A-HRC-13-42

A/HRC/13/42
page 16
22. Opinion No. 29/2006 of the Working Group on Arbitrary Detention 16 concerned 26
individuals who were alleged to have been captured in various countries, partly handed over into
the custody of the United States of America under its secret Central Intelligence Agency (CIA)
rendition programme in the context of the so called “global war on terror”. They were held
incommunicado at various “black sites” under the jurisdiction of the United States for prolonged
periods of time, without charge or trial, access to courts of law, and without their families being
informed or aware of their fate or whereabouts. In spite of the absence of a response by the
Government of the United States to these allegations, the Working Group considered itself in a
position to render an opinion on the cases of these 26 individuals, many of whom were suspected
of having been involved in serious crimes, and held that their detention clearly fell within
category I of arbitrary detention.
23. In most cases, secret detention, as it is outside any international or national legal regime,
also implies that the duration of detention is not known to the detainee; it rests at the sole
discretion of the authorities ordering the detention. Hence, the very nature of secret detention
may result in potentially, or actually, indefinite periods of detention, which render this type of
detention arbitrary on this additional ground. 17
2. Secret detention and the right to a fair trial
24. Secret detention outside the protection of the law is often resorted to with the purpose of
depriving the detainee of the rights that he or she would otherwise enjoy as a person charged
with a criminal offence, namely the right to a fair trial, as enunciated in article 14 of the
International Covenant on Civil and Political Rights and the complementary guarantees
contained in article 9, paragraphs 2 and 3. Article 9, paragraph 2 of the Covenant stipulates that
anyone who is arrested should be promptly informed of any charges against him. Paragraph 3 of
the same article requires that anyone arrested or detained on a criminal charge be brought
promptly before a judge or other officer authorized by law to exercise judicial power.
25. The above-mentioned provisions presuppose that anyone suspected of having committed a
recognizable criminal offence and arrested on these grounds must be informed of the underlying
charges if the interest of justice requires the prosecution of such a crime; otherwise, the State
could circumvent the additional rights extended to suspects of a crime spelled out in articles 9
and 14 of the Covenant. Equally, if someone suspected of a crime and detained on the basis of
confinement, ill-treatment and failure to inform the relatives about their detention; No. 47/2005
(A/HRC/4/40/Add.1) and No. 8/1998 (E/CN.4/1999/63/Add.1).
16 A/HRC/4/40/Add.1.
17 For example, see opinion No. 22/2004 (E/CN.4/2006/7/Add.1) on the arbitrary character of
detention for an unspecified period of time.