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(;
Medieval Latin Medieval Latin was the form of Latin used in Roman Catholic Western Europe during the Middle Ages. In this region it served as the primary written language, though local languages were also written to varying degrees. Latin functioned as the mai ...
meaning a Court, command] that you have the body f the detainee brought before is a Legal recourse, recourse in law through which a person can report an Arbitrary arrest and detention, unlawful detention or imprisonment to a court and request that the court order the custodian of the person, usually a prison official, to bring the prisoner to court, to determine whether the detention is lawful. The
writ In common law, a writ (Anglo-Saxon ''gewrit'', Latin ''breve'') is a formal written order issued by a body with administrative or judicial jurisdiction; in modern usage, this body is generally a court. Warrants, prerogative writs, and subpoenas ar ...
of ''habeas corpus'' is known as the "great and efficacious writ in all manner of illegal confinement". It is a summons with the force of a
court order A court order is an official proclamation by a judge (or panel of judges) that defines the legal relationships between the parties to a hearing, a trial, an appeal or other court proceedings. Such ruling requires or authorizes the carrying out of ...
; it is addressed to the custodian (a prison official, for example) and demands that a prisoner be brought before the court, and that the custodian present proof of authority, allowing the court to determine whether the custodian has lawful authority to detain the prisoner. If the custodian is acting beyond their authority, then the prisoner must be released. Any prisoner, or another person acting on their behalf, may petition the court, or a judge, for a writ of ''habeas corpus''. One reason for the writ to be sought by a person other than the prisoner is that the detainee might be held
incommunicado Incommunicado, from the Spanish incomunicado, means "cut off from contact", "impossible to reach". It may also refer to: *''Incommunicado'', an album by Alex Smoke *"Incommunicado" (song), a 1987 single by Marillion *Solitary confinement, one o ...
. Most civil law jurisdictions provide a similar remedy for those unlawfully detained, but this is not always called ''habeas corpus''. For example, in some Spanish-speaking nations, the equivalent remedy for unlawful imprisonment is the ''
amparo de libertad In most legal systems of the Spanish-speaking world, the writ of ''amparo'' (also called ''recurso de amparo'' or ''juicio de amparo'') is a remedy for the protection of constitutional rights, found in certain jurisdictions. The ''amparo'' remedy or ...
'' ("protection of freedom"). ''Habeas corpus'' has certain limitations. Though a writ of right, it is not a writ of course. It is technically only a procedural
remedy Remedy, Remedies, The Remedy or Remediation may refer to: Computing and gaming * Remedy Corp, an American software company * Remedy Entertainment, a Finnish video game developer Law, politics, and society * Environmental remediation, the removal ...
; it is a guarantee against any detention that is forbidden by law, but it does not necessarily protect other rights, such as the entitlement to a fair trial. So if an imposition such as internment without trial is permitted by the law, then ''habeas corpus'' may not be a useful remedy. In some countries, the writ has been temporarily or permanently suspended under the pretext of a war or
state of emergency A state of emergency or emergency powers is a situation in which a government is empowered to be able to put through policies that it would normally not be permitted to do, for the safety and protection of their citizens. A government can decla ...
, for example by
Abraham Lincoln Abraham Lincoln (; February 12, 1809 – April 15, 1865) was an American statesman and lawyer who served as the 16th president of the United States from 1861 until his assassination in 1865. Lincoln led the nation through the American Civil ...
during the American Civil War. The right to petition for a writ of ''habeas corpus'' has nonetheless long been celebrated as the most efficient safeguard of the liberty of the subject. The jurist
Albert Venn Dicey Albert Venn Dicey (1835–1922), usually cited as A. V. Dicey, was a British Whig jurist and constitutional theorist. He is most widely known as the author of ''Introduction to the Study of the Law of the Constitution'' (1885). The principles ...

Albert Venn Dicey
wrote that the British Habeas Corpus Acts "declare no principle and define no rights, but they are for practical purposes worth a hundred constitutional articles guaranteeing individual liberty". The writ of ''habeas corpus'' is one of what are called the "extraordinary", "
common law#REDIRECT common law#REDIRECT common law {{Redirect category shell, 1= {{R from other capitalisation ...
{{Redirect category shell, 1= {{R from other capitalisation ...
", or "
prerogative writ A prerogative writ is a writ (official order) directing the behavior of another arm of government, such as an agency, official, or other court. It was originally available only to the Crown under English law, and reflected the discretionary prero ...
s", which were historically issued by the
English courts The Courts of England and Wales, supported administratively by Her Majesty's Courts and Tribunals Service, are the civil and criminal courts responsible for the administration of justice in England and Wales. The United Kingdom does not have a sin ...
in the name of the monarch to control inferior courts and public authorities within the kingdom. The most common of the other such prerogative writs are ''
quo warranto In British and American common law, ''quo warranto'' (Medieval Latin for "by what warrant?") is a prerogative writ requiring the person to whom it is directed to show what authority they have for exercising some right, power, or franchise they c ...
'', ''
prohibito A writ of prohibition is a writ directing a subordinate to stop doing something the law prohibits. This writ is often issued by a superior court to the lower court directing it not to proceed with a case which does not fall under its jurisdiction ...
'', ''
mandamus (; ) is a judicial remedy in the form of an order from a court to any government, subordinate court, corporation, or public authority, to do (or forbear from doing) some specific act which that body is obliged under law to do (or refrain from ...
'', ''
procedendo In common-law jurisprudence, ''procedendo'' is one of the prerogative writs. It is a writ that sends a case from an appellate court to a lower court with an order to proceed to judgment. {{quote, The writ of procedendo is merely an order from a cou ...
'', and ''
certiorari In law, ''certiorari'' is a court process to seek judicial review of a decision of a lower court or government agency. ''Certiorari'' comes from the name of an English prerogative writ, issued by a superior court to direct that the record of th ...
''. The due process for such petitions is not simply civil or criminal, because they incorporate the presumption of non-authority. The official who is the respondent must prove their authority to do or not do something. Failing this, the court must decide for the
petitioner{{Unreferenced, date=December 2009 A petitioner is a person who pleads with governmental institution for a legal remedy or a redress of grievances, through use of a petition. In the courts The petitioner may seek a legal remedy if the state or anothe ...
, who may be any person, not just an interested party. This differs from a motion in a civil process in which the
movant In United States law, a motion is a procedural device to bring a limited, contested issue before a court for decision. It is a request to the judge (or judges) to make a decision about the case. Motions may be made at any point in administrative, c ...
must have standing, and bears the burden of proof.


