CCPR/C/GC/35
may, in appropriate circumstances, be limited to review of the reasonableness of a prior
determination.125
40.
The right applies to all detention by official action or pursuant to official
authorization, including detention in connection with criminal proceedings, military
detention, security detention, counter-terrorism detention, involuntary hospitalization,
immigration detention, detention for extradition and wholly groundless arrests. 126 It also
applies to detention for vagrancy or drug addiction, detention for educational purposes of
children in conflict with the law127 and other forms of administrative detention. 128 Detention
within the meaning of paragraph 4 also includes house arrest and solitary confinement.129
When a prisoner is serving the minimum duration of a prison sentence as decided by a court
of law after a conviction, either as a sentence for a fixed period of time or as the fixed
portion of a potentially longer sentence, paragraph 4 does not require subsequent review of
the detention.130
41.
The object of the right is release (either unconditional or conditional)131 from
ongoing unlawful detention; compensation for unlawful detention that has already ended is
addressed in paragraph 5. Paragraph 4 requires that the reviewing court must have the
power to order release from the unlawful detention. 132 When a judicial order of release
under paragraph 4 becomes operative (exécutoire), it must be complied with immediately,
and continued detention would be arbitrary in violation of article 9, paragraph 1.133
42.
The right to bring proceedings applies in principle from the moment of arrest and
any substantial waiting period before a detainee can bring a first challenge to detention is
impermissible.134 In general, the detainee has the right to appear in person before the court,
especially where such presence would serve the inquiry into the lawfulness of detention or
where questions regarding ill-treatment of the detainee arise.135 The court must have the
power to order the detainee brought before it, regardless of whether the detainee has asked
to appear.
43.
Unlawful detention includes detention that was lawful at its inception but has
become unlawful because the individual has completed serving a sentence of imprisonment
or the circumstances that justify the detention have changed. 136 After a court has held that
the circumstances justify the detention, an appropriate period of time may pass, depending
125
126
127
128
129
130
131
132
133
134
135
136
1051/2002, Ahani v. Canada, para. 10.2; 754/1997, A. v. New Zealand, para. 7.3.
248/1987, Campbell v. Jamaica, para. 6.4; 962/2001, Mulezi v. Democratic Republic of the Congo,
para. 5.2; 1051/2002, Ahani v. Canada, para. 10.2; 1061/2002, Fijalkowska v. Poland, para. 8.4;
291/1988, Torres v. Finland, para. 7.4; 414/1990, Mika Miha v. Equatorial Guinea, para. 6.5.
265/1987, Vuolanne v. Finland, para. 9.5; see concluding observations: Rwanda
(CCPR/C/RWA/CO/3, 2009), para. 16 (recommending abolition of detention for vagrancy).
See concluding observations: Republic of Moldova (CCPR/CO/75/MDA, 2002), para. 11.
1172/2003, Madani v. Algeria, para. 8.5; 265/1987, Vuolanne v. Finland, para. 9.5.
954/2000, Minogue v. Australia, para. 6.4; 1342/2005, Gavrilin v. Belarus, para. 7.4. Article 14,
paragraph 5, however, guarantees criminal defendants the right to a single appeal from an initial
conviction to a higher court (general comment No. 32, para. 45).
473/1991, Barroso v. Panama, paras. 2.4 and 8.2 (habeas corpus for bail).
1324/2004, Shafiq v. Australia, para. 7.4.
856/1999, Chambala v. Zambia, para. 7.2.
291/1988, Torres v. Finland, para. 7.2 (seven days).
See Body of Principles (note 102 above), principle 32, para. 2; general comment No. 29, para. 16.
1090/2002, Rameka v. New Zealand, paras. 7.3–7.4.
13