9: habeas corpus Flashcards
habeas corpus in France
no explicit mention in the constitution
article 7 of the 1789 declaration explaining that no one can be accused, arrested or detained except in cases determined by the law and following the procedure it prescribed
also article 9 providing that there should be no undue harshness and no more than what is required during the arrest to secure the person and protect public order
article 66 (narrow view)
interpretation of article 66 in France
distinction between deprivation of individual liberty and restriction of freedom of movement
CC says it’s not involved if you’re talking only about restrictions of the freedom of movement
CC interprets that the judicial authority is the guardian of the freedom of the individual only as the meaning that they should take care of whether you’re arbitrarily detained or not
habeas corpus in the ECHR
article 5 as the right to liberty and security
- section 1 explains in which cases you can be deprived of liberty
- section 2 explains that you should be promptly informed in a language you can understand of why you ar detained
- section 3 is about the fact that you should be brought before a judge and have a trial within reasonable time
applicability of habeas corpus in the ECHR
only triggered in cases of deprivation of liberty (not restriction on liberty of movement)
habeas corpus in the US
article I, section 9
- only congress can suspend the right
bill of attainder in the US
means there’s no due process and you are just sentenced through the bill
liberty in the due process clause in the US
court has a broad definition of liberty that encompasses freedom from physical restraint, parental rights, deportation and exclusion proceedings, liberty interests for prisoners, reputation as a liberty interest, etc.
different compared to the CC or ECHR because there are other constitutional provisions protecting liberty that aren’t about detention
freedom from physical restraint: civil commitment in the US
no constitutional reason to detain someone if they’re not dangerous and can take care of themselves or someone else can
need clear and convincing evidence that they are dangerous and no one can take care of them (between reasonable doubt and preponderance of evidence)
federal habeas corpus in the US
to have habeas corpus, you need to be in custody of a state or federal prison
tried/convicted in the state but you can challenge that through habeas corpus saying you were convicted in a non-constitutional manner
conditions
- exhaustion of remedies available in the courts of the state
- absence of available state corrective process
- circumstances render such process ineffective to protect applicant’s rights
habeas corpus: post-conviction remedies in the US
state prison rule cannot prevent prisoners from filing a writ of habeas corpus in federal courts
state cannot bar inmates from helping each other prepare petitions
prisoners have constitutional right of access to courts so they should be able to access the writ of habeas corpus or have access to a law library or order forms that enable them to prepare and file meaningful legal papers
