"The prohibition of arbitrary detention is absolute even during times of public emergencies. Imposition of mandatory quarantine, from which a person cannot leave for any reason, in the context of a public health emergency is de facto deprivation of liberty and safeguards against arbitrariness must be strictly observed."
In its newly adopted Deliberation No. 11, the expert group establishes a set of guidelines to prevent arbitrary deprivation of liberty during public health emergencies, stressing that any control measures "must be publicly declared, be strictly proportionate to the threat, be the least intrusive means to protect public health and imposed only while the emergency lasts".
Moreover, "the States should urgently review the existing cases of deprivation of liberty across all detention settings to determine whether the detention is still justified as necessary and proportionate in the prevailing context of the COVID-19 pandemic".
States should refrain from holding persons of 60 years and older, pregnant women and women that are breastfeeding, persons with underlying health conditions as well as persons with disabilities, in places of deprivation of liberty where the risk to their physical and mental integrity and life is heightened.
They said that "detention in the context of migration is only permissible as an exceptional measure of last resort, which is a particularly high threshold to be satisfied in the context of a pandemic or other public health emergency".
Governments are reminded that migrant children and children with their families should be immediately released, that asylum seekers should not be held in places of deprivation of liberty during the course of the procedure for the determination of their status and that refugees should be protected and not detained.
The Working Group recalls that automatic pre-trial detention of persons is incompatible with international law, and preference to non-custodial measures should be given during the public health emergencies.
The expert group also noted that the power to detain people during health emergencies must not be used to silence the work of human rights defenders, journalists, members of the political opposition, religious leaders, health care professionals and other dissenting voices.
The human rights experts also called on Governments to release all victims of arbitrary detention recognized in previous opinions adopted by the Working Group.
Dr. Elina Steinerte was a Senior Research Associate at the University of Bristol’s Human Rights Implementation Centre until 2017 and remains a Visiting Fellow. The UN Human Rights Council approved her candidacy to the Working Group on Arbitrary Detention (WGAD) on 1st November 2016, and since since then, has been Vice Chair for four consectutive years.