Etymology

The phrase is from the Latin ''habeās'', 2nd person singular present
subjunctive The subjunctive is a grammatical mood, a feature of the utterance that indicates the speaker's attitude toward it. Subjunctive forms of verbs are typically used to express various states of unreality such as: wish, emotion, possibility, judgment, op ...
active of ''habēre'', "to have", "to hold"; and ''corpus'', accusative singular of ''corpus'', "body". In reference to more than one person, the phrase is ''habeas corpora''. Literally, the phrase means " e commandthat you should have the etainee'sbody rought to court. The complete phrase ''habeas corpus oram nobisad subjiciendum'' means "that you have the person efore usfor the purpose of subjecting (the case to examination)". These are words of writs included in a 14th-century Anglo-French document requiring a person to be brought before a court or judge, especially to determine if that person is being legally detained.


Examples

;United Kingdom of Great Britain and Ireland: ;United States of America:


Similarly named writs

The full name of the writ is often used to distinguish it from similar ancient writs, also named ''habeas corpus''. These include: * ''Habeas corpus ad deliberandum et recipiendum'': a writ for bringing an accused from a different county into a court in the place where a crime had been committed for purposes of trial, or more literally to return holding the body for purposes of "deliberation and receipt" of a decision. ("
Extradition Extradition is an action wherein one jurisdiction delivers a person accused or convicted of committing a crime in another jurisdiction, over to the other's law enforcement. It is a cooperative law enforcement procedure between the two jurisdiction ...
") * ''Habeas corpus ad faciendum et recipiendum'' (also called ''habeas corpus cum causa''): a writ of a superior court to a custodian to return with the body being held by the order of a lower court "with reasons", for the purpose of "receiving" the decision of the superior court and of "doing" what it ordered. * ''Habeas corpus ad prosequendum'': a writ ordering return with a prisoner for the purpose of "prosecuting" him before the court. * ''Habeas corpus ad respondendum'': a writ ordering return to allow the prisoner to "answer" to new proceedings before the court. * ''Habeas corpus ad testificandum'': a writ ordering return with the body of a prisoner for the purposes of "testifying".


Origins in England

''Habeas corpus'' originally stems from the
Assize of Clarendon The Assize of Clarendon was an act of Henry II of England in 1166 that began a transformation of English law and led to trial by jury in common law countries worldwide, and that established assize courts. Prior systems for deciding the winning pa ...
, a re-issuance of rights during the reign of
Henry II of England Henry II (5 March 1133 – 6 July 1189), also known as Henry Curtmantle (french: Court-manteau), Henry FitzEmpress or Henry Plantagenet, was King of England from 1154 until his death in 1189. He was the first king of the House of Plantagenet. Kin ...

Henry II of England
in the 12th century. The foundations for ''habeas corpus'' are "wrongly thought" to have originated in
Magna Carta (Medieval Latin for "Great Charter of Freedoms"), commonly called (also ''Magna Charta''; "Great Charter"), is a royal charter of rights agreed to by King John of England at Runnymede, near Windsor, on 15 June 1215. First drafted by Archb ...

