Annual report: deprivation of liberty of human rights defenders, forcible transfers, and the Declaration against Arbitrary Detention in State-to-State relations

The Working Group on Arbitrary Detention was established by the Commission on Human Rights in its resolution 1991/42. It was entrusted with the investigation of cases of alleged arbitrary deprivation of liberty according to the standards set forth in the Universal Declaration of Human Rights and the relevant international instruments accepted by the States concerned. The mandate of the Working Group was clarified and extended by the Commission in its resolution 1997/50 to cover the issue of administrative custody of asylum seekers and immigrants. Pursuant to General Assembly resolution 60/251 and Human Rights Council decision 1/102, the Council assumed the mandate of the Commission. The mandate of the Working Group was most recently extended for a three-year period in Council resolution 42/22 of 26 September 2019.

During the period from 1 January to 31 October 2020, the Working Group was composed of Sètondji Roland Jean-Baptiste Adjovi (Benin), José Antonio Guevara Bermúdez (Mexico), Seong-Phil Hong (Republic of Korea), Elina Steinerte (Latvia) and Leigh Toomey (Australia). As of 1 November 2020, the Working Group was composed of Miriam Estrada-Castillo (Ecuador), Seong-Phil Hong (Republic of Korea), Mumba Malila (Zambia), Elina Steinerte (Latvia) and Leigh Toomey (Australia).

Mr. Guevara Bermúdez served as Chair-Rapporteur of the Working Group from April 2019 to April 2020, and Ms. Steinerte and Ms. Toomey as Vice-Chairs. At the eighty-seventh session of the Working Group, in April 2020, Ms. Toomey was elected as Chair-Rapporteur and Ms. Steinerte was re-elected as Vice-Chair.

During the period from 1 January to 31 December 2020, the Working Group held its eighty-seventh, eighty-eighth and eighty-ninth sessions. Due to the travel restrictions resulting from the global coronavirus disease (COVID-19) pandemic, the Working Group decided to meet remotely by videoconference. This was solely in response to the global pandemic and under no circumstances replaces its in-person sessional meetings.

Due to the global pandemic, the Working Group was unable to conduct country visits during the reporting period. It looks forward to resuming such visits when the global health context allows and encourages States to respond positively to its requests for visits.

In order to facilitate outreach and ongoing information-sharing during the pandemic, the Working Group met remotely with States and non-governmental organizations throughout the reporting period, which included a meeting with civil society in December 2020, and during its ninetieth session, to gather information on issues relating to arbitrary detention and to enhance understanding of the Working Group’s methods of work.

The Working Group continued to formulate deliberations on matters of a general nature to assist States and stakeholders in preventing and addressing cases of arbitrary detention.

In this respect, the Working Group formulated its deliberation No. 12 on women deprived of their liberty (see annex). In the deliberation, the Working Group considers the gender-specific dimensions of arbitrary detention and provides guidance to assist States and other stakeholders in preventing and addressing arbitrary detention of women in the criminal justice system, immigration detention, administrative detention, health-care situations and certain private settings. The deliberation also recognizes that not all women experience deprivation of liberty in the same manner, and it is therefore necessary to consider the disparate experience of women who already experience disadvantage. The Working Group recalls in particular that women who experience multiple and intersecting forms of discrimination are at higher risk of being deprived of their liberty.

In its resolution 42/22, the Human Rights Council requested the Working Group to undertake a study on arbitrary detention relating to drug policies. The preparation for the study commenced in 2019, with initial consultations, the development of a questionnaire and a call for inputs from States and other stakeholders on drug policies. A briefing on the study was given at the sixty-third session of the Commission on Narcotic Drugs, in Vienna in March 2020, and consultations were held with the United Nations Office on Drugs and Crime, the International Narcotics Control Board and other stakeholders. On 4 and 5 March 2021, the Working Group held a virtual expert consultation.

A report on the study (A/HRC/47/40) was presented by the Working Group to the Human Rights Council on 2 July 2021, in the context of the Council’s forty-seventh session. In that study, the Working Group examines how drug policies may result in human rights violations relating to arbitrary detention and makes recommendations. It draws on its own jurisprudence, positions taken by other human rights mechanisms and United Nations entities, and submissions from States and stakeholders.

Communications transmitted to Governments

At its eighty-seventh, eighty-eighth and eighty-ninth sessions, the Working Group adopted a total of 92 opinions concerning 221 persons in 47 countries (see the table below).

Pursuant to its methods of work,¹ in addressing its opinions to Governments, the Working Group drew their attention to Commission on Human Rights resolutions 1997/50 and 2003/31 and Human Rights Council resolutions 6/4, 24/7 and 42/22, in which those bodies requested States to take account of the Working Group’s opinions and, where necessary, to take appropriate steps to remedy the situation of persons arbitrarily detained and to inform the Working Group of the steps they had taken. On the expiry of a 48-hour deadline following transmission of the opinion to the Governments concerned, the opinions were transmitted to the relevant sources. 1 A/HRC/36/38. Opinions adopted at the eighty-seventh, eighty-eighth and eighty-ninth sessions of the Working Group Opinion No. Countries and areas Government reply Person(s) concerned Opinion Follow-up information received 1/2020 Cameroon Yes Amadou Vamoulké Detention arbitrary, categories I and III None 2/2020 Turkey Yes Abdulmuttalip Kurt Detention arbitrary, categories I, II and V None 3/2020 Colombia Yes Ferney Salcedo Gutiérrez, Yulivel Leal Oros, Jesús Leal Salcedo, Miguel Ángel Rincón Santisteban, Carmen Iraida Salcedo Gutiérrez, Josué Eliecer Rincón Duarte, María Teresa Rincón Duarte and Jerónimo Salcedo Betancourt. Detention arbitrary, categories II, III and V No actions taken to implement the opinion. (Information from the Government) 4/2020 Cuba Yes Aymara Nieto, Eliecer Bandera, Humberto Rico, José Pompa Lopéz, Melkis Faure, Mitzael Díaz and Silverio Portal Detention arbitrary, categories I, II, III and V Although Mr. Rico, Mr. Pompa Lopéz and Mr. Portal were released, this was not an implementation of the opinion. (Information from the source) 5/2020 Bahrain Yes Ali Isa Ali Al-Tajer and 19 others Detention arbitrary, categories I and III None 6/2020 Egypt No Ahmed Tarek Ibrahim Abd El-Latif Ziada Detention arbitrary, categories I and III None 7/2020 Algeria No El Fadel Breica Detention arbitrary, categories I, II and III Mr. Breica was released on 10 November 2019 and is currently in another country. No further actions taken to implement the opinion. (Information from the source) 8/2020 Sri Lanka No Delankage Sameera Shakthika Sathkumara Detention arbitrary, categories I, II, III and V None Opinion No. Countries and areas Government reply Person(s) concerned Opinion Follow-up information received 9/2020 Mozambique No Songolo Abwe, Bahome Amisi, Mulenda Amisi, Ababa Anito, Dax Byamungu, Dominique Nepanepa Kahenga, Kibunga Kasindi, Mwenelwata Kitungano, Sikabwe Kiza, Charles Anzuruni M’massa, Sukuma Maenda, Mathias Mafataki Mahano, William Riziki, Amisi Shomari, Kaskil Sumail and Jacque Nsimba Vela Detention arbitrary, categories I, III and IV None 10/2020 Russian Federation No (late) Aleksandr Solovyev, Vladimir Kulyasov, Denis Timoshin, Andrey Magliv, Valeriy Shalev, Ruslan Korolev, Viktor Malkov, Yevgeniy Dechko, Vyacheslav Osipov, Valeriy Rogozin, Igor Egozaryan, Sergey Melnik, Valentina Vladimirova, Tatyana Galkevich, Tatyana Shamsheva, Olga Silayeva, Aleksandr Bondarchuk and Sergey Yavushkin Detention arbitrary, category I (Messrs. Shalev, Korolev, Malkov, Rogozin, Egozaryan and Melnik and Mmes. Vladimirova, Galkevich, Shamsheva and Silayeva) Detention arbitrary, categories II, III and V (all 18 individuals) Some individuals have been released from pretrial detention or house arrest, but the criminal proceedings against them continue and/or they have been convicted. Mr. Malkov died on 26 April 2020 from a health condition. No further actions taken to implement the opinion. (Information from the source) 11/2020 China Yes Cheng Yuan, Liu Dazhi and Wu Gejianxiong Detention arbitrary, categories I, II, III and V The individuals remain detained. (Information from the source) 12/2020 Israel No Mustafa Hassanat Detention arbitrary, categories I, III and V None 13/2020 Libya No Mustafa Taleb Younes Abdelkhalek Al Darsi Detention arbitrary, categories I, II, III and V None 14/2020 Egypt No (late) Amal Fathy, Mohamed Lofty and a minor whose name is known to the Working Group Detention arbitrary, Ms. Fathy (categories I, II and III); detention arbitrary, Mr. Lofty and the minor (category I) None 15/2020 Viet Nam Yes Phan Kim Khanh Detention arbitrary, categories I, II, III and V None Opinion No. Countries and areas Government reply Person(s) concerned Opinion Follow-up information received 16/2020 Viet Nam Yes Ngô Văn Dũng Detention arbitrary, categories I, II, III and V On 31 July 2020, Mr. Dũng was sentenced to five years’ imprisonment followed by two years’ probation. He remains detained. The request to provide him with compensation is groundless. (Information from the Government) No actions taken to implement the opinion. Mr. Dũng remains detained. (Information from the source) 17/2020 Nicaragua No Miguel Mora and Lucía Pineda Detention arbitrary, categories I, II and III No actions taken to implement the opinion. (Information from the source) 18/2020 Bolivarian Republic of Venezuela Yes Rubén Darío González Rojas Detention arbitrary, categories I, II, III and V None 19/2020 El Salvador No Imelda Cortez Palacios Detention arbitrary, categories I, III and V Ms. Cortez Palacios was released following a not guilty verdict. (Information from the Government) 20/2020 Bolivarian Republic of Venezuela Yes Héctor Armando Hernández Da Costa Detention arbitrary, categories I and III Mr. Hernández Da Costa remains detained. (Information from the source) Opinion No. Countries and areas Government reply Person(s) concerned Opinion Follow-up information received 21/2020 Nicaragua No Amaya Eva Coppens Zamora, Atahualpa Yupanqui Quintero Morán, Derlis Francisco Hernández Flores, Hansel Amaru Quintero Gómez, Ivannia del Carmen Álvarez Martínez, Jesús Adolfo Tefel Amador, Jordán Irene Lanzas Herrera, José Dolores Medina Cabrera Cabrera, María Margarita Hurtado Chamorro, Marvin Samir López Ñamendiz, Melvin Antonio Peralta Centeno, Neyma Elizabeth Hernández Ruiz, Olga Sabrina Valle López, Roberto Andrés Buchting Miranda, Wendy Rebeca Juárez Avilés and Wilfredo Alejandro Brenes Domínguez Detention arbitrary, categories I, II and III The 16 individuals were released through an amnesty law, which did not expunge their criminal records. The Government has thus not implemented the opinion. (Information from the source) 22/2020 Hungary Yes Saman Ahmed Hamad Detention arbitrary, categories I, II and IV Mr. Hamad was kept in the transit zone, in accordance with Hungarian law. He was moved to an open reception centre, which he left for an unknown location, violating his obligation to cooperate and thus withdrawing himself from the procedure. The case is closed and no further actions are necessary to implement the opinion. (Information from the Government) Mr. Hamad has left Hungary and now resides in another country. (Information from the source) 23/2020 Tajikistan and the Russian Federation No (late replies from both Governments) Maksud Ibragimov Detention arbitrary, categories I, II, III and V None Opinion No. Countries and areas Government reply Person(s) concerned Opinion Follow-up information received 24/2020 Mexico Yes Mónica Esparza Castro and Édgar Menchaca Castro Detention arbitrary, categories I, III and V Both individuals were acquitted prior to the adoption of the opinion. The prosecutor appealed and the appeal is pending. The torture allegations are being investigated and there is a criminal trial against the agents suspected of being involved. No reparations have been made. (Information from the Government and the source) 25/2020 Burundi No Alexis Sebahene Detention arbitrary, categories I, III and V None 26/2020 Tunisia Yes Moncef Kartas Detention arbitrary, categories I and III No actions taken to implement the opinion, as the detention of Mr. Kartas was not arbitrary or contrary to national or international law. (Information from the Government) 27/2020 Nigeria No Omoyele Sowore Detention arbitrary, categories I, II, III and V None 28/2020 Mexico Yes Miguel Pérez Cruz Detention arbitrary, categories I and III No actions taken to implement the opinion. (Information from the Government and the source) 29/2020 Turkey Yes Akif Oruç Detention arbitrary, categories I, II, III and V No actions taken to implement the opinion. The case of Mr. Oruç is pending before the Supreme Court. (Information from the source) 30/2020 Turkey Yes Faruk Serdar Köse Detention arbitrary, categories I, II and V None Opinion No. Countries and areas Government reply Person(s) concerned Opinion Follow-up information received 31/2020 United Arab Emirates Yes Abdullah Hani Abdullah Detention arbitrary, categories I and III Mr. Abdullah was arrested in accordance with applicable rules and legal principles in the United Arab Emirates. He was sentenced by means of a final judgment in an enforceable criminal case, in which all procedures were followed in accordance with national law, and he was tried before a competent, fair, independent and impartial court. His ongoing detention is not arbitrary, and no actions are required in order to implement the opinion. (Information from the Government) 32/2020 China No He Fangmei Detention arbitrary, categories I, II, III and V Ms. He was released on 10 January 2020, and she continued her campaigning. On 9 October 2020, she was detained again and placed in an unknown governmentdesignated location. No compensation or reparations have been made. (Information from the source) 33/2020 United Arab Emirates and Saudi Arabia United Arab Emirates (no) Saudi Arabia (yes) Loujain Alhathloul Detention arbitrary, categories I, II, III and V Ms. Alhathloul was released on 10 February 2021, but the probationary period and travel ban orders remain in effect. An appeal of her conviction is ongoing. (Information from the source) Opinion No. Countries and areas Government reply Person(s) concerned Opinion Follow-up information received 34/2020 United Arab Emirates Yes Abdullah Awad Salim al-Shamsi Detention arbitrary, categories I and III Mr. Al-Shamsi remains detained, and his trial is ongoing. Since the beginning of March 2020, all prison visits have been stopped (due to COVID-19) and phone calls have not been allowed. He is vulnerable to COVID-19 due to a serious health condition (Information from the source) 35/2020 Australia Yes Jamal Talib Abdulhussein Detention arbitrary, categories IV and V Mr. Abdulhussein was granted a temporary protection visa on 9 January 2020, and has been released from immigration detention. (Information from the Government) 36/2020 Viet Nam No (late) Đào Quang Thực Detention arbitrary, categories I, II, III and V None 37/2020 Myanmar No Zayar Lwin, Paing Phyo Min, Zaw Lin Htut, Kay Khine Htun, Paing Ye Thu and Su Yadana Myint Detention arbitrary, categories I, II, III and V The individuals are serving their sentences and are in good health. (Information from the Government) 38/2020 United Republic of Tanzania No Tito Elia Magoti Detention arbitrary, categories I, II, III and V Mr. Magoti was released in January 2021 after pleading guilty and paying a fine. He spent one year in pretrial detention, and no evidence had been presented to court. (Information from the source) 39/2020 Nicaragua No Kevin Roberto Solís Detention arbitrary, categories I and III No actions taken to implement the opinion. (Information from the source) 40/2020 Burundi No Jean Claude Hamenyimana Detention arbitrary, categories I, III and V None Opinion No. Countries and areas Government reply Person(s) concerned Opinion Follow-up information received 41/2020 Bahrain Yes Husain Ali Hasan Khamis and eight others Detention arbitrary, categories I and III The special investigation unit did not receive any complaints about violation of the rights of most of the individuals, but opened its own investigation following the opinion. If it is proven that their rights have been violated as a result of illegal arrest/detention, they will be compensated. Two torture complaints were filed due to lack of evidence. (Information from the Government) 42/2020 Thailand and Viet Nam Thailand (no) Viet Nam (yes) Truong Duy Nhat Detention arbitrary, categories I, II, III and V Mr. Nhat remains detained. (Information from the source) 43/2020 Kazakhstan Yes Serikhzan Bilash Detention arbitrary, categories I, II and III Mr. Bilash completed his probation in December 2019, and in late 2020 he left Kazakhstan for another country, where he now resides. On 26 June 2020, article 174 of the Criminal Code was amended to allow judges to impose a fine rather than a restraint on the liberty of individuals found to have violated the provision concerned. (Information from the Government) 44/2020 Bolivarian Republic of Venezuela Yes Antonia de la Paz Yolanda Turbay Hernando Detention arbitrary, categories I and III Ms. Turbay Hernando was released by presidential pardon on 31 August 2020. (Information from the source) 45/2020 Mexico No (late) Brenda Quevedo Detention arbitrary, category III No actions taken to implement the opinion. (Information from the Government and the source) Opinion No. Countries and areas Government reply Person(s) concerned Opinion Follow-up information received 46/2020 Benin No Ignace Sossou Detention arbitrary, categories I, II and III None 47/2020 Turkey, as well as Kosovo² Turkey (yes) Kosovo (no) Mustafa Erdem, Yusuf Karabina, Kahraman Demirez, Cihan Özkan, Hasan Hüseyin Günakan and Osman Karakaya Detention arbitrary, categories I, II, III and V On 24 February 2021, the special prosecutor’s office in Kosovo filed charges against a number of officials for the arbitrary detention and illegal transfer of the six individuals. No further actions taken to implement the opinion, including release of the six individuals. (Information from the source) 48/2020 Turkey and Azerbaijan Yes (both Governments) Huseyn Abdullayev Detention arbitrary, categories I and III Mr. Abdullayev’s physical and mental health condition is deteriorating, and he initiated a hunger strike in April 2021 to protest against nonimplementation of the opinion. (Information from the source) 49/2020 United States of America No Fernando Aguirre-Urbina Detention arbitrary, categories I, II, III, IV and V None 50/2020 Cuba No (late) José Daniel Ferrer García Detention arbitrary, categories I, II, III and V No actions taken to implement the opinion; Mr. García is under house arrest. (Information from the source) 2 References to Kosovo shall be understood to be in the context of Security Council resolution 1244 (1999). Opinion No. Countries and areas Government reply Person(s) concerned Opinion Follow-up information received 51/2020 Malaysia and Turkey Yes (both Governments) Arif Komiş, Ülkü Komiş and four minors Detention arbitrary, categories I, II, III and V The arrest and detention of Mr. Komiş and his family were not arbitrary, and in accordance with international law. Hence, no actions taken to implement the opinion. (Information from the Government of Malaysia) 52/2020 Morocco No (late) Ali Salem Bujmaa, a.k.a. Ali Saadouni Detention arbitrary, categories I, II, III and V No actions taken to implement the opinion (Information from the source) 53/2020 Algeria No (late) Messaoud Leftissi Detention arbitrary, categories I, II and V Mr. Leftissi has been released since his acquittal by the court of appeal and exonerated of all charges. This decision is subject to appeal before the court of cassation. All legal procedures complied with national laws, and he was guaranteed due process. He did not request compensation for his preventive detention. (Information from the Government) Opinion No. Countries and areas Government reply Person(s) concerned Opinion Follow-up information received 54/2020 Kuwait Yes Zuhair Abdulhadi Haj Al Mahmeed Detention arbitrary, categories I and III All judicial and legal procedures undertaken in the case of Mr. Al Mahmeed complied with international standards and obligations, including impartiality and neutrality of the judicial authority. (Information from the Government) No actions taken to implement the opinion. Mr. Al Mahmeed contracted COVID-19 in April 2021, and his health continues to deteriorate as he is still not receiving urgent medical care, including physiotherapy prescribed following surgery. (Information from the source) 55/2020 Burundi No Ernest Nyabenda and Patrick Nsengiyumva Detention arbitrary, categories I, III and V None 56/2020 Burundi No Cadeau Bigirumugisha Detention arbitrary, categories I, III and V None 57/2020 Bolivarian Republic of Venezuela Yes Juan Pablo Saavedra Mejías Detention arbitrary, categories I and III None 58/2020 Japan Yes Deniz Yengin and Heydar Safari Diman Detention arbitrary, categories I, II, IV and V No actions taken to implement the opinion. (Information from the source) 59/2020 Japan Yes Carlos Ghosn Detention arbitrary, categories I and III None Opinion No. Countries and areas Government reply Person(s) concerned Opinion Follow-up information received 60/2020 Kuwait Yes Maria Lazareva Detention arbitrary, categories I and III Proceedings conducted against Ms. Lazareva were legally sound and based on orders and oversight by the judiciary, which is neutral and impartial and guarantees the rights of the accused to a fair trial. Complementary information and clarifications provided. (Information from the Government) No actions taken to implement the opinion. The Government has not only ignored the opinion but has continued to pursue spurious cases against Ms. Lazareva, with additional and ongoing breaches of her due process rights. It has also procured an INTERPOL red notice against her. She has remained in the Embassy of the Russian Federation in Kuwait since 11 November 2019. (Information from the source) 61/2020 United Arab Emirates No Amina Mohammed Al Abdouli and Maryam Suliman Al Balushi Detention arbitrary, categories I, II and III Both women remain detained despite completing their prison sentences in November 2020, and despite the opinion. (Information from the source) 62/2020 Republic of Congo No Benoît Faustin Munene Detention arbitrary, categories I, II, III and V None 63/2020 Egypt No Nour Al-Dien Abd Allah Ali Abdallah Detention arbitrary, categories I and III None Opinion No. Countries and areas Government reply Person(s) concerned Opinion Follow-up information received 64/2020 Gabon Yes Brice Laccruche Alihanga, Grégory Laccruche Alihanga, Patrichi Christian Tanasa, Julien Engonga Owono and Geaurge Ndemengane Ekoh Detention arbitrary, categories I and III No actions taken to implement the opinion. The situation of the five detainees has deteriorated, and the conditions of detention, including complete isolation for more than a year, will soon have irremediable consequences for their physical and mental health. (Information from the source) 65/2020 Cuba Yes Roberto de Jesús Quiñones Haces Detention arbitrary, categories I, II and III Mr. Quiñones was released after completion of his sentence, and no actions have been taken to implement the opinion. (Information from the source) 66/2020 Turkey Yes Levent Kart Detention arbitrary, categories I, II, III and V Mr. Kart was released on 17 September 2020 pending appeal. (Information from the source) 67/2020 Turkey Yes Ahmet Dinçer Sakaoğlu Detention arbitrary, categories I, III and V None 68/2020 Morocco Yes Walid El Batal Detention arbitrary, categories I, II, III and V Mr. El Batal was subsequently released on 7 June 2021. (Information from the source) 69/2020 Morocco No (late) Mourad Zefzafi Detention arbitrary, categories I, II and III None 70/2020 Australia Yes Mr. Laltu (alias Somrat Morol) Detention arbitrary, categories II, IV and V Mr. Laltu remains in immigration detention. He was found not to engage in the protection obligations of Australia and is awaiting the involuntary removal procedure. (Information from the Government) Opinion No. Countries and areas Government reply Person(s) concerned Opinion Follow-up information received 71/2020 Australia Yes Mohammad Qais Niazy Detention arbitrary, categories IV and V None 72/2020 Australia Yes Said Mohamed Elmahdy Agueib Attia Farag Detention arbitrary, categories II, IV and V Mr. Farag was released on a final departure visa on 27 August 2020. (Information from the source) 73/2020 Bolivarian Republic of Venezuela No Juan Antonio Planchart Márquez Detention arbitrary, categories I and III Mr. Planchart Márquez was allowed to undergo medical treatment but remains detained. (Information from the source) 74/2020 Turkey Yes Nermin Yasar Detention arbitrary, categories I, II, III and V None 75/2020 Qatar Yes Muhammad Iqbal Detention arbitrary, categories I, III and V All actions taken against Mr. Iqbal were under the supervision of the competent judicial authority and in conformity with national and international laws. He was released on bail on 14 May 2020 until his conviction under an enforceable judgment after a fair trial. (Information from the Government) 76/2020 El Salvador No3 José Aquiles Enrique Rais López Detention arbitrary, categories I and III Mr. Rais López was released prior to transmission of the case to the Government, and lives in exile. The arrest warrant against him is enforceable. The opinion has been published on the website of the Ministry of Foreign Affairs. (Information from the Government) 3 On 18 December 2020, the Government submitted a late response, after the adoption of the opinion. Opinion No. Countries and areas Government reply Person(s) concerned Opinion Follow-up information received 77/2020 Egypt Yes Ramy Shaath Detention arbitrary, categories I, II, III and V None 78/2020 China Yes Kai Li Detention arbitrary, categories I and III Mr. Li remains detained. (Information from the source) 79/2020 Egypt No (late) Ahmed Yasser Mahmoud Ahmed Hassan Detention arbitrary, categories I and III None 80/2020 Egypt No Mohamed Adel Fahmy Ali (known as Mohamed Adel) Detention arbitrary, categories I, II and III None 81/2020 Viet Nam Yes Ho Van Hai Detention arbitrary, categories I, II, III and V Mr. Ho, while on probation, was allowed to leave the country. (Information from the source) 82/2020 China No Xu Zhiyong Detention arbitrary, categories I, II, III and V None 83/2020 Iran (Islamic Republic of) Yes Youcef Nadarkhani Detention arbitrary, categories I, II, III and V None 84/2020 Cambodia and Turkey Cambodia (no);⁴ Turkey (yes) Osman Karaca Detention arbitrary, categories I, III and V None 85/2020 Honduras No (late) José Daniel Márquez Márquez, Kelvin Alejandro Romero Martínez, José Abelino Cedillo, Porfirio Sorto Cedillo, Orbín Nahúm Hernández, Arnold Javier Alemán, Ewer Alexander Cedillo Cruz and Jeremías Martínez Díaz Detention arbitrary, categories I, II and III None 4 On 16 December 2020, the Government submitted a late response, after the adoption of the opinion. Opinion No. Countries and areas Government reply Person(s) concerned Opinion Follow-up information received 86/2020 Saudi Arabia Yes Sheikh Mohammad bin Hassan Al Habib Detention arbitrary, categories I, II, III and V The health of Mr. Al Habib, who has been serving a 12-year prison sentence since July 2016, has been deteriorating in prison, due to the lack of adequate medical care for health problems that he suffers from as a result of torture during his detention. He has been denied medical treatment by prison authorities since May 2019. (Information from the source) 87/2020 Bahrain Yes Ali Mahdi Abdulhusain Mohamad Alaiwi, Hasan Asad Jasim Jasim Nesaif, Habib Hasan Habib Yusuf, Ali Ahmed Ali Ahmed Fakhrawi, Mohamed Ahmed Ali Ahmed Fakhrawi and Nooh Abdulla Hasan Ahmed Hasan Al Amroom Detention arbitrary, categories I and III None 88/2020 India and United Arab Emirates United Arab Emirates (no (late)) India (yes) Christian James Michel Detention arbitrary, United Arab Emirates (categories I and III); detention arbitrary, India (category I) No actions taken by the Government of India to release Mr. Michel. He is risking his life in light of the COVID-19 outbreak. (Information from the source) 89/2020 Tajikistan No Daler Sharipov Detention arbitrary, categories I, II, III and V Mr. Sharipov was released on 28 January 2021 after completing his one-year sentence. No further actions taken to implement the opinion. (Information from the source) Opinion No. Countries and areas Government reply Person(s) concerned Opinion Follow-up information received 90/2020 Lebanon No Hassan Al Dika Detention arbitrary, categories I and III In relation to the death in detention of Mr. Al Dika, the Government confirms that he suffered from several medical conditions and died on 11 May 2019. His conditions of detention complied with national and international standards. The report of the forensic doctor was falsified, and Mr. Al Dika did not die of after-effects of torture. (Information from the Government) 91/2020 India No Safoora Zargar Detention arbitrary, categories I, II and V None 92/2020 Saudi Arabia Yes Mohammed Essam Al-Faraj Detention arbitrary, categories I, II, III and V None

