The judicial or other authority be independent, objective and impartial, 479
and empowered to review the continuance of the detention.480 Review
of a petitioner’s claim before a superior military officer lacked the “judicial
character” of a court hearing.481 So, where an individual was
subsequently detained in prison despite the Criminal Court of First
Instance ordering bail, the High Court of Justice in Ramallah ordered his
release on the basis that this detention was arbitrary.482
The proceedings should be ‘simple and expeditious and at no cost for
the detained persons without adequate means’.483
The detaining authority should produce without unreasonable delay the
detained person before the judicial authority.484
The judicial or other authority should produce their decision without
delay.485
The individual should have a right to trial within a reasonable time or be
released.486
48. The right to challenge the legality of detention applies to all persons deprived
of their liberty and is considered to be a ‘fundamental safeguard against torture’
and other ill treatment.487 It applies from the moment of arrest488 and
proceedings can be started by the detainee or their representative. 489
49. The individual should be informed in a language they understand of the right to
take proceedings.490
50. Secret detention will violate the right to personal liberty and the prohibition on
arbitrary arrest and detention.491
479
Communication 521/1992, Kulomin v. Hungary 22 March 1996. A review by a minister will not be
sufficient: Communication No. 291/1988, Torres v. Finland, 2 April 1990, para. 7.2; Communications
1090/2002, Rameka v New Zealand, 6 November 2003, para 7.4. General Comment No.32,
CCPR/C/GC/32 (2007), paras 18-22.
480 UN Body of Principles of All Persons under Any Form of Detention or Imprisonment, Principle 32.
481 Communication 265/1987, Vuolanne v Finland, 7 April 1989
482
H.H.S.A v. Central Prison of Nablus, High Court of Justice of Ramallah, 30 October 2005.
483 UN Body of Principles of All Persons under Any Form of Detention or Imprisonment, Principle 32.
484 Ibid
485 Communication 291/1988, Torres v Finland, 2 April 1990, para 7.3. See also CAT General Comment
No.2, CAT/C/GC/2/CRP.1/Rev.4 (2007),, para 8.
486 See section IX.N. below.
487 CAT/OP/HDN/1, para 137. See also CAT/C/CUB/CO/2, para 8.
488 Communication 291/1988, Torres v. Finland, 2 April 1990, para. 7.2; Concluding observations: Sri
Lanka (1995).
489 Communication 373/1989, Stephens v. Jamaica, 18 October 1995, para. 9.7.
490 Concluding observations: Switzerland (1996), para. 111; and Benin (2004), para. 16.
491 Joint study on secret detention by the Special Rapporteur on the promotion and protection of human
rights and fundamental freedoms while countering terrorism, the Special Rapporteur on Torture, the
Chair-Rapporteur on the Working Group on Enforced or Involuntary Disappearances, and the ViceChair of the Working Group on Arbitrary Detention, A/HRC/13/42. See also A/HRC/16/47, para 54.
91
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