A/HRC/27/47
detaining the individual.7 Detainees should be informed, in a language that they understand,
of their right to take proceedings for a decision on the lawfulness of their detention and
should be afforded prompt and regular access to counsel.8
17.
A “court” must be established by law, and must either be independent of the
executive and legislative branches or must enjoy judicial independence in deciding legal
matters in proceedings that are judicial in nature.9 In general, the detainee has the right to
appear in person before the court, and the court must have the power to order the detainee
to be brought before it. The adjudication of the case should take place as expeditiously as
possible.10
18.
The Committee against Torture, in its general comment no. 2 (2008) on the
implementation by States parties of article 2 of the Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, has listed guarantees for all
persons deprived of their liberty, including the right to challenge the legality of their
detention or treatment. In its country reports, the Committee considers that a “State party
must also adopt the measures necessary to guarantee the right of any person who has been
deprived of their liberty to have access to an immediate remedy to challenge the legality of
their detention” (CAT/C/CUB/CO/2, para. 8).
19.
The Subcommittee on Prevention of Torture has adopted a provisional statement on
the role of judicial review and due process in the prevention of torture in prisons
(CAT/OP/2). The Subcommittee sets out requirements that must be observed so that
individuals can defend themselves properly against any act by the State that might affect
their rights, noting that “judicial intervention during the period of confinement, by judges
other than those who determined the criminal charges, goes hand in hand with due process”
(para. 14). The Subcommittee recommends that “States parties should consider effective
judicial review and due process during the detention of individuals in criminal proceedings
as a prerequisite for the prevention of ill-treatment or torture of persons deprived of their
liberty and as a means of conferring legitimacy on the exercise of criminal justice”
(para. 19). In its country reports, the Subcommittee has characterized the right to challenge
the lawfulness of detention before court as a “fundamental safeguard against torture or
other cruel, inhuman or degrading treatment or punishment”, requiring the senior
authorities in the institutions responsible for implementing habeas corpus to take the
requisite steps to ensure the effectiveness of that right (CAT/OP/HND/1, para. 137).
20.
Recalling article 13 of the Declaration on the Protection of All Persons from
Enforced Disappearance, which provides that an investigation should be conducted for as
long as the fate of the victim of enforced disappearance remains unknown, the Working
Group on Enforced or Involuntary Disappearances has reinforced the importance of
guaranteeing the right to challenge the lawfulness of detention before court to clarify past
cases of enforced disappearances (A/HRC/4/41/Add.1, paras. 61–63). It has recommended
that “habeas corpus procedures that have been suspended in contradiction to the
Declaration should be reopened and investigations should be effortlessly continued in order
to endeavour to clarify past cases of enforced disappearances” (para. 108). In relation to the
issue of deprivation of liberty, the Working Group on Enforced or Involuntary
Disappearances has emphasized the importance of the constitutional, legal and regulatory
7
8
9
10
Communication No. 373/1989, Stephens v. Jamaica, para. 9.7.
Concluding observations: Switzerland (1996), para. 111; and Benin (2004), para. 16.
Communications Nos. 1090/2002, Rameka v. New Zealand, para. 7.4 (discussing ability of Parole
Board to act in judicial fashion as a court) and 291/1988, Torres v. Finland, para. 7.2 (finding review
by Minister of the Interior insufficient); and general comment No. 32, paras. 18–22.
Communication No. 291/1988, Torres v. Finland, para. 7.3.
7
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