A/HRC/30/36
liberty: they may use “arrest”, “apprehension”, “detention”, “incarceration”, “prison”,
“reclusion”, “custody”, “remand” and other terms.
49.
These different interpretations of the term “detention” were resolved by the adoption
of Commission on Human Rights resolution 1997/50, in which the Commission opted for
the term “deprivation of liberty”. However, this change of terminology has not been
reflected in the title of the Working Group, which often leads to misinterpretation of the
mandate of the Working Group.
50.
The Working Group requests the Human Rights Council to consider bringing the
name of the Working Group into line with resolution 1991/42 by revising it to the Working
Group on Arbitrary Deprivation of Liberty.
D.
Follow-up to the joint study on secret detention
51.
The Working Group has continued to consider how it can contribute to the follow-up
of the joint study on secret detention (A/HRC/13/42) within its mandate. The Working
Group will also follow up on its own previous reports and opinions on secret detention and
anti-terrorism measures, taking account of subsequent developments, including the length
of detention of individuals.
E.
Prevention of imminent arbitrary deprivation of liberty
52.
The Working Group has continued its deliberations on the possibility of transmitting
cases to Governments in situations where an individual is at risk of being arrested pursuant
to an arrest warrant or detention order issued against him or her and where the resulting
deprivation of liberty is likely to be arbitrary in nature.
53.
Under its methods of work, the Working Group has no mechanism to address
situations where there is sufficiently reliable information that the execution of an order of
arrest will inevitably result in arbitrary deprivation of liberty. In effect, the Working Group
currently has to wait until the arrest warrant is executed and the person is arbitrarily
deprived of his or her liberty.
54.
However, a preventive mechanism might be applicable in situations where an
individual is to be arrested solely because he or she has exercised the fundamental rights or
freedoms guaranteed by international human rights law. Similarly, it could apply in
situations where an imminent arrest would clearly constitute a violation of international law
prohibiting discrimination based on national or ethnic origin, religion, political or other
opinion, gender, sexual orientation or other status, and which might result in the equality of
human rights being ignored.
55.
If such a preventive mechanism was available to the Working Group, section V of
its methods of work on the urgent action procedure would apply mutatis mutandis to the
consideration of communications on imminent arbitrary deprivation of liberty.
56.
As regards the action on such communications, two options can be considered: (a) if
the Working Group considered that the imminent detention was not of an arbitrary nature, it
would render an opinion to that effect, and such an opinion would not prejudge any further
consideration by the Working Group of a communication regarding the case on other
grounds provided for in the methods of work; and (b) if the Working Group considered that
the arbitrary nature of the imminent detention had been established, it would render an
opinion to that effect and make recommendations to the Government.
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