
Contents
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I. The Right to be Informed of the Reasons for the Arrest I. The Right to be Informed of the Reasons for the Arrest
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A. Introduction A. Introduction
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1. The Texts 1. The Texts
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2. The Purpose of the Guarantee 2. The Purpose of the Guarantee
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3. The Characterization of the Right by the European Court 3. The Characterization of the Right by the European Court
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B. The Elements of the Right to Information B. The Elements of the Right to Information
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1. The Scope of the Right to be Informed of the Reasons for the Arrest 1. The Scope of the Right to be Informed of the Reasons for the Arrest
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2. The Nature of the Information to be Conveyed 2. The Nature of the Information to be Conveyed
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3. The Addressee of the Information 3. The Addressee of the Information
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4. The Time Element 4. The Time Element
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5. The Form of the Information 5. The Form of the Information
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II. The Right to Habeas Corpus Proceedings II. The Right to Habeas Corpus Proceedings
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A. Introduction A. Introduction
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1. The Texts 1. The Texts
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2. The Origin and Purpose of the Right 2. The Origin and Purpose of the Right
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(a) The Origin of the Right to Habeas Corpus Proceedings (a) The Origin of the Right to Habeas Corpus Proceedings
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(b) The Purpose of the Guarantee (b) The Purpose of the Guarantee
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3. The Issues to be Discussed 3. The Issues to be Discussed
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B. The Scope of the Right to Take Habeas Corpus Proceedings B. The Scope of the Right to Take Habeas Corpus Proceedings
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1. The Autonomous Character of the Guarantee 1. The Autonomous Character of the Guarantee
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2. The Condition of Being Deprived of One’s Liberty 2. The Condition of Being Deprived of One’s Liberty
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3. The Scope of Application in Time 3. The Scope of Application in Time
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(a) Immediate Applicability (a) Immediate Applicability
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(b) Release Pending Habeas Corpus Proceedings (b) Release Pending Habeas Corpus Proceedings
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4. Habeas Corpus where the Detention was Ordered by a Court 4. Habeas Corpus where the Detention was Ordered by a Court
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(a) The ‘Doctrine of Incorporation’ (a) The ‘Doctrine of Incorporation’
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(b) A Further Development (b) A Further Development
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5. The Exceptions to the Incorporation Doctrine 5. The Exceptions to the Incorporation Doctrine
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(a) Confinement Linked to ‘Unsoundness of Mind’ (a) Confinement Linked to ‘Unsoundness of Mind’
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(b) Detention of Dangerous Convicts (b) Detention of Dangerous Convicts
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(c) Sentences against Juvenile Offenders (c) Sentences against Juvenile Offenders
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(d) Detention for Non-payment of a Fine (d) Detention for Non-payment of a Fine
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C. The Scope of Judicial Control under Paragraph 4 C. The Scope of Judicial Control under Paragraph 4
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1. General Observations 1. General Observations
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2. Ineffective Remedies 2. Ineffective Remedies
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3. Issues of National Security 3. Issues of National Security
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D. Procedural Requirements D. Procedural Requirements
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1. Introduction 1. Introduction
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2. The Right to Access to a Court 2. The Right to Access to a Court
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(a) Independence and Impartiality (a) Independence and Impartiality
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(b) The Power to Release (b) The Power to Release
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3. The Procedural Rights 3. The Procedural Rights
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(a) The Right to an Oral Hearing (a) The Right to an Oral Hearing
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(b) Equality of Arms and Adversarial Proceedings (b) Equality of Arms and Adversarial Proceedings
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(c) The Right of Access to the File (c) The Right of Access to the File
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(d) The Right to Legal Assistance (d) The Right to Legal Assistance
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(e) A Presumption pro libertate? (e) A Presumption pro libertate?
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(f) A Right to Appeal? (f) A Right to Appeal?
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(g) A Right to Submit Multiple Applications (g) A Right to Submit Multiple Applications
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4. The Requirement of Speediness 4. The Requirement of Speediness
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(a) Issues Related to the Time Element (a) Issues Related to the Time Element
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(b) An Illustration taken from the Case-law (b) An Illustration taken from the Case-law
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(c) Plurality of Remedies (c) Plurality of Remedies
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III. The Right to Compensation III. The Right to Compensation
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A. Introduction A. Introduction
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1. The Texts 1. The Texts
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2. The Origins of the Guarantee 2. The Origins of the Guarantee
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3. The Characteristics of the Right 3. The Characteristics of the Right
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B. The Prerequisites of Compensation B. The Prerequisites of Compensation
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1. Detention which is ‘Unlawful’/‘in Contravention’ of Paragraphs 1–4 of Article 5 1. Detention which is ‘Unlawful’/‘in Contravention’ of Paragraphs 1–4 of Article 5
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(a) In General (a) In General
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(b) Problems Occurring where the Convention is Not Yet in Force (b) Problems Occurring where the Convention is Not Yet in Force
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(c) Procedural Problems (c) Procedural Problems
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2. Damage 2. Damage
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C. The Amount of Compensation C. The Amount of Compensation
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18 The Rights Guaranteed to all Persons Deprived of their Liberty
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Published:April 2006
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Abstract
Despite the obvious similarities between the texts of the International Covenant on Civil and Political Rights (ICCPR), the European Convention on Human Rights (ECHR), and the American Convention on Human Rights (ACHR) when it comes to the rights guaranteed to all persons deprived of their liberty, quite a number of differences can be observed, particularly in relation to the references to promptness. The ICCPR calls for information at the time of arrest, the ECHR obliges the authorities to convey the information promptly, and the ACHR makes no reference to time in the obligation to inform of the reasons of arrest. All three texts require that information be given in relation to any charges. This must occur promptly in all three cases. This chapter discusses the right to be informed of the reasons for the arrest, the right to habeas corpus proceedings, and the right to compensation.
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