Right to Habeas Corpus

Background

A writ of habeas corpus is a judicial mandate to prison officials ordering that a prisoner be brought before the court in order to determine whether or not that person is imprisoned lawfully and whether he should be released from custody.

The right to petition for a writ of habeas corpus allows the prisoner or another person on behalf of the prisoner to object to his own or another's detention or imprisonment. The petition must show that the court ordering the detention or imprisonment made a legal or factual error.

The history of habeas corpus appears to be predominately of Anglo-Saxon common law origin. Its principle effect was achieved in the Middle Ages by writs, the sum collection of which gave a similar effect as the modern writ. Although the scope and practice surrounding the writ has evolved over time, habeas corpus has since the beginning been employed to compel the appearance of a person who is in custody to be brought before a court. Originally, habeas corpus was the prerogative writ of the King and his courts, yet with the passing of time it has evolved into a writ brought by the person restrained, or someone acting in his interest.

Magna Carta obliquely makes reference to habeas corpus. The exact quote is: "...no free man shall be taken or imprisoned or disseised or exiled or in any way destroyed except by the lawful judgment of their peers or by the law of the land." (para 29)

International Sources

International Covenant on Civil and Political Rights

Article 9 (4) -

  • 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.

Relevant Caselaw

  • Communication No. 155/1983, E. Hammel v Madagascar (Views adopted on 3 April 1987) in UN doc. GAOR, A/42/40
  • Communication No 265/1987, A. Vuolanne v Finland (Views adopted on 7 April 1989), in UN doc. GAOR, a/44/40
  • Communication No. 84/1981. H.G Dermit on behalf of G. I and H.H Dermit Barbato (Views adopted on 21 October 1982), in UN doc, GAOR A/38/40 -In this case the Human Rights Committee held that there had been a violation of Article 9 (4) ICCPR where a person deprived of his liberty had been held incommunicado and thereby been 'effectively barred from challenging his arrest and detention'.

Regional Instruments

American Convention on Human Rights

Article 7(6) -

Anyone who is deprived of his liberty shall be entitled to recourse to a competent court, in order that the court may decide without delay on the lawfulness of his arrest or detention and order his release if the arrest or detention is unlawful. In States Parties whose laws provide that anyone who believes himself to be threatened with deprivation of his liberty is entitled to recourse to a competent court in order that it may decide on the lawfulness of such threat, this remedy may not be restricted or abolished. The interested party or another person in his behalf is entitled to seek these remedies.

The Inter-American Court of Human Rights examines Article 7(6) ACHR jointly with Article 25, regarding the right to judicial protection, which states:

  • 1. Everyone has the right to simple and prompt recourse, or any other effective recourse, to a competent court or tribunal for protection against acts that violate his fundamental rights recognized by the constitution or laws of the state concerned or by this Convention, even though such violation may have been committed by persons acting in the course of their official duties.
  • 2. The States Parties undertake:
    • 1. to ensure that any person claiming such remedy shall have his rights determined by the competent authority provided for by the legal system of the state;
    • 2. to develop the possibilities of judicial remedy; and
    • 3. to ensure that the competent authorities shall enforce such remedies when granted.

Relevant Caselaw

  • Castillo Petruzzi et al.
  • Suarez Rosero

European Convention on Human Rights

Article 5 (4) -

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.

Examples of the Right to Habeas Corpus

India

The right to habeas corpus has been used by the Indian judiciary effectively only in order to secure the release of a person from illegal detention. However, over the years, the scope of the right has taken wider dimensions. This can be demonstrated by a number of cases:

  • In Kanu Sanyal v. District Magistrate, the Supreme Court held that while dealing with a petition for writ of habeas corpus, the court may examine the legality of the detention without requiring the person detained to be produced before it.
  • In Sheela Barse v. State of Maharashtra, the court held that if the detained person is unable to seek the writ of habeas corpus, someone else may act so on his behalf.

Kenya

Criminal Procedure Code 2009

  • 389.
    • (1) The High Court may whenever it thinks fit direct -
      • (a) that any person within the limits of Kenya be brought up before the court to be dealt with according to law;
      • (b) that any person illegally or improperly detained in public or private custody within those limits be set at liberty;
      • (c) that any prisoner detained in a prison situated within those limits be brought before the court to be there examined as a witness in any matter pending or to be inquired into in that court;
      • (d) that any prisoner so detained be brought before a court martial or commissioners acting under the authority of a commission from the President for trial to be examined touching any matter pending before the court martial or commissioners respectively;
      • (e) that any prisoner within those limits be removed from one custody to another for the purpose of trial; and
      • (f) that the body of a defendant within those limits be brought in on a return of cepi corpus to a writ of attachment.
  • (2) The Chief Justice may make rules of court to regulate the procedure in cases under this section.


