30/37 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

Thirtieth session Agenda item 3

Promotion and protection of all human rights,

civil, political, economic, social and cultural rights,

including the right to development

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

Summary

The present report is submitted pursuant to Human Rights Council resolution

20/16, in which the Council requested the Working Group on Arbitrary Detention to

present to the Council before the end of 2015 draft basic principles and guidelines on

remedies and procedures on the right of anyone deprived of his or her liberty by arrest or

detention to bring proceedings before a court in order that the court may decide without

delay on the lawfulness of his or her detention and order his or her release if the

detention is not lawful. 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 annexed to the present report are based on international law,

standards and recognized good practice, and are intended to provide States with guidance

on fulfilling, in compliance with international law, their obligation to avoid the arbitrary

deprivation of liberty.

1. The right of anyone deprived of his or her liberty to bring proceedings before a

court, in order that the court may decide without delay on the lawfulness of his or her

detention and obtain appropriate remedies upon a successful challenge, is widely

recognized in international and regional human rights instruments, the jurisprudence of the

International Court of Justice and of international human rights mechanisms, including in

the reports and country visits of treaty bodies and special procedure mandate holders,

regional human rights mechanisms, in the domestic law of States and the jurisprudence of

national courts.

2. 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. It is a judicial

remedy designed to protect personal freedom and physical integrity against arbitrary arrest,

detention, including secret detention, exile, forced disappearance or risk of torture and other

cruel, inhuman or degrading treatment or punishment. It is also a means of determining the

whereabouts and state of health of detainees and of identifying the authority ordering or

carrying out the deprivation of liberty.

3. This judicial remedy is essential to preserve legality in a democratic society. The

effective exercise of this fundamental safeguard of personal liberty in all situations of

deprivation of liberty, without delay and without exception, resulting in appropriate

remedies and reparations, including an entitlement to release upon a successful challenge,

must be guaranteed by the State. Numerous international and regional human rights bodies

and instruments have articulated a strong position on the non-derogability in any

circumstance of the right to bring such proceedings before a court. The Working Group on

Arbitrary Detention urges all States to incorporate this position into their national laws. In

practice, the absence of inclusive and robust national legal frameworks to ensure the

effective exercise of the right to bring proceedings before a court has resulted in a

protection gap for persons deprived of their liberty.

4. In this light, the Human Rights Council, in its resolution 20/16, requested the

Working Group to present to the Council draft basic principles and guidelines on remedies

and procedures on the right of anyone deprived of his or her liberty by arrest or detention to

bring proceedings before a court in order that the court may decide without delay on the

lawfulness of his or her detention and order his or her release if the detention is not lawful.

The Working Group has complied closely with the request of the Council, that it seek the

views of States, relevant United Nations agencies, intergovernmental organizations, treaty

bodies and, in particular, the Human Rights Committee, other special procedures, national

human rights institutions, non-governmental organizations and other stakeholders. In 2013,

the Working Group distributed a questionnaire to stakeholders in which it requested details

on the right to bring such proceedings in their respective legal framework.

5. The Working Group submitted to the Human Rights Council, at its twenty-seventh

session, a thematic report on the international, regional and national legal frameworks on

the right to challenge the lawfulness and arbitrariness of detention before court

(A/HRC/27/47). In the report, the Working Group documented general practice accepted as

law, and further best practices in applying the requirements of international law. States and

other stakeholders continued to make submissions up until the final session, when the

document was adopted, adding to the materials available to the Working Group.

6. On 1 and 2 September 2014, the Working Group convened a global consultation in

Geneva to bring together experts to elaborate on the scope and content of the right to bring

proceedings before a court and to receive without delay appropriate remedies, and to allow

stakeholders to contribute to the development of the Basic Principles and Guidelines (see

annex). The background paper drew on the thematic report submitted to the Council

(A/HRC/27/47) to set out the substantive and procedural obligations of States to ensure the

meaningful exercise of the right to bring proceedings before a court and current State

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practice in implementing each of the obligations, highlighting several examples of good

practice.

7. The Basic Principles and Guidelines, drawn from international standards and

recognized good practice, are aimed at providing States with guidance on the fundamental

principles on which the laws and procedures regulating the right to bring proceedings

before a court should be based, and on the elements required for its effective exercise.

8. In the present Basic Principles and Guidelines, the terms “everyone”, “anyone” or

“any person” denote every human being without discrimination based on race, colour, sex,

property, birth, age, national, ethnic or social origin, language, religion, economic

condition, political or other opinion, sexual orientation or gender identity, disability or other

status, and any ground that aims at or may result in undermining the enjoyment of human

rights on a basis of equality. It includes, but is not limited to, girls and boys, soldiers,

persons with disabilities, including psychosocial and intellectual disabilities, lesbian, gay,

bisexual, transgender and intersex persons, non-nationals, including migrants regardless of

their migration status, refugees and asylum seekers, internally displaced persons, stateless

persons and trafficked persons and persons at risk of being trafficked, persons accused or

convicted of a crime, persons who have or are suspected to have engaged in the preparation,

commission or instigation of acts of terrorism, drug users, persons with dementia, human

rights defenders and activists, older persons, persons living with HIV/AIDS and other

serious communicable or chronic diseases, indigenous peoples, sex workers and minorities

based on national or ethnic, cultural, religious and linguistic identity.

9. Deprivation of personal liberty is without free consent. For the purposes of the

present Basic Principles and Guidelines, the term “deprivation of liberty” covers the period

from the initial moment of apprehension until arrest, pretrial and post-trial detention

periods. This includes placing individuals in temporary custody in protective detention or in

international or transit zones in stations, ports and airports, house arrest, rehabilitation

through labour, retention in recognized and non-recognized centres for non-nationals,

including migrants regardless of their migration status, refugees and asylum seekers, and

internally displaced persons, gathering centres, hospitals, psychiatric or other medical

facilities or any other facilities where they remain under constant surveillance, given that

may not only amount to restrictions to personal freedom of movement but also constitute

the de facto deprivation of liberty. It also includes detention during armed conflicts and

emergency situations, administrative detention for security reasons, and the detention of

individuals considered civilian internees under international humanitarian law.

10. In the present Basic Principles and Guidelines, deprivation of liberty is regarded as

“arbitrary” in the following cases:

(a) When it is clearly impossible to invoke any legal basis to justify the deprivation

of liberty (such as when a person is kept in detention after the completion of his or her

sentence, or despite an amnesty law applicable to the detainee, or when a person detained as

a prisoner of war, is kept in detention after the cessation of effective hostilities);

(b) When the deprivation of liberty results from the exercise of the rights or

freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of

Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22,

25, 26 and 27 of the International Covenant on Civil and Political Rights;

(c) When the total or partial non-observance of the international norms relating

to the right to a fair trial, established in the Universal Declaration of Human Rights and in

the relevant international instruments accepted by the State concerned, is of such gravity as

to give the deprivation of liberty an arbitrary character;

(d) When asylum seekers, immigrants or refugees are subjected to prolonged

administrative custody without the possibility of administrative or judicial review or

remedy;

(e) When the deprivation of liberty constitutes a violation of international law for

reasons of discrimination based on birth, national, ethnic or social origin, language,

religion, economic condition, political or other opinion, gender, sexual orientation,

disability or other status, and which is aimed at or may result in ignoring the equality of

human rights.

