The United Nations Working Group on Arbitrary Detention (WGAD) recently released 21 opinions adopted during its August 2016 session, relating to 58 individuals in detention in 17 countries. [OHCHR Press Release] The opinions covered several topics within the WGAD’s mandate, including the treatment of minors in detention, the right to a fair trial, the rights to freedom of expression and opinion, the right to freedom of association, torture, preventive detention, discrimination, the right to freedom of movement, unlawful arrest, reprisals, and the right to dignity in relation to health-care services in detention. Some involve human rights defenders, such as Bahraini activist Zainab Al-Khawaja. Despite the fact that the WGAD did not receive many government responses to the allegations, it rendered its numerous opinions on the basis of the available information, in conformity with its working methods. See WGAD, Methods of work of the Working Group on Arbitrary Detention, UN Doc. A/HRC/33/66, 12 July, 2016, para. 15.
Analyzing the Opinions: Standards and Determinations
The WGAD’s recent opinions involve cases of alleged arbitrary detention in Argentina, Bahrain, China, Democratic Republic of the Congo, Egypt, Israel, Iran, Iran, Iraq, Jordan, Mauritania, Morocco, Myanmar, New Zealand, Somalia, Sudan, Ukraine, and Vietnam. China, Morocco, and Iran were involved in two cases each of the 21 decisions.
The WGAD examines five categories under which it may find that a State has arbitrarily deprived an individual of liberty. The 21 recent decisions cover four of the five possible grounds for finding a deprivation of liberty as arbitrary.
The WGAD regards a deprivation of liberty as arbitrary when it is impossible to invoke a legal basis justifying the liberty; when it results from the exercise of certain rights or freedoms guaranteed by the Universal Declaration of Human Rights (UDHR), or for States parties, by articles of the International Covenant on Civil and Political Rights (ICCPR), including the rights to freedom of expression, freedom of religion, freedom of association, freedom of assembly, and freedom of movement; when the total or partial non-observance of the international norms relating to the right to a fair trial is of a significant gravity; when asylum seekers, migrants, or refugees are subjected to prolonged administrative custody without review or remedy; or when it constitutes a violation of international law for reasons of discrimination. See, e.g., UN Working Group on Arbitrary Detention, Communication concerning a minor, Opinion No. 24/2016 (Israel), 23 September 2016, UN Doc. A/HRC/WGAD/2016/24, para. 3. The fourth category – the prolonged administrative detention of migrants, asylum seekers, or refugees – was not a basis for the WGAD’s findings in any of the 21 recent opinions.
In the cases involving New Zealand and Ukraine, the WGAD concluded in the former that the State had not arbitrarily deprived the applicants of liberty because there was no violation of principles of legality and, in the latter case, that it could not reach a decision due to insufficient information. See UN WGAD, Communication concerning Gary Maui Isherwood, Opinion No. 32/2016 (New Zealand), 7 September 2016, UN Doc. A/HRC/WGAD/2016, para. 64; UN WGAD, Communication concerning Maxim Sakauov, Evegniy Mefedov, Volodymyr Zibnytskyy, Pavlo Kovshov, Oleksandr Sukhanov, Vladislav Ilnytskyy, Sergey Korchynskyy, Vladislav Romanyuk, Oleksandr Dzubenko and Sergey Doljenkov and others, Opinion No. 37/2016 (Ukraine), 21 October 2016, UN Doc. A/HRC/WGAD/2016, paras. 106-108.
Additionally, in a few cases the WGAD discussed the violations of other rights under the ICCPR or UDHR not directly tied to the lawfulness of detention. In those cases, the other violations either contributed to the severity of the detention or placed the case in one of the other categories under which the WGAD may find a deprivation of liberty arbitrary; the WGAD noted that the use of torture to extract statements then used as evidence falls under the third category of severe disregard for the right to a fair trial. The Working Group also found that a deprivation of medical treatment constitutes a violation of the right to be treated with dignity while in detention. See, e.g., UN WGAD, Communication concerning Ramze Shihab Ahmed Zanoun al-Rifa’i, Opinion No. 29/2016 (Iraq), 21 October 2016, UN Doc. A/HRC/WGAD/2016, paras. 21, 25; UN WGAD, Communication concerning Mohammad Hossein Rafiee Fanood, Opinion No. 25/2016 (Islamic Republic of Iran), 7 September 2016, UN Doc. A/HRC/WGAD/2016, para. 32.
