A/HRC/22/44 57. The Working Group regards as detention all forms of deprivation of liberty and would like to re-emphasize its former statement: if the term “detention” were to apply to pretrial detention alone, then it would follow that the [Universal Declaration of Human Rights] does not condemn arbitrary imprisonment pursuant to a trial of whatever nature. Such an interpretation is per se unacceptable. In fact the Declaration, in article 10, stipulates the entitlement in full equality of a fair and public hearing to everyone by an independent and impartial tribunal. This further confirms that the expression “detention” in article 9 refers to all situations, either pre-trial or post-trial.23 58. This broad interpretation is confirmed by current State practice.24 59. Placing individuals in temporary custody in stations, ports and airports or any other facilities where they remain under constant surveillance may not only amount to restrictions to personal freedom of movement, but also constitute a de facto deprivation of liberty.25 The Working Group has confirmed this in its previous deliberations on house arrest, rehabilitation through labour, retention in non-recognized centres for migrants or asylum seekers, psychiatric facilities and so-called international or transit zones in ports or international airports, gathering centres or hospitals.26 60. In this regard secret and/or incommunicado detention constitutes the most heinous violation of the norm protecting the right to liberty of human being under customary international law. The arbitrariness is inherent in these forms of deprivation of liberty as the individual is left outside the cloak of any legal protection.27 D. The notion of “arbitrary” and its constituent elements under customary international law 61. The notion of “arbitrary” stricto sensu includes both the requirement that a particular form of deprivation of liberty is taken in accordance with the applicable law and procedure and that it is proportional to the aim sought, reasonable and necessary.28 The drafting history of article 9 of the International Covenant on Civil and Political Rights “confirms that ‘arbitrariness’ is not to be equated with ‘against the law’, but must be interpreted more 23 24 25 26 27 28 GE.12-18935 Ibid., para. 66. See e.g. submissions by Canada (R. v. Swain, [1991] 1 S.C.R. 933; R. v. Demers, [2004] 2 S.C.R. 489, para. 30; May v. Ferndale Institution, [2005] 3 S.C.R. 809, para. 76; Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779, p, 831; Cunningham v. Canada, [1993] 2 S.C.R. 143, pp. 148–151); United States of America (Restatement (Third) of Foreign Relations Law, section 702 (1987), and Ma v. Ashcroft, 257 F.3d 1095, 1114 (9th Cir. 2001); Martinez v. City of Los Angeles, 141 F.3d 1373, 1384 (9th Cir. 1998); and De Sanchez v. Banco Central de Nicaragua, 770 F.2d 1385, 1397 (5th Cir. 1985)); see also submission by the Government of Lithuania. See report of the Working Group to the Economic and Social Council, E/CN.4/1998/44, para. 41; Working Group opinion No. 16/2011 (China). See its deliberations Nos. 1, 4, 5 and 7. See the joint study on global practices in relation to secret detention in the context of countering terrorism, A/HRC/13/42, p. 2. See e.g. Human Rights Committee, A. v. Australia; Marques de Morais v. Angola, communication No. 1128/2002, Views adopted on 29 March 2005, para. 6.1; Inter-American Court of Human Rights, Gangaram Panday v. Suriname, Judgement, Ser. C, No. 16, 1994, para. 47; Working Group, opinions No. 4/2011 (Switzerland); No. 3/2004 (Israel). 21