedom of opinion and expression

37. This resolution is in keeping with the contents of paragraph 14 of resolution 1993/36. In its second report, the Working Group had already expressed a similar concern and it may be noted that 38 of the decisions adopted, concerning 147 persons, relate to detentions regarded as arbitrary because they were ordered as a result of lawful exercise of the right to the freedom provided for in article 19 of the Universal Declaration of Human Rights and article 19 of the International Covenant on Civil and Political Rights. Unfortunately, because of the very short period since the establishment of the mandate of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression referred to in paragraph 11 of resolution 1993/45, it has not been possible to coordinate with him more effectively.

Resolution 1993/46, on integrating the rights of women into the human rights mechanisms of the United Nations

38. Pursuant to this resolution, and to the provisions of paragraph 10 of resolution 1993/47, the statistics for this year show cases of arbitrary detention in which the victims were women. If the Commission decides to appoint a special rapporteur on violence against women, as envisaged in paragraph 6 of resolution 1993/46, the Group hopes to be able to cooperate with him or her in the most effective way.

Resolution 1993/47, on human rights and thematic procedures

39. This resolution covers various matters of interest, many of them dealt with in various paragraphs of this report, and in particular the following:

(a) List of recommendations. The Group considers that the complete annual list of general recommendations which the resolution requests from the Secretary-General should, as far as the Working Group is concerned, include the principles applicable in the consideration of cases submitted to the Working Group and its revised methods of work;

(b) Follow-up to recommendations. Paragraph 5 of resolution 1993/47 reveals the Commission's concern about the follow-up by Governments to the recommendations contained in the decisions of the Special Rapporteur or the Working Group, something which is a subject of a special recommendation in paragraph 10 of resolution 1993/36. This is the concern that also prompted the Working Group to suggest the consideration in 1993 of "improved methods of work by means of continued cooperation with Governments, so as to ensure follow-up to the recommendations made in the Group's decisions" (E/CN.4/1993/24, para. 42 (b)). For this reason, and in view of the Commission's requests in resolutions 1993/36 and 1993/47, the Working Group, through its Chairman/Rapporteur, will engage in appropriate consultations so as to suggest to the Commission at its next session, in the form of a "deliberation", a follow-up mechanism for its decisions.

Resolution 1993/48, on the consequences for the enjoyment of human rights of acts of violence committed by armed groups that spread terror among the population and by drug traffickers

40. The Commission requests special rapporteurs and working groups to continue to pay particular attention in their reports to these negative consequences. The Working Group is, of course, particularly concerned about the adverse effect that the activity of the criminal groups in question has on the effective enjoyment of human rights. Their actions especially affect the rights to life, security of person, freedom of association and assembly, freedom of opinion and expression, and even freedom of conscience. Moreover, justified fear of their actions has caused thousands of persons to go into exile, thus affecting their right to live in their own country. Of course, personal freedom is also affected, since hundreds of people are being kidnapped. The Working Group's mandate is, however, limited to cases of "detention 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" (resolution 1991/42). With regard to the content of this mandate, the Working Group adopted its Deliberations 02 and 03, which are contained in chapter II of its second report (E/CN.4/1993/24) and clearly show that the term "detention" refers to an act of the State which deprives a person of his freedom.

41. However, when acts depriving persons of their freedom are carried out by non-State or even private organized movements which use armed struggle in their political action, chiefly in circumstances governed by international humanitarian law, the Group will need to look into an appropriate procedure. But in the present state of its thinking, the Group considers that the mandate relates solely to detentions ordered or practised by the State.

Resolution 1993/63, on the situation of human rights in Cuba, resolution 1993/97, on the situation in East Timor, and resolution 1993/61, on the situation of human rights in Zaire

42. As in previous years, the Working Group has endeavoured to maintain contacts with all the rapporteurs and experts, as well as with the Secretary-General, in connection with the cases on which they have to report to the Commission on the human rights situation in the countries within their mandates. In the relevant cases the Group has considered the background information available to the experts and rapporteurs and taken it into account in its decisions.

Resolution 1993/64, on cooperation with representatives of United Nations human rights bodies

43. This resolution deals specifically with the protection of persons who have lodged complaints with, availed of themselves of the procedures of, cooperated with or provided testimony to any body in the system. The Working Group has paid special attention to this resolution, to which it attaches the greatest importance. However, it has not received any reports of reprisals against persons complaining to the Group of their situation.

