Human Rights Council Holds Interactive Dialogue with the Working Group on Arbitrary Detention and Starts Interactive Dialogue with the Independent Expert on the Enjoyment of All Human Rights by Older Persons

MORNING

The Human Rights Council this morning held an interactive dialogue with the Working Group on arbitrary detention and started an interactive dialogue with the Independent Expert on the enjoyment of all human rights by older persons.

Elina Steinerte, Member of the Working Group on Arbitrary Detention, said the Working Group had adopted 85 opinions concerning the detention of 175 persons in 42 countries; and transmitted urgent appeals, letters of allegation and other letters to Governments and other parties concerning at least 682 identified individuals. States informed the Working Group that they had taken measures to remedy the situations of detainees and, in several cases, the detainees were released. The Working Group called upon all parties to provide timely and substantiated responses to communications, as well as comprehensive information on the implementation of the Working Group’s opinions. It called on States to take measures to prevent all acts of intimidation or reprisal against those who had cooperated with the Working Group.

Ms. Steinerte spoke on the Working Group’s visit to Maldives and Maldives spoke as a country concerned.

In the ensuing discussion, some speakers noted rising numbers of arbitrary detentions and reprisals faced by persons who cooperated with the Working Group. Several speakers called on States to keep systematic inventories of prisoners, defend fair trial rights, put an end to arbitrary and secret detention, and hold those responsible accountable. They called on States to fully cooperate with the Working Group and provide it with more resources and information so that it could fulfil its mandate. Some speakers said that communications from the Working Group did not contain detailed information and were not substantiated, and that the Working Group had not sufficiently considered information submitted to it by concerned States. They called on the Working Group to consider information submitted to it objectively and avoid the politicisation of cases.

Speaking in the discussion were the European Union, Poland on behalf of a group of countries, Latvia on behalf of the Nordic-Baltic countries, France, Egypt, Afghanistan, Morocco, Bahrain, Luxembourg, Costa Rica, Cuba, Ireland, Iraq, Venezuela, South Africa, Russian Federation, China, Netherlands, Armenia, Nigeria, Cameroon, United States, Indonesia, United Kingdom, Pakistan, Benin, Belarus, Ukraine, Yemen, Tanzania, Belgium, Greece, Botswana, Malawi, Organization of Islamic Cooperation, Iran, Cambodia, Rwanda, Tunisia, and Kuwait.

Also speaking was the Burundi Independent National Commission for Human Rights, as well as the following non-governmental organizations: International Federation of Journalists, Freedom Now, Lawyers' Rights Watch Canada, Right Livelihood Award Foundation, Al-Haq, Law in the Service of Man, CIVICUS - World Alliance for Citizen Participation, Freedom House, Comisión Mexicana de Defensa y Promoción de los Derechos Humanos, Asociación Civil, Helsinki Foundation for Human Rights, and Defence for Children International.

Following this discussion, the Council began its interactive dialogue with the Independent Expert on the enjoyment of all human rights by older persons, Claudia Mahler.

Ms. Mahler said that her thematic report examined the human rights of older persons deprived of liberty in three specific situations, including situations when older persons committed legal or criminal offenses; when they were detained due to their migration status; and when they were under the control and supervision of institutions, caregiving arrangements, or under legal guardianship. States needed to protect and respect the human rights of older persons, and ensure they were treated with dignity during their detention. Discriminatory laws, policies, and practices hindered the right of older persons to personal liberty.

She spoke of her country visit to Finland. Finland spoke as a country concerned.

In the ensuing discussion, some speakers said many older persons suffered from discrimination, and highlighted that they all had a right to live a life of dignity, with full and equal participation. All forms of age-based discrimination were denounced. Greater longevity required countries to adapt their policies with regard to older persons. Stereotypes should be broken, and greater respect be given towards the autonomy, independence, and well-being of older persons. There was a need for a binding international framework to protect their rights. All Governments needed to make the necessary legislative changes to support older persons and ensure their rights were fully protected.

