Report of the Working Group on Arbitrary Detention (A/HRC/22/44)

48. Arbitrary deprivation of liberty can never be a necessary or proportionate measure, given that the considerations that a State may invoke pursuant to derogation are already factored into the arbitrariness standard itself. Thus, a State can never claim that illegal, unjust, or unpredictable deprivation of liberty is necessary for the protection of a vital interest or proportionate to that end. This view is consistent with the conclusion of the Human Rights Committee that the Covenant rights to not be arbitrarily deprived of one’s liberty and the right of anyone deprived of his or her liberty to bring proceedings before a court in order to challenge the legality of the detention are non-derogable.

62. The Human Rights Committee has stated that “in order to avoid a characterization of arbitrariness, detention should not continue beyond the period for which the State party can provide appropriate justification”.

80. The prohibition of arbitrariness comprises thorough examination of lawfulness, reasonableness, proportionality and necessity of any measure depriving a human being of her or his liberty. The prohibition of arbitrariness can arise at any stage of legal proceedings.