Resolution 1993/70, on human rights and mass exoduses

44. The proliferation of mass, unjust, and mainly, prolonged detentions, under inhuman and unsanitary prison conditions, is naturally a cause of mass exoduses. The Working Group endorses the view of the Commission when it said that human rights violations are one of the multiple and complex factors causing mass exoduses of refugees and displaced persons, recalled that the General Assembly strongly deplores ethnic and other forms of intolerance as one of the major causes of forced migratory movements and urged States to take all necessary steps to ensure respect for human rights, especially the rights of persons belonging to minorities. In this regard, the Working Group has learned over the past year of two situations that could be considered as falling within the framework of resolution 1993/70, namely the situation of Haitian asylum seekers being held at the United States Naval Base in Guantanamo, Cuba, (case mentioned in para. 15), already resolved by the Government of the United States of America, which informed the Group that all the persons had been released and the camp had been done away with; and also the situation of Vietnamese asylum seekers held in Hong Kong, on which the Group is to take a decision at its next session.

Resolution 1993/81, on the plight of street children

45. The Group cannot but stress its full support for the assumptions on which this resolution is based, since this is one of the most serious human rights problems at the present time. Nevertheless, and perhaps because the Working Group usually deals only with cases of prolonged detention, which is not normally the case with street children, no situations of this kind have been submitted to it.

Resolution 1993/87 (I), on advisory services and the Voluntary Fund for Technical Cooperation in the Field of Human Rights

46. In this resolution the Commission requested the Working Group to include in its recommendations, whenever appropriate, proposals for specific projects to be realized under the programme of advisory services. In accordance with this request, the Working Group is at the disposal of the Centre for Human Rights in cooperating with the heads of the advisory services, more especially in proposing projects after case studies or field missions or participating in missions initiated by the Centre.


2. Revised methods of work

47. In its report to the Commission at its forty-ninth session (E/CN.4/1993/24) the Working Group expressed regret that, according to its interpretation, it was not empowered to act on its own initiative in cases of detention it might regard as arbitrary (paras. 28 and 29). It was therefore a matter of particular satisfaction to the Working Group that the Commission, in paragraph 4 of resolution 1993/36, considered "that the Working Group, within the framework of its mandate, and aiming still at objectivity, could take up cases on its own initiative".

48. On the basis of this provision, the Working Group revised its methods of work, thereby also fulfilling the request contained in paragraph 5 of resolution 1993/36, and it incorporated in the text appearing as annex IV to the report contained in document E/CN.4/1993/24, the following paragraph:

49. In order to carry out the request contained in paragraph 9 of resolution 1993/47, moreover, the following paragraph has been added in connection with the methods of work:


3. Missions

50. In resolution 1993/47, mentioned earlier, the Commission encourages Governments to invite special rapporteurs and working groups to visit their countries and to cooperate with them in their work. In resolution 1993/36, the Commission

In this regard, in its report to the Commission at its forty-ninth session the Working Group said that one of the considerations for 1993 was to carry out the first mission in situ (para. 42 (c)). Consultations are now being held with two countries, Viet Nam and China, to programme a mission consonant with its mandate (with regard to Viet Nam, see para. 16). In respect of China, the Working Group has considered several cases of alleged arbitrary detention which were reported to have occurred in that country. The decisions in respect thereof have not yet been communicated to the Government of China as the Group is of the opinion that, consistent with the spirit of cooperation in its functioning, it would be of immense value if the Government agreed to its request for a visit in order to understand better the concerns and viewpoint of China. Pursuant to contacts made by the Working Group, the Government has not yet indicated to the Group whether it intends to grant its request. The Group hopes that the Government of China will respond favourably, by the end of February 1994, failing which the Group would forthwith communicate its decisions to the Government.

51. As to resolution 1993/97, on the situation in East Timor, it should be noted that the Group regrets that so far it has not been invited to visit East Timor, but sincerely hopes that, consistent with the wish expressed by the Commission, and with its support, the Government of Indonesia will respond constructively.


4. General concerns of the Group

52. In the light of its experience, the Group's intention has been to contribute to the United Nations' constantly reiterated purpose of promoting and protecting the basic rights of all human beings. Arbitrary detentions are a permanent feature of all regimes, although more frequent and more serious in regimes of a repressive type. The Working Group thus considers that the lengthy process of concern by the Commission and by the Sub-Commission on Prevention of Discrimination and Protection of Minorities about arbitrary deprivations of freedom, which began in 1985 and led to the establishment of the Working Group and the formulation of its mandate in 1991, has been fully justified and that the reasons taken into account at that time are still fully valid.

53. The Group's mandate is of a special nature that calls for a thorough understanding by the Group of the relevant parts of all the national legislations applicable. In the Group's view the difficulties that have emerged have been solved.

54. The Group believes that its suggestion that consideration should be given in 1993 to better control over the flow and range of cases submitted for a decision, as well as an examination of the general trend in the use of arbitrary detention, has, so far as possible, largely been followed. During the year, 181 new cases have been submitted and, with the 162 cases on which a decision is pending, the total is 343. Of these, 269 have been the subject of a decision.

