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(; from
Medieval Latin Medieval Latin was the form of Latin Latin (, or , ) is a classical language A classical language is a language A language is a structured system of communication Communication (from Latin ''communicare'', meaning "to share ...
, ; in
law Law is a system A system is a group of Interaction, interacting or interrelated elements that act according to a set of rules to form a unified whole. A system, surrounded and influenced by its environment, is described by its boundari ...
: 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 In law, common law (also known as judicial precedent or judge-made law, or case law Case law is the collection of past legal decisions written by courts and similar tribunal A tribunal, generally, is any person or institu ...

writ
of ''habeas corpus'' was described by
William Blackstone Sir William Blackstone (10 July 1723 – 14 February 1780) was an English jurist A jurist is a person with expert knowledge of law; someone who analyses and comments on law. This person is usually a specialist legal scholarnot necessaril ...

William Blackstone
as a "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 A judge is a person who presides over court A court is any person or institution, often as a government A government is the system or group of people governing an organize ...
; 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), "Incommunicado" (song), a 1987 single by Marillion *Solitary ...
. Most
civil law Civil law may refer to: * Civil law (common law) Civil law is a major branch of the law.Glanville Williams. ''Learning the Law''. Eleventh Edition. Stevens. 1982. p. 2. In common law legal systems such as England and Wales and the law of the United ...
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 Hispanophone and Hispanic The term ''Hispanic'' ( es, hispano or ) refers to people, cultures, or countries related to Spain, the Hispanidad, Spanish language, Spanish culture, culture, or Spanis ...
'' ("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; 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 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 its citizens. A government can declare such a state duri ...
, 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 The president of the United States (POTUS) is the head of state and head of governme ...

Abraham Lincoln
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 A jurist is a person with expert knowledge of law; someone who analyses and comments on law. This person is usually a specialist legal scholarnot ...

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 In law, common law (also known as judicial precedent or judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions. ''Black's Law Dictionary'' is the most-us ...
", or "
prerogative writ A prerogative writ is a 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 Jurisdiction (from Latin ''Wikt:ius#Latin, juris'' 'law' + ' ...
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 law (common law), civil and Criminal law, criminal courts responsible for the administration of justice in England and Wales. ...
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 In law, common law (also known as judicial precedent or judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions. ''B ...
'', ''
prohibito A writ of prohibition is a writ In common law In law, common law (also known as judicial precedent or judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in writte ...
'', ''
mandamus (; ) is a judicial remedy A legal remedy, also referred to as judicial relief or a judicial remedy, is the means with which a court of law, usually in the exercise of civil law jurisdiction, enforces a right Rights are law, legal, social ...
'', ''
procedendo In common-law jurisprudence Jurisprudence, or legal theory, is the theoretical study of the propriety of law Law is a system A system is a group of Interaction, interacting or interrelated elements that act according to a set of rul ...
'', and ''
certiorari In law Law is a system A system is a group of Interaction, interacting or interrelated elements that act according to a set of rules to form a unified whole. A system, surrounded and influenced by its environment, is described b ...
''. 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 A person (plural people or persons) is a being that has certain capacities or attributes such as reason, morality, consciousness or self-consciousness, and being a part of a culturally es ...
, 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 The law of the United States comprises many levels of codified and uncodified forms of law, of which the most important is the United States Constitution, which prescribes the foundation of the federal government of the Unite ...

movant
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 In linguistics Linguistics is the scientific study of language A language is a structured system of communication used by humans, including speech (spoken language), gestures (Signed language, ...
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 Jurisdiction (from Latin Latin (, or , ) is a classical language A classical language is a language A language is a structured system of communication Communication (fro ...
") * ''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 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 1 ...
, 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. ...

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, royal charter of rights agreed to by King John of England at Runnymede, near Windsor, Berkshire, Windsor, on ...

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 Criminal law is the body of law that relates to crime. It proscribes conduct perceived a ...
, 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 A jurist is a person with expert knowledge of law; someone who analyses and comments on law. This person is usually a specialist legal scholarnot necessaril ...

