Governments Must Not Use COVID-19 for Arbitrary Detention: UN Experts

A group of independent UN experts recalled today (May 8) that “the prohibition of arbitrary detention is absolute even during times of public emergencies” and urged governments worldwide to prevent arbitrary deprivation of liberty in the context of the measures currently adopted for controlling the spread of the COVID-19 virus.

“Imposition of mandatory quarantine, from which a person cannot leave for any reason, in the context of a public health emergency is de facto deprivation of liberty, and safeguards against arbitrariness must be strictly observed,” the Working Group on Arbitrary Detention said.

In its newly adopted Deliberation No. 11, the expert group establishes a set of guidelines to prevent arbitrary deprivation of liberty during public health emergencies, stressing that any control measures “must be publicly declared, be strictly proportionate to the threat, be the least intrusive means to protect public health and imposed only while the emergency lasts.”

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Moreover, “the States should urgently review the existing cases of deprivation of liberty across all detention settings to determine whether the detention is still justified as necessary and proportionate in the prevailing context of the COVID-19 pandemic,” experts say.

States should refrain from holding persons of 60 years and older, pregnant women, and women that are breastfeeding, persons with underlying health conditions as well as persons with disabilities, in places of deprivation of liberty where the risk to their physical and mental integrity and life is heightened.

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They said that “detention in the context of migration is only permissible as an exceptional measure of last resort, which is a particularly high threshold to be satisfied in the context of a pandemic or other public health emergency.”

Governments are reminded that migrant children and children with their families should be immediately released, that asylum seekers should not be held in places of deprivation of liberty during the course of the procedure for the determination of their status and that refugees should be protected and not detained.

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The Working Group recalls that automatic pre-trial detention of persons is incompatible with international law, and preference to non-custodial measures should be given during the public health emergencies.

The expert group also noted that the power to detain people during health emergencies must not be used to silence the work of human rights defenders, journalists, members of the political opposition, religious leaders, health care professionals, and other dissenting voices.

The human rights experts also called on Governments to release all victims of arbitrary detention recognized in previous opinions adopted by the Working Group.

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The Working Group on Arbitrary Detention has a mandate to investigate allegations of individuals being deprived of their liberty in an arbitrary way or inconsistently with international human rights standards, and to recommend remedies such as release from detention and compensation, when appropriate.

The Working Group on Arbitrary Detention is comprised of five independent expert members from around the world: Mr. José Antonio Guevara Bermúdez (México), current Chair-Rapporteur; Ms. Elina Steinerte (Latvia), Ms. Leigh Toomey (Australia), Mr. Seong-Phil Hong (Republic of Korea), and Mr. Sètondji Roland Adjovi (Benin).