55. The Group has sought to comply with its mandate with discretion, objectivity and independence. The requirements of discretion and of independence have not been challenged. The Group's objectivity has been challenged on only two occasions, which cancel each other out because they are contradictory:

(a) In reply to a concern expressed by the Government of Cuba, the Group maintained in section C of "Deliberation 03" that failure to reply "does not ... imply a priori any presumption as to the veracity of the allegation made" if the Government has not cooperated;

(b) The American Association of Jurists, which the Group had the pleasure of hearing at its seventh session, stated that the Group adopted a presumption in favour of the State if the State cooperated with it, quoting five decisions which appeared in the Group's report on its second year of work. An analysis of those decisions shows that the Group did not presume that the Government's information was true; it decided on the only evidence available. The Group neither rewards a State which cooperates with the presumption of veracity nor punishes a Government that does not cooperate with a presumption of the veracity of the source's allegation. It decides only on the merits of the available evidence. With regard to 1993, the Working Group declared that the detention to be arbitrary in 88 cases, despite the fact that the Government had cooperated.

56. The Working Group welcomes the functional benefit of being able to use the adversarial procedure in taking its decisions. Nevertheless, it wishes to point to some of the difficulties that occur in receiving information from sources and in replies from Governments. The difficulties are as follows:

(a) With regard to information from sources:

Supply of insufficient and inadequate information;

Supply of information on cases that do not fall within the Group's mandate;

(b) With regard to replies from Governments:

Attempts not to cooperate with the Group;

Governments which have supplied information only after the Group has adopted a decision;

Incomplete and insufficient replies in regard to the allegations made by the source.

57. The Group notes with concern that in approximately half of the cases, Governments did not answer the communication forwarded to them, and a large number supplied incomplete information, after the established time-limit.

58. Furthermore, the Group welcomes the cooperation shown by certain Governments, not only in responding within the prescribed time-limit but also in supplying the Group with the most comprehensive information possible on cases communicated to them.

59. As to the supply of incomplete and insufficient information by sources, the receipt in recent instances of more complete information has reversed this trend, but it is essential for sources to realize that the Working Group must always remain within the terms of its mandate. The Group cannot act as a court of appeal and weigh up the evidence yet again. Only in cases in which the detention has no legal grounds (category I), in which the deprivation of freedom concerns the exercise of certain protected rights and freedoms (category II), or in which there has been a manifest violation of the guarantees contained in the international provisions relating to a fair trial (category III), and only in such cases, can the Group declare the deprivation of freedom to be arbitrary.

60. The Working Group must once more express regret at the abuse by many Governments of constitutional states of emergency. According to the report of the Special Rapporteur on the subject, in November 1993, there were declared states of emergency in 29 countries, in either all or part of their territory, and this already a feature pointed out in the Rapporteur's report on the previous year. The Group notes that a number of Governments make frequent use of states of emergency, the consequence being to diminish the normal guarantees that safeguard regular procedures, and thus seriously affect the freedom of the individual, since - on the pretext of remedying the situations invoked to declare the emergency - opposition political leaders, human rights activists, trade unionists and leaders of ethnic, religious, national or linguistic minorities are the first to be detained, often without any right to habeas corpus or with their procedural rights curtailed when they are tried for alleged crimes by courts set up under the emergency regime. The Working Group once again draws the Commission's attention to this type of abuse and, as it did last year, cites as an example of this kind of procedure the Government of Myanmar and the victim of such a situation, the well-known prisoner of conscience Aung San Sui Kyi.

61. As pointed out by the Special Rapporteur on the question of states of emergency in paragraph 14 of his report (E/CN.4/Sub.2/1993/23), there are other countries in which states of emergency have not been declared and which have and apply ordinary legislation empowering the Executive to adopt emergency measures, such as administrative detention for long periods, without the need for official proclamation of a state of emergency in order to do so. The Group has learned of cases in which "national security" decrees and other legal rules allowing for arrest with no subsequent criminal trial are invoked. These rules are a source of arbitrary detentions in which the person concerned is not entitled to due process, and this directly affects persons who have simply exercised rights recognized in international human rights treaties.

62. In 1993, as in previous years, the Group noted with concern that the cases declared arbitrary included a large number involving persons who had been deprived of their freedom for some years. Such cases were found in the following countries: Philippines (5 and 6 years, Decisions Nos. 5/1993 and 27/1993); Syrian Arab Republic (6 years and 23 years, Decisions Nos. 11/1993 and 35/1993); Libyan Arab Jamahirya (11 years, Decision No. 24/1993); Republic of Korea (6 years and 8 years, Decision No. 28/1993); Yemen (10 years, Decision No. 51/1993); Ethiopia (5 years, Decision No. 55/1993); Egypt (5 years, Decision No. 61/1993). The three latter decisions will be reproduced in the Working Group's next report.