Speaking in the discussion were the European Union, Brazil on behalf of a group of countries, State of Palestine on behalf of the Group of Arab States, Côte d'Ivoire on behalf of the Group of African States, Argentina on behalf of a group of countries, Saudi Arabia on behalf of the Gulf Cooperation Council, Sovereign Order of Malta, Qatar, Libya, Israel, Djibouti, Egypt, France, Slovenia, Senegal, Ecuador, Costa Rica, and India.

The webcast of the Human Rights Council meetings can be found here. All meeting summaries can be found here. Documents and reports related to the Human Rights Council’s fifty-first regular session can be found here.

The next meeting of the Council will be at 3 p.m. this afternoon when it will conclude its interactive discussion on the report of the Independent Expert on the enjoyment of all human rights by older persons. It will then hold an interactive dialogue with the Independent Expert on the promotion of a democratic and equitable international order.

Interactive Dialogue with the Working Group on Arbitrary Detention

Reports

The Council had before it the report of the Working Group on arbitrary detention (A/HRC/51/29) and the report on its visit to Maldives (A/HRC/51/29/Add.1).

Presentation of Reports

ELINA STEINERTE, Member of the Working Group on Arbitrary Detention, said the Working Group had adopted 85 opinions concerning the detention of 175 persons in 42 countries; and transmitted urgent appeals, letters of allegation and other letters to Governments and other parties concerning at least 682 identified individuals. States informed the Working Group that they had taken measures to remedy the situations of detainees and, in several cases, the detainees were released. In 2021, concerned States provided timely responses in approximately 53 per cent of cases. The response rate for the follow-up procedure had decreased. The Working Group called upon all parties to provide timely and substantiated responses to communications, as well as comprehensive information on the implementation of the Working Group’s opinions. It called on States to take measures to prevent all acts of intimidation or reprisal against those who had cooperated with the Working Group.

The Working Group had produced a joint study on secret detention in the context of counter terrorism. It also aimed to follow up on its previous annual report and address the phenomenon of forcible removals, extraditions or deportations of individuals from one State to another. Such practices inherently violated international human rights law and led to arbitrary deprivation of liberty. The Working Group called on all States to refrain from forcible transfers and secret detention.

The Méndez Principles proposed concrete guidance on conducting effective questioning as part of the investigation or intelligence-gathering process with a view to gathering accurate and reliable information, rather than a confession. The Working Group welcomed the Méndez Principles and invited all States to give them due consideration in order to enhance their effective implementation.

Older persons could be deprived of their liberty in the criminal justice context as well as in migration proceedings or in health care and social care contexts. Owing to their age, older persons could be in situations of multiple and intersecting vulnerabilities. Consequently, adaptations to ensure the implementation of their essential rights were often required. The Working Group called upon all States to explicitly acknowledge the vulnerability of older persons and to ensure that the applicable policies provide effective safeguards against their arbitrary detention.

In 2021, the Working Group resumed it country visits by carrying out a visit to Maldives. The Working Group identified positive developments in Maldives, including the ratification of international human rights instruments; the work of the Human Rights Commission; reform of the Maldives Police Service; initiatives to address past human rights violations; and remote court hearings. However, there were challenges in the criminal justice system, such as the large number of persons held, and the excessive length of pretrial detention. There were also undue delays in criminal proceedings, overcrowding in most places of detention, and a punitive approach to drug offences. The Working Group also expressed concern about detention as part of counter-terrorism measures. Migrant workers in detention had limited rights, including in accessing justice. Further, the provision of care for people with psychosocial disabilities, older persons and children was severely underfunded. The Working Group encouraged Maldives to become a party to several human rights instruments and to adopt specific practices that provided greater protection against arbitrary detention.

The Working Group called for increased cooperation from States, especially in relation to responding to regular and other communications, by reporting through the follow-up procedure on the implementation of the Working Group’s opinions and by responding positively to requests for country visits.

