Distr.
GENERAL

E/CN.4/1995/31
21 December 1994

ENGLISH
Original: ENGLISH/FRENCH/SPANISH

COMMISSION ON HUMAN RIGHTS
Fifty-first 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 - 5
I. ACTIVITIES OF THE WORKING GROUP
6 - 26
A. Communications with Governments
7 - 12
B. Urgent appeals
13 - 14
C. Field missions
15 - 21
D. Cooperation with the Commission on Human Rights
22 - 25
E. Cooperation with non-governmental organizations
26
II. DECISIONS ADOPTED BY THE WORKING GROUP AND FOLLOW-UP THERETO
27 - 37
A. General information regarding the decisions adopted by the Working Group
27 - 28
B. Governments' reactions to decisions
29 - 31
C. Follow-up mechanism
32 - 37
III. CONCLUSIONS AND RECOMMENDATIONS
38 - 62
A. General conclusions
38 - 55
B. Recommendations
56 - 62
Annexes
I. Revised methods of work
II. 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 adopted by the State concerned. The Working Group presented its first, second and third reports (E/CN.4/1992/20, E/CN.4/1993/24 and E/CN.4/1994/27 to the Commission at its forty-eighth, forty-ninth and fiftieth sessions, respectively.

2. At its fiftieth session, the Commission adopted resolution 1994/32, entitled "Question of arbitrary detention", in which it decided to extend for a three-year period the mandate of the Working Group. In the same resolution the Commission also, inter alia, requested 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; took note 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 to further strengthen the impartiality of its work; and requested the Working Group to submit a report to the Commission, at its fifty-first session, and to make any suggestions and recommendations which would enable it to discharge its task even better, particularly in regard to ways and means of ensuring effective follow-up to its decisions, in cooperation with Governments and to continue its consultations to that end within the framework of its terms of reference.

3. In conformity with paragraph 19 of Commission resolution 1994/32, the Working Group hereby presents its fourth report to the Commission.

4. Chapter I of the report describes the activities of the Working Group since the submission of its third report to the Commission, including data on the number of communications and cases transmitted by the Working Group to Governments during 1994 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; the participation of the Group's Chairman in the meeting of special rapporteurs held in Geneva from 30 May to 1 June 1994; and the meeting with non-governmental organizations held on 28 September 1994. Chapter II 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 concerning their countries, as well as the proposal made by the Working Group concerning a follow-up procedure to its decisions, in conformity with the request made in Commission on Human Rights resolution 1994/32, and Governments' reactions to that proposal. Chapter III contains the Working Group's general conclusions and recommendations.

5. The present report also contains two annexes: annex I contains the revised methods of work of the Working Group and annex II 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 decisions adopted by the Working Group. Decisions adopted by the Working Group during its 1994 spring session, as well as several decisions adopted by the Working Group in previous sessions which, for technical reasons, were not included in the Working Group's third report to the Commission, are contained in document E/CN.4/1995/31/Add.1. The decisions adopted by the Working Group in its 1994 autumn session are contained in document E/CN.4/1995/31/Add.2. The reports prepared pursuant to the Working Group's missions to Bhutan and to Viet Nam are contained in documents E/CN.4/1995/31/Add.3 and E/CN.4/1995/31/Add.4, respectively.


I. ACTIVITIES OF THE WORKING GROUP

6. The activities described below refer to the period January to December 1994, when the present report was finalized. During this period the Working Group held three sessions in Geneva: its ninth, tenth and eleventh, from 16 to 20 May, from 26 to 30 September and from 23 November to 2 December 1994, respectively.


A. Communications with Governments

7. During the period under consideration the Working Group transmitted 36 communications containing 293 newly reported individual cases of alleged arbitrary detention (38 females and 255 males) to the following Governments (the number of individuals concerned is given in parentheses): Algeria (16); Bangladesh (2); Benin (3); Brazil (13); China (89); Colombia (1); Cuba (4); Ecuador (11); Guatemala (2); India (1); Indonesia (6); Iran (Islamic Republic of) (1); Iraq (1); Israel (1); Mali (8); Mexico (1); Morocco (18); Myanmar (4); Pakistan (3); Peru (25); Republic of Korea (13); Saudi Arabia (5); South Africa (2); Sri Lanka (37); Tajikistan (3); Tunisia (3); Turkey (4); Uzbekistan (11); and Zaire (5).

8. Out of the 29 Governments concerned, 16 provided the Working Group with information regarding all, or some of the cases transmitted to them. They were the Governments of: Algeria; Benin; China; Colombia; Cuba; Guatemala; India; Indonesia; Iraq; Israel; Morocco; Myanmar; Pakistan; Peru; Tunisia and Turkey.

9. The Governments of Brazil, the Islamic Republic of Iran, Mali, Mexico, the Republic of Korea, South Africa and Tajikistan did not provide the Working Group with any reply concerning the cases submitted to them in April 1994. With regard to the other Governments mentioned in paragraph 7 above, the 90-day deadline set by the Working Group had not yet expired at the time the present report was finalized.

10. In respect of communications transmitted prior to the period January-December 1994, the Working Group received replies from the following Governments: Bahrain; Colombia; Indonesia; Mexico; People's Democratic Republic of Korea; Peru; Syrian Arab Republic; Tunisia; and Turkey.