Magna Carta
. This charter declared that: However the preceding article of Magna Carta, nr 38, declares: Pursuant to that language, a person may not be subjected to any legal proceeding, such as arrest and imprisonment, without sufficient evidence having already been collected to show that there is a ''prima facie'' case to answer. This evidence must be collected beforehand, because it must be available to be exhibited in a public hearing within hours, or at the most days, after arrest, not months or longer as may happen in other jurisdictions that apply Napoleonic-inquisitorial criminal laws where evidence is commonly sought after a suspect's incarceration. Any charge leveled at the hearing thus must be based on evidence already collected, and an arrest and incarceration order is not lawful if not supported by sufficient evidence. In contrast with the common law approach, consider the case of ''Luciano Ferrari-Bravo v. Italy'' the European Court of Human Rights ruled that "detention is intended to facilitate … the preliminary investigation". Ferrari-Bravo sought relief after nearly five years of preventive detention, and his application was rejected. The European Court of Human Rights deemed the five year detention to be "reasonable" under
Article 6 of the European Convention on Human RightsArticle 6 of the European Convention on Human Rights is a provision of the European Convention which protects the right to a fair trial. In criminal law cases and cases to determine civil rights it protects the right to a public hearing before an ind ...
, which provides that a prisoner has a right to a public hearing before an impartial tribunal within a "reasonable" time after arrest. After his eventual trial, the evidence against Ferrari-Bravo was deemed insufficient and he was found not guilty.
William Blackstone Sir William Blackstone (10 July 1723 – 14 February 1780) was an English jurist, judge and Tory politician of the eighteenth century. He is most noted for writing the ''Commentaries on the Laws of England''. Born into a middle-class family in ...
cites the first recorded usage of ''habeas corpus ad subjiciendum'' in 1305, during the reign of King Edward I. However, other
writ In common law, a writ (Anglo-Saxon ''gewrit'', Latin ''breve'') is a formal written order issued by a body with administrative or judicial jurisdiction; in modern usage, this body is generally a court. Warrants, prerogative writs, and subpoenas ar ...
s were issued with the same effect as early as the reign of
Henry II
Henry II
in the 12th century. Blackstone explained the basis of the writ, saying " e king is at all times entitled to have an account, why the liberty of any of his subjects is restrained, wherever that restraint may be inflicted." The procedure for issuing a writ of ''habeas corpus'' was first codified by the
Habeas Corpus Act 1679 The Habeas Corpus Act 1679 is an Act of Parliament in England (31 Cha. 2 c. 2) during the reign of King Charles II. It was passed by what became known as the Habeas Corpus Parliament to define and strengthen the ancient prerogative writ of ''hab ...
, following judicial rulings which had restricted the effectiveness of the writ. A previous law (the
Habeas Corpus Act 1640 The Habeas Corpus Act 1640 (16 Car 1 c 10) was an Act of the Parliament of England. The Act was passed by the Long Parliament shortly after the impeachment and execution of Thomas Wentworth, 1st Earl of Strafford in 1641 and before the English C ...
) had been passed forty years earlier to overturn a ruling that the command of the King was a sufficient answer to a petition of ''habeas corpus''. The cornerstone purpose of the ''writ of habeas corpus'' was to limit the King's Chancery's ability to undermine the surety of law by allowing courts of justice decisions to be overturned in favor and application of ''equity'', a process managed by the Chancellor (a bishop) with the King's authority. The 1679 codification of ''habeas corpus'' took place in the context of a sharp confrontation between King Charles II and the
Parliament In modern politics and history, a parliament is a legislative body of government. Generally, a modern parliament has three functions: representing the electorate, making laws, and overseeing the government via hearings and inquiries. The ...
, which was dominated by the then sharply oppositional, nascent Whig Party. The Whig leaders had good reasons to fear the King moving against them through the courts (as indeed happened in 1681) and regarded ''habeas corpus'' as safeguarding their own persons. The short-lived Parliament which made this enactment came to be known as the ''
Habeas Corpus Parliament The Habeas Corpus Parliament, also known as the First Exclusion Parliament, was a short-lived English Parliament which assembled on 6 March 1679 (or 1678, Old Style) during the reign of Charles II of England, the third parliament of the King's rei ...
'' – being dissolved by the King immediately afterwards. Then, as now, the writ of ''habeas corpus'' was issued by a superior court in the name of the Sovereign, and commanded the addressee (a lower court, sheriff, or private subject) to produce the prisoner before the royal courts of law. A ''habeas corpus'' petition could be made by the prisoner him or herself or by a third party on his or her behalf and, as a result of the Habeas Corpus Acts, could be made regardless of whether the court was in session, by presenting the petition to a judge. Since the 18th century the writ has also been used in cases of unlawful detention by private individuals, most famously in '' Somersett's Case'' (1772), where the black slave, Somersett, was ordered to be freed. During that case, these famous words are said to have been uttered: "... that the air of England was too pure for slavery." (although it was the lawyers in argument who expressly used this phrase – referenced from a much earlier argument heard in
The Star Chamber ''The Star Chamber'' is a 1983 American crime thriller film starring Michael Douglas, Hal Holbrook, Yaphet Kotto, Sharon Gless, James B. Sikking, and Joe Regalbuto. The film was written by Roderick Taylor and Peter Hyams and directed by Hyams. Its ...
– and not Lord Mansfield himself). During the
Seven Years' War The Seven Years' War (1756–1763) was a global conflict, "a struggle for global primacy between Britain and France", which also had a major impact on the Spanish Empire. In Europe, the conflict arose from issues left unresolved by the War of ...
and later conflicts, the Writ was used on behalf of soldiers and sailors pressed into military and naval service. The
Habeas Corpus Act 1816 The Habeas Corpus Act 1816 (c.100 56 Geo 3) was an Act of the Parliament of the United Kingdom that modified the law on ''habeas corpus'' to remove the rule against controverting the return in non-criminal cases. Historically, the rules around fact ...
introduced some changes and expanded the territoriality of the legislation. The privilege of ''habeas corpus'' has been suspended or restricted several times during
English history The British Isles became inhabited more than 800,000 years ago, as the discovery of stone tools and footprints at Happisburgh in Norfolk has indicated.; "Earliest footprints outside Africa discovered in Norfolk" (2014). BBC News. Retrieved 7 F ...
, most recently during the 18th and 19th centuries. Although internment without trial has been authorised by statute since that time, for example during the two
World War#REDIRECT world war {{Redirect category shell, 1= {{R from ambiguous term {{R from other capitalisation ...
s and the
Troubles The Troubles ( ga, Na Trioblóidí) was an ethno-nationalist period of conflict in Northern Ireland that lasted about 30 years from the late 1960s to the late 1990s. Also known internationally as the Northern Ireland conflict, it is sometimes des ...
in
Northern Ireland Northern Ireland ( ga, Tuaisceart Éireann ; Ulster-Scots: ') is variously described as a country, province, or region which is part of the United Kingdom. Located in the northeast of the island of Ireland, Northern Ireland shares a border to ...

Northern Ireland
, the ''habeas corpus'' procedure has in modern times always technically remained available to such internees. However, as ''habeas corpus'' is only a procedural device to examine the lawfulness of a prisoner's detention, so long as the detention is in accordance with an
Act of Parliament Acts of parliament, sometimes referred to as primary legislation, are texts of law passed by the legislative body of a jurisdiction (often a parliament or council). In most countries, acts of parliament begin as a bill, which the legislature votes ...
, the petition for ''habeas corpus'' is unsuccessful. Since the passage of the
Human Rights Act 1998 The Human Rights Act 1998 (c. 42) is an Act of Parliament of the United Kingdom which received Royal Assent on 9 November 1998, and came into force on 2 October 2000. Its aim was to incorporate into UK law the rights contained in the European Conv ...
, the courts have been able to declare an Act of Parliament to be incompatible with the
European Convention on Human Rights The European Convention on Human Rights (ECHR) (formally the Convention for the Protection of Human Rights and Fundamental Freedoms) is an international convention to protect human rights and political freedoms in Europe. Drafted in 1950 by t ...
, but such a declaration of incompatibility has no legal effect unless and until it is acted upon by the government. The wording of the writ of ''habeas corpus'' implies that the prisoner is brought to the court for the legality of the imprisonment to be examined. However, rather than issuing the writ immediately and waiting for the return of the writ by the custodian, modern practice in England is for the original application to be followed by a hearing with both parties present to decide the legality of the detention, without any writ being issued. If the detention is held to be unlawful, the prisoner can usually then be released or
bail Bail is a set of pre-trial restrictions that are imposed on a suspect to ensure that they will not hamper the judicial process. Bail is the conditional release of a defendant with the promise to appear in court when required. In some countries, ...
ed by order of the court without having to be produced before it. With the development of modern public law, applications for habeas corpus have been to some extent discouraged, in favour of applications for
judicial review Judicial review is a process under which executive or legislative actions are subject to review by the judiciary. A court with authority for judicial review may invalidate laws, acts and governmental actions that are incompatible with a higher ...
. The writ, however, maintains its vigour, and was held by the UK Supreme Court to be available in respect of a prisoner captured by British forces in Afghanistan, albeit that the Secretary of State made a valid return to the writ justifying the detention of the claimant.


