A/HRC/27/48 70. The Working Group has found that justice done by the military in many instances falls into the five categories of arbitrariness identified in its methods of work. (a) Category I: Military forces often stop and detain persons for a long time and military judges often order continuing detention in the absence of any legal basis; (b) Category II: Many detainees brought before military courts have been detained simply for exercising a fundamental freedom, such as the freedom of opinion and expression, freedom of association, freedom of assembly or freedom of religion; (c) Category III: Military judges and military prosecutors often do not meet the fundamental requirements of independence and impartiality; military procedures applied by military courts often do not respect the basic guarantees for a fair trial; (d) Category IV: Individuals brought before military courts are often migrants in an irregular situation, asylum seekers and refugees captured by military forces at borders, at sea and in airports; (e) Category V: Many people brought before military courts are foreign nationals coming from a country considered hostile to the country. 71. The Working Group recalls the draft principles on the administration of justice through military courts prepared by the Special Rapporteur of the Sub-Commission on the Promotion and Protection of Human Rights (E/CN.4/2006/58) and requests the Human Rights Council to proceed to their consideration with a view to adopting a set of principles to be applied to military courts. B. Over-incarceration 72. While recognizing that States enjoy a wide margin of discretion in the choice of their penal policies, the right to liberty of persons in article 9 of the International Covenant on Civil and Political Rights requires that States should have recourse to deprivation of liberty only insofar as it is necessary to meet a pressing societal need, and in a manner proportionate to that need (E/CN.4/2006/7, para. 63). In a previous report (E/CN.4/2006/7) in 2006, the Working Group noted with concern the practice of over-incarceration in the context of pretrial detention, as well as the factors that lead to over-incarceration, including detainees’ ethnic or social origin, poverty and social marginalization. During its country visits and communications, the Working Group has criticized the persistent pattern of overuse of detention in a number of countries, as well as the emergence of varying regimes in which over-incarceration occurs, such as preventive detention and the detention of asylum seekers and migrants in an irregular situation. 73. Many countries have seen an increasingly rapid rate of legislative response to criminal acts, and are now beginning to experience the combined effects of habitual offender laws, generally increased minimum sentences with less discretion available to judges in each individual case, and post-conviction preventive detention. In addition, hastily drafted legislation on detention for the purposes of extradition or immigration control and security detention has often not taken account of basic international law obligations. Regimes allowing indeterminate detention are on the increase. Domestic courts may provide constitutional review, and regional mechanisms such as the Inter-American and European human rights courts provide supervision. 74. The Working Group’s country visits and communications clearly demonstrate that international supervisory mechanisms such as the Human Rights Committee and the relevant special procedures have an important task in the years ahead in reviewing the proportionality of detention in domestic legislation and practice. The Working Group has also identified best practice in complying with the proportionality requirement. The 21