William Blackstone
cites the first recorded usage of ''habeas corpus ad subjiciendum'' in 1305, during the reign of . However, other
writ In common law In law, common law (also known as judicial precedent or judge-made law, or case law Case law is the collection of past legal decisions written by courts and similar tribunal A tribunal, generally, is any person or institu ...

writ
s were issued with the same effect as early as the reign of 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 (; from Medieval Latin Medieval Latin was the form of Latin Latin (, or , ) is a classical language A classical language is a language A language is a structured system of communication Communication (from Latin '' ...
, 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 Parliament of England was the legislature A legislature is a deliberative assembly with the authority In the fields of sociology Sociology i ...
) 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 and the
Parliament In modern politics and history, a parliament is a legislative A legislature is an assembly Assembly may refer to: Organisations and meetings * Deliberative assembly A deliberative assembly is a gathering of members (of any kind of ...
, 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 The Parliament of England was the legislature A legislature is an assembly Assembly may refer to: Organisations and mee ...
'' – 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 Sikking, James B. Sikking, and Joe Regalbuto. The film was written by Roderick Taylor and Peter Hyams and direc ...
– and not Lord Mansfield himself). During the
Seven Years' War The Seven Years' War (1756–1763) is widely considered to be the first global conflict in history, and was a struggle for world supremacy between Kingdom of Great Britain, Great Britain and Kingdom of France, France. In Europe, the conflict ar ...
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 The Parliament of the United Kingdom is the Parliamentary sovereignty in the United Kingdom, supreme Legislature, legislative body of the United Ki ...
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 England 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 February 2 ...
, 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 A world war is "a war War is an intense armed conflict between states State may refer to: Arts, entertainment, and media Literature * ''State Magazine'', a monthly magazine published by the U.S. Department of State * The State (newsp ...
s and the
Troubles The Troubles ( ga, Na Trioblóidí) were an ethno-nationalist Ethnic nationalism, also known as ethnonationalism, is a form of nationalism Nationalism is an idea and movement that promotes the interests of a particular nation A na ...
in
Northern Ireland Northern Ireland ( ga, Tuaisceart Éireann ; sco, label=Ulster-ScotsUlster Scots, also known as Scotch-Irish, may refer to: * Ulster Scots people The Ulster Scots (Ulster-Scots The Ulster Scots (Ulster Scots dialects, Ulster- ...

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 Legislature, legislative body of a jurisdiction (often a parliament or council). In most countries, acts of parliament begin as a Bill (law), bill, wh ...
, 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 Acts of parliament, sometimes referred to as primary legislation, are texts of law passed by the Legislature, legislative body of a jurisdiction (often a parliament or council). In most co ...
, 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 In law Law is a system A system is a group of Interaction, interacting or interrelated elements that act according to a set of rules to form a unified whole. A system, surrounded and influenced by it ...
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 Executive may refer to: Role, title, or function * Executive (government), branch of government that has authority and responsibility for the administration of state bureaucracy * Executive, ...
. 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, Aranese Occitan: ''Catalonha'' ; es, Cataluña ) is an Autonomous communities of Spain, autonomous community in the northeastern corner of Spain, designated as a ''nationalities and regions of Spain, na ...

Catalonia
there are already references from 1428 in the (appeal of people's manifestation) collected in the 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 A composite monarchy (or composite state) is a historical category, introduced by H. G. Koenigsberger ...
and some references to this term in the Law of the
Lordship of Biscay The Lordship of Biscay ( es, Señorío de Vizcaya, Basque Basque may refer to: * Basques The Basques ( or ; eu, euskaldunak ; es, vascos ; french: basques ) are a Southern European ethnic group, characterised by the Basque language, a Basqu ...
(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 state, sovereign country comprising the mainland of the Australia (continent), Australian continent, the island of Tasmania, and numerous List of islands of Australia, sma ...