11. A description of the cases transmitted and the contents of the Government's reply are contained in the relevant decisions adopted by the Working Group (see addenda 1 and 2 to the present report).

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 293 individual cases sent by the Working Group to Governments during the period under consideration, 8 were based on information submitted by family members or relatives of the detained persons, 69 were based on information submitted by local or regional non-governmental organizations and 216 were based on information provided by international non-governmental organizations in consultative status with the Economic and Social Council.


B. Urgent appeals

13. During the period under consideration the Working Group transmitted 41 urgent appeals to 29 Governments. Six appeals were addressed to the Government of Ethiopia (involving 26 persons), four appeals were transmitted to China (involving 7 persons), two appeals were transmitted to each of the following Governments: Egypt (2 persons), Nigeria (2), Turkey (7) and Zaire (19), and one appeal was sent to each of the following Governments: Brazil (1); Cameroon (1); Canada (1); Comores (4); Cuba (1); Dominican Republic (2); Gabon (266); Ghana (1); Guatemala (2); Haiti (1); Israel (1); Mauritania (1); Myanmar (6); Pakistan (2); Peru (4); Republic of Korea (30); Saudi Arabia (2); Senegal (1); Sudan (6); Suriname (1); Syrian Arab Republic (8); Tajikistan (1); and Viet Nam (1). In conformity with paragraph 11 (a) of its methods of work, the Working Group, without in any way prejudging the 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 persons were reported to be, or in view of other particular circumstances, such as the existence of a court order to release the person, the Working Group also appealed to the Government to consider releasing the persons without delay.

14. The following Governments provided the Working Group with information on the situation of some or all of the persons concerned: Brazil, China, Cuba, Egypt, Ethiopia, Gabon, Ghana, Guatemala, Israel, Myanmar, Nigeria, Peru, Republic of Korea, Saudi Arabia, Senegal, Turkey and Viet Nam. In some of the cases, the Working Group was informed, either by the Government or by the source, that the persons concerned were released from detention. Such releases were reported in Brazil, Cameroon, China, Ethiopia, Mauritania, Peru, the Syrian Arab Republic and Tajikistan. 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

15. During the period under consideration the Working Group, represented by its Chairman and by two of its members, carried out field missions to Bhutan and to Viet Nam, at the invitation of the Governments concerned. The mission to Bhutan is described in addendum 3 to this report. The mission to Viet Nam is described in addendum 4 to this report. In carrying out the visits, the Working Group's task was greatly facilitated by the United Nations Development Programme (UNDP) in Bhutan and in Viet Nam. Resident Coordinators Mrs. A. Naito-Yuge (Bhutan) and Mr. R. Morey (Viet Nam), and their dedicated staff, spared no effort in assisting the Working Group with logistical support, good advice and encouragement.

16. In addition to the aforementioned, the Chairman of the Working Group addressed a letter to the Government of the Russian Federation in connection with the situation which was reported to prevail in labour camps situated in the Russian Far East, operated by the authorities of the People's Democratic Republic of Korea. The Working Group requested the Russian Federation's cooperation with a view to carrying out a visit to these camps. To date, the Russian Federation has not replied to the letter.

17. As regards the situation of Haitians held at the Guantánamo Naval Base in Cuba, it may be recalled that the Working Group, in the spring of 1993, had requested the United States authorities to facilitate a visit to that base. After having been informed that the Haitians involved were being brought to the United States, following an order to that effect issued by a United States district court judge, the Working Group decided to drop its request for a visit (E/CN.4/1994/27, para. 15). In 1994 the Working Group was informed that many Haitians and Cubans were again being held at the Guantánamo Naval Base, and the source has reiterated its suggestion that the Group carry out a visit there. The Chairman of the Working Group addressed a letter to the United States Government regarding the possibility of carrying out such a visit. While no substantive reply has so far been received from the United States Government, the source has in the meantime informed the Working Group that, due to the recent events in Haiti, it considered that the Working Group's intervention was no longer necessary. The Working Group was still seeking information with regard to the situation of Cubans held at the Guantánamo Naval Base as well as those transferred to camps in Panama.

18. Contacts which began in the course of 1993 with the Chinese authorities with a view to receiving an invitation to visit the country (see E/CN.4/1994/27, para. 50), have so far not yielded any concrete results.

19. In connection with its consideration of the case of Xanana Gusmao, the Working Group, recalling Commission on Human Rights resolution 1993/97 which urged, inter alia, the Government of Indonesia to invite thematic special rapporteurs and working groups, including the Working Group on Arbitrary Detention, to visit East Timor, requested the Government of Indonesia to permit such a visit by the Working Group in order to enable it to ascertain the facts, in cooperation with the Government, for the purpose of better understanding certain contentious issues involved in the case of Xanana Gusmao. The decision was adopted by the Working Group at its tenth session, in September 1994, and transmitted to the Government of Indonesia in November 1994 (see E/CN.4/1995/31/Add.2, Interim Decision 34/1994).

20. By letter dated 24 November 1994, addressed to the Chairman of the Working Group, the Indonesian Government reacted to the request for invitation by stating the following:

21. The Working Group considers the above as an encouraging sign on the part of the Indonesian Government, and will continue its efforts to obtain an invitation for a visit in situ.


