A/HRC/36/37 leaders detained after expressing their political opinions or detained for offences that disqualify them from holding political office); (e) The alleged conduct for which the person is detained is only a criminal offence for members of his or her group (e.g. criminalization of consensual same-sex conduct between adults). 49. In its opinion No. 45/2016, the Working Group found that five individuals had been arbitrarily deprived of their liberty based on their status as human rights defenders, constituting a violation of their rights to equality before the law and to equal protection of the law under article 26 of the Covenant. Notably, the opinion included human rights defenders as a protected group that is entitled to equal protection of the law under article 26. The Working Group has identified the deprivation of liberty on discriminatory grounds as an emerging trend and will continue to refine its jurisprudence in that area, including by conducting further analysis to clarify the distinction between the arbitrary deprivation of liberty under categories II and V of its methods of work. B. Irregular forms of deprivation of liberty 50. The right to liberty of person is not an absolute right and limitations to that right may be justified. However, any deprivation of liberty, irrespective of the context in which it occurs, must not be arbitrary and must be carried out with respect to the rule of law.2 51. The Working Group wishes to recall that the deprivation of personal liberty occurs when a person is being held without his or her free consent.3 Individuals who, for example, go voluntarily to a police station to participate in an investigation and who know that they are free to leave at any time are not in fact deprived of their liberty. 4 It is however paramount that the element of voluntariness is not abused and that any claim that an individual is at a certain place at his or her own free will is indeed the case. 52. The Working Group is conscious of the increasing number of new regimes of deprivation of liberty that arise in different situations and contexts around the world. While prisons and police stations remain the most common places where an individual may be deprived of his or her liberty, there are a number of different places which an individual is not free to leave at will and which raise a question of de facto deprivation of liberty. It is paramount that, irrespective of what such places are called, the circumstances in which an individual is detained are examined so as to determine whether he or she is in fact at liberty to leave such a place at will. If not, it is paramount that all the safeguards applicable to situations of deprivation of liberty are in place so as to guard against any arbitrariness.5 53. The Working Group has come across such examples in the context of immigration detention. There is an increasing number of countries that hold irregular migrants in various temporary or permanent settings, such as holding rooms, reception centres and shelters. While not officially called “detention centres”, those places are in fact closed institutions and individuals kept in them are not at liberty to leave, which makes such places de facto detention places. Therefore, all the safeguards that are in place, or should be in place, to guard against arbitrary deprivation of liberty must be respected in relation to every person held in such a setting. 2 3 4 5 See Human Rights Committee general comment No. 35 (2014) on liberty and security of person, para. 10. See A/HRC/30/37, para. 9. See Human Rights Committee general comment No. 35 (2014), para. 6. Ibid., para. 12. 19