11. In deliberation No. 9 concerning the definition and scope of arbitrary deprivation of

liberty under customary international law (see A/HRC/22/44, paras. 37-75), the Working

Group restated its constant jurisprudence on the prohibition of all forms of arbitrary

deprivation of liberty, and demonstrated that it is general practice accepted as law,

constituting customary international law and a peremptory norm (jus cogens). In its annual

report for 2013 (A/HRC/27/48), the Working Group restated that the prohibition of

arbitrariness in the deprivation of liberty requires a strict review of the lawfulness, necessity

and proportionality of any measure depriving anyone of their liberty; this standard of

review is applicable at all stages of legal proceedings. In the interactive dialogue held at the

twenty-second session of the Council, States gave general support for the conclusions of the

deliberation. The present Basic Principles and Guidelines adopt the criteria laid out by the

International Court of Justice in its judgement of 20 July 2012 concerning Questions

relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal) when confirming

the status of the prohibition of torture as a peremptory norm (jus cogens). The prohibition

of arbitrary detention is supported by the widespread international practice and on the

opinio juris of States. It appears in numerous international instruments of universal

application and has been introduced into the domestic law of almost all States. Lastly,

arbitrary detention is regularly denounced within national and international forums.

12. For the purposes of the present Basic Principles and Guidelines, deprivation of

liberty is regarded as “unlawful” when it is not on such grounds and in accordance with

procedures established by law. It refers to both detention that violates domestic law and

detention that is incompatible with the Universal Declaration of Human Rights, general

principles of international law, customary international law, international humanitarian law,

as well as with the relevant international human rights instruments accepted by the States

concerned. It also includes detention that may have been lawful at its inception but has

become unlawful because the individual has served the entire sentence of imprisonment,

following the expiry of the period for which the person was remanded into custody or

because the circumstances that initially justified the detention have changed.

13. States employ different models to regulate the exercise of the right to bring

proceedings before a court to challenge the arbitrariness and lawfulness of detention and to

obtain appropriate remedies without delay. Although no specific model is endorsed in the

principles and guidelines, States are encouraged to guarantee this right in law and in

practice.

14. The Basic Principles and Guidelines are based on the recognition that States should

take a series of measures to establish and/or to reinforce the procedural safeguards provided

to persons deprived of their liberty.

15. The Working Group recalls the Preamble to the Charter of the United Nations,

which refers to the determination of the peoples of the United Nations “to establish

conditions under which justice and respect for the obligations arising from treaties and

other sources of international law can be maintained”. One of the purposes of the United

Nations is “to maintain international peace and security” and, to that end, “to take effective

collective measures for the prevention and removal of threats to the peace, and for the

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suppression of acts of aggression or other breaches of the peace, and to bring about by

peaceful means, and in conformity with the principles of justice and international law,

adjustment or settlement of international disputes or situations which might lead to a breach

of the peace”. Furthermore, according to Article 2 of the Charter, “all Members shall give

the United Nations every assistance in any action it takes in accordance with the present

Charter”. The Working Group recalls the reaffirmation in numerous Security Council

resolutions, including in resolution 2170 (2014), of the duty of Member States to comply

with all their obligations under international law, in particular international human rights,

refugee and international humanitarian law, underscoring also that effective counter-

terrorism measures and respect for human rights, fundamental freedoms and the rule of law

are complementary and mutually reinforcing.

16. Recognizing that certain groups are more vulnerable when deprived of their liberty,

the Basic Principles and Guidelines provide specific provisions for women and girls,

children, persons with disabilities and non-nationals, including migrants regardless of their

migration status, refugees, asylum seekers and stateless persons.

17. The scope of the Basic Principles and Guidelines is distinct from the right of anyone

arrested or detained on a criminal charge to be brought promptly before a judge or other

judicial authority and tried within a reasonable time or be released.

18. Nothing in the present Basic Principles and Guidelines should be interpreted as

providing a lesser degree of protection than that provided under existing national laws and

regulations and international and regional human rights conventions or covenants

applicable to the liberty and security of person.

Annex

Basic Principles and Guidelines on Remedies and Procedures

on the Right of Persons Deprived of Their Liberty to Bring

Proceedings Before a Court

I. Principles

Principle 1

Right to be free from arbitrary or unlawful deprivation of liberty

1. 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 to

obtain without delay appropriate and accessible remedies.

Principle 2

Responsibilities of the State and others

2. National legal systems at the highest possible level, including, where applicable, in

the Constitution, must guarantee the right to take proceedings before a court to challenge

the arbitrariness and lawfulness of detention and to receive without delay appropriate and

accessible remedies. A comprehensive set of applicable procedures shall be enacted to

ensure that the right is accessible and effective, including the provision of procedural and

reasonable accommodation, for all persons in all situations of deprivation of liberty. The

human and financial resources necessary shall be allocated to the administration of the

justice system. The right to bring such proceedings before a court must also be protected in

private relationships such that the duties apply to international organizations and, under

certain circumstances, to non-State actors.

Principle 3

Scope of application

3. Any individual who is deprived of liberty in any situation by or on behalf of a

governmental authority at any level, including detention by non-State actors that is

authorized by domestic law, has the right to take proceedings before a court in the State’s

jurisdiction to challenge the arbitrariness and lawfulness of his or her deprivation of liberty

and to receive without delay appropriate and accessible remedies. Exerting authority over

any form of detention will constitute the effective control over the detention and make the

detainee subject to the State’s jurisdiction. Involvement in detention will give the State the

duty to ensure the detainee’s right to bring proceedings before a court.

Principle 4

Non-derogability

4. The right to bring proceedings before a court to challenge the arbitrariness and

lawfulness of detention and to obtain without delay appropriate and accessible remedies is

not derogable under international law.

5. The right is not to be suspended, rendered impracticable, restricted or abolished

under any circumstances, even in times of war, armed conflict or public emergency that

threatens the life of the nation and the existence of which is officially proclaimed.

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6. The international law review of measures to accommodate practical constraints in

the application of some procedural elements of the right to bring proceedings will depend

upon the character, intensity, pervasiveness and particular context of the emergency and

upon the corresponding proportionality and reasonableness of the derogation. Such

measures must not, in their adoption, represent any abuse of power nor have the effect of

negating the existence of the right to bring such proceedings before a court.

7. Any such practical measures in the application of the right to bring proceedings

before a court to challenge the detention are permitted only to the extent and for the period

of time strictly required by the exigencies of the situation, provided that such measures are

consistent with the State’s other obligations under international law, including provisions of

international humanitarian law relating to the deprivation of liberty, and are non-

discriminatory.

Principle 5

Non-discrimination

8. 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 seekingor migration status, or disability or any

other status.

Principle 6

The court as reviewing body

9. 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 7

Right to be informed

10. Persons deprived of their liberty shall be informed about their rights and obligations

under law through appropriate and accessible means. Among other procedural safeguards,

this includes the right to be informed, in a language and a means, mode or format that the

detainee understands, of the reasons justifying the deprivation of liberty, the possible

judicial avenue to challenge the arbitrariness and lawfulness of the deprivation of liberty

and the right to bring proceedings before the court and to obtain without delay appropriate

and accessible remedies.

Principle 8

Time frame for bringing proceedings before a court

11. 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 judgement, depending on the circumstances.

