A/HRC/43/49 63. Typical of contexts marked by systemic governance failures, or by the persecution of individual or groups, sustained institutional arbitrariness fundamentally betrays the human need for communal trust and, depending on the circumstances, can cause severe mental suffering, profound emotional destabilization and lasting individual and collective trauma. In the view of the Special Rapporteur, when institutional arbitrariness or persecution intentionally and purposefully inflicts severe mental pain or suffering on powerless persons, it can constitute or contribute to psychological torture. In practice, this question is of particular, but not exclusive, relevance in relation to the deliberate instrumentalization of arbitrary detention and related judicial or administrative arbitrariness. 64. Apart from incommunicado detention and solitary confinement, discussed above, some of the most notable forms of arbitrary detention include: • Enforced disappearance. This involves the arrest, detention, abduction or any other form of deprivation of liberty by or with the authorization, support or acquiescence of State officials, followed by a refusal to acknowledge such detention or by concealment of the fate or whereabouts of the disappeared persons, which places them outside the protection of the law. 46 Enforced disappearance can amount to a form of torture in relation both to the disappeared person and to their relatives (A/56/156, paras. 9–16).47 • Coercive detention. This involves the deliberate instrumentalization of the progressively severe suffering inflicted by prolonged arbitrary detention for the purpose of coercing, intimidating, deterring or otherwise “breaking” the detainee or third persons. • Cruel, inhuman or degrading punishment. This involves excessively long or harsh prison sentences, imposed for the purpose of deterrence, intimidation and punishment, but grossly disproportionate to the seriousness of the offence and incompatible with fundamental principles of justice and humanity. It can also include the severe mental and emotional suffering inflicted by “death row syndrome”.48 65. Whether a particular situation of confinement qualifies as “detention” depends not only on whether persons concerned have a de jure right to leave, but also on whether they are de facto able to exercise that right without exposing themselves to serious human rights violations (principle of non-refoulement). 66. Whether arbitrary detention and related judicial or administrative arbitrariness amount to psychological torture must be determined on a case-by-case basis. As a general rule, the longer a situation of arbitrary detention lasts and the less detainees can do to influence their own situation, the more severe their suffering and desperation will become. Victims of prolonged arbitrary confinement have demonstrated post-traumatic symptoms and other severe and persistent mental and physical health consequences. In particular, the constant exposure to uncertainty and judicial arbitrariness and the lack of restrained or insufficient communication with lawyers, doctors, relatives and friends induces a growing sense of helplessness and hopelessness and, over time, may lead to chronic anxiety and depression. 67. Therefore, as the Special Rapporteur has repeatedly stressed both in the context of irregular migration (A/HRC/37/50, paras. 25–27) and in individual communications,49 where arbitrary detention and judicial arbitrariness is intentionally imposed or perpetuated 46 47 48 49 International Convention for the Protection of All Persons from Enforced Disappearance, art. 2. CAT/C/54/D/456/2011, para. 6.4. A/67/279, para. 42. European Court of Human Rights, Soering v. the United Kingdom, Application No. 14038/88, Judgment, 7 July 1989, para. 111. See, most prominently, individual communications sent by the Special Rapporteur in the cases of Chelsea Manning, communication No. AL USA 22/2019, 1 November 2019; and Julian Assange, communications Nos. UA/GBR/3/2019, 27 May 2019; and UA GBR 6/2019, 29 October 2019. 17