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 A legislature is a deliberative assembly A deliberative assembly is a gathering of members (of any kind o ...
passed the
Australian Anti-Terrorism Act 2005 The Anti-Terrorism Act 2005 The actual act is a counter-terrorism Counter-terrorism (also spelled counterterrorism), also known as anti-terrorism, incorporates the practice, military tactics, techniques, and strategy that government, mi ...
. 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 A bill of rights, sometimes called a declaration of rights o ...
'', 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), ''Test'' (2013 film), an American film * Test ( ...
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), ''Supreme'' (film), a 2016 Telugu film * Supreme (producer), hip-h ...

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 language, 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 Britis ...
, during which the ''
War Measures Act The ''War Measures Act'' (french: Loi sur les mesures de guerre; 5 George V, Chap. 2) was a statuteA statute reffers to the body of law that are made by legislature of the nation with instrument which govern the state, country or any nation. it i ...
'' was invoked by the
Governor General of Canada The governor general of Canada (french: gouverneure générale du Canada) is the federal viceregal A viceroy () is an official who runs a polity A polity is an identifiable political entity—any group of people who have a collective ...
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 system, parliamentary systems of government, Head of state, heads of state often act o ...
of Prime Minister
Pierre Trudeau Joseph Philippe Pierre Yves Elliott Trudeau ( , ; October 18, 1919 – September 28, 2000), also referred to by his initials PET, was a Canadian politician who served as the 15th prime minister of Canada The prime minister of Canada ...

Pierre Trudeau
, who had received a request from the
Quebec ) , image_shield=Armoiries du Québec.svg , image_flag=Flag of Quebec.svg , coordinates= , AdmittanceDate=July 1, 1867 , AdmittanceOrder=1st, with New Brunswick ("Hope restored") , image_map = New Brunswick in Canada 2.svg , ...

Quebec
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 Canada is a country in the northern part of North America. Its Provinces and territories of Canada, ten provinces and three territories extend from th ...
during the
First World War World War I, often abbreviated as WWI or WW1, also known as the First World War or the Great War, was a global war A world war is "a war War is an intense armed conflict between states State may refer to: Arts, entertainmen ...
, 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 A world war is "a war War is an intense armed conflict between states State may refer to: Arts, entertainment, and media Literatur ...
. The writ was suspended for several years following the Battle of Fort Erie (1866) during the
Fenian Rising The Irish Republican Brotherhood The Irish Republican Brotherhood (IRB; ) was a secret oath-bound fraternal organisation dedicated to the establishment of an "independent democratic republic" in Ireland between 1858 and 1924.McGee, p. 15. It ...
, though the suspension was only ever applied to suspects in the 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 Humans (''Homo sapiens'') are the most ...
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– ...

Lafayette
in cooperation with
Thomas Jefferson Thomas Jefferson (April 13, 1743 – July 4, 1826) was an American statesman, diplomat, lawyer, architect, philosopher, and Founding Father The following list of national founding figures is a record, by country, of people who were cr ...

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. 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 The United Nations General Assembly (UNGA or GA; french: link=no, Assemblée générale, AG) is one of the six p ...
. 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 The Universal Declaration of Human Rights (UDHR) is an international document adopted by the ...
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.


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 A constitution is an aggregate of fundamental principles A principle is a proposition or value that is a g ...
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 ...
case of ''
Ex Parte In law Law is a system A system is a group of Interaction, interacting or interrelated elements that act according to a set of rules to form a unified whole. A system, surrounded and influenced by its environment, is described by ...
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 Somerset (; archaically Somersetshire) is a county A county is a geographical region of a country used for administrative or other purposesChambers Dictionary, L. Brookes (ed.), 2005, Chambers Harrap Publishers Ltd, Edinburgh in certain ...
'', 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 Locus (plural loci) is Latin for "place". It may refer to: Entertainment * Locus (comics) Locus is the name of two fictional characters appearing in American comic books published by Marvel Comics. The first one, whose real name is Aaron Vern ...
'', 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
Emergency An emergency is a situation that poses an immediate risk to health Health, according to the World Health Organization The World Health Organization (WHO) is a specialized agency of the United Nations United Nations Specialized Agen ...
in India. On 12 March 2014,
Subrata Roy Subrata Roy (born 10 June 1948) is the Managing Worker and Chairman of Sahara India Pariwar, an Indian conglomerate with diversified businesses and assets including Aamby Valley City, and India's largest land bank spread in cities across I ...