63. Last year, the Group expressed its concern about offences which are described in vague terms. This is, in the Group's view, a violation of article 10 of the Universal Declaration and article 15 of the International Covenant on Civil and Political Rights and seriously affects something that is essential to the right to justice. Again, it has been found that widespread use is made of "treason" (with the psychological connotation of rejection to which this offence gives rise in the mind of the public, particularly in regimes which describe themselves as "nationalist") for acts that are completely unrelated to the conventional concept of acts characterized as treason. In another country, "collaboration with the enemy" was used to punish a medical orderly who attended to both nationals and foreigners at a public hospital during the Gulf War, thereby performing his duties as he should.

64. The Commission invited the Working Group "to take a position in its next report on the issue of admissibility of cases submitted to the Working Group when they are under consideration by other bodies" (resolution 1993/36, para. 7), the implicit reference being to the principle of non bis in idem, whereby there cannot be two jurisdictions for the same case at one and the same time.

65. In addition, account should be taken of the specific nature of the Group's mandate compared with the mandator of other working groups or special rapporteurs asked for information on human rights issues, depending on the topic involved. This does not happen with the Working Group on Arbitrary Detention, which is called on to report on "cases" of arbitrarily imposed detention. Accordingly, the three essential factors of identical persons, subject-matter and case, which could lead to conflicting decisions, do not apply.

66. Consequently, to meet the Commission's concerns, the Working Group considers that a distinction should be drawn between two categories of situations, depending on whether the body seized of the matter deals either with developments in the human rights situation or with individual cases of violations alleged by persons.

67. When the other body seized falls within the first category (working groups, special rapporteurs or representatives, independent experts, whether country-oriented or thematic), the non bis in idem principle does not apply.

68. When, on the other hand, the other body seized falls within the second category (Human Rights Committee in the context of the First Optional Protocol to the International Covenant on Civil and Political Rights, on the one hand, the confidential procedure under Economic and Social Council resolution 1503 (XLVIII) of 27 May 1970, on the other), the non bis in idem principle could apply.

69. To find an agreed solution, the Working Group, for the purposes of proper coordination, sent a copy of this comment to the Chairman of the Human Rights Committee and the Chairman of the Commission's Working Group on the confidential procedure, so as to be in a position to formulate a "deliberation" on the question as a whole at the Group's next session.

70. Meanwhile, the Group has requested the secretariat to verify, on receipt of each communication, whether it involves a country that is a party to the Optional Protocol and, if so, to ask the source to specify whether it wishes to submit the matter to the Committee or to the Working Group.


B. Recommendations

71. The Working Group reiterates the recommendations formulated in its previous report (E/CN.4/1993/24), since all of them are still completely valid. Comprehensive and timely information from sources and Governments is, without any doubt, the main factor in the success of the Group's work and should lead to an improvement in levels of respect for fundamental rights and, in particular, personal freedom.

72. The Working Group also appeals to all Governments which maintain states of emergency for long periods, often without respecting the requirements of article 4 of the International Covenant on Civil and Political Rights, to limit their use to cases warranted by the seriousness and the emergency character of the situation. In no event may an arrest based on emergency legislation last indefinitely, and it is particularly important that measures adopted in states of emergency should be strictly commensurate with the extent of the danger invoked. At the same time, the Working Group encourages Governments to derogate from legal rules contained in ordinary legislation which, in actual fact, present the characteristics of states of emergency, in violation of the international human rights standards.

73. Criminal law requires precision, so that the conduct which is wrongful can be clearly understood by the persons held to be liable. Vague descriptions - about which the Group expressed its concern last year - are sources of abuse and encourage arbitrariness.

74. The Working Group considers, after three years' experience, that habeas corpus is one of the most effective means to combat the practice of arbitrary detention. As such, it should be regarded not as a mere element in the right to a fair trial but, in a country governed by the rule of law, as a personal right which cannot be derogated from even in a state of emergency.

75. Accordingly, the Working Group recommends that the Commission on Human Rights should support the efforts of the Sub-Commission on Prevention of Discrimination and Protection of Minorities in this field (see document E/CN.4/1994/2-E/CN.4/Sub.2/1993/45, resolution 1993/26, para. 3) to elaborate a declaration on habeas corpus with a view to arriving at an additional protocol to the International Covenant on Civil and Political Rights. Furthermore, the advisory programmes for Governments should give habeas corpus priority consideration, so that everyone knows that, in the event of detention, there is a speedy, informal and effective judicial remedy available.

76. In the light of what is said in paragraph 62 above, the Working Group recommends that the Commission should take appropriate measures for Governments to release promptly the persons whose detention has been declared arbitrary.