1. A/HRC/36/38. ↩
2. References to Kosovo shall be understood to be in the context of Security Council resolution 1244 (1999). ↩
4. On 16 December 2020, the Government submitted a late response, after the adoption of the opinion. ↩

The table above shows information received by the Working Group as at 30 June 2021 pursuant to the follow-up procedure adopted by the Working Group at its seventy-sixth session, held in August 2016.

The Working Group thanks the sources and the Governments for their responses in the context of its follow-up procedure and invites all parties to cooperate and provide such responses. It notes, however, that these responses do not necessarily imply the implementation of its opinions. The Working Group encourages sources and Governments to provide comprehensive information on the implementation of its opinions, including on the release of individuals who have been the subject of its opinions, as well as other information, such as on the payment of compensation and/or reparations, the investigation of alleged violations and any other changes in legislation or practices, in accordance with the recommendations made.

Release of subjects of the Working Group’s opinions

The Working Group notes with appreciation the information received during the reporting period on the release of the following subjects of its opinions:
Mohamed Merza Ali Moosa (opinion No. 59/2019, Bahrain) – released following an amnesty, and imposition of an alternative sentence to work for a charitable fund
Carlos Marrón Colmenares (opinion No. 80/2019, Bolivarian Republic of Venezuela) – released by court order on 7 January 2020
Four minors (opinion No. 65/2019, Egypt) – three were released following acquittals and the fourth one received a three-year prison sentence and was released as he had already served more time in prison
José Leyes Justiniano (opinion No. 61/2019, Plurinational State of Bolivia) – released by a judge who found due process violations
Amaya Eva Coppens Zamora (opinions No. 43/2019 and No. 21/2020, Nicaragua) – following her conditional release in June 2019 through an amnesty law, she was rearrested on unrelated charges, was released again, and has left the country
Two minors (opinion No. 73/2019, Bahrain) – released pending trial and subsequently convicted and sentenced to one year on probation
Huyen Thu Thi Tran (opinion No. 2/2019, Australia) – released on a bridging visa with her 2-year-old minor child
Jamal Talib Abdulhussein (opinion No. 35/2020, Australia) – granted a temporary protection visa and released from immigration detention
Said Mohamed Elmahdy Agueib Attia Farag (opinion No. 72/2020, Australia) – released on a final determination visa
Levent Kart (opinion No. 66/2020, Turkey) – released pending appeal
Ignace Sossou (opinion No. 46/2020, Benin) – released at the end of his sentence, which was reduced on appeal
Josiel Guía Piloto (opinion No. 63/2019, Cuba) – conditional release
Saman Ahmed Hamad (opinion No. 22/2020, Hungary) – was moved from the transit zone to an open reception centre
Roberto Eugenio Marrero Borjas (opinion No. 75/2019, Bolivarian Republic of Venezuela) – released from detention and able to travel internationally to reunite with his family
Carlos Miguel Aristimuño de Gamas (opinion No. 81/2019, Bolivarian Republic of Venezuela) – released in September 2020
Antonia de la Paz Yolanda Turbay Hernando (opinion No. 44/2020, Bolivarian Republic of Venezuela) – released by presidential pardon on 31 August 2020
Chayapha Chokepornbudsri (opinion No. 3/2018, Thailand) – released following reduction of her sentence
Humberto Rico and Silverio Portal (opinion No. 4/2020, Cuba) – Mr. Rico was released in July 2019 following a presidential pardon and Mr. Portal was released on 1 December 2020 on health grounds
Imelda Cortez Palacios (opinion No. 19/2020, El Salvador) – released following a verdict finding her not guilty
Sixteen individuals (opinion No. 21/2020, Nicaragua) – all released through an amnesty law, which did not expunge their criminal record
Monica Esparza and Edgar Menchaca (opinion No. 24/2020, Mexico) – released prior to the adoption of the opinion, after being found innocent by the court
Tito Elia Magoti (opinion No. 38/2020, United Republic of Tanzania) – released after pleading guilty and paying a fine
Ho Van Hai (opinion No. 81/2020, Viet Nam) – while on probation was allowed to leave the country
Evelyn Beatriz Hernández Cruz and Sara del Rosario Rogel García (opinion No. 68/2019, El Salvador) – Ms. Hernández was conditionally released and subsequently acquitted and Ms. del Rosario was conditionally released
Messaoud Leftissi (opinion No. 53/2020, Algeria) – released following acquittal by the court of appeal and exonerated of all charges
Walid El Batal (opinion No. 68/2020, Morocco) – released following reduction of sentence

The Working Group expresses its gratitude to those Governments that released detainees who had been subject of its opinions. However, it regrets that various States have not cooperated in implementing the opinions and urges those States to do so as a matter of urgency. The Working Group recalls that the continuous detention of those individuals is a continued violation of their right to liberty under article 9 of the Universal Declaration of Human Rights and, for States parties, under article 9 of the International Covenant on Civil and Political Rights.

Reactions from Governments concerning previous opinions

During the reporting period, the Working Group received several reactions from Governments concerning its previous opinions.

On 17 January 2020, the Government of Cambodia rejected the findings of the Working Group in its opinion No. 9/2018 concerning Kem Sokha.

On 8 May 2020, the Government of Viet Nam opposed opinion No. 45/2019, on the grounds of the Working Group’s findings and judgments being biased and not taking into account the official information provided.

In a note verbale dated 8 September 2020, the Government of the United Republic of Tanzania noted that it had already provided comprehensive and sufficient explanations in respect of the case of Tito Elia Magoti (opinion No. 38/2020) through its response to a joint communication (AL TZA 1/2020) from special procedures.

On 11 September 2020, the Government of Kuwait replied to opinion No. 82/2019, recalling that it had informed the Working Group that Waleed Antoine Moubarak was not incarcerated in Kuwait and had left the country. The Government noted with surprise that the Working Group had issued an opinion on arbitrary detention about a person who was not on its territory.

The Government of Kuwait raised an objection to opinion No. 54/2020 and expressed concern that the Working Group had not taken into account the information provided by the Government but had only relied on the information from the source in its opinion. The Government also provided complementary information and clarifications.

In relation to opinions No. 35/2020 and No. 70/2020, the Government of Australia stated that it had always engaged in good faith with the Working Group. However, the Government respectfully disagreed with the recommendations set out in the opinions.

On 30 November 2020, the Government of Viet Nam opposed opinion No. 16/2020 and expressed its regrets that the information provided by Viet Nam concerning Ngô Văn Dũng had not been considered objectively. The arrest, investigation, prosecution and trial of Mr. Dũng had been necessary and had been conducted in accordance with Vietnamese and international laws.

The Government of Morocco opposed opinion No. 68/2020 on the grounds of use of politically biased language and terminology. The Government noted that this went beyond the strict mandate entrusted to the Working Group, and that the comments from Morocco had not been taken into account.

The Government of Japan raised an objection to opinion No. 59/2020 and pointed out that it contained factual errors. The Government expressed its intention to continue providing clear explanations to facilitate correct understanding of the criminal justice system of Japan.

The Government of Japan also raised an objection to opinion No. 58/2020. The Government noted that it was based on factual errors regarding the cases of Mr. Diman and Mr. Yengin as well as on a clear misunderstanding of the immigration control and residency management system in Japan.

