62. The Working Group is, however, not entirely indifferent to the sentencing policies of States. Article 9 of the International Covenant on Civil and Political Rights starts with the fundamental principle that “Everyone has the right to liberty and security of person”. Regional human rights agreements enshrine the same principle.7 63. The Working Group takes the view that this principle not only means that nobody shall be deprived of his or her liberty in violation of the law or as a result of the exercise of a fundamental right, but that it first of all requires that States should have recourse to deprivation of liberty only insofar as it is necessary to meet a pressing societal need, and in a manner proportionate to that need. This principle is particularly relevant with regard to minors, and is accordingly enshrined explicitly in article 40, paragraphs 3 (b) and 4, of the Convention on the Rights of the Child. But its application should not be limited to minors.8 It is doubtful therefore that a sentencing policy resulting in an incarceration rate of 500 out of every 100,000 residents can find an objective and acceptable explanation, when the sentencing policy of another State produces a 100 out of every 100,000 rate. … On prison overpopulation: WGAD (12 December 2005) E/CN.4/2006/7, para 63: […] The Working Group takes the view that this principle not only means that nobody shall be deprived of his or her liberty in violation of the law or as a result of the exercise of a fundamental right, but that it first of all requires that States should have recourse to deprivation of liberty only insofar as it is necessary to meet a pressing societal need, and in a manner proportionate to that need.
Civil and political rights, including the question of torture and detention – Report of the Working Group on Arbitrary Detention (E/CN.4/2006/7)
61. In approaching this issue the Working Group is fully cognizant of the fact that States enjoy a wide margin of discretion in the choice of their penal policies, e.g. in deciding whether the public interest is best served by a “tough on crime” approach or rather by legislation favouring measures that are alternatives to detention, conditional sentences and early release on parole. The Working Group also recognizes that the imposition of a long term of imprisonment for an offence which in another country would have received only a light or conditional sentence cannot be taken as arbitrary, in the sense of a case falling into the categories used by the Working Group when considering individual communications.