A/HRC/30/37
1.
The right of anyone deprived of his or her liberty to bring proceedings before a
court, in order that the court may decide without delay on the lawfulness of his or her
detention and obtain appropriate remedies upon a successful challenge, is widely
recognized in international and regional human rights instruments, the jurisprudence of the
International Court of Justice and of international human rights mechanisms, including in
the reports and country visits of treaty bodies and special procedure mandate holders,
regional human rights mechanisms, in the domestic law of States and the jurisprudence of
national courts.
2.
The right to challenge the lawfulness of detention before a court is a self-standing
human right, the absence of which constitutes a human rights violation. It is a judicial
remedy designed to protect personal freedom and physical integrity against arbitrary arrest,
detention, including secret detention, exile, forced disappearance or risk of torture and other
cruel, inhuman or degrading treatment or punishment. It is also a means of determining the
whereabouts and state of health of detainees and of identifying the authority ordering or
carrying out the deprivation of liberty.
3.
This judicial remedy is essential to preserve legality in a democratic society. The
effective exercise of this fundamental safeguard of personal liberty in all situations of
deprivation of liberty, without delay and without exception, resulting in appropriate
remedies and reparations, including an entitlement to release upon a successful challenge,
must be guaranteed by the State. Numerous international and regional human rights bodies
and instruments have articulated a strong position on the non-derogability in any
circumstance of the right to bring such proceedings before a court. The Working Group on
Arbitrary Detention urges all States to incorporate this position into their national laws. In
practice, the absence of inclusive and robust national legal frameworks to ensure the
effective exercise of the right to bring proceedings before a court has resulted in a
protection gap for persons deprived of their liberty.
4.
In this light, the Human Rights Council, in its resolution 20/16, requested the
Working Group to present to the Council 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 a 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.
The Working Group has complied closely with the request of the Council, that it seek the
views of States, relevant United Nations agencies, intergovernmental organizations, treaty
bodies and, in particular, the Human Rights Committee, other special procedures, national
human rights institutions, non-governmental organizations and other stakeholders. In 2013,
the Working Group distributed a questionnaire to stakeholders in which it requested details
on the right to bring such proceedings in their respective legal framework.
5.
The Working Group submitted to the Human Rights Council, at its twenty-seventh
session, a thematic report on the international, regional and national legal frameworks on
the right to challenge the lawfulness and arbitrariness of detention before court
(A/HRC/27/47). In the report, the Working Group documented general practice accepted as
law, and further best practices in applying the requirements of international law. States and
other stakeholders continued to make submissions up until the final session, when the
document was adopted, adding to the materials available to the Working Group.
6.
On 1 and 2 September 2014, the Working Group convened a global consultation in
Geneva to bring together experts to elaborate on the scope and content of the right to bring
proceedings before a court and to receive without delay appropriate remedies, and to allow
stakeholders to contribute to the development of the Basic Principles and Guidelines (see
annex). The background paper drew on the thematic report submitted to the Council
(A/HRC/27/47) to set out the substantive and procedural obligations of States to ensure the
meaningful exercise of the right to bring proceedings before a court and current State
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