A/HRC/27/47
inability to access legal counsel or any source of information on commencing the
procedure, the high cost of filing an application, lengthy court reviews, the inability to
access evidence, the inability to appear before the court, and prolonged custody
(A/HRC/19/57, para. 63). Violation of procedural guarantees often occurs in administrative
detention and in rehabilitation centres (Working Group opinions 19/2012 and 22/2012).
The detainee may have been ordered to be released following a successful challenge, yet
remains in detention (see, for example, Working Group opinions 08/2011 and 14/2011).
Where due process rights are denied, a State cannot rely on the excuse of lack of
administrative capacity (Working Group opinions 21/2004 and 46/2006).
14.
The Human Rights Committee has interpreted the content and scope of the right to
challenge the lawfulness of detention in its general comment no. 8 (1982) on article 9 (right
to liberty and security of persons) and in its jurisprudence. The objective of the procedural
right is release from ongoing unlawful detention. “Unlawful detention” includes both
detention that violates domestic law and detention that is incompatible with the
requirements of article 9, paragraph 1, or with any other relevant provision of the
International Covenant on Civil and Political Rights.2 Unlawful detention may have been
lawful at its inception but has become unlawful, because the individual has completed a
sentence of imprisonment, or because the circumstances that justify the detention have
changed.3
15.
The Human Rights Committee has clarified the universal application of the right to
challenge the lawfulness of detention before court, which extends to all situations of
deprivation of liberty, including detention for the purposes of criminal proceedings, military
detention, security detention, counter-terrorism detention, involuntary hospitalization,
immigration detention, detention for extradition, wholly groundless arrests, house arrest,
solitary confinement, administrative detention, detention for vagrancy or drug addiction,
detention of children for educational purposes, and other forms of administrative detention.4
No category of detainees may be denied taking such proceedings.5
16.
The right to challenge the lawfulness of detention before court applies from the
moment of arrest, and there should be no substantial waiting before bringing a first
challenge.6 Proceedings may be commenced by either the detainee or his or her
representative, and do not require an automatic initiation of review by the authorities
2
3
4
5
6
6
Communications Nos. 1255/2004 et al., Shams et al. v. Australia, para. 7.3; 1460/2006, Yklymova v.
Turkmenistan, para. 7.4 and 1751/2008, Aboussedra v. Libyan Arab Jamahiriya, para. 7.6.
Communication No. 1090/2002, Rameka v. New Zealand, paras. 7.3 and 7.4.
Communications Nos. 248/1987, Campbell v. Jamaica, para. 6.4 (criminal proceeding); 962/2001,
Mulezi v. Democratic Republic of the Congo, para. 5.2 (military detention); 1051/2002, Ahani v.
Canada, para. 10.2 (counter-terrorism); 1061/2002, Fijalkowska v. Poland, para 8.4 (involuntary
committal to psychiatric institution); 560/1993, A. v. Australia, para. 9.5 (immigration detention);
291/1988, Torres v. Finland, para. 7.4 (extradition); 414/1990, Mika Miha v. Equatorial Guinea,
para. 6.5 (presidential fiat) and 265/1987, Vuolanne v. Finland, para. 9.5 (solitary confinement).
Concluding observations: India (1997), para. 438; Israel (1998), para. 317 (security detention); United
Kingdom (2008), para. 17 (counter-terrorism); Rwanda (2009), para. 16 (recommending abolition of
detention for vagrancy); Cameroon (1994), para. 204; Republic of Moldova (2002), para. 11; and
Lithuania (2004), para. 13.
Communications Nos. 1460/2006, Yklymova v. Turkmenistan, para. 7.2–7.4 (house arrest) and
1172/2003, Madani v. Algeria, para. 8.5 (house arrest).
Communications Nos. R.1/4, Torres Ramírez v. Uruguay, para. 18; and 1449/2006, Umarov v.
Uzbekistan, para. 8.6.
Communication No. 291/1988, Torres v. Finland, para. 7.2 (seven days).
Concluding observations: Sri Lanka (1995) (one year).
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