Universal-MigrationHRlaw-PG-no-6-Publications-PractitionersGuide-2014-eng

MIGRATION AND INTERNATIONAL HUMAN RIGHTS LAW | 223
grounds and circumstances of detention, judicial discretion to order
release. In A. v. Australia, 871 it found that allowing the court
to order release of detainees only if they did not fall within a particular
category of people was insufficient to provide an effective
judicial review of detention. It emphasised that “[c]ourt review
of the lawfulness of detention [. . .] must include the possibility of
ordering release [and must be], in its effects, real and not merely
formal.” 872 The Inter-American Court has held that the remedy of
habeas corpus “is not exercised with the mere formal existence
of the remedies it governs. Those remedies must be effective,
since their purpose [. . .] is to obtain without delay a decision
“on the lawfulness of [the] arrest or detention,” and, should they
be unlawful, to obtain, also without delay, an “order [for] [. . .]
release”. 873
• The review must meet standards of due process. Although it
is not always necessary that the review be attended by the same
guarantees as those required for criminal or civil litigation, 874 it
must have a judicial character and provide guarantees appropriate
to the type of deprivation of liberty in question. 875 Thus, proceedings
must be adversarial and must always ensure “equality
of arms” between the parties. Legal assistance must be provided
to the extent necessary for an effective application for release. 876
871 A. v. Australia, CCPR, op. cit., fn. 656.
872 C. v. Australia, CCPR, op. cit., fn. 350, para. 8.3, finding a violation of Article 9.4 where “the
court review available to the author was confined purely to a formal assessment of the question
whether the person in question was a “non-citizen” without an entry permit. There was
no discretion for a court [...] to review the author’s detention in substantive terms for this
continued justification.” See also, Danyal Shafiq v. Australia, CCPR, op. cit., fn. 687: “court
review of the lawfulness of detention under article 9, paragraph 4, which must include the
possibility of ordering release, is not limited to mere formal compliance of the detention with
domestic law governing the detention”; Bakhtiyari v. Australia, CCPR, op. cit., fn. 685: “As to
the claim under article 9, para. 4, [...] the court review available to Mrs Bakhtiyari would be
confined purely to a formal assessment of whether she was a “non-citizen” without an entry
permit. The Committee observes that there was no discretion for a domestic court to review
the justification of her detention in substantive terms. The Committee considers that the inability
judicially to challenge a detention that was, or had become, contrary to article 9, para. 1,
constitutes a violation of article 9, para. 4.” See also, F.K.A.G. v. Australia, CCPR, op. cit.,
fn. 656, para. 9.6. To the same effect see, Rafale Ferrer-Mazorra et al v. United States, IACHR,
op. cit., fn. 395, para. 235.
873 Suárez-Rosero v. Ecuador, IACtHR, Series C No. 35, Judgment of 12 November 1997,
para. 63; Vélez Loor v. Panama, IACtHR, op. cit., fn. 536, paras. 142–143.
874 A. and Others v. United Kingdom, ECtHR, op. cit., fn. 691, para. 203.
875 Bouamar v. Belgium, ECtHR, op. cit., fn. 868, para. 60. See, Vélez Loor v. Panama, IACtHR,
op. cit., fn. 536, paras. 107–109.
876 Ibid., paras. 60–63; Winterwerp v. Netherlands, ECtHR, op. cit., fn. 855, para. 60: “essential
that the person concerned has access to a court and the opportunity to be heard in person
or through a legal representative”; Lebedev v. Russia, ECtHR, Application No. 4493/04,
Judgment of 25 October 2007, paras. 84–89; Suso Musa v. Malta, ECtHR, op. cit., fn. 680,
para. 61.