The Government of the Russian Federation reiterated its disagreement with opinions No. 10/2020 and No. 23/2020 and insisted on the need for these opinions to be reviewed (see paras. 29–30 below).

Requests for review of adopted opinions

The Working Group considered the requests for review of the following opinions:
Opinion No. 31/2018, concerning Mohamed Al-Bambary (Morocco)
Opinion No. 58/2018, concerning Ahmed Aliouat (Morocco)
Opinion No. 60/2018, concerning Mbarek Daoudi (Morocco)
Opinion No. 22/2019, concerning Ahmad Khaled Mohammed Al Hossan (Saudi Arabia)
Opinion No. 23/2019, concerning Laaroussi Ndor (Morocco)
Opinion No. 67/2019, concerning a group of students (Morocco)
Opinion No. 78/2019, concerning Mounir Benabdellah (Morocco)
Opinion No. 10/2020, concerning 18 individuals (Russian Federation)
Opinion No. 23/2020, concerning Maksud Ibragimov (Tajikistan and Russian Federation)

After examining the requests for review, the Working Group decided to maintain its opinions on the basis that none of the requests met the criteria outlined in paragraph 21 of its methods of work.

Reprisals against subjects of the opinions of the Working Group

The Working Group notes with grave concern that it continues to receive information, including in the context of its follow-up procedure, about reprisals suffered by individuals who have been the subject of an urgent appeal or an opinion or whose cases have given effect to a recommendation of the Working Group.

Between 1 January and 31 December 2020, the Working Group received allegations of reprisals against:
Walid El Batal (opinion No. 68/2020, Morocco)
Aziz El Ouahidi, Elkantawi Elbeur, Mohammed Dadda and Abdelmoula El Hafidi (opinion No. 67/2019, Morocco)

In its resolutions 12/2 and 24/24, the Human Rights Council called upon Governments to prevent and refrain from all acts of intimidation or reprisal against those who sought to cooperate or had cooperated with the United Nations, its representatives or its human rights mechanisms, or who had provided testimony or information to them. The Working Group encourages Member States to take all measures possible to prevent reprisals.

During the period from 1 January to 31 December 2020, the Working Group sent 55 urgent appeals to 27 Governments and 150 allegation letters and other letters to 62 Governments and, in two cases, to other actors, concerning at least 651 identified individuals.

The list of countries concerned by urgent appeals is as follows: Albania (2), Algeria (1), Bahrain (1), Belarus (1), Cameroon (3), Canada (1), China (4), Egypt (4), India (1), Iran (Islamic Republic of) (11), Iraq (3), Malaysia (1), Mauritania (1), Mexico (1), Myanmar (1), Nigeria (2), Panama (1), Philippines (1), Russian Federation (1), Saudi Arabia (2), Turkey (3), Uganda (2), Ukraine (1), United Arab Emirates (2), United States of America (1), Venezuela (Bolivarian Republic of) (2), Viet Nam (1).⁵

5. The full text of urgent appeals will be available from www.ohchr.org/EN/HRBodies/SP/Pages/CommunicationsreportsSP.aspx. ↩

In conformity with paragraphs 22 to 24 of its methods of work, the Working Group, without prejudging whether a detention was arbitrary, drew the attention of each of the Governments concerned to the specific case as reported and appealed to them, often jointly with other special procedure mandate holders, to take the measures necessary to ensure that the detained persons’ rights to life, liberty and physical and psychological integrity were respected.

When an appeal made reference to the critical state of health of certain persons or to particular circumstances, such as a failure to execute a court order for release or to give effect to a previous opinion of the Working Group seeking the release of the person, the Working Group requested that all measures necessary for the immediate release of the detained person be taken. In accordance with Human Rights Council resolution 5/2, the Working Group integrated into its methods of work the prescriptions of the Code of Conduct for Special Procedure Mandate Holders of the Human Rights Council relating to urgent appeals and applies them.

During the period under review, the Working Group also sent 150 letters of allegation and other letters to two other actors and to 62 States, namely: Algeria (2), Azerbaijan (1), Bahrain (1), Bangladesh (2), Belarus (5), Bolivia (Plurinational State of) (2), Burundi (2), Cambodia (3 allegation letters and 1 other letter), Chad (1), Chile (1), China (7 allegation letters and 2 other letters), Colombia (4), Comoros (1), Côte d’Ivoire (2), Cuba (1), Democratic Republic of the Congo (1), Egypt (9 allegation letters and 1 other letter), El Salvador (1), Ethiopia (1), France (1 other letter), Guinea (1), India (5 allegation letters and 1 other letter), Indonesia (3), Iran (Islamic Republic of) (6), Iraq (2), Israel (3), Jordan (2), Lao People’s Democratic Republic (2), Libya (1), Madagascar (2), Malawi (2), Mexico (6), Montenegro (1), Morocco (2), Myanmar (2), Niger (1), Nigeria (1), Pakistan (3), Panama (1), Peru (1), Philippines (1 allegation letter and 1 other letter), Qatar (1), Russian Federation (5), Rwanda (1), Saudi Arabia (2 allegation letters and 1 other letter), Serbia (1), Syrian Arab Republic (1), Tajikistan (1), Tanzania (United Republic of) (1), Thailand (1), Turkey (5 allegation letters and 1 other letter), Turkmenistan (2), Uganda (2), Ukraine (1), United Arab Emirates (1 allegation letter and 1 other letter), United Kingdom of Great Britain and Northern Ireland (1 other letter), United States of America (7), Uzbekistan (1), Venezuela (Bolivarian Republic of) (3), Viet Nam (4), Zambia (1) and Zimbabwe (1).

The Working Group wishes to thank those Governments that responded to its appeals and that took steps to provide it with information on the situation of the individuals concerned, especially the Governments that released such individuals. The Working Group recalls that, in paragraph 4 (f) of its resolution 5/1, the Human Rights Council requested all States to cooperate and engage fully with the United Nations human rights mechanisms.

During 2020, the Working Group sent reminders of its earlier requests to visit the Syrian Arab Republic (22 October 2020) and Libya (22 October 2020).

Responses of Governments to requests for country visits

In a note verbale dated 6 March 2020, the Permanent Mission of Turkey replied that the Working Group was invited to visit Turkey from 23 to 27 November 2020, for no longer than one week (five business days) in accordance with its usual practice. In a note verbale dated 2 September 2020, the Permanent Mission advised that, due to the COVID-19 pandemic, the visit of the Working Group was postponed until 2021. The Government noted that the Working Group was invited to visit Turkey for nine days (five business days and two weekends before and after) in 2021.

In a letter dated 24 March 2020, the Permanent Mission of Australia stated that the Government requested the Working Group to defer its visit to Australia scheduled for 25 May to 5 June 2020 on account of the COVID-19 pandemic. The Government of Australia remained committed to facilitating this visit at a mutually convenient time, and stated that it would work with the Working Group to reschedule the visit once the pandemic had passed.

In a note verbale dated 10 December 2020, the Permanent Mission of Canada expressed its readiness to host a visit by the Working Group once circumstances permitted.

In a note verbale dated 15 December 2020, the Permanent Mission of Libya conveyed the approval of the Government of Libya of the Working Group’s visit request, noting that the Government would like the Working Group to suggest dates and provide details about the visit in order to coordinate with the authorities concerned.

During the reporting period, the Working Group considered thematic issues raised in its jurisprudence and practice.

In December 1998, the General Assembly adopted by consensus the Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms (Declaration on Human Rights Defenders).⁶ Recognizing its importance, the Working Group urged States to implement its principles “to demonstrate a real and sincere commitment to respect for human rights”.⁷ At that time, the Working Group had received several communications involving “repressive measures” taken against individuals, and expressed its concern that human rights defenders were frequently at serious risk of detention.⁸

6. General Assembly resolution 53/144, annex. ↩
7. E/CN.4/2000/4, executive summary, and paras. 65–66 and 69. ↩
8. Ibid. ↩

While good practices continue to give effect to the Declaration on Human Rights Defenders,⁹ human rights defenders remain vulnerable to arbitrary deprivation of liberty. In 2020, approximately 28 per cent of opinions adopted by the Working Group involved the detention of human rights defenders.¹⁰ In all these cases, the Working Group found that human rights defenders had been arbitrarily detained due to their activities in support of human rights. This represents an alarming targeting of civil society members, activists, journalists, bloggers, those advocating against deficiencies in governance, and other dissenting voices. In many cases, human rights defenders were subjected to enforced 6 General Assembly resolution 53/144, annex. 7 E/CN.4/2000/4, executive summary, and paras. 65–66 and 69. 8 Ibid. 9 See, for example, A/HRC/31/55. 10 Opinions adopted in 2020 are listed in sect. C above. disappearance,11 unexplained death in custody,¹² torture and ill-treatment,¹³ intimidation, harassment and threats to their security and to their family members,¹⁴ as well as travel bans, asset freezing and forfeiture, removal of nationality, and placement on terrorist lists.¹⁵ 15 Lawyers representing them also suffered reprisals through criminal charges, office raids, surveillance, and removal from the case,¹⁶ contrary to the duty of States to ensure that lawyers are able to perform their functions without interference.¹⁷

9. See, for example, A/HRC/31/55. ↩
10. Opinions adopted in 2020 are listed in sect. C above. ↩
12. See opinion No. 36/2020. ↩
13. See, for example, opinions No. 85/2020, No. 68/2020, No. 52/2020, No. 38/2020, No. 33/2020, No. 21/2020, No. 7/2020 and No. 4/2020. ↩
14. See, for example, opinions No. 77/2020, No. 43/2020, No. 32/2020, No. 14/2020 and No. 11/2020. ↩
15. See opinions No. 77/2020 and No. 43/2020. ↩
16. See opinions No. 43/2020 and No. 42/2020. See also opinions No. 17/2019, No. 83/2018 and No. 34/2017. ↩
17. 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, principle 9; Basic Principles on the Role of Lawyers, principles 16–22; and A/HRC/45/16, para. 54. ↩

The Working Group observed with concern attempts to silence human rights defenders by sentencing them to lengthy imprisonment terms.¹⁸ Several human rights defenders were detained under vague and overly broad national security and anti-terrorism provisions, giving the authorities wide discretion to criminalize their peaceful activities.¹⁹ Others were charged with public order offences that allegedly occurred during peaceful protests or gatherings.²⁰ Some of the human rights defenders had been previously targeted by the authorities²¹ or were members of a group, such as environmental defenders, whose work had been repeatedly criminalized by States,²² suggesting that their detention was based on discriminatory grounds such as their “political or other opinion” or “status as a human rights defender”.²³ As the Working Group has consistently stated, detaining individuals on the basis of their activities as human rights defenders violates their right to equality before the law and equal protection of the law under articles 2 and 7 of the Universal Declaration of Human Rights and articles 2 (1) and 26 of the Covenant.²⁴ The Working Group also notes that a deprivation of liberty is arbitrary when it constitutes a violation of international law on the grounds of discrimination, and it has found that human rights defenders are a protected group entitled to equal protection of the law under article 26 of the Covenant, falling within category V of the Working Group.²⁵

18. See, for example, opinions No. 42/2020, No. 36/2020 and No. 15/2020. ↩
19. See, for example, opinions No. 91/2020 (inflammatory speech); No. 89/2020 (arousing national, racial, local or religious hostility); No. 82/2020 and No. 11/2020 (subversion of State power); No. 81/2020 and No. 15/2020 (propaganda against the State); No. 80/2020 (spreading false news); No. 43/2020 (inciting social discord); No. 42/2020 (abuse of power); No. 32/2020 (picking quarrels and provoking trouble); and No. 16/2020 (disruption of security). ↩
20. See, for example, opinions No. 21/2020, No. 4/2020 and No. 3/2020. ↩
21. See, for example, opinions No. 50/2020 (detention over 100 times); No. 42/2020 (prior sentence for criticizing the authorities); No. 21/2020 (prior Working Group opinion that the defenders had been arbitrarily detained); No. 18/2020 (persecution for over seven years for defence of labour rights); No. 16/2020 (prior arrest for similar activities); and No. 4/2020 (arrest without charge at least 130 times). ↩
22. See, for example, opinions No. 16/2020 (other members of an NGO arrested at the same time); and No. 3/2020 (repeated criminalization of environmental defenders). ↩
23. See opinion No. 45/2016; and A/HRC/36/37, para. 49. ↩
24. See, for example, opinions No. 50/2020, No. 42/2020, No. 38/2020, No. 33/2020, No. 32/2020 and No. 27/2020. ↩
25. See, for example, opinion No. 81/2020. See also opinion No. 45/2016. ↩

Information received by the Working Group also suggests that human rights defenders who belong to marginalized groups themselves, or who seek to protect the rights of other marginalized people, are at significant risk of detention. Women human rights defenders have been arrested and subjected to gendered risks, including threats to publicize fabricated sexual images, denial of female hygiene products while in custody, death threats to a mother and her children, verbal attacks for believing in feminism, and virginity testing, suggesting detention on the discriminatory basis of their gender. This treatment highlights the additional risks faced by women human rights defenders when detained.²⁶ Other human rights defenders have been detained for advocacy to remove a ban on women driving, seeking to change restrictive rules on male guardianship, calling for an end to sexual harassment, speaking out against the stoning of women for adultery, promoting free hygiene products for schoolgirls, attending a meeting on International Women’s Day, and protecting women and children’s rights and their education.²⁷ Similarly, human rights defenders who sought to protect the rights of children with disabilities, of persons living with communicable diseases, and of LGBTIQ+ persons, have been detained and punished for their work.²⁸

26. See opinions No. 33/2020, No. 24/2019, No. 21/2019, No. 61/2018, No. 57/2017, No. 50/2017, No. 48/2017 and No. 1/2016. ↩
27. See opinions No. 33/2020, No. 14/2020, No. 33/2019, No. 83/2018, No. 57/2017, No. 48/2017 and No. 1/2016. ↩
28. See opinions No. 32/2020, No. 11/2020, No. 57/2017 and No. 14/2017. ↩

The arbitrary detention of human rights defenders is a serious human rights violation that occurs worldwide and must be urgently addressed by States. In some States, the detention of human rights defenders and other individuals is widespread, prompting the Working Group to warn that systematic violation of the right to freedom from arbitrary arrest and detention may constitute a serious violation of international law.²⁹ Human rights defenders play a vital role in reducing the incidence of arbitrary deprivation of liberty through monitoring places of detention, advocacy for change in laws and practices, provision of advice on implementing human rights standards, and awareness-raising on the right to liberty.³⁰

29. See, for example, opinions No. 82/2020, No. 80/2020, No. 42/2020, No. 36/2020, No. 33/2020, No. 32/2020, No. 18/2020, No. 16/2020, No. 15/2020, No. 14/2020 and No. 11/2020. ↩
30. A/HRC/45/16/Add.2, para. 87. ↩

During the reporting period, the Working Group noted a pattern in cases brought under the regular communications procedure³¹ as well as under the urgent communications procedure³² involving attempts to forcibly remove, extradite or deport an individual from one State to another, effectively circumventing the extradition process required by the rule of law and safeguards against arbitrary detention.³³

31. See opinions No. 23/2020, No. 33/2020, No. 42/2020, No. 47/2020, No. 48/2020, No. 51/2020, No. 84/2020 and No. 88/2020. ↩
32. See, inter alia, ALB 1/2020, ALB 2/2020 and TUR 3/2020; see also AZE 1/2019, KSV 1/2018, TUR 6/2018 and GAB 2/2018. These communications are available from https://spcommreports.ohchr.org/Tmsearch/TMDocuments. ↩
33. The Working Group notes that the Working Group on Enforced or Involuntary Disappearances is also examining this matter. ↩

Noting that such cases amount to close to 10 per cent of the Working Group’s jurisprudence under the regular communications procedure during the reporting period, the Working Group wishes to clarify the international human rights law which must be observed in such situations.

These cases have involved various allegations, including extradition proceedings which have either been protracted and not fully completed³⁴ or unsuccessful³⁵ but which have nevertheless led to a forcible removal of the victim from the jurisdiction. In some cases, the authorities have not initiated extradition proceedings; instead, national agents detained the victim at the request of the foreign authorities³⁶ or handed over the victim(s) to agents of a foreign Government.³⁷ The victims in these cases have been forcibly transferred to airports where they would be bundled up into the cargo compartment of a plane and removed from the country;³⁸ detentions have been carried out in the middle of the night, executed by a large number of masked officers;³⁹ victims have been prevented from notifying their family members and lawyers of their whereabouts,⁴⁰ and have been subjected to extensive interrogations and forced to sign documents.⁴¹ Additionally, victims have been held incommunicado⁴² and even forcibly disappeared⁴³ prior to and/or after their forcible transfer to the other State. In some cases, such forced transfers have concerned a large number of victims transferred in coordinated operations,⁴⁴ while other cases have involved families with children, including minors.⁴⁵ In other cases, the extradition requests have been approved by the extraditing State as a de facto swap or the capture and return to that State of a high-profile detainee.⁴⁶

34. See, for example, opinion No. 88/2020. ↩
35. See, for example, opinion No. 23/2020. ↩
36. See, for example, opinion No. 84/2020. ↩
37. See, for example, opinions No. 47/2020 and No. 42/2020. ↩
38. See, for example, opinion No. 23/2020. ↩
39. See, for example, opinion No. 51/2020. ↩
40. See, for example, opinion No. 47/2020. ↩
41. See, for example, opinion No. 88/2020. ↩
42. See, for example, opinions No. 23/2020 and No. 84/2020. See also A/HRC/13/42. ↩
43. See, for example, opinions No. 33/2020 and No. 42/2020. ↩
44. See, for example, opinion No. 47/2020. ↩
45. See, for example, opinion No. 51/2020. See also opinion No. 11/2018. ↩
46. See, for example, opinion No. 88/2020. ↩

When considering these cases, the Working Group has consistently recalled that international law regarding extradition provides procedures that must be observed by countries in returning individuals to face criminal proceedings in another country to ensure that their right to a fair trial is protected.⁴⁷ While the Working Group does not dispute the right of each State to deport aliens who pose threats to its national security,⁴⁸ this does not place such aliens outside the protection of the law.⁴⁹ Article 13 of the Covenant obliges States to ensure that aliens lawfully in its territory are expelled only in pursuance of a decision reached in accordance with the law, to allow them to submit reasons against the expulsion and have the case reviewed by, and be represented before, a competent authority.⁵⁰ This is also required by article 9 of the Universal Declaration of Human Rights.⁵¹ Involuntary expulsion to a foreign State without a hearing by judicial authorities cannot be in conformity with due process.

