Condensed: Everyone deprived of his or her liberty has the right to challenge the lawfulness of his or her arrest or detention before a court so that (1) the court may decide (2) without delay (speedily) (3) on the lawfulness of the detention or order the person’s release if the detention is not lawful. This right applies to all forms of deprivation of liberty, including administrative detention. In order to comply with the requirements of speedily, a detained person must have access to a remedy immediately upon detention or speedily thereafter and secondly, a remedy, once availed of, must ensue speedily. The court must have the power to review both the procedural and substantive grounds for the deprivation of liberty and be empowered to make a binding order for release of the detained person if his or her deprivation of liberty is unlawful. Comprehensive: The right to challenge the legality of detention is recognized in ICCPR article 9(4): Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful. As opposed to the automatic review of the need for detention with regard to those deprived of their liberty on a criminal charge (see *brought promptly before a judge*), the exercise of the right to habeas corpus, with its focus on wider issues of lawfulness, requires a request from the detained person or legal counsel.[1] The legality of the detention must be determined by a court, which must be independent and impartial.[2] The ECtHR has held that bodies such as parole boards[3] and mental health review boards[4] should be considered to be courts for the purpose of article 5(4) ECHR and thus competent to decide on habeas corpus proceedings where they are independent of the executive, impartial and have the power to order the release of the detained person. The court must have the power to review the substantive grounds for the deprivation of liberty. Thus, legislation that does not provide for a court to consider the legality of detention of asylum seekers independently from the decision on deportation was held by the ECtHR to violate the right to habeas corpus.[5] The court examining the challenge to the legality of the detention must examine and make findings on the reasons put forward by the claimant. In López Álvarez v Honduras the appeal court did not consider a challenge based on excessive length of detention. The IACtHR found that this showed ‘that the recourse was not effective, in this specific case, in fighting the alleged violation.’[6] The procedure ‘must be sufficiently certain, not only in theory but also in practice’.[7] Not being informed of the reasons for arrest or lack, lack of access to legal counsel and other violations of procedural guarantees for detainees may effectively prevent the exercise of the right to habeas corpus.[8] In Mubilanzila Mayeka and Kaniki Mitunga v Belgium, the ECtHR found a violation of the right to habeas corpus when Belgian authorities deported the applicant while her application for habeas corpus was still pending.[9] The court must be empowered to make a binding order for release of the detained person in the event that his or her deprivation of liberty is unlawful.[10] In Torres v Finland, a detention order in terms of the Finnish Aliens Act could only be reviewed by a court after seven days. The HRC held that this violated the provision to habeas corpus proceedings without delay.[11] In Sanchez-Reisse v Switzerland,[12] the ECtHR held that the concept of speedily ’cannot be defined in the abstract; the matter must … be determined in the light of the circumstances of each case’. The Court held that the word ‘speedily’ contains two requirements. Firstly, a detained person must have access to a remedy immediately upon detention or speedily thereafter and secondly, a remedy, once availed of, must proceed speedily. It should be possible to challenge one’s detention at reasonable intervals where a change in circumstances can affect its continued justification, such as cases of detention concerning children, recidivists or on grounds of mental health.[13] The right to habeas corpus applies to all forms of deprivation of liberty including *administrative or preventative detention*.