Rules under section 389(2): The Criminal Procedure (Directions in the nature of habas corpus) rules

  • 1. These Rules may be cited as the Criminal Procedure (Directions in the Nature of Habeas Corpus) Rules.
  • 2. An application for the issue of directions in the nature of habeas corpus shall be made in the first instance to a judge in chambers ex parte, supported by affidavit in triplicate.
  • 3. If the application is not dismissed, the judge shall order a summons to be issued directed to the person in whose custody the person alleged to be improperly detained is said to be, requiring his appearance in person or by advocate, together with the original of any warrant or order for the detention, at a place and time named therein, to show cause why the person so detained should not be forthwith released.
  • 4. The summons shall be accompanied by a copy of all affidavits lodged in support of the application, and where the person detained is in public custody a duplicate of the application, of the summons and of all affidavits lodged in support thereof shall be forwarded to the Attorney-General.
  • 5. Affidavits in reply shall be filed in duplicate, of which one copy shall be served on the applicant.
  • 6. The date fixed for the return to the summons shall be as soon as may be convenient after its issue to permit of the attendance of the parties served.

Constitutional Law

The Constitution grants an unlimited right to an order of habeas corpus, Art. 25, Art. 51(2). The procedure governing the application and issue of an order of habeas corpus are set out in the Criminal Procedure Code Sec. 389 and the accompanying Rules. Under the CPC, the High Court may, in exercise of its supervisory powers, order that any person illegally or improperly detained in public or private custody be set at liberty. For an order to issue, the applicant must “show cause and demonstrate that other ordinary remedies are either inapplicable or inadequate” (See, Paul Mburu Kamau & Another V Provincial Criminal Investigation Officer, Coast Province & Another [2006] eKLR)

Tanzania

Criminal Procedure Act, 1985

  • 390(1) The High Court may whenever it thinks fit direct-
    • (a) that any person within the limits of Tanzania Mainland be brought up before the court to be dealt with according to law;
    • (b) that any person illegally or improperly detained in public or private custody within such limits, be set at liberty;
    • (c) that any prisoner detained in any prison situate within such limits be brought before the court to be there examined as a witness in any matter pending or to be inquired into in such court;
    • (d) that any prisoner detained as aforesaid be brought before a court-martial or any commissioners acting under the authority of any commission from the President for trial or be examined touching any matter pending before such court-martial or commissioner respectively;
    • (c) that any prisoner within such limits be removed from one custody to another for the purpose of trial; and
    • (f) that the body of a defendant within such limits be brought in on a return of cepi corpus to a writ of a attachment.

Uganda

Constitution

  • � 23 (9) The right to an order of habeas corpus shall be inviolable and shall not be suspended.
  • � 44 Notwithstanding anything in this Constitution, there shall be no derogation from the enjoyment of the following rights and freedoms:
    • (d) the right to an order of habeas corpus.

United States

The right to collateral review by way of habeas corpus is guaranteed in Article 1 � 9 of the U.S. Constitution, "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion, the public safety may require it." Federal courts have statutory authority to hear habeas corpus claims under 28 U.S.C. � 2241 to issue writs of habeas corpus to release prisoners held by any government entity within the country from custody in the following circumstances:

  1. He is in custody under or by color of the authority of the United States or is committed for trial before some court thereof; or
  2. He is in custody for an act done or omitted in pursuance of an Act of Congress, or an order, process, judgment or decree of a court or judge of the United States; or
  3. He is in custody in violation of the Constitution or laws or treaties of the United States; or
  4. He, being a citizen of a foreign state and domiciled therein is in custody for an act done or omitted under any alleged right, title, authority, privilege, protection, o exemption claimed under the commission, order or sanction of any foreign state, or under color thereof, the validity and effect of which depend upon the law of nations; or
  5. It is necessary to bring him into court to testify or for trial.

The Antiterrorism and Effective Death Penalty Act of 1996 limited the use of the federal writ by imposing several requirements on the defendant.

  1. The AEDPA limited habeas corpus actions by the creation of a one-year statute of limitations
  2. The AEDPA limited the power of federal judges to grant relief unless the state court's adjudication of the claim resulted in a decision that was (1) contrary to, or involved an unreasonable application of clearly established federal law as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. It generally but not absolutely barred second or successive petitions, with several exceptions. Petitioners who had already filed a federal habeas petition were required first to secure authorization from the appropriate United States Court of Appeals, to ensure that such an exception was at least facially made out. These new requirements are complex in nature and are still being litigated throughout the United States.



See Rights of the Accused