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


Published:
29 April 2015 (adopted by the WGAD)
Issued by:
The United Nations Working Group on Arbitrary Detention
Presented:
72nd session of the Working Group, 30th session of the HRC
Link:
A/HRC/30/37
Text as adopted with footnotes (English)

Background

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’. Following a period of consultation and consideration of inputs from a variety of stakeholders (see below), the basic principles and guidelines were presented to the Human Rights Council in September 2015.

Summary

These principles and guidelines are based on international law, standards and recognized good practice, and are intended to provide States with guidance on fulfilling, in compliance with international law, their obligation to avoid the arbitrary deprivation of liberty.

Principles:

  1. Right to be free from arbitrary or unlawful deprivation of liberty
  2. Responsibilities of the State and others
  3. Scope of application
  4. Non-derogability
  5. Non-discrimination
  6. The court as reviewing body
  7. Right to be informed
  8. Time frame for bringing proceedings before a court
  9. Assistance by legal counsel and access to legal aid
  10. Persons able to bring proceedings before a court
  11. Appearance of the detainee before the court
  12. Equality before the courts
  13. Burden of proof
  14. Standard of review
  15. Remedies and reparations
  16. Exercise of the right to bring proceedings before a court in situations of armed conflict, public danger or other emergency threatening the independence or security of a State
  17. Specific obligations to guarantee access to the right to bring proceedings before a court
  18. Specific measures for children
  19. Specific measures for women and girls
  20. Specific measures for persons with disabilities
  21. Specific measures for non-nationals, including migrants regardless of their migration status, asylum seekers, refugees and stateless persons

Guidelines

  1. Scope of application
  2. Prescription in national law
  3. Non-derogability
  4. Characteristics of the court and procedural guidelines for review of the detention
  5. Right to be informed
  6. Registers and record-keeping
  7. Time frame for bringing proceedings before a court
  8. Assistance by legal counsel and access to legal aid
  9. Persons able to bring proceedings before a court
  10. Appearance before the court
  11. Equality of arms
  12. Admissibility of evidence obtained by torture or other prohibited treatment
  13. Disclosure of information
  14. Burden of proof
  15. Standard of review
  16. Remedies and reparations
  17. Exercise of the right to bring proceedings before a court in situations of armed conflict, public danger or other emergency threatening the independence or security of a State
  18. Specific measures for children
  19. Specific measures for women and girls
  20. Specific measures for persons with disabilities
  21. Specific measures for non-nationals, including migrants regardless of their migration status, asylum seekers, refugees and stateless persons
  22. Implementation measures

Inputs received


Call for input and thematic report (2013)

In 2013, the Working Group distributed a questionnaire to stakeholders requesting detailed information 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.

Member States

International organizations and regional entities

Human rights treaty bodies and special procedures mandate holders

National human rights institutions

Non-governmental organizations

Academia

Global 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 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 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.

It 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.

Documentation

Statements and Submissions

2015 review of the Draft Guidelines

The Working Group on Arbitrary Detention met in Geneva from 2 to 5 February 2015 to continue its elaboration of the 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. Comments on the draft were solicited in February 2015, and responses are available below.

Submissions