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Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.

The application of measures alternative to detention must be reviewed by a judicial authority and alternatives to detention must not be considered as alternatives to release.

Where a court determines that the deprivation of liberty is arbitrary or unlawful, it shall order a conditional or unconditional release from detention. Relevant authorities shall give immediate effect to any order for release.

Reaffirming that all individuals who have crossed or are seeking to cross international borders are entitled to due process in the assessment of their legal status, entry and stay, we will consider reviewing policies that criminalize cross border movements. We will also pursue alternatives to detention while these assessments are under way. Furthermore, recognizing that detention for the purposes of determining migration status is seldom, if ever, in the best interest of the child, we will use it only as a measure of last resort, in the least restrictive setting, for the shortest possible period of time, under conditions that respect their human rights and in a manner that takes into account, as a primary consideration, the best interest of the child, and we will work towards the ending of this practice.

Paragraph 4 of article 9 entitles anyone who is deprived of liberty by arrest or detention to take proceedings before a court, in order that the court may decide without delay on the lawfulness of the detention and order release if the detention is not lawful. It enshrines the principle of habeas corpus. Review of the factual basis of the detention may, in appropriate circumstances, be limited to review of the reasonableness of a prior determination.

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. It also applies to detention for vagrancy or drug addiction, detention for educational purposes of children in conflict with the law and other forms of administrative detention. Detention within the meaning of paragraph 4 also includes house arrest and solitary confinement. 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.

The object of the right is release (either unconditional or conditional) 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. 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.

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. 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. The court must have the power to order the detainee brought before it, regardless of whether the detainee has asked to appear.

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. After a court has held that the circumstances justify the detention, an appropriate period of time may pass, depending on the nature of the relevant circumstances, before the individual is entitled to take proceedings again on similar grounds.

'Unlawful' detention includes both detention that violates domestic law and detention that is incompatible with the requirements of article 9, paragraph 1, or with any other relevant provision of the Covenant. While domestic legal systems may establish differing methods for ensuring court review of detention, paragraph 4 requires that there be a judicial remedy for any detention that is unlawful on one of those grounds. For example, the power of a family court to order release of a child from detention that is not in the child’s best interests may satisfy the requirements of paragraph 4 in relevant cases.

Paragraph 4 entitles the individual to take proceedings before 'a court,' which should ordinarily be a court within the judiciary. Exceptionally, for some forms of detention, legislation may provide for proceedings before a specialized tribunal, which must be established by law and must either be independent of the executive and legislative branches or enjoy judicial independence in deciding legal matters in proceedings that are judicial in nature.

Paragraph 4 leaves the option of taking proceedings to the persons being detained or those acting on their behalf; unlike paragraph 3, it does not require automatic initiation of review by the authorities detaining an individual. Laws that exclude a particular category of detainees from the review required by paragraph 4 violate the Covenant. Practices that render such review effectively unavailable to an individual, including incommunicado detention, also amount to a violation. To facilitate effective review, detainees should be afforded prompt and regular access to counsel. Detainees should be informed, in a language they understand, of their right to take proceedings for a decision on the lawfulness of their detention.

Persons deprived of liberty are entitled not merely to take proceedings, but to receive a decision, and without delay. The refusal by a competent court to take a decision on a petition for the release of a detained person violates paragraph 4. The adjudication of the case should take place as expeditiously as possible. Delays attributable to the petitioner do not count as judicial delay.

The Covenant does not require that a court decision upholding the lawfulness of detention be subject to appeal. If a State party does provide for appeal or further instances, the delay may reflect the changing nature of the proceeding and in any event must not be excessive.