A/HRC/30/37
(a)
The legal basis for the detention in question is in conformity with
international standards;
(b)
The detention is justified in accordance with the principles of necessity,
reasonableness and proportionality;
(c)
Other less intrusive means of achieving the same objectives have been
considered in the individual case.
84.
The burden of proof must be met in a manner that is known in detail to the detainee,
complete with supporting evidence, including those who are defendants in security-related
cases.
Guideline 15
Standard of review
85.
When reviewing the arbitrariness and lawfulness of the detention, the court is
empowered:
(a)
To examine and act on the elements of inappropriateness, injustice,
lawfulness, legality, predictability, and due process of law, and on basic principles of
reasonableness, proportionality and necessity. Such an examination will take into
account details such as age, gender and marginalized groups;
(b)
To consider whether the detention remains justified or whether release
is warranted in the light of all the changing circumstances of the detained
individual’s case, including health, family life, protection claims or other attempts to
regularize one’s status;
(c)
To consider and make a pronouncement on whether alternatives to
detention have been considered, including non-custodial alternatives to detention in
accordance with the United Nations Standard Minimum Rules for Non-custodial
Measures (the Tokyo Rules) and the United Nations Rules on the Treatment of
Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok
Rules);
(d)
To take into account any orders of detention made subsequent to the
commencement of court proceedings and prior to the rendering of the court’s
decision.
86.
When assessing whether the measures taken are in compliance with international
standards, the prohibition of particular grounds of detention or forms of detention are to be
complied with, and the needs of specific persons affected and any vulnerability are to be
taken into consideration, given that the arbitrariness and unlawfulness of detention may
include the unsuitability of detention for the persons in question.
Guideline 16
Remedies and reparations
87.
Judicial orders of release must be executed as soon as they become operative, as
continued detention would be considered arbitrary.
88.
A copy of the decision finding the detention arbitrary or unlawful is to be
transmitted to the person concerned, with notification of the procedures for obtaining
reparations. The person has the right to full compensation for material harm, elimination of
the consequences of material harm and restoration of all rights that were either denied or
infringed.
19
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents