Access to a judge

Key elements

Ensuring all persons deprived of their liberty have prompt access to a judge is an important safeguard against arbitrary detention and to ensure that the rights of detainees are respected. The right of detainees in prison to access a judge includes 1) the right of criminal suspects to be brought promptly before a judge and 2) the right of all detainees to challenge the legality of detention (habeas corpus). In both cases, the court should hear the detainee in person in order to be able to respond to any allegations or indications of ill-treatment. The judiciary can also play a broader oversight role through its decisions on aspects of conditions or treatment in prisons.

Analysis

Access to a judge for detainees in prison: two related rights

International standards provide that no one should be held in detention without being given the opportunity to be heard promptly by a judicial authority. There are two distinct but related rights in relation to access to a judge for persons who are detained in prisons: the first relates to detainees who are criminal suspects and the second concerns all detainees. As with other safeguards, detainees should receive information on these rights in a language they understand upon admission to the prison.

Grounds for authorising detention of criminal suspects

International standards are clear that criminal suspects should only be detained in limited circumstances and as a measure of last resort, in line with the presumption of innocence. In deciding whether the person should be detained, a judge should assess whether there is reasonable suspicion that they committed the alleged offence and substantial reason to believe that they are likely to abscond, interfere with the course of justice (e.g. interfere with evidence) or commit a serious offence. The judge should only order detention as a last resort, if these conditions are met and alternative non-custodial measures have been pursued.

In reality, the legal framework and/or practice falls below international standards in many countries: judges tend to validate detention applications and pre-trial detention is used excessively. This contributes to prison overcrowding and has adverse effects on the rule of law, respect for rights in detention, as well as public health.

Criminal suspects: right to be brought promptly before a judge

International standards provide that criminal suspects who are detained must be “brought promptly before a judge”, for a determination of the necessity to detain the person or not. According to the UN Human Rights Committee, this should happen within maximum 48 hours (General Comment 35).  This time limit will usually be set in a country’s criminal procedure code. In the prison context, this right is most relevant for pre-trial detainees who were brought to the prison shortly after arrest.

All children deprived of their liberty should be brought before a judge within 24 hours after the time of their arrest.

Access to a judge as a key safeguard against ill-treatment

Given that people are most vulnerable in the period immediately following their arrest and detention, the right of criminal suspects to be brought promptly before a judge is an important safeguard against torture and other ill-treatment. In addition to the fact that access should be “prompt”, the European Committee for the Prevention of Torture (CPT) has therefore stated that all persons detained by the police whom it is proposed to remand to prison should be brought before a judge to decide the issue, as this is a key moment when any ill-treatment in police detention can be brought to light (CPT standards).

To make this safeguard effective, it is important that the detainee is brought before the judge in person and has the opportunity to speak to the judge. This will enable the detainee to report any ill-treatment or lodge other complaints about their detention. It also enables the judge to assess the person’s appearance and demeanour for any indications of ill-treatment, in the absence of a formal complaint. The judge should record any allegations or indications of ill-treatment in writing, immediately order a forensic medical examination and ensure they are investigated by the competent authority.

Challenging the legality of detention

International human rights law provides that all persons deprived of their liberty should have the right to challenge the legality of detention (sometimes known as habeas corpus) before a court. This applies to all detainees (persons detained criminally or administratively, for example in relation to public order offences or because of their immigration status). In some countries, habeas corpus extends to reviewing allegations of illegal treatment of persons who have been legally detained. In addition, in some (mainly Spanish speaking) jurisdictions, amparo writs may provide a remedy for the protection of detainees’ constitutional rights, broader than challenging the legality of detention.

The judge should hear challenges to the legality of detention without delay. Again, there is no standard on what constitutes “without delay” and it must be assessed on a case by case basis. But it is understood to mean "as expeditiously as possible" (so hours or days rather than weeks). As above, the court should hear the detainee in person in order to be able to respond to any allegations or indications of ill- treatment in detention. This right is non-derogable and therefore cannot be suspended during emergencies such as armed conflict or" terrorist incidents".

