PART B – International standards in the Istanbul Protocol
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3. FURTHER SAFEGUARDS
a. Habeas Corpus
An important safeguard for detainees is the
right to be able to challenge the legality of
their detention in their national courts by
way of habeas corpus proceedings. Under
these proceedings the competent detaining
authority is required to bring a detainee before a judge and provide a legal rationale for
his continued detention. The right of habeas
corpus is contained in Article 9(4) of the
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ICCPR and the Human Rights Committee
has confirmed that it is a right which must
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apply without exception.
Habeas corpus contributes to the protection of the detainee as it enables a judge
to confirm “whether the detainee is still
alive and whether or not he or she has been
subjected to torture or physical or psychological abuse.”44 This may be done by the
judge seeking, “access to the detainee and
verify his/her physical condition.”45 Judges
should be alert to any signs, such as the detainee’s condition, appearance and behaviour, and the conduct of police officers or
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prison guards and others present. A judge
should record any allegations of torture, order a medical examination where there are
grounds for suspicion that the detainee may
have been tortured and take the requisite
steps to ensure a prompt and full investigation of the allegations.47
Lawyers may seek to ensure availability of,
and use habeas corpus proceedings in the
following ways:
• Where the right of habeas corpus
is not recognised or not guaranteed in line with international
standards, advocate for its inclusion as a fundamental right in
the Constitution and in relevant
legislation, in line with relevant
international standards
• Where available, seek to use the
right of habeas corpus at the
earliest opportunity, challenging any delay in granting access
before national courts and/or regional and international human
rights bodies as appropriate
• Use habeas corpus proceedings
to raise allegations of torture
• Call on the judge or judicial body
to examine the substance of the
complaint and to take the requisite steps to prevent further torture by transferring the detainee
from his or her current place of
detention and to initiate an investigation.
b. Refusing to admit as evidence
confessions or statements based
upon torture
The UN Convention against Torture requires
that any statement made as a result of torture or other coercion, including confessions by the accused or statements made by
witnesses, be excluded by the court, except
in proceedings against the alleged perpetrators of torture.48 The rule that confessions or
statements extracted under torture should
not be used as evidence has also been ac-
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