Statement by Country Concerned

Maldives, speaking as a country concerned, said Maldives was committed to its international human rights obligations, and to honouring its commitments, and had renewed its standing invitation to all special mechanisms in 2018. The constitution of Maldives contained guidelines to eliminate arbitrary detention, and the Government had been working vigorously to improve detention conditions, and had made significant progress in addressing the deficiencies. A specialised committee had been set up to ensure the implementation of recommendations. The Government shared the Working Group’s concern on overcrowding in prisons, which was a continuing challenge, and agreed with the suggestions of the Working Group. It had issued revised prosecution directions mandating a judicial review of the detention of persons every 30 days. Special units for women and those with special needs would be constructed.

The Government was committed to ensuring a decrease in overcrowding, including by a decrease in pre-trial detention, as well as providing vocational training to inmates. The Government noted the Working Group’s concerns, and work was underway to improve the situation and tackle the issue through a legal framework. The Government prioritised safeguarding children and provided the best care in line with its international and national commitments, aiming to protect the rights of those seeking rehabilitation. The Government remained resolute and continued to make efforts, but also faced the challenges of the lack of financial resources and trained officials, which impeded the speed of its progress, but remained steadfast in implementing the recommendations made by the Working Group as presented today.

Discussion

Some speakers presented national provisions implemented to prevent arbitrary detention and protect the human rights of detainees. Some said the practice of arbitrary detention was ongoing, and it affected a wide range of people. Victims were denied family visits, and subjected to torture and ill-treatment.

Persons who submitted information to the Working Group needed to be protected from reprisals, some speakers said. They called on States to keep systematic inventories of prisoners, defend fair trial rights, put an end to arbitrary and secret detention, and hold those responsible accountable. Arbitrary detention was a serious abuse of human rights. Some speakers expressed serious concerns about the arbitrary detention of older persons and human rights defenders. Detention practices needed to respect the Méndez Principles. Several speakers welcomed that the Working Group’s country visits had resumed, and called on States to fully cooperate with it and provide it with more resources and information so that it could fulfil its mandate.

One speaker rejected the Working Group’s findings related to anti-drug cases, and said that the Working Group had failed to cross-check information on this issue. Some speakers said that the information used in the report was selective and did not consider information submitted by concerned States. They called on the Working Group to consider information submitted to it objectively and avoid the politicisation of cases. Special Procedures should not be used to address issues not related to human rights.

Interim Remarks

ELINA STEINERTE, Member of the Working Group on Arbitrary Detention, responding to the intervention by Maldives, said the Working Group welcomed the true commitment by the Government of Maldives to its human rights initiatives, and the experience of the Working Group showed that this was meaningful and true, as it had carried out a visit at very short notice, and had received access to all areas that it had requested to visit. The acceptance of the recommendations was further testament to the commitment of the Government, and the Working Group stood ready to assist in the implementation of the recommendations.

The Working Group noted with grave concern that it continued to receive information about reprisals suffered by individuals who had been subject to an urgent appeal or opinion or whose cases were under investigation by the Working Group, and called upon all States to cease such actions immediately.

Concerning how allegations received were treated, the Working Group was the only international human rights mechanism with truly universal coverage, in that anyone, from anywhere, could submit allegations of arbitrary detention to the Working Group. This was a tremendous responsibility, which the Working Group took with great respect. It never solicited submissions, but accepted all submissions, treating them as allegations, after which it invited the State or States to engage with the Working Group. However, as the Working Group noted with deep regret in the present report, many States did not avail themselves of this opportunity to address the allegations raised, and of those who did, many did not provide a substantive response. The Working Group called upon all States to engage with the Working Group in good faith and in detail, and to answer all issues raised.

