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Draft Basic Principles and Guidelines on Remedies and Procedures on the Right of Anyone Deprived of His or Her Liberty by Arrest or Detention to Bring Proceedings Before Court

By resolution 20/16, the Human Rights Council requested the Working Group on Arbitrary Detention to develop " Draft Basic Principles and Guidelines on remedies and procedures on the right of anyone deprived of his or her liberty by arrest or detention to bring proceedings before court, in order that the court may decide without delay on the lawfulness of his or her detention and order his or her release if the detention is not lawful". The draft basic principles and guidelines are to be presented to the Human Rights Council in September 2015.

 

Working Group on Arbitrary Detention draft

The Working Group on Arbitrary Detention met in Geneva from 2 to 5 February 2015 to continue its elaboration of the Draft Basic Principles and Guidelines on Remedies and Procedures on the Right of Anyone Deprived of His or Her Liberty by Arrest or Detention to Bring Proceedings Before Court.

All Member States, United Nations agencies, intergovernmental organizations, treaty bodies, other special procedures, national human rights institutions, non-governmental organizations and other relevant stakeholders were kindly requested to submit their comments to the Working Group’s Secretariat (wgadhabeascorpus@ohchr.org) before March 2015.

Contributions received following the Call for Input made in February 2015

Background

By resolution 20/16, the Working Group was directed to seek the views of States, United Nations agencies, intergovernmental organizations, treaty bodies, in particular, the Human Rights Committee, other special procedures, national human rights institutions, non-governmental organizations and other relevant stakeholders, in its elaboration of the Draft Basic Principles and Guidelines on Remedies and Procedures on the Right of Anyone Deprived of His or Her Liberty by Arrest or Detention to Bring Proceedings Before Court.

In 2013, the Working Group distributed a questionnaire to the aforementioned group of stakeholders requesting details on the treatment of the right to bring such proceedings before a court in the respective legal frameworks. The responses are below.

The Working Group submitted a thematic report to the 27th session of the Human Rights Council comprising of a compilation of the international, regional and national legal frameworks treating the right to challenge the lawfulness of detention before court, as based on the information submitted by stakeholders and additional research. The thematic report documents general practice accepted as law, and further best practice in applying the requirements of international law.

On 1 and 2 September 2014, the Working Group convened a global consultation in Geneva, Switzerland.

The purpose of this consultation was to bring together thematic and regional experts to elaborate on the scope and content of the right to bring proceedings before a court without delay to challenge the arbitrariness and lawfulness of detention and receive appropriate remedy, and allow stakeholders to contribute to the development of the draft principles and guidelines.

The Working Group produced a background paper for the consultation which drew from the abovementioned Council report (A/HRC/27/47) to set out the substantive and procedural obligations on States to ensure the meaningful exercise of the right to bring proceedings before a court in practice. The background paper gives an overview of current State practice in implementing each of the obligations, highlighting several examples of good practice. The observations on State practice are based on the responses provided by the 44 States to the Working Group’s questionnaire, and other stakeholder submissions. The latter source not only demonstrates general practice accepted as law but also assists in identifying protection gaps and in proposing good practices to ensure effective coverage for persons deprived of their liberty to effectively exercise this procedural safeguard. It is of note that the 44 responding States represent all global regions and diverse legal traditions.

Responses to WGAD Questionnaire

On 17 June 2013, the Working Group on Arbitrary Detention sent all Member States a questionnaire on “the right of anyone deprived of his or her liberty by arrest or detention to bring proceedings before court, in order that the court may decide without delay on the lawfulness of his or her detention”, pursuant to Human Rights Council resolution 20/16, paragraph 11 (a). Responses received from Member States and other stakeholders are available below.

Questionnaire sent to Member States (EFS)

Responses from Member States

Responses from international organizations and regional entities

The Working Group has also sent a questionnaire to human rights treaty bodies and other special procedures mandate holders, national human rights institutions and non-governmental organizations.

Responses from human rights treaty bodies and special procedures mandate holders

Responses from national human rights institutions

Responses from non-governmental organizations

Submission from academia

 



Stakeholders consultation on remedies and procedures on the right to challenge the lawfulness of detention before court

On 1 and 2 September 2014, the Working Group on Arbitrary Detention convened a global stakeholders consultation in relation to the preparation of the first draft Principles and Guidelines on remedies and procedures on the right of anyone deprived of his or her liberty by arrest or detention to bring proceedings before court in order to challenge the lawfulness of his or her detention, pursuant to Human Rights Council Resolution 20/16 of 6 July 2012.

This global consultation, which took place in Geneva, brought together representatives of over 25 States from around the world as well as experts from international and regional governmental and non-governmental organizations and national human rights institutions. It provided a forum to exchange experiences, practices and lessons learnt on the gaps and best practices on guaranteeing the right to challenge the lawfulness of detention before court. It also provided an opportunity to engage in deeper discussions on the content of the preliminary draft principles and provide suggestions and recommendations.

The draft Principles and Guidelines are intended to provide States with a useful tool to implement their substantive and procedural obligations, as based on existing international human rights law and standards, to ensure the right to court review may be availed of in practice and to elaborate specific factors to be taken into account when this right is applied to all persons in all situations of deprivation of liberty. In this way, the Principles and Guidelines will assist States in the formulation, adoption and implementation of normative frameworks and policies that will provide all detained persons with improved access to a fair judicial process, and will provide adequate and appropriate remedies. The Working Group will present its draft Principles and Guidelines to the Human Rights Council in September 2015.

Documentation

Presentations

Opening Ceremony

Panel 1: Framework, Scope and Content of the right to court review of detention

Panel 2: Procedural Guarantees necessary to exercise the right to court review of detention

  • Mr. Malcolm Evans, Chairperson of the United Nations Subcommittee on Prevention of Torture and Professor of Public International Law and Deputy Director of the Human Rights Implementation Centre at the University of Bristol.
  • Mr. Gerald L. Neuman, Member of the United Nations Human Rights Committee and Rapporteur for draft general comment on Article 9 of the International Covenant on Civil and Political Rights; J. Sinclair Armstrong Professor of International, Foreign, and Comparative Law at Harvard Law School

Panel 3: Criminal Detention

Panel 4: Migration-related Detention

Panel 5: Preventive and Protective Detention

Panel 6: Detention in Armed Conflict, States of emergency or for Counterterrorism purposes

Stakeholder Statements and Submissions

*All responses to the Working Group’s questionnaire on the right to court review may be found here