The right to claim remedies after release may not be rendered ineffective by any statute of

limitations.

Principle 9

Assistance by legal counsel and access to legal aid

12. Persons deprived of their liberty shall have the right to legal assistance by counsel of

their choice, at any time during their detention, including immediately after the moment of

apprehension. Upon apprehension, all persons shall be promptly informed of this right.

13. Assistance by legal counsel in the proceedings shall be at no cost for a detained

person without adequate means or for the individual bringing proceedings before a court on

the detainee’s behalf. In such cases, effective legal aid shall be provided promptly at all

stages of the deprivation of liberty; this includes, but is not limited to, the detainee’s

unhindered access to legal counsel provided by the legal aid regime.

14. Persons deprived of their liberty shall be accorded adequate time and facilities to

prepare their case, including through disclosure of information in accordance with the

present Basic Principles and Guidelines, and to freely communicate with legal counsel of

their choice.

15. Legal counsel shall be able to carry out their functions effectively and

independently, free from fear of reprisal, interference, intimidation, hindrance or

harassment. Authorities shall respect the privacy and confidentiality of legal counsel-

detainee communications.

Principle 10

Persons able to bring proceedings before a court

16. Procedures shall allow anyone to bring proceedings before a court to challenge the

arbitrariness and lawfulness of the deprivation of liberty and to obtain without delay

appropriate and accessible remedies, including the detainee, his or her legal representative,

family members or other interested parties, whether or not they have proof of the consent of

the detainee.

17. No restrictions may be imposed on the detainee’s ability to contact his or her legal

representative, family members or other interested parties.

Principle 11

Appearance of the detainee before the court

18. 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 12

Equality before the courts

19. The proceedings shall be fair and effective in practice, and the parties to the

proceedings in question shall be ensured the right to equal access to present their full case,

and equality of arms, and be treated without any discrimination before the courts.

20. Every individual deprived of liberty shall be guaranteed the right to have access to

all material related to the detention or presented to the court by State authorities to preserve

the equality of arms. The requirement that the same procedural rights be provided to all

parties is subject only to distinctions that are based on the law and can be justified on

objective, reasonable grounds not entailing actual disadvantage or other unfairness to the

detained person.

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Principle 13

Burden of proof

21. 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

22. 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.

23. 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.

24. 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, it was and remains non-arbitrary and lawful under both

national and international law.

Principle 15

Remedies and reparations

25. Any person arbitrarily or unlawfully detained is guaranteed access to effective

remedies and reparations capable of providing restitution, compensation, rehabilitation,

satisfaction and guarantees of non-repetition. Reparations should be adequate, effective and

prompt. States shall undertake prompt, effective and impartial investigations wherever there

is reasonable ground to believe that detention has been arbitrary. The duty applies in any

territory under a State’s jurisdiction or wherever the State exercises effective control, or

otherwise as the result of its actions or omissions of its servants. The right to reparation

cannot be rendered ineffective by amnesties, immunities, statutes of limitations or other

defence of the State.

26. Where a court determines that the deprivation of liberty is arbitrary or unlawful, it

shall order a conditional or unconditional release from detention. Relevant authorities shall

give immediate effect to any order for release.

Principle 16

Exercise of the right to bring proceedings before a court in situations of armed

conflict, public danger or other emergency threatening the independence or security

of a State

27. All detained persons in a situation of armed conflict as properly characterized under

international humanitarian law, or in other circumstances of public danger or other

emergency that threatens the independence or security of a State, are guaranteed the

exercise of the right to bring proceedings before a court to challenge the arbitrariness and

lawfulness of the deprivation of liberty and to receive without delay appropriate and

accessible remedies. This right and corresponding procedural guarantees complement and

mutually strengthen the rules of international humanitarian law.

28. Domestic legislative frameworks should not allow for any restriction on the

safeguards of persons deprived of their liberty concerning the right to bring proceedings

before a court under counter-terrorism measures, emergency legislation or drug-related

policies.

29. A State that detains a person in a situation of armed conflict as properly

characterized under international humanitarian law, or in other circumstances of public

danger or other emergency that threatens the independence or security of a State, has by

definition that person within its effective control, and thus within its jurisdiction, and shall

therefore guarantee the exercise of the right of the detainee to bring proceedings before a

court to challenge the arbitrariness or lawfulness of the deprivation of liberty and to receive

without delay appropriate and accessible remedies. Reconsideration, appeal or periodic

review of decisions to intern or place in assigned residence alien civilians in the territory of

a party to an international armed conflict, or civilians in an occupied territory, shall comply

with the present Basic Principles and Guidelines, including Basic Principle 6 on the court as

reviewing body.

30. Prisoners of war should be entitled to bring proceedings before a court to challenge

the arbitrariness and lawfulness of the deprivation of liberty and to receive without delay

appropriate and accessible remedies, where the detainee (a) challenges his or her status as a

prisoner of war; (b) claims to be entitled to repatriation or transfer to a neutral State if

seriously injured or ill; or (c) claims not to have been released or repatriated without delay

following the cessation of active hostilities.

31. Administrative detention or internment in the context of a non-international armed

conflict may only be permitted in times of public emergency threatening the life of the

nation and the existence of which is officially proclaimed. Any consequent deviation from

procedural elements of the right to bring proceedings before a court to challenge the

arbitrariness and lawfulness of the deprivation of liberty and to receive without delay

appropriate and accessible remedies must be in conformity with the present Basic

Principles and Guidelines, including on the principles of non-derogability, the right to be

informed and the court as reviewing body, and the guidelines on equality of arms and

burden of proof.

32. During armed conflict, the deprivation of the liberty of children must only be a

measure of last resort and for the shortest period of time. Basic legal safeguards must be

provided in all circumstances, including for children deprived of liberty for their protection

or rehabilitation, particularly if detained by military or security services. Safeguards include

the right to legal assistance and a periodic review of the legality of the deprivation of their

liberty by a court. The child has the right to have the deprivation of liberty acknowledged

by the authorities and to communicate with relatives and friends.

Principle 17

Specific obligations to guarantee access to the right to bring proceedings before a

court

33. 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 to receive without delay appropriate and

accessible 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 persons, 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

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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

34. 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.

35. 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.

36. 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

37. 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 and accessible 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

38. 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 grounds 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.

39. 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.

40. 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. Protection from violence, abuse

and ill-treatment of any kind must be ensured.

41. 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

42. 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 and accessible remedies. It also includes the right of the above-mentioned

persons to legal assistance in accordance with the basic requirement of prompt and effective

provision of legal assistance, in a language that 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.

43. 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 that 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.

44. 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.

45. The deprivation of liberty as a penalty or punitive sanction in the area of

immigration control is prohibited.

46. The deprivation of liberty of an unaccompanied or separated migrant or of an

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 of the rights of the child.

II. Guidelines

Guideline 1

Scope of application

47. 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 is

applicable:

(a) To all situations of deprivation of liberty, including not only to

detention for purposes of criminal proceedings but also to situations of detention

under administrative and other fields of law, including military detention, security

detention, detention under counter-terrorism measures, involuntary confinement in

medical or psychiatric facilities, migration detention, detention for extradition,

arbitrary arrests, house arrest, solitary confinement, detention for vagrancy or drug

addiction, and detention of children for educational purposes;

(b) Irrespective of the place of detention or the legal terminology used in

the legislation. Any form of deprivation of liberty on any ground must be subject to

effective oversight and control by the judiciary.