Effective judicial oversight of detention

In addition to the safeguards associated with the right of detainees to access a judge (discussed above), the judiciary can exercise oversight over detention practices through its decisions on:

- Challenges to the legality of treatment or conditions in prison (under administrative or constitutional law). The United Nations Subcommittee on Prevention of Torture has pointed out that judicial control during the period of confinement - by judges other than those that determined the criminal charge - is crucial for due process and to ensure that detainees can invoke the standards protecting them (SPT 2013). In some jurisdictions, special judges are mandated to receive complaints regarding any aspect of the detention regime for persons serving a sentence (known as juges d’exécution des peines in francophone jurisdictions).  Detainees may be required to first pursue avenues of administrative complaint.

  • The application of due process rights which act as safeguards against torture or other ill-treatment for pre-trial detainees (e.g. access to a lawyer).
  • Claims for compensation related to detention, e.g. for illegal detention or ill-treatment in detention.
  • Criminal charges relating to the conduct of prison employees or detainees.
  • In addition, judges in some countries have the mandate to visit places of detention (see Inspection mechanisms).

For these different types of judicial oversight of detention to be effective, it is necessary that the judiciary is independent and takes action without delay to uphold the rights of detainees. There are a number of reasons why this does not happen in all contexts, including:

  • If the judiciary does not have the necessary professional distance from the authorities involved in detention, judges can become partial, taking “the authorities side” over the word and situation of detainees.
  • Judges may not be aware of the serious nature of torture and other ill-treatment.
  • The judiciary may face a lack of resources and an overload of cases, impacting on its ability to deal with cases thoroughly and in a timely manner.

Access to a judge for persons in situation of vulnerability

The judicial control of detention of children is particularly important, given their vulnerability in detention to violence and abuse. The UN Committee on the Rights of the Child provides that no child who is arrested should be detained for more than 24 hours without a judicial order and recommends that the legality of pre-trial detention of children “is reviewed regularly, preferably every two weeks” (General Comment 10). Pre-trial detention for children should be strictly limited to a measure of last resort. Specialised juvenile courts should be established, with judges trained to understand issues of child psychology and development. Children should be given the opportunity to speak directly to the court and procedures should be adapted to ensure the child’s best interests and avoid possible harm.

Detainees should be informed in a language they understand about their right to access a judge. When exercising this right, detainees who do not understand or speak the language used by the court should be afforded an interpreter free of charge. Interpreters should be competent and have basic training in legal matters.

Persons with mental or learning disabilities may have difficulties accessing and representing themselves in court and informing the judge of issues relating to their treatment and conditions in detention. It is therefore particularly important that measures are taken to facilitate their prompt access to a judge and that they have access to a lawyer who can assist them.

Legal standards (19)

Questions for monitors (12)

Are detainees informed in a language they understand of their right to promptly access a judge?

How long after deprivation of liberty are criminal suspects brought before a judge?

What criteria do judges use to decide whether a criminal suspect should be held in pre-trial detention? Are there any indications that pre-trial detention is used excessively?

Do all detainees have the right to challenge the legality of their detention (e.g. habeas corpus or amparo writs)?

When exercising their right to access a judge, are detainees brought to appear before the court in person? Do they have the opportunity to inform the judge of any issues regarding their treatment or conditions in detention?

What action do judges take if there are allegations or indications of ill-treatment in detention (do they record these in writing, order a forensic examination and investigation by competent authorities)?

What other oversight can the judiciary exercise over detention (e.g. can detainees complain to a judge regarding treatment or conditions in detention)? Is this effective?

Are detainees who do not understand or speak the language used by the court provided with a competent interpreter free of charge?

Are children who are arrested brought before a judge within 24 hours to decide the necessity to detain them? Is their detention reviewed regularly (every 2 weeks)?

Are children heard by specialised courts with procedures adapted to avoid harm and ensure the child’s best interests? Do children have the opportunity to speak directly to the court?

Are measures taken if necessary to ensure that persons with mental or learning disabilities can access a judge and have assistance to represent themselves in court?

Are there any indications of discrimination (on any grounds) in ensuring that detainees are brought promptly before a judge?