D. Cooperation with the Commission on Human Rights

1. Coordination with thematic or country special rapporteurs and working groups

22. This year the Working Group wishes to place special emphasis on coordination issues related to in situ visits, on the basis of the following guidelines:

(a) As a rule, thematic special rapporteurs and working groups should not make visits to countries for which a special rapporteur or other similar mechanism has been designated, other than at the request, or at any rate with the consent, of the latter;

(b) In other cases, as soon as a rapporteur or group plans to approach a particular Government with a view to a possible on-the-spot visit, it should be able to contact a specially designated representative of the Centre for Human Rights in order to ensure coordination. This person should also be informed of the visits of the High Commissioner for Human Rights, so that contact can be established with the High Commissioner's office before the rapporteur or group concerned goes to a country that the High Commissioner has already visited. Such an initiative would make it possible, in particular, to circumvent the following difficulty: in one case, the Working Group on Arbitrary Detention, which had been conducting consultations for nearly eight months with a view to a visit, happened to learn that two special rapporteurs were also engaged in discussions for that purpose. Such a fragmented approach will tempt a Government either to take advantage of the fact by playing on the contradictions that always exist as to method or to relinquish any initiative on the ground that it is the subject of harassment or the victim of selectivity.

23. The Working Group would like these proposals to be discussed and acted upon at the next meeting of special rapporteurs and chairmen of working groups. The Working Group is also reflecting on the problems posed by the follow-up to in situ visits, or at any rate some of them. On this point, too, it would like to draw on the experience of other thematic mechanisms at the next meeting of special rapporteurs and chairmen of working groups.


2. Coordination with the Commission on Human Rights

24. This report, as was done for the first time in 1993, gives an account of the follow-up to Commission on Human Rights resolutions addressing recommendations to the Group.

25. These resolutions prompt the following comments:

(a) Resolution 1994/33 concerning the right to freedom of opinion and expression. The Commission expressed its concern at the number of cases of arbitrary detention ordered following the exercise of the right to freedom of opinion and expression as noted in the Group's third report. This tendency remains extremely disturbing: of the decisions adopted, 16 concerning 33 persons declared the detention to be arbitrary for reasons either wholly (30 persons) or partly (3 persons) related to violation of the freedom of opinion or expression. The Secretariat has made a start on establishing coordination between the Working Group and the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression;

(b) Resolution 1994/42 concerning staff members of the United Nations and of the specialized agencies in detention. In May 1994, the Chairman of the Working Group sent a letter to the Association for the Security and Independence of International Civil Servants expressing the Group's interest in being informed, and possibly seized, of cases of international civil servants in detention. At its eleventh session, in November-December 1994, the Group received the Vice-President of the Association, who informed it of the situation of international civil servants, and in particular of local recruits reportedly detained in a number of countries. The Group decided to give priority to studying those situations, particularly cases submitted to it, inter alia, by resorting to the urgent action procedure;

(c) Resolution 1994/45 concerning the integration of the rights of women into human rights mechanisms. This report, like last year's report to the Commission, shows (annex II - Statistics) the number of cases of arbitrary detention involving women that were dealt with by the Group. In accordance with the Commission's wishes, initial contact was established, again at the Secretariat level, between the Working Group and the recently appointed Special Rapporteur on violence against women with a view to establishing effective cooperation;

(d) Resolution 1994/46 concerning human rights and terrorism. This resolution calls upon States to take all necessary and effective measures, in conformity with international standards of human rights, to prevent, combat and eliminate terrorism and urges thematic (...) working groups to address the consequences of terrorist acts, methods and practices in their forthcoming reports to the Commission. The Working Group feels bound to draw the Commission's attention to the complexity of the matter in the light of the Group's mandate. First, the practice of hostage taking or imprisonment in so-called "peoples' prisons" carried out by movements using violence for political ends, results in deprivation of liberty. Such deprivation has per se no legal basis as it does not owe its genesis to either law or decree and its legal consequences, if any, are totally different from those resulting from arbitrary detentions carried out by States. It is de facto deprivation of liberty and nothing more. As it already indicated in its previous report to the Commission on Human Rights (E/CN.4/1994/27, paras. 40-41), the Working Group believes that deprivation of liberty of individuals by terrorist groups does not fall within its mandate. Furthermore, the Working Group notes with concern frequent attempts by Governments to use normal legislation or to have recourse to emergency or special laws and procedures to combat terrorism and thereby permit, or at least increase, the risk of arbitrary detention. Such laws, either per se or in their application, by using an extremely vague and broad definition of terrorism, bring within their fold the innocent and the suspect alike and thereby increase the risk of arbitrary detention, disproportionately reducing the level of guarantees enjoyed by ordinary persons in normal circumstances. Legitimate democratic opposition, as distinct from violent opposition, becomes a victim in the application of such laws;

