Right to Habeas Corpus

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Background

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 various writs, the sum collection of which gave a similar effect as the modern writ. Although 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 prerogative 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."


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.

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

  • 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 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.