Habeas Corpus and Legality Principles in Detention
Habeas Corpus: Ensuring Lawful Detention
Habeas corpus mandates the immediate presentation of a detainee before a judge to rule on the legality of detention, as per Article 17.4 of the Constitution. This procedure focuses solely on the immediate pre-trial detention, serving as a means to cease irregular deprivation of liberty. The application for habeas corpus must be made to the judge where the person is detained and can be initiated by:
- The detainee, spouse, or similar relation, descendants, ascendants, siblings, or legal representatives of minors and disabled persons.
- The Public Prosecutor’s Office.
- The Ombudsman.
Principle of Legality: Article 25.1
Article 25.1 of the Constitution establishes the principle of legality, rooted in freedom and legal certainty. It links to the prohibition of arbitrary actions by public authorities and the right to objectivity and fairness. This principle includes:
1. Material Guarantee: Applies to penal and administrative sanctions, limiting individual freedom.
2. Formal Assurance: Requires clear standards of conduct and sanctions, necessitating a legal basis for punitive actions.
These guarantees require:
- Existence of a law (Lex scripta).
- The law is prior to the sanctioned event (Lex previa).
- The law describes a strictly determined course (Lex certa).
Right to Legal Counsel
Detainees have the right to appoint a lawyer and request their presence in proceedings. Officials must inform detainees of this right and refrain from recommending specific lawyers. If a detainee does not appoint a lawyer, one will be automatically assigned.
Solitary Confinement Modifications:
- a) Lawyer is automatically assigned.
- b) Right to inform family of arrest and custody location.
- c) No right to a private interview with the lawyer.
Judicial Control of Detention Lawfulness
Habeas corpus serves as the ultimate safeguard of personal liberty, allowing a detainee to challenge their detention before a judge.