Further reading (10)

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Access to a judge

Key elements

Ensuring all persons deprived of their liberty have prompt access to a judge is an important safeguard against arbitrary detention and to ensure that the rights of detainees are respected. The right of detainees in prison to access a judge includes 1) the right of criminal suspects to be brought promptly before a judge and 2) the right of all detainees to challenge the legality of detention (habeas corpus). In both cases, the court should hear the detainee in person in order to be able to respond to any allegations or indications of ill-treatment. The judiciary can also play a broader oversight role through its decisions on aspects of conditions or treatment in prisons.

Analysis Print

Access to a judge for detainees in prison: two related rights

International standards provide that no one should be held in detention without being given the opportunity to be heard promptly by a judicial authority. There are two distinct but related rights in relation to access to a judge for persons who are detained in prisons: the first relates to detainees who are criminal suspects and the second concerns all detainees. As with other safeguards, detainees should receive information on these rights in a language they understand upon admission to the prison.

Grounds for authorising detention of criminal suspects

International standards are clear that criminal suspects should only be detained in limited circumstances and as a measure of last resort, in line with the presumption of innocence. In deciding whether the person should be detained, a judge should assess whether there is reasonable suspicion that they committed the alleged offence and substantial reason to believe that they are likely to abscond, interfere with the course of justice (e.g. interfere with evidence) or commit a serious offence. The judge should only order detention as a last resort, if these conditions are met and alternative non-custodial measures have been pursued.

In reality, the legal framework and/or practice falls below international standards in many countries: judges tend to validate detention applications and pre-trial detention is used excessively. This contributes to prison overcrowding and has adverse effects on the rule of law, respect for rights in detention, as well as public health.

Criminal suspects: right to be brought promptly before a judge

International standards provide that criminal suspects who are detained must be “brought promptly before a judge”, for a determination of the necessity to detain the person or not. According to the UN Human Rights Committee, this should happen within maximum 48 hours (General Comment 35).  This time limit will usually be set in a country’s criminal procedure code. In the prison context, this right is most relevant for pre-trial detainees who were brought to the prison shortly after arrest.

All children deprived of their liberty should be brought before a judge within 24 hours after the time of their arrest.

Access to a judge as a key safeguard against ill-treatment

Given that people are most vulnerable in the period immediately following their arrest and detention, the right of criminal suspects to be brought promptly before a judge is an important safeguard against torture and other ill-treatment. In addition to the fact that access should be “prompt”, the European Committee for the Prevention of Torture (CPT) has therefore stated that all persons detained by the police whom it is proposed to remand to prison should be brought before a judge to decide the issue, as this is a key moment when any ill-treatment in police detention can be brought to light (CPT standards).

To make this safeguard effective, it is important that the detainee is brought before the judge in person and has the opportunity to speak to the judge. This will enable the detainee to report any ill-treatment or lodge other complaints about their detention. It also enables the judge to assess the person’s appearance and demeanour for any indications of ill-treatment, in the absence of a formal complaint. The judge should record any allegations or indications of ill-treatment in writing, immediately order a forensic medical examination and ensure they are investigated by the competent authority.

Challenging the legality of detention

International human rights law provides that all persons deprived of their liberty should have the right to challenge the legality of detention (sometimes known as habeas corpus) before a court. This applies to all detainees (persons detained criminally or administratively, for example in relation to public order offences or because of their immigration status). In some countries, habeas corpus extends to reviewing allegations of illegal treatment of persons who have been legally detained. In addition, in some (mainly Spanish speaking) jurisdictions, amparo writs may provide a remedy for the protection of detainees’ constitutional rights, broader than challenging the legality of detention.

The judge should hear challenges to the legality of detention without delay. Again, there is no standard on what constitutes “without delay” and it must be assessed on a case by case basis. But it is understood to mean "as expeditiously as possible" (so hours or days rather than weeks). As above, the court should hear the detainee in person in order to be able to respond to any allegations or indications of ill- treatment in detention. This right is non-derogable and therefore cannot be suspended during emergencies such as armed conflict or" terrorist incidents".

Effective judicial oversight of detention

In addition to the safeguards associated with the right of detainees to access a judge (discussed above), the judiciary can exercise oversight over detention practices through its decisions on:

- Challenges to the legality of treatment or conditions in prison (under administrative or constitutional law). The United Nations Subcommittee on Prevention of Torture has pointed out that judicial control during the period of confinement - by judges other than those that determined the criminal charge - is crucial for due process and to ensure that detainees can invoke the standards protecting them (SPT 2013). In some jurisdictions, special judges are mandated to receive complaints regarding any aspect of the detention regime for persons serving a sentence (known as juges d’exécution des peines in francophone jurisdictions).  Detainees may be required to first pursue avenues of administrative complaint.

  • The application of due process rights which act as safeguards against torture or other ill-treatment for pre-trial detainees (e.g. access to a lawyer).
  • Claims for compensation related to detention, e.g. for illegal detention or ill-treatment in detention.
  • Criminal charges relating to the conduct of prison employees or detainees.
  • In addition, judges in some countries have the mandate to visit places of detention (see Inspection mechanisms).

For these different types of judicial oversight of detention to be effective, it is necessary that the judiciary is independent and takes action without delay to uphold the rights of detainees. There are a number of reasons why this does not happen in all contexts, including:

  • If the judiciary does not have the necessary professional distance from the authorities involved in detention, judges can become partial, taking “the authorities side” over the word and situation of detainees.
  • Judges may not be aware of the serious nature of torture and other ill-treatment.
  • The judiciary may face a lack of resources and an overload of cases, impacting on its ability to deal with cases thoroughly and in a timely manner.

Access to a judge for persons in situation of vulnerability

The judicial control of detention of children is particularly important, given their vulnerability in detention to violence and abuse. The UN Committee on the Rights of the Child provides that no child who is arrested should be detained for more than 24 hours without a judicial order and recommends that the legality of pre-trial detention of children “is reviewed regularly, preferably every two weeks” (General Comment 10). Pre-trial detention for children should be strictly limited to a measure of last resort. Specialised juvenile courts should be established, with judges trained to understand issues of child psychology and development. Children should be given the opportunity to speak directly to the court and procedures should be adapted to ensure the child’s best interests and avoid possible harm.

Detainees should be informed in a language they understand about their right to access a judge. When exercising this right, detainees who do not understand or speak the language used by the court should be afforded an interpreter free of charge. Interpreters should be competent and have basic training in legal matters.

Persons with mental or learning disabilities may have difficulties accessing and representing themselves in court and informing the judge of issues relating to their treatment and conditions in detention. It is therefore particularly important that measures are taken to facilitate their prompt access to a judge and that they have access to a lawyer who can assist them.

Legal standards (19) Print

International Covenant on civil and political rights

Article 9

1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.

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.

Article 13

An alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for the purpose before, the competent authority or a person or persons especially designated by the competent authority.

United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules)

Rule 57.1

Every request or complaint shall be promptly dealt with and replied to without delay. If the request or complaint is rejected, or in the event of undue delay, the complainant shall be entitled to bring it before a judicial or other authority.

Body of principles for the protection of all persons under any form of detention or imprisonment

Principle 32

1.   A detained person or his counsel shall be entitled at any time to take proceedings according to domestic law before a judicial or other authority to challenge the lawfulness of his detention in order to obtain his release without delay, if it is unlawful.

2.   The proceedings referred to in paragraph l of the present principle shall be simple and expeditious and at no cost for detained persons without adequate means.  The detaining authority shall produce without unreasonable delay the detained person before the reviewing authority.

Convention on the Rights of the Child

Article 37

States Parties shall ensure that:


b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time;

d) Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a promp decision on any such action.

Article 40

2. […] States Parties shall, in particular, ensure that :

b) Every child alleged as or accused of having infringed the penal law has at least the following guarantees : […]

(iii) To have the matter determined without delay by a competent, independent and impartial authority or judicial body in a fair hearing according to law, in the presence of legal or other appropriate assistance and, unless it is considered not to be in the best interest of the child, in particular, taking into account his or her age or situation, his or her parents or legal guardians.

United Nations Rules for the Protection of Juveniles Deprived of their Liberty

Rule 18

[...] a) Juveniles should have the right of legal counsel and be enabled to apply for free legal aid, where such aid is available, and to communicate regularly with their legal advisers. Privacy and confidentiality shall be ensured for such communications.