77. The Working Group once again expresses concern about the shortcomings of the secretariat owing to the lack of material and financial resources. The skilled work of the staff and its commitment to the cause of human rights and to the United Nations have made it possible to mitigate some of the enormous problems that have arisen. In this regard, the Working Group regrets that, at the seventh and eighth sessions, meetings had to be cancelled because of the lack of interpretation services. The World Conference on Human Rights made a special appeal to the Organization to make up for the lack of funds. The Working Group joins in that appeal, since it is of the opinion that the cause of human rights justifies any efforts necessary.


Annex I


REVISED METHODS OF WORK AS OF DECEMBER 1993

1. The methods of work are largely based on those applied, in the light of 11 years' experience, by the Working Group on Enforced or Involuntary Disappearances, with due regard for the specific features of the Group's terms of reference under Commission on Human Rights resolution 1991/42, whereby it has the duty of informing the Commission by means of a comprehensive report (para. 5), but also of "investigating cases" (para. 2).

2. The Group takes the view that such investigation should be of an adversarial nature so as to assist it in obtaining the cooperation of the State concerned by the case considered.

3. In the opinion of the Working Group, situations of arbitrary detention, in the sense of paragraph 2 of resolution 1991/42, are those described in accordance with the principles set out in annex I of document E/CN.4/1992/20.

4. In the light of resolution 1991/42, the Working Group shall deem admissible communications received from the concerned individuals themselves or their families. Such communications may also be transmitted to the Working Group by representatives of the above-mentioned individuals as well as by Governments and intergovernmental and non-governmental organizations.

5. The communications must be submitted in writing and addressed to the secretariat giving the family name, first name and address of the sender, and (optionally) his telephone, telex and telefax numbers.

6. As far as possible, each case shall form the subject of a specific presentation indicating family name, first name and any other information making it possible to identify the person detained and all elements clarifying the legal status of the person concerned, particularly:

(a) The date, place and the forces presumed to have carried out the arrest or detention together with all other information shedding light on the circumstances in which the person was arrested or detained;

(b) The reasons given by the authorities for the arrest or detention or the offences;

(c) The relevant legislation applied to the case in point;

(d) The internal steps taken, including domestic remedies, especially approaches to the administrative and legal authorities, particularly for verification of the detention and, as appropriate, their results or the reasons why such steps were ineffective or were not taken; and

(e) A short account of the reasons why the deprivation of liberty is regarded as arbitrary.

7. In order to facilitate the Group's work, it is hoped that communications will be submitted taking into account the model questionnaire.

8. Failure to comply with all formalities set forth in paragraphs 6 and 7 shall not directly or indirectly result in the inadmissibility of the communication.

9. The cases notified shall be brought to the attention of the Government concerned by the Chairman of the Group or, if he is not available, by the Vice-Chairman, by means of a letter transmitted through the Permanent Representative to the United Nations asking the Government to reply after having carried out the appropriate inquiries so as to provide the Group with the fullest possible information.

10. The communication shall be transmitted with an indication of the deadline established for receipt of a reply. The deadline may not exceed 90 days. If the reply has not been received by the time the deadline is reached, the Working Group may, on the basis of all data compiled, take a decision.

11. The procedure known as "urgent action" may be resorted to:

(a) In cases in which there are sufficiently reliable allegations that a person is being detained arbitrarily and that the continuation of the detention constitutes a serious danger to that person's health or even life. In such cases, between the sessions of the Working Group, the Working Group authorizes its Chairman or, in his absence, the Vice-Chairman, to transmit the communication by the most rapid means to the Minister for Foreign Affairs of the country concerned, stating that this urgent action in no way prejudges the Working Group's final assessment of whether the detention is arbitrary or not;

(b) In other cases, where the detention may not constitute a danger to a person's health or life, but where the particular circumstances of the situation warrant urgent action. In such cases, between the sessions of the Working Group, the Chairman or the Vice-Chairman, in consultation with two other members of the Working Group, may also decide to transmit the communication by the most rapid means to the Minister for Foreign Affairs of the country concerned. However, during sessions, it devolves on the Working Group to take a decision whether to resort to the urgent action procedure.

12. Between the sessions of the Working Group, the Chairman may, either personally or by delegating any of the members of the Group, request an interview with the Permanent Representative to the United Nations of the country in question in order to facilitate mutual cooperation.

13. Any information supplied by the Government concerned on specific

cases shall be transmitted to the sources from which the communications were received, with a request for comments on the subject or additional information.

14. In the light of the information examined during its investigation, the Working Group shall take one of the following decisions:

(a) If the person has been released, for whatever reason, since the Working Group took up the case, the case is filed; nevertheless, the Working Group reserves the right to decide, on a case-by-case basis, whether or not the deprivation of liberty was arbitrary, notwithstanding the release of the person concerned;

(b) If the Working Group determines that it is established that the case is not one of arbitrary detention, the case is also filed;

(c) If the Working Group decides that it does not have enough information to take a decision, the case remains pending for further information;

(d) If the Working Group decides that it does not have enough information to keep the case pending, the case may be filed without further action;

(e) If the Working Group decides that the arbitrary nature of the detention is established, it shall make recommendations to the Government concerned. The recommendations shall also be brought to the attention of the Commission on Human Rights in the annual report of the Working Group to the Commission.

