The new General Comment on the Right to Liberty and Security of Persons clarifies the limits of the detention

The new General Comment on the Right to Liberty and Security of Persons clarifies the limits of the detention

Text of the General Comment No.35 (in English)

During the 112th session of the Human Rights Committee, General Comment No. 35 was adopted to provide an interpretation of article 9 of the ICCPR, constituting one of the most important General Comments so far, according to the Chair of the Committee. During the reading the Committee members were trying to provide the highest possible protection for detainees while at the same time maintaining a clear and straightforward text to avoid any abuse and misinterpretation by State parties. “Arbitrary detention is a profound threat to liberty and to the enjoyment of all other rights” said Gerald Neuman, Committee member and rapporteur of the commentary.

During the discussion, the problems of the document exceeding the word limit as well as several language ambiguities between the different translations were addressed. For example, while the English version was referring to the word ‘compensation’, the French and Spanish versions referred to the word ‘reparation’ which has a different meaning as clarified in General Comment No. 31. A long discussion had also taken place on the right to be represented and whether this could be assisted with video conferencing.

Also discussed was paragraph 45, and changing the wording to a ‘specialised tribunal’ because it was thought that the previous reference to a ‘tribunal outside the judiciary’ might lead to an abuse by State parties. Under paragraph 57 it was preferred not to include the word non-refoulment because under international refugee law it has a different meaning to that given to it in the Committee’s jurisprudence. However the purpose of the paragraph, which is to ensure compliance with the non-refoulment principle, remains the same.

Another significant issue explored at the session was the extra paragraph on detention of children, since the liberty of children differs from the liberty of adults in many cases. In the final text the paragraph on detention of children will take the place of paragraph 62.

A significant amount of time was also devoted to paragraph 15 and other paragraphs related to it, discussing whether the General Comment should apply in cases of armed conflict where humanitarian law is more prominent. The conclusion was in line with the decision from the previous sessions discussing the draft, that article 9 applies systematically in times of armed conflict.

Other issues addressed included whether the guarantee against arbitrary detention could be derogable and whether the language used in addressing detainees should be in a language they can understand. Continuing on from the previous sessions on the General Comment, the inclusion of mental integrity along with bodily integrity was confirmed. The issues of persons with disabilities and slavery and forced labour cases were once again addressed and clarified.

The final version of the General Comment will be available in French and Spanish in 3-4 weeks time.

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