United Nations Standard Minimum Rules for the Administration of Juvenile Justice ("The Beijing Rules")

Rule 10

2. A judge or other competent official or body shall, without delay, consider the issue of release.

Yogyakarta Principles

Principle 7 - The right to freedom from arbitrary deprivation of liberty

a) take all necessary legislative, administrative and other measures to ensure that sexual orientation or gender identity may under no circumstances be the basis for arrest or detention, including the elimination of vaguely worded criminal law provisions that invite discriminatory application or otherwise provide scope for arrests based on prejudice;

b) Take all necessary legislative, administrative and other measures to ensure that all persons under arrest, regardless of their sexual orientation or gender identity, are entitled, on the basis of equality, to be informed of the reasons for arrest and the nature of any charges against them, and whether charged or not, to be brought promptly before a judicial officer and to bring court proceedings to determine the lawfulness of detention.
 

Principle 8 – The Right to a Fair Trial

Everyone is entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law, in the determination of their rights and obligations in a suit at law and of any criminal charge against them, without prejudice or discrimination on the basis of sexual orientation or gender identity.

International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families

Article 16

4. Migrant workers and members of their families shall not be subjected individually or collectively to arbitrary arrest or detention; they shall not be deprived o their liberty except on such grounds and in accordance with such procedures as are established by law.

6. Migrant workers and members of their families who are arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that while awaiting trial they shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings and, should the occasion arise, for the execution of the judgement.

8. Migrant workers and members of their families who are deprived of their 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 their detention and order their release if the detention is not lawful. When they attend such proceedings, they shall have the assistance, if necessary without cost to them, of an interpreter, if they cannot understand or speak the language used.

Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, A/HRC/31/57, 5 January 2016

Paragraph 70

With regard to women, girls, and lesbian, gay, bisexual and transgender persons in detention, the Special Rapporteur calls on all States to:

[...] (c) Guarantee the right to effective assistance of counsel, including by means of a legal aid system, and the right to appeal decisions to a judicial or other competent independent authority, without discrimination; [...]

General comment n°35 on article 9, Human Rights Committee

Paragraph 33

While the exact meaning of “promptly” may vary depending on objective circumstances, delays should not exceed a few days from the time of arrest. In the view of the Committee, 48 hours is ordinarily sufficient to transport the individual and to prepare for the judicial hearing; any delay longer than 48 hours must remain absolutely exceptional and be justified under the circumstances. Longer detention in the custody of law enforcement officials without judicial control unnecessarily increases the risk of ill-treatment. Laws in most States parties fix precise time limits, sometimes shorter than 48 hours, and those limits should also not be exceeded. An especially strict standard of promptness, such as 24 hours, should apply in the case of juveniles (...).

Paragraph 33

(...) An especially strict standard of promptness, such as 24 hours, should apply in the case of juveniles.

General comment n° 10 of the Commitee on the Rights of the Child

Paragraph 83

Every child arrested and deprived of his/her liberty should be brought before a competent authority to examine the legality of (the continuation of) this deprivation of liberty within 24 hours. The Committee also recommends that the States parties ensure by strict legal provisions that the legality of a pretrial detention is reviewed regularly, preferably every two weeks. In case a conditional release of the child, e.g. by applying alternative measures, is not possible, the child should be formally charged with the alleged offences and be brought before a court or other competent, independent and impartial authority or judicial body, not later than 30 days after his/her pretrial detention takes effect. The Committee, conscious of the practice of adjourning court hearings, often more than once, urges the States parties to introduce the legal provisions necessary to ensure that the court/juvenile judge or other competent body makes a final decision on the charges not later than six months after they have been presented.

Committee on the Rights of Persons with Disabilities, Guidelines on article 14, The right to liberty and security of persons with disabilities, Adopted during the Committee’s 14th session, September 2015

XIV. Access to justice, reparation and redress to persons with disabilities deprived of their liberty in infringement of article 14 taken alone, and taken in conjunction with article 12 and/or article 15 of the Convention.

24. Persons with disabilities arbitrarily or unlawfully deprived of their liberty are entitled to have access to justice to review the lawfulness of their detention, and to obtain appropriate redress and reparation. The Committee calls States parties’ attention to Guideline 20 of the “United Nations Basic Principles and Guidelines on remedies and procedures on the right of anyone deprived of their liberty to bring proceedings before a court”, adopted by the Working Group on Arbitrary Detention on 29 April 2015, during its 72th session. [...]