(e) Resolution 1994/69 concerning advisory services and the Voluntary Fund for Technical Cooperation in the Field of Human Rights. The Commission invited the Working Group to continue to include in its recommendations, whenever appropriate, proposals for specific projects to be realized under the programme of advisory services. In the opinion of the Working Group, this matter is far more closely related to possible recommendations following in situ visits, as was the case for the first time this year, than to recommendations made pursuant to decisions on communications taken by the Group in individual cases. Bearing in mind this first experience in situ, the Working Group considers it essential to establish a minimum of coordination between multilateral and bilateral cooperation in this field. For instance, on the occasion of one of its visits, the Group discovered after the event that there were a number of bilateral assistance and legal cooperation agreements with various countries on subjects which the Group was planning to entrust to the attention of the Centre for Human Rights. This aspect of coordination might usefully be included in the agenda of the next meeting of special rapporteurs and chairmen of working groups;

(f) Resolution 1994/70 concerning cooperation with representatives of United Nations human rights bodies. The Commission requested the Working Group to continue to take urgent steps to help prevent the hampering of access to United Nations human rights procedures in any way or the occurrence of intimidation and reprisals, and also to give an account in its reports of any allegations received in this respect and action taken thereon. During the past year, the Group has not been apprised of any cases of intimidation or reprisals against individuals who had been in contact with it. However, it decided to consider this matter in greater detail at its next session, notably in connection with a case in respect of which it did not have sufficient information to be able to report to the Commission.

(g) Resolution 1994/71 concerning the situation of human rights in Cuba. The Commission recommended that the Working Group should continue to give attention to the situation in Cuba and, if appropriate, consider visiting Cuba, and also that it should cooperate fully and exchange information and findings with the Special Rapporteur on the situation in that country. On the latter point, the Group transmitted the decisions taken regarding that country to the Special Rapporteur, in accordance with the Commission's wish. On the other hand, it has no plans to visit Cuba, since the human rights situation in that country is already the subject of numerous and extensive monitoring measures by the international community, particularly the appointment of a special rapporteur (see para. 22).


E. Cooperation with non-governmental organizations

26. It may be recalled that the Working Group, in its third report to the Commission (E/CN.4/1994/27, para. 20), informed the Commission of its decision to convene, in 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 to improve the reliability of information communicated to the Group, on the one hand, and how NGOs 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, on the other. The meeting was held on 28 September 1994, during the Working Group's tenth session. The non-governmental organizations that participated were the following: Amnesty International, International PEN, International Federation for Human Rights (FIDH), the American Association of Jurists and the International Commission of Jurists. Several NGOs that were invited by the Working Group to attend the meeting regretted that, for practical reasons, they were not able to participate. They included Article XIX, Reporters sans Frontières, International Human Rights Law Group and Human Rights Watch. The major points raised during the course of the debate were the improvement of communications between the Working Group and the sources; the question of how the Working Group should deal with short-term detentions when the person concerned had been released at the time of the submission of the case to the Working Group; the possibility of examination by the Working Group of domestic law in order to determine its conformity with international standards with respect to arbitrary detention; the need to ensure a follow-up once a decision had been rendered by the Working Group; and the question of improved publicity for the Working Group's activities and decisions.


II. DECISIONS ADOPTED BY THE WORKING GROUP AND THE FOLLOW-UP THERETO


A. General information regarding the decisions adopted by the Working Group

27. At its ninth session, from 16 to 20 May 1994, the Working Group adopted 9 decisions (Decisions 1/1994 to 9/1994), concerning 22 persons in 9 countries. At its tenth session, from 26 to 30 September 1994, the Working Group adopted 25 decisions (Decisions 10/1994 to 33/1994, and Interim Decision 34/1994), concerning 51 persons in 13 countries. At its eleventh session, from 28 November to 2 December 1994, the Working Group adopted 14 decisions (Decisions 35/1994 to 48/1994), concerning 39 persons in 7 countries. Some details concerning the decisions adopted during 1994 are given in the table below. The complete texts of Decisions 1/1994 to Interim Decision 34/1994 are reproduced in addenda 1 and 2 to the present report. Decisions 35/1994 to 48/1994 will be reproduced in the next compilation of the Working Group's decisions, to be published at a later date.


