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UNITED
NATIONS
E

        Economic and Social Council
Distr.
GENERAL
E/CN.4/1994/27
17 December 1993

ENGLISH
Original: ENGLISH/FRENCH/
SPANISH

COMMISSION ON HUMAN RIGHTS
Fiftieth session
Item 10 of the provisional agenda




QUESTION OF THE HUMAN RIGHTS OF ALL PERSONS SUBJECTED TO
ANY FORM OF DETENTION OR IMPRISONMENT

Report of the Working Group on Arbitrary Detention


/...

Introduction

1. At its forty-seventh session, the Commission on Human Rights adopted resolution 1991/42, entitled "Question of arbitrary detention", in which it decided to create, for a three-year period, a working group composed of five independent experts, with the task of investigating cases of detention imposed arbitrarily or otherwise inconsistently with the relevant international standards set forth in the Universal Declaration of Human Rights or in the relevant international legal instruments accepted by the States concerned.

2. The Working Group presented its first and second reports (E/CN.4/1992/20 and E/CN.4/1993/24) to the Commission at its forty-eighth and forty-ninth sessions respectively. The first report contained, inter alia, the Working Group's methods of work and the principles applicable in the consideration of cases submitted to it, thus laying down the criteria according to which it proceeded in the consideration and adoption of decisions on individual cases of alleged arbitrary detention. The second report contained, inter alia, the full text of the decisions adopted by the Working Group in 1992, as well as four deliberations providing the Group's views on certain legal situations; statistical data covering the period September 1991 to December 1992, and the Working Group's conclusions and recommendations.

3. At its forty-ninth session, the Commission adopted resolution 1993/36, entitled "Question of arbitrary detention", in which it, inter alia, took note with satisfaction of the Working Group's report (E/CN.4/1993/24) and thanked the experts for the rigour with which they had performed their task, in the light of the very specific nature of their mandate of investigating cases; and requested the Working Group to submit a report to it, at its fiftieth session, and to make all suggestions and recommendations for better fulfilment of its task, particularly in regard to ways and means of ensuring the follow-up to its decisions, in cooperation with Governments.

4. In conformity with paragraph 18 of Commission resolution 1993/36, the Working Group hereby presents its third report to the Commission.

5. Chapter I of the report describes the activities of the Working Group since the submission of its second report to the Commission, including data on the number of communications and cases transmitted by the Working Group to Governments during 1993 and the number of replies received, data on urgent appeals sent and the replies received thereto; contacts made by the Working Group with certain Governments with a view to carrying out field missions, and the results of such contacts; contacts with special rapporteurs of the Commission and contacts with non-governmental organizations. Chapter II sets out the Working Group's views, at the end of the third year of its mandate, regarding the procedure it has followed in the adoption of "deliberations" (the term it used to distinguish between "decisions", which concern individual cases, and decisions on certain legal situations involving questions of principle, which it referred to as "deliberations"). Chapter III of the report describes the general framework in which the Working Group adopted decisions on individual cases submitted to it, and reactions by several Governments to decisions adopted in 1992 and 1993 concerning their countries. Chapter IV contains the Working Group's general conclusions and recommendations.

6. Annex I contains the methods of work of the Working Group, as revised by it at its eighth session. Annex II contains the full text of 54 decisions adopted by the Working Group, including 6 decisions adopted in 1992 which, for technical reasons, were not published in the Working Group's second report to the Commission (E/CN.4/1993/24) and the decisions adopted by the Working Group during its sixth and seventh sessions, in 1993. Annex III contains a decision regarding cases of persons no longer in detention, which the Working Group decided to file since it deemed that there were no special circumstances warranting it to consider the nature of the detention, and the list of those persons. Annex IV contains a list of persons whose release was announced by Governments following the adoption by the Working Group of decisions concerning these persons. Annex V contains statistical data regarding the number of cases dealt with by the Working Group during the period covered by the present report and the breakdown of the types of decision adopted by the Working Group.



