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Instrument
Provision
Text
9(5)
Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.
16(9)
Migrant workers and members of their families who have been victims of unlawful arrest or detention shall have an enforceable right to compensation.
3(17)
Detention must be in accordance with and authorised by law:
17. Insufficient guarantees in law to protect against arbitrary detention, such as no limits on the maximum period of detention or no access to an effective remedy to contest it, could also call into question the legal validity of any detention.
17. Insufficient guarantees in law to protect against arbitrary detention, such as no limits on the maximum period of detention or no access to an effective remedy to contest it, could also call into question the legal validity of any detention.
15
Article 2, paragraph 3, requires that in addition to effective protection of Covenant rights States Parties must ensure that individuals also have accessible and effective remedies to vindicate those rights. Such remedies should be appropriately adapted so as to take account of the special vulnerability of certain categories of person, including in particular children. The Committee attaches importance to States Parties’ establishing appropriate judicial and
administrative mechanisms for addressing claims of rights violations under domestic law. The Committee notes that the enjoyment of the rights recognized under the Covenant can be effectively assured by the judiciary in many different ways, including direct applicability of the Covenant, application of comparable constitutional or other provisions of law, or the interpretive effect of the Covenant in the application of national law. Administrative
mechanisms are particularly required to give effect to the general obligation to investigate allegations of violations promptly, thoroughly and effectively through independent and impartial bodies. National human rights institutions, endowed with appropriate powers, can contribute to this end. A failure by a State Party to investigate allegations of violations could in and of itself give rise to a separate breach of the Covenant. Cessation of an ongoing violation is an essential element of the right to an effective remedy.
administrative mechanisms for addressing claims of rights violations under domestic law. The Committee notes that the enjoyment of the rights recognized under the Covenant can be effectively assured by the judiciary in many different ways, including direct applicability of the Covenant, application of comparable constitutional or other provisions of law, or the interpretive effect of the Covenant in the application of national law. Administrative
mechanisms are particularly required to give effect to the general obligation to investigate allegations of violations promptly, thoroughly and effectively through independent and impartial bodies. National human rights institutions, endowed with appropriate powers, can contribute to this end. A failure by a State Party to investigate allegations of violations could in and of itself give rise to a separate breach of the Covenant. Cessation of an ongoing violation is an essential element of the right to an effective remedy.
I.1
Recognizing that everyone has the right to be free from arbitrary or unlawful deprivation of liberty, everyone is guaranteed the right to take proceedings before a court in order that that court may decide on the arbitrariness or lawfulness of the detention, and to obtain without delay appropriate and accessible remedies.
I.25
Any person arbitrarily or unlawfully detained is guaranteed access to effective remedies and reparations capable of providing restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition. Reparations should be adequate, effective and prompt. States shall undertake prompt, effective and impartial investigations wherever there is reasonable ground to believe that detention has been arbitrary. The duty applies in any territory under a State’s jurisdiction or wherever the State exercises effective control, or otherwise as the result of its actions or omissions of its servants. The right to reparation cannot be rendered ineffective by amnesties, immunities, statutes of limitations or other defence of the State.
I.26
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.
II.87
Judicial orders of release must be executed as soon as they become operative, as continued detention would be considered arbitrary.
II.88
A copy of the decision finding the detention arbitrary or unlawful is to be transmitted to the person concerned, with notification of the procedures for obtaining reparations. The person has the right to full compensation for material harm, elimination of the consequences of material harm and restoration of all rights that were either denied or infringed.
II.89
In the event of a detainee’s death, the right to compensation in accordance with established procedures falls to the detainee’s heirs.
II.90
The enforceable right to receive compensation for anyone determined to have been arbitrarily or unlawfully detained and for any harm suffered by the person as a result of unlawful deprivation of liberty, irrespective of whether the detaining authorities were responsible for such harm, shall be regulated by comprehensive legislation. Compensation shall also be made available to persons subjected to criminal charges that were subsequently dropped.
II.91
Compensation out of the public treasury of the State, federal entity or municipality for material damage suffered by a victim of arbitrary of unlawful detention may include earnings, pensions, social benefits and other monies lost as a result of the criminal prosecution; any property of the victim that was seized or otherwise appropriated by the State on the basis of a conviction or court ruling; compensation for lack of health care, rehabilitation, and accessible and reasonable accommodation in the place of detention; fines and trial costs borne by the victim as a result of the enforcement of the conviction; the victim’s legal costs; and other costs.
II.92
Victims of arbitrary or unlawful detention shall, in accordance with the Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, also have an enforceable right before the competent domestic authority to prompt and adequate:
(a) Restitution;
(b) Rehabilitation;
(c) Satisfaction;
(d) Guarantees of non-repetition.
(a) Restitution;
(b) Rehabilitation;
(c) Satisfaction;
(d) Guarantees of non-repetition.
O13.29(d)
We commit to ensure that any detention in the context of international migration follows due process, is non-arbitrary, based on law, necessity, proportionality, and individual assessments, is carried out by authorized officials, and for the shortest possible period of time, irrespective of whether detention occurs at the moment of entry, in transit, or proceedings of return, and regardless of the type of place where the detention occurs. We further commit to prioritize non-custodial alternatives to detention that are in line with international law, and to take a human rights-based approach to any detention of migrants, using detention as a measure of last resort only.
To realize this commitment, we will draw from the following actions:
(d) Provide access to justice for all migrants in countries of transit and destination who are or may be subject to detention, including by facilitating access to free or affordable legal advice and assistance of a qualified and independent lawyer, as well as access to information and the right to regular review of a detention order.
To realize this commitment, we will draw from the following actions:
(d) Provide access to justice for all migrants in countries of transit and destination who are or may be subject to detention, including by facilitating access to free or affordable legal advice and assistance of a qualified and independent lawyer, as well as access to information and the right to regular review of a detention order.
O13.29(f)
We commit to ensure that any detention in the context of international migration follows due process, is non-arbitrary, based on law, necessity, proportionality, and individual assessments, is carried out by authorized officials, and for the shortest possible period of time, irrespective of whether detention occurs at the moment of entry, in transit, or proceedings of return, and regardless of the type of place where the detention occurs. We further commit to prioritize non-custodial alternatives to detention that are in line with international law, and to take a human rights-based approach to any detention of migrants, using detention as a measure of last resort only.
To realize this commitment, we will draw from the following actions:
(f) Reduce the negative and potentially lasting effects of detention on migrants by guaranteeing due process and proportionality, that it is for the shortest period of time, that it safeguards physical and mental integrity, and that, at a minimum, access to food, basic health care, legal orientation and assistance, information and communication as well as adequate accommodation is granted, in accordance with international human rights law.
To realize this commitment, we will draw from the following actions:
(f) Reduce the negative and potentially lasting effects of detention on migrants by guaranteeing due process and proportionality, that it is for the shortest period of time, that it safeguards physical and mental integrity, and that, at a minimum, access to food, basic health care, legal orientation and assistance, information and communication as well as adequate accommodation is granted, in accordance with international human rights law.
33
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.