Precedents in Medieval Catalonia and Biscay

Although the first recorded historical references come from Anglo-Saxon law in the 12th century and one of the first documents referring to this right is a law of the English Parliament (1679), it must be noted that in
Catalonia Catalonia (; ca, Catalunya ; Aranese Occitan: ''Catalonha'' ; es, Cataluña ) is an autonomous community in the northeastern corner of Spain, designated as a ''nationality'' by its Statute of Autonomy. Catalonia consists of four provinces: Ba ...
there are already references from 1428 in the «recurs de manifestació de persones» (appeal of people's manifestation) collected in the ‘’Furs de les Corts’’ of the
Crown of Aragon The Crown of Aragon (; an, Corona d'Aragón; ca, Corona d'Aragó; es, Corona de Aragón)' ()' (, , )' ()' (). was a composite monarchy, also nowadays referred to as a confederation of individual polities or kingdoms ruled by one king, originated ...
and some references to this term in the Law of the
Lordship of Biscay The Lordship of Biscay ( es, Señorío de Vizcaya, Basque: ''Bizkaiko jaurerria'') was a region under feudal rule in the region of Biscay in the Iberian Peninsula between 1040 and 1876, ruled by a political figure known as the Lord of Biscay. One of ...
(1527).


Other jurisdictions


Australia

The writ of ''habeas corpus'' as a procedural remedy is part of
Australia Australia, officially the Commonwealth of Australia, is a sovereign country comprising the mainland of the Australian continent, the island of Tasmania, and numerous smaller islands. It is the largest country in Oceania and the world's sixt ...

Australia
's English law inheritance. In 2005, the
Australian parliament The Parliament of Australia (officially the Federal Parliament, also called the Commonwealth Parliament) is the legislative branch of the government of Australia. It consists of three elements: the Crown (represented by the Governor-General) ...
passed the
Australian Anti-Terrorism Act 2005 The Anti-Terrorism Act 2005 The actual act is a counter-terrorism law passed by the Australian Parliament on 6 December 2005 intended to hamper the activities of any potential terrorists in the country. Chronology The Bill was prepared by the ...
. Some legal experts questioned the constitutionality of the act, due in part to limitations it placed on ''habeas corpus''.


Canada

''Habeas corpus'' rights are part of the British legal tradition inherited by Canada. The rights exist in the common law but have been enshrined in section 10(c) of the ''
Charter of Rights and Freedoms The ''Canadian Charter of Rights and Freedoms'' (french: La Charte canadienne des droits et libertés), often simply referred to as the ''Charter'' in Canada, is a bill of rights entrenched in the Constitution of Canada, forming the first part ...
'', which states that " eryone has the right on arrest or detention ... to have the validity of the detention determined by way of ''habeas corpus'' and to be released if the detention is not lawful". The
test Test(s), testing, or TEST may refer to: * Test (assessment), an educational assessment intended to measure the respondents' knowledge or other abilities Arts and entertainment * ''Test'' (2013 film), an American film * ''Test'' (2014 film), a R ...
for ''habeas corpus'' in Canada was recently laid down by the
Supreme Court of Canada Supreme may refer to: * Supreme (brand), a clothing brand based in New York * Supreme (comics), a comic book superhero * Supreme (cookery), a term used in cookery * ''Supreme'' (film), a 2016 Telugu film * Supreme (producer), hip-hop record produc ...

Supreme Court of Canada
in '' Mission Institution v Khela'', as follows:
To be successful, an application for ''habeas corpus'' must satisfy the following criteria. First, the applicant .e., the person seeking ''habeas corpus'' reviewmust establish that he or she has been deprived of liberty. Once a deprivation of liberty is proven, the applicant must raise a legitimate ground upon which to question its legality. If the applicant has raised such a ground, the onus shifts to the respondent authorities .e., the person or institution detaining the applicantto show that the deprivation of liberty was lawful.
Suspension of the writ in Canadian history occurred famously during the
October Crisis The October Crisis (French: ''Crise d'Octobre'') refers to a chain of events that started in October 1970 when members of the Front de libération du Québec (FLQ) kidnapped the provincial Deputy Premier Pierre Laporte and British diplomat James ...
, during which the ''
War Measures Act The ''War Measures Act'' (french: Loi sur les mesures de guerre; 5 George V, Chap. 2) was a statute of the Parliament of Canada that provided for the declaration of war, invasion, or insurrection, and the types of emergency measures that could th ...
'' was invoked by the
Governor General of Canada The governor general of Canada (french: le gouverneur général du Canada) is the federal viceregal representative of the . The , as a political sovereign, is shared equally with the 15 other Commonwealth realms and the 10 provinces of Canada, ...
on the
constitutional adviceAdvice, in constitutional law, is a formal, and usually binding, instruction given by one constitutional officer of state to another. Particularly in parliamentary systems of government, heads of state often act on the basis of advice issued by prime ...
of Prime Minister
Pierre Trudeau Joseph Philippe Pierre Yves Elliott Trudeau ( , ; October 18, 1919 – September 28, 2000), also referred to by the initials PET, was a Canadian politician who was the 15th prime minister of Canada and leader of the Liberal Party of Canada fr ...
, who had received a request from the
Quebec ) , image_map = Quebec in Canada 2.svg , Label_map = yes , coordinates = , official_lang = French , capital = Quebec City , CapCoord = , largest_city ...
Cabinet. The Act was also used to justify German, Slavic, and
Ukrainian Canadian internment The Ukrainian Canadian internment was part of the confinement of "enemy aliens" in Canada during and for two years after the end of the First World War, lasting from 1914 to 1920, under the terms of the ''War Measures Act''. Canada was at war with ...
during the
First World War World War I or the First World War, often abbreviated as WWI or WW1, was a global war originating in Europe that lasted from 28 July 1914 to 11 November 1918. Contemporaneously known as the Great War or "the war to end all wars", i ...
, and the internment of German-Canadians, Italian-Canadians and Japanese-Canadians during the
Second World War World War II or the Second World War, often abbreviated as WWII or WW2, was a global war that lasted from 1939 to 1945. It involved the vast majority of the world's countries—including all the great powers—forming two opposing milit ...
. The writ was suspended for several years following the Battle of Fort Erie (1866) during the
Fenian Rising The Irish Republican Brotherhood (IRB) organised the Fenian Rising of 1867 ( ga, Éirí Amach na bhFíníní, 1867, ) as a rebellion against British rule in Ireland,. After the suppression of the ''Irish People'' newspaper in September 1865, disaf ...
, though the suspension was only ever applied to suspects in the
Thomas D'Arcy McGee#REDIRECT Thomas D'Arcy McGee {{R_from_other_capitalisation ...