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 Kisan Baburao Hazare (; born 15 June 1937), popularly known as Anna Hazare (), is an Indian social activist who led movements to promote rural development, increase government transparency, and investigate and punish corruption in public life. ...
, a social activist.


Ireland

In the
Republic of Ireland Ireland ( ga, Éire ), also known as the Republic of Ireland ('), is a country A country is a distinct territorial body or political entity A polity is an identifiable political entity—any group of people who have a collective id ...

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 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 High court usually refers to the superior court In common law systems, a superior court is a court A court is any person or institution, often as a government institution, with the authority to Adjudication, adjudicate legal disputes between ...
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 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 The United Kingdom of Great Britain and Northern Ireland, commonly known as the United Kingdom (UK) or Britain,Usage is mixed. The Guardian' and Telegraph' use Britain as a synonym for the United Kingdom. Some prefer to use Britain as shorth ...

United Kingdom
in 1922. A remedy equivalent to ''habeas corpus'' was also guaranteed by Article 6 of the
Constitution of the Irish Free State A constitution is an aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation An organization, or organisation ( Commonwealth English; see spelling differences), is an ...
, 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. Prior to the amendment, a prisoner had the constitutional right to apply to any
High Court High court usually refers to the superior court In common law systems, a superior court is a court A court is any person or institution, often as a government institution, with the authority to Adjudication, adjudicate legal disputes between ...
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
Supreme Court A supreme court is the highest court A court is any person or institution, often as a government institution, with the authority to Adjudication, adjudicate legal disputes between Party (law), parties and carry out the administration of just ...
, 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, 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 The Constitution of the Italian Republic ( it, Costituzione della Repubblica Italiana) was enacted by the Constituent Assembly A constituent assembly (also known as a constitutional convention, constitutional congress, or constitutional assem ...
, 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'').


Macau

In
Macau Macau or Macao (; ; ; ), officially the Macao Special Administrative Region of the People's Republic of China (MSAR), (RAEM) is a city A city is a large human settlement.Goodall, B. (1987) ''The Penguin Dictionary of Human Geography''. Lond ...

Macau
, the relevant provision is Article 204 in the Code of Penal Processes, which became law in 1996 under
Portuguese rule The Portuguese Empire ( pt, Império Português), also known as the Portuguese Overseas (''Ultramar Português'') or the Portuguese Colonial Empire (''Império Colonial Português''), was composed of the overseas Colonialism, colonies and Territ ...
. cases are heard before the Tribunal of Ultimate Instance. A notable case is Case 3/2008 in Macau.


Malaysia

In
Malaysia Malaysia ( ; ) is a country in Southeast Asia Southeast Asia, also spelled South East Asia and South-East Asia, and also known as Southeastern Asia or SEA, is the geographical southeastern subregion of Asia, consisting of the regions ...

Malaysia
, the remedy of ''habeas corpus'' is guaranteed by the federal constitution, although not by name. Article 5(2) of the
Constitution of Malaysia The Federal Constitution of Malaysia, which came into force in 1957, is the supreme law of Malaysia Malaysia ( ; ) is a country in Southeast Asia. The federation, federal constitutional monarchy consists of States and federal territories ...
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 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 New Zealand ( mi, Aotearoa ''Aotearoa'' (; commonly pronounced by English English usually refers to: * English language English is a West Germanic languages, West Germanic language first spoken in History of Anglo-Saxon Engl ...

