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
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:
- Right to be free from arbitrary or unlawful deprivation of liberty
- Responsibilities of the State and others
- Scope of application
- Non-derogability
- Non-discrimination
- The court as reviewing body
- Right to be informed
- Time frame for bringing proceedings before a court
- Assistance by legal counsel and access to legal aid
- Persons able to bring proceedings before a court
- Appearance of the detainee before the court
- Equality before the courts
- Burden of proof
- Standard of review
- Remedies and reparations
- 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
- Specific obligations to guarantee access to the right to bring proceedings before a court
- Specific measures for children
- Specific measures for women and girls
- Specific measures for persons with disabilities
- Specific measures for non-nationals, including migrants regardless of their migration status, asylum seekers, refugees and stateless persons
Guidelines
- Scope of application
- Prescription in national law
- Non-derogability
- Characteristics of the court and procedural guidelines for review of the detention
- Right to be informed
- Registers and record-keeping
- Time frame for bringing proceedings before a court
- Assistance by legal counsel and access to legal aid
- Persons able to bring proceedings before a court
- Appearance before the court
- Equality of arms
- Admissibility of evidence obtained by torture or other prohibited treatment
- Disclosure of information
- Burden of proof
- Standard of review
- Remedies and reparations
- 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
- Specific measures for children
- Specific measures for women and girls
- Specific measures for persons with disabilities
- Specific measures for non-nationals, including migrants regardless of their migration status, asylum seekers, refugees and stateless persons
- Implementation measures
Inputs received
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