Decisions adopted during 1994 by the Working group on Arbitrary Detention

Decision No.
Country
Govt's
reply
Person(s)
concerned
Decision
1/1994Syrian Arab Republic
Yes
Mustafa KhalifaArbitrary, Category III
2/1994Uzbekistan
No
Pulat AkhunovArbitrary, Category II
3/1994Morocco
Yes
Ahmed BelaichiArbitrary, Category II
4/1994Zaire
No
Kalala Mbenga Kalao and Chimanuka Ntagaya-NgaboArbitrary, Category II
5/1994Guinea-Bissau
No
Fô Na Nsofa and
4 others
Arbitrary, Category II
6/1994Bahrain
Yes
Sayed al AlawiReleased-case filed
7/1994Viet Nam
No
Doan Viet Hoat and 6 othersArbitrary, Category II
8/1994Mexico
Yes
G. R. Ortega Zurita and J.C. Reyes PotencianoReleased-cases filed
9/1994Croatia
Yes
Nenad MiskovicReleased-case filed
10/1994Tunisia
Yes
Abderrahmane
El Hani
Released-case filed
11/1994Tunisia
Yes
Moncef MarzoukArbitrary, Category II
12/1994Tunisia
Yes
Ahmed KhalaouiNot Arbitrary
13/1994Myanmar
Yes
Ma Thida and 3 othersArbitrary, Category II
14/1994Mali
No
Lamine Diabira
and 7 others
Arbitrary, Category III
15/1994South Africa
No
Nathaniel Ngakantsi and Johannes SetlaeArbitrary, Categories II and III
16/1994Israel
Yes
Sha'ban Rateb JabarinArbitrary, Category III
17/1994Peru
Yes
R.D. Briceño AriasReleased-case filed
18/1994Peru
Yes
E. Laguna VillafrancoReleased-case filed
19/1994Brazil
No
F. de Asís Pinto de Nascimento and 11 othersPending for further information
20/1994Mexico
No
J.F. Gallardo RodríguezPending for further information
21/1994Peru
No
J. Rondinel CanoArbitrary, Category III
22/1994Peru
No
L.A. Cantoral BenavidesArbitrary, Category III
23/1994Peru
No
C. Gutierrez Quispe and 3 othersArbitrary, Category III
24/1994Peru
No
C.F. Molero CocaPeding for further information
25/1994Peru
No
L.E. Quinto FachoPending for further information
26/1994Colombia
Yes
F.E. Santana Mejía and 3 othersArbitrary, Category III
27/1994Tajikistan
No
Mir Baba Mir Rahim and 2 othersArbitrary, Category II
28/1994Islamic Rep.
of Iran
No
Manouchehr KarimzadehArbitrary, Category II
29/1994Rep. of Korea
No
Lee Khun-hee and Choi-Chin-SupArbitrary, Category II
30/1994Rep. of Korea
Yes
Hwang Suk-YongArbitrary, Category II
31/1994Indonesia
No
Nuka SoleimanArbitrary, Categories II and III
32/1994Indonesia
No
Cheppy SudrajatArbitrary, Category II
33/1994Tunisia
Yes
Tawfik RajhiReleased-case filed
INTERIM 34/1994Indonesia
Yes
Xanana GusmaoPending
35/1994Algeria
Yes
Brahim TaoutiNot arbitrary
36/1994Benin
Yes
Basile Hundjo and 2 othersNot arbitrary
37/1994Turkey
Yes
Edip PolatArbitrary, Category II
38/1994Turkey
Yes
Soner OnderArbitrary, Category III
39/1994Morocco
Yes
Ali Hrach Erras and 2 othersReleased-cases filed
40/1994Morocco
Yes
Abderrahim Chaib and 13 othersReleased-cases filed
41/1994Peru
No
L.R. Huaman Morales and 3 othersPending for further information
42/1994Peru
No
T. Cahuaya FloresPending for further information
43/1994Peru
Yes
A.P. Carrillo AntayhuaPending for further information
44/1994Peru
No
A.R. Chaves and 5 othersPending for further information
45/1994Peru
No
C.M. Mochcco MuñozPending for futher information
46/1994Cuba
Yes
D. Torres RocaArbitrary, Category II
47/1994Cuba
Yes
P. de la Guardia FontArbitrary, Category III
48/1994Bhutan
Yes
Tek Nath RizalNot arbitrary

28. In keeping with its view, as expressed in its revised methods of work (E/CN.4/1994/27, annex I, 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 1994/32, in which the Commission, inter alia, 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 recommendations so that it can report thereon to the Commission". In the same spirit, the Working Group also transmitted the decisions to the sources from which the original communications were received, three weeks after the transmittal of the decisions to the Governments concerned. To that end, the Working Group further amended its methods of work to reflect the transmittal of decisions also to the sources (see annex I, para. 14 (e)).


B. Governments' reactions to decisions

29. During the period under consideration the Working Group received information from a certain number of Governments pursuant to the transmittal of decisions adopted by the Working Group with regard to cases reported to have occurred in their countries. The following Governments provided the Working Group with such information (the decision to which the information refers is given in parentheses): Cuba (12/1993), Ethiopia (45/1992, 23/1993 and 33/1993), Indonesia (16/1993, 31/1994, 32/1994, and Interim Decision 34/1994; see also para. 19 above), Iran (Islamic Republic of) (28/1994), Kuwait (59/1993), Morocco (3/1994), Niger (39/1993), Peru (42/1993), Philippines (4/1993), Sudan (45/1993), Syrian Arab Republic (10/1993, 11/1993 and 54/1993) and Viet Nam (7/1994).

30. In some of the cases the Governments informed the Working Group that the person or persons concerned by the decision had been released. This was the case of Ethiopia (with regard to Yohannes Gurmessa, Decision 23/1993 and Yahehirad Kitaw, Decision 33/1993); the Islamic Republic of Iran (Manouchehr Karimzadeh, Decision 28/1994); Morocco (Ahmed Belaichi, Decision 3/1994); Niger (Mohamed Moussa, Akoli Daouel, Moktar el Incha, Alhassane Dogo, Elias el Mahadi, Alhadji Kame and Rabdouane Mohamed, Decision 39/1993); Peru (Miguel Fernando Ruiz Conejo Márquez, Decision 42/1993); the Philippines (Jesus Salvino, Noe Andalan, Romeo Angot and Gilbert Arsenal (who had escaped from jail and whose whereabouts are unknown), Decision 4/1993); and Viet Nam (Pham Cong Canh, Pham Kim Thanh, Nguyen Quoc Minh and Huynh Xay, Decision 7/1994). The release of four persons detained in the Syrian Arab Republic: Jihad Khazem, Ibrahim Habib, Najib Atalayga (Decision 54/1993) and Mustafa Khalifa (Decision 1/1994), and of one person detained in Uzbekistan, Pulat Akhunov (Decision 2/1994), was brought to the notice of the Working Group by the source, and not by the Governments.