ANNEX II

Decisions adopted by the Working Group

DECISION No. 17/1993 (ISRAEL)

Concerning: Sami Abu Samhadanah, on the one hand, and the State of Israel, on the other.

1. The Working Group on Arbitrary Detention, in accordance with the methods of work adopted by it and in order to carry out its task with discretion, objectivity and independence, forwarded to the Government concerned the above-mentioned communication received by it and found to be admissible, in respect of allegations of arbitrary detention reported to have occurred.

2. The Working Group notes with concern that till date no information has been forwarded by the Government concerned in respect of the case in question. With the expiration of more than ninety (90) days of the transmittal of the letter by the Working Group, it is left with no option but to proceed to render its decision in respect of the cases of alleged arbitrary detention brought to its knowledge.

3. (Same text as paragraph 3 of Decision No. 43/1992).

4. In the light of the allegations made, the Working Group would have welcomed the cooperation of the Government of Israel. In the absence of any information from the Government, the Working Group believes that it is in a position to take a decision on the facts and circumstances of the case, especially since the facts and allegations contained in the communication have not been challenged by the Government.

5. Sami Abu Samhadanah was first arrested on 27 June 1981 at the age of 18. Upon his release after conviction, he has subsequently suffered detention intermittently by a string of administrative detention orders each effective for six months. It is alleged that on 10 June 1990, soon after he got married in April of the said year, he was again arrested pursuant to the issuance of a 12-month administrative detention order dated 28 May 1990. Since then, he is alleged to be continuously in detention. A fresh order issued while in detention extended the period of detention till May 1992. Before the expiration of the period of detention, in January 1992 the then Government of Israel ordered the expulsion of Sami Abu Samhadanah, along with 11 others. While petitions challenging the expulsions were pending before the High Court of Justice, the new Israeli Government, while cancelling the said orders, issued fresh administrative detention orders. The result being that Sami Abu Samhadanah continues to be in detention.

6. Following the cancellation of his expulsion order but before the issuance of a fresh order of detention, Sami Abu Samhadanah gave his lawyer on 27 August 1992 an affidavit the following extracts of which are relevant:
7. The apparent reason for Sami Abu Samhadanah's continued administrative detention is the allegation that he was an activist in the Unified National Leadership (UNL) of the Intifada on behalf of "al-Fatah", a faction of the Palestine Liberation Organisation (PLO). While dealing with the challenge to the detention order of 28 May 1990, the judge, after perusing the classified information provided by the General Security Service (GSS), none of which was shown to Sami Abu Samhadanah or his lawyer, found that his activities intended to harm the security of the region and its inhabitants. The detention without charge, trial or interrogation was held to be justified. The withholding of information from Sami Abu Samhadanah or his lawyer was for protection of the GSS sources of information.

8. It is significant to note that when the detention of Sami Abu Samhadanah effected under the detention order of 28 May 1990 was extended, before its expiration, by the issuance of a fresh order of detention, it was allegedly based on the ground that he had continued his activities in his place of detention. It is also reported that Sami Abu Samhadanah has not been interrogated since 1987. Also, no attempt has been made to bring him to trial since his administrative detention began in 1985.

9. It is no doubt true that the al-Fatah movement has been advocating violence against Israel. Even accepting the fact that Sami Abu Samhadanah is a member of an organization associated or connected with the PLO, no evidence has been brought on record to establish even prima facie his direct or indirect complicity in specific acts of violence. There is nothing to suggest that he has ever advocated violence. Indeed the affidavit of 27 August 1992 is an affirmation by him of his never having practised violence or advocated it. He considers resort to violence as an act of mental imbalance. Seven years of almost continuous administrative detention in these circumstances, must be considered to be arbitrary.

10. None can doubt that Sami Abu Samhadanah, in continuing his activities, seeks to achieve certain political, social or national aims. The authorities having issued a fresh order of detention effective till 29 May 1992, while he was already under detention by virtue of an order dated 28 May 1990, on the ground that he had continued his activities in his place of detention, indicates, in the absence of any material to the contrary, that the period of detention was extended, not for his active or indirect involvement in any act of violence but for his opinions and non-violent activities.

