Human Rights Council

Fift y-first session

12 September–7 October 2022

Agenda item 3

Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development

Resolution adopted by the Human Rights Council on 6 October 2022

5 1 / 8. Arbitrary detention

The Human Rights Council,

Guided by the purposes and principles of the Charter of the United Nations,

Reaffirming articles 3, 9, 10 and 29 and other relevant provisions of the Universal Declaration of Human Rights,

Recalling articles 9 to 11 and 14 to 22 of the International Covenant on Civil and Political Rights,

Recalling also Commission on Human Rights resolutions 1991/42 of 5 March 1991 and 1997/50 of 15 April 1997, and Human Rights Council resolutions 6/4 of 28 September 2007, 10/9 of 26 March 2009, 15/18 of 30 September 2010, 20/16 of 6 July 2012, 24/7 of 26 September 2013, 33/30 of 30 September 2016 and 42/22 of 26 September 2019,

Recalling further General Assembly resolution 60/251 of 15 March 2006 on the Human Rights Council,

Recalling Human Rights Council resolution 5/1 on institution-building of the Council and resolution 5/2 on the Code of Conduct for Special Procedure Mandate Holders of the Council, of 18 June 2007, and stressing that the mandate holder shall discharge his or her duties in accordance with those resolutions and the annexes thereto,

1.Recognizes that arbitrary detention is a violation of the right to liberty;

2.Also r ecognizes that persons who are unlawfully or arbitrarily deprived of their liberty are vulnerable to extrajudicial killings, torture and other cruel, inhuman or degrading treatment or punishment, enforced disappearances and other human rights violations and abuses, such as sexual and gender-based violence;

3.Further r ecognizes the right to legal assistance, the importance that such legal assistance be prompt and effective, and the paramount importance that detainee registers have in preventing instances of arbitrary deprivation of liberty;

4.Stresses the importance of the work of the Working Group on Arbitrary Detention;

5.Takes note with interest of the latest reports of the Working Group, including the issues and recommendations contained therein;

6.Requests the States concerned to take account of the views of the Working Group and, where necessary, to take appropriate steps to remedy the situation of persons arbitrarily deprived of their liberty, and to inform the Working Group of the steps they have taken;

7.Notes the efforts of the Working Group to elaborate basic principles and guidelines on remedies and procedures on the right of anyone deprived of their liberty by arrest or detention to bring proceedings before a court;

8.Encourages all States:

(a)To give due consideration to the opinions and appeals of the Working Group;

(b)To take appropriate measures to ensure that their legislation, regulations and practices remain in conformity with relevant international standards and the applicable international legal instruments;

(c)To respect and promote the right to legal assistance, and to ensure that such legal assistance is prompt and effective;

(d)To respect and promote the right of anyone arrested or detained on a criminal charge to be brought promptly before a judge or other officer authorized by law to exercise judicial power, and to be entitled to trial within a reasonable time or to be released;

(e)To respect and promote the right of anyone deprived of their liberty by arrest or detention to bring proceedings before court, in order that the court may decide without delay on the lawfulness of their detention and order their release if the detention is not lawful, in accordance with State’s international obligations;

(f)To ensure that the right referred to in subparagraph (e) above is equally respected in cases of administrative detention, including administrative detentions in relation to public security legislation;

(g)To ensure that anyone who is arrested or detained on a criminal charge has adequate time and facilities for the preparation of their defence, including the opportunity to engage and communicate with the counsel of their choice;

(h)To ensure that the conditions of pretrial detention do not undermine the fairness of the trial;

(i)To provide guarantees with respect to any form of detention against unlawful or arbitrary deprivations of liberty;

(j)To ensure the maintenance of registers of persons deprived of liberty, and that they are made promptly available, upon request, to any judicial or other competent authority;

(k)To consider reviewing laws and practices that may give rise to arbitrary detention in line with recommendations of the Working Group;

(l)To give full effect to 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, commonly referred to as the Declaration on Human Rights Defenders, and to ensure that human rights defenders, peaceful protesters, journalists and other media workers are not arbitrarily deprived of their liberty as a result of their activities, recognizing their role in safeguarding the prohibition of arbitrary deprivation of liberty, and in this regard to release all persons detained or imprisoned in violation of the obligations of States under international human rights law for exercising their human rights and fundamental freedoms, such as the rights to freedom of expression, peaceful assembly and association, including in relation to cooperation with the United Nations or other international mechanisms in the area of human rights;

(m)To give due consideration to the specific challenges faced by women, in particular pregnant women and nursing mothers, children, persons with disabilities and older persons deprived of their liberty, and to redouble efforts to close the gap between international standards, including the United Nations Rules for Treatment of Women Prisoners and Non-Custodial Measures for Women Offenders (the Bangkok Rules);

(n)To ensure that victims of arbitrary detention have an effective remedy, including, where appropriate, reparation;

9.Also e ncourages all States to cooperate with the Working Group and to give serious consideration to responding favourably to its requests for visits so that it may carry out its mandate even more effectively;

10.Notes with concern that a persistently large proportion of urgent appeals of the Working Group has been left unanswered, and urges the States concerned to give the necessary attention to the urgent appeals addressed to them by the Working Group on a strictly humanitarian basis and without prejudging its possible final conclusions, as well as to the communication of the same case pursuant to the regular complaint procedure;

11.Encourages the Working Group to, in accordance with its working methods, continue to provide the State concerned with relevant and detailed information concerning allegations of arbitrary detention in order to facilitate a prompt and substantive response to these communications without prejudice to the need for the State concerned to cooperate with the Working Group;

12.Notes with deep concern that the Working Group has received increasing information about reprisals suffered by individuals who were the subject of an urgent appeal or opinion or who applied a recommendation of the Working Group, and calls upon the States concerned to take appropriate measures to prevent such acts and to combat impunity by bringing perpetrators to justice and by providing victims with appropriate remedies;

13.Expresses its profound thanks to the States that have extended their cooperation to the Working Group and responded to its requests for information, and invites all States concerned to demonstrate the same spirit of cooperation;

14.Notes with satisfaction that the Working Group has been informed of the release of some of the individuals whose situation has been brought to its attention, while deploring the many cases that have not yet been resolved;

15.Decides to extend the mandate of the Working Group on Arbitrary Detention for a further period of three years, in accordance with Commission on Human Rights resolutions 1991/42 and 1997/50 and Human Rights Council resolution 6/4;

16.Notes that the Working Group has been receiving an increasing number of submissions concerning allegations of arbitrary detention, and requests the Working Group to reduce and address the backlog of submissions, and continue to process all new cases in a timely and efficient manner so as to avoid future backlogs;

17.Notes with concern that, according to the Working Group, despite the adoption of a streamlined review process, it continues to have insufficient resources to exercise its mandate effectively, particularly in relation to human resources, of which there is an acute need, and requests the Secretary-General to provide the Working Group with all the assistance necessary for it to be able to effectively and sustainably fulfil its mandate, in particular by putting sufficient, assured and predictable human resources at its disposal;

18.Decides to continue its consideration of the question of arbitrary detention in conformity with its programme of work.

4 0th meeting 6 October 2022

[Adopted without a vote.]