Habeas Corpus - what nations have it?

[MobBoss]

Funny how I just filed a Motion for Habeas Corpus in a DUI case Monday. Hope the judge doesnt read opinion pieces on Yahoo news and rip me a new one...

Kinda reminds me of the phrase 'rumors of my death have been greatly exagerrated".

 

[innonimatu]

Ok, it seems that Wikipedia's article on Habeas Corpus is incomplete. While it began just as a feature of english common law it seems to have spread to most western countries, included even on its constitutions.

Irish Caesar: I guess that the exceptions introduced by Blair in the UK are very unusual, at the very least - even The Economist is now protesting the trend towards restricting rights to fight terrorism:

Governments argue that desperate times demand such remedies. They face a murderous new enemy who lurks in the shadows, will stop at nothing and seeks chemical, biological and nuclear weapons. This renders the old rules and freedoms out of date. Besides, does not international humanitarian law provide for the suspension of certain liberties “in times of a public emergency that threatens the life of the nation”?

There is great force in this argument. There is, alas, always force in such arguments. This is how governments through the ages have justified grabbing repressive new powers. During the second world war the democracies spied on their own citizens, imposed censorship and used torture to extract information. America interned its entire Japanese-American population—a decision now seen to have been a cruel mistake.

There are those who see the fight against al-Qaeda as a war like the second world war or the cold war. But the first analogy is wrong and the moral of the second is not the one intended.

A hot, total war like the second world war could not last for decades, so the curtailment of domestic liberties was short-lived. But because nobody knew whether the cold war would ever end (it lasted some 40 years), the democracies chose by and large not to let it change the sort of societies they wanted to be. This was a wise choice not only because of the freedom it bestowed on people in the West during those decades, but also because the West's freedoms became one of the most potent weapons in its struggle against its totalitarian foes.

If the war against terrorism is a war at all, it is like the cold war—one that will last for decades. Although a real threat exists, to let security trump liberty in every case would corrode the civilised world's sense of what it is and wants to be.

 

[Irish Caesar]

innonimatu-

Thanks, that was pretty much my guess on the situation, but I'm not particularly well versed in British history. An history like that one just makes the current tampering with the writ more damning, I think.

 

[JollyRoger]

innonimatu-

Thanks, that was pretty much my guess on the situation, but I'm not particularly well versed in British history. An history like that one just makes the current tampering with the writ more damning, I think.

9/11 changed everything. If you insist on keeping a pr-9/11 mindset, may I suggest something from the 10th or 11th century.

 

[Thorgalaeg]

9/11 changed what exactly?

 

[JollyRoger]

9/11 changed what exactly?

The right to question exactly what it changed, for one.

 

[Thorgalaeg]

You have not that right either?

 

[Rambuchan]

Ram-

Is this the first the writ has been, um, massaged in the UK? Just wondering if there had been any precedent of changing it around in the past.

'I don't know' is the short answer. 'I do know and can't remember and don't have time to search around to refresh my memory and inform myself and others' is the longer one. Sorry about that. But innonimatu's offering is most interesting, as is what JollyRoger is hinting at.

 

[EdwardTking]

9/11 changed everything. If you insist on keeping a pr-9/11 mindset, may I suggest something from the 10th or 11th century.

(1) The position is slightly different in the UK from in the USA.
9/11 was on its own not as significant as in USA as other matters.

(2) Restrictions on Habeas Corpus had been imposed after WW2
in response to (Irish) IRA terrorism. They were not at all popular.

(3) However Islamic terrorism replaced IRA terrorism, and had two
particularly escalatatory characteristics (i) suicide bombing
and (ii) a willingness to use WMD (e.g. chemicals weapons).

(4) As a simplification; there are:

A) Timing related issues. How long before Crime Identification/Charge/Trial
B) Non Timing Related Issues

(5) For issues B, not related to timing, the real drivers were two sets of legal decisions:

(i) UK appeal court judges started ruling that the UK could not according to european human rights laws deport foreign nationals strongly suspected (or even demonstrably proven) of terrorism back to their home countries where they could be expected to be unlawfully inprisoned, tortured, unlawfully tried and/or executed by state or by non state parties.

(ii) UK appeal court judges ruling illegal the indefinite detention (merely pending finding a country which would accept them and to which they agree to go to) of those falling in to 5 (i) above in e.g. Belsmarsh Detention Centre.


(6) The problem of what to do with (a) foreign nationals strongly suspected of terrorist intentions (but where there is not the proof beyond reasonable doubt necessary for a criminal conviction) and (b) and of foreign nationals released after serving prison sentences; all remaining at liberty in UK remains.


(7) Some of us here consider this legal position absurd.

For example suppose a notorious convicted Chinese/Iranian/Saudi US serial killer of children was to escape from death row; and hijack a plane to get to England. EU law would prohibit his return to China/Iran/Saudi/USA for execution. It is not even clear that we could inprison him for more than 28 days, and he would therefore be free to walk the streets of England.

In the absence of a legal remedy, we would no doubt have to rely on the person being found hung in his cell (cf UK British Harold Shipman and Fred West).


