UN: the right to challenge the lawfulness of detention before a court

Apr 3, 2014 | Advocacy, Legal submissions

The ICJ today made a further submission to the UN Working Group on Arbitrary Detention.

The ICJ submission addressed a number of issues for a draft set of “Basic Principles and Guidelines” on the right of anyone deprived of liberty to challenge the lawfulness of his or her detention, and the right of victims of arbitrary or unlawful detention to an effective remedy.

The document supplements an earlier submission by ICJ, delivered in November 2013, and responds to a number of questions raised by members of the Working Group when the ICJ appeared before it in its November session. The new submission addresses the following issues:

• The ability of persons other than the detained individual and his or her lawyer to initiate proceedings challenging the detention.
• Entitlement of a detained person to disclosure by the government of information relevant to their detention, in the context of challenging the lawfulness of the detention.
• The right of the detained individual physically to appear before the court.
• The scope of the obligation to provide compensation to victims of arbitrary or otherwise unlawful detention, apart from particular treaty provisions.
• Whether, in terms of the right to remedy and challenge, any distinction is to be drawn between the criminal justice system and other forms of detention such as detention of migrants, detention on psychiatric and various existing administrative regimes.
• Military courts and the right to challenge the lawfulness of detention.
• Whether exceptions to the right to challenge lawfulness of detention before a court exist, under customary international law.

The United Nations Working Group on Arbitrary Detention, which will next meet in Geneva 22 April to 1 May 2014, was requested  by the Human Rights Council to prepare the draft “Principles and Guidelines” before the end of 2015. The Working Group is presently developing a first draft. A stakeholder consultation on the draft is contemplated for September 2014.

The new supplemental submission may be downloaded in PDF here: ICJ-Advocacy-WGADhabeas-2ndSubmission-03042014

The earlier submission may be downloaded here.