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Guideline 2

Prescription in national law

48. A strict legality requirement is applicable to both the form of the legal basis and the

procedure for its adoption. The legal framework that establishes the process to challenge

the arbitrariness and lawfulness of detention shall have a sufficient degree of precision, be

drafted in clear and unambiguous language, be realistically accessible and ensure that the

exact meaning of the relevant provisions and the consequences of its application are

foreseeable to a degree reasonable for the circumstances.

49. Any restriction on liberty must be authorized in national legislation. Depending on

the national legal system, restrictions may be based on the Constitution or in the common

law. Legislative acts are to be drafted in accordance with the procedural provisions of the

Constitution.

Guideline 3

Non-derogability

50. In times of public emergency threatening the life of the nation and the existence of

which is officially proclaimed, States may take measures to accommodate practical

constraints in the application of some procedural elements of the right to bring proceedings

before a court to challenge the arbitrariness and lawfulness of detention and to obtain

without delay appropriate and accessible remedies only to the extent strictly required by the

exigencies of the situation, provided that:

(a) The court’s authority to decide without delay on the arbitrariness and

lawfulness of detention, and to order immediate release if the detention is not lawful,

is not itself diminished;

(b) The duty of relevant authorities to give immediate effect to an order for

release is not diminished;

(c) Such measures are prescribed by law, necessary in the exigencies of the

situation (including by virtue of the fact that less restrictive measures would be

insufficient to achieve the same purpose), proportionate and non-discriminatory;

(d) Such measures apply temporarily, only for as long as the exigencies of

the situation require, and are accompanied by mechanisms to review periodically

their continued necessity and proportionality;

(e) Such measures are consistent with ensuring fair, effective and

adversarial proceedings;

(f) Such measures are not otherwise inconsistent with international law.

Guideline 4

Characteristics of the court and procedural guidelines for review of the detention

51. The court reviewing the arbitrariness and lawfulness of the detention must be a

different body from the one that ordered the detention.

52. The competence, independence and impartiality of such a court should not be

undermined by procedures or rules pertaining to the selection and appointment of judges.

53. In undertaking the review of the detention, the court has the authority:

(a) To consider the application as a matter of urgency. Adjudication of the

case, including time for preparation of the hearing, should take place as

expeditiously as possible, and should not be delayed because of insufficiency of

evidence. Delays attributable to the detainee or his or her legal representative do not

count as judicial delay;

(b) To ensure the presence of the detainee regardless of whether he or she

has asked to appear;

(c) To order immediate release if the detention is found to be arbitrary or

unlawful. Any court order of release shall be respected and immediately

implemented by the State authorities;

(d) To render and publicize its decision on the arbitrariness and lawfulness

of the detention without delay and within established deadlines. In addition to being

reasoned and particularized, the court’s decision should be clear, precise, complete

and sufficient, the contents of which should be made understood in a language and a

means, mode or format that the detainee understands. In the event of an unsuccessful

challenge, the court, in its decision, must provide reasons for why the individual

should remain in detention in the light of the principle that liberty should be the rule

and detention the exception. If further restrictions on the liberty of the individual are

under consideration, such consideration shall be dealt with in compliance with the

principles of international law;

(e) To take measures against the State authorities in control of the detention

where the deprivation of liberty is determined to be arbitrary or unlawful and/or the

treatment during the deprivation of liberty was found to be abusive.

54. For certain forms of detention, States may, exceptionally, enact legislation

regulating proceedings before a specialized tribunal. Such a tribunal:

(a) Must be established by law affording all guarantees of competence,

impartiality and the enjoyment of judicial independence in deciding legal matters in

proceedings that are judicial in nature;

(b) May only be considered legitimate and legally valid if reasonable and

objective criteria justify its existence, that is, there exists a special legal condition

and/or vulnerability of the person that requires specific protection by a specialized

tribunal. The right to equality before the law and to equal protection of the law

without any discrimination does not make all differences of treatment discriminatory.

Differentiation based on reasonable and objective criteria does not amount to

prohibited discrimination.

55. Military tribunals are not competent to review the arbitrariness and lawfulness of the

detention of civilians. Military judges and military prosecutors do not meet the fundamental

requirements of independence and impartiality.

Guideline 5

Right to be informed

56. The factual and legal basis for the detention shall be disclosed to the detainee and/or

his or her representative without delay so as to provide adequate time to prepare the

challenge. Disclosure includes a copy of the detention order, access to and a copy of the

case file, in addition to the disclosure of any material in the possession of the authorities or

to which they may gain access relating to the reasons for the deprivation of liberty.

57. In any facility where persons are deprived of their liberty, the detaining authorities

must inform detainees of their entitlement to bring proceedings and to receive a reasoned

and individualized decision without delay, including on how to commence the procedure

and potential consequences of voluntarily waiving those rights.Such information should be

provided in a manner that is gender- and culture-sensitive and corresponds to the needs of

15

specific groups, including illiterate persons, minorities, persons with disabilities, older

persons, indigenous peoples, non-nationals, including migrants regardless of their migration

status, refugees, asylum seekers, stateless persons and children. The information shall be

provided in a language and a means, mode or format that is accessible and that the said

persons understand, taking into account augmentative and alternative means of

communications for persons with a mental or physical impairment. In the case of children,

information must be provided in a manner appropriate to their age and maturity.

58. Means of verification that a person has actually been informed shall be established.

These means may include documentation of the person having been informed by way of

printed record, audiotape, videotape or witnesses.

59. The above-mentioned information should also be widely published and made

accessible to the general public and to geographically isolated groups and groups

marginalized as a result of discriminatory practices. Use should be made of radio and

television programmes, regional and local newspapers, the Internet and other means, in

particular following any changes to the law or specific issues affecting a community.

Guideline 6

Registers and record-keeping

60. To ensure the accuracy and completeness of registers and adequate case

management, and to ensure that State authorities know at all times who is held in their

custody or detention facilities, including prisons and any other place of deprivation of

liberty:

(a) All records must contain the following minimum information,

disaggregated by sex and age of the detainee:

(i) The identity of the person;

(ii) The date, time and place where the person was deprived of liberty, and

the identity of the authority that deprived the person of liberty;

(iii) The authority that ordered the deprivation of liberty and the grounds for

it;

(iv) The authority responsible for supervising the deprivation of liberty;

(v) The place of deprivation of liberty, the date and time of admission to

the place of deprivation of liberty, and the authority responsible for the place

of deprivation of liberty;

(vi) Relevant information on the detainee’s state of health;

(vii) In the event of death of the detainee during the deprivation of liberty,

the circumstances and cause of death and the destination of the remains;

(viii) The date and time of release or transfer to another place of detention,

the destination and the authority responsible for the transfer;

(b) Known procedures must be in place to safeguard against unauthorized

access or modification of any information contained in the register and/or records of

persons deprived of liberty;

(c) The registers and/or records of persons deprived of liberty shall be

made promptly available, upon request, to any judicial or other competent authority

or institution authorized for that purpose by the law;

(d) Known procedures must be in place to release immediately a detainee

upon discovery that he or she is continuing to be detained despite having completed

serving a sentence or detention order;

(e) In the event of non-compliance with such requirements, sanctions

against the State authorities responsible are necessary.

