The 57th Session of the Human Rights Council 

9 September - 11 October 2024

Item 3: Interactive Dialogue with the Chair-Rapporteur of the Working Group on Arbitrary Detention

17 September 2024

By Mildred Asiimwe | GICJ

Executive Summary

On 17 September 2024, the 14th meeting of the 57th Regular Session of the Human Rights Council considered the report of Dr Matthew Gillett, Chair-Rapporteur of the Working Group on Arbitrary Detention. 

Dr Gillett opened the dialogue by presenting the findings from visits to the Bahamas and Mexico. The report focused on the positive steps taken by the two countries to address Arbitrary Detention, information from interviews between members of the Working Group and Detained persons, points of concern, and recommendations to the Governments of Mexico and the Bahamas.  

Dr Gillett reported that in 2023, the Working Group adopted 77 opinions concerning the detention of 173 persons in 39 countries, transmitted 71 urgent appeals to 28 governments and other actors, and 111 allegation letters and other letters to 56 governments and other actors.

He noted that these communications concerned at least 354 identified individuals. The report highlighted that since 2023, 38 individuals who were the subject of the Working Group’s opinions had been released, representing a 65% rise from 2022. The Working Group expressed gratitude to the governments that released detainees subject to its opinions. However, he noted the Group’s concern over the decline in response rates from States from 48% in 2022 to 40% in 2023.  The Working Group received follow-up information in approximately 69% of cases in which they adopted opinions.

Dr Gillet called on all parties to continue providing comprehensive information on the implementation of the Working Group’s opinions, including on appropriate remedies and reparations to victims of arbitrary detention. He recalled the Human Rights Council resolutions 12/22 and 24/24, which urge all States to prevent and refrain from all forms of arbitrary detention and denial of the right to liberty. 

Background

The Working Group on Arbitrary Detention was established by the former Commission on Human Rights in its resolution 1991/42. Its mandate aims to guarantee the protection of the right to life and physical integrity, religious intolerance, and other rights. 

The Working Group is composed of five independent experts appointed by the Human Rights Council and holds three sessions per year: one in April, one in August and one in November. Members of the Working Group elect their Bureau every year, which is composed of the Chair-Rapporteur, Vice Chair on Communications and Vice Chair on Follow-up. Dr Gillett was appointed Chair-Rapporteur in April 2022, while the mandate of the Working Group was extended by Human Rights Council resolution 51/8 on 6 October 2022. The mandate of the Working Group has been renewed by the Council every three years since 2006. 

Report on the Working Group’s visit to Mexico

Dr Gillett reported that the Working Group visited Mexico from 18 to 29 September 2023, where they visited four federal and 11 state and municipal facilities, and interviewed 173 persons in detention.  

The Group commended Mexico for the following positive steps in addressing Arbitrary Detention:  

• Since 2008, there has been a transition to an adversarial and human rights-centred criminal justice model.
• Improvements in 2016 under the National Criminal Enforcement Act.
• The introduction of a national register of arrests and detentions. 
• Legislation amendments are needed to limit the use of military courts and the functioning of the national and state human rights commissions.
• Creation of a national mechanism for the prevention of torture. 

However, the Working Group noted several issues of concern, including: 

• Use of preventive custody without criminal charges.
• Mandatory imposition of pre-trial detention.
• Militarisation of public security.
• Excessive force during arrests.
• Lack of access to qualified legal representation, including cases involving juveniles. 
• Use of summary trial procedures and pressure on the accused to plead guilty.
• Punitive drug policies.
• Attacks on judicial independents.
• Lack of proper care for persons with psycho-social disabilities who are declared exempt from criminal liability. 

Dr Gillett expressed appreciation to the Government of Mexico for their cooperation throughout the visit and conveyed the Working Group’s willingness to continue constructive dialogue on the issues mentioned above.

Report of the Working Group’s Visit to the Bahamas

The Working Group visited the Bahamas in November 2023. They announced and unannounced visits to 10 facilities and interviewed 134 persons deprived of liberty. The Working Group commended the government of the Bahamas for the several positive steps made in addressing Arbitrary Detention, including:  

• The ratification of core international human rights treaties and invitations to all special procedures. 
• The Tabling of a bill to introduce the office of the Ombudsman in 2023. 
• The passing of the Mental Health Act.
• The establishment of a Parliamentary Human Rights Committee
• The admission of persons in need of assisted living to State care institutions on a voluntary basis. 