Deprivations of Liberty without a Legal Basis
Several cases discussed standards related to unlawful detention, including the International Committee of the Red Cross (ICRC) standard that the determination of the lawfulness of detention must be carried out by an independent and impartial body and that unlawful arrests are those where there is no authority to detain an individual, where the individual is not informed of the reasons for nor the charges of their arrest, and where there is no practical means to challenge the determination. See UN WGAD, Communication concerning a minor, para. 22; UN WGAD, Communication concerning Nazanin Zaghari-Racliffe, Opinion No. 28/2016 (Islamic Republic of Iran), 7 September 2016, UN Doc. A/HRC/WGAD/2016, para. 45.
The WGAD addressed deprivations of liberty that had no legal basis in two cases. In an opinion on Somalia, the WGAD found such a deprivation where the victim was not given a reason for his arrest or information about the charges against him. See UN WGAD, Communication concerning Ali Salad Mohamed, Opinion No. 38/2016 (Somalia), 7 October 2016, UN Doc. A/HRC/WGAD/2016, paras. 20-22. In a second case on Egypt, the WGAD held that the unlawful arrest of the victim, as well as fair trial concerns, amounted to an arbitrary detention. See UN WGAD, Communication concerning Ahmed Yousry Zaky, Opinion No. 42/2016 (Egypt), 21 October 2016, UN Doc. A/HRC/WGAD/2016, paras. 25-27.
Deprivations Resulting from the Exercise of Certain Rights Enshrined in the UDHR, ICCPR
In several of its recent opinions, the WGAD found arbitrary deprivations of liberty because the detention resulted from the exercise of one or more rights guaranteed in articles 7, 13, 14, 18, 19, 20, and 21 of the UDHR and articles 12, 18, 19, 21, 22, 25, 26, and 27 of the ICCPR. The WGAD has stated that everyone shall have the right to freedom of expression, which includes the freedom to “seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice,” and that arresting or detaining someone for exercising such rights is a clear violation of treaty and customary international law obligations. See, e.g., UN WGAD, Communication concerning Adil Bakheit, Al Shazali Ibrahim El Shiekh, Alhassan Kheiri, Arwa Elrabie, Imany Leyla Raye, Khalafalla Alfif Mukhtar, Khuzaini Elhadi Rajab, Midhat Afifi Hamdan, Mustafa Adam, and Nudaina Kamal, Opinion No. 34/2016 (Sudan), 7 October 2016, UN Doc. A/HRC/WGAD/2016, paras. 45-48.
Further, the WGAD shared the view of the Human Rights Committee, that “the mere fact that forms of expression are considered to be insulting to a public figure, including those exercising the highest political authority, such as head of State, is not sufficient to justify the imposition of penalties.” See UN WGAD, Communication concerning Zainab Al-Khawaja, Opinion No. 35/2016 (Bahrain), 7 October 2016, UN Doc. A/HRC/WGAD/2016, para. 18.
The WGAD found the State arbitrarily detained the victim due to the victim’s exercise of the right to freedom of expression in seven cases, involving Iran, Argentina, Bahrain, Democratic Republic of Congo, Vietnam, Egypt, and Sudan. See, e.g., UN WGAD, Communication concerning Zainab Al-Khawaja, paras. 17-20. In the case of Bahrain, the WGAD also considered the deprivations of liberty of the detainee’s child and the lack of physical and mental health care as exacerbating factors. See UN WGAD, Communication concerning Zainab Al-Khawaja, paras. 17-20.
Two other cases also addressed the exercise of the rights to freedom of association, political participation, and freedom of movement. In an opinion on Iran, the WGAD found that the deprivation of liberty was a result of the applicant exercising the rights to freedom of expression, freedom of association, and political participation. See UN WGAD, Communication concerning Mohammad Hossein Rafiee Fanood, para. 29. In an opinion on Myanmar, the WGAD found that the State arbitrarily deprived the victim of liberty due to his exercise of the right to return to his own country under Article 13 of the UDHR. See UN WGAD, Communication concerning Shin Gambira, Opinion No. 33/2016 (Myanmar), 7 September 2016, UN Doc. A/HRC/WGAD/2016, para. 33.