Guideline 7

Time frame for bringing proceedings before a court

61. To ensure that an individual is not be deprived of his or her liberty without being

given an effective opportunity to be heard without delay by a court of law, no substantial

waiting period shall exist before a detainee can bring a first challenge to the arbitrariness

and lawfulness of detention. Authorities shall facilitate the detainee’s right to bring

proceedings before a court and immediate access to legal counsel to prepare the detainee’s

case.

62. Given that circumstances can change and lead to the possibility that a previous legal

justification for a detention is no longer applicable, detainees should have the right to

challenge their detention periodically.

63. After a court has held that the circumstances justify the detention, the individual is

entitled to take proceedings again on similar grounds after an appropriate period of time has

passed, depending on the nature of the relevant circumstances.

64. There shall be no substantial waiting period between each application and no

waiting period in cases of alleged torture or other ill-treatment, or risk of such treatment, or

incommunicado detention, or where the life, health or legal situation of the detainee may be

irreversibly damaged.

65. The initiation of the challenge multiple times does not relieve authorities of the

obligation to ensure the regular, periodic judicial or other review of the necessity and

proportionality of continuing detention, nor exclude the possibility of periodic review by

the court proprio motu.

66. Where a decision upholding the arbitrariness and lawfulness of detention is subject

to appeal in accordance with national legislation, it should be adjudicated upon

expeditiously. Any appeals by the State are to be filed within legally defined limits and

circumstances.

Guideline 8

Assistance by legal counsel and access to legal aid

67. Access shall be provided without delay to legal counsel immediately after the

moment of deprivation of liberty and at the latest prior to any questioning by an authority,

and thereafter throughout the period of detention. This includes providing detainees with

the means to contact legal counsel of their choice.

68. Effective legal aid shall be provided promptly after the time of apprehension in order

to ensure that the unaffordable cost of legal counsel does not present a barrier to individuals

deprived of their liberty, or his or her representative, without adequate means to bring

proceedings before a court.

69. Respect for the confidentiality of communications, including meetings,

correspondence, telephone calls and other forms of communications, with legal counsel are

to be ensured. Such communications may be held in the sight of officials provided that they

are conducted out of their hearing. In the event that confidentiality is broken, any

information obtained shall be considered inadmissible as evidence.

17

70. Access to legal counsel should not be unlawfully or unreasonably restricted. If

access to legal counsel is delayed or denied, or detained persons are not adequately

informed of their right to assistance by legal counsel in a timely manner, a range of

remedies shall be available in accordance with the present Basic Principles and Guidelines.

71. Where the services of legal counsel are not available, every effort shall be made to

ensure that services available from suitably qualified legal assistance providers are

accessible to detainees under conditions that guarantee the full respect of the rights of

detainees as set out in international law and standards.

Guideline 9

Persons able to bring proceedings before a court

72. A wider group of individuals with a legitimate interest in the case may bring

proceedings before a court, including family members, caregivers or legal guardian of the

detainee, State authorities independent of the detaining authority, the ombudsman or

national human rights institution, non-governmental organizations, the employer or co-

workers.

73. When proceedings are initiated by a person other than the detainee, the court shall

make every effort to discover the detained person’s will and preferences, and accommodate

and support the detained person in participating effectively on his or her own behalf.

74. An informal, cost-free and simplified process to bring such proceedings before a

court shall be ensured.

Guideline 10

Appearance before the court

75. To ensure the effectiveness and fairness of proceedings and to strengthen the

protection of detainees from other violations, such as torture or other ill-treatment, a court

should guarantee the physical presence of the detainee before it, in particular 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.

This shall be ensured through implementation of the following measures:

(a) Any person deprived of his or her liberty, and not only persons charged

with a criminal offence, shall enjoy the right to appear promptly before a court in

order to challenge the deprivation of liberty and the conditions of detention,

including acts of torture and ill-treatment;

(b) The court shall ensure that the detainee may communicate with the

judge without the presence of any official involved in his or her deprivation of

liberty;

(c) State authorities having control over the detainee who fail in their

obligation to produce without unreasonable delay the detained person before the

court, on demand of that person or by court order, should be sanctioned as a matter

of criminal and administrative law.

Guideline 11

Equality of arms

76. To ensure that the procedure is guided by the adversarial principle and equality of

arms, the following conditions shall be guaranteed in all proceedings, whether of a criminal

or non-criminal nature:

(a) Full and complete access by detainees and their legal counsel to the

material related to the detention or presented to the court , as well as a complete copy

of them;

(b) The ability of detainees to challenge any documents relating to their

case file, including all the arguments and material elements adduced by the

authorities, including the prosecution, the security apparatus and the immigration

authorities, to justify the detention, which may be determinative in establishing the

arbitrariness and lawfulness of his or her detention.

Guideline 12

Admissibility of evidence obtained by torture or other prohibited treatment

77. Any statement established to have been made or any other evidence obtained as a

result of torture or other cruel, inhuman or degrading treatment shall not be invoked as

evidence in any proceedings, except against a person accused of torture or other prohibited

treatment as evidence that the statement was made or that other such acts took place.

Guideline 13

Disclosure of information

78. The detaining authority shall provide all relevant information to the judge, the

detainee and/or his or her lawyer. Disclosure is to include exculpatory information, which

includes not only information that establishes an accused person’s innocence but also other

information that could assist the detainee, for example, in arguing that his or her detention

is not lawful or that the reasons for his or her detention no longer apply.

79. Sanctions, including criminal penalties, shall be imposed on officials who withhold

or refuse to disclose information relevant to the proceedings or who otherwise delay or

obstruct proceedings.

80. The disclosure of information may be restricted only if the court concludes that:

(a) A restriction on disclosure is demonstrated to be necessary to pursue a

legitimate aim, such as protecting national security, respecting the rights or

reputation of another individual or protecting public order, health or morals, as long

as such restrictions are non-discriminatory and consistent with relevant standards of

international law;

(b) It has been demonstrated that less restrictive measures would be unable

to achieve the same result, such as providing redacted summaries of information that

clearly point to the factual basis for the detention.

81. Any proposed restriction on the disclosure of information is to be proportionate. An

assessment of proportionality requires a balance between how well the non-disclosure

protects the legitimate aims being pursued and the negative impact that this will have on the

ability of the person to respond to the case or to pursue a challenge to the arbitrariness and

lawfulness of detention. If a less restrictive measure is able to achieve the legitimate aim,

the more restrictive measure is to be refused.

82. If the authorities refuse to make the disclosure and the court does not have the

authority to compel such a disclosure, the court must order the release of the person

detained.

Guideline 14

Burden of proof

83. The State authorities shall establish before the court that:

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(a) The legal basis for the detention in question is in conformity with

international standards;

(b) The detention is justified in accordance with the principles of necessity,

reasonableness and proportionality;

(c) Other less intrusive means of achieving the same objectives have been

considered in the individual case.

84. The burden of proof must be met in a manner that is known in detail to the detainee,

complete with supporting evidence, including those who are defendants in security-related

cases.