Thomas D'Arcy McGee
assassination. The writ is available where there is no other adequate remedy. However, a superior court always has the discretion to grant the writ even in the face of an alternative remedy (see ''May v Ferndale Institution''). Under the ''Criminal Code'' the writ is largely unavailable if a statutory right of appeal exists, whether or not this right has been exercised.


France

A fundamental human right in the 1789
Declaration of the Rights of Man and of the Citizen The Declaration of the Rights of Man and of the Citizen (french: Déclaration des droits de l'homme et du citoyen de 1789, links=no), set by France's National Constituent Assembly in 1789, is a human civil rights document from the French Revolution ...
drafted by
Lafayette Lafayette or La Fayette may refer to: People * Lafayette (name), a list of people with the surname Lafayette or La Fayette or the given name Lafayette * House of La Fayette, a French noble family ** Gilbert du Motier, Marquis de Lafayette (1757– ...
in cooperation with
Thomas Jefferson Thomas Jefferson (April 13, 1743 – July 4, 1826) was an American statesman, diplomat, lawyer, architect, philosopher, and Founding Father who served as the third president of the United States from 1801 to 1809. He had previously served a ...

Thomas Jefferson
, the guarantees against arbitrary detention are enshrined in the French Constitution and regulated by the Penal Code. The safeguards are equivalent to those found under the Habeas-Corpus provisions found in Germany, the United States and several Commonwealth countries. The French system of accountability prescribes severe penalties for ministers, police officers and civil and judiciary authorities who either violate or fail to enforce the law. "Article 7 of 789Declaration also provides that 'No individual may be accused, arrested, or detained except where the law so prescribes, and in accordance with the procedure it has laid down.' ... The Constitution further states that 'No one may be arbitrarily detained. The judicial authority, guardian of individual liberty, ensures the observance of this principle under the condition specified by law.' Its article 5 provides that everyone has the right to liberty and sets forth permissible circumstances under which people may be deprived of their liberty and procedural safeguards in case of detention. In particular, it states that 'anyone deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful'." France and the United States played a synergistic role in the international team, led by Eleanor Roosevelt, which crafted the
Universal Declaration of Human Rights The Universal Declaration of Human Rights (UDHR) is an international document adopted by the United Nations General Assembly that enshrines the rights and freedoms of all human beings. It was accepted by the General Assembly as Resolution 217 d ...
. The French judge and Nobel Peace Laureate
René Cassin René Samuel Cassin (5 October 1887 – 20 February 1976) was a French jurist known for co-authoring the Universal Declaration of Human Rights and receiving the Nobel Peace Prize. Cassin was born in Bayonne. He served as a soldier in World W ...
produced the first draft and argued against arbitrary detentions. René Cassin and the French team subsequently championed the ''habeas corpus'' provisions enshrined in the
European Convention for the Protection of Human Rights and Fundamental Freedoms The European Convention on Human Rights (ECHR) (formally the Convention for the Protection of Human Rights and Fundamental Freedoms) is an international convention to protect human rights and political freedoms in Europe. Drafted in 1950 by t ...
.


Germany

Germany has constitutional guarantees against improper detention and these have been implemented in statutory law in a manner that can be considered as equivalent to writs of habeas corpus. Article 104, paragraph 1 of the
Basic Law for the Federal Republic of Germany The Basic Law of the Federal Republic of Germany (german: Grundgesetz für die Bundesrepublik Deutschland) is the constitution of the Federal Republic of Germany. The West German Constitution was approved in Bonn on 8 May 1949 and came into ...
provides that deprivations of liberty may be imposed only on the basis of a specific enabling statute that also must include procedural rules. Article 104, paragraph 2 requires that any arrested individual be brought before a judge by the end of the day following the day of the arrest. For those detained as criminal suspects, article 104, paragraph 3 specifically requires that the judge must grant a hearing to the suspect in order to rule on the detention. Restrictions on the power of the authorities to arrest and detain individuals also emanate from article 2 paragraph 2 of the Basic Law which guarantees liberty and requires a statutory authorization for any deprivation of liberty. In addition, several other articles of the Basic Law have a bearing on the issue. The most important of these are article 19, which generally requires a statutory basis for any infringements of the fundamental rights guaranteed by the Basic Law while also guaranteeing judicial review; article 20, paragraph 3, which guarantees the rule of law; and article 3 which guarantees equality. In particular, a constitutional obligation to grant remedies for improper detention is required by article 19, paragraph 4 of the Basic Law, which provides as follows: "Should any person's right be violated by public authority, he may have recourse to the courts. If no other jurisdiction has been established, recourse shall be to the ordinary courts."


India

The Indian judiciary, in a catena of cases, has effectively resorted to the writ of ''habeas corpus'' to secure release of a person from illegal detention. For example, in October 2009, the Karnataka High Court heard a ''habeas corpus'' petition filed by the parents of a girl who married a Muslim boy from Kannur district and was allegedly confined in a ''madrasa'' in Malapuram town. Usually, in most other jurisdictions, the writ is directed at police authorities. The extension to non-state authorities has its grounds in two cases: the 1898
Queen's Bench The Queen's Bench (; or, during the reign of a male monarch, the King's Bench ('), is the superior court in a number of jurisdictions within some of the Commonwealth realms. The original King's Bench, founded in 1215 in England, was one of the a ...
case of ''
Ex Parte ''Ex parte'' () is a Latin legal term meaning literally "from/out of the party/faction of" (name of party/faction, often omitted), thus signifying "on behalf of (name)". An ''ex parte'' decision is one decided by a judge without requiring all of th ...
Daisy Hopkins'', wherein the Proctor of Cambridge University did detain and arrest Hopkins without his jurisdiction, and Hopkins was released, and that of ''Somerset v Stewart'', in which an African slave whose master had moved to London was freed by action of the writ. The Indian judiciary has dispensed with the traditional doctrine of ''locus standi'', so that if a detained person is not in a position to file a petition, it can be moved on his behalf by any other person. The scope of ''habeas'' relief has expanded in recent times by actions of the Indian judiciary. In 1976, the ''habeas'' writ was used in the Rajan case, a student victim of torture in local police custody during the nationwide The Emergency (India), Emergency in India. On 12 March 2014, Subrata Roy's counsel approached the Chief Justice moving a ''habeas corpus'' petition. It was also filed by the Panthers Party to protest the imprisonment of Anna Hazare, a social activist.


