Credit: OHCHR
During its 72nd regular session in Geneva, which was held from April 20th through 29th, the United Nations Working Group on Arbitrary Detention [hereinafter Working Group] adopted the final text of its draft “Basic Principles and Guidelines on Remedies and Procedures on the Right of Anyone Deprived of Their Liberty to Bring Proceedings Before a Court.” [OHCHR: Working Group] See General Assembly, Report of the Working Group on Arbitrary Detention: 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, UN Doc. A/HRC/30/xx, June 2015, 5 (hereinafter Basic Principles and Guidelines). In reference to the Basic Principles and Guidelines, Mads Andenas, the current head of the five-member Working Group, stated that the “right to have the detention reviewed in court without delay is a central element of everyone’s right to liberty and security.” [OHCHR: New Guidelines]
The Basic Principles and Guidelines are intended to encourage States to put into place measures that establish and strengthen procedural safeguards for individuals deprived of their liberty. See Basic Principles and Guidelines. The final draft of the Basic Principles and Guidelines has been sent to the UN Human Rights Council for review, and the Working Group will formally present it to the Council in September 2015. [OHCHR: Working Group]
The Drafting and Adoption of the Basic Principles and Guidelines
The Human Rights Council requested the Working Group to develop the Basic Principles and Guidelines to assist Member States in fulfilling their obligations to ensure that individuals are not arbitrarily deprived of their liberty and in complying with their international human rights obligations. See Human Rights Council, Resolution 20/16, Arbitrary Detention, UN Doc. A/HRC/20/L.5, 29 June 2012, para. 10. The Human Rights Council asked the Working Group to take into consideration input from many stakeholders, including: Member States; UN agencies; UN treaty bodies, particularly the UN Human Rights Committee, which is the treaty body for the International Covenant on Civil and Political Rights; UN special procedures; intergovernmental organizations; national human rights institutions (NHRIs); and non-governmental organizations. See id. at para. 11(a).
To this end, on June 17, 2013, the Working Group sent out a questionnaire on the availability in Member States of legal and other measures for persons deprived of their liberty to bring proceedings before the courts. Several responses were submitted by Member States, international and regional organizations, human rights treaty bodies, special procedures mandate holders, NHRIs, academics, and non-governmental organizations.
The Working Group also held a global consultation in September 2014, which brought together representatives from over 25 Member States, experts from both governmental and non-governmental organizations, and NHRIs. The Working Group presented a background paper at the consultation that provided an overview of State practices aimed at implementing the right of anyone deprived of his or her liberty to have that deprivation of liberty reviewed by a court. This paper also contained a set of preliminary draft principles and guidelines. During this forum, which consisted of six panels, various experts discussed best practices and shared their experiences concerning: the framework, scope, and content of the right to court review of detention; the necessary procedural guarantees to exercise the right to this type of review; criminal detention; migration-related detention; preventive and protective detention; and detention concerning armed conflict, states of emergency, and counterterrorism.
Summary of the Basic Principles and Guidelines
The document contains 21 principles and 22 guidelines to assist States in the process of developing laws and procedures that effectively ensure that all individuals who are deprived of liberty have the right, in practice, to court review on the lawfulness of detention. See Basic Principles and Guidelines. The introduction explains that the “right to challenge the lawfulness of detention before a court is a self-standing human right, the absence of which constitutes a human rights violation,” adding that “this judicial remedy is essential to preserve legality in a democratic society.” See id. at 2. The introduction also contains definitions of terms used throughout the principles and guidelines, including, for example, what constitutes “arbitrary” deprivation of liberty. See id. at 3–4.
The principles discuss the substance of the right to be free from arbitrary or unlawful deprivation of liberty, including: the responsibilities of States and other actors; the principle of non-derogation, which signifies that the right to legally challenge one’s detention and to obtain remedies cannot be suspended or restricted, unless a narrow set of exceptions applies; the principle that the right to bring proceedings to challenge the arbitrariness and lawfulness of detention applies to all individuals, without discrimination; the role of courts in reviewing whether the deprivation of liberty is arbitrary and lawful; and the right of the detainee to be informed of the right to review. See id. at 5–7.
The principles then address the details of the review process, including: the timeframe to bring proceedings before a court; the right to the assistance of legal counsel and access to legal aid; the right of anyone to bring proceedings before the court; the detainee’s right to be physically present before the court; the principle of equal access to the court, including specific obligations to guarantee access; that the burden of proof lies with the responsible authorities who have detained the individual; the standard of review; and the guarantee of effective remedies and reparations for anyone who is unfairly or arbitrarily detained. See id. at 7–9. The principles go on to explain how the right to review still applies in situations of armed conflict, public danger, or other emergencies that pose a security threat to the State. See id. at 9–10. The principles also address specific measures that States must take when detainees are children, women and girls, persons with disabilities, and non-nationals. See id. at 9–12.
The guidelines cover many of the same topics as the principles, but differ by laying out more specifically what is required of States to ensure that each principle is upheld. The guidelines also address the fact that any restrictions on the deprivation of liberty must be established in national laws, the necessary characteristics of the court reviewing the detention, procedural guidelines for reviewing detention, record keeping within prisons and detention facilities, the general inadmissibility of evidence obtained by torture or other prohibited means, and permissible restrictions on the disclosure of information by detaining authorities to the judge. See id. at 12–18. Finally, the guidelines encourage States to take measures, including legislative, administrative, judicial, and others, toward implementing the principles, by: reviewing and amending national laws and regulations; training actors within the justice system, including police, prison staff, and judges; and disseminating the Basic Principles and Guidelines among various stakeholders throughout the State to increase awareness. See id. at 27–28.
Additional Information
To learn more about the UN Working Group on Arbitrary Detention, and other UN special procedures, visit IJRC’s Online Resource Hub.