Principles and Best Practices on the Protection of Persons Deprived of Liberty in the America

Principle V – Due process of law

Every person deprived of liberty shall, at all times and in all circumstances, have the right to the protection of and regular access to competent, independent, and impartial judges and tribunals, previously established by law.

Persons deprived of liberty shall have the right to be promptly informed in a language they understand of the reasons for their deprivation of liberty and of the charges against them, as well as to be informed of their rights and guarantees; to have access to a translator or interpreter during the proceedings; and to communicate with their family. They shall have the right to a hearing and a trial, with due guarantees and within a reasonable time, by a judge, authority or official who is legally authorized to exercise judicial functions, or to be released without prejudice to the continuation of the proceedings; to appeal the judgment to a higher judge or court; and to not be subjected to a new trial for the same cause, if they have been acquitted by a nonappealable judgment in conformity with due process of law and international human rights law.

United Nations Basic Principles and Guidelines on the right of anyone deprived of their liberty to bring proceedings before a court, WGAD/CRP.1/2015, 4 May 2015

Principle 1. Right to be free from arbitrary or unlawful deprivation of liberty

19. Recognizing that everyone has the right to be free from arbitrary or unlawful deprivation of liberty, everyone is guaranteed the right to take proceedings before a court, in order that that court may decide on the arbitrariness or lawfulness of the detention, and obtain without delay appropriate and accessible remedies.

Principle 5. Non-discrimination

26. The right to bring proceedings before a court to challenge the arbitrariness and lawfulness of detention and to receive without delay appropriate and accessible remedies may be exercised by anyone regardless of race, colour, sex, property, birth, age, national, ethnic or social origin, language, religion, economic condition, political or other opinion; sexual orientation or gender identity, asylum-seeking or migration status, disability or any other status.

Principle 6. The court as reviewing body

27. A court shall review the arbitrariness and lawfulness of the deprivation of liberty. It shall be established by law and bear the full characteristics of a competent, independent and impartial judicial authority capable of exercising recognizable judicial powers, including the power to order immediate release if the detention is found to be arbitrary or unlawful.

Principle 8. Timeframe for bringing proceedings before a court

29. The right to bring proceedings before a court without delay to challenge the arbitrariness and lawfulness of the deprivation of liberty and to obtain without delay appropriate and accessible remedies applies from the moment of apprehension and ends with the release of the detainee or the final judgment, depending on the circumstances. The right to claim remedies after release may not be rendered ineffective by any statutes of limitation.

Principle 11. Appearance of the detainee before the court

36. The court should guarantee the physical presence of the detainee before it, especially for the first hearing of the challenge to the arbitrariness and lawfulness of the deprivation of liberty and every time that the person deprived of liberty requests to appear physically before the court.

Principle 13. Burden of proof

39. In every instance of detention the burden of establishing the legal basis and the reasonableness, necessity and proportionality of the detention, lies with the authorities responsible for the detention.

Principle 14. Standard of review

40. No restriction may be imposed on the court’s authority to review the factual and legal basis of the arbitrariness and lawfulness of the deprivation of liberty.

41. The court shall consider all available evidence that has a bearing on the arbitrariness and lawfulness of detention, namely, the grounds justifying the detention, and its necessity and proportionality to the aim sought in view of the individual circumstances of the detainee, and not merely its reasonableness or other lower standards of review.

42. In order to determine that a case of deprivation of liberty is non-arbitrary and lawful, the court shall be satisfied that the detention was carried out on grounds and according to procedures prescribed by national law and that are in accordance with international standards, and that, in particular, that it was and remains non-arbitrary, lawful and proportionate under both national and international law.

Principle 17. Specific obligations to guarantee access to the right to bring proceedings before a court

51. The adoption of specific measures are required under international law to ensure meaningful access to the right to bring proceedings before a court to challenge the arbitrariness and lawfulness of detention and receive without delay appropriate remedies by certain groups of detainees. This includes, but is not limited to children, women (in particular pregnant and breastfeeding women), older persons, persons detained in solitary confinement or other forms of incommunicado detention of restricted regimes of confinement, persons with disabilities, including psychosocial and intellectual disabilities, persons living with HIV/AIDS and other serious communicable or contagious diseases, persons with dementia, drug users, indigenous people, sex workers, lesbian, gay, bisexual, transgender and intersex persons, minorities as based on national or ethnic, cultural, religious or linguistic identity, non-nationals, including migrants regardless of their migration status, asylum-seekers and refugees, internally displaced persons, stateless persons and trafficked persons or persons at risk of being trafficked.

