A/HRC/27/47
D.
ASEAN region
59.
The ASEAN Human Rights Declaration (2012) guarantees the right to personal
liberty and security and to be free from arbitrary arrest, search, detention, abduction or any
other form of deprivation of liberty (article 12). In the Phnom Penh Statement adopting the
Declaration, ASEAN and its member States reiterated their commitment to, inter alia, the
Universal Declaration of Human Rights and other international human rights instruments to
which ASEAN member States are parties.
E.
Europe
60.
Article 5, paragraph 4, of the European Convention on Human Rights (1950)
provides that “everyone who is deprived of his liberty by arrest or detention shall be
entitled to take proceedings by which the lawfulness of his detention shall be decided
speedily by a court and his release ordered if the detention is not lawful”. Victims of
unlawful arrest or detention have an enforceable right to compensation (art. 5 (5)). The
European Court of Human Rights has clarified the right to court review in its extensive
jurisprudence, to which the Working Group on Arbitrary Detention continues to give great
weight in its own jurisprudence. The Court has stated that the purpose of article 5,
paragraph 4, is to grant persons deprived of liberty the right to challenge the interference
with that right through rapid, effective judicial review of the legality of the measure. The
right to court review of detention in domestic legislation must be effective and real,
allowing for accessibility and certainty. The procedure is to be guided by the adversarial
principle and equality of arms. Generally, this requires a hearing of the detainee before the
judicial organ, a body independent of the executive, with a guarantee of impartiality and the
force to implement its decisions. Legal counsel is mandatory in cases of minors, internment
in psychiatric centres, and cases concerning discretional life sentences. A decision should
be attained in the shortest time possible. The Charter of Fundamental Rights of the
European Union recognizes, in article 6, the right to liberty and security, among a range of
personal, civil, political, economic and social rights of European Union citizens and
residents, and enshrines them into European Union law.
IV. National legal frameworks
61.
The 44 responses to the Working Group’s questionnaire from United Nations
Member States and the 18 from national human rights institutions are posted on the
Working Group’s webpage. A catalogue of Member States’ relevant legal frameworks is
replicated in tabular format in the annex to the present report. The prohibition of arbitrary
deprivation of liberty and the right of anyone deprived of his or her liberty to bring
proceedings before a court in order to challenge the legality of the detention are uniformly
and generally adopted in the domestic legislation of States, usually in constitutional
provisions or otherwise recognized to be of a fundamental nature in the domestic legal
order. The States expressly declare in their replies to the questionnaire that they comply
with international law, as they do in their reporting to other United Nations human rights
bodies and in statements in the Human Rights Council and other United Nations organs. In
these contexts, and in the different forms of State-to-State peer review, it is made clear that,
whether or not they have ratified the International Convention on Civil and Political Rights,
they regard themselves bound by international law on court review of detention.
62.
The responses submitted by non-State stakeholders are also posted on the Working
Group’s website. These contributions have been taken into account in preparing the draft
principles and guidelines on the right to challenge the lawfulness of detention. The
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