47. See opinions No. 42/2020, para. 60; No. 33/2020, para. 63; No. 23/2020, para. 58; No. 10/2019, para. 71; and No. 11/2018, para. 53. ↩
48. Human Rights Committee, V.M.R.B. v. Canada, communication No. 236/1987; and Human Rights Committee, J.R.C. v. Costa Rica, communication No. 296/1988. ↩
49. Alzery v. Sweden (CCPR/C/88/D/1416/2005). ↩
50. See opinion No. 23/2020. ↩
51. See opinion No. 47/2020. ↩

The Working Group underlines that the right to challenge the legality of detention before a court, as required by articles 3, 8 and 9 of the Universal Declaration of Human Rights and articles 2 (3) and 9 (1) and (4) of the Covenant, as well as principles 11, 32 and 37 of the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, belongs to everyone.⁵² Equally, the right to be notified of the reasons for the arrest or detention and to be promptly presented before a judicial authority belongs to everyone.⁵³ Forcible transfers which fail to respect the fundamental requirements of due process can never have a legal basis and will therefore always fall under category I of the Working Group.

52. See also 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. ↩
53. See, for example, opinion No. 51/2020. ↩

The Working Group also notes that such cases have involved denial of the right to legal counsel, which is procedurally inherent in the right to liberty and security of person and the right to prohibition of arbitrary detention, in violation of articles 3 and 9 of the Universal Declaration of Human Rights and article 9 (1) of the Covenant, as well as principles 15, 17 and 18 of the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment and principles 1, 5, 7, 8, 21 and 22 of the Basic Principles on the Role of Lawyers. It recalls that persons deprived of their liberty have the right to legal assistance by counsel of their choice, at any time during their detention, including immediately after the moment of apprehension.⁵⁴ The Working Group reiterates that access to legal counsel from the outset of detention applies to everyone, including foreign nationals, and is an essential safeguard in ensuring that the detainee can challenge the legality of his or her detention.⁵⁵

54. Opinion No. 84/2020, para. 43. See also Human Rights Committee, general comment No. 32 (2007), para. 34; and 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, principle 9 and guideline 8. ↩
55. Opinion No. 81/2020, para. 81; see also A/HRC/45/16, paras. 50–53. ↩

The Working Group further observes the denial of consular assistance in such cases, and, noting the limited availability of remedies for individuals in the international sphere, recalls⁵⁶ that consular protection is invaluable for foreign nationals who are disadvantaged by their lack of familiarity with local laws, customs and languages.

56. Opinions No. 84/2020, No. 88/2020 and No. 47/2020. ↩

The Working Group reiterates that the right to be informed of the right to consular assistance without delay under article 36 (1) (b) of the Vienna Convention on Consular Relations applies to all detained foreign nationals. This and other violations of the rights guaranteed under article 36 (1) of the Vienna Convention constitute grave violations of the rights to due process and to a fair trial under articles 10 and 11 (1) of the Universal Declaration of Human Rights and article 14 of the Covenant, as well as principle 16 (2) of the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment.⁵⁷

57. See General Assembly resolutions 72/149, para. 32; 72/179, para. 4 (k); 73/175, para. 7 (b); 74/166, para. 17 (g); 74/167, para. 13; and 74/168, para. 6 (j); as well as Human Rights Council resolutions 42/24, para. 5; and 40/20, para. 2 (j). See also rule 62 (1) of United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules); art. 10 of the Declaration on the Human Rights of Individuals Who are not Nationals of the Country in which They Live; and 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, guideline 21. ↩

Furthermore, the Working Group notes that the cases of forcible transfer have involved complete disregard for the fundamental principle of non-refoulement. The Working Group recalls that individuals should not be expelled to another country when there are substantial grounds for believing that their life or freedom would be at risk⁵⁸ or that they would be in danger of torture or ill-treatment.⁵⁹ The risk of arbitrary detention in the receiving State,⁶⁰ or in a third-party transit State, must be among the elements taken into consideration.

58. A/HRC/4/40, paras. 44–45. ↩
59. See opinions No. 23/2020, No. 51/2020 and No. 84/2020. ↩
60. See opinion No. 42/2020. ↩

The Working Group recalls that the State which forcibly removes an individual from its jurisdiction cannot absolve itself from responsibility over what happens to that person in the jurisdiction to which he or she has been forcibly removed. It has therefore consistently held that the removing State is fully responsible for the human rights violations suffered by the individual in the receiving State. The Working Group calls upon all States to refrain from forcible transfers of individuals circumventing due process established by international human rights law and disregarding the safeguards against arbitrary detention.

The Working Group welcomes the initiative of Canada in launching the Declaration against Arbitrary Detention in State-to-State Relations⁶¹ and its Partnership Action Plan to advance the Declaration, endorsed so far by 63 States. The Working Group recalls its grave 54 Opinion No. 84/2020, para. 43. See also Human Rights Committee, general comment No. 32 (2007), para. 34; and 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, principle 9 and guideline 8. 55 Opinion No. 81/2020, para. 81; see also A/HRC/45/16, paras. 50–53. 56 Opinions No. 84/2020, No. 88/2020 and No. 47/2020. 57 See General Assembly resolutions 72/149, para. 32; 72/179, para. 4 (k); 73/175, para. 7 (b); 74/166, para. 17 (g); 74/167, para. 13; and 74/168, para. 6 (j); as well as Human Rights Council resolutions 42/24, para. 5; and 40/20, para. 2 (j). See also rule 62 (1) of United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules); art. 10 of the Declaration on the Human Rights of Individuals Who are not Nationals of the Country in which They Live; and 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, guideline 21. 58 A/HRC/4/40, paras. 44–45. 59 See opinions No. 23/2020, No. 51/2020 and No. 84/2020. 60 See opinion No. 42/2020. 61 Available at www.international.gc.ca/news-nouvelles/assets/pdfs/arbitrary_detentiondetention_arbitraire-declaration-en.pdf. concern about the detention of foreign nationals and its recommendations for the proper and prompt consular assistance as an essential safeguard against arbitrary detention.⁶²

61. Available at www.international.gc.ca/news-nouvelles/assets/pdfs/arbitrary_detention-detention_arbitraire-declaration-en.pdf. ↩
62. See, for example, opinions No. 89/2017, No. 45/2017, No. 7/2017, No. 56/2016, No. 53/2016 and No. 28/2016. See also A/HRC/39/45, paras. 50–58 ↩

The Declaration against Arbitrary Detention in State-to-State Relations seeks to further the absolute prohibition of arbitrary detention as envisaged in article 9 of the Universal Declaration of Human Rights and article 9 of the Covenant, premised on the universal⁶³ and customary nature of this prohibition as non-derogable.⁶⁴ The worldwide prohibition of arbitrary detention is a clear testament to its universally binding nature under customary international law⁶⁵ making any derogations impermissible.⁶⁶

63. American Convention on Human Rights, art. 7; African Charter on Human and Peoples’ Rights, art. 6; Arab Charter on Human Rights, art. 14; and Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights), art. 5. See also Human Rights Committee, general comment No. 35 (2014), para. 2. ↩
64. E/CN.4/2002/77, para. 60 (a); and A/HRC/42/39/Add.1, para. 65. ↩
65. A/HRC/22/44. ↩
66. Ibid., paras. 43–50. ↩

The Declaration against Arbitrary Detention in State-to-State Relations was launched on 15 February 2021 in Ottawa; this was followed by the presentation of its Partnership Action Plan, announced on 5 May 2021, to advance its dissemination and implementation. Its aims and purposes relate closely to the concerns expressed by the Working Group in the past.⁶⁷ Therefore, the Working Group commends this initiative born out of the prevalence of instances where foreign nationals are detained in a country in order to gain leverage in relations with the States of their nationality, and it stands ready, within the remits of its mandate, to support the Partnership Action Plan and engage with all endorsing States.

67. A/HRC/39/45, paras. 50–58; and revised deliberation No. 5 (A/HRC/39/45, annex). ↩

In 2020, the Working Group continued its work, in the extraordinary circumstances of the global pandemic, in addressing the large number of submissions received, including through its regular communications procedure. Adoption of opinions was set as a priority, resulting in the adoption of a total of 92 opinions, concerning 221 persons in 47 countries.

The Working Group notes with concern the response rate from States under its regular communications procedure, where States provided a timely response to the Working Group’s communications and requests for information in approximately 53 per cent of the cases in which it adopted an opinion in 2020.

The Working Group has taken note of an increased response rate in the context of its follow-up procedure, both from sources and Governments, as compared to the previous year, with responses having been received in approximately 58 per cent of cases in 2020. Regrettably, an increased response rate does not necessarily imply increased implementation of the opinions.

While the Working Group continues to respond to as many requests for its action as possible and to process cases in a timely and efficient manner in accordance with paragraph 15 of Human Rights Council resolution 42/22, it continues to face an ongoing backlog of cases.

Throughout the reporting period, the Working Group continued to explore various thematic issues to assist stakeholders in preventing arbitrary detention. This included formulating a deliberation, elaborating on thematic topics in the present report and completing the study on arbitrary detention relating to drug policies. 62 See, for example, opinions No. 89/2017, No. 45/2017, No. 7/2017, No. 56/2016, No. 53/2016 and No. 28/2016. See also A/HRC/39/45, paras. 50–58 63 American Convention on Human Rights, art. 7; African Charter on Human and Peoples’ Rights, art. 6; Arab Charter on Human Rights, art. 14; and Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights), art. 5. See also Human Rights Committee, general comment No. 35 (2014), para. 2. 64 E/CN.4/2002/77, para. 60 (a); and A/HRC/42/39/Add.1, para. 65. 65 A/HRC/22/44. 66 Ibid., paras. 43–50. 67 A/HRC/39/45, paras. 50–58; and revised deliberation No. 5 (A/HRC/39/45, annex).

The Working Group calls upon States to increase their cooperation in responding to regular and other communications, by reporting through the follow-up procedure on the implementation of the Working Group’s opinions (including on the provision of appropriate remedies and reparations to victims of arbitrary detention), and by responding positively to requests for country visits.

The Working Group encourages States to give full effect to the Declaration on Human Rights Defenders by ensuring that human rights defenders are not deprived of their liberty as a result of their activities. This requires putting an end to practices that silence human rights defenders for their work, such as lengthy imprisonment terms, detention under vague and overly broad laws, and the repeated targeting of those who protect the rights of others, particularly defenders who act on behalf of, or belong to, marginalized groups.

The Working Group also encourages States to afford all due process guarantees, and especially the right to legal representation and the right to challenge the legality of detention, to all those who are to be expelled or extradited from their jurisdiction, and to ensure that any such expulsions or extraditions do not result in arbitrary deprivation of liberty.

While reiterating its serious concerns at the detention of foreign nationals in a State in circumstances where their foreign nationality has served as a reason for their deprivation of liberty, the Working Group welcomes the adoption of the Declaration against Arbitrary Detention in State-to-State Relations and calls upon all States to endorse the Declaration and to take the necessary measures to implement it in practice along with its Partnership Action Plan.

The Working Group calls upon States to continue efforts to close the implementation gap between international standards and the realities encountered by women deprived of their liberty, by incorporating the guidance provided in its deliberation No. 12 into national laws, policies and practices. Priority must be given to alternatives to detention for women, ensuring that women are not detained on discriminatory grounds, providing dedicated and appropriate detention facilities for female detainees, and addressing specific areas of concern identified in deliberation No. 12 in all detention contexts.

With the recent 10th anniversary of the United Nations Rules for the Treatment of Women Prisoners and Non-custodial Measures for Women Offenders (the ‘Bangkok Rules’), the Working Group is of the view that it is an opportune time to consider and reflect upon the unique challenges that face women¹ deprived of their liberty.

1. For the purposes of this Deliberation, references to women should be read to include women and girls. ↩

The Bangkok Rules seek to address the gender-specific needs of women in contact with the criminal justice system, both in relation to non-custodial alternatives to detention for women offenders and the conditions of detention for women prisoners.

Regrettably, there remains a significant implementation gap between the norms contained in such international standards² and the lived experience of women deprived of their liberty. The Working Group remains concerned that women continue to be arbitrarily deprived of their liberty in violation of their human rights, particularly in circumstances where they are detained directly or indirectly because of their sex or gender, or where their gender-specific needs are not taken into account.

2. See also the United Nations Standard Minimum Rules for the Treatment of Prisoners (the ‘Nelson Mandela Rules’), A/RES/70/175, rules 11 (a), 28, 45 (2), 48 (2), 58 (2), 81; United Nations Standard Minimum Rules for the Administration of Juvenile Justice (the “Beijing Rules”), A/RES/40/33, rule 26.4. ↩

Although there has been increased engagement by women with the Working Group’s mandate in recent years,³ women continue to be underrepresented in the opinions of the Working Group. As of 2019, only 8 per cent of the individuals whose situations have been considered in the Working Group’s opinions since its establishment were identifiably women. The Working Group urges women and other stakeholders to continue bringing situations involving the arbitrary deprivation of liberty of women to the attention of the Working Group as appropriate. The Working Group is conscious of the different challenges experienced by women deprived of their liberty and that such detention may occur in different settings, be it the criminal justice context or healthcare or other settings. The Working Group will continue to devote attention to the various contexts in which women are detained during its country visits.

3. A/HRC/45/16, para. 49. ↩

The present deliberation considers the gender-specific dimensions of arbitrary detention and provides guidance to assist States and other stakeholders to prevent and address arbitrary detention of women in the criminal justice system, immigration detention, administrative detention, healthcare situations and certain private settings.

This deliberation recognizes that not all women experience deprivation of liberty in the same manner and it is therefore necessary to consider the disparate experience of women who already experience disadvantage, including women with disabilities, older women, indigenous women, women affected by extreme poverty, homeless women, women sex workers, women who use drugs, non-national women, including migrants, asylum seekers and refugees, lesbian, bisexual, transgender and gender diverse women and intersex persons,⁴ women human rights defenders and activists and women belonging to national or ethnic, cultural, religious or linguistic minorities, amongst others. In particular, the Working Group recalls that women who experience multiple and intersecting forms of discrimination are at higher risk of being deprived of their liberty.⁵

4. A/HRC/36/37, para. 46; A/HRC/30/37, annex, para. 8; Deliberation No. 11 on prevention of arbitrary deprivation of liberty in the context of public health emergencies (A/HRC/45/16, annex II), para. 27; Human Rights Committee, general comment No. 35, para. 3. ↩
5. A/HRC/41/33, para. 16. ↩

While women constitute a minority of the prison population, there has been a considerable growth in the female prison population worldwide,⁶ at a significantly disproportionate rate to that of men. In the last twenty years, the number of women and girls in prison has increased by approximately 53 per cent, while the male population has increased by approximately 20 per cent.

6. It has been estimated that women represent between 2 and 9 per cent of the total prison population worldwide, see A/68/340, para. 1; Roy Walmsley, World Female Imprisonment List (Institute for Criminal Policy Research, 4th edn, 2017), p. 2. ↩

According to international human rights law, personal liberty is the principle, and detention should be the exception rather than the rule.⁷ States should consider gender-sensitive alternatives to detention for women,⁸ and make those alternatives available to women on an equal basis with men.⁹ The right to challenge the legality of detention, including the right to seek alternatives to detention, belongs equally to women in all settings where women are deprived of their liberty. In order to make this right a reality, it is essential that women are informed of and afforded their right to legal assistance of their choice at any time during their detention, including immediately after their apprehension.¹⁰

7. A/HRC/27/48/Add.5, para. 79; A/HRC/19/57, paras. 48–58. ↩
8. Bangkok Rules, rules 57–63; Committee on the Elimination of Discrimination against Women, General recommendation No. 33, para. 48. ↩
9. Sixth UN Congress on the Prevention of Crime and the Treatment of Offenders 1980, A/CONF.87/14/Rev.1, Resolution. 9, Specific needs of women prisoners, para. 2. ↩
10. A/HRC/30/37, annex, paras. 12–15, 67–71. ↩

States should ensure the availability of non-custodial measures at all stages of the criminal justice process, including diversion, pretrial and sentencing alternatives. The right to equality before the law requires that judicial practices be gender-sensitive and not blind to contextual factors that may be relevant to a woman’s offending, including any history of gender-based violence, any caregiving responsibilities that women may have and other compounding vulnerabilities.¹¹ Non-custodial sentences for pregnant women and women with dependent children should be given priority where appropriate, with the best interests of the child as a primary consideration.¹² Alternatives to detention must also be made available on a non-discriminatory basis so that, for example, electronic monitoring devices (such as bracelets or tagging) are publicly funded and available to all women regardless of their ability to pay for such alternatives.¹³

11. Bangkok Rules, rules 57–63. ↩
12. Convention on the Rights of the Child, art. 3 (1); Bangkok Rules, rules 64; UN Guidelines for the Alternative Care of Children, A/RES/64/142, para. 48; Human Rights Council Resolution 10/2, para. 13. See also Nelson Mandela Rules, rule 29. ↩
13. A/HRC/39/45/Add.1, para. 38; A/HRC/45/16, para. 58. ↩

States must also consider alternatives to detention in the context of immigration detention. This may include measures such as reporting at regular intervals to the authorities, community-based solutions, release on bail or other securities, or stay in open centres or at a designated place.¹⁴ States must ensure that any such measures are not in themselves discriminatory, and are not combined with conditions that make release impracticable or inaccessible for women migrants, refugees or asylum seekers,¹⁵ such as excessive bond amounts.¹⁶ Similarly, alternatives to detention, particularly the provision of care in the community, should be prioritized for women with disabilities, including psychosocial, intellectual and other disabilities, rather than institutional confinement.¹⁷

14. Revised deliberation No. 5 on deprivation of liberty of migrants (A/HRC/39/45, annex), para. 17. ↩
15. Ibid, para. 17; A/HRC/36/37/Add.2, paras. 28, 30. ↩
16. A/HRC/36/37/Add.2, para. 28. ↩
17. A/HRC/39/45/Add.2, paras. 48–50, 60–64, 86(c), 89; A/HRC/41/33, paras. 44, 80(d), 83(d). ↩

See also Nelson Mandela Rules, rule 29. 13 A/HRC/39/45/Add.1, para. 38; A/HRC/45/16, para. 58. 14 Revised deliberation No. 5 on deprivation of liberty of migrants (A/HRC/39/45, annex), para. 17. 15 Ibid, para. 17; A/HRC/36/37/Add.2, paras. 28, 30. 16 A/HRC/36/37/Add.2, para. 28. 17 A/HRC/39/45/Add.2, paras. 48–50, 60–64, 86(c), 89; A/HRC/41/33, paras. 44, 80(d), 83(d).