15. When the case under consideration concerns a country of which one of the members of the Working Group is a national, that member shall not, in principle, participate in the discussion because of the possibility of a conflict of interest.

16. The Working Group will not deal with situations of international armed conflict in so far as they are covered by the Geneva Conventions of 12 August 1949 and their Additional Protocols, particularly when the International Committee of the Red Cross (ICRC) has competence.

17. In accordance with the provisions of paragraph 4 of resolution 1993/36, the Working Group may, on its own initiative, take up cases which, in the opinion of any one of its members, might constitute arbitrary detention. If the Group is in session, the decision to communicate the case to the Government concerned shall be taken at that session. Outside the session, the Chairman, or in his absence the Vice-Chairman, may decide on transmittal of the case to the Government, provided at least three members of the Group so agree. When acting on its own initiative, the Working Group shall give preferential consideration to the thematic or geographical subjects to which the Commission on Human Rights has requested it to pay special attention.

18. The Working Group shall also communicate any decision it adopts to the Commission on Human Rights body, whether thematic or country-oriented, or to the body set up by the appropriate treaty for the purpose of proper coordination between all organs of the system.


ANNEX II


Decisions adopted by the Working Group


DECISION No. 43/1992 (TURKEY)

1. The Working Group on Arbitrary Detention, in accordance with the methods of work adopted by it, and in order to carry out its task with discretion, objectivity and independence, forwarded to the Government concerned the above-mentioned communication received by it and found to be admissible, in respect of allegations of arbitrary detention reported to have occurred.

2. The Working Group notes with appreciation the information forwarded by the Government concerned in respect of the case in question.

3. With a view to taking a decision the Working Group considers if the cases in question fall into one or more of the following three categories:

I. Cases in which the deprivation of freedom is arbitrary, as it manifestly cannot be linked to any legal basis (such as continued detention beyond the execution of the sentence or despite an amnesty act, etc.); or

II. Cases of deprivation of freedom when the facts giving rise to the prosecution or conviction concern the exercise of the rights and freedoms protected by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of Human Rights and articles 12, 18, 19, 21, 22, 25, 26 and 27 of the International Covenant on Civil and Political Rights; or

III. Cases in which non-observance of all or part of the international provisions relating to the right to a fair trial is such that it confers on the deprivation of freedom, of whatever kind, an arbitrary character.

4. In the light of the allegations made, the Working Group welcomes the cooperation of the Government of Turkey. The Group has forwarded the Government's reply to the party making the allegations but to date has not received any comments from it. The Working Group believes that it is in a position to take a decision on the facts and circumstances of the case, in the context of the allegations made and the response of the Government thereto.

5. The Working Group considers that:

(a) It has been alleged that the lawyers Murat Demir and Bedii Yaracii were detained by police agents at Ankara in Turkey, on 13 and 12 June 1991 respectively, being accused of acts covered by the "Anti-Terrorist" Act No. 3713. They have allegedly been accused of belonging to a political organization known as the "Devrimci-Sol", an illegal opposition organization. It is asserted that they have been refused the right to receive visits from their family members or lawyers.

(b) According to the allegation, there has been a violation of the rights set forth in articles 9, 10 and 20 of the Universal Declaration of Human Rights, 9, 19 and 21 of the International Covenant on Civil and Political Rights, and principles 2, 4, 11, 17, 18 and 19 of the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.

(c) The Government in question has stated that the above-mentioned persons have been detained since 13 June 1991 for having worked for the Dev-Sol terrorist organization, a decision reached by the Ankara Security Court on 28 June 1991. The Government does not say whether the decision handed down by the Court is a final sentence or a provisional detention measure; nor does it indicate the facts which make it necessary to regard the Dev-Sol group as a terrorist organization.

(d) The Turkish Act on terrorist activities contains provisions which do not require actual deeds of violence aimed at terrorizing the population, but include criminal offences consisting of expressions of opinion.

(e) Furthermore, the Government in question has failed to provide any information which could make it possible to maintain that the detainees have participated in genuine terrorist acts for which they could be tried. On the contrary, the above facts show that, apparently, they have not even been brought to trial.

(f) Article 19 of the Universal Declaration of Human Rights provides that no one may be interfered with because of his opinions and recognizes that everyone has the right to freedom of expression and opinion. Moreover, article 20 recognizes the right of everyone to freedom of peaceful assembly. Similar provisions are set forth in the International Covenant on Civil and Political Rights, which is an international instrument accepted by States and has thus to be taken into account in qualifying deprivations of freedom as arbitrary, in accordance with the mandate of the Working Group.

