human rights defenders in society, the specific risks they face as a result of their
work and their protection needs, including in relation to judicial harassment and
other abuse. Special attention should also be paid to combating harmful stereotypes among law enforcement agents and public servants in order to discourage the
harassment of human rights defenders working on promoting and protecting the
rights of marginalized or otherwise vulnerable groups, and to encourage the vigorous investigation of reports of bias-motivated crime and gender-based violence.
104. Human rights defenders who file charges against a person or institution for human
rights violations should always be treated with dignity and should be effectively
protected from retaliatory charges, arbitrary prosecution and other legal actions.
This is particularly important for human rights defenders who engage in strategic
human rights litigation, including on behalf of persons belonging to marginalized
or otherwise vulnerable groups, and who may be subjected to inappropriately personal, offensive or aggressive questioning by judicial authorities or defence attorneys. “Lawyers should not suffer or be threatened with any sanctions or pressure
when acting in accordance with their professional standards,”147 including when
they litigate in cases concerning human rights violations against persons belonging
to national or ethnic, religious and linguistic minorities or regarding discrimination. Similarly, witnesses who testify in cases against state officials or institutions
concerning alleged human rights violations should be effectively protected from
any form of pressure.
Arbitrary detention and treatment in detention
105. Article 9 of the ICCPR, Article 5 of the ECHR and Article 7 of the ACHR provide
for the right to liberty and security of person and basic safeguards against arbitrary detention. According to the methodology of the UN Working Group on Arbitrary Detention, deprivation of liberty is arbitrary, inter alia, when “it is clearly
impossible to invoke any legal basis justifying the deprivation of liberty”; when the
deprivation of liberty results from the exercise of the rights to freedom of opinion
and expression, assembly and association, as well as a number of other fundamental rights and freedoms set out in the Universal Declaration of Human Rights
and the ICCPR; and when the “total or partial non-observance of the international
norms relating to the right to a fair trial […] is of such gravity as to give the deprivation of liberty an arbitrary character”.148 Deprivation of liberty includes police
custody, remand detention imprisonment after conviction, house arrest, involuntary hospitalization or committal to a psychiatric institution, among other forms
of detention.
147 See “Document of the Fourteenth Meeting of the Ministerial Council”, Brussels Declaration on Criminal
Justice Systems, 2006.
148 See information about working methods, “Individual complaints and urgent appeals”, Working Group on
Arbitrary Attention, <http://www.ohchr.org/EN/Issues/Detention/Pages/Complaints.aspx>. Concerning the
second category of cases, the Working Group regards deprivation of liberty as being arbitrary when it “results
from the exercise of the rights or freedoms guaranteed by articles 7, 13, 14, 18, 19, 10 and 21 of the Universal
Declaration of Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22, 25, 26
and 27 of the International Covenant on Civil and Political Rights”.
58
Guidelines on the Protection of Human Rights Defenders
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