Discussion

Continuing the discussion, some speakers addressed specific cases of arbitrary detention, and presented national policies and measures to prevent the practice. One speaker said arbitrary detention was used by authoritarian regimes and occupying powers to silence opposition. Some speakers noted rising numbers of arbitrary detentions and reprisals faced by persons who cooperated with the Working Group. They also raised concerns about the arbitrary detention of older persons; children; journalists; human rights defenders; political opponents; peaceful protesters; persons with disabilities; and lesbian, gay, bisexual, transgender and intersex persons.

Legal safeguards had a crucial role to play in preventing arbitrary detention. All persons should be presumed innocent until proven guilty, and all States needed to ensure procedural safeguards. Regular visits of places of detention were needed to ensure that these facilities upheld international human rights standards. Speakers called for the immediate release of all persons subjected to arbitrary detention. States also needed to protect persons who cooperated with the Working Group from reprisals. The Working Group needed to be provided with appropriate resources to fulfil its mandate.

Some speakers said that communications from the Working Group did not contain detailed information and were not substantiated, and that the Working Group had not sufficiently considered information submitted to it by concerned States. The speakers called on the Working Group to be objective in investigating cases.

Concluding Remarks

ELINA STEINERTE,Member of the Working Group on Arbitrary Detention, in concluding remarks, said that she appreciated Botswana’s cooperation with the Working Group throughout its country visit. She also appreciated Tunisia’s invitation to the Working Group to conduct a country visit in 2023. The Working Group’s study on drug policies found that such policies often led to arbitrary detention. The Working Group thanked States for their cooperation on incorporating human rights in drug policies.

All secret detention was de facto arbitrary detention. The Working Group called on States to prevent this practice. The Working Group also called on States to reconsider the detention of all migrants, and to implement policies to address the needs of older persons in detention. Ms. Steinerte said legal safeguards had an important role to play in eliminating arbitrary detention and welcomed the implementation of the Mendez Principles.

Ms. Steinerte highlighted the commitment of the Working Group to continue to implement its mandate during the COVID-19 pandemic. It had made numerous engagements with States and regional stakeholders aimed at preventing arbitrary detention. The Working Group encouraged States to implement its recommendations on all thematic issues presented in its report, and to encourage the meaningful participation of civil society. It further called on States to cooperate with country visit requests and with the Working Group’s follow-up procedures. Finally, the Working Group called on Member States to provide it with the resources that it required to fulfil its mandate.

FEDERICO VILLEGAS, President of the Council, said that the Working Group was one of the oldest mechanisms of the Council, and its continued work highlighted that arbitrary detention was a major concern of the international community.

Interactive Dialogue with the Independent Expert on the Enjoyment of All Human Rights by Older Persons

Reports

The Council has before it the report of the Independent Expert on the enjoyment of all human rights by older persons (A/HRC/51/27), as well as her report (A/HRC/51/27/Add.1) on her visit to Finland, as well as comments (A/HRC/51/27/Add.2) by the State, and a corrigendum (A/HRC/51/27/Add.1.corr1) thereto.

Presentation of Reports

CLAUDIA MAHLER, Independent Expert on the enjoyment of all human rights by older persons, said her thematic report examined the human rights of older persons deprived of liberty in three specific situations under which States had responsibilities under international human rights law, including situations when older persons committed legal or criminal offenses; when they were detained due to their migration status; and when they were under the control and supervision of institutions, caregiving arrangements, or under legal guardianship in the context of care.

The right to personal liberty was a core human right in older age. In the context of criminal justice, States must protect and respect the human rights of older persons, and ensure they were treated with dignity during their detention, and that their specific needs with respect to their age, health, and disability status were taken into consideration. Ageist attitudes were persistent worldwide, leading to discriminatory laws, policies, and practices that hindered the right of older persons to personal liberty. Given the absence of an international comprehensive human rights instrument on older persons, national, legal and policy frameworks failed to effectively address their specific needs.