11. The issuance of a string of detention orders, spreading over a period of almost seven years, leads to the presumption that the act of detention is punitive rather than preventive. The fact that Mr. Samhadanah has not been interrogated since 1987 and that no attempt has been made, since 1985, to bring him to trial, reinforces the conclusion as to the punitive nature of the detention. Besides, by the issuance of a string of detention orders Mr. Samhadanah has suffered administrative detention for an obviously abusive period of time.

12. In the light of the above the Working Group decides:
13. Consequent upon the decision of the Working Group declaring the detention of Sami Abu Samhadanah to be arbitrary, the Working Group requests the Government of Israel to take the necessary steps to remedy the situation in order to bring it into conformity with the norms and principles incorporated in the Universal Declaration of Human Rights and in the International Covenant on Civil and Political Rights.
Adopted on 30 April 1993


DECISION No. 18/1993 (ISRAEL)

Communication addressed to the Government of Israel on 6 November 1992.
1. The Working Group on Arbitrary Detention, in accordance with the methods of work adopted by it and in order to carry out its task with discretion, objectivity and independence, forwarded to the Government concerned the above-mentioned communication received by it and found to be admissible, in respect of allegations of arbitrary detention reported to have occurred.

2. The Working Group notes with concern that till date no information has been forwarded by the Government concerned in respect of the case in question. With the expiration of more than ninety (90) days of the transmittal of the letter by the Working Group, it is left with no option but to proceed to render its decision in respect of the case of alleged arbitrary detention brought to its knowledge.

3. (Same text as paragraph 3 of Decision No. 43/1992).

4. In the light of the allegations made, the Working Group would have welcomed the cooperation of the Government of Israel. In the absence of any information from the Government, the Working Group believes that it is in a position to take a decision on the facts and circumstances of the case, especially since the facts and allegations contained in the communication have not been challenged by the Government.

5. Walid Zakut was allegedly arrested on 16 June 1992, pursuant to the issuance of a four-month administrative detention order. He is said to be held at the Ketziot detention centre in southern Israel. He is accused of being an activist in the Democratic Front for the Liberation of Palestine (DFLP). At the beginning of 1992 he was appointed as a member of the advisory committee to the Palestinian delegation to the fourth round of the Middle East peace negotiations. Walid Zakut had been imprisoned on a number of occasions in the past, in 1987 and between 1989 to 1991, for charges reportedly relating to his membership of the DFLP.

6. Walid Zakut has allegedly, during the period of his four-month detention, made a statement to his lawyer which indicates that at the beginning of the peace talks, while in prison, his opinion was that to participate in the peace talks was a step in the right direction. He states that his opinion was publicized in newspapers. He further states that since his release, all his activity was political, open and supportive of the peace process. He states that he has never practised violence nor called upon others to use it.

7. Accepting the fact that Walid Zakut is a member of the DFLP which advocates violence and carries out acts of violence, no evidence has been brought on record to establish even prima facie his direct or indirect complicity in specific acts of violence. There is nothing to suggest that he has ever advocated violence. Indeed his statement made to his lawyers is an affirmation by him of his never having practised violence or advocated it. No specific acts have been attributed to Walid Zakut beyond mere membership of the DFLP. His administrative detention, even for four months, in these circumstances, is considered to be arbitrary.

8. None can doubt that Walid Zakut, in continuing his activities seeks to achieve certain political objectives. That he was a member of the advisory committee to the Palestinian delegation to the fourth round of the Middle East peace negotiations, bears testimony to his political objectives. The four-month order of detention was presumably issued not for his direct or indirect involvement in any specific acts of violence but for his opinions and non-violent activities. He has till date, in fact, never been told by the Israeli civil administration (in the Gaza strip) or by anybody else that his activities were illegal or undesirable.