31. As it already noted in its previous report to the Commission on Human Rights (E/CN.4/1994/27, para. 29 (a)), the Working Group considers that the release of persons whose detention was declared by it to be arbitrary should be seen as a step in the direction recommended by the Group, i.e. bringing the situation into conformity with the norms and principles incorporated in the relevant international instruments. The Working Group again wishes to express its thanks to the above-mentioned Governments and to encourage other Governments concerned to take similar measures.


C. Follow-up mechanism

32. It may be recalled that in its previous report to the Commission (E/CN.4/1994/27, para. 39 (b)) the Working Group, responding to the concern expressed by the Commission in resolutions 1993/36 and 1993/47 about the follow-up by Governments to the recommendations contained in the decisions of the Working Group, informed the Commission that it would engage in appropriate consultations so as to be able to suggest to the Commission at its next session a follow-up mechanism for its decisions.

33. In its resolution 1994/32, by which it extended the Working Group's mandate for a three-year period, the Commission specifically requested the Working Group to make any suggestions and recommendations which would enable it to discharge its task even better, particularly in regard to ways and means of ensuring effective follow-up to its decisions, in cooperation with Governments, and to continue its consultations to that end within the framework of its terms of reference (para. 19). In pursuance of that request, the Chairman of the Working Group on 3 August 1994, addressed a letter to all Governments proposing a mechanism for a follow-up of its decisions (see para. 56 (c) below). The Working Group requested Governments to provide their comments or observations on the proposal by 31 October 1994, so that they could be taken into account in the present report.

34. To date only 13 Governments have provided the Working Group with their pertinent observations. They are the following: Angola, Argentina, Bahrain, Egypt, Mauritius, Morocco, Netherlands, Norway, Qatar, Syrian Arab Republic, Turkey, Venezuela and Viet Nam. The Government of Trinidad and Tobago acknowledged receipt of the letter.

35. The Governments of Argentina, Bahrain, Mauritius, Morocco, the Netherlands and Norway expressed support for the proposal. The Governments of Bahrain and the Netherlands, however, deemed that the three-month deadline for Governments to inform the Working Group of the steps taken by them in follow-up of the Group's recommendation was too short. Bahrain proposed that it be extended to six months. Mauritius proposed the nomination of a "special assessor" within the Working Group, who would be responsible for assessing the situation of a particular country, including whether there was a genuine need for the proclamation of a "state of emergency" allowing derogations from certain fundamental rights. He or she could be authorized by the Commission to visit any particular country for that purpose.

36. The Governments of Turkey and Venezuela felt that the follow-up proposal created some difficulties regarding the mandate and terms of reference of the Working Group and the Commission on Human Rights. Venezuela felt that the proposal could give rise to decisions being adopted by the Commission which would be of a political and, therefore, of a discriminatory nature. The Government of Viet Nam held that the establishment of any such mechanism should be subject to the consent of all Governments. Since this was a new proposal, more time should be allowed for Governments to study it carefully before they provided their final observations and comments. The Government of Egypt affirmed that the best way to guarantee the success of the Group's work within the framework of its terms of reference and to ensure the optimum response to its decisions and recommendations would be to strengthen, continue and develop its dialogue and cooperation with Governments instead of seeking to impose counter-productive measures against them. The Government of the Syrian Arab Republic felt that the Working Group's proposal fell outside the scope of the Group's mandate and comprised an unacceptable ultimatum.

37. The proposal adopted by the Working Group and transmitted to the Chairman of the Commission is contained in paragraph 56 (c) below.


III. CONCLUSIONS AND RECOMMENDATIONS


A. General conclusions

38. In its resolution 1994/32, the Commission noted with concern that 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 (para. 14).

39. Such concerns had already been expressed by the Group in its previous reports (E/CN.4/1993/24 and E/CN.4/1994/27). On the basis of the experience gained during its four years of existence, the Group can affirm that the main causes of arbitrary deprivation of liberty are those mentioned in the previous paragraph.

40. The Group notes that cases of arbitrary detention are not exclusive to repressive regimes - although there they are certainly more numerous and unjust, entail harsher conditions, afford fewer possibilities of obtaining release and carry a higher risk of being subjected to torture or enforced disappearance - but also occur under democratic regimes, especially in connection with the procedures for the admission or expulsion of aliens.

41. The Working Group therefore accords the greatest importance to all initiatives aimed at strengthening the rule of law, re-enforcing the independence of the judiciary and professionalizing the police, particularly in their knowledge of covenants, declarations and conventions, the Standard Minimum Rules for the Treatment of Prisoners, the Code of Conduct for Law Enforcement Officials and the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.

42. The advisory services of the Centre for Human Rights should attach special importance to these matters. Pursuant to the Commission's decision in paragraph 2 of its resolution 1994/69, the Working Group offers the cooperation of its members in elaborating, devising and preparing materials and implementing programmes of this kind.