Ireland

In the Republic of Ireland, the writ of ''habeas corpus'' is available at common law and under the Habeas Corpus Acts of 1782 and 1816. A remedy equivalent to ''habeas corpus'' is also guaranteed by Article 40 of the Constitution of Ireland, 1937 constitution. The article guarantees that "no citizen shall be deprived of his personal liberty save in accordance with law" and outlines a specific procedure for the High Court (Ireland), High Court to enquire into the lawfulness of any person's detention. It does not mention the Latin term, ''habeas corpus'', but includes the English phrase "produce the body". Article 40.4.2° provides that a prisoner, or anyone acting on his behalf, may make a complaint to the High Court (or to any High Court judge) of unlawful detention. The court must then investigate the matter "forthwith" and may order that the defendant bring the prisoner before the court and give reasons for his detention. The court must immediately release the detainee unless it is satisfied that he is being held lawfully. The remedy is available not only to prisoners of the state, but also to persons unlawfully detained by any private party. However the constitution provides that the procedure is not binding on the Irish Defence Forces, Defence Forces during a state of war or armed rebellion. The full text of Article 40.4.2° is as follows: The writ of ''habeas corpus'' continued as part of the Irish law when the state seceded from the United Kingdom in 1922. A remedy equivalent to ''habeas corpus'' was also guaranteed by Article 6 of the Constitution of the Irish Free State, enacted in 1922. That article used similar wording to Article 40.4 of the current constitution, which replaced it 1937. The relationship between the Article 40 and the Habeas Corpus Acts of 1782 and 1816 is ambiguous, and Forde and Leonard write that "The extent if any to which Article 40.4 has replaced these Acts has yet to be determined". In ''The State (Ahern) v. Cotter'' (1982) Walsh J. opined that the ancient writ referred to in the Habeas Corpus Acts remains in existence in Irish law as a separate remedy from that provided for in Article 40. In 1941, the Article 40 procedure was restricted by the Second Amendment of the Constitution of Ireland, Second Amendment. Prior to the amendment, a prisoner had the constitutional right to apply to any High Court of the Republic of Ireland, High Court judge for an enquiry into her detention, and to as many High Court judges as she wished. If the prisoner successfully challenged her detention before the High Court she was entitled to immediate, unconditional release. The Second Amendment provided that a prisoner has only the right to apply to a single judge, and, once a writ has been issued, the President of the High Court has authority to choose the judge or panel of three judges who will decide the case. If the High Court finds that the prisoner's detention is unlawful due to the unconstitutionality of a law the judge must refer the matter to the Irish Supreme Court, Supreme Court, and until the Supreme's Court's decision is rendered the prisoner may be released only on bail. The power of the state to detain persons prior to trial was extended by the Sixteenth Amendment of the Constitution of Ireland, Sixteenth Amendment, in 1996. In 1965, the Supreme Court ruled in the ''O'Callaghan'' case that the constitution required that an individual charged with a crime could be refused bail only if she was likely to flee or to interfere with witnesses or evidence. Since the Sixteenth Amendment, it has been possible for a court to take into account whether a person has committed serious crimes while on bail in the past.


Italy

The right to freedom from arbitrary detention is guaranteed by Article 13 of the Constitution of Italy, which states: This implies that within 48 hours every arrest made by a police force must be validated by a court. Furthermore, if subject to a valid detention, an arrested can ask for a review of the detention to another court, called the Review Court (''Tribunale del Riesame'', also known as the Freedom Court, ''Tribunale della Libertà'').


Malaysia

In Malaysia, the remedy of ''habeas corpus'' is guaranteed by the federal constitution, although not by name. Article 5(2) of the Constitution of Malaysia provides that "Where complaint is made to a High Court or any judge thereof that a person is being unlawfully detained the court shall inquire into the complaint and, unless satisfied that the detention is lawful, shall order him to be produced before the court and release him". As there are several statutes, for example, the Internal Security Act (Malaysia), Internal Security Act 1960, that still permit detention without trial, the procedure is usually effective in such cases only if it can be shown that there was a procedural error in the way that the detention was ordered.


New Zealand

In New Zealand, ''habeas corpus'' may be invoked against the government or private individuals. In 2006, a child was allegedly kidnapped by his maternal grandfather after a custody dispute. The father began ''habeas corpus'' proceedings against the mother, the grandfather, the grandmother, the great grandmother, and another person alleged to have assisted in the kidnap of the child. The mother did not present the child to the court and so was imprisoned for contempt of court. She was released when the grandfather came forward with the child in late January 2007.


Pakistan

Issuance of a writ is an exercise of an extraordinary jurisdiction of the superior courts in Pakistan. A writ of habeas corpus may be issued by any High Court of a province in Pakistan. Article 199 of the Constitution of Pakistan, 1973 Constitution of the Islamic Republic of Pakistan, specifically provides for the issuance of a writ of habeas corpus, empowering the courts to exercise this prerogative. Subject to the Article 199 of the Constitution, "A High Court may, if it is satisfied that no other adequate remedy is provided by law, on the application of any person, make an order that a person in custody within the territorial jurisdiction of the Court be brought before it so that the Court may satisfy itself that he is not being held in custody without a lawful authority or in an unlawful manner". The hallmark of extraordinary constitutional jurisdiction is to keep various functionaries of State within the ambit of their authority. Once a High Court has assumed jurisdiction to adjudicate the matter before it, justiciability of the issue raised before it is beyond question. The Supreme Court of Pakistan has stated clearly that the use of words "in an unlawful manner" implies that the court may examine, if a statute has allowed such detention, whether it was a colorable exercise of the power of authority. Thus, the court can examine the malafides of the action taken.


Portugal

In Portugal, article 31 of the Constitution of Portugal, Constitution guarantees citizens against improper arrest, imprisonment or detention. The full text of Article 31 is as follows: There are also statutory provisions, most notably the Code of Criminal Procedure, articles 220 and 222 that stipulate the reasons by which a judge may guarantee ''Habeas corpus''.


