A/HRC/19/57
follows that liberty is recognized as a principle and detention as an exception in the
interests of justice.
55.
The rationale in paragraph 3 of article 9 also indicates that alternative measures
including house arrest, judicial monitoring, release on bail shall not be regarded as
compulsory vis-à-vis a pretrial detention but rather optional. The consideration of
alternative non-custodial measures allows it to be ascertained whether the principles of
necessity and proportionality have been met.
56.
The provisions contained in paragraph 3 of article 9 of the Covenant can be
summarized as follows:
Any detention must be exceptional and of short duration and a release may be
accompanied by measures intended only to ensure representation of the defendant in
judicial proceedings.
57.
The Working Group expresses its desire that the present understanding of paragraph
3 of article 9 of the Covenant be commonly subscribed to and invites States to further
promote it among agents responsible for the application of the law, with a view to
contributing to the eradication of unjustified and prolonged pretrial detention, which
constitutes arbitrary deprivation of liberty.
58.
The above position finds further support in the presumption of innocence and
individual liberty equally recognized in the Covenant. Finally, it should be noted that the
rule contained in article 9 is applicable only to criminal procedure and not civil procedure.
B.
Habeas corpus
59.
Since its second report, which covered the activities in 1992, the Working Group has
repeatedly addressed the issue of habeas corpus. 1 It has consistently emphasized that habeas
corpus is, in itself, a human right, as may be inferred from a careful reading of articles 8, 9
and 10 of the Universal Declaration of Human Rights, and more explicitly, article 9,
paragraph 4, of the International Covenant on Civil and Political Rights, which provides
that: “anyone who is deprived of his liberty by arrest or detention shall be entitled to take
proceedings before a court, in order that that court may decide without delay on the
lawfulness of his detention and order his release if the detention is not lawful.” The
Working Group maintains that habeas corpus “should be regarded not as a mere element in
the right to a fair trial but ... as a personal right” (E/CN.4/2004/3, para. 62). Similarly,
principle 32 of the Body of Principles for the Protection of All Persons under Any Form of
Detention or Imprisonment provides that a detained person or his counsel “shall be entitled
at any time to take proceedings according to domestic law” for the same purposes. This is
also the understanding of the Human Rights Committee in its general comment No. 8,
paragraph 1, which prescribes that “the important guarantee laid down in paragraph 4, i.e.
the right to control by a court of the legality of the detention, applies to all persons deprived
of their liberty by arrest or detention”.
60.
Moreover, States parties have the obligation, in accordance with article 2, paragraph
3, of the Covenant, to ensure that an effective remedy is provided to any person whose
rights as recognized therein are violated; and they have that obligation specifically in any
1
See the reports of the Working Group, documents E/CN.4/1993/24, para. 43 (c);
E/CN.4/1994/27, para. 36; E/CN.4/1995/31, para. 45; E/CN.4/1996/40, paras. 110 and 124
(5); E/CN.4/2004/3, paras. 62, 85 and 87; E/CN.4/2005/6, paras. 47, 61, 63–64, 75 and 78;
A/HRC/7/4, paras. 64, 68 and 82 (a); A/HRC/10/21, paras. 53–54 and 73; A/HRC/13/30,
paras. 71, 76–80, 92 and 96.
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