About arbitrary detention

According to resolution 1997/50 of the former Commission on Human Rights, the Working Group is entrusted with the task to investigate all cases involving ‘deprivation of liberty’ imposed arbitrarily. The mandate of the Working Group relates to the protection of individuals against arbitrary deprivation of liberty in all its forms, and its mandate extends to deprivation of liberty either before, during or after the trial, as well as to deprivation of liberty in the absence of any kind of trial (administrative detention).

Deprivation of personal liberty occurs whenever a person is being held without his or her free consent. The Working Group has stated that whether a person is deprived of liberty is a question of fact: if the person in question is unable to leave at will, the safeguards which are in place to guard against arbitrary detention must be observed.

Definition of arbitrary detention

The notion of ‘arbitrary’ includes both the requirement that a particular form of deprivation of liberty is taken in accordance with the applicable law and procedure and that it is proportional to the aim sought, reasonable and necessary. ‘Arbitrariness’ is not to be equated with ‘against the law’, but must be interpreted more broadly to include elements of inappropriateness, injustice, lack of predictability and due process of law.

To enable it to carry out its tasks, the Working Group has adopted specific criteria applicable in the consideration of cases submitted to it. Consequently, according to the Working Group, deprivation of liberty is arbitrary if a case falls into one of the following five categories:

Category I: When it is clearly impossible to invoke any legal basis justifying the deprivation of liberty (as when a person is kept in detention after the completion of their sentence or despite an amnesty law applicable to them);

Category II: When the deprivation of liberty results from the exercise of the rights or freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22, 25, 26 and 27 of the International Covenant on Civil and Political Rights;

Category III: When the total or partial non-observance of the international norms relating to the right to a fair trial, spelled out in the Universal Declaration of Human Rights and in the relevant international instruments accepted by the States concerned, is of such gravity as to give the deprivation of liberty an arbitrary character.

Category IV: When asylum seekers, immigrants or refugees are subjected to prolonged administrative custody without the possibility of administrative or judicial review or remedy; and

Category V: When the deprivation of liberty constitutes a violation of international law for reasons of discrimination based on birth; national, ethnic or social origin; language; religion; economic condition; political or other opinion; gender; sexual orientation; or disability or other status, and which aims towards or can result in ignoring the equality of human rights.