Guideline 15

Standard of review

85. When reviewing the arbitrariness and lawfulness of the detention, the court is

empowered:

(a) To examine and act on the elements of inappropriateness, injustice,

lawfulness, legality, predictability, and due process of law, and on basic principles of

reasonableness, proportionality and necessity. Such an examination will take into

account details such as age, gender and marginalized groups;

(b) To consider whether the detention remains justified or whether release

is warranted in the light of all the changing circumstances of the detained

individual’s case, including health, family life, protection claims or other attempts to

regularize one’s status;

(c) To consider and make a pronouncement on whether alternatives to

detention have been considered, including non-custodial alternatives to detention in

accordance with the United Nations Standard Minimum Rules for Non-custodial

Measures (the Tokyo Rules) and the United Nations Rules on the Treatment of

Women Prisoners and Non-custodial Measures for Women Offenders (the Bangkok

Rules);

(d) To take into account any orders of detention made subsequent to the

commencement of court proceedings and prior to the rendering of the court’s

decision.

86. When assessing whether the measures taken are in compliance with international

standards, the prohibition of particular grounds of detention or forms of detention are to be

complied with, and the needs of specific persons affected and any vulnerability are to be

taken into consideration, given that the arbitrariness and unlawfulness of detention may

include the unsuitability of detention for the persons in question.

Guideline 16

Remedies and reparations

87. Judicial orders of release must be executed as soon as they become operative, as

continued detention would be considered arbitrary.

88. A copy of the decision finding the detention arbitrary or unlawful is to be

transmitted to the person concerned, with notification of the procedures for obtaining

reparations. The person has the right to full compensation for material harm, elimination of

the consequences of material harm and restoration of all rights that were either denied or

infringed.

89. In the event of a detainee’s death, the right to compensation in accordance with

established procedures falls to the detainee’s heirs.

90. The enforceable right to receive compensation for anyone determined to have been

arbitrarily or unlawfully detained and for any harm suffered by the person as a result of

unlawful deprivation of liberty, irrespective of whether the detaining authorities were

responsible for such harm, shall be regulated by comprehensive legislation. Compensation

shall also be made available to persons subjected to criminal charges that were

subsequently dropped.

91. Compensation out of the public treasury of the State, federal entity or municipality

for material damage suffered by a victim of arbitrary of unlawful detention may include

earnings, pensions, social benefits and other monies lost as a result of the criminal

prosecution; any property of the victim that was seized or otherwise appropriated by the

State on the basis of a conviction or court ruling; compensation for lack of health care,

rehabilitation, and accessible and reasonable accommodation in the place of detention; fines

and trial costs borne by the victim as a result of the enforcement of the conviction; the

victim’s legal costs; and other costs.

92. Victims of arbitrary or unlawful detention shall, in accordance with the Basic

Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross

Violations of International Human Rights Law and Serious Violations of International

Humanitarian Law, also have an enforceable right before the competent domestic authority

to prompt and adequate:

(a) Restitution;

(b) Rehabilitation;

(c) Satisfaction;

(d) Guarantees of non-repetition.

Guideline 17

Exercise of the right to bring proceedings before a court in situations of armed

conflict, public danger or other emergency threatening the independence or security

of a State

93. Where persons who have or are suspected to have engaged in the preparation,

commission or instigation of acts of terrorism are deprived of their liberty:

(a) They shall be immediately informed of the charges against them, and be

brought before a competent and independent judicial authority as soon as possible,

within a reasonable period of time;

(b) They shall enjoy the effective right to judicial determination of the

arbitrariness and lawfulness of their detention;

(c) The exercise of the right to judicial oversight of their detention shall

not impede the obligation of the law enforcement authority responsible for the

decision to detain or to maintain the detention to present suspects before a competent

and independent judicial authority within a reasonable period of time. Such persons

shall be brought before the judicial authority, which will then evaluate the

accusations, the basis of the deprivation of liberty and the continuation of the

judicial process;

(d) In the proceedings against them, suspects shall have a right to enjoy the

necessary guarantees of a fair trial, access to legal counsel and the ability to present

21

exculpatory evidence and arguments under the same conditions as the prosecution,

all of which should take place in an adversarial process.

94. Where civilians are detained in relation to an international armed conflict, the

following conditions are to be ensured:

(a) Reconsideration of a decision to intern or to place in assigned residence

alien civilians in the territory of a party to an international armed conflict , or

civilians in an occupied territory, or appeal in the case of internment or assigned

residence, must be undertaken “as soon as possible” or “with the least possible

delay”. While the meaning of these expressions must be determined on a case -by-

case basis, any delay in bringing a person before the court or administrative board

must not exceed a few days and must be proportional in the particular context;

(b) Although the particular procedures for reconsideration or appeal are to

be determined by the detaining or occupying Power, such proceedings must always

be undertaken by a court or administrative board that offers the necessary guarantees

of independence and impartiality, and the processes of which include and respect

fundamental procedural safeguards;

(c) Where decisions to intern or to place a civilian in assigned residence

are maintained in accordance with the latter proceedings, internment or residential

assignment must be periodically reviewed, at least twice a year. Such a review is to

be undertaken by a court or administrative board that offers the necessary guarantees

of independence and impartiality, and the processes of which include and respect

fundamental procedural safeguards;

95. The right of persons detained as prisoners of war to bring proceedings before court

without to delay to challenge the arbitrariness and lawfulness of their detention and to

receive appropriate and accessible remedy is to be respected, in order to:

(a) Determine whether a person falls within the category of prisoner of

war;

(b) Act as a check to ensure that a seriously injured or ill prisoner of war is

repatriated or transferred to a neutral State;

(c) Act as a check to ensure that prisoners of war are released and

repatriated without delay after the cessation of active hostilities.

96. With regard to detention in relation to a non-international armed conflict:

(a) Administrative detention or internment may only be permitted in the

exceptional circumstance where a public emergency is invoked to justify such

detention. In such a case, the detaining State must show that:

(i) The emergency has risen to a level justifying derogation;

(ii) Administrative detention is required on the basis of the grounds and

procedures prescribed by law of the State in which the detention occurs and is

consistent with international law;

(iii) The administrative detention of the person is necessary, proportionate

and non-discriminatory, and the threat posed by that individual cannot be

addressed by alternative measures short of administrative detention;

(b) A person subject to administrative detention has the right to bring

proceedings before a court that offers the necessary guarantees of independence and

impartiality, and the processes of which include and respect fundamental procedural

safeguards, including disclosure of the reasons for the detention and the right to

defend oneself, including by means of legal counsel;

(c) Where a decision to detain a person subject to administrative detention

is maintained, the necessity of the detention must be periodically reviewed by a court

or administrative board that offers the necessary guarantees of independence and

impartiality, and the processes of which include and respect fundamental procedural

safeguards;

(d) Where an internment regime is established, it shall be consistent with

international human rights law and international humanitarian law applicable to non -

international armed conflict to allow full compliance with the right to bring

proceedings before a court.

Guideline 18

Specific measures for children

97. Diversion and alternative measures to the deprivation of liberty, where appropriate,

are to be used and given priority. The right to legal and other appropriate assistance is to be

ensured so that deprivation of liberty is a measure of last resort and only applied for the

shortest appropriate period of time.

