General Comment No. 35

Human Rights Committee concluded its first reading of the draft General Comment on the Right of Everyone to Liberty and Security of Person (Article 9 of the Covenant)

On the 20th, 21st,  25th and 27th of March 2014, the Human Rights Committee continued the first reading, paragraph by paragraph, of an initial draft General Comment on the right of everyone to liberty and security of person, Article 9 of the ICCPR.

The initial wording of the draft was proposed by Gerald L. Neuman, Committee Special Rapporteur on new communications and interim measures, with the collaboration of some Committee Experts’ wording proposals.

The Committee discussed the paragraphs corresponding to Section VII of the draft (“Relationship of article 9 with other articles of the Covenant”), dealing mainly with the interplay of article 9 and articles 7, 8, 10, 12 and 4 of the Covenant. Part of the discussion focused on paragraphs 59 and 60, which underline that Article 9 overlaps with the prohibition of torture and cruel, inhuman or degrading treatment or punishment set forth in article 7 of the Covenant. Moreover, the paragraph stresses the importance of the procedural guarantees in article 9 to reduce the likelihood of torture and ill-treatment in cases of arbitrary and prolonged incommunicado detention. Committee Experts decided to add a reference of mental integrity to the definition of bodily integrity in paragraph 59. The Committee also discussed the possibility of including an additional paragraph 59bis related exclusively to the compliance with the non-refoulement principle.

The Committee then turned to paragraph 61, which concerns slavery and other forms of forced labour forbidden by article 8 of the Covenant that implicate the rights provided in article 9. It agreed to delete this paragraph because similar issues were dealt with in other sections of the draft.

Then, the discussion turned to the different alternative wordings proposed by the Special Rapporteur and some Committee Members regarding paragraphs 15bis and 69. These paragraphs deal with cases in which States impose “security detention” not in contemplation of prosecution on a criminal charge. The Committee Members discussed in depth about the definition of “security detention” and “security of the State”, as well as about the conceptual differences between preventive detention, administrative detention and internment. Committee Experts discussed various suggestions regarding “exceptional circumstances” that can lead to the derogation of article 9 of the Covenant under article 4, thus allowing for a specific kind of detention (“security detention”).

The Committee continued its first reading of draft general comment on article 9, liberty and security of person and have now completed the first reading. The draft will be posted on the Committee’s webpage on 1 April 2014 with a strict deadline for comments from all stakeholders by 1 June. Only submissions which arrive before the deadline will be posted on the website.

Ideally, Committee Members expect to have a final text of the General Comment by October 2014.

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