(g) It is clear from the above that the detained lawyers are in such a situation because they exercised the right to express their opinions freely and the right to be associated for political purposes in the political organization "Devrimci-Sol". The Working Group regards such a situation as arbitrary detention, in accordance with "Category II" of its principles applicable in the consideration of the cases submitted to it and which were recognized by the Commission on Human Rights in document E/CN.4/1992/20, which forms an integral part of this decision.

(h) The situation is aggravated by the fact that the lawyers concerned have been denied access in their place of detention to their lawyers and family members.

6. In the light of the above the Working Group decides that:

7. Consequent upon the decision of the Working Group declaring the detention of the persons named to be arbitrary, the Working Group requests the Government of Turkey to take the necessary steps to remedy the situation in order to bring it into conformity with the norms and principles incorporated in the Universal Declaration of Human Rights and in the International Covenant on Civil and Political Rights.


Adopted on 4 December 1992


DECISION No. 45/1992 (ETHIOPIA)

1. The Working Group on Arbitrary Detention, in accordance with the methods of work adopted by it, and in order to carry out its task with discretion, objectivity and independence, forwarded to the Government concerned the communication received by it and found to be admissible, in respect of allegations of arbitrary detention reported to have occurred.

2. The Working Group notes with concern that till date no information has been forwarded by the Government concerned in respect of the cases in question. With the expiration of more than ninety (90) days of the transmittal of the letter by the Working Group, it is left with no option but to proceed to render its decision in respect of each of the cases of alleged arbitrary detention brought to its knowledge.

3. (Same text as paragraph 3 of Decision No. 43/1992).

4. In the light of the allegations made, the Working Group would have welcomed the cooperation of the Government of Ethiopia. In the absence of any information from the Government, the Working Group believes that it is in a position to take a decision on the facts and circumstances of the cases, especially since the facts and allegations contained in the communication have not been challenged by the Government.

5. It appears from the facts as reported that Haile-Mariam Dagne, former Minister of Education and Ambassador to the German Democratic Republic, Vice-President of Addis Ababa University and Chairman of the Ethiopian Teachers Associations, Tiruworq Wakayu, Head of the Women's Section of the Workers Party of Ethiopia until May 1991 and the wife of former Deputy Prime Minister Teferra Wonde, and Kidane-Mariam Tadesse, Minister of Urban Development and Housing, were arrested in June 1991, following an order issued by the Provisional Government of Ethiopia which, after having taken power in May 1991, told former high Government officials to report to the new authorities. When they did so, they were reportedly arrested and detained. No specific reasons were given, then or since, either to the detainees or to their relatives who asked the authorities. Haile-Mariam Dagne, Tiruworq Wakayu and Kidane-Mariam Tadesse were said to be held by the security forces of the Ethiopian People's Revolutionary Democratic Front (EPRDF), together with over 200 other former party or local administrative officials arrested in mid-1991, in Sendafa Police College near Addis Ababa. Reportedly, the authorities stated that the detained officials were held on account of war crimes or human rights violations, and that they would receive fair trials in accordance with international standards. Some had reportedly been released in both Ethiopia and Eritrea, but no one has yet been formally charged with any offence. According to the source, there is no legal basis for these detentions. No formal state of emergency exists, yet the security forces of the EPRDF are able to arrest and detain people indefinitely without charge and without the detainee having the right to challenge the detention through any judicial or administrative procedure. The criminal courts are reported to be inoperative since May 1991. The source further reported that most of the former officials were arrested on account of their position under the former government, and thus rather on account of collective responsibility for policies or abuses by the former government than on account of individual responsibility for particular criminal offences. In February 1992, a Special Prosecutor's Office was set up to deal with the cases as the first step to the opening of judicial proceedings against detainees, and legislation was being drafted regarding the judicial proceedings themselves.

6. It appears from the facts described above that Haile-Mariam Dagne, Tiruworq Wakayu and Kidane-Mariam Tadesse have been held in detention since June 1991 without being charged. They have been deprived of their right to use the judicial procedure for appealing against their detention and of their right to a fair trial, as guaranteed by articles 9 and 10 of the Universal Declaration of Human Rights and articles 9 and 14 of the International Covenant on Civil and Political Rights. In view of the allegations made by the source, and particularly those regarding the detention of 200 other representatives of the former regime, which have not been disputed by the Ethiopian Government, the Working Group considers that the non-observance of international provisions concerning the right to a fair trial is such as to justify this decision.

7. In the light of the foregoing, the Working Group decides as follows:

8. Consequent upon the decision of the Working Group declaring the detention of Haile-Mariam Dagne, Tiruworq Wakayu and Kidane-Mariam Tadesse to be arbitrary, the Working Group requests the Government of Ethiopia to take the necessary steps to remedy the situation, so as to comply with the provisions and principles incorporated in the Universal Declaration of Human Rights and in the International Covenant on Civil and Political Rights.