98. A safe, child-sensitive environment should be established for children deprived of

their liberty. Detained children should be treated with dignity and respect, and in a manner

that takes into account any element leading to vulnerability, in particular with regard to

girls, younger children, children with disabilities, non-nationals, including migrants

regardless of their migration status, refugees and asylum-seeking children, stateless

children, trafficked children or children at risk of being trafficked, children from minority,

ethnic or indigenous groups and lesbian, gay, bisexual, transgender or intersex children.

99. Effective mechanisms shall be in place to verify the age of persons deprived of their

liberty. Assessments are to be conducted in a scientific, safe, child- and gender-sensitive

and fair manner, avoiding any risk of violation of the physical and psychological integrity

of the child, and giving due respect to human dignity. Prior to the outcome of an

assessment, individuals should be accorded the benefit of the doubt such that they are

treated as a child. In the event of remaining uncertainty following the outcome of an

assessment such that there is a possibility that the individual is a child, she or he should be

treated as a child.

100. To ensure that children have prompt and effective access to an independent and

child-sensitive process to bring proceedings before a court to challenge the arbitrariness and

lawfulness of their detention and to receive without delay appropriate and accessible

remedies, the following specific measures shall be enacted:

(a) All legislation, policies and practices related to children deprived of

liberty and their right to bring proceedings before a court are guided by the right of

the child to have his or her best interests taken as a primary consideration;

(b) Legal or other appropriate assistance, including interpretation, is

provided to children deprived of liberty free of charge in all proceedings;

(c) Children who are deprived of their liberty for any reason are able to

contact their parents or guardians immediately and are able to consult freely and in

full confidentiality with them. It is prohibited to interview such a child in the

absence of his or her legal counsel, and parent or guardian, when available;

(d) Information on rights is to be provided in a manner appropriate for the

child’s age and maturity, in a language and a means, mode or format that the child

23

can understand and in a manner that is gender- and culture-sensitive. The said

information should in addition be provided to parents, guardians or caregivers of the

child;

(e) Any child deprived of his or her liberty has the right to bring a

complaint in his or her own name or, if it is in his or her best interests, through a

representative or an appropriate body. Children are to be allowed to be heard either

directly or through a representative or an appropriate body in any proceedings.

Wherever possible, children should have the opportunity to be heard directly. If

children choose to be heard through a representative, steps are to be taken to ensure

that their views are transmitted correctly to the competent body and that the

representative is aware that he or she represents exclusively the interests of the child;

(f) National laws should stipulate measures aimed at the prevention of ill -

treatment or intimidation of a child who brings or has brought such a complaint, and

should provide for sanctions against persons in violation of such laws;

(g) The child has the right to have the matter determined in the presence of

his or her parents or legal guardian, unless such an arrangement is not considered to

be in the best interests of the child. In cases of conflict of interest, courts and

relevant complaint mechanisms should be empowered to exclude parents and/or legal

representatives from proceedings and to appoint an ad hoc legal guardian to

represent a child’s interests;

(h) Each case from the outset is to be handled expeditiously, without any

unnecessary delay. Decisions are to be rendered as soon as possible, and no later

than two weeks after a challenge has been made;

(i) The privacy and personal data of a child who is or who has been

involved in judicial or non-judicial proceedings and other interventions should be

protected at all stages, and such protection should be guaranteed by law. This

generally implies that no information or personal data may be made available or

published by the competent authorities that could reveal or indirectly enable the

disclosure of the child’s identity, including images of the child, detailed descriptions

of the child or the child’s family, names or addresses of the child’s family members

and audio and video records.

Guideline 19

Specific measures for women and girls

101. Applicable and appropriate measures shall be taken to provide accessibility and

reasonable accommodation ensuring the right of all women and girls to equal and fair

access of 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.

These measures include:

(a) Introducing an active policy of incorporating a gender equality

perspective into all policies, laws, procedures, programmes and practices that are

designed to protect the rights and specific status and distinct needs of women and

girls who are subject to the deprivation of their liberty;

(b) Taking active steps to ensure that, where possible, persons who possess

education, training, skills and experience in the gender-specific needs and rights of

women are available to provide legal aid, advice and court support services in all

legal proceedings to female detainees.

102. The practice of keeping girls and women in detention for the purpose of protecting

them from risks of serious violence (protective custody) should be eliminated. Alternative

measures are to ensure the protection of women and girls without jeopardizing their liberty.

Guideline 20

Specific measures for persons with disabilities

103. The involuntary committal or internment of persons on the grounds of the existence

of an impairment or perceived impairment, particularly on the basis of psychosocial or

intellectual disability or perceived psychosocial or intellectual disability, is prohibited.

States shall take all necessary legislative, administrative and judicial measures to prevent

and remedy involuntary committals or internments based on disability.

104. Where a person with a disability is deprived of his or her liberty through any

process, that person is, on an equal basis with others, entitled to guarantees in accordance

with international human rights law, necessarily including the right to liberty and security

of person, reasonable accommodation and humane treatment in accordance with the

objectives and principles of the highest standards of international law pertaining to the

rights of persons with disabilities.

105. A mechanism complete with due process of law guarantees shall be established to

review cases of placement in any situation of deprivation of liberty without specific, free

and informed consent. Such reviews are to include the possibility of appeal.

106. Measures shall be taken to ensure accessibility and the provision of reasonable

accommodation to persons with disabilities in their place of deprivation of liberty,

including the following guarantees:

(a) Persons with a physical, mental, psychosocial, intellectual or sensory

disability deprived of their liberty are to be treated with humanity and respect, and in

a manner that takes into account their needs by the provision of reasonable

accommodation in order to facilitate their effective procedural performance;

(b) All health and support services, including all mental health -care

services, are to be provided based on the free and informed consent of the person

concerned. The denial of legal capacity of persons with disabilities and detention in

institutions against their will, without their consent or with the consent of a

substituted decision-maker constitutes arbitrary deprivation of liberty in violation of

international law. Perceived or actual deficits in mental capacity, namely, the

decision-making skills of a person that naturally vary from one to another, may not

be used as justification for denying legal capacity, understood as the ability to hold

rights and duties (legal standing) and to exercise those rights and duties (legal

agency);

(c) Persons with disabilities are to have access to, on an equal basis with

other persons subject to detention, the physical environment, information and

communications, and other facilities provided by the detaining authority.

Accordingly, all relevant measures are to be taken, including the identification and

removal of obstacles and barriers to access so that persons with disabilities who are

deprived of their liberty may live independently and participate fully in all aspec ts of

daily life in their place of deprivation of liberty;

(d) Accessibility should also take into account the gender and age of

persons with disabilities, and equal access should be provided regardless of the type

of impairment, legal status, social condition, gender and age of the detainee;

(e) Persons with disabilities shall be provided with legal or other

appropriate support, including interpretation and peer support mechanisms , so that

25

individuals receiving services in mental health facilities or residential facilities of

any kind may be informed about their rights and remedies under domestic and

international law, including those contained in the present Basic Principles and

Guidelines, and organizations may act on behalf of those detained against the ir will.

107. The following measures shall be taken to ensure procedural accommodation and the

provision of accessibility and reasonable accommodation for the exercise of the substantive

rights of access to justice and equal recognition before the law:

(a) Persons with disabilities shall be informed about, and provided access

to, promptly and as required, appropriate support to exercise their legal capacity with

respect to proceedings related to the detention and in the detention setting itself.