Deprivations Relating to the Right to Fair Trial
Several of the opinions addressed violations of international fair trial norms including holding trials in closed sessions, restricted access or no access to legal representation (including access only over the telephone), lack of justification for charges, lack of information about the reasons for an arrest, repeated sentencing for the same conduct, denial of the presumption of innocence, denial of prompt access to a judicial authority to be heard, and prolonged detention, among others. See UN WGAD, Communication concerning Mohammad Hossein Rafiee Fanood, paras. 30-31; UN WGAD, Communication concerning Nazanin Zaghari-Ratcliffe, paras. 50-51; UN WGAD, Communication concerning Xing Qingxian and Tang Zhishun, Opinion No. 30/2016 (China), 7 September 2016, UN Doc. A/HRC/WGAD/2016, paras. 23-24; UN WGAD, Communication concerning Adil Bakheit, Al Shazali Ibrahim El Shiekh, Alhassan Kheiri, Arwa Elrabie, Imany Leyla Raye, Khalafalla Alfif Mukhtar, Khuzaini Elhadi Rajab, Midhat Afifi Hamdan, Mustafa Adam, and Nudaina Kamal, Opinion No. 34/2016 (Sudan), 7 October 2016, UN Doc. A/HRC/WGAD/2016, paras. 38-40; UN WGAD, Communication concerning Ali Salad Mohamed, paras. 20-22; UN WGAD, Communication concerning Nguyen Dang Minh Man, Opinion No. 40/2016 (Viet Nam), 20 September 2016, UN Doc. A/HRC/WGAD/2016, paras. 41-42.
In nine cases, the WGAD found deprivations of liberty to be arbitrary due to violations of the right to fair trial. In two cases concerning China – involving a communication from Xing Qingxian and Tang Zhishun and another from Xia Lin – a case in Israel, a case in Vietnam, and one in Egypt, the WGAD found that non-observation of international norms relating to the right to fair trial – including lack of access to counsel, trying hundreds of defendants in one trial, and undue delay before commencing the proceedings – constituted an arbitrary deprivation. See, e.g., UN WGAD, Communication concerning Xia Lin, paras. 21-26; UN WGAD, Communication concerning Mahmoud Abdel Shakour Abou Zeid Attitallah, Opinion No. 41/2016 (Egypt), 21 October 2016, UN Doc. A/HRC/WGAD/2016, para. 29.
In two cases in Morocco – involving a communication from Hamo Hassani and another from Abdelkader Belliraj – one case in Iraq, and one case in Jordan, the WGAD concluded that violations of the right to a fair trial, which came about in part due to the use of torture – particularly in light of the victims’ inability to put forth an adequate defense, the use of a confession illegally obtained through the use of torture, and the failure of authorities to investigate credible claims of torture – amounted to arbitrary detention. See, e.g., UN WGAD, Communication concerning Ramze Shihab Ahmed Zanoun al-Rifa’i, paras. 29-32.
Deprivations Resulting from Discrimination
In an opinion on Iran, the WGAD found an unlawful and arbitrary deprivation on the grounds that there was no legal basis to justify the arrest and detention of an individual, which was motivated by discrimination against the victim’s dual national status. See UN WGAD, Communication concerning Nazanin Zaghari-Ratcliffe, para. 46. In a case involving Mauritania, the WGAD concluded there were two grounds for finding deprivations as a result of discrimination, which were first, the targeting of abolitionists of slavery and second, the detention of members of a particular ethnic group and the unequal treatment of detainees of that ethnicity. See UN WGAD, Communication concerning Biram Dah Abeid, Brahim Bilal Ramdane, and Djibril Sow, Opinion no 36/2016 (Mauritania), 21 October 2016, UN Doc. A/HRC/WGAD/2016, paras. 33-35 (French only).
Working Group on Arbitrary Detention Background
The WGAD is a special procedure under the United Nations human rights system, and it comprises five independent experts from all over the globe, who are currently Sètondji Roland Jean-Baptiste Adjovi from Benin, José Antonio Guevara Bermúdez from Mexico, Leigh Toomey from Australia, Seong-Phil Hong from the Republic of Korea, and Elina Steinerte from Latvia. [OHCHR Press Release]
The WGAD has a mandate to investigate allegations of arbitrary deprivations of liberty, to seek information from governments and organizations and receive information from individuals concerned, to act on information received via urgent appeals and communications, to conduct field missions upon the invitation of governments to understand underlying reasons for the occurrence of arbitrary deprivations of liberty, to advise on issues of general importance to prevent the practice of arbitrary deprivation of liberty, to present an annual report to the Human Rights Council, to work in cooperation with other relevant United Nations human rights mechanisms, and to carry out its mandate independently and objectively. See OHCHR, Working Group on Arbitrary Detention.