States should consider, in particular, measures to ensure that detention does not result in the unnecessary separation of women from their children,¹⁸ as this may violate the right to protection of the family¹⁹ and the rights of children not to be separated from their parents against their will.²⁰

18. Bangkok Rules, rule 58; Opinion No. 75/2017, paras. 58, 63. ↩
19. International Covenant on Civil and Political Rights, art. 23; International Covenant on Economic, Social and Cultural Rights, art. 10. ↩
20. Convention on the Rights of the Child, art. 9; A/HRC/20/24, para. 40. ↩

The Working Group regards deprivation of liberty as arbitrary when it constitutes a violation of international law on the grounds of discrimination based on birth, national, ethnic or social origin, language, religion, economic condition, political or other opinion, gender, sexual orientation, disability, or any other status, that aims towards or can result in ignoring the equality of human beings.²¹ These prohibited grounds of discrimination are non-exhaustive.²²

21. A/HRC/36/38, para. 8 (e). ↩
22. The Working Group may determine that an individual or group has been deprived of their liberty on the grounds of discrimination on the basis of “any other status”; see, e.g. Opinion No. 45/2016, para. 44. ↩

Accordingly, the arrest or detention of women on the basis of their sex or gender is prima facie discriminatory, in violation of articles 2 and 7 of the Universal Declaration of Human Rights and articles 2 (1), 3 and 26 of the International Covenant on Civil and Political Rights (the ‘Covenant’), and therefore constitutes arbitrary detention.²³

23. See, e.g. Opinions No. 33/2020; No. 61/2018; No. 1/2016. ↩

As women often experience multiple and intersecting forms of discrimination²⁴ they may be particularly vulnerable to being arrested or detained on the basis of discriminatory grounds.²⁵ States must address and take into account the situation of women who face particular discrimination which may lead to their arbitrary detention, including, but not limited to, girls; women with disabilities, including psychosocial and intellectual disabilities; lesbian, bisexual, transgender women and intersex people; non-nationals, including migrants regardless of their migration status, refugees and asylum seekers, internally displaced women, stateless women and trafficked women or women at risk of being trafficked; women accused or convicted of a crime; women who have or are suspected to have engaged in the preparation, commission or instigation of acts of terrorism; women drug users; women with dementia; women human rights defenders and activists; older women; women living with HIV/AIDS and other serious communicable or chronic diseases; indigenous women; sex workers; minorities as based on national or ethnic, cultural, religious and linguistic identity, and women who are targeted for violating traditional gender stereotypes and norms (e.g. for honour-related offences).²⁶

24. See, e.g. Committee on the Elimination of Discrimination against Women, General recommendation No. 33, para. 8. ↩
25. See, e.g. Opinion No. 1/2016, para. 38. ↩
26. A/HRC/30/37, annex, para. 8; A/HRC/36/37, para. 46. ↩

In determining whether a woman has been arbitrarily detained on the basis of discriminatory grounds, relevant factors to consider may include whether: (a) the deprivation of liberty was part of a pattern of persecution against the detained woman (e.g. a woman was targeted on multiple occasions through previous detention, acts of violence or threats);²⁷ (b) other persons with similarly distinguishing characteristics have also been persecuted; 18 Bangkok Rules, rule 58; Opinion No. 75/2017, paras. 58, 63. 19 International Covenant on Civil and Political Rights, art. 23; International Covenant on Economic, Social and Cultural Rights, art. 10. 20 Convention on the Rights of the Child, art. 9; A/HRC/20/24, para. 40. 21 A/HRC/36/38, para. 8 (e). 22 The Working Group may determine that an individual or group has been deprived of their liberty on the grounds of discrimination on the basis of “any other status”; see, e.g. Opinion No. 45/2016, para.

27. See, e.g. Opinion No. 61/2018, para. 72. ↩

23 See, e.g. Opinions No. 33/2020; No. 61/2018; No. 1/2016. 24 See, e.g. Committee on the Elimination of Discrimination against Women, General recommendation No. 33, para. 8. 25 See, e.g. Opinion No. 1/2016, para. 38. 26 A/HRC/30/37, annex, para. 8; A/HRC/36/37, para. 46. 27 See, e.g. Opinion No. 61/2018, para. 72. (c) the authorities have made statements to, or conducted themselves toward, the detained woman in a manner that indicates a discriminatory attitude (e.g. female detainees threatened with rape or forced to undergo virginity testing);²⁸ (d) the context suggests that the authorities have detained a woman on discriminatory grounds or to prevent them from exercising their human rights (e.g. women human rights defenders detained after expressing their political opinions);²⁹ and (e) the alleged conduct for which the woman is detained is only a criminal offence for members of her group (e.g. criminalization of abortion).³⁰

28. See, e.g. Opinion No. 1/2016, para. 37. ↩
29. See, e.g. Opinion No. 24/2015, para. 44. ↩
30. See, e.g. Opinions No. 19/2020, para. 73; No. 68/2019, para. 115. ↩

The prohibition of detention on discriminatory grounds includes both de jure and de facto discrimination.

Women must not be deprived of their liberty on the basis of laws which are de jure discriminatory, such as laws which solely or disproportionately affect women, including laws which directly target women in relation to their sex or gender, or which are based upon traditional gender stereotypes and norms.³¹ Further, laws which criminalize forms of behaviour that are not criminalized or punished as harshly if they are performed by men or forms of behaviour that can be performed only by women are prima facie discriminatory.³² This includes offences related to the exercise of reproductive rights, such as abortion, and certain sexual and/or “honour”-related offences such as adultery and prostitution.³³ In some circumstances, detention pursuant to discriminatory laws may constitute arbitrary detention on the grounds that the law violates international human rights standards and consequently the detention lacks a legal basis.³⁴

31. Committee on the Elimination of Discrimination against Women, General recommendation No. 33, paras. 21–22. ↩
32. Ibid, paras. 47, 51 (l). ↩
33. See infra paras. 66–68. ↩
34. A/HRC/36/38, para. 8 (a); see Opinion No. 42/2012, para. 29 (even when the arrest and detention of a person is carried out in conformity with national legislation, the Working Group is mandated to ensure that the detention is also consistent with international human rights law); see generally Opinions No. 4/2019, para. 49; No. 69/2019, para. 21; No. 40/2018, para. 45; No. 1/2018, paras. 60, 65; No. 43/2017, para. 34; No. 14/2017, para. 49; Human Rights Committee, General comment No. 35, paras. 11–12. ↩

States must urgently review their legislative frameworks and amend or repeal any such laws that lead to the discriminatory deprivation of liberty of women.³⁵

35. Convention on the Elimination of All Forms of Discrimination against Women, art. 2; Committee on the Elimination of Discrimination against Women, General recommendation No. 33, para. 21. ↩

States must ensure that women are not subject to de facto discrimination resulting in the deprivation of their liberty. Laws, policies and practices must not be applied in such a manner so as to result in or have the effect of women being deprived of their liberty directly or indirectly because of their sex or gender.³⁶ Accordingly States should review legislation, charging practices, arrest procedures and profiling practices to ensure that they do not discriminate against women. For example, ostensibly gender-neutral laws must not be applied or enforced in a manner which disproportionately impacts women,³⁷ or which targets or profiles particular women because of their sex, gender or other protected characteristics.³⁸ In addition, States must take steps to eliminate gender stereotyping of women in the criminal justice system, and ensure that women are not detained on the basis of non-conformity with gender stereotypes or due to harmful and patriarchal cultural norms.³⁹

36. Committee on the Elimination of Discrimination against Women, General recommendation No. 28, para. 5. ↩
37. See, e.g. A/HRC/45/16/Add.2, para. 43. ↩
38. See, e.g. Opinion No. 61/2018, para. 72. ↩
39. Committee on the Elimination of Discrimination against Women, General recommendation No. 33, paras. 7, 8, 26. ↩

The prohibition of non-discrimination requires States to take positive measures in order to achieve the substantive equality of women.⁴⁰ In addition, States must take steps to provide additional protection to women who may be at risk of arbitrary deprivation of their liberty. A failure by a State to take such measures may itself constitute discrimination, leading to arbitrary deprivation of liberty.

40. Convention on the Elimination of All Forms of Discrimination against Women, art. 2; Committee on the Elimination of Discrimination against Women, General recommendation No. 28, paras. 9, 16, 24. ↩

The Working Group urges all States to implement full observance of the Bangkok Rules and the Nelson Mandela Rules. To this end, States must ensure that dedicated and appropriate detention facilities are available to accommodate female detainees, including pre-trial detention facilities and prisons for convicted women.

Poor, and often inhumane, conditions of detention have been reported around the world affecting both women and men, including overcrowding, unsanitary conditions, lack of food and water, inadequate healthcare and limited contact with family and support networks. The Working Group considers that in certain circumstances, conditions of detention may severely and adversely affect the ability of women to challenge the legality of their detention and to participate in their own defence, in violation of the right to the equality of arms and to a fair trial.⁴¹ Moreover, such detention conditions are contrary to international human rights law and raise issues of torture or cruel, inhuman or degrading treatment or punishment.⁴²

41. Universal Declaration of Human Rights, arts. 10, 11 (1); International Covenant on Civil and Political Rights, arts. 9, 14; see Opinions No. 74/2020, para. 74 (ill-treatment, including detention in an overcrowded cell, sleep deprivation, lack of clean drinking water and lack of access to a shower); No. 61/2020, para. 84 (physical and psychological suffering); No. 52/2018, para. 79 (j) (overcrowded, unhygienic and inhuman conditions); No. 47/2017, para. 28 (torture, including beatings and rape); No. 29/2017, para. 63 (severe beating and being brought to court on a stretcher); E/CN.4/2004/3/Add.3, para. 33. ↩
42. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, arts. 1 (1), 16 (1). See generally CAT/OP/27/1. ↩

The Working Group recognizes that women experience additional and different obstacles relating to conditions of detention based on their sex or gender. In this regard, a number of recurring issues of concern regarding the conditions of detention of women have come to the attention of the Working Group, including:
(a) Torture or cruel, inhuman or degrading treatment of female detainees,⁴³ including rape and sexual assault (and threats thereof) during interrogation and detention;⁴⁴
(b) Lack of dedicated detention facilities for female detainees⁴⁵ and failure to provide separate facilities for female and male detainees;⁴⁶
(c) Separation of women and children in immigration facilities;⁴⁷
(d) Failure to respect the hygiene needs of women, including inadequate facilities that do not protect women’s privacy,⁴⁸ and failure to provide personal hygiene items;⁴⁹
(e) Inadequate mental and physical health care,⁵⁰ including failure to consider women’s specific health needs and failure to provide adequate prenatal and postnatal care and treatment to women and children;⁵¹
(f) Searches that are used to harass, intimidate or unnecessarily intrude upon women’s privacy and/or violate their dignity or physical autonomy, integrity or security;⁵² and
(g) Failures to protect women from, and investigate, harassment and abuse from staff and detainees.⁵³

43. Nelson Mandela Rules, rule 1; Universal Declaration of Human Rights, art. 5; International Covenant on Civil and Political Rights, art. 7; Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, arts. 2 (1), 16 (1); see generally CAT/OP/27/1; Opinions No. 61/2020, para. 84; No. 33/2020, para. 90; No. 21/2019, para. 44. ↩
44. Opinions No. 61/2020, para. 82; No. 33/2020, para. 90; No. 31/2019, para. 38; No. 21/2019, para. 29; No. 33/2017, para. 90; No. 1/2016, para. 37. See further, A/68/340, paras. 34–38; CEDAW/C/ETH/CO/8, paras. 55–56; CAT/OP/27/1, para. 25. ↩
45. A/HRC/42/39/Add.1, paras. 47–50; CAT/OP/27/1, paras. 29, 39. ↩
46. Nelson Mandela Rules, rule 11 (a); Opinion No. 21/2019, para. 48. See CEDAW/C/ETH/CO/8, paras. 55–56; CAT/OP/27/1, para. 43. ↩
47. Bangkok Rules, rules 52, 58; UN News, ‘Children separated at border, suffering alarming and prolonged effects: UN rights experts’, 2018, <news.un.org/en/story/2018/10/1023712>. ↩
48. Nelson Mandela Rules, rules 15–18; Bangkok Rules, rule 5; A/HRC/36/37/Add.1, para. 43; Opinion No. 61/2020, para. 83; A/68/340, para. 42. ↩
49. Bangkok Rules, rule 5; Opinion No. 57/2017, para. 48; Joint Amicus Curiae Submission by the Working Group on Discrimination against Women and Girls and the Working Group on Arbitrary Detention on the case of Joy Moses & 5 Ors v The Minister, FCT & 13 Ors (Federal High Court of Nigeria), p. 6; A/HRC/22/44/Add.2, para. 96; A/HRC/42/47/Add.1, para. 46; CEDAW/C/MDA/CO/6, paras. 40–41; CAT/OP/27/1, para. 28; AL EGY 16/2020. ↩
50. International Covenant on Civil and Political Rights, art. 10 (1); Nelson Mandela Rules, rules 24–35; Bangkok Rules, rules 10–18; Opinions No. 61/2020, para. 92; No. 21/2019, para. 48; No. 48/2017, para. 51; A/HRC/36/37/Add.1, para. 43. See also CEDAW/C/BLR/CO/8, para. 44; CEDAW/C/GBR/CO/8, paras. 57–58. ↩
51. Nelson Mandela Rules, rule 28; Bangkok Rules, rule 48; Opinion No. 35/2016, paras. 19–20; A/68/340, paras. 44–50; CEDAW/C/KHM/CO/6, paras. 44–45; CAT/OP/27/1, para. 28; AL EGY 16/2020. ↩
52. Nelson Mandela Rules, rules 51–52; Bangkok Rules, rules 19–21; Opinion No. 61/2020, para. 83; CEDAW/C/49/D/23/2009, para. 2.7; A/68/340, para. 43; CAT/OP/27/1, para. 27; AL EGY 16/2020. ↩
53. Opinion No. 61/2020, para. 22; CEDAW/C/BLR/CO/8, para. 44; CEDAW/C/ZWE/CO/6, paras. 45–46. ↩

Women are at risk of arbitrary detention not solely due to their sex and gender, but also due to discrimination inherently linked to other intersecting factors, which may increase their likelihood of coming into contact with the criminal justice system and which can affect the likelihood and length of their incarceration.⁵⁴

54. A/HRC/39/45/Add.2, para. 66; A/HRC/41/33, paras. 34, 51–53. ↩

The disproportionate incarceration of women for crimes related to poverty, such as theft, fraud, inability to pay debts and other offences related to homelessness or poor living conditions,⁵⁵ constitutes discrimination on the basis of economic condition or any other status. States must repeal or amend any laws, policies or practices which result in the discriminatory detention of women living in poverty,⁵⁶ and ensure that women living in poverty are not profiled or targeted for detention.