9. The basis of the detention of Walid Zakut is the accusation that he is an activist member of the DFLP. In the absence of any specific material in support thereof, such detention cannot be supported in any legal basis. Membership of an organization cannot provide any legal basis for the detention of a person. For such detention to be upheld as a preventive measure it must be shown that the person concerned has committed, or is in the process of committing acts in furtherance of the objectives of the organization of which he is a member. Walid Zakut's detention is in contravention of article 9 of the Universal Declaration of Human Rights and article 9 of the International Covenant on Civil and Political Rights.

10. In the light of the above the Working Group decides:
11. Consequent upon the decision of the Working Group declaring the detention of Walid Zakut to be arbitrary, the Working Group requests the Government of Israel to take the necessary steps to remedy the situation in order to bring it into conformity with the norms and principles incorporated in the Universal Declaration of Human Rights and in the International Covenant on Civil and Political Rights.
Adopted on 30 April 1993


DECISION No. 26/1993 (ISRAEL)
1. The Working Group on Arbitrary Detention, in accordance with the methods of work adopted by it and in order to carry out its task with discretion, objectivity and independence, forwarded to the Government concerned the above-mentioned communication received by it and found to be admissible, in respect of allegations of arbitrary detention reported to have occurred.

2. The Working Group notes with concern that till date no information has been forwarded by the Government concerned in respect of the case in question. With the expiration of more than ninety (90) days of the transmittal of the letter by the Working Group, it is left with no option but to proceed to render its decision in respect of the case of alleged arbitrary detention brought to its knowledge.

3. (Same text as paragraph 3 of Decision No. 43/1992).

4. In the light of the allegations made, the Working Group would have welcomed the cooperation of the Government of Israel. In the absence of any information from the Government, the Working Group believes that it is in a position to take a decision on the facts and circumstances of the case, especially since the facts and allegations contained in the communication have not been challenged by the Government.

5. Ahmad Qatamesh, a writer, from al-Bireh, Ramallah District, was allegedly arrested on 1 September 1992 by military and General Security Service (GSS) personnel. He is currently held in Ramallah prison, reportedly under interrogation by GSS agents in relation to his alleged activity as a leading member of the Popular Front for the Liberation of Palestine (PFLP).

6. It is alleged that Mr. Qatamesh was detained incommunicado, denied access to his advocate and family members, for 23 days. Allegedly, he was first brought before a military judge only on 10 September 1992, on his application for bail. At the hearing, conducted in a special closed session, his advocate was excluded by GSS order. On 12 September 1992 Mr. Qatamesh was brought before a military judge for extending his detention at the instance of the GSS. A 30-day extension was ordered. The alleged evidence was presented as "classified material" and as such not made available either to Mr. Qatamesh or his advocate. Subsequently access to legal advice remained restricted; advocate's visits, apart from being allowed for short durations, were also delayed. On a further hearing for extension of detention on 25 October 1992, the detention was extended for a further 25 days. Again the evidence presented remained classified. It is alleged that the whole purpose of Mr. Qatamesh's detention is to extract a confession by torture and denial of adequate medical care rather than to investigate in good faith the allegations made.

7. In November 1992 a charge sheet was allegedly presented. On 3 December 1992 Mr. Qatamesh, on a motion made by his advocate, was granted bail which was reversed in appeal.

8. The practice of incommunicado detention, which under military orders, can extend to a period of 30 days, denies the detainee access to any domestic procedure in court for a review. Under orders of a military court this period can be further extended by 60 days during which period again the detainee has no avenue of redress, judicial or otherwise, to challenge the legality of the detention. The presentation of classified material in closed session, denying access to the material relied upon and to counsel, leaves the detainee without any effective remedy.

9. Restricted visits and accessibility to advocate, lack of adequate time and facilities for defending the detainee and the inability to freely communicate with counsel, all go to render the detention arbitrary.

10. In the light of the above the Working Group decides:
11. Consequent upon the decision of the Working Group declaring the detention of Ahmad Qatamesh to be arbitrary, the Working Group requests the Government of Israel to take the necessary steps to remedy the situation in order to bring it into conformity with the norms and principles incorporated in the Universal Declaration of Human Rights and in the International Covenant on Civil and Political Rights.
Adopted on 30 April 1993
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