A/HRC/30/37
before a court under counter-terrorism measures, emergency legislation or drug-related
policies.
29.
A State that detains a person in a situation of armed conflict as properly
characterized under international humanitarian law, or in other circumstances of public
danger or other emergency that threatens the independence or security of a State, has by
definition that person within its effective control, and thus within its jurisdiction, and shall
therefore guarantee the exercise of the right of the detainee to bring proceedings before a
court to challenge the arbitrariness or lawfulness of the deprivation of liberty and to receive
without delay appropriate and accessible remedies. Reconsideration, appeal or periodic
review of decisions to intern or place in assigned residence alien civilians in the territory of
a party to an international armed conflict, or civilians in an occupied territory, shall comply
with the present Basic Principles and Guidelines, including Basic Principle 6 on the court as
reviewing body.
30.
Prisoners of war should be entitled to bring proceedings before a court to challenge
the arbitrariness and lawfulness of the deprivation of liberty and to receive without delay
appropriate and accessible remedies, where the detainee (a) challenges his or her status as a
prisoner of war; (b) claims to be entitled to repatriation or transfer to a neutral State if
seriously injured or ill; or (c) claims not to have been released or repatriated without delay
following the cessation of active hostilities.
31.
Administrative detention or internment in the context of a non-international armed
conflict may only be permitted in times of public emergency threatening the life of the
nation and the existence of which is officially proclaimed. Any consequent deviation from
procedural elements of the right to bring proceedings before a court to challenge the
arbitrariness and lawfulness of the deprivation of liberty and to receive without delay
appropriate and accessible remedies must be in conformity with the present Basic
Principles and Guidelines, including on the principles of non-derogability, the right to be
informed and the court as reviewing body, and the guidelines on equality of arms and
burden of proof.
32.
During armed conflict, the deprivation of the liberty of children must only be a
measure of last resort and for the shortest period of time. Basic legal safeguards must be
provided in all circumstances, including for children deprived of liberty for their protection
or rehabilitation, particularly if detained by military or security services. Safeguards include
the right to legal assistance and a periodic review of the legality of the deprivation of their
liberty by a court. The child has the right to have the deprivation of liberty acknowledged
by the authorities and to communicate with relatives and friends.
Principle 17
Specific obligations to guarantee access to the right to bring proceedings before a
court
33.
The adoption of specific measures are required under international law to ensure
meaningful access to the right to bring proceedings before a court to challenge the
arbitrariness and lawfulness of detention and to receive without delay appropriate and
accessible remedies by certain groups of detainees. This includes – but is not limited to
children – women (in particular pregnant and breastfeeding women), older persons, persons
detained in solitary confinement or other forms of incommunicado detention of restricted
regimes of confinement, persons with disabilities, including psychosocial and intellectual
disabilities, persons living with HIV/AIDS and other serious communicable or contagious
diseases, persons with dementia, drug users, indigenous persons, sex workers, lesbian, gay,
bisexual, transgender and intersex persons, minorities as based on national or ethnic,
cultural, religious or linguistic identity, non-nationals, including migrants regardless of their
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