55. A/HRC/39/45/Add.2, paras. 60–64, 89(a), 90(a); A/HRC/41/33, para. 52. ↩
56. A/HRC/41/33, para. 81 (d). ↩

Women’s poverty may also result in a lack of due process and procedural safeguards which may violate the right to fair trial. States must ensure that women without adequate means are able to access effective legal representation at no cost.⁵⁷ In addition, women must not be imprisoned in pre-trial detention solely by reason of an inability to post bail, in particular in relation to low-level offences,⁵⁸ due to an inability to pay a fine,⁵⁹ or inability to 48 Nelson Mandela Rules, rules 15–18; Bangkok Rules, rule 5; A/HRC/36/37/Add.1, para. 43; Opinion No. 61/2020, para. 83; A/68/340, para. 42. 49 Bangkok Rules, rule 5; Opinion No. 57/2017, para. 48; Joint Amicus Curiae Submission by the Working Group on Discrimination against Women and Girls and the Working Group on Arbitrary Detention on the case of Joy Moses & 5 Ors v The Minister, FCT & 13 Ors (Federal High Court of Nigeria), p. 6; A/HRC/22/44/Add.2, para. 96; A/HRC/42/47/Add.1, para. 46; CEDAW/C/MDA/CO/6, paras. 40–41; CAT/OP/27/1, para. 28; AL EGY 16/2020. 50 International Covenant on Civil and Political Rights, art. 10 (1); Nelson Mandela Rules, rules 24–35; Bangkok Rules, rules 10–18; Opinions No. 61/2020, para. 92; No. 21/2019, para. 48; No. 48/2017, para. 51; A/HRC/36/37/Add.1, para. 43. See also CEDAW/C/BLR/CO/8, para. 44; CEDAW/C/GBR/CO/8, paras. 57–58. 51 Nelson Mandela Rules, rule 28; Bangkok Rules, rule 48; Opinion No. 35/2016, paras. 19–20; A/68/340, paras. 44–50; CEDAW/C/KHM/CO/6, paras. 44–45; CAT/OP/27/1, para. 28; AL EGY 16/2020. 52 Nelson Mandela Rules, rules 51–52; Bangkok Rules, rules 19–21; Opinion No. 61/2020, para. 83; CEDAW/C/49/D/23/2009, para. 2.7; A/68/340, para. 43; CAT/OP/27/1, para. 27; AL EGY 16/2020. 53 Opinion No. 61/2020, para. 22; CEDAW/C/BLR/CO/8, para. 44; CEDAW/C/ZWE/CO/6, paras. 45–

57. International Covenant on Civil and Political Rights, art. 14 (3) (d); Human Rights Committee, General comment No. 32, para. 10; A/HRC/30/37, annex, paras. 12–15, 67–61; Opinion No. 57/2012, para. 22. ↩
58. Committee on the Elimination of Discrimination against Women, General recommendation No. 33, paras. 47 (d), 51 (p). ↩
59. See, e.g. Opinion No. 10/2010. ↩

54 A/HRC/39/45/Add.2, para. 66; A/HRC/41/33, paras. 34, 51–53. 55 A/HRC/39/45/Add.2, paras. 60–64, 89(a), 90(a); A/HRC/41/33, para. 52. 56 A/HRC/41/33, para. 81 (d). 57 International Covenant on Civil and Political Rights, art. 14 (3) (d); Human Rights Committee, General comment No. 32, para. 10; A/HRC/30/37, annex, paras. 12–15, 67–61; Opinion No. 57/2012, para. 22. 58 Committee on the Elimination of Discrimination against Women, General recommendation No. 33, paras. 47 (d), 51 (p). 59 See, e.g. Opinion No. 10/2010. pay a bond in relation to administrative or immigration detention.⁶⁰ In particular, States should implement measures to ensure that women’s income and capacity to pay should be taken into account in setting bail, bonds and fines, with such amounts limited to that which is necessary to secure the woman’s appearance or to protect the community.⁶¹ Additionally, the lower social and educational status of women may in some cases lead to the violation of their fair trial rights (e.g. women may be less likely to understand the charges or the legal procedure, or less likely to be properly consulted by defence counsel owing to their status in society or through having a male family member acting on their behalf).

60. A/HRC/36/37/Add.2, paras. 51–53, 93 (a). ↩
61. A/HRC/36/37/Add.2, para. 93 (a); E/CN.4/2002/77, para. 60 (b) and (c). ↩

The Working Group is concerned by the discriminatory application of public order offences such as loitering, vagrancy, public nuisance and public indecency, which are often applied to women experiencing poverty⁶² and women sex workers.⁶³ To the extent that such laws are so vague or broad so as to breach the principle of legal certainty, the detention of women under such laws may lack a legal basis, and therefore constitute arbitrary detention.⁶⁴

62. A/HRC/39/45/Add.2, paras. 60–64, 89 (a), 90 (a). ↩
63. Joint Amicus Curiae Submission by the Working Group on Discrimination against Women and Girls and the Working Group on Arbitrary Detention on the case of Joy Moses & 5 Ors v The Minister, FCT & 13 Ors (Federal High Court of Nigeria), p. 8; A/HRC/41/33, para. 36. ↩
64. Joint Amicus Curiae Submission by the Working Group on Discrimination against Women and Girls and the Working Group on Arbitrary Detention on the case of Joy Moses & 5 Ors v The Minister, FCT & 13 Ors (Federal High Court of Nigeria), para. 12. ↩

In this connection, women sex workers are routinely targeted by law enforcement and subject to arbitrary arrest and detention, which is ultimately premised upon the social control of women’s morality and sexuality.⁶⁵ The direct criminalization of sex work, or the indirect targeting of sex workers for public order offences such as vagrancy, is discriminatory and a violation of international law.⁶⁶ States must repeal laws which directly or effectively criminalize sex work, and cease any practices which target, arrest and detain women in relation to sex work.⁶⁷

65. Ibid, p. 8. ↩
66. Ibid, pp. 8–10; A/HRC/39/45/Add.2, paras. 64, 90(a); Committee on the Elimination of Discrimination against Women, General recommendation No. 35, para. 29 (c) (i). ↩
67. Joint Amicus Curiae Submission by the Working Group on Discrimination against Women and Girls and the Working Group on Arbitrary Detention on the case of Joy Moses & 5 Ors v The Minister, FCT & 13 Ors (Federal High Court of Nigeria), pp.18–19; A/HRC/41/33, para. 80 (c). ↩

Criminal and administrative detention as a result of drug control laws and policies disproportionately affects women⁶⁸ and can constitute arbitrary detention.⁶⁹ Women have high rates of imprisonment for drug related offences, with approximately 35 per cent of women in prison incarcerated for drug offences in comparison to only 19 per cent of male prisoners.⁷⁰ The causes of women’s interaction with the criminal justice system in relation to drug offences are complex, and are often linked to other factors such as poverty and coercion,⁷¹ and may also reflect systemic gender inequality in society more broadly.

68. A/HRC/41/33, para. 32. ↩
69. A/HRC/30/36, paras. 57–62. ↩
70. UNODC, ‘Women and drugs: Drug use, drug supply and their consequences’, 2018, p. 9. ↩
71. A/68/340, paras. 10–11. ↩

The Working Group remains deeply concerned regarding the continued practice of detaining women in relation to the exercise of their fundamental reproductive rights.

The criminalization of forms of behaviour that can only be performed by women is prima facie discriminatory, and therefore laws which criminalize conduct related to the consequences of a lack of access to and enjoyment of the highest attainable standard of health, 60 A/HRC/36/37/Add.2, paras. 51–53, 93 (a). 61 A/HRC/36/37/Add.2, para. 93 (a); E/CN.4/2002/77, para. 60 (b) and (c). 62 A/HRC/39/45/Add.2, paras. 60–64, 89 (a), 90 (a). 63 Joint Amicus Curiae Submission by the Working Group on Discrimination against Women and Girls and the Working Group on Arbitrary Detention on the case of Joy Moses & 5 Ors v The Minister, FCT & 13 Ors (Federal High Court of Nigeria), p. 8; A/HRC/41/33, para. 36. 64 Joint Amicus Curiae Submission by the Working Group on Discrimination against Women and Girls and the Working Group on Arbitrary Detention on the case of Joy Moses & 5 Ors v The Minister, FCT & 13 Ors (Federal High Court of Nigeria), para. 12. 65 Ibid, p. 8. 66 Ibid, pp. 8–10; A/HRC/39/45/Add.2, paras. 64, 90(a); Committee on the Elimination of Discrimination against Women, General recommendation No. 35, para. 29 (c) (i). 67 Joint Amicus Curiae Submission by the Working Group on Discrimination against Women and Girls and the Working Group on Arbitrary Detention on the case of Joy Moses & 5 Ors v The Minister, FCT & 13 Ors (Federal High Court of Nigeria), pp.18–19; A/HRC/41/33, para. 80 (c). 68 A/HRC/41/33, para. 32. 69 A/HRC/30/36, paras. 57–62. 70 UNODC, ‘Women and drugs: Drug use, drug supply and their consequences’, 2018, p. 9. 71 A/68/340, paras. 10–11. or that criminalize the exercise of women’s reproductive rights must be considered as prima facie discriminatory.⁷²

72. Committee on the Elimination of Discrimination against Women, General recommendation No. 33, paras. 47(a) and 51(l); Opinions No. 19/2020, para. 73; No. 68/2019, para. 115. ↩

Many States continue to prohibit or severely restrict women’s access to safe services for the termination of pregnancy, exposing women to criminal liability and associated detention for seeking or obtaining abortions, with no exceptions or allowance for extenuating circumstances.⁷³ Such laws reflect a form of gender stereotyping, instrumentalizing women’s bodies, and in effect penalizing women for conduct which contravenes socialized gender roles and expectations.⁷⁴

73. A/68/340, paras. 13–15. ↩
74. A/HRC/31/57, para. 42; A/HRC/32/44, para. 79. ↩

Laws which criminalize or severely restrict women’s access to abortion are not only prima facie discriminatory, but may also constitute gender-based violence⁷⁵ and may violate a number of other provisions of international human rights law, including a woman’s right to life⁷⁶ and the prohibition against torture or cruel, inhuman or degrading treatment.⁷⁷

75. Committee on the Elimination of Discrimination against Women, General recommendation No. 35, para. 18. ↩
76. Human Rights Committee, General comment No. 36, para. 8; Committee on Economic, Social and Cultural Rights, General comment No. 22, para. 10. ↩
77. Committee on Economic, Social and Cultural Rights, General comment No. 22, para. 10; Committee on the Elimination of Discrimination against Women, General recommendation No. 35, para. 18; A/HRC/31/57, paras. 14, 43–44. ↩

The Working Group is particularly concerned about the practice, in some States and regions, of criminalizing women who suffer obstetric emergencies.⁷⁸ Laws which criminalize miscarriages and other pregnancy complications which result in the death of the foetus are prima facie discriminatory and reflect systemic gender discrimination in which women are often expected to place the potential life resulting from their pregnancy above their own life.⁷⁹ The detention of women in these circumstances is unnecessary, disproportionate and serves no legitimate purpose.⁸⁰ Obstetric emergencies should be treated as a medical emergency with appropriate physical and mental healthcare provided to women as a matter of urgency.

78. Opinions No. 19/2020; No. 68/2019; E/C.12/SLV/CO/3-5, para. 22; CEDAW/C/SLAV/CO/8-9, para. 37 (b) ↩
79. Opinion No. 68/2019, para. 110. ↩
80. Ibid, para. 114. ↩

The detention of women in relation to obstetric emergencies also reflects structural problems surrounding women’s ability to access and enjoy the highest attainable standard of health. In particular, restrictive abortion laws and policies disproportionately impact upon marginalized and disadvantaged women, particularly women living in poverty,⁸¹ reflecting deep discrimination against economically disadvantaged women who are unable to access necessary healthcare, including reproductive healthcare.⁸²

81. Opinion No. 68/2019, paras. 100, 114; OHCHR, ‘Statement by UN High Commissioner for Human Rights Zeid Ra’ad Al Hussein at the end of his mission to El Salvador’, 2017, <www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=22412&LangID=E>. ↩
82. A/HRC/32/44, para. 80; Opinion No. 68/2019, para. 114. ↩

In addition, the detention of women in these circumstances is often accompanied by a lack of due process,⁸³ with women suffering systemic violations of their procedural rights such as a lack of effective legal assistance,⁸⁴ the irregular collection of evidence, such as the practice of extracting confessions from women seeking emergency care,⁸⁵ and the assessment of evidence through a gendered lens based on stereotypes concerning women’s role in society.⁸⁶

83. CCPR/C/SLV/CO/7, para. 16; Opinion No. 68/2019, paras. 86–97. ↩
84. A/HRC/17/26/Add.2, para. 68. ↩
85. A/HRC/22/53, para. 46. ↩
86. Opinion No. 68/2019, para. 102 ↩

The Working Group is also concerned about other laws, policies and practices which result in the detention of pregnant women, or women who have just given birth. Pregnant women must not be shackled or otherwise restrained during transfers to hospitals, gynaecological examinations and birth.⁸⁷ Laws, policies and practices which result in the post-delivery detention of women and their new-born children in public and private health-care facilities due to their inability to pay their medical bills⁸⁸ are prima facie discriminatory and may constitute an arbitrary deprivation of liberty. In addition, civil laws which allow for the confinement and involuntary treatment of pregnant women suspected of substance abuse are also prima facie discriminatory in that a woman’s pregnancy, and therefore her gender, is the factor leading to the deprivation of liberty.⁸⁹ Any confinement of women in these circumstances must take place voluntarily and be accompanied by sufficient due process guarantees.⁹⁰

87. Bangkok Rules, rule 24; Nelson Mandela Rules, rule 48 (2); CAT/C/USA/CO/2, para. 33; A/74/137, para. 22. ↩
88. A/74/137, para. 23; CAT/C/KEN/CO/2, para. 27; WHO/RHR/14.23. ↩
89. A/HRC/36/37/Add.2, paras. 72–74. ↩
90. Ibid, para. 94 (b). ↩

Finally, States must ensure that women’s rights to sexual and reproductive health are respected and ensured during any periods of detention. Women must not be subject to forced or coerced sterilization whilst in detention, including in administrative detention or detention in health-care facilities,⁹¹ and must not be detained for the purpose of forcibly administering such services.

91. CAT/C/KEN/CO/2, para. 27; CAT/C/NAM/CO/2, paras. 34–35. ↩

Lesbian, bisexual, transgender and queer women and intersex persons continue to be subject to arbitrary arrests and detention solely by reason of their sexual orientation or gender identity or expression. In addition, when deprived of their liberty, LGBTIQ+ persons are at significant risk of violence, sexual abuse and other violations of their human rights.

The arrest or detention of individuals based on discriminatory grounds, including on the basis of their actual or perceived sexual orientation or gender identity, is per se arbitrary under international law and in violation of articles 2 (1), 3 and 26 of the Covenant and articles 2 and 7 of the Universal Declaration of Human Rights.⁹²

92. Opinions No. 14/2017; No. 25/2009; No. 42/2008; No. 22/2006; No. 7/2002; CCPR/C/50/D/488/1992. ↩

The criminalization of sexual relations between consenting adults, or of a person’s gender identity and expression, such as laws prohibiting cross-dressing or imitating persons of the opposite sex,⁹³ is prima facie discriminatory and constitutes an arbitrary interference with the privacy of individuals in violation of article 17 of the Covenant and article 12 of the Universal Declaration of Human Rights.⁹⁴ Accordingly, the arrest and detention of LGBTIQ+ persons on the basis of such laws is arbitrary not only as it constitutes a violation of international law on the grounds of discrimination based on sexual orientation or gender identity,⁹⁵ but also because there is no legal basis for such detention as such laws violate States’ obligations under the Covenant and the Universal Declaration of Human Rights.⁹⁶

93. A/HRC/29/23, paras. 15, 44. ↩
94. CCPR/C/50/D/488/1992; A/HRC/45/16/Add.2, para. 45; Opinion No. 14/2017, para. 47. ↩
95. A/HRC/36/38, para. 8(b) and (e); Opinion No. 14/2017, para. 50. ↩
96. A/HRC/36/38, para. 8(a); Opinion No. 14/2017, para. 49. See generally International Commission of Jurists, Yogyakarta Principles – Principles on the application of international human rights law in relation to sexual orientation and gender identity (2007), principles 7–10. ↩

In addition, the arrest and detention of LGBTIQ+ persons on the basis of their sexual orientation or gender identity, such as in relation to morality, debauchery, crimes against the order of nature, public or grave scandal, or indecent act offences¹⁶⁴ 97 are similarly discriminatory and in violation of international law.98 87 Bangkok Rules, rule 24; Nelson Mandela Rules, rule 48 (2); CAT/C/USA/CO/2, para. 33; A/74/137, para. 22. 88 A/74/137, para. 23; CAT/C/KEN/CO/2, para. 27; WHO/RHR/14.23. 89 A/HRC/36/37/Add.2, paras. 72–74. 90 Ibid, para. 94 (b). 91 CAT/C/KEN/CO/2, para. 27; CAT/C/NAM/CO/2, paras. 34–35. 92 Opinions No. 14/2017; No. 25/2009; No. 42/2008; No. 22/2006; No. 7/2002; CCPR/C/50/D/488/1992. 93 A/HRC/29/23, paras. 15, 44. 94 CCPR/C/50/D/488/1992; A/HRC/45/16/Add.2, para. 45; Opinion No. 14/2017, para. 47. 95 A/HRC/36/38, para. 8(b) and (e); Opinion No. 14/2017, para. 50. 96 A/HRC/36/38, para. 8(a); Opinion No. 14/2017, para. 49. See generally International Commission of Jurists, Yogyakarta Principles – Principles on the application of international human rights law in relation to sexual orientation and gender identity (2007), principles 7–10. 97 A/HRC/29/23, para. 44. 98 Opinion No. 7/2002, para. 28; A/HRC/19/41, para. 47.

