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The Universal Declaration of Human Rights was truly global in its writing.
Working Group on Arbitrary Detention
06 July 2015
Issued by Special Procedures
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.
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.
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.
International organizations and regional entities
Human rights treaty bodies and special procedures mandate holders
National human rights institutions
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.
Statements and Submissions
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.