In the context of her country visit to Finland, Ms. Mahler said Finland had a comprehensive social protection system, with care and social services currently undergoing major reforms, with which the Government could adjust the legislation in the areas of legal capacity, health, and social care, and embrace the paradigm shift to see older persons as rights holders. The goals for the future should be the inclusion of the diversity of older persons and a person-centred approach. Despite all the positive aspects, an urgent need for legal safeguards for services for older persons in health and social services remained. To provide better overall protection to older persons and in the absence of a specific convention, older age and a life cycle approach should be mainstreamed in all human rights themes related to gender, indigenous people, persons belonging to national or ethnic, religious, and linguistic minorities, violence against women, business and human rights, disabilities, refugees and internally displaced persons.

Statement by Country Concerned

Finland, speaking as a country concerned, said it highly valued the work of the Independent Expert and welcomed her visit to Finland. The visit had allowed for an important exchange of opinions regarding the protection of the rights of older persons in Finland. The recommendations of the Expert would be considered carefully and transparently.

Protecting the rights of older people was a priority in Finland. Older persons’ economic, social and health status was vulnerable, and Finland supported their access to social services and the social protection system, and their inclusion in society. The State took note of the need to consider the cultural diversity of older persons, and to strengthen the right to self-determination of older persons by improving legal frameworks. New technologies helped to ensure the protection of the rights of older persons. Finland supported the work of the Independent Expert and called for the renewal of the mandate.

National Human Rights Institution of Finland said that it aimed to protect the rights of older people, and worked to combat ageism by influencing attitudes and perceptions related to aging. The report and its recommendations would have an impact on the rights of older persons in Finland. The Independent Expert was congratulated on her efforts to promote stronger international standards, and on her cooperation with the United Nations Special Rapporteur on the rights of persons with disabilities. The Independent Expert covered a wide range of issues very relevant for the fulfilment of the rights of older persons in Finland, including the marginalising effect of digitalisation, and the abuse of older persons. However, she also saw the strengths of Finnish institutions. Finland would widely distribute the report, and there would be follow-up to the recommendations made, in cooperation with the Finnish Government.

Discussion

In the ensuing discussion, some speakers said many older persons suffered from discrimination, and highlighted that they all had a right to live a life of dignity, with full and equal participation. All forms of age-based discrimination were denounced. Multiple and intersecting pools of discrimination remained a matter of particular concern. Greater longevity required countries to adapt their policies with regard to older persons. The human dimensions of the rights of older persons should be respected, not only through a sense of inter-generational solidarity, but through the commitment to leave no one behind. The demands posed by ageing should be addressed in a comprehensive manner, and the United Nations should help the world advance towards ageism-free societies. Stereotypes should be broken, and greater respect be given towards the autonomy, independence, and well-being of older persons.

The rights of older persons in detention should be respected, and their status be taken into account. Detention facilities should take into account the specific needs of older persons. The challenges related to migration, climate change and the lack of public policies could undermine the human rights of older persons. There was a need for a binding international framework to protect their rights. The international community should recognise and codify the right to liberty of older persons, and prohibit traditional, cultural, social and religious practices leading to the deprivation of their liberty, all forms of which should be strictly prohibited. Older persons were essential components of society, and should be allowed to continue their normal life as long as possible so that they could continue to contribute to their society. More attention should be paid to their interests, promoting their empowerment on the basis of international human rights commitments.

Older persons faced more challenges and were more vulnerable to disease and crises than other persons, some speakers said. The report focused attention on the risks facing them. Ageism and such discrimination could have harmful discriminatory impacts, reinforced by policies or laws, which often remained hidden, and beyond legislative frameworks. Poor treatment and violence could be an issue which required greater attention, and the specific needs of older persons must be taken into account in a multi-sectoral manner. Taking cognisance of the growing need to support an increasing group of society, all Governments needed to make the necessary legislative changes to support older persons and ensure their rights were fully protected.

Link: https://www.ungeneva.org/en/news-media/meeting-summary/2022/09/morning-human-rights-council-holds-interactive-dialogue-working