Working Group on Arbitrary Detention

The Working Group is composed of five independent experts. They are appointed in equitable geographical distribution from the following regions: Africa, Asia, Eastern Europe, Western Europe and Other Countries, and South America and Caribbean.[5] Three sessions are held per year, each lasting between five and eight days.

The current members of the Working Group are:[6]

• Leigh Toomey (Chair-Rapporteur)  Australia 2015-2021
• Dr Elina Steinerte (Vice-Chair on Communications) 🇱🇻 Latvia 2016 - 2022
• Seong-Phil Hong  South Korea 2014-2020
• Miriam Estrada Castillo ((flag)Ecuador 2020-2026.
• Mumba Malila ((flag) Zambia)) 2020-2026
  • Secretariat: Christophe Peschoux; Miguel de la Lama; Margarita Nechaeva; Helle Dahl Iversen.
• Former members include:
• José Antonio Guevara Bermúdez{flag|Mexico}} 2014-2020
• Sètondji Roland Adjovi  Benin 2014-2020
• Mads Andenas  Norway
• Shaheen Sardar Ali  Pakistan
• Tamás Bán  Hungary
• Manuela Carmena Castrillo  Spain
• Roberto Garretón Merino  Chile
• Seyyed Mohammad Hashemi  Iran
• Laity Kama  Senegal
• Louis Joinet  France
• Kapil Sibal  India
• El Hadji Malick Sow  Senegal
• Petr Uhl  Czech Republic
• Soledad Villagra de Biedermann  Paraguay
• Leïla Zerroügui  Algeria

The Working Group on Arbitrary Detention is unique in that its mandate expressly provides for the consideration of individual complaints. The Working Group is the only non-treaty-based UN human rights mechanism to investigate and decide individual complaints. Individuals anywhere in the world are therefore able to petition the Working Group for consideration. The Group acts on information submitted to it by individuals directly, their families, or through representatives of Non-governmental organisations.

The Working Group then sends communications to the Governments concerned, to clarify or bring attention to the case.[9] The Government is invited to respond to the allegations within 60 days, with its view on the issue. The Working Group then sends the reply to the source of the allegations, requesting more information. This process allows the Group to remain neutral in the information-gathering process.[10]

The Working Group has identified detention or imprisonment as arbitrary if it falls into one of the following categories;

1. Imposed without any legal basis
2. Imposed because of the exercise of human rights
3. Imposed in violation of the principle of fair trial
4. Prolonged administrative custody imposed on asylum seekers, immigrants or refugees
5. Based on illegal discriminatory grounds

Examples of this can include continued detention after the completion of a sentence, denial of the exercise of fundamental rights such as freedom of expression, violations of the right to a fair trial, asylum and immigration claims, or detention based on ethnicity; religion; sexual orientation, etc.[11]

Upon receiving information under this adversary procedure, the Working Group then adopts one of the following approaches;[12]

• If the individual concerned has been released, the Group may still decide to formulate an opinion on whether or not the deprivation of liberty was arbitrary
• The Group may find that the deprivation of liberty is not arbitrary, and will state an opinion as such
• The Group may seek further information from the individual or the Government
• If further information is unable to be sought, the Group may file the case subject to further confirmation
• The Group may decide that the arbitrary deprivation of liberty has been established, state an opinion to that effect, and make recommendations to the Government. These are then communicated to the Government. The opinion requests that the state takes the necessary steps to remedy the situation in order to bring it into conformity. The fulfilment of this request is often achieved by the release of the individual.

Upon evaluating contradicting evidence, such as between an individual claiming arbitrary deprivation of liberty and a government, the Working Group use a standard of 'convincing evidence', as opposed to evidence beyond a reasonable doubt.[13] The informal nature of the Working Group can strengthen the position of the individual represented, by easing the objective burden of proof on them.

If the Working Group receives information that raises concern about the immediate wellbeing of an individual, then it may, at its discretion, pursue an urgent action. The source must provide sufficiently reliable information that the continuation of deprivation poses significant threat to the psychological or physical wellbeing to the individual.[14] The alleged situation may be time-sensitive in relation to loss of life or deportation. Rapid communication is sought with diplomats, such as the Foreign Minister (or equivalent). The Working Group request immediate action to ensure the detained person's right to life, as well as physical and mental integrity are respected.[15] This a purely humanitarian undertaking, and does not prejudice the Working Group's final opinion on whether the deprivation of liberty is indeed arbitrary.[16]

In order to fulfil its mandate, the Working Group may conduct country visits. These provide an opportunity for the Group to understand the specific situation prevailing in countries. The Group undertake one to three country visits per year, upon invitation from the Government concerned.[17] For example, in May 2017 the Working Group visited Argentina. In 2016 the Group visited the United States of America and Azerbaijan. The Group tend to visit between one and four countries per year.

On a country visit, members of the Working Group engage in a variety of tasks. These can include meeting with representatives of the executive, legislators, and other state officials. The Group also has the right to visit places of detention and have private discussions with detainees.[18] Country visits enable the Working Group to gain a greater understanding of the social, political and historical environment in each country, enabling them to create context-appropriate recommendations.

More generally, the Working Group seeks to encourage broader international understanding of arbitrary detention, and promote universal standards.[19] This is achieved through a more general advisory role, with the formulation of deliberations.[20] The Group formulates deliberations on general issues to assist States in safeguarding against the practice of arbitrary deprivation of liberty. For example, the Group have developed deliberations on issues relating to house arrest, psychiatric detention, deprivation of liberty subsequent to a conviction and resulting from the use of the internet, on rehabilitation through labour and situations regarding immigrants and asylum seekers. The Group have also provided legal analysis regarding the International Criminal Tribunal for the Former Yugoslavia and clarified the definition of arbitrary deprivation of liberty under customary international law and the urgent appeals procedure.

The Working Group must submit Annual Reports to the Human Rights Council, summarising the previous year's activities. The report will express observations made while investigating cases and on field missions in differing countries. The report details the Working Group's reasoning behind legal insufficiencies, policies and judicial policies that are the cause of arbitrary deprivation of liberty, and recommend best practice to safeguard against arbitrary deprivation of liberty.[21]

On 5 February 2016, the group released a report stating that Assange had been subject to arbitrary detention by the UK and Swedish Governments since 7 December 2010, including his time in prison in Britain and Sweden, on conditional bail, and in the Ecuadorian embassy. According to the report, Assange should be allowed to walk free and be given compensation.[32][33]

The UK and Swedish governments rejected the report.[34] Then-UK Secretary of State for Foreign and Commonwealth Affairs, Philip Hammond, said the claim was "ridiculous" and that the group was "made up of lay people", and called Assange a "fugitive from justice" who "can come out any time he chooses".[35] UK and Swedish prosecutors called the group's claims irrelevant.[36][37] The UK said it would arrest Assange should he leave the Ecuadorian embassy.[38] Mark Ellis, executive director of the International Bar Association, stated that the finding is "not binding on British law".[39] United Nations High Commissioner for Human Rights Zeid Ra'ad al Hussein has claimed that the finding is based on international law.[40]

On 13 February 2018, the Westminster Magistrates’ Court, while considering whether the arrest warrant issued against Assange should be upheld, rejected the findings of the Working Group, stating in part that "The group appears to have based its conclusions on some misunderstandings of what occurred after Mr Assange’s arrest." Senior District Judge (Chief Magistrate) Emma Arbuthnot did not find that Mr Assange's stay in the Embassy was "inappropriate, unjust, unpredictable, unreasonable, unnecessary or disproportionate." [41][42]