Principle 18. Specific measures for children

52. Children may only be deprived of their liberty as a measure of last resort and for the shortest possible period of time. The right of the child to have his or her best interests taken as a primary consideration shall be paramount in any decision-making and action taken in relation to children deprived of their liberty.

53. The exercise of the right to challenge the arbitrariness and lawfulness of the detention of children shall be prioritized and accessible, age-appropriate, multidisciplinary, effective and responsive to the specific legal and social needs of children.

54. The authorities overseeing the detention of children shall ex officio request courts to review the arbitrariness and lawfulness of their detention. This does not exclude the right of any child deprived of his or her liberty to bring such proceedings before a court in his or her own name or, if it is in his or her best interests, through a representative or an appropriate body.

Principle 19. Specific measures for women and girls

55. Appropriate and tailored measures shall be taken into account in the provision of accessibility and reasonable accommodation to ensure the ability of women and girls to exercise their right to bring proceedings before a court to challenge the arbitrariness and lawfulness of detention and to receive without delay appropriate remedies. This includes introducing an active policy of incorporating a gender equality perspective into all policies, laws, procedures, programmes and practices relating to the deprivation of liberty to ensure equal and fair access to justice.

Principle 20. Specific measures for persons with disabilities

56. Courts, while reviewing the arbitrariness and lawfulness of the deprivation of liberty of persons with disabilities, shall comply with the State’s obligation to prohibit involuntary committal or internment on the ground of the existence of an impairment or perceived impairment, particularly on the basis of psychosocial or intellectual disability or perceived psychosocial or intellectual disability, as well as with their obligation to design and implement de-institutionalization strategies based on the human rights model of disability. The review must include the possibility of appeal.

57. The deprivation of liberty of a person with a disability, including physical, mental, intellectual or sensory impairments, is required to be in conformity with the law, including international law, offering the same substantive and procedural guarantees available to others and consistent with the right to humane treatment and the inherent dignity of the person.

58. Persons with disabilities are entitled to be treated on an equal basis with others, and not to be discriminated against on the basis of disability.89 Protection from violence, abuse and ill-treatment of any kind must be ensured.

59. Persons with disabilities are entitled to request individualized and appropriate accommodations and support, if needed, to exercise the right to challenge the arbitrariness and lawfulness of their detention in accessible ways.

Principle 21. Specific measures for non-nationals, including migrants regardless of their migration status, asylum seekers, refugees and stateless persons

60. Non-nationals, including migrants regardless of their status, asylum seekers, refugees and stateless persons, in any situation of deprivation of liberty, shall be informed of the reasons for their detention and their rights in connection with the detention order. This includes the right to bring proceedings before a court to challenge the arbitrariness and lawfulness and the necessity and proportionality of their detention and to receive without delay appropriate remedy. It also includes the right to legal assistance in accordance with the basic requirement of “Prompt and effective provision of legal assistance”, in a language they use and in a means, mode, or format they understand and the right to the free assistance of an interpreter if they cannot understand or speak the language used in court.

61. Irrespective of the body responsible for their detention order, administrative or other, such non-nationals shall be guaranteed access to a court of law, empowered to order immediate release or able to vary the conditions of release. They shall promptly be brought before a judicial authority before which they should have access to automatic, regular periodic reviews of their detention to ensure it remains necessary, proportional, lawful and non-arbitrary. This does not exclude their right to bring proceedings before a court to challenge the lawfulness or arbitrariness of their detention.

62. Proceedings of challenges to decisions regarding immigration detention must be suspensive to avoid expulsion prior to the case-by-case examination of migrants in administrative detention, regardless of their status.

63. The deprivation of liberty as a penalty or punitive sanction in the area of immigration control is prohibited.

64. The deprivation of liberty of an unaccompanied or separated migrant, asylum-seeking, refugee or stateless child is prohibited. Detaining children because of their parents’ migration status will always violate the principle of the best interests of the child and constitutes a violation for the rights of the child.

