Difference between revisions of "Right to Habeas Corpus"

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3.to ensure that the competent authorities shall enforce such remedies when granted.
 
3.to ensure that the competent authorities shall enforce such remedies when granted.
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'''Relevant Caselaw'''
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*[[ Castillo Petruzzi et al.]]
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*[[Suarez Rosero]]
  
 
===European Convention on Human Rights===
 
===European Convention on Human Rights===

Revision as of 14:53, 4 May 2010

A writ of habeas corpus is a judicial mandate to prison officials ordering that a prisoner is 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.

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'.

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

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 right to Habeas Corpus

United States