The Working Group noted with concern the following challenges:

• Continued arrests without warrants.
• Lack of timely judicial oversight of detention and allegations of violence against detainees.
• Shortcomings of bail systems.
• The right to legal assistance is limited by the financial means of accused persons. 
• Conditions of detention don’t meet international standards; pretrial detainees are often held together with sentenced people.
• Delays in criminal proceedings.

The Working Group reported specific concerns over children and juvenile justice where the age of criminal liability is not in line with international standards, children can’t access government legal aid, and those in detention can’t access regular educational and family visits.

On Migration in the Bahamas, the Working Group noted with concern the barriers to legal representation interpretation, consular assistance and access to asylum procedures, and lack of community-based services for persons with psychosocial disabilities, which has resulted in individuals remaining institutionalised.

Dr Gillett welcomed invitations from Australia and the Republic of Korea to visit in 2025 and several other countries. In addition, he mentioned that the Working Group faced challenges of backlog and adverse effects from the UN financial crisis and urged States to continue to support the Group’s work to ensure adequate human resources to enable them to exercise their mandate. 

In conclusion, Dr Gillett reiterated the UN High Commissioner for Human Rights call on 4 January 2023 to end arbitrary detention once and for all. He called on States to remedy situations for all individuals arbitrarily detained without delay, including ensuring the release and enforceable right to compensation. 

The Delegate of Bahamas expressed gratitude for the Working Group’s report and welcomed the group’s positive report on steps taken by her government to end arbitrary detention. She further clarified that the Bahamas Government has implemented several mechanisms to address arbitrary detention. The first is through the Bahamas Evidence Act,  which prohibits the admission of evidence given under duress and police interviews with suspects are recorded to ensure transparency. Second, though guaranteeing that convictions in the Bahamas are based on confessions and collaborating, strong and cogent evidence like surveillance footage from homes and government-enabled CCTV. The courts have no backlog, and courts clear their calendars of appeals promptly and have been recognised by the Privy Council.  

As per the Working Group’s advice, the Bahamas government has introduced the following reforms: the Asylum Bill, the Immigration Bill, the scope of offences for which magistrates grant bail, the establishment of the implementation committee to ensure that detention regulations meet international standards, the introduction of ankle monitors for those awaiting trial, and the completion of the 2023 Immigration detention centres. 

To address the health challenges, the Government of the Bahamas established new health facilities in some detention centres and is upgrading the Department of Correctional Services facilities to meet international standards. Plans for construction of new court facilities and remodelling at the Bahamas Department of Correctional Services to improve the living conditions of inmates. Digitised the courts and made court proceedings more accessible to the public, online bail application system, which expedites bail application. She informed the delegates that the Bahamas Government is working with the OHCHR to introduce the regional office of the OHCHR to build capacity in human rights. 

The Delegate mentioned the following challenges faced by the island while implementing human rights:

• The geographical location of the Bahamas makes it susceptible to adverse climate changes.
• The need to duplicate services due to the geographic composition of the Bahamas as an archipelago strains the government’s human and financial capacities in all areas, “including human rights.” 
• She emphasised that the recurring toll of natural disasters places an additional burden on governance pressures, including the justice and human rights systems, and called upon the international community to assist the Bahamas while taking into account the unique vulnerabilities faced by the island.      

Finally, she thanked the Working Group for its engagement and reaffirmed the country’s commitment to upholding fundamental human rights and freedoms. She also said the government looked forward to continuing to collaborate with the UNHRC in the future.

The Delegate of Mexico appreciated the Working Group’s acknowledgement of the positive steps taken by Mexico to end Arbitrary detention and reiterated that Mexico is open to dialogue and international scrutiny as a step to ending arbitrary detention.

She reported that Mexico has made progress in the area of human rights by introducing several reforms like the 2011 constitutional reform, which focuses on human rights, and the allocation of public defenders in approximately 95% cases where persons are accused of serious crimes. She acknowledged that Mexico still faces challenges, as mentioned in the report and reported that the country had undertaken significant measures to address them. She disagreed with the observation that arbitrary detention is a common occurrence in Mexico and mentioned that the Arraigo system is rarely used in the justice system. 