(8) For Issue A: timing related issues the problem of establishing the evidence to identify the particular crime, charge and try second or third generation islamicists of British nationality (radicalised by the Iraq war) within a particular time period, which is primarily what the 7 day via 14 day via 28 day via 90 day arguments are primarily about.


(9) There are also separate legal issues about banning protest and deporting alleged fraudulent financiers to the USA under legislation introduced as anti-terrorism.


(10) I hope this helps explain the UK context.

 

[schmiddi]

Anyone can point to a list of nations where Habeas Corpus exists? What's the real importance attributed to it, and what other provisions would replace it in nations that do not allow this legal action?

I'm not perfectly sure what you mean by habeas corpus existing, but a thing quite close to it is codified in 104 GG (article 104 of the german constitution)

 

[Masquerouge]

Meh.

Habeas Corpus is SOOOOOOO common law.

 

[FredLC]

[wiki]Habeas Corpus[/wiki]

Its quicker for me to type it here than on google..

Unless I'm horribly mistaken, Wikipedia's translation to habeas corpus is wrong. It does not mean "I command" at all; it means "have your body", as it is historically a "remedy" or "writ" against arbitrary arrest, though it's contour vary immensely from nation to nation.

As for the OP, Brazil has 4 constitutional "writs";

- Habeas Corpus: protects against any form of arbitrary arrests, or even the threat of arbitrary arrest. Can be used, for example, to halt an ongoing police investigation that lacks minimally convinceable indications of responsibility of the investigated for the crime.

- Habeas Data: Means "have your information". It is a fruit of the political moment in which the 88 Constitution was conceived. In the military regime it replaced, government used to have "secret" files regarding people. The habeas data guarantee to a citizen access to any public file concerning his own person.

- Mandate of Injunction: When a person has a certain right granted by law, but the exercise of that right is not viable for lack of regulations on how the usage of law predictions are to be made available, this remedy issues a formal request from the judiciary to the legislative or the executive, according to who is in fault, to fill the gap (recently, the STF - Brazilian's Supreme Cort - ruled that depending on the concreteness of the gap and other few circumstances, the judiciary can fill the gap by itself, acting as abstract legislator until the competent organ steps in and regulate properly.

- Mandate of Security: kind of a "do it all" solution. It's the formal remedy to confront any arbitrary decision from any public authority that does not fall within any other legal act - including the form remedies. This way, there simply isn't any kind of demand that is without means to be brought to the attention of the judiciary.

I actually didn't know that remedies were a rare thing; I guess i'm so used to them that I kind of see them as default. However, i do point out that just because a nation does not have an action called "Habeas Corpus", it does not mean it lacks a equivalent measure of some sort.

Regards .

 

[Till]

Unless I'm horribly mistaken, Wikipedia's translation to habeas corpus is wrong. It does not mean "I command" at all; it means "have your body", as it is historically a "remedy" or "writ" against arbitrary arrest, though it's contour vary immensely from nation to nation.

You're right. Habeas is second person conjunctive present time and translates to "You may have". The imperative for habere (which i presume is meant with "i command") is habe.

 

[Babbler]

Question: If habeas corpus is found in common law, what the civil law equivalent?

 

[Masquerouge]

Question: If habeas corpus is found in common law, what the civil law equivalent?

I have actually no idea.

From Wiki on Habeas Corpus:

In most civil law jurisdictions, comparable provisions exist, but they may not be called "habeas corpus."

yay.

To be honest, I'm not sure I understand what the fuss of Habeas Corpus is all about.

habeas corpus is the name of a legal action, or writ, through which a person can seek relief from unlawful detention of themselves or another person.

Mmmh okay. Nope, don't get it.

I don't see how you can be unlawfully detained.

Either you're in jail because you've been found guilty of a crime, or you're not because you've been deemed innocent.

When exactly will you make use of your habeas corpus nowadays in the States?

 

[Bill3000]

Either you're in jail because you've been found guilty of a crime, or you're not because you've been deemed innocent.

No, you go to jail if you're arrested, too, and are awaiting trial. It's used if you arn't actually accused of a legal crime.

 

[Masquerouge]

No, you go to jail if you're arrested, too, and are awaiting trial. It's used if you arn't actually accused of a legal crime.

So the habeas corpus is what is used to make you go out of jail when you're arrested.

Fine.

Why are you put in jail in the first place, then?

 

[Irish Caesar]

No, it's what keeps you from being thrown in jail by the government for a made-up crime.

We're paranoid about our government, remember?

 

[Masquerouge]

No, it's what keeps you from being thrown in jail by the government for a made-up crime.

We're paranoid about our government, remember?

heheheh

And who enforces the Habeas Corpus should you be thrown in jail for a made-up crime?

 

[innonimatu]

Why are you put in jail in the first place, then?

Suppose you are put in jail because a few policeman have caught you and dumped you there, or because a judge decided to order it. Suppose these policeman, or this judge, were nor acting lawfully, either out of ignorance or malice. This is a possible scenario.

My understanding is that Habeas Corpus is the right to a quick appeal for legal review of this situation, to another, different judge. This is why Habeas Corpus and its equivalents are so important. One more check on the system.

Amazingly there was no provision for such an appeal in many countries, well into the 20th century.