A/HRC/27/47
I. Introduction
1.
The International Court of Justice has stated that “wrongfully to deprive human
beings of their freedom and to subject them to physical constraint in conditions of hardship
is in itself manifestly incompatible with the principles of the Charter of the United Nations,
as well as with the fundamental principles enunciated in the Universal Declaration of
Human Rights”.1 In 1991, the Commission on Human Rights established the Working
Group on Arbitrary Detention to investigate detention imposed arbitrarily and
inconsistently with international standards in the Universal Declaration of Human Rights
and legal instruments accepted by the States concerned (E/CN.4/RES/1991/42). The
Working Group is the only Charter-based (or non-treaty-based) mechanism whose mandate
expressly provides for consideration of individual complaints. Its actions are based on the
right of petition for individuals anywhere in the world. The opinions of the Working Group
are reported to the Human Rights Council, which urges Member States to cooperate and
comply with the Working Group and its opinions, and where States make statements about
international and domestic law, and human rights obligations in conventions and customary
international law, and their own and other States’ compliance with these.
2.
The Human Rights Council, in its resolution 20/16, encourages all States to “respect
and promote the right of anyone deprived of his or her liberty by arrest or detention to bring
proceedings before 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,
in accordance with their international obligations” (A/HRC/RES/20/16, para. 6 (d)). The
Council requested the Working Group to prepare, and to present to it before the end of
2015, draft basic principles and guidelines on remedies and procedures to assist Member
States with their compliance (ibid., para. 10).
3.
The Working Group was directed to seek the views of States, United Nations
agencies, intergovernmental organizations, treaty bodies, particularly 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 on the treatment of the right to challenge the lawfulness of detention before
court in the respective legal frameworks. It received responses from 44 States, 20 national
human rights institutions, eight non-governmental organizations, five special procedures
mandate holders, three regional entities and one of the treaty bodies.
4.
The report is divided into three sections. The first section sets out the international
human rights treaties, standards, and reports and jurisprudence of international mechanisms
on the right to challenge the lawfulness of detention before court. The second section sets
out the regional legal framework, including treaties, standards and jurisprudence of regional
mechanisms relating to the right to challenge the lawfulness of detention before court. The
third section, which constitutes the annex to the report, presents, in tabular format, national
legal provisions relating to the right to a court review, as submitted by Member States to the
Working Group.
5.
The report does not attempt to be exhaustive in its citation of relevant legal
instruments and jurisprudence but rather to show the general practice accepted as law in the
international practice, representations by states and universal adoption of legal guarantees
for the procedural right of anyone deprived of his or her liberty to challenge the lawfulness
of his or her detention.
1
United States Diplomatic and Consular Staff in Tehran, Judgment, ICJ Reports 1980, p. 42.
3
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