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