43. Eighteen of the cases dealt with resulted from the existence of a state of emergency that had been officially declared, or at any rate invoked by the Government to vindicate its powers to detain individuals. According to the Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, a state of emergency was in force in 32 countries in December 1994 (as against 29 countries in 1993), to which should be added - as indicated in the 1993 report - that some countries exercise powers specific to states of emergency without a formal declaration.

44. The Working Group once again expresses its concern over the existence in many countries of special, ideologically inspired courts, operating under various designations. During 1994 the Group continued to receive communications reporting arrests justified in terms of decisions taken by courts of this kind, such as "people's courts", "revolutionary courts", "Council of War", "Supreme Court of the Armed Forces", "Supreme Court of State Security", as well as, more generally, detentions ordered by military courts which, while they do not appear to be formally prohibited by the Universal Declaration of Human Rights or by the International Covenant on Civil and Political Rights, often fail to meet the "independent and impartial" requirement laid down in article 14 of the Covenant.

45. The Universal Declaration of Human Rights states that "Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law" (art. 8), while the International Covenant on Civil and Political Rights provides that "Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful" (art. 9 (4)). This is the remedy or action of habeas corpus. Unfortunately it does not exist in all countries, thereby depriving citizens of a powerful means of defence against arbitrary detention, or at least a way of promptly remedying injury caused by unlawful or unjust imprisonment. The remedy of habeas corpus, characterized by its non-official character, urgency and ex officio action by the judge, is the best remedy against this kind of human rights violation. The Group reiterates its interest in the preparation of a declaration on the subject by the Sub-Commission on Prevention of Discrimination and Protection of Minorities, particularly regarding the non-derogable nature of habeas corpus as an inherent human right.

46. In 1994, the Group received complaints concerning 293 persons who, according to the sources, were arbitrarily detained (in 1993, 181 persons). During 1994, the Group adopted 48 decisions regarding the situation of 112 detained persons.

47. The Group is concerned by the failure of Governments to respond to its requests for information. Out of the 293 individual cases transmitted, it received information from Governments regarding 90 persons, or approximately 31 per cent of the total. The Group also regrets that, in many cases, Governments limit their replies to providing general information or merely affirming the non-existence of arbitrary detention in the country or referring to the constitutional measures preventing it from occurring, without making any direct reference to the case transmitted.

48. The sources that provided the Group with the most information were the international non-governmental organizations (74 per cent). National non-governmental organizations made submissions to the Group in only 23 per cent of cases, while families did so in 3 per cent of cases. While such intercession means that the Group is informed of the detention with quite some delay, which prevents it from taking more expeditious action, it may be noted that the quality of the information provided has improved.

49. In any event, and with a view to making the Group, its mandate and its working methods more familiar and helping families and national non-governmental organizations, the Group, under the Human Rights Fact Sheet publications service of the Centre for Human Rights, is preparing a Fact Sheet on arbitrary detention, which is due to appear next year.

50. The Working Group wishes to remind the Commission of the cases of individuals who have been declared to be unlawfully detained and who have been arbitrarily deprived of their freedom for many years (E/CN.4/1994/27, para. 62). The Group has received no information regarding their release.

51. The Working Group wishes to reiterate its concern at the imprecision with which legislation in many countries describes the conduct charged. The examples given in earlier reports were again noted in the year covered by this report (acts described by the Governments concerned as "treason", "acts hostile to a foreign State", "enemy propaganda", "terrorism", etc.). During 1994, the Group observed that there are criminal classifications under which it is not even clear whether the perpetrator of an "attack on State security" used violence or merely manifested an opinion. In this connection, the Group believes that consideration should be given to the possibility of suggesting that the competent body (the forthcoming Ninth United Nations Congress on the Prevention of Crime and the Treatment of Offenders) should make recommendations to ensure that criminal classifications established by national law are in conformity with the general principles guaranteeing that the right to the principle of restrictiveness or lawfulness is not arbitrarily disregarded as described.

52. In 1994, the Group conducted its first two in situ missions. Their results reinforced the Group's opinion concerning the usefulness of such missions for the performance of its mandate. The Working Group is the only universal international mechanism which can make visits to places of detention in order to concern itself not only with conditions of detention (a matter related to the mandate of the International Committee of the Red Cross), but also the legal status of prisoners (date and circumstances of arrest, officials involved, prisoner's appearance in court, notification of charges, remedies available to challenge detention, etc.). This interest even surprised prison officers and public servants in general in the countries visited, who apparently expected or were prepared to show the Group sanitary facilities, food, etc.

53. By reason of its mandate of "investigating cases of detention imposed arbitrarily", it was not possible for the Group to have an overall view of the situation regarding deprivation of liberty in a particular country and to make recommendations which it deemed relevant. The visits it conducted enabled it to verify the lawfulness of detentions not only on a case-by-case basis but also from a general standpoint, in relation both to normative aspects and to practical implementation. For this purpose, interviews with prisoners, on the one hand, and judges and police officers, on the other, were enormously important. Had time permitted - and, for future missions, consideration will be given to this possibility - it would also have been interesting to consult case files or attend hearings.

54. The visits afford the Governments concerned a splendid opportunity to demonstrate both respect for the rights of prisoners and progress made in this area.

