A/HRC/39/45
Through its jurisprudence, both in the individual cases that come before it through the
regular communications and urgent action procedures, as well as during its country visits,
the Working Group has become acutely aware that the safeguards that States are required to
put in place to prevent occurrences of torture and ill-treatment also have a crucial role to
play in minimizing and even preventing instances of arbitrary detention. 12
60.
As an example, a significant proportion of the 94 opinions adopted by the Working
Group in 2017 revealed the presence of incommunicado detention in the facts submitted by
the source. 13 For the Working Group, incommunicado detention places an individual
outside the protection of the law, contrary to the right to be recognized as a person before
the law under article 6 of the Universal Declaration of Human Rights and article 16 of the
International Covenant on Civil and Political Rights. 14 It also violates his or her right to be
brought promptly before a court under article 9 (3) of the Covenant and to challenge the
lawfulness of his or her detention before a court under article 9 (4) of the Covenant. 15
Judicial oversight of detention is a fundamental safeguard of personal liberty 16 and is
essential in ensuring that detention in fact has a legal basis. On that basis, the Working
Group consistently maintains that incommunicado detention constitutes arbitrary detention.
61.
However, as the Working Group looks for measures that could effectively prevent
and address instances of arbitrary detention that may arise due to incommunicado detention,
it is mindful that the Committee against Torture has made it clear that incommunicado
detention creates conditions that may lead to violations of the Convention against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment. 17 Equally, the Special
Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment has
consistently argued that use of incommunicado detention is unlawful and may lead to
torture and other cruel, inhuman or degrading treatment or punishment. 18 Thus, in the
context of incommunicado detention, the Working Group looks at measures in place to
prevent torture with a view to examining the extent to which these could assist in
preventing occurrences of arbitrary detention.
62.
Similarly, in its jurisprudence the Working Group frequently observes instances of
extraction of confessions through ill-treatment or even torture, which are then used in
proceedings against the victims who have been subjected to such treatment. 19 For the
Working Group, the use of a confession extracted through ill-treatment that is tantamount,
if not equivalent, to torture constitutes a breach of article 14 (3) (g) of the Covenant as well
as of the Body of Principles for the Protection of All Persons under Any Form of Detention
or Imprisonment. The latter instrument, in its principle 21, specifically prohibits taking
undue advantage of the situation of detention to compel confessions or incriminating
statements. Confessions extracted through such means which have subsequently been
admitted by judicial bodies as evidence in proceedings against the victims of such treatment
have, in the view of the Working Group, led to situations of arbitrary detention due to
denial of the fair trial guarantees.20
63.
In its jurisprudence, the Working Group has also consistently argued that extraction
of confessions through physical or psychological torture constitutes a violation of the
12
13
14
15
16
17
18
19
20
28
See, for example, Human Rights Council resolution 31/31.
See opinions Nos. 4/2017, 5/2017, 6/2017, 7/2017, 10/2017, 17/2017, 18/2017, 21/2017, 25/2017,
26/2017, 27/2017, 29/2017, 32/2017, 33/2017, 36/2017, 45/2017, 46/2017, 47/2017, 56/2017,
57/2017, 58/2017, 59/2017, 61/2017, 63/2017, 65/2017, 66/2017, 69/2017, 70/2017, 75/2017,
76/2017, 78/2017, 80/2017, 83/2017, 84/2017, 90/2017, 91/2017, 92/2017, 93/2017 and 94/2017.
See, for example, opinions No. 69/2017, para. 38; No. 46/2017, para. 23; and No. 47/2017, para. 25.
See, for example, opinions Nos. 79/2017, 46/2017 and 45/2017.
See the United Nations Basic Principles and Guidelines on Remedies and Procedures on the Right of
Anyone Deprived of Their Liberty to Bring Proceedings Before a Court, para. 3.
See, for example, A/54/44, para. 182 (a).
See, for example, A/54/426, para. 42; and A/HRC/13/39/Add.5, para. 156.
As regards 2017, for example, see opinions Nos. 3/2017, 6/2017, 10/2017, 17/2017, 21/2017,
24/2017, 29/2017, 32/2017, 33/2017, 36/2017, 46/2017, 56/2017, 59/2017, 60/2017, 61/2017,
63/2017, 69/2017, 70/2017, 78/2017, 83/2017, 92/2017 and 93/2017.
See, for example, opinions Nos. 48/2016, 3/2017, 6/2017, 29/2017 and 2/2018.
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