A/HRC/45/16 aimed at combating the COVID-19 pandemic and, mutatis mutandis, in the event of other public health emergencies. II. Absolute prohibition of arbitrary deprivation of liberty 5. The Working Group is mindful of the fact that a person’s right to liberty is only one of the rights particularly affected by the wide variety of measures that have been recently taken by many States. While the right to liberty is not an absolute right, and derogations from it are permitted under international law, 3 the Working Group wishes to emphasize that the prohibition of arbitrary deprivation of liberty is absolute and universal. 4 Arbitrary detention can never be justified, whether it be for any reason related to national emergency, maintaining public security or health. The prohibition applies in any territory under a State’s jurisdiction or wherever the State exercises effective control, or otherwise as the result of its actions or omissions of its agents or servants. 5 Consequently, the Working Group calls upon all States to respect the absolute prohibition of arbitrary deprivation of liberty as public health emergency measures are introduced to combat the pandemic. 6. Furthermore, any derogation from a person’s right to liberty must strictly comply with the limits imposed upon a State party’s power to derogate from that right by international law. In particular, States must adhere rigorously to the requirements of strict necessity and proportionality; such derogations are only permissible for the time period justified by the exigencies of the prevailing circumstances of the public health emergency. III. Regimes of deprivation of liberty 7. The Working Group recalls that the prohibition of arbitrary deprivation of liberty extends to all types of detention regimes, including detention within the framework of criminal justice, administrative detention, detention in the context of migration and detention in the health-care settings.6 8. Moreover, the deprivation of liberty is not only a question of legal definition but also a question of fact; therefore if the person concerned is not at liberty to leave a premise, that person is to be regarded as deprived of his or her liberty. 7 To this end, it is of critical importance that, irrespective of what such places are called, the circumstances in which an individual is detained are examined to determine whether the person has been deprived of liberty.8 The Working Group wishes to clarify that mandatory quarantine in a given premise, including in a person’s own residence that the quarantined person may not leave for any reason, is a measure of de facto deprivation of liberty. 9 When placing individuals under quarantine measures, States must ensure that such measures are not arbitrary. The time limit for placement in mandatory quarantine must be clearly specified in law and strictly adhered to in practice. 9. The Working Group also wishes to emphasize that secret and/or incommunicado detention constitutes the most serious violation of the norm protecting a person’s right to liberty. Arbitrariness is inherent in such forms of deprivation of liberty, as the individual is 3 4 5 6 7 8 9 International Covenant on Civil and Political Rights, art. 4. See A/HRC/22/44, paras. 42–43; see also Human Rights Committee, general comment No. 35 (2014) on liberty and security of person, para. 66. A/HRC/30/37, para. 25; opinions Nos. 70/2019, 52/2014 and 50/2014. A/HRC/36/37, para. 50. A/HRC/36/37, para. 56. See also deliberation 1 on house arrest (E/CN.4/1993/24). A/HRC/36/37, para. 52. See advice of the Subcommittee on Prevention of Torture to States parties and national preventive mechanisms relating to the coronavirus pandemic, para, 10 (5); and advice of the Subcommittee on Prevention of Torture to the national preventive mechanism of the United Kingdom of Great Britain and Northern Ireland regarding compulsory quarantine for coronavirus, para. 2. 35