A/HRC/36/37
III. Thematic issues
45.
During the reporting period, the Working Group continued to receive
communications involving the deprivation of liberty on discriminatory grounds and
communications concerning new regimes of deprivation of liberty that arise in different
situations and contexts around the world. The Working Group will examine both thematic
issues in the following sections.
A.
Deprivation of liberty on discriminatory grounds
46.
As the Working Group has recently clarified in the United Nations Basic Principles
and Guidelines on Remedies and Procedures on the Right of Anyone Deprived of Their
Liberty to Bring Proceedings Before Court, discrimination in the context of the deprivation
of liberty may occur on a variety of grounds that aim at or may result in undermining the
equality of human beings. The deprivation of liberty on discriminatory grounds may also
occur in relation to a broad range of people, including but not limited to: women and
children; persons with disabilities, including psychosocial and intellectual disabilities;
human rights defenders and activists; persons engaged in social protest; older persons;
indigenous peoples; minorities based on national or ethnic, cultural, religious and linguistic
identity; lesbian, gay, bisexual, transgender and intersex persons; non-nationals, including
migrants, refugees and asylum seekers, internally displaced persons, stateless persons,
trafficked persons and those at risk of being trafficked; persons living with HIV/AIDS and
other serious communicable or chronic diseases; sex workers; and drug users.
47.
During the reporting period, the Working Group continued to receive
communications on the deprivation of liberty on discriminatory grounds. It adopted several
opinions in which it found that the deprivation of liberty had been arbitrary because it had
resulted from the violation of the right to equal protection of the law and freedom from
discrimination under article 7 of the Universal Declaration of Human Rights and article 26
of the Covenant (category II), and/or it had constituted a violation of international law on
prohibited grounds of discrimination (category V).
48.
The Working Group has consistently found such discrimination when it is apparent
that persons have been deprived of their liberty specifically on the basis of their own or
perceived distinguishing characteristics or because of their real or suspected membership of
a distinct (and often minority) group. In considering whether the source of a
communication has demonstrated a prima facie case of deprivation of liberty on
discriminatory grounds, the Working Group takes into account a number of factors,
including whether:
(a)
The deprivation of liberty was part of a pattern of persecution against the
detained person (e.g. a person was targeted on multiple occasions through previous
detention, acts of violence or threats);
(b)
Other persons with similarly distinguishing characteristics have also been
persecuted (e.g. several members of a particular ethnic group are detained for no apparent
reason, other than their ethnicity);
(c)
The authorities have made statements to, or conducted themselves toward,
the detained person in a manner that indicates a discriminatory attitude (e.g. female
detainees threatened with rape or forced to undergo virginity testing, or a detainee is held in
worse conditions or for a longer period than other detainees in similar circumstances);
(d)
The context suggests that the authorities have detained a person on
discriminatory grounds or to prevent them from exercising their human rights (e.g. political
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