Adopted on 8 December 1992


DECISION No. 46/1992 (EGYPT)

1. The Working Group on Arbitrary Detention, in accordance with the methods of work adopted by it, and in order to carry out its task with discretion, objectivity and independence, forwarded to the Government concerned the communication received by it and found to be admissible, in respect of allegations of arbitrary detention reported to have occurred.

2. The Working Group notes with appreciation the information forwarded by the Government concerned in respect of the case in question within 90 days of the transmittal of the letter by the Working Group.

3. (Same text as paragraph 3 of Decision No. 43/1992).

4. In the light of the allegations made the Working Group welcomes the cooperation of the Government of Egypt. The Working Group transmitted the reply provided by the Government to the source, but, to date, the latter has not provided the Working Group with its comments. The Working Group believes that it is in a position to take a decision on the facts and circumstances of the case, in the context of the allegations made and the response of the Government thereto.

5. It appears from the facts as reported that Ali Ahmed Gad al-Rab Ahmed, aged 22, university student, was arrested by agents of the State Security Investigation Police (SSIP) in Alexandria on 16 August 1990. Allegedly, he has been detained since then without charge or trial, under article 3 of the Emergency Law, which, with the exception of an 18-month period in 1980-1981, has been in force since 1967. After the arrest of Ali Ahmed Gad al-Rab Ahmed, a petition for his release on his behalf was reportedly submitted to the court which, on 19 September 1990, ordered his release. Allegedly, the Minister of the Interior objected. A second court decided to release him on 13 October 1990, but he was reportedly taken by the SSIP from the prison to a police station where he remained several days before being transferred back to prison with a new detention order. Three further petitions for release were reportedly submitted on Ali Ahmed Gad al-Rab Ahmed's behalf. Different courts were said to have decided his release on 3 December 1990, 22 December 1990, 7 February 1991, 28 February 1991, 23 May 1991 and 9 June 1991 on the grounds that there was insufficient basis for his detention. Each time, the Minister of the Interior allegedly objected to the court's decisions to release him.

6. In its reply, the Egyptian Government informed the Working Group that Mr. Ahmed Gad al-Rab was arrested in a furnished apartment in the Abu Qir district of Alexandria on the charge of planning, in association with others, to drug members of the Alexandria Coastguard with a view to gaining possession of their weapons. They intended to carry out this operation by using forged identity cards, stolen from an apartment in the town of Beni Suef, to which they had affixed their photographs. The Department of Public Prosecutions was notified and began an investigation, as a result of which 10 charges were brought against the accused after he had admitted his involvement therein. The Department of Public Prosecutions ordered the competent authority to place him in precautionary detention pending trial in case No. 8648-90 by the Court of Misdemeanours at Muntazah. He has not yet been sentenced, since the case was still being heard by the judicial authorities. The Government has nevertheless failed to provide the Working Group with a reply to the following specific questions regarding which the Working Group requested clarifications: whether there was a provision under Egyptian law which authorizes the Minister of the Interior, in spite of a decision by the judiciary, to maintain a person in detention; how many detention orders had been issued to the person concerned and whether they were of a judicial or an administrative nature.

7. Without expressing an opinion on whether the Emergency Law, and particularly its article 3, is in conformity with international standards, the Working Group notes that there is nothing in the Government's reply that seriously contradicts the allegations by the source. Similarly, without giving an opinion on the charges brought against the person concerned or his culpability, the Working Group is required solely to determine whether the procedure for his preventive detention involved any arbitrary deprivation of freedom. The Working Group considers that the continued detention of Mr. Ahmed Gad al-Rab Ahmed from the time of the initial decision to release him, delivered on 13 October 1990 by the Supreme State Security Court, was not in conformity with domestic law or international standards, particularly article 9 of the Universal Declaration of Human Rights and article 9, paragraph 1, of the International Covenant on Civil and Political Rights. It feels this all the more strongly in that, on four occasions the Ministry of the Interior kept this person in detention without granting him the possibility of seeking remedy. The Working Group also considers that, in the case in question, non-observance of the international provisions relating to the right to a fair trial is such that it confers on the deprivation of freedom an arbitrary character.

8. In the light of the above the Working Group decides:

9. Consequent upon the decision of the Working Group declaring the detention of Ali Ahmed Gad al-Rab Ahmed, to be arbitrary, the Working Group requests the Government of Egypt to take the necessary steps to remedy the situation, so as to comply with the provisions and principles incorporated in the Universal Declaration of Human Rights and in the International Covenant on Civil and Political Rights.


Adopted on 8 December 1992

[more2 Database 'HuriDocDa', View 'AllSymbols', Document 'arbitrary detention', Anchor '(more2)']



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