164. A/HRC/29/23, para. 44. ↩

States must urgently review any such criminal laws and amend or repeal any provisions which discriminate against the LGBTIQ+ community to bring them into line with international standards.⁹⁹

99. A/HRC/45/16/Add.2. para. 45; A/HRC/29/23, para. 15. ↩

Practices such as “reparative therapies” or “conversion therapies”, as well as other forms of intrusive and irreversible treatments, continue to be forcibly administered upon LGBTIQ+ persons without their consent and in violation of their human rights.¹⁰⁰ LGBTIQ+ persons must not be detained for the purposes of forcibly administering such therapies, both in private and public facilities such as hospitals, psychiatric institutions, specialized camps, places of worship or in the home.¹⁰¹

100. A/HRC/22/53, para. 88; A/HRC/40/60, para. 54. ↩
101. A/HRC/41/33, para. 35. ↩

LGBTIQ+ persons are particularly vulnerable to discrimination, violence and torture and ill-treatment contrary to international human rights law when deprived of their liberty.¹⁰² The Working Group is concerned by ongoing reports of disproportionate and systemic gender-based violence and abuse against LGBTIQ+ persons in detention, particularly the significantly higher prevalence of sexual assault against LGBTIQ+ persons, including the “corrective rape” of lesbian detainees.¹⁰³ To the extent that these conditions contravene the prohibition of torture or cruel, inhuman or degrading treatment and are employed with a purpose to punish, coerce a confession or to further discriminate against LGBTIQ+ persons, the detention of those persons is arbitrary.¹⁰⁴

102. See, e.g. CAT/OP/C/57/4, paras. 60–67; A/HRC/31/57, para. 13. ↩
103. A/HRC/29/23, paras. 34–38; A/HRC/31/57, para. 35; CAT/C/CRI/CO/2, para. 11; CEDAW/C/MOZ/CO/3-5, paras. 41(c), 42(e); A/HRC/19/41, para. 35. ↩
104. See, e.g. Opinion No. 25/2009, paras. 28, 31. ↩

States must take measures in order to protect the rights of LGBTIQ+ persons in detention, and to address their specific and unique needs, including establishing appropriate gender-specific conditions of detention.¹⁰⁵

105. Bangkok Rules, rules 40–42; A/HRC/31/57, para. 70(a); A/HRC/45/16/Add.1, para. 52. ↩

Transgender women should not be automatically placed in male prisons, noting their increased risk of sexual assault and rape.¹⁰⁶ The facilities in which LGBTIQ+ persons are placed should be determined on a case-by-case basis, having due regard to each individual’s gender identity and expression,¹⁰⁷ and in accordance with the provisions of the Bangkok Rules.

106. CAT/OP/C/57/4, para. 76; A/HRC/17/26/Add.2, para. 29. ↩
107. Nelson Mandela Rules, rule 7 (a); A/HRC/31/57, para. 70(s); CAT/OP/C/57/4, para. 76. ↩

The Working Group reiterates that States are obliged to respect and ensure the rights, including the right to personal liberty, of everyone within their territory or subject to their jurisdiction regardless of nationality or statelessness.¹⁰⁸ Accordingly, States have an obligation to ensure that non-national women, including migrants, asylum seekers and refugees are not arbitrarily deprived of their liberty within their territory or subject to their power or effective control. This includes the administrative detention of women non-nationals in immigration detention, whether in recognized or non-recognized centres.

108. Human Rights Committee, General comment No. 31, para. 10; Human Rights Committee, General comment No. 35, para. 3. ↩

Any deprivation of liberty in the context of migration must meet the standards set out in article 9 of the Covenant. In particular, administrative detention of women migrants must be an exceptional measure of last resort, applied for the shortest period and only if less restrictive alternatives have been considered and found inadequate to meet legitimate purposes.109 99 A/HRC/45/16/Add.2. para. 45; A/HRC/29/23, para. 15. 100 A/HRC/22/53, para. 88; A/HRC/40/60, para. 54. 101 A/HRC/41/33, para. 35. 102 See, e.g. CAT/OP/C/57/4, paras. 60–67; A/HRC/31/57, para. 13. 103 A/HRC/29/23, paras. 34–38; A/HRC/31/57, para. 35; CAT/C/CRI/CO/2, para. 11; CEDAW/C/MOZ/CO/3-5, paras. 41(c), 42(e); A/HRC/19/41, para. 35. 104 See, e.g. Opinion No. 25/2009, paras. 28, 31. 105 Bangkok Rules, rules 40–42; A/HRC/31/57, para. 70(a); A/HRC/45/16/Add.1, para. 52. 106 CAT/OP/C/57/4, para. 76; A/HRC/17/26/Add.2, para. 29. 107 Nelson Mandela Rules, rule 7 (a); A/HRC/31/57, para. 70(s); CAT/OP/C/57/4, para. 76. 108 Human Rights Committee, General comment No. 31, para. 10; Human Rights Committee, General comment No. 35, para. 3. 109 Revised deliberation No. 5 on deprivation of liberty of migrants (A/HRC/39/45, annex), para. 12; OHCHR, ‘Recommended Principles and Guidelines on Human Rights at International Borders’, Guideline 8.1.

Detention in the course of migration proceedings must be justified as reasonable, necessary and proportionate in the light of the circumstances specific to the individual case.¹¹⁰ Accordingly, the detention of migrant women must only take place in the context of an effective individualized assessment of the necessity of detention,¹¹¹ and States must seriously consider alternatives to detention.¹¹²

110. Revised deliberation No. 5 on deprivation of liberty of migrants (A/HRC/39/45, annex), para. 14. ↩
111. A/HRC/36/37/Add.2, para. 29. ↩
112. Revised deliberation No. 5 on deprivation of liberty of migrants (A/HRC/39/45, annex), para. 16; Human Rights Committee, General comment no. 35, para. 45; Opinion No. 2/2019. para. 79. ↩

The detention of women non-nationals who are pregnant or are nursing shall be avoided.¹¹³ Where migrant women are accompanied by their children, States must consider alternatives to detention for the entire family unit in each individual case,¹¹⁴ particularly because children cannot be detained by reason of their parent’s migration status,¹¹⁵ and should not be separated from their parents.¹¹⁶

113. Revised deliberation No. 5 on deprivation of liberty of migrants (A/HRC/39/45, annex), para. 41; Committee on the Elimination of Discrimination against Women, General recommendation No. 32, para. 34; A/HRC/20/24, paras. 36, 49. ↩
114. Revised deliberation No. 5 on deprivation of liberty of migrants (A/HRC/39/45, annex), para. 40; Committee on the Elimination of Discrimination against Women, General recommendation No. 32, para. 49. ↩
115. Revised deliberation No. 5 on deprivation of liberty of migrants (A/HRC/39/45, annex), para. 40; principle 21, para. 46; Opinion No. 2/2019, para. 105. ↩
116. A/HRC/36/37/Add.2, paras. 43–46, 92 (j). ↩

The Working Group is particularly concerned that women asylum seekers and refugees are routinely deprived of their liberty for extended periods pending the resolution of their claims. The prolonged administrative custody of women asylum seekers, immigrants or refugees without the possibility of administrative or judicial review or remedy constitutes arbitrary detention.¹¹⁷

117. A/HRC/36/38, para. 8(d). ↩

Particularly given the prolonged nature of immigration detention, the Working Group reiterates the obligations of States to ensure that conditions in immigration detention address the gender-specific needs of women detainees.¹¹⁸ In particular, women non-nationals should be separated from men, unless they are part of a family unit.¹¹⁹

118. Bangkok Rules, rule 1; A/HRC/20/24, para. 37; Committee on the Elimination of Discrimination against Women, General recommendation No. 32, para. 34. ↩
119. Revised deliberation No. 5 on deprivation of liberty of migrants (A/HRC/39/45, annex), para. 42; Committee on the Elimination of Discrimination against Women, General recommendation No. 32, para. 34. ↩

Human rights defenders are often deprived of their liberty as a result of the exercise of their fundamental rights under articles 18, 19, 20 and 21 of the Universal Declaration of Human Rights and articles 18, 19, 21, 22 and 25 (1) of the Covenant. Further, it is recalled that human rights defenders fall within their own protected class for the purposes of determining whether an individual has been detained on a discriminatory ground for the purposes of Category V.¹²⁰

120. International Covenant on Civil and Political Rights, art. 26; Opinion No. 45/2016, para. 44. See also UNGA Res 53/144 (adopting the Declaration on Human Rights Defenders) and UNGA Res 68/181. ↩

The Working Group is gravely concerned by the frequent complaints it receives in relation to women human rights defenders, including women’s rights activists.121 It is clear 110 Revised deliberation No. 5 on deprivation of liberty of migrants (A/HRC/39/45, annex), para. 14. 111 A/HRC/36/37/Add.2, para. 29. 112 Revised deliberation No. 5 on deprivation of liberty of migrants (A/HRC/39/45, annex), para. 16; Human Rights Committee, General comment no. 35, para. 45; Opinion No. 2/2019. para. 79. 113 Revised deliberation No. 5 on deprivation of liberty of migrants (A/HRC/39/45, annex), para. 41; Committee on the Elimination of Discrimination against Women, General recommendation No. 32, para. 34; A/HRC/20/24, paras. 36, 49. 114 Revised deliberation No. 5 on deprivation of liberty of migrants (A/HRC/39/45, annex), para. 40; Committee on the Elimination of Discrimination against Women, General recommendation No. 32, para. 49. 115 Revised deliberation No. 5 on deprivation of liberty of migrants (A/HRC/39/45, annex), para. 40; principle 21, para. 46; Opinion No. 2/2019, para. 105. 116 A/HRC/36/37/Add.2, paras. 43–46, 92 (j). 117 A/HRC/36/38, para. 8(d). 118 Bangkok Rules, rule 1; A/HRC/20/24, para. 37; Committee on the Elimination of Discrimination against Women, General recommendation No. 32, para. 34. 119 Revised deliberation No. 5 on deprivation of liberty of migrants (A/HRC/39/45, annex), para. 42; Committee on the Elimination of Discrimination against Women, General recommendation No. 32, para. 34. 120 International Covenant on Civil and Political Rights, art. 26; Opinion No. 45/2016, para. 44. See also UNGA Res 53/144 (adopting the Declaration on Human Rights Defenders) and UNGA Res 68/181. 121 See, e.g. Opinions No. 33/2020, paras. 4–5, 11 (women’s rights activist, charged, among other things, with “participating in demanding women’s rights”); No. 14/2020, para. 4 (arbitrary detention of a women’s rights advocate); No. 57/2017, para. 4 (arbitrary detention of an activist for women’s and LGBTIQ+ rights); No. 48/2017, paras. 4, 47 (woman human rights defender verbally attacked by the judge for her beliefs in feminism and human rights); No. 1/2016, para. 4 (activist for the rights of Kurdish women); For targeting of girl human rights defenders, see, e.g. A/HRC/40/60, paras. 59–60; UA ISR 1/2018. that in many cases women are targeted because of their activities as human rights defenders, including peaceful advocacy, demonstrations and other forms of activism.¹²²

122. See, e.g. Opinions No. 9/2019 (9 year sentence for peaceful advocacy and activism); No. 83/2018 (7 year sentence for, among other things, social media posts and participation in peaceful assemblies); No. 61/2018 (arrested for working to investigate extrajudicial killings in the Philippines); No. 75/2017 (9 year sentence for posting information on the Internet critical of government policies on human rights issues); No. 57/2017 (arrested for social media posts); No. 1/2016 (Kurdish women’s rights activist sentenced to life imprisonment). ↩

The Working Group is of the view that women human rights defenders face risks that are gendered and intersectional.¹²³ Indeed, numerous complaints received by the Working Group allege that women human rights defenders have been subjected to harassment,¹²⁴ sexist attacks,¹²⁵ torture and threats of sexual assault,¹²⁶ demands to undergo virginity testing,¹²⁷ institutionalization or threats thereof,¹²⁸ and public shaming.¹²⁹ The Working Group reiterates that States must ensure that women human rights defenders can perform their important role in accordance with international human rights law, including ensuring that they are not subject to excessive or indiscriminate use of force, arbitrary arrest or detention, torture or other cruel, inhuman or degrading treatment or punishment, enforced disappearance, abuse of criminal and civil proceedings or threats of such acts.¹³⁰

123. See A/HRC/40/60, para. 35. ↩
124. Opinions No. 61/2018, para. 71; No. 75/2017, para. 55; No. 48/2017, para. 49. ↩
125. Opinions No. 61/2018, para. 72; No. 50/2017, para. 7. ↩
126. Opinions No. 33/2020, para. 90; No. 78/2017, para. 39; No. 1/2016, paras. 37, 40, 42. ↩
127. Opinion No. 1/2016, para. 42. ↩
128. Opinion No. 57/2017, paras. 14, 68. See also A/HRC/40/60, paras. 54–55; CAT/C/KAZ/CO/3, para. 19. ↩
129. See, e.g. regarding threats to release altered images showing sexual activity: Opinions No. 61/2018, paras. 13–14, 29; No. 1/2016, para. 6. See generally A/HRC/40/60, paras. 37–39. ↩
130. See UNGA Res 68/181, para. 8. ↩

The Working Group is concerned about complaints of arbitrary deprivation of liberty it has received relating to women’s participation in political and public life, including the targeting of women who hold public office or seek to do so and women who have been publicly critical of the Government or who are members of opposition groups.¹³¹ In these circumstances, arbitrary deprivation of liberty is not only a direct attack on the full participation by women in political and public life and their enjoyment of their human rights, but may also discourage the participation of women in public discourse more broadly and marginalize their voices.

131. Opinions No. 24/2019; No. 61/2018; No. 50/2017; No. 24/2015. See also A/68/340, para. 28. For a description of some of the ways that women are involved in political life, see A/73/301, para. 10. ↩

The right to participate in public affairs is provided for in article 21 of the Universal Declaration of Human Rights and article 25 of the Covenant.¹³² These rights are furthered by the rights to freedom of expression, peaceful assembly and association under articles 19 and 20 of the Universal Declaration of Human Rights and articles 19, 21 and 22 of the Covenant. In this regard, the Working Group recalls that criticism of Government is permissible in a democratic society and protected by the freedom of opinion and expression.¹³³

132. Convention on the Elimination of All Forms of Discrimination against Women, art. 7 specifically requires States Parties to take appropriate measures to eliminate discrimination against women in political and public life. ↩
133. See Human Rights Committee, General comment No. 34, para. 38. ↩

When a woman is arrested and detained as the consequence of the exercise of the aforementioned rights, or when a woman is detained on the basis of discriminatory grounds such as sex, gender or political or other opinion, her deprivation of liberty may be considered arbitrary by the Working Group, including under categories II and V of its Methods of Work.

129 See, e.g. regarding threats to release altered images showing sexual activity: Opinions No. 61/2018, paras. 13–14, 29; No. 1/2016, para. 6. See generally A/HRC/40/60, paras. 37–39. 130 See UNGA Res 68/181, para. 8. 131 Opinions No. 24/2019; No. 61/2018; No. 50/2017; No. 24/2015. See also A/68/340, para. 28. For a description of some of the ways that women are involved in political life, see A/73/301, para. 10. 132 Convention on the Elimination of All Forms of Discrimination against Women, art. 7 specifically requires States Parties to take appropriate measures to eliminate discrimination against women in political and public life. 133 See Human Rights Committee, General comment No. 34, para.

The Working Group has affirmed on a number of occasions that it will consider deprivation of liberty in all its forms, not only for the purpose of criminal proceedings, but also under administrative and other fields of law.¹³⁴ The Working Group wishes to recall that the deprivation of personal liberty occurs when a person is being held without his or her free consent, including under house arrest.¹³⁵ Deprivation of liberty may also arise from the conduct of private actors.

134. See, e.g. Opinion No. 38/2020, para. 36 referring to A/HRC/30/37, annex, para. 47. See also Human Rights Committee, General comment No. 35, para. 5; Committee on the Elimination of Discrimination against Women, General recommendation No. 35, paras. 24–26; A/HRC/41/33, para. 10. ↩
135. See A/HRC/30/37, para. 9. ↩

States not only have a duty to ensure that anyone acting on their behalf, such as State authorities and its agents, do not infringe the right to personal liberty; they also have a positive obligation to protect everyone in their territory or under their jurisdiction from violations of this right by private parties, as well as obligations to investigate and punish such violations and ensure that victims have access to effective remedies.¹³⁶ The Working Group urges States to ensure that the right to personal liberty of all women is respected in relation to the conduct of both State and non-State actors.

136. Human Rights Committee, General comment No. 31, paras. 8, 15, 18; Human Rights Committee, General comment No. 35, para. 7; A/HRC/45/16/Add.2, paras. 79–84. ↩

Guardianship laws, customs and social practices that prevent women from leaving their family homes without the permission of a guardian may result in de facto deprivation of liberty by their families.¹³⁷ This is a breach of both articles 12 and 26 of the Covenant and articles 7 and 13 of the Universal Declaration of Human Rights, and amounts to discrimination on the basis of sex or gender. The Working Group calls upon States to abolish systems of guardianship immediately.

137. See, e.g. A/HRC/45/16/Add.2, paras. 80, 82, 84; AL SAU 4/2019. ↩

Migrant women who are prevented from leaving the residences where they are employed as domestic workers are subjected to de facto deprivation of liberty.¹³⁸ The Working Group has received credible reports of employers withholding employees’ documents (including passports) and salaries, to ensure that they would not leave. Employers have reportedly resorted to false accusations of absconding as a way of exerting control over their workers which in turn may lead to the arrest and detention of the worker by State authorities.¹³⁹ The Working Group calls upon States to ensure that all migrants are free to leave the homes of their employers if they choose to do so.

138. A/HRC/45/16/Add.2, paras. 81–84; A/HRC/44/57/Add.1, para. 29; International Labour Organization, ‘Intertwined: A study of employers of migrant domestic workers in Lebanon’, 2016, pp. 33–35. ↩
139. A/HRC/45/16/Add.2, para. 81. ↩

Women who are subject to trafficking, slavery and slavery-like practices are the subject of numerous human rights violations by private actors,¹⁴⁰ including deprivation of liberty as guaranteed by article 9 of the Covenant and article 3 of the Universal Declaration of Human Rights.

