18 July 2014
The Human Rights Committee today continued its second reading of the draft General Comment on article 9 of the International Covenant on Civil and Political Rights on the right of everybody to liberty and security of person.
The Committee agreed that egregious examples of arbitrary detention included detaining family members of an alleged criminal who were not themselves accused of any wrongdoing, the holding of hostages, and arrests for the purpose of extorting bribes or other similar criminal purposes. Arrest or detention as punishment for the legitimate exercise of the rights guaranteed by the Covenant was arbitrary, including freedom of opinion and expression, freedom of assembly, freedom of association, freedom of religion, and the right to privacy. The Experts said that arrest or detention on discriminatory grounds in violation of article 2, paragraph 1, article 3, or article 26 was also in principle arbitrary. While the detention in the course of proceedings for the control of immigration was not per se arbitrary, the detention had to be justified as reasonable, necessary and proportionate in light of the circumstances. Decisions regarding the detention of adult migrants had also to take into account the effect of the detention on their mental health. The inability of a State party to carry out the expulsion of an individual did not justify indefinite detention.
Different opinions were expressed on whether children and adolescents could be deprived of liberty under any circumstances. It was stressed that unaccompanied minors should be given special attention. The Experts discussed at length whether to add a separate paragraph in the draft General Comment which would exclusively relate to the issue of detention of children, generally outside of the immigration context. The Committee agreed to have a separate draft paragraph drafted by Committee member Gerald Neuman on this particular issue; it would be presented to the Committee at its session in October.
The Committee also discussed the need for States parties to revise outdated laws and practices in the field of mental health in order to avoid arbitrary detention. It was said that any deprivation of liberty had to be necessary and proportionate, for the purpose of protecting the person in question from harm or preventing injury to others. Deprivation of liberty had to be re-evaluated at appropriate intervals with regard to its continuing necessity. Experts stressed the need to further improve, but retain a paragraph dealing with the detention of persons with mental disabilities.
The Committee adopted paragraphs 16, 17 and 18 of the draft General Comment 9.
The next public meeting of the Committee will be on Tuesday, 22 June at 10 a.m., when it will continue discussions on the draft General Comment 9.
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