[14] The right to habeas corpus may also extend to military disciplinary sanctions if these take ‘the form of restrictions that are imposed over and above the exigencies of normal military service’.[15] While the right to habeas corpus is not listed among the non-derogable rights in article 4(2) of the ICCPR, the HRC held in General Comment 29 that ‘in order to protect non-derogable rights, the right to take proceedings before a court to enable the court to decide without delay on the lawfulness of detention, must not be diminished by a State party’s decision to derogate from the Covenant.’[16] The IACtHR has held that the right to habeas corpus is non-derogable.[17] [1]Stephens v Jamaica communication 373/1989 (HRC 1995) para 9.7. [2]Torres v Finland, communication 291/1988 (HRC 1990) para 7.2. [3]Weeks v United Kingdom para 62; Thynne, Wilson and Gunnell v United Kingdom para 80. [4]X v Belgium application 6859/74; Dhoest v Belgium, application 10448/83. [5]SD v Greece, application 53541/07 (ECtHR 2009) paras 73-76. This does not mean that the court needs to have the power to ‘review whether the underlying decision to expel could be justified’. See Chahal v UK para 128. [6]López Álvarez v Honduras Series C no 141(IACtHR 2006) para 96. [7]Abdolkhani and Karimnia v Turkey application 30471/08 (ECtHR 2009) para 139. [8]Abdolkhani and Karimnia v Turkey para 141. [9]Mubilanzila Mayeka and Kaniki Mitunga v Belgiumapplication 13178/03 (ECtHR 2006) para 113. [10]Van Droogenbroeck v Belgium application 7906/77 (ECtHR 1982). [11]Torres v Finland, communication 291/1988 (HRC 1990). [12]Sanchez-Reisse v Switzerland, application 9862/82 (ECtHR 1986) para 55. [13]Bouamar v Belgium application 9106/80 (ECtHR 1988), Van Droogenbroeck v Belgium. [14]De Wilde, Ooms and Versyp v Belgium, application 2899/66 (ECtHR 1971). The except is detention pursuant to a final conviction by a competent court, though any indefinite detention may be reviewable. [15]Vuolanne v Finland communication 265/1987 (HRC_1989). [16] General Comment on article 4 (2001) para 16. [17]Habeas Corpus in Emergency Situations (Arts 27(2), 25(1) and 7(6) American Convention on Human Rights), Advisory Opinion OC-8/87, IACHR Series A no 8; IHRL 3394 (IACHR 1987); Case of Castillo Petruzzi and others v Peru, merits, reparations and costs, IACHR Series C no 52; IHRL 1435 (IACHR 1999).
Everyone deprived of his or her liberty has the right to challenge the lawfulness of his or her arrest or detention before a court so that (1) the court may decide (2) without delay (speedily) (3) on the lawfulness of the detention or order the person’s release if the detention is not lawful. This right applies to all forms of deprivation of liberty, including administrative detention. In order to comply with the requirements of speedily, a detained person must have access to a remedy immediately upon detention or speedily thereafter and secondly, a remedy, once availed of, must ensue speedily.
The court must have the power to review both the procedural and substantive grounds for the deprivation of liberty and be empowered to make a binding order for release of the detained person if his or her deprivation of liberty is unlawful.
Comprehensive:
The right to challenge the legality of detention is recognized in ICCPR article 9(4):
Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.
As opposed to the automatic review of the need for detention with regard to those deprived of their liberty on a criminal charge (see *brought promptly before a judge*), the exercise of the right to habeas corpus, with its focus on wider issues of lawfulness, requires a request from the detained person or legal counsel.[1]
The legality of the detention must be determined by a court, which must be independent and impartial.[2] The ECtHR has held that bodies such as parole boards[3] and mental health review boards[4] should be considered to be courts for the purpose of article 5(4) ECHR and thus competent to decide on habeas corpus proceedings where they are independent of the executive, impartial and have the power to order the release of the detained person.