The Philippines

In the Bill of Rights of the Philippine constitution, ''habeas corpus'' is guaranteed in terms almost identically to those used in the U.S. Constitution. Article 3, Section 15 of the Constitution of the Philippines states that "The privilege of the writ of ''habeas corpus'' shall not be suspended except in cases of invasion or rebellion when the public safety requires it". In 1971, after the Plaza Miranda bombing, the Marcos administration, under Ferdinand Marcos, suspended ''habeas corpus'' in an effort to stifle the oncoming insurgency, having blamed the Communist Party of the Philippines, Filipino Communist Party for the events of August 21. Many considered this to be a prelude to martial law. After widespread protests, however, the Arroyo administration decided to reintroduce the writ. In December 2009, ''habeas corpus'' was suspended in Maguindanao as the province was placed under martial law. This occurred in response to the Maguindanao massacre. In 2016, President Rodrigo Duterte said he was planning on suspending the habeas corpus. At 10 pm on 23 May 2017 Philippine time, President Rodrigo Duterte declared martial law in the whole island of Mindanao including Sulu and Tawi-tawi for the period of 60 days due to the series of attacks mounted by the Maute group, an ISIS-linked terrorist organization. The declaration suspends the writ.


Scotland

The Parliament of Scotland passed a law to have the same effect as ''habeas corpus'' in the 18th century. This is now known as the Criminal Procedure Act 1701 c.6. It was originally called "the Act for preventing wrongful imprisonment and against undue delays in trials". It is still in force although certain parts have been repealed.


Spain

The present Constitution of Spain states that "A ''habeas corpus'' procedure shall be provided for by law to ensure the immediate handing over to the judicial authorities of any person illegally arrested". The statute which regulates the procedure is the ''Law of Habeas Corpus of 24 May 1984'', which provides that a person imprisoned may, on her or his own or through a third person, allege that she or he is imprisoned unlawfully and request to appear before a judge. The request must specify the grounds on which the detention is considered to be unlawful, which can be, for example, that the custodian holding the prisoner does not have the legal authority, that the prisoner's constitutional rights have been violated, or that he has been subjected to mistreatment. The judge may then request additional information if needed, and may issue a ''habeas corpus'' order, at which point the custodian has 24 hours to bring the prisoner before the judge. Historically, many of the territories of Spain had remedies equivalent to the ''habeas corpus'', such as the privilege of ''manifestación'' in the
Crown of Aragon The Crown of Aragon (; an, Corona d'Aragón; ca, Corona d'Aragó; es, Corona de Aragón)' ()' (, , )' ()' (). was a composite monarchy, also nowadays referred to as a confederation of individual polities or kingdoms ruled by one king, originated ...
or the right of the Tree in Biscay.


United States

The United States inherited ''habeas corpus'' from the English common law. In England, the writ was issued in the name of the monarch. When the original Thirteen Colonies, thirteen American colonies declared independence, and became a republic based on popular sovereignty, any person, in the name of the people, acquired authority to initiate such writs. The United States Constitution, U.S. Constitution specifically includes the ''habeas'' procedure in the Suspension Clause (Clause 2), located in Article One of the United States Constitution, Article One, Section 9. This states that "The privilege of the writ of ''habeas corpus'' shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it". The writ of ''habeas corpus ad subjiciendum'' is a civil, not criminal, ''ex parte'' proceeding in which a court inquires as to the legitimacy of a prisoner's custody. Typically, ''habeas corpus'' proceedings are to determine whether the court that imposed sentence on the defendant had jurisdiction and authority to do so, or whether the defendant's sentence has expired. ''Habeas corpus'' is also used as a legal avenue to challenge other types of custody such as pretrial detention or detention by the U.S. Immigration and Customs Enforcement, United States Bureau of Immigration and Customs Enforcement pursuant to a deportation proceeding. Presidents
Abraham Lincoln Abraham Lincoln (; February 12, 1809 – April 15, 1865) was an American statesman and lawyer who served as the 16th president of the United States from 1861 until his assassination in 1865. Lincoln led the nation through the American Civil ...
and Ulysses Grant suspended ''habeas corpus'' during the Civil War and Reconstruction for some places or types of cases. During World War II, President Franklin D. Roosevelt suspended habeas corpus. Following the September 11 attacks, President George W. Bush attempted to place Guantanamo Bay detainees outside of the jurisdiction of ''habeas corpus'', but the Supreme Court of the United States overturned this action in ''Boumediene v. Bush''.


Equivalent remedies


Biscay

In 1526, the ''Fuero Nuevo of the Señorío de Vizcaya'' (''New Charter of the Lordship of Biscay'') established a form of ''habeas corpus'' in the territory of the ''Lord of Biscay, Señorío de Vizcaya'', nowadays part of Spain. This revised version of the ''Fuero Viejo'' (Old Charter) of 1451 codified the medieval custom whereby no person could be arbitrarily detained without being summoned first to the Gernikako Arbola, Oak of Gernika, an ancestral oak tree located in the outskirts of Gernika under which all laws of the Lordship of Biscay were passed. The New Charter formalised that no one could be detained without a court order (Law 26 of Chapter 9) nor due to debts (Law 3 of Chapter 16). It also established due process and a form of habeas corpus: no one could be arrested without previously having been summoned to the Gernikako Arbola, Oak of Gernika and given 30 days to answer the said summons. Upon appearing under the Tree, they had to be provided with accusations and all evidence held against them so that they could defend themselves (Law 7 of Chapter 9). No one could be sent to prison or deprived of their freedom until being formally trialed, and no one could be accused of a different crime until their current court trial was over (Law 5 of Chapter 5). Those fearing they were being arrested illegally could appeal to the ''Regimiento General'' that their rights could be upheld. The ''Regimiento'' (the executive arm of the Juntas Generales of Biscay) would demand the prisoner be handed over to them, and thereafter the prisoner would be released and placed under the protection of the Regimiento while awaiting for trial.


