A/HRC/10/21
page 19
has reported systematically on some of their plight in its previous annual reports 5 whenever the
particular rights issue fell within the ambit of its mandate, or has taken issues up immediately
with government authorities during country missions.
44. Its experience permits the Working Group to present before the Human Rights Council its
conclusions with a view to cooperate with States more efficiently in the protection of this
vulnerable group of people. The Working Group has certainly visited prisons and detention
centres which can be described as exemplary. However, even in these centres, the Working
Group has at times perceived difficulties in guaranteeing all rights to detained and imprisoned
people.
45. Although article 9 of the Universal Declaration of Human Rights establishes that “no one
shall be subjected to arbitrary arrest, detention or exile”, the truth is that an important number of
persons deprived of their liberty are frequently unable to benefit from legal resources and
guarantees that they are entitled to for the conduct of their defence as required by law in any
judicial system and by applicable international human rights instruments.
46. The main element that defines deprivation of liberty is the inability of those who are in
detention to defend and protect themselves, as their daily life is largely dependent on the
decisions taken by the staff at the detention facilities. Additionally, and although legal safeguards
to prevent arbitrary detention from occurring have been adopted by the majority of countries,
many persons deprived of their liberty have no access to such substantive, procedural and
institutional guarantees. Most of them do not have the economic means to afford expensive and
complex legal procedures, especially when legal aid systems are absent or dysfunctional.
Moreover, the transmission of communications from detention centres may face obstacles and in
some cases means of communication are inexistent.
47. In such an environment, persons deprived of their liberty not only have difficulties in
verifying the lawfulness of their detention, but also find themselves subjected to a lack of an
effective control of their other rights. They are at risk of suffering abuse of authority,
humiliation, ill-treatment and other utterly unacceptable deprivations of rights, practices
which all run counter to the essential objective of social reintegration set out in paragraphs 65
and 66 of the Standard Minimum Rules for the Treatment of Prisoners, approved by the
Economic and Social Council in its resolutions 663 C (XXIV) of 31 July 1957 and 2076 (LXII)
of 13 May 1977, and principles 6, 8 and 10 of the Basic Principles for the Treatment of Prisoners
adopted by the General Assembly in its resolution 45/111 of 14 December 1990.
48. The Working Group on Arbitrary Detention is not the only mechanism aware of the social
reality in detention centres. Rather, other thematic special procedures, such as the Special
Rapporteur on the independence of judges and lawyers, the Special Rapporteur on the promotion
5
For example, in A/HRC/7/4, paras. 55 et seq. (Groups in detention which are susceptible to
sexual abuse), A/HRC/4/40, paras. 59 et seq. (Overview of penitentiary systems and the
conditions of detainees), or E/CN.4/2005/6, paras. 68 et seq. (The negative impact on the right to
defence of inadequate conditions of detention).
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