Right to Habeas Corpus

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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.

Cases where Article 9 (4) ICCPR has been relied upon

  • The Vuolanne case
  • The Hammel case
  • The Dermit Barbato case- 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.

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