The court must have the power to review the substantive grounds for the deprivation of liberty. Thus, legislation that does not provide for a court to consider the legality of detention of asylum seekers independently from the decision on deportation was held by the ECtHR to violate the right to habeas corpus.[5] The court examining the challenge to the legality of the detention must examine and make findings on the reasons put forward by the claimant. In López Álvarez v Honduras the appeal court did not consider a challenge based on excessive length of detention. The IACtHR found that this showed ‘that the recourse was not effective, in this specific case, in fighting the alleged violation.’[6]
The procedure ‘must be sufficiently certain, not only in theory but also in practice’.[7] Not being informed of the reasons for arrest or lack, lack of access to legal counsel and other violations of procedural guarantees for detainees may effectively prevent the exercise of the right to habeas corpus.[8] In Mubilanzila Mayeka and Kaniki Mitunga v Belgium, the ECtHR found a violation of the right to habeas corpus when Belgian authorities deported the applicant while her application for habeas corpus was still pending.[9]
The court must be empowered to make a binding order for release of the detained person in the event that his or her deprivation of liberty is unlawful.[10]
In Torres v Finland, a detention order in terms of the Finnish Aliens Act could only be reviewed by a court after seven days. The HRC held that this violated the provision to habeas corpus proceedings without delay.[11] In Sanchez-Reisse v Switzerland,[12] the ECtHR held that the concept of speedily ’cannot be defined in the abstract; the matter must … be determined in the light of the circumstances of each case’. The Court held that the word ‘speedily’ contains two requirements. Firstly, a detained person must have access to a remedy immediately upon detention or speedily thereafter and secondly, a remedy, once availed of, must proceed speedily.
It should be possible to challenge one’s detention at reasonable intervals where a change in circumstances can affect its continued justification, such as cases of detention concerning children, recidivists or on grounds of mental health.[13]
The right to habeas corpus applies to all forms of deprivation of liberty including *administrative or preventative detention*.[14] The right to habeas corpus may also extend to military disciplinary sanctions if these take ‘the form of restrictions that are imposed over and above the exigencies of normal military service’.[15]
While the right to habeas corpus is not listed among the non-derogable rights in article 4(2) of the ICCPR, the HRC held in General Comment 29 that ‘in order to protect non-derogable rights, the right to take proceedings before a court to enable the court to decide without delay on the lawfulness of detention, must not be diminished by a State party’s decision to derogate from the Covenant.’[16] The IACtHR has held that the right to habeas corpus is non-derogable.[17]
[1] Stephens v Jamaica communication 373/1989 (HRC 1995) para 9.7.
[2] Torres v Finland, communication 291/1988 (HRC 1990) para 7.2.
[3] Weeks v United Kingdom para 62; Thynne, Wilson and Gunnell v United Kingdom para 80.
[4] X v Belgium application 6859/74; Dhoest v Belgium, application 10448/83.
[5] SD v Greece, application 53541/07 (ECtHR 2009) paras 73-76. This does not mean that the court needs to have the power to ‘review whether the underlying decision to expel could be justified’. See Chahal v UK para 128.
[6] López Álvarez v Honduras Series C no 141(IACtHR 2006) para 96.
[7] Abdolkhani and Karimnia v Turkey application 30471/08 (ECtHR 2009) para 139.
[8] Abdolkhani and Karimnia v Turkey para 141.
[9] Mubilanzila Mayeka and Kaniki Mitunga v Belgiumapplication 13178/03 (ECtHR 2006) para 113.
[10] Van Droogenbroeck v Belgium application 7906/77 (ECtHR 1982).
[11] Torres v Finland, communication 291/1988 (HRC 1990).
[12] Sanchez-Reisse v Switzerland, application 9862/82 (ECtHR 1986) para 55.
[13] Bouamar v Belgium application 9106/80 (ECtHR 1988), Van Droogenbroeck v Belgium.
[14] De Wilde, Ooms and Versyp v Belgium, application 2899/66 (ECtHR 1971). The except is detention pursuant to a final conviction by a competent court, though any indefinite detention may be reviewable.
[15] Vuolanne v Finland communication 265/1987 (HRC_1989).
[16] General Comment on article 4 (2001) para 16.
[17] Habeas Corpus in Emergency Situations (Arts 27(2), 25(1) and 7(6) American Convention on Human Rights), Advisory Opinion OC-8/87, IACHR Series A no 8; IHRL 3394 (IACHR 1987); Case of Castillo Petruzzi and others v Peru, merits, reparations and costs, IACHR Series C no 52; IHRL 1435 (IACHR 1999).