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Under the concept of habeas corpus as developed in Anglo-American jurisprudence, persons who are deprived of their liberty have the right to challenge through judicial inquiry the legality of their arrest or detention. The right to challenge one’s arrest or detention is now incorporated in international human rights standards.[1] This right may be exercised through the extraordinary process of habeas corpus in the countries which belong to the Common Law system, or through the normal procedural process, including appeals and motions for retrial in the civil law countries.

This report analyzes the right available to persons in Canada, Egypt, France, Germany, Iraq, Italy, Japan, Pakistan, Russia, Saudi Arabia, Syria, the United Kingdom, and Yemen to challenge the legality of their arrest or detention.

The writ of habeas corpus is available in Canada, Japan, Pakistan, and the United Kingdom. In the United Kingdom the importance and use of the writ has diminished considerably due to extensive statutory protections. In Pakistan the writ is recognized under Article 99 of the 1973 Constitution, which gives the High Court the jurisdiction to hear and dispose of the writ. In Japan the writ was introduced in the Constitution under the influence of the United States following World War II, but the United Nations Human Rights Committee has criticized Japan for Habeas Corpus Rules that impair its effectiveness. In Canada the Supreme Court ruled that the law requiring detention of persons deemed inadmissible to Canada on national security grounds must be amended to recognize the right of such persons to petition for habeas corpus relief.

The reports analyzing German and French constitutional and statutory guarantees against arbitrary detention conclude that such guarantees can be considered as comparable or equivalent to writs of habeas corpus.

The remaining countries have different constitutional and statutory provisions that allow the courts to review the legality of a person’s arrest or detention. The implementation and enforcement of such provisions are not fully discussed in this report.

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Prepared by Issam Michael Saliba, Senior Foreign Law Specialist

March 2009

  1. International Covenant on Civil and Political Rights, art. 9(4); American Convention on Human Rights, art. 7(6); Arab Charter on Human Rights, art. 14(6); and European Convention on Human Rights, art. 5(4). [Back to Text]

Last Updated: 07/31/2015