The  Delegate of Lithuania, speaking on behalf of Poland, Ukraine, and Lithuania, thanked the Working Group for their report. He stated that Russia uses arbitrary detention and deprivation of liberty in its war against Ukraine and enforces torture and extra-judicial killings as a way to scare the population in the occupied territories, contrary to the Universal Declaration of Human Rights. The Office of the Human Rights Council has reported over 800 cases of arbitrary detentions. Still, Russia continuously denies these abuses and impedes access by the office and other HR mechanisms to places of detention. He called upon the Working Group to urge Russia to grant access. Regarding the decline in reports from States under the regular reporting procedure, the delegate asked, “What measures can be taken to ensure states cooperate in reporting and rectifying wrong detentions and better compliance with international standards?”

The Delegate of Australia stated that her government stands firm against arbitrary detention and was concerned that some countries use arbitrary detention for diplomatic leverage. She noted that people must be free to live, work, and travel without fearing being arbitrarily detained. In this regard, Australia would continue to build a strong coalition of States to deter arbitrary detention and work with the international community to collectively mitigate the impacts of arbitrary detention on individuals and their families. She asked, “What actions can the Human Rights Council undertake to advance this work?” 

The Delegate of Chile thanked the Working Group for their report. She expressed concern that the majority of cases submitted to the Working Group relate to the detention of political opponents, dissidents and persons exercising their civil and political rights. She named Venezuela and Israel as perpetrators of human rights abuses by enforcing unlawful detentions, instilling fear among citizens and using the law to unduly curtail freedom of expression and denial of the right to fair trial. She reiterated calls from other delegates that it is only through international scrutiny that arbitrary detentions can be addressed and remedies guaranteed. 

The Delegate of Indonesia reported that her government was deeply concerned about the persistent use of arbitrary detention by the occupying power in the Occupied Palestinian Territories; detentions of civilians, minors and health workers without due process and attacks on hospitals are all gross violations of international law. In order to prevent human rights abuses, including arbitrary detention, the criminal code of Indonesia ensures that individuals cannot be detained without proper legal grounds, while the revised correctional law guarantees the protection of prisoners' rights, including the right to due process and legal representation. She asked, “What concrete steps can the Working Group recommend to ensure the occupying power complies with international standards on detention and protects the rights of the most vulnerable, such as minors?”

The Delegate of South Africa reported that her country is party to various international human rights instruments. The constitution prohibits arbitrary arrests and recognises the rights of persons not to be held in custody without a legal basis or due process. Furthermore, no individual may be detained without being informed of the reason for detention, and everyone has the right to challenge the lawfulness of their detention before a court. This protects individuals from detention without just cause or due legal process, reflecting South Africa's commitment to human rights and the rule of law. She reiterated the Working Group's call to all States to prevent and refrain from acts of intimidation or reprisal against those who cooperate or have cooperated with the UN system and called on states to enhance cooperation with UN mechanisms in the field of human rights, including this Working Group.

The representative of Defense for Children International spoke on behalf of the NGO panel on children deprived of liberty. She thanked the Working Group for its report and for focusing its reporting on mandatory sentencing and emphasised that long-term consequences of minimum sentences are particularly severe in children. She echoed that automatic sentencing disregards the unique characteristics of children, such as age, background and potential for rehabilitation and instead imposes rigid, punitive measures, and such sentences can disrupt a child's education and sever family ties. The lasting effects often include stigmatisation, mental health issues and reduced opportunities for positive reintegration into society. 

She urged Member States to implement accessible and high-quality diversion programmes to prevent children from getting into contact with the criminal justice system and to implement the recommendations of the UN global study on children deprived of liberty.

Position of Geneva International Center for Justice 

𝐆𝐞𝐧𝐞𝐯𝐚 𝐂𝐞𝐧𝐭𝐞𝐫 𝐟𝐨𝐫 𝐈𝐧𝐭𝐞𝐫𝐧𝐚𝐭𝐢𝐨𝐧𝐚𝐥 𝐉𝐮𝐬𝐭𝐢𝐜𝐞 (𝐆𝐈𝐂𝐉) commends the Working Group for their report and calls upon Governments to end arbitrary detention for all. Furthermore, GICJ urges States to ensure fair and legal trial processes without discrimination. GICJ is particularly concerned by the numerous reports of unlawful detention and denial of liberty. Unlawful detentions are against the Universal Declaration of Human Rights, not to mention the effects on the families of the victims of detention. GICJ, therefore, commends the States that are taking steps to end arbitrary detention and calls upon other States to follow suit.