A/HRC/27/48
universal periodic review process of the Human Rights Council and other State-to-State
peer review and dialogue-based mechanisms are providing increasing assistance to States in
their compliance with international law obligations.
1.
Preventive detention
75.
In a number of countries, the Working Group has observed the use of preventive
detention. Convicted persons who have served their sentence may continue to be deprived
of their liberty on the basis that their release would pose a danger to society (see, for
example, A/HRC/7/4/Add.2 and A/HRC/19/57/Add.3). When a criminal sentence includes
a punitive period followed by a preventive period, the International Covenant on Civil and
Political Rights and customary international law, as confirmed by the reports and constant
jurisprudence of the Working Group, require that once the punitive term of imprisonment
has been served, the preventive detention must be proportionate and justified by compelling
reasons. It must be subject to regular periodic review by a court or by an independent body
subject to judicial review that must be able to determine the continued justification for the
detention. Strong procedural guarantees must be provided for the evaluation of future
danger, and the proportionality review is no less strict at that stage and demands stronger
reasoning as time passes. Post-conviction preventive detention must be a measure of last
resort. The conditions in preventive detention must be distinct from the conditions for
convicted prisoners serving a punitive sentence and be aimed at rehabilitation and
reintegration into society. If a prisoner has served the sentence imposed at the time of
conviction, articles 9 and 15 of the Covenant and customary international law forbid a
retroactive increase in sentence. Detention equivalent to penal imprisonment cannot be
imposed as civil preventive detention or under any other label.
2.
Detention of asylum seekers and irregular migrants
76.
Some States have resorted to administrative detention of asylum seekers and
irregular migrants (see, for example, A/HRC/13/30/Add.2 and A/HRC/10/21/Add.5). Law
and policy vary from State to State, and asylum seekers and irregular migrants are at risk of
arbitrary detention. They may be detained for several months or years, or even indefinitely,
particularly in countries which have a policy of mandatory detention or do not prescribe a
maximum period of detention. The imprisonment of a migrant or an asylum seeker for a
prolonged period of time, in conditions that are sometimes found to be even worse than in
the regular prisons, constitutes a punishment on a person who has not committed any crime
(A/HRC/27/48/Add.2, para. 75).
77.
Other international human rights mechanisms have similarly raised concerns about
the excessive length of detention of migrants, the harsh conditions of their detention and the
lack of procedural safeguards to ensure that detention is an appropriate and proportionate
measure (A/68/261, para. 46). The Working Group reiterates that the detention of asylum
seekers and irregular migrants should be a last resort and permissible only for the shortest
period of time. Any necessary detention should take place in appropriate, sanitary, nonpunitive facilities, and should not take place in prisons. The inability of the authorities to
carry out the expulsion of an individual can never justify indefinite detention.
C.
Protective custody
78.
The present section addresses the practice of keeping girls and women in detention
for the purpose of protecting them from risks of serious violence. The Working Group has
previously addressed in its annual report protective custody of women and girls who may
be detained for life. That form of deprivation of liberty is highly gendered in its reach, remit
and application. In some countries, women and girls are placed in custody due to the risk of
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