A/HRC/45/CRP.9
These practices are contrary to requirements for administrative detention laid out in
international human rights law and international humanitarian law, in particular in relation to
independent and impartial review, and amounts to a violation of the rights to liberty and a
fair trial.
108. International human rights law and international humanitarian law do not prohibit
administrative detention for imperative reasons of security. 138 However, this type of
deprivation of liberty must remain exceptional and comply with a number of requirements.
In particular, it must not be used in contemplation of a criminal charge and prosecution, it
must be shown that the threat cannot be addressed by other measures, it must be subject to
prompt and regular review by a court or other tribunal possessing the same guarantees of
independence and impartiality as the judiciary and the detainee must have access to
independent legal advice.139 As an important safeguard to prevent arbitrary deprivation of
liberty, torture and ill-treatment, judicial control of detention constitutes an important
component of the protection of human rights in the administration of justice.
109. In territory controlled by both self-proclaimed ‘republics’, administrative detention
can be unilaterally ordered by an ‘investigator’ or ‘prosecutor’. It provides for the arrest of
individuals for up to 30 days, during which, the detainee does not see a ‘judge’, and ‘courts’
exercise no judicial control over the detention.140 Moreover, OHCHR findings suggest that
in territory controlled by ‘Donetsk people���s republic, ‘administrative arrest’ was often,
sometimes repeatedly, reapplied on new grounds after the expiration of the initial 30 days.
OHCHR notes that the lack of independent and impartial review of administrative detention
by itself amounts to a violation.141
110. Moreover, according to ‘legislation’ of the self-proclaimed ‘republics’, individuals
can be held under administrative detention to verify their involvement in ‘crimes against
national security’.142 OHCHR monitoring has found that administrative detention is widely
used as a replacement for pre-trial detention in «criminal proceedings». During
administrative detention, ‘investigative bodies’ conduct investigations against detainees
without formally launching them. They collect evidence and testimony, including from
detainees, which eventually are used to indict those detained. International human rights
standards prohibit the application of administrative detention to replace pre-trial detention
within the criminal justice system, as it is considered a violation of the fair trial rights of
detainees.143
111. Information gathered through interviews with victims and their relatives established
that those under administrative detention in territory controlled by self-proclaimed
‘republics’ are held incommunicado. Furthermore, OHCHR found that in most cases,
relatives were not provided with information about the detention during the initial period,
138
139
140
141
142
143
24
A/HRC/43/35, paras. 19 and 20.
Human Rights Committee, General Comment No.35, CCPR/C/GC/35.
OHCHR findings suggest that people detained in territory controlled by self-proclaimed ‘republics’
are rarely informed promptly and in an appropriate manner about the ‘legal’ basis for their detention,
namely that they are being placed under administrative detention. In 70 cases, individuals told
OHCHR they were forced to sign notes describing the reasons and ‘legal basis’ for their detention
without being allowed to read them.
According to the Working Group on Arbitrary Detention, “the use of ‘administrative detention’ under
public security legislation [or] migration laws or other related administrative law, resulting in a
deprivation of liberty for unlimited time or for very long periods without effective judicial oversight,
as a means to detain persons suspected of involvement in terrorism or other crimes, is not compatible
with international human rights law.” Report of the Working Group on Arbitrary Detention,
E/CN.4/2005/6, para. 77.
In ‘Donetsk people’s republic’, this includes brigandage, participating in other organised criminal
groups or committing grave crimes.
Administrative detention would normally amount to arbitrary detention as other effective measures
addressing the threat, including the criminal justice system, would be available (HRC General
Comment No. 35, para. 15). OHCHR notes that within the framework of criminal justice, bail and
pre-trial detention are effective measure addressing risks which might emerge due to the launch of the
investigation against an individual.
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