In response to the UN Working Group on Arbitrary Detention’s public appeal to NGOs and other stakeholders, the Foundation has submitted comments and recommendations to a working draft of Basic Principles and Guidelines on Remedies and Procedures on the Right of Anyone Deprived of Their Liberty to Bring Proceedings Before a Court. In addition to general recommendations, the Foundation proposed detailed solutions relating to specific provisions of the draft.
In the initial draft of the WGAD report, it is not clear to what extent it would oblige signatories to comply with the principles enshrined therein and whether possible violations would automatically entail sanctions. There are also groups whose protection would need to be strengthened, i.e. arrested children, women, foreigners or persons with disabilities. There is also a need to expand the list of persons proposed by the WGAD. Judging from the Foundation’s experience, opponents and critics of regimes, including independent journalists, are also often victims of unlawful arrest. The issue of forced psychiatric treatment, which is used by authoritarian regimes to persecute activists, should also be clarified.
It is also important to add measures to verify the impartiality, competence and independence of the court, which should be the appellate authority in cases of unlawful arrest and detention. The document provides for the detainee’s right to be informed of his or her situation in a language he or she understands, which is worth extending to the right to take a position in that language. Moreover, the legalistic language used by the Court of Justice makes its verdicts little understood even by fluent English speakers.
The Foundation also proposed adding a number of provisions, including that national laws (the basis for any restriction of freedoms) should be in line with the fundamental principles of human rights.
A number of comments address the situation of refugees. There are specific provisions in the document to ensure the protection of refugees and asylum seekers, but nevertheless there are still cases of detentions of human rights defenders based on Interpol mechanisms. The system is failing in the area of verifying whether requests made by countries are politically motivated. There is a lack of specific criteria by which it would be easier to assess a particular application. The Foundation has produced a report documenting 44 stories of political opponents being prosecuted by their home countries using the tools of the international police. This is why, among other things, a reform of international refugee status is needed. This status should make it impossible to arrest a person at the request of the country from which the refugee in question is fleeing. In particular, it should not be permissible for an EU member state to arrest a person who has been granted international protection in another member state.
In addition to clarifying some of the provisions and specifying the cases of arrests of refugees, political opponents or human rights defenders, it also seems necessary to ensure the effective implementation of the document.
ODF’s comments and recommendations to the draft Basic Principles and Guidelines on Remedies and Procedures on the Right of Anyone Deprived of Their Liberty to Bring Proceedings Before a Court, prepared by the UN Working Group on Arbitrary Detention (WGAD):