55. The Group notes that, in some countries, the law provides for the possibility of individuals being tried by anonymous, or so-called "faceless", judges. This situation is especially disturbing and may serve to reduce the population's confidence in judges. The Working Group, conscious of the fact that the existence of such courts may seriously affect, inter alia, the right to personal freedom which is the object of its mandate, but at the same time understanding the need to ensure the life and physical integrity of judges and their families, hopes that this issue can be discussed with the Special Rapporteur on the Independence of the Judiciary at the next meeting of special rapporteurs and chairmen of working groups.


B. Recommendations

56. The Working Group reiterates the recommendations made in its previous reports, which remain fully applicable. Without prejudice to this fact, the Group addresses the following recommendations to the Commission on Human Rights:

(a) The Commission should consider the possibility of converting the mandate of the Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities on the question of states of emergency and respect for human rights into a mandate of the Commission;

(b) The Commission should urge the continuation of the annual meetings of special rapporteurs and chairmen of working groups, whose usefulness was demonstrated both at the World Conference on Human Rights held in Vienna in 1993 and at the first meeting held in May 1994, as provided for by the Commission in paragraph 13 of its resolution 1994/53;

(c) The Commission, when adopting the resolution on the question of arbitrary detention, should approve the procedure for following up decisions declaring a case of detention to be arbitrary. As already explained, the Group, in compliance with the request made in paragraph 19 of resolution 1994/32, drew up a proposal for follow-up on which Governments were consulted. Bearing in mind the Government replies, the Group acknowledged the point made by the Governments of Bahrain and the Netherlands that the proposed deadline for replying to the Group might be regarded as short by some Governments, and therefore modified its original proposal. Consequently, the procedure for following up the Group's decisions which is proposed to the Commission is as follows:

57. The Group also asks the Commission to make the following requests to Governments:

(a) Long-standing detainees (see para. 50) whose detention has been deemed arbitrary by the Group should be released, not only in compliance with the recommendation made by the Group in its decisions but also for humanitarian reasons;

(b) Governments which have been maintaining states of emergency in force for many years should lift them, limit their effects or review the custodial measures that affect many persons, and in particular should apply the principle of proportionality rigorously.

58. The Group recommends that the Commission should request the Sub-Commission on Prevention of Discrimination and Protection of Minorities to consider the possibility of initiating a study on the preparation of a declaration or protocol concerning the subject of habeas corpus as a human right and guarantee of the right to personal freedom, as well as respect for its non-derogability.

59. In the Working Group's opinion, the Commission might request the next meeting of special rapporteurs and chairmen of working groups to study the most appropriate coordination mechanisms for increasing the efficiency of its work and reports and programming in situ visits.

60. In the Group's view, the Commission might suggest that the competent organ (Ninth United Nations Congress on the Prevention of Crime and the Treatment of Offenders) should study declarations or recommendations designed to ensure that internal national legislation, in describing conduct warranting penal sanctions, should be of a rigour consistent with the requirements of contemporary criminal science regarding the categorization of offences.

61. The Group suggests that the Commission should request the Special Rapporteur on the independence and impartiality of the judiciary, jurors and assessors and the independence of lawyers to study the possible impact of the existence of anonymous judges on the independence of the judiciary.

62. In the Group's view the Commission might ask the Centre for Human Rights to study the possibility of including the matters referred to in paragraphs 41 and 42 in advisory services programmes.


Annex 1


REVISED METHODS OF WORK

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 terms of reference of the Working Group on Arbitrary Detention 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), and 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 and place of the arrest or detention and the forces presumed to have carried them out, 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 decisions and recommendations shall also be transmitted three weeks after their transmittal to the Government to the source from which the case was originally received, and 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, 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


STATISTICS

(Covering the period from January to December 1994. The figures given in parentheses are the corresponding figures from last year's report.)



I. CASES OF DETENTION IN WHICH THE WORKING GROUP ADOPTED A DECISION REGARDING THEIR ARBITRARY OR NOT ARBITRARY CHARACTER

A. Cases of detention declared arbitrary

Female
Male
Total
1. Cases of detention declared arbitrary falling within category I
--(1)
--(5)
--(6)
2. Cases of detention declared arbitrary falling within category II (including one case of a person who was released)
1(10)
29(107)
30(117)
3. Cases of detention declared arbitrary falling within category III (including one case of a person who was released)
--
19(81)
19(81)
4. Cases of detention declared arbitrary falling within categories II and III
--(2)
3(24)
3(26)
Total number of cases of detention declared arbitrary
1(13)
51(217)
52(230)

B. Cases of detention declared not arbitrary
--
6(1)
6(1)

II. CASES WHICH THE WORKING GROUP DECIDED TO FILE
Cases filed because of the person's release, in which the Working Group deemed there were no special circumstances requiring it to consider the character of the detention
1(7)
24(31)
25(38)


III. CASES PENDING
A. Cases which the Working Group decided to keep pending for further information
4(--)
25(5)
29(5)
B. Cases transmitted to Governments on which the Working Group has not yet taken any decision
38(9)
177(45)
215(59)
Total number of cases dealt with by the Working Group during the period January to December 1994
45(32)
334(307)
379(339)



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