African Charter on Human and Peoples' Rights

Article 7

1. Every individual shall have the right to have his cause heard. This comprises:

a) the right to an appeal to competent national organs against acts of violating his fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force;

b) the right to be presumed innocent until proved guilty by a competent court or tribunal;

c) the right to defence, including the right to be defended by counsel of his choice;

d) the right to be tried within a reasonable time by an impartial court or tribunal.

Convention for the Protection of Human Rights and Fundamental Freedoms

Article 5 – Right to liberty and security

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.

Article 6 – Right to a fair trial

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

Article 13 – Right to an effective remedy

Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.

American Convention on human rights

Article 7 – Right to Personal Liberty

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.

ASEAN Human Rights Declaration

Article 12

Every person has the right to personal liberty and security. No person shall be subject to arbitrary arrest, search, detention, abduction or any other form of deprivation of liberty.

Article 20

(1) Every person charged with a criminal offence shall be presumed innocent until proved guilty according to law in a fair and public trial, by a competent, independent and impartial tribunal, at which the accused is guaranteed the right to defence.

Guidelines on the Conditions of Arrest, Police Custody and Pre-Trial Detention in Africa

11. Safeguards on pre-trial detention orders

e. Persons subject to pre-trial detention orders shall have the right to challenge the lawfulness of their detention at any time and to seek immediate release in the case of unlawful or arbitrary detention, and compensation and/or other remedies as set out in Part 8 of these Guidelines.

f.  At all hearings to determine the legality of an initial detention order, or of an order extending or renewing pre-trial detention, detainees have the right to be present, the right to the assistance of a lawyer or other legal service provider, the right to access all relevant documents, the right to be heard, and the right to reasonable accommodation to ensure equal enjoyment of rights by persons with disabilities.

12. Reviews of pre-trial detention orders

a. Regular review of pre-trial detention orders shall be provided for in national law. Judicial authorities and detaining authorities shall ensure that all pre-trial detention orders are subject to regular review.

c. Judicial authorities shall provide written reasons for orders to extend or renew pre-trial detention.

31. Children

e. Right to be heard
In all judicial proceedings affecting a child, the child shall have an opportunity to be heard either directly or through a representative of his or her choice. The child’s views shall be taken into account by the relevant authority.

33. Persons with disabilities

b. Legal capacity
Persons with disabilities shall enjoy full legal capacity, access to justice on an equal basis with others, equal treatment before the law, and recognition as a person before the law.

35. Judicial oversight of detention and habeas corpus

All persons in police custody and pre-trial detention shall have the right, either personally or through their representative, to take proceedings before a judicial authority, without delay, in order to have the legality of their detention reviewed. If the judicial authority decides that the detention is unlawful, individuals have the right to release without delay.

Questions for monitors (12) Print

Are detainees informed in a language they understand of their right to promptly access a judge?

How long after deprivation of liberty are criminal suspects brought before a judge?

What criteria do judges use to decide whether a criminal suspect should be held in pre-trial detention? Are there any indications that pre-trial detention is used excessively?

Do all detainees have the right to challenge the legality of their detention (e.g. habeas corpus or amparo writs)?

When exercising their right to access a judge, are detainees brought to appear before the court in person? Do they have the opportunity to inform the judge of any issues regarding their treatment or conditions in detention?

What action do judges take if there are allegations or indications of ill-treatment in detention (do they record these in writing, order a forensic examination and investigation by competent authorities)?

What other oversight can the judiciary exercise over detention (e.g. can detainees complain to a judge regarding treatment or conditions in detention)? Is this effective?

Are detainees who do not understand or speak the language used by the court provided with a competent interpreter free of charge?

Are children who are arrested brought before a judge within 24 hours to decide the necessity to detain them? Is their detention reviewed regularly (every 2 weeks)?

Are children heard by specialised courts with procedures adapted to avoid harm and ensure the child’s best interests? Do children have the opportunity to speak directly to the court?

Are measures taken if necessary to ensure that persons with mental or learning disabilities can access a judge and have assistance to represent themselves in court?

Are there any indications of discrimination (on any grounds) in ensuring that detainees are brought promptly before a judge?

Further reading (10) Print