A special body, the UN Working Group on Arbitrary Detention, deals with complaints about illegal deprivation of liberty, unfair trials and other similar issues at the United Nations.
What are the powers of this body, who can complain, what decisions can be made and how countries implement them, as well as what complaints come from Ukraine, Russia and Belarus, in an exclusive commentary to UNN told Vice-Chair of the UN Working Group on Arbitrary Detention, Vice-President of the European Community of International Law, Judge of the European Court of Human Rights (2010-2022), Partner of EQUITY Law Firm Anna Yudkivska.
"This working group was established by a UN resolution. It was tasked with investigating cases of arbitrary deprivation of liberty in accordance with international legal mechanisms such as the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights. In other words, it is a quasi-judicial body.
The Working Group is composed of five independent experts elected by the UN Human Rights Council. These five experts represent five different regions of the world, and I was elected from Eastern Europe.
We consider individual applications for any case of arbitrary deprivation of liberty. This can be deprivation of liberty contrary to the law, when there are no legal grounds, when the deprivation of liberty procedure is violated, when the deprivation of liberty is carried out as a result of such violations of the judicial process that automatically make this deprivation illegal. There are several standard categories into which we categorize illegal deprivation of liberty. The group meets three times a year and reviews applications. We also have procedures for making visits to any state in order to familiarize ourselves with the situation of deprivation of liberty in that state. The working group then reports to the UN Human Rights Council," says Hanna Yudkivska.
As for complaints from Ukraine, according to Ms. Yudkivska, there are not too many of them for several reasons.
On the one hand, the people of our country are not sufficiently aware of this mechanism. On the other hand, it is a general trend that the UN Working Group is less often approached with complaints against countries that are members of the Council of Europe and fall under the jurisdiction of the European Court of Human Rights.
This is due to the fact that the decisions of the ECHR are binding, unlike the decisions of the Working Group.
"Still, it is believed that an appeal to the ECHR is more effective, given the binding nature of the decision of this body. The decisions of the Working Group, although they are not formally considered binding, nevertheless, establish violations of the state's international obligations, which are binding on a state that, for example, has acceded to the International Covenant on Civil and Political Rights.
In principle, the group's decisions cannot be said to be implemented 100%, but in at least 20% of cases they are implemented. That is, the state releases a person in respect of whom we have established that the detention is illegal
Of course, Ukraine, like all UN member states, falls under the jurisdiction of our Working Group. And if we have complaints coming from Ukraine, then, of course, the Working Group considers them. I do not participate in the consideration of these complaints, because I am elected from Ukraine, and I also do not participate in complaints filed against the Russian Federation. Actually, because of the situation that we have, so that there is no impression of an unfair approach," said Yudkivska.
The lawyer notes that there are no statistics on how many complaints against Russia have been received by the Working Group from the temporarily occupied Crimea. However, she emphasizes that there have always been enough complaints against Belarus, and since the fall of 2022, the number of complaints against Russia has begun to increase. This is due to the fact that Belarus has never been a member of the Council of Europe, and it could not be complained about to the ECHR. And Russia withdrew from the jurisdiction of the European Court just last fall.
"I don't have statistics on how many appeals we have received from Crimea, but I can say that it is not many - you can count them on one hand.
Since September 2022, human rights activists, both Russian and Ukrainian, who file complaints against the Russian Federation, have begun to appeal to the UN International Group on Arbitrary Detention.
We already have complaints about the detention of prisoners of war, in particular, and they are being considered, but I can say that there are not many of them.
As for complaints against Belarus, I can work with them. There are a lot of complaints about arbitrary imprisonment of opposition members, unfair trials, and so on. At each session, we have at least two cases on Belarus under consideration. Unfortunately, I can't say that Belarus is implementing these decisions in the future. But let's hope so. This is a long process. Let's hope that as a result of the working group's decisions, these people will be released. The same applies to the Russian Federation," summarized Hanna Yudkivska.