A/HRC/13/30
same provisions, i.e. it must not be arbitrary, and must be based on grounds and procedures
established by law (para. 1), information of the reasons must be given (para. 2) and court
control of the detention must be available (para. 4) as well as compensation in the case of a
breach (para. 5). And if, in addition, criminal charges are brought in such cases, the full
protection of article 9 (2) and (3), as well as article 14, must also be granted.
71.
The former Sub-Commission on the Promotion and Protection of Human Rights
sponsored an excellent study completed in 2005 with the report of the expert Emmanuel
Decaux (E/CN.4/2006/58), which proposes 20 draft principles governing the administration
of justice through military tribunals, of which No. 5 provides that “military courts should,
in principle, have no jurisdiction to try civilians. In all circumstances, the State shall ensure
that civilians accused of a criminal offence of any nature are tried by civilian courts”;
Principle No. 8 adds that “the jurisdiction of military courts should be limited to offences of
a strictly military nature committed by military personnel. Military courts may try persons
treated as military personnel for infractions strictly related to their military status”;
Principle No. 9 specifies that “in all circumstances, the jurisdiction of military courts should
be set aside in favour of the jurisdiction of the ordinary courts to conduct inquiries into
serious human rights violations such as extrajudicial executions, enforced disappearances
and torture, and to prosecute and try persons accused of such crimes”; and No. 12 stresses
that under the guarantee of habeas corpus, “in all circumstances, anyone who is deprived of
his or her liberty shall be entitled to take proceedings, such as habeas corpus proceedings,
before a court, in order that that 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. The right to petition
for a writ of habeas corpus or other remedy should be considered as a personal right, the
guarantee of which should, in all circumstances, fall within the exclusive jurisdiction of the
ordinary courts. In all circumstances, the judge must be able to have access to any place
where the detainee may be held”.
C.
States of emergency
72.
The Working Group has found that whenever a State has declared a state of
emergency arbitrarily or in a manner contrary to the provisions of article 4 of the Covenant,
it has seriously affected the right to liberty of person and guarantees of a fair trial embodied
in articles 7 to 11 of the Universal Declaration of Human Rights and article 2, paragraph 3,
and articles 9, 10 and 14 of the Covenant. It has therefore informed the Commission on
Human Rights and the Human Rights Council that the strengthening of public powers to the
benefit of those who declare the state of emergency has negative repercussions. It has done
so in its reports E/CN.4/1994/27 (paras. 60, 61 and 72); E/CN.4/1995/31 (paras. 38, 56 and
57); E/CN.4/1996/40 (para. 124); A/HRC/4/40 (para. 6); and A/HRC/7/4 (paras. 40, 59, 61,
63 to 69, 78 and 82).
73.
The Working Group agrees with the Human Rights Committee that the restoration
of a state of normalcy where full respect for the Covenant can again be secured must be the
predominant objective of a State party derogating from the Covenant (general comment No.
29 on derogations during a state of emergency, paragraph 1). It is the understanding of the
Working Group that a declaration of a state of emergency (sometimes called state of siege,
state of alert, martial law, etc.) must fulfil the following criteria: exceptional circumstances
(it must not concern a structural situation, such as endemic poverty); legality (it must
involve an emergency in a State based on the rule of law); duration (it may not be renewed
indefinitely, as has been done in a number of cases which have come to the Group’s
attention, in which it has been prolonged for 28 or even 46 consecutive years); seriousness
(its sole purpose must be for dealing with an event which has placed the “life of the nation”
at risk, and no other lesser circumstance); necessity (the situation which must be addressed
cannot be corrected by other means); publicity (there are no de facto states of emergency,
20
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