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 Contempt of court, often referred to simply as "contempt", is the offense of being disobedient to or disrespectful toward a court A court is any person or institution, often as a government A government is the system or group o ...
. 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 1973 Constitution of the
Islamic Republic of Pakistan Pakistan, . Pronounced variably in English as , , , and . officially the Islamic Republic of Pakistan, is a country in South Asia South Asia is the southern region of Asia, which is defined in both geography, geographical and culture, e ...
, 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 A constitution is an aggregate of fundamental principles A principle is a proposition or value that is a guide for behavior or evaluation. In law, it is a rule Rule or ruling may refer to: Human activity * The exercise of political ...
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 The Constitution of the Philippines (Filipino Filipino may refer to: * Something from or related to the Philippines The Philippines (; fil, Pilipinas or ''Filipinas'' ), officially the Republic of the Philippines ( fil, Republika ng ...
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 Plaza Miranda bombing ( Filipino: ''Pambobomba sa Liwasang Miranda'') occurred during a political campaign A political campaign is an organized effort which seeks to influence the decision making progress within a specific group. In dem ...
, the Marcos administration, under
Ferdinand Marcos Ferdinand Emmanuel Edralin Marcos Sr. (, September 11, 1917 – September 28, 1989) was a Filipino politician and lawyer who was the 10th president of the Philippines The president of the Philippines ( fil, Pangulo ng Pilipinas, sometime ...
, suspended ''habeas corpus'' in an effort to stifle the oncoming insurgency, having blamed the Filipino Communist Party for the events of August 21. Many considered this to be a prelude to
martial law Martial law is the temporary imposition of direct military control of normal civil functions or suspension of civil law by a government, especially in response to a temporary emergency where civil forces are overwhelmed, or in an occupied te ...
. After widespread protests, however, the Marcos administration decided to reintroduce the writ. The writ was again suspended when Marcos declared martial law in 1972. In December 2009, ''habeas corpus'' was suspended in Maguindanao as President Gloria Macapagal Arroyo placed the province under martial law. This occurred in response to the
Maguindanao massacre The Maguindanao massacre, also known as the Ampatuan massacre, named after the town where mass graves of victims were found, occurred on the morning of November 23, 2009, in the town of Ampatuan in Maguindanao province, on the island of Mindana ...
. In 2016, President
Rodrigo Duterte Rodrigo Roa Duterte, KGCR (; ; born March 28, 1945), also known as Digong, Rody and by the initials PRRD, is a Filipino politician who is the 16th and incumbent president of the Philippines The president of the Philippines ( fil, Pan ...

Rodrigo Duterte
said he was planning on suspending habeas corpus. At 10 pm on 23 May 2017 Philippine time, President
Rodrigo Duterte Rodrigo Roa Duterte, KGCR (; ; born March 28, 1945), also known as Digong, Rody and by the initials PRRD, is a Filipino politician who is the 16th and incumbent president of the Philippines The president of the Philippines ( fil, Pan ...

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#REDIRECT Maute group The Maute group ( or ), also known as the Islamic State of Lanao, was a radical Islamist group composed of former Moro Islamic Liberation Front guerrillas and foreign fighters led by Omar Maute, the alleged founder of a '' ...
, an ISIS-linked terrorist organization. The declaration suspended the writ.


Scotland

The
Parliament of Scotland The Parliament of Scotland ( sco, Pairlament o Scotland; gd, Pàrlamaid na h-Alba) was the legislature A legislature is an deliberative assembly, assembly with the authority to make laws for a Polity, political entity such as a Sovereig ...
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 The Spanish Constitution (Spanish Spanish may refer to: * Items from or related to Spain: **Spaniards, a nation and ethnic group indigenous to Spain **Spanish language **Spanish cuisine Other places * Spanish, Ontario, Canada * Spanish Rive ...
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 A composite monarchy (or composite state) is a historical category, introduced by H. G. Koenigsberger ...
or the right of the Tree in
Biscay Biscay (; eu, Bizkaia ; es, Vizcaya ) is a Provinces of Spain, province of Spain, lying on the south shore of the Bay of Biscay, eponymous bay. The name also refers to a historical territory of the Basque Country (autonomous community), Basque ...
.


