Habeas Corpus - what nations have it?

[Irish Caesar]

heheheh

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

Well, I think any time it's come up as an issue, the government has made some BS reason as to why your rights to the writ of habeas corpus don't apply...

 

[FredLC]

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.

Hehehe. Thanks... but I actually knew that. My question was rhetorical.

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

Well, Brazil is historically Civil Law*, and we have habeas Corpus expressly predicted in text since the first republican constitution in 1891; and, in fact, it was already admitted in the old imperial regime, only not expressly in the constitution.

Just because a given institute was born in a certain system, does not mean itis incompatible with others; Brazil adopts also a mix of the European concentrated and the American diffuse constitutional control, for example.

* - Recently, the 45th constitutional amendment has pushed Brazil nearer to common law; some writers are arguing today that Brazil is no longer common law since last year, when such amendment was approved, but a worldwide unique hybrid of common and civil law.

Regards .

 

[FredLC]

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?

Oh, it happens quite frequently. Overzealous officers, people arrested on the bases of thin evidence just for public show, people whose jail time has expired but the release paperwork takes to long in the bureaucracy, wrong, fake or prepared flagrants, arrests without judicial order, no Miranda Rights reading, an arresting regime harder than the one sentenced, etc...

Happen more frequently in cautionary arresting (don't know the technical term in US english); rarely in sentences given after full procedure, where preliminary measures are expent and all necessary evaluation has been done.

Regards .

 

[Bill3000]

no Miranda Rights reading

Buh? You have those, or more importantly, call them those, in Brazil?

 

[FredLC]

No, not really. I made this post considering the reality of the majority here.

In Brazil there is no need for a "right to remain silent" because the police inquiry is merely an informative procedure, and all testimonial evidence must be repeated in a judicial audition in which the defendant is assisted by his lawyer. hence, there is no risk that he or she will involuntarily create proof against him/herself.

It's a completely different mentality regarding the process instruction. I like Brazilian system better because, as it demands less formality from police authorities, there is virtually no possibility of ruining a case because a cop screwed up a reading.

All formality is concentrated in the hands of authorities best capable of handling them, like judges or justice promoters (loosely analogous to the character of "DA"s in US legal system, though promoters have a higher status - analogous to judges - and enhanced attributions).

Nevertheless, unless a person is caught in the act (flagrant), he/she cannot be arrested except with a judicial order. That's the extent of formality for Cops here.

Regards .

 

[joycem10]

heheheh

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

Where you mostly see it is cases where a guy is being held op shaky evidence or illegally obtained evidence. For instance a DUI where the stop is alleged by the Defendant to be an illegal stop lacking probable cause. In that event the attorney repping the guy/gal would (this is PA centric) file a Motion for Writ of Habeas Corpus asking for a dismissal of the charges and the release of the Defendant from custody. The enforcement would come from the motion judge who rules favorably on said motion and orders the Defendant released.