A/HRC/27/48
70.
The Working Group has found that justice done by the military in many instances
falls into the five categories of arbitrariness identified in its methods of work.
(a)
Category I: Military forces often stop and detain persons for a long time and
military judges often order continuing detention in the absence of any legal basis;
(b)
Category II: Many detainees brought before military courts have been
detained simply for exercising a fundamental freedom, such as the freedom of opinion and
expression, freedom of association, freedom of assembly or freedom of religion;
(c)
Category III: Military judges and military prosecutors often do not meet the
fundamental requirements of independence and impartiality; military procedures applied by
military courts often do not respect the basic guarantees for a fair trial;
(d)
Category IV: Individuals brought before military courts are often migrants in
an irregular situation, asylum seekers and refugees captured by military forces at borders, at
sea and in airports;
(e)
Category V: Many people brought before military courts are foreign nationals
coming from a country considered hostile to the country.
71.
The Working Group recalls the draft principles on the administration of justice
through military courts prepared by the Special Rapporteur of the Sub-Commission on the
Promotion and Protection of Human Rights (E/CN.4/2006/58) and requests the Human
Rights Council to proceed to their consideration with a view to adopting a set of principles
to be applied to military courts.
B.
Over-incarceration
72.
While recognizing that States enjoy a wide margin of discretion in the choice of
their penal policies, the right to liberty of persons in article 9 of the International Covenant
on Civil and Political Rights requires that States should have recourse to deprivation of
liberty only insofar as it is necessary to meet a pressing societal need, and in a manner
proportionate to that need (E/CN.4/2006/7, para. 63). In a previous report (E/CN.4/2006/7)
in 2006, the Working Group noted with concern the practice of over-incarceration in the
context of pretrial detention, as well as the factors that lead to over-incarceration, including
detainees’ ethnic or social origin, poverty and social marginalization. During its country
visits and communications, the Working Group has criticized the persistent pattern of
overuse of detention in a number of countries, as well as the emergence of varying regimes
in which over-incarceration occurs, such as preventive detention and the detention of
asylum seekers and migrants in an irregular situation.
73.
Many countries have seen an increasingly rapid rate of legislative response to
criminal acts, and are now beginning to experience the combined effects of habitual
offender laws, generally increased minimum sentences with less discretion available to
judges in each individual case, and post-conviction preventive detention. In addition,
hastily drafted legislation on detention for the purposes of extradition or immigration
control and security detention has often not taken account of basic international law
obligations. Regimes allowing indeterminate detention are on the increase. Domestic courts
may provide constitutional review, and regional mechanisms such as the Inter-American
and European human rights courts provide supervision.
74.
The Working Group’s country visits and communications clearly demonstrate that
international supervisory mechanisms such as the Human Rights Committee and the
relevant special procedures have an important task in the years ahead in reviewing the
proportionality of detention in domestic legislation and practice. The Working Group has
also identified best practice in complying with the proportionality requirement. The
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