United States

The United States inherited ''habeas corpus'' from the
English common law English law is the common law In law, common law (also known as judicial precedent or judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions. ''Black' ...
. In England, the writ was issued in the name of the monarch. When the original 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
U.S. Constitution The Constitution of the United States is the Supremacy Clause, supreme law of the United States, United States of America. This founding document, originally comprising seven articles, delineates the national frame of government. Its first t ...

U.S. Constitution
specifically includes the ''habeas'' procedure in the Suspension Clause (Clause 2), located in 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 In law Law is a system A system is a group of Interaction, interacting or interrelated elements that act according to a set of rules to form a unified whole. A system, surrounded and influenced by its environment, is described by ...
'' 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 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 The president of the United States (POTUS) is the head of state and head of governme ...

Abraham Lincoln
and
Ulysses Grant Ulysses S. Grant (born Hiram Ulysses Grant ; April 27, 1822July 23, 1885) was an American military officer and politician who served as the 18th president of the United States The president of the United States (POTUS) is the head o ...

Ulysses Grant
suspended ''habeas corpus'' during the Civil War and Reconstruction for some places or types of cases. During
World War II World War II or the Second World War, often abbreviated as WWII or WW2, was a global war A world war is "a war War is an intense armed conflict between states State may refer to: Arts, entertainment, and media Literatur ...
, President
Franklin D. Roosevelt Franklin Delano Roosevelt (, ; January 30, 1882April 12, 1945), often referred to by his initials FDR, was an American politician who served as the 32nd president of the United States from 1933 until his death in 1945. A member of the De ...

Franklin D. Roosevelt
suspended habeas corpus. Following the
September 11 attacks The September 11 attacks, also commonly referred to as 9/11, were a series of four coordinated by the militant terrorist group against the on the morning of Tuesday, September 11, 2001. On that morning, four commercial s traveling fro ...
, President
George W. Bush George Walker Bush (born July 6, 1946) is an American politician and businessman who served as the 43rd president of the United States The president of the United States (POTUS) is the head of state and head of government of the Un ...

George W. Bush
attempted to place detainees outside of the jurisdiction of ''habeas corpus'', but the
Supreme Court of the United States The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States of America The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or Americ ...

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 '' Señorío de Vizcaya'', nowadays part of
Spain , image_flag = Bandera de España.svg , image_coat = Escudo de España (mazonado).svg , national_motto = , national_anthem = , image_map = , map_caption = , image_map2 ...

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 , an ancestral oak tree located in the outskirts of
Gernika Guernica (, ), official name (reflecting the Basque language) Gernika (), is a town in the province of Biscay, in the Basque Country (autonomous community), Autonomous Community of the Basque Country, Spain. The town of Guernica is one part (a ...

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 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 The Juntas Generales (General Councils, Batzar Nagusiak in Basque) are representative assemblies in the Southern Basque Country that go back to the 14th century.Larry Trask, Trask, L. ''The History of Basque'' Routledge: 1997 They are the Foral P ...
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 A composite monarchy (or composite state) is a historical category, introduced by H. G. Koenigsberger ...
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 An ombudsman (, also , ), ombudsperson, ombud, ombuds, or public advocate is an official who is usually appointed by the government or by parliament but with a significant degree of independence. In some countries, an inspector general, citize ...
, 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 Torture is the deliberate infliction of severe pain or suffering Suffering, or pain in a broad sense, may be an experience of unpleasantness and aversion associated with the perception of harm or threat of harm in an individual. Suffering i ...

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, 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 The United Nations General Assembly (UNGA or GA; french: link=no, Assemblée générale, AG) is one of the six p ...
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 The United Nations General Assembly (UNGA or GA; french: link=no, Assemblée générale, AG) is one of the six p ...
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 The Parliament of England was the legislature A legislature is an assembly Assembly may refer to: Organisations and mee ...
* 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 Writs Prerogative writs Emergency laws Human rights Latin legal terminology Liberalism Philosophy of law Quotations from law