140. See, e.g. Universal Declaration of Human Rights, arts. 4, 5, 13; International Covenant on Civil and Political Rights, arts. 7, 8, 12. See further, OHCHR, ‘Abolishing Slavery and its Contemporary Forms’, 2002, pp. 3–9. ↩

The Working Group recalls that when private actors are empowered or authorized by a State to exercise powers of arrest or detention, the State remains responsible for the actions of the private actors under international human rights law.¹⁴¹

141. Human Rights Committee, General comment No. 35, para. 8; International Law Commission, Responsibility of States for Internationally Wrongful Acts, ch II. ↩

The arrest and detention of women pursuant to laws and policies that are gender-neutral may violate the right to equality and non-discrimination where they are 134 See, e.g. Opinion No. 38/2020, para. 36 referring to A/HRC/30/37, annex, para. 47. See also Human Rights Committee, General comment No. 35, para. 5; Committee on the Elimination of Discrimination against Women, General recommendation No. 35, paras. 24–26; A/HRC/41/33, para.

135 See A/HRC/30/37, para. 9. 136 Human Rights Committee, General comment No. 31, paras. 8, 15, 18; Human Rights Committee, General comment No. 35, para. 7; A/HRC/45/16/Add.2, paras. 79–84. 137 See, e.g. A/HRC/45/16/Add.2, paras. 80, 82, 84; AL SAU 4/2019. 138 A/HRC/45/16/Add.2, paras. 81–84; A/HRC/44/57/Add.1, para. 29; International Labour Organization, ‘Intertwined: A study of employers of migrant domestic workers in Lebanon’, 2016, pp. 33–35. 139 A/HRC/45/16/Add.2, para. 81. 140 See, e.g. Universal Declaration of Human Rights, arts. 4, 5, 13; International Covenant on Civil and Political Rights, arts. 7, 8, 12. See further, OHCHR, ‘Abolishing Slavery and its Contemporary Forms’, 2002, pp. 3–9. 141 Human Rights Committee, General comment No. 35, para. 8; International Law Commission, Responsibility of States for Internationally Wrongful Acts, ch II. disproportionately applied to women or where they result in harsher sentences for women than men. This includes “honour”-related offences such as adultery or extramarital sexual relations.²⁰⁹ 142 Moreover, “honour”-related offences found in a State’s criminal law may amount to a violation of international human rights law if they are not gender-neutral and specifically discriminate against or target women. The Working Group considers that laws and policies falling into either of these categories, that is, all “honour-based” offences, must be decriminalized.

209. A/HRC/41/33, para. 31; A/HRC/45/16/Add.2, para. 43. The emerging criminalisation of women participating in social media is also of concern, see AL EGY 12/2020. ↩

The detention of women in relation to “honour”-based offences which are not criminalized in a State’s criminal laws lacks a legal basis and amounts to arbitrary detention.¹⁴³

143. Universal Declaration of Human Rights, art. 11 (2); International Covenant on Civil and Political Rights, arts. 9 (1), 15 (1); see, e.g. United Nations Assistance Mission in Afghanistan, ‘In Search of Justice for Crimes of Violence Against Women and Girls’, 2020, p. 13. ↩

States should ensure that evidentiary rules and procedures do not in practice discriminate against women.¹⁴⁴ Laws and corroboration requirements that are influenced by gender stereotypes or that disproportionately burden women in proving their innocence in the context of “honour”-related offences may be discriminatory and amount to a denial of the presumption of innocence.¹⁴⁵ Women who are the victims of criminal acts such as rape (whether or not proven to the requisite standard in a criminal trial) must not be charged and detained in relation to such acts on the basis that they have perpetrated an “honour”-related offence.¹⁴⁶

144. Committee on the Elimination of Discrimination against Women, General recommendation No. 35, para. 29 (c)–(d). ↩
145. Universal Declaration of Human Rights, art. 11 (1); International Covenant on Civil and Political Rights, art. 14 (2). ↩
146. A/68/340, paras. 16–18; CEDAW/C/BLR/CO/8, para. 26. ↩

Detention of women in administrative detention or so-called “protective custody” for the purposes of their protection will amount to arbitrary detention and may amount to torture or ill-treatment.¹⁴⁷ This includes detention to protect women from gender-based violence including in relation to “honour”-based crimes, as well as detention that seeks to ensure that a woman will testify against an offender in court. States are required to take measures to ensure the protection and safety of women and should do so using measures that do not jeopardize women’s liberty.

147. A/HRC/27/48, paras. 78–79; A/HRC/31/57, para. 24; E/CN.4/2003/75, paras. 90–91; E/CN.4/2003/8, para. 65; A/HRC/41/33, para. 45; CEDAW/C/JOR/CO/6, paras. 33–34. ↩

In exceptional cases, temporary measures involving custody to protect a woman may be applied but only when necessary and expressly requested by the woman concerned and, in all cases, subject to supervision by judicial or other competent authorities.¹⁴⁸ Such protective measures shall not be continued against the will of the woman concerned. The release of a woman shall not be made conditional upon the consent of a male relative and/or a guarantor.¹⁴⁹

148. International Covenant on Civil and Political Rights, art. 9 (1) and (4); Bangkok Rules, rule 59. ↩
149. A/HRC/20/16/Add.1, para. 28; CEDAW/C/SAU/CO/3-4, paras. 61–62; AL SAU 4/2019. ↩

The Working Group observes that arbitrary detention can occur in health-care settings, such as psychiatric hospitals and other institutions where individuals may be deprived of their liberty.¹⁵⁰

150. Opinion No. 70/2018, para. 37. ↩

While homes and shelters provide vital social care to vulnerable groups, particularly women and children facing domestic violence, efforts must be made by States to ensure that 142 A/HRC/41/33, para. 31; A/HRC/45/16/Add.2, para. 43. The emerging criminalisation of women participating in social media is also of concern, see AL EGY 12/2020. 143 Universal Declaration of Human Rights, art. 11 (2); International Covenant on Civil and Political Rights, arts. 9 (1), 15 (1); see, e.g. United Nations Assistance Mission in Afghanistan, ‘In Search of Justice for Crimes of Violence Against Women and Girls’, 2020, p. 13. 144 Committee on the Elimination of Discrimination against Women, General recommendation No. 35, para. 29 (c)–(d). 145 Universal Declaration of Human Rights, art. 11 (1); International Covenant on Civil and Political Rights, art. 14 (2). 146 A/68/340, paras. 16–18; CEDAW/C/BLR/CO/8, para. 26. 147 A/HRC/27/48, paras. 78–79; A/HRC/31/57, para. 24; E/CN.4/2003/75, paras. 90–91; E/CN.4/2003/8, para. 65; A/HRC/41/33, para. 45; CEDAW/C/JOR/CO/6, paras. 33–34. 148 International Covenant on Civil and Political Rights, art. 9 (1) and (4); Bangkok Rules, rule 59. 149 A/HRC/20/16/Add.1, para. 28; CEDAW/C/SAU/CO/3-4, paras. 61–62; AL SAU 4/2019. 150 Opinion No. 70/2018, para. 37. residents in such facilities are able to leave if they wish, including through regular monitoring of the facilities and support in reintegrating into the community.¹⁵¹

151. A/HRC/42/39/Add.1, paras. 81, 88, 94 (b); A/HRC/39/45/Add.2, para. 89 (b). ↩

The Working Group is concerned about the detention of women in rehabilitation centres, treatment programmes and psychiatric hospitals for reasons relating to the breaching of societal norms.¹⁵² The health-care system can never be used as a pretext for depriving women of their liberty in circumstances relating to the exercise of their fundamental rights and freedoms.¹⁵³

152. CEDAW/C/KWT/CO/3-4, para. 42; A/HRC/41/33, para. 47; A/68/340, para. 22. ↩
153. See, e.g. Opinion No. 57/2017, para. 68. See also A/HRC/40/60, paras. 54–55; CEDAW/C/BLR/CO/8, paras. 16–17. ↩

The Working Group reiterates that deprivation of women’s liberty on the basis of actual or perceived disability is discriminatory and contrary to international law.¹⁵⁴ The Working Group has received information on mental health laws which authorize involuntary hospitalization based on an actual or perceived psychosocial disability, and mental health treatment without obtaining the free and informed consent of the persons concerned or providing the appropriate support to enable them to exercise their legal capacity. This form of confinement is justified using criteria such as danger to the confined person or others and/or the need for care and treatment, which is inherently discriminatory since it is based on the person’s actual or perceived impairment.¹⁵⁵ The Working Group is concerned about cases where women have been subjected to prolonged periods of detention in psychiatric institutions in violation of their human rights. In some cases, they are subjected to “voluntary hospitalization”, but without their informed consent to treatment and without the ability to leave at any time.

154. Convention on the Rights of Persons with Disabilities, art. 14; A/HRC/36/37/Add.1, paras. 36–37; A/HRC/30/37, annex, para. 103. ↩
155. A/HRC/36/37/Add.2, para. 75. ↩

The voluntary institutionalization of women with psychosocial disabilities needs to take into account their vulnerable position and their likely diminished capability to challenge their detention. If a woman does not have legal assistance of her own or of her family’s choosing, effective legal assistance through a defence lawyer is to be assigned to act on her behalf and the necessity of continued institutionalization is to be reviewed regularly at reasonable intervals by a court or a competent independent body in adversarial proceedings and without automatically following the expert opinion of the institution where the woman is held.¹⁵⁶ Where detention is based on consent given by a woman’s legal guardian, the woman should have the possibility of challenging the appointed guardian.¹⁵⁷ A woman is to be released if the grounds for hospitalization no longer exist. Involuntary institutionalization of women with psychosocial disabilities and forced treatment is prohibited.¹⁵⁸

156. A/HRC/36/37/Add.2, para. 76; A/HRC/30/37, annex, para. 105; Opinion No. 70/2018, para. 49. ↩
157. Opinion No. 70/2018, paras. 46–48. See Convention on the Rights of Persons with Disabilities, art. 12. ↩
158. A/HRC/30/37, annex, para. 103. ↩

The Working Group stresses that States should ensure that measures taken in relation to the COVID-19 pandemic take into account their specific impacts on women in detention. Pregnant women and women who are breastfeeding should be treated as particularly vulnerable.¹⁵⁹

159. Deliberation No. 11 on prevention of arbitrary deprivation of liberty in the context of public health emergencies (A/HRC/45/16, annex II), para. 15. ↩

States should urgently review existing cases of deprivation of liberty of women in all detention settings to determine whether the detention is still justified as necessary and 151 A/HRC/42/39/Add.1, paras. 81, 88, 94 (b); A/HRC/39/45/Add.2, para. 89 (b). 152 CEDAW/C/KWT/CO/3-4, para. 42; A/HRC/41/33, para. 47; A/68/340, para. 22. 153 See, e.g. Opinion No. 57/2017, para. 68. See also A/HRC/40/60, paras. 54–55; CEDAW/C/BLR/CO/8, paras. 16–17. 154 Convention on the Rights of Persons with Disabilities, art. 14; A/HRC/36/37/Add.1, paras. 36–37; A/HRC/30/37, annex, para. 103. 155 A/HRC/36/37/Add.2, para. 75. 156 A/HRC/36/37/Add.2, para. 76; A/HRC/30/37, annex, para. 105; Opinion No. 70/2018, para. 49. 157 Opinion No. 70/2018, paras. 46–48. See Convention on the Rights of Persons with Disabilities, art.

158 A/HRC/30/37, annex, para. 103. 159 Deliberation No. 11 on prevention of arbitrary deprivation of liberty in the context of public health emergencies (A/HRC/45/16, annex II), para. 15. proportionate in the prevailing context of the COVID-19 pandemic.¹⁶⁰ In doing so, States should consider all alternative measures to custody.

160. Ibid, para. 13; Committee on the Elimination of Discrimination against Women, ‘Guidance Note on CEDAW and COVID-19’, para. 7, <tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=INT/CEDAW/STA/9156&Lang=en>. ↩

Where custody cannot be avoided, States must ensure that women are held in conditions that are sanitary and that necessary protection measures are undertaken to ensure the safety and wellbeing of women detainees, including physical distancing, provision of protective items and quarantining of persons showing symptoms.¹⁶¹ States should ensure that women in detention have access to COVID-19 testing and vaccines. States should ensure that preventative healthcare including screening for breast and gynaecological cancer continue to be provided to women in detention or are resumed when safe to do. Specific efforts to mitigate negative mental health impacts of COVID-19 measures for women in detention should also be undertaken.¹⁶²

161. UA USA 34/2020. ↩
162. OHCHR, ‘Leading human rights experts call for overdue implementation of the UN Bangkok Rules a decade after they were adopted’, 2020, <www.ohchr.org/Documents/Issues/Women/SR/BangkokRules-leaders-statement_EN.pdf >. ↩

States should ensure that changes to detention regimes, including isolation and limits to contact with the outside world, do not unduly impact women. This includes measures that prevent women in detention from accessing items and supplemental food ordinarily provided by family and support networks on which they rely.¹⁶³

163. Ibid. ↩

The Working Group notes that emerging research has linked lockdown measures with significant increases in reports of gender-based violence.¹⁶⁴ States should ensure that any COVID-19 measures that impose restrictions on movement amounting to deprivation of liberty¹⁶⁵ do not deter, prohibit or punish women from taking steps to escape gender-based violence. Moreover, States should take proactive steps to ensure that measures are in place to support victims of violence during the COVID-19 pandemic, including access to resources, hotlines and a sufficient number of shelters throughout the State.

164. UN Women, ‘From insights to action: Gender equality in the wake of COVID-19’, p. 10; European Commission, ‘2021 report on gender equality in the EU’, pp. 4–6. ↩
165. The Working Group has previously noted that mandatory quarantine in a given premise, including in a person’s own residence that the quarantined person may not leave for any reason, is a measure of de facto deprivation of liberty, see Deliberation No. 11 on prevention of arbitrary deprivation of liberty in the context of public health emergencies (A/HRC/45/16, annex II), para. 8. ↩

States should recognize that women are particularly affected by the arbitrary detention of partners and family members. Arbitrary detention of partners and family members may lead to women assuming additional caregiving responsibilities, facing stigma or discrimination within their communities and experiencing financial hardship.

Women must be able to support and seek justice for detained partners or family members without placing their security or liberty at risk.¹⁶⁶ They should be able to visit persons in detention facilities without being subjected to unnecessary invasive and humiliating searches, or to sexual violence such as rape.167 160 Ibid, para. 13; Committee on the Elimination of Discrimination against Women, ‘Guidance Note on CEDAW and COVID-19’, para. 7, <tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=INT/CEDAW/STA/ 9156&Lang=en>. 161 UA USA 34/2020. 162 OHCHR, ‘Leading human rights experts call for overdue implementation of the UN Bangkok Rules a decade after they were adopted’, 2020, <www.ohchr.org/Documents/Issues/Women/SR/BangkokRules-leaders-statement_EN.pdf >. 163 Ibid. 164 UN Women, ‘From insights to action: Gender equality in the wake of COVID-19’, p. 10; European Commission, ‘2021 report on gender equality in the EU’, pp. 4–6. 165 The Working Group has previously noted that mandatory quarantine in a given premise, including in a person’s own residence that the quarantined person may not leave for any reason, is a measure of de facto deprivation of liberty, see Deliberation No. 11 on prevention of arbitrary deprivation of liberty in the context of public health emergencies (A/HRC/45/16, annex II), para. 8. 166 See, e.g. Opinion No. 21/2019, para. 17 (10 women and 3 girls were arbitrarily detained and tortured for peacefully demonstrating against the detention of political opponents, some of whom were their relatives). 167 See, e.g. Opinion No. 73/2019, para. 95. See also A/HRC/22/44/Add.2, para. 72; A/HRC/31/57/Add.4, paras. 37–41. Such searches are likely to be contrary to Nelson Mandela Rules, rules 52 and 60.

166. See, e.g. Opinion No. 21/2019, para. 17 (10 women and 3 girls were arbitrarily detained and tortured for peacefully demonstrating against the detention of political opponents, some of whom were their relatives). ↩

Women should not be deprived of their liberty or subjected to violence during the arrest and detention of a partner or family member.¹⁶⁸

168. Opinions No. 31/2019, paras. 8–9, 38 (woman detained and tortured after refusing to become an informant in exchange for the release of her son); No. 18/2011, paras. 4, 5, 19 (arrest and detention of wife and close family members to induce detainee’s surrender and as reprisals for demanding a fair trial and basic human rights). ↩

Women must not be made the subject of threats, especially of sexual violence, in order to induce a detained partner or family member to make a confession.¹⁶⁹

169. Opinions No. 33/2017, paras. 90–91 (threats made during interrogation to rape mothers and sisters of detainees); No. 29/2016, para. 20 (threat of rape of family members); No. 14/2016, paras. 10, 12, 13 (threat to arrest family members and place children in social care). ↩

Arbitrary deprivation of liberty can have long-lasting, harmful impacts on women’s lives and on those of their families. These may include stigma and social alienation, deterioration of mental and physical health, loss of parental rights, breakup of the family unit, loss of income, and challenges obtaining employment and housing.¹⁷⁰

170. See, A/68/340, paras. 66–80. ↩

States should ensure that women in detention are provided with gender-specific rehabilitation, treatment, vocational training and educational opportunities in order to equip them for successful reintegration into society.¹⁷¹ [Adopted on 12 May 2021] 168 Opinions No. 31/2019, paras. 8–9, 38 (woman detained and tortured after refusing to become an informant in exchange for the release of her son); No. 18/2011, paras. 4, 5, 19 (arrest and detention of wife and close family members to induce detainee’s surrender and as reprisals for demanding a fair trial and basic human rights). 169 Opinions No. 33/2017, paras. 90–91 (threats made during interrogation to rape mothers and sisters of detainees); No. 29/2016, para. 20 (threat of rape of family members); No. 14/2016, paras. 10, 12, 13 (threat to arrest family members and place children in social care). 170 See, A/68/340, paras. 66–80. 171 See among others, Bangkok Rules, rule 46.

171. See among others, Bangkok Rules, rule 46. ↩