Crown of Aragon

The
Crown of Aragon The Crown of Aragon (; an, Corona d'Aragón; ca, Corona d'Aragó; es, Corona de Aragón)' ()' (, , )' ()' (). was a composite monarchy, also nowadays referred to as a confederation of individual polities or kingdoms ruled by one king, originated ...
also had a remedy equivalent to the ''habeas corpus'' called the ''manifestación de personas'' (literally, ''demonstration of persons''). According to the right of ''manifestación'', the Justicia de Aragon (lit. ''Justice of Aragon'', an Aragonese judiciary figure similar to an ombudsman, but with far reaching executive powers) could require a judge, a court of justice, or any other official that they handed over to the ''Justicia'' (i.e., that they be ''demonstrated'' to the Justicia) anyone being prosecuted so as to guarantee that this person's rights were upheld, and that no violence would befall this person prior to their being sentenced. Furthermore, the ''Justicia'' retained the right to examine the judgement passed, and decide whether it satisfied the conditions of a fair trial. If the ''Justicia'' was not satisfied, he could refuse to hand over the accused back to the authorities. The right of ''manifestación'' acted like an habeas corpus: knowing that the appeal to the ''Justicia'' would immediately follow any unlawful detention, these were effectively illegal. Equally, torture (which had been banned since 1325 in Aragon) would never take place. In some cases, people exerting their right of ''manifestación'' were kept under the Justicia's watch in ''manifestación'' prisons (famous for their mild and easy conditions) or under house arrest. More generally however, the person was released from confinement and placed under the ''Justicia's protection'', awaiting for trial. The ''Justicia'' always granted the right of ''manifestación'' by default, but they only really had to act in extreme cases, as for instance famously happened in 1590 when Antonio Pérez (statesman), Antonio Pérez, the disgraced secretary to Philip II of Spain, fled from Castile (historical region), Castile to Aragon and used his Aragonese ascendency to appeal to the ''Justicia'' for manifestación right, thereby preventing his arrest at the King's behest. The right of ''manifestación'' was codified in 1325 in the Declaratio Privilegii generalis passed by the Aragonese Corts under king James II of Aragon. It had been practised since the inception of the kingdom of Aragon in the 11th century, and therefore predates the English ''habeas corpus'' itself.


Poland

In 1430, King Władysław II Jagiełło of Poland granted the Privilege of Jedlnia, which proclaimed, ''Neminem captivabimus nisi iure victum'' ("We will not imprison anyone except if convicted by law"). This revolutionary innovation in civil libertarianism gave Polish citizens due process-style rights that did not exist in any other European country for another 250 years. Originally, the Privilege of Jedlnia was restricted to the nobility (the szlachta), but it was extended to cover townsmen in the Constitution of 3rd May, 1791 Constitution. Importantly, social classifications in the Polish–Lithuanian Commonwealth were not as rigid as in other European countries; townspeople and Jews were sometimes ennobled. The Privilege of Jedlnia provided broader coverage than many subsequently enacted habeas corpus laws, because Poland's nobility constituted an unusually large percentage of the country's total population, which was Europe's largest. As a result, by the 16th century, it was protecting the liberty of between five hundred thousand and a million Poles.


Roman-Dutch law

In South Africa and other countries whose legal systems are based on Roman-Dutch law, the ''interdictum de homine libero exhibendo'' is the equivalent of the writ of ''habeas corpus''. In South Africa, it has been entrenched in the Bill of Rights (South Africa), Bill of Rights, which provides in section 35(2)(d) that every detained person has the right to challenge the lawfulness of the detention in person before a court and, if the detention is unlawful, to be released.


World ''habeas corpus''

In the 1950s, American lawyer Luis Kutner began advocating an international writ of ''habeas corpus'' to protect individual human rights. In 1952, he filed a petition for a "United Nations Writ of Habeas Corpus" on behalf of William N. Oatis, an American journalist jailed the previous year by the Communist government of Czechoslovakia. Alleging that Czechoslovakia had violated Oatis' rights under the United Nations Charter and the
Universal Declaration of Human Rights The Universal Declaration of Human Rights (UDHR) is an international document adopted by the United Nations General Assembly that enshrines the rights and freedoms of all human beings. It was accepted by the General Assembly as Resolution 217 d ...
and that the United Nations General Assembly had "inherent power" to fashion remedies for human rights violations, the petition was filed with the United Nations Commission on Human Rights. The Commission forwarded the petition to Czechoslovakia, but no other United Nations action was taken. Oatis was released in 1953. Kutner went on to publish numerous articles and books advocating the creation of an "International Court of Habeas Corpus".


International human rights standards

Article 3 of the
Universal Declaration of Human Rights The Universal Declaration of Human Rights (UDHR) is an international document adopted by the United Nations General Assembly that enshrines the rights and freedoms of all human beings. It was accepted by the General Assembly as Resolution 217 d ...
provides that "everyone has the right to life, liberty and security of person". Article 5 of the European Convention on Human Rights goes further and calls for persons detained to have the right to challenge their detention, providing at article 5.4:


See also

* Arbitrary arrest and detention * ''corpus delicti'' – other Latin legal term using ''corpus'', here meaning the fact of a crime having been committed, not the body of the person being detained nor (as sometimes inaccurately used) the body of the victim * Habeas corpus petitions of Guantanamo Bay detainees * Habeas Corpus (play), ''Habeas Corpus'' (play), by the English writer and playwright Alan Bennett. * Habeas Corpus Restoration Act of 2007 * ''Habeas data'' * Edward Hyde, 1st Earl of Clarendon *
Habeas Corpus Parliament The Habeas Corpus Parliament, also known as the First Exclusion Parliament, was a short-lived English Parliament which assembled on 6 March 1679 (or 1678, Old Style) during the reign of Charles II of England, the third parliament of the King's rei ...
* List of legal Latin terms * Military Commissions Act of 2006 * Murder conviction without a body * Neminem captivabimus * Presumption of innocence * Philippine habeas corpus cases, Philippine ''habeas corpus'' cases * Remand (detention), Remand * Security of person * ''Recurso de amparo'' (writ of ''amparo'') * ''Subpoena ad testificandum'' * ''Subpoena duces tecum''


Notes and references


Footnotes


References


Further reading

* * * * * * Political context for ''Ex Parte Milligan'' explained on pp. 186–189. * * * * * * : : : : : * * * * *


External links

* {{DEFAULTSORT:Habeas Corpus Habeas corpus, Constitutional law Emergency laws Human rights Latin legal terminology Liberalism Philosophy of law Prerogative writs Quotations from law