Support in the exercise of legal capacity is to respect the rights, will and preferences

of persons with disabilities and should never amount to substituted decision -making;

(b) Persons with psychosocial disabilities are to be given the opportunity to

stand trial promptly, with support and accommodations as may be needed, rather

than declaring such persons incompetent;

(c) Persons with disabilities are to have access, on an equal basis with other

persons subject to detention, to buildings in which law enforcement agencies and the

judiciary are located. Jurisdictional entities must ensure that their services include

information and communication that is accessible to persons with disabilities.

Appropriate measures shall be taken to provide signage in Braille and in easy to read

and understand forms of live assistance and intermediaries, including guides, readers

and professional sign language interpreters, to facilitate accessibility to

communication in the facilities of jurisdictional entities;

(d) Individuals who are currently detained in a psychiatric hospital or

similar institution and/or subjected to forced treatment, or who may be so detained or

forcibly treated in the future, must be informed about ways in which they may

effectively and promptly secure their release, including injunctive relief;

(e) Injunctive relief should consist in an order requiring the facility to

release the person immediately and/or to cease immediately any forced treatment and

anysystemic measures, such as those requiring mental health facilities to unlock their

doors and to inform persons of their right to leave, and establishing a public

authority to provide for access to housing, means of subsistence and other forms of

economic and social support in order to facilitate de-institutionalization and the right

to live independently and be included in the community. Such assistance

programmes should not be centred on the provision of mental health services or

treatment, but free or affordable community-based services, including alternatives

that are free from medical diagnosis and interventions. Access to medications and

assistance in withdrawing from medications should be made available for those who

so decide;

(f) Persons with disabilities are provided with compensation, as well as

other forms of reparations, in the case of arbitrary or unlawful deprivation of liberty.

The said compensation is also to take into account the damage caused by lack of

accessibility, denial of reasonable accommodation or lack of health care and

rehabilitation that have affected persons with a disability deprived of liberty.

Guideline 21

Specific measures for non-nationals, including migrants regardless of their migration

status, asylum seekers, refugees and stateless persons

108. Any restrictions on the liberty of non-nationals, including migrants regardless of

their migration status, asylum seekers, refugees and stateless persons, is to be a measure of

last resort, necessary and proportionate, and imposed only where less restrictive alternatives

have been considered and been found to be inadequate to meet legitimate purposes.

109. All individuals who find themselves in the territory or subject to the State’s

jurisdiction shall be guaranteed effective and free access to the courts of law. This includes

the right:

(a) To be informed orally and in writing of the reasons for detention, and

on the rights of persons in detention, including the right to challenge the arbitrariness

and lawfulness of detention, in a language, means, mode or format that the person

detained understands. This may require the provision of information through

qualified interpreters and translators at no cost to the detainee and the publicizing of

information, including through posters and television monitors in places of

detention;

(b) To bring proceedings, either personally or through a representative,

before a court to challenge the necessity, proportionality, arbitrariness and lawfulness

of detention and to receive without delay appropriate and accessible remedies;

(c) To contact, and be contacted by, any interested parties that might be

able to address their needs and to provide them with relevant information or legal

assistance, including providing facilities to meet with such persons. This is

particularly important where migrant detention facilities are located in remote

locations far from population centres. In such situations, mobile courts and video

conferencing may be used to gain accessibility to a court of law but do not preclude

the right of a detained person to appear in person before a judge.

110. The monitoring of all places of immigration detention and public reporting by

relevant United Nations agencies, regional and international human rights mechanisms,

national human rights institutions, non-governmental organizations and consular officials

(conditional upon request by persons in immigration detention) shall be permitted to ensure

that the exercise of the right to bring proceedings before court to challenge the lawfulness

and arbitrariness of detention and to receive appropriate remedies is accessible and

effective.

111. Decisions regarding the detention of non-nationals are to take into account also the

effect of the detention on the physical and mental health of the said persons. When physical

and mental security cannot be guaranteed in detention, authorities should provide

alternatives to detention.

112. All decisions and actions taken in relation to non-nationals below the age of 18,

whether accompanied or unaccompanied, shall be guided by the right of the child to have

his or her best interests taken as a primary consideration, and shall accord with the specific

protections afforded to children in the present Basic Principles and Guidelines.

113. National legislative frameworks and migration policies shall reflect that the

detention of children because of their or their parent’s migration status always constitutes a

violation of the rights of the child, and contravenes the right of the child to have his or her

best interests taken as a primary consideration.

114. Unaccompanied children who are non-nationals shall be informed about their legal

status to ensure that they fully understand their situation. Public defence services and/or

27

guardians made available to children are to be adequately trained to work with children,

particularly taking into account the extreme vulnerability and need for care, and are to

speak a language they understand. Children who are non-nationals should not be placed in

detention centres or shelters for migrants, but in non-custodial community-based

alternatives to detention, where they may receive all services necessary for their protection,

such as adequate nutrition, access to quality education and leisure, care, physical and

psychological medical care and security. Special attention should be given to family

reunification.

115. In the case of migrants in an irregular situation, the scope of the judicial review

should not be confined to a formal assessment of the migrant’s current migration status, but

also include the possibility of release if detention is determined to be unnecessary,

disproportionate, unlawful or arbitrary.

116. In the case of asylum seekers, the scope of judicial review should recognize that

there is a right to seek asylum under international law and that, given that it is neither an

unlawful nor a criminal act, it cannot be invoked as grounds for their detention. Asylum

seekers and refugees are to be protected from penalization for their illegal entry or stay in

accordance with international refugee law, including through the use of detention.

Guideline 22

Implementation measures

117. Legislative, administrative, judicial and other measures, including through the

development of common law principles, shall be adopted to give effect to the present Basic

Principles and Guidelines to ensure that the rights and obligations contained in them are

always guaranteed in law and practice, including in the event of a public emergency

threatening the life of the nation and the existence of which has been officially proclaimed.

118. The above-mentioned measures shall include a review of existing legislative,

administrative and other provisions to assess compatibility with the present Basic Principles

and Guidelines. The country visits of the Working Group on Arbitrary Detention present an

opportunity to engage in direct dialogue with the Government of the State in question and

with representatives of civil society with the aim ofassisting in the implementation of the

principles and guidelines.

119. For the proper implementation of these guarantees, States are encouraged to promote

appropriate training for those working in the field of the administration of justice, including

police and prison staff. This measure also includes providing training to judges, tribunal

and legal officers on how to apply customary international law and rules from the

International Convention on Civil and Political Rights, as well as relevant international

standards. The Working Group on Arbitrary Detention stands ready to assist in fulfilling

this duty of States.

120. Legislation shall be enacted to consider a crime any act or omission that impedes or

restricts the right of anyone deprived of his or her liberty to bring proceedings before a

court to challenge the arbitrariness and lawfulness of detention and to receive without delay

appropriate and accessible remedies.

121. Violations of the rights enshrined in the present Basic Principles and Guidelines

shall be investigated, prosecuted and punished.

122. The present Basic Principles and Guidelines shall be widely disseminated, including

to justice sector actors, the community and to national human rights institutions, national

preventative mechanisms, statutory oversight authorities and other institutions or

organizations with a mandate to provide accountability, oversight or inspections to places

of deprivation of liberty. Accessible formats for the mentioned dissemination must also be

considered. The Office of the High Commissioner is respectfully requested to further the

dissemination of the Basic Principles and Guidelines.