Individual Complaints, Urgent Appeals, Deliberations
The Working Group on Arbitrary Detention has adopted criteria to determine whether a deprivation of liberty is arbitrary (See Fact Sheet No.26). The Working Group acts on information submitted to its attention regarding alleged cases of arbitrary detention by sending urgent appeals and communications to concerned Governments to clarify and/or bring to their attention these cases. The Working Group also considers individual complaints. It is the only non-treaty-based mechanism whose mandate expressly provides for consideration of individual complaints. This means that its actions are based on the right of petition of individuals anywhere in the world. The following procedures are the main procedures followed by the Working Group:
I. Investigation of individual cases
The Working Group acts on information submitted by communications sent to it by the individuals directly concerned, their families, their representatives or non-governmental organizations for the protection of human rights, from Governments and inter-governmental organizations regarding alleged cases of arbitrary detention.
The communication is forwarded to the Government concerned through diplomatic channels with an invitation to communicate to the Working Group within 90 days its comments and observations on the allegations made, both as regards the facts and the applicable legislation and concerning the progress and outcome of any investigations that may have been ordered.
A reply sent by the Government to the Working Group is transmitted to the source for any final comments or observations.
According to the methods of work of the Group, deprivation of liberty is arbitrary if a case falls into one of the following three categories:
A) 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 his sentence or despite an amnesty law applicable to him)(Category I);
B) When the deprivation of liberty results from the exercise of the rights or freedoms guaranteed by articles 7, 13, 14, 18, 19, 10 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 II);
C) 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 III).
In the light of the information collected under this adversary procedure, the Working Group adopts one of the following measures in private session:
(a) If the person has been released, for whatever reason, following the reference of the case to the Working Group the case may be filed; the Group, however, reserves the right to render an opinion, 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 Group considers that the case is not one of the arbitrary deprivation of liberty, it shall render an opinion to this effect;
(c) If the Group considers that further information is required from the Government or the source, it may keep the case pending until that information is received;
(d) If the Group considers that it is unable to obtain sufficient information on the case, it may file the case provisionally or definitively;
(e) If the Group decides that the arbitrary nature of the deprivation of liberty is established, it shall render an opinion to that effect and make recommendations to the Government.
The opinion is sent to the Government, together with the recommendations. Three weeks after this notification, the opinion is also conveyed to the source for information.
The opinions are published in an addendum to the report presented annually by the Working Group to the Human Rights Council at the Group's scheduled reporting session. (See Revised Working Methods).
Model Questionnaire: E - F - S
II. Urgent appeals
The Working Group has developed an "urgent action" procedure for cases in which there are sufficiently reliable allegations that a person may be detained arbitrarily and that the alleged violations may be time-sensitive in terms of involving loss of life, life-threatening situations or either imminent or ongoing damage of a very grave nature to victims in the event of the continuation of the detention. In exceptional cases, the urgent action procedure may also be resorted to in other circumstances, when the Working Group deems that the situation warrants such an appeal. In such cases, an urgent appeal is sent to Government of the State concerned through diplomatic channels, requesting that the Government should take appropriate measures to ensure that the detained person’s right not to be deprived arbitrarily of his or her liberty and to fair proceedings before an independent and impartial tribunal as well as the right to life and to physical and mental integrity are respected. In addressing such communications, the Working Group emphasizes that any such urgent appeals based on humanitarian grounds would in no way prejudge the Working Group’s final assessment of whether the deprivation of liberty is arbitrary or not, except in cases where the Working Group has already determined the arbitrary character of such deprivation of liberty.
The Working Group may also formulate “deliberations” on matters of a general nature involving a position of principle in order to develop a consistent set of precedents and assist States, for purposes of prevention, to guard against the practice of arbitrary deprivation of liberty. The Group has already adopted various such “deliberations”, in the areas of house arrest and deprivation of freedom for purposes of rehabilitation through labour; concerning the situation regarding immigrants and asylum-seekers; on allegations against the International Criminal Tribunal for the former Yugoslavia; on issues related to psychiatric detention; and on deprivation of liberty linked to/resulting from the use of the internet. By means of these "deliberations" it defines the criteria on the basis of which deprivation of freedom linked with such situations may become arbitrary. (See Issues in focus)