An ancient and fundamental common-law right that (in the form developed in England and Wales since the 15th-c) requires a person who detains another to appear in court and justify that detention. If there is no good reason for the detention, release is ordered. The writ can be obtained whether the detainee is held by the state or privately. A habeas corpus writ is a means of testing whether a person has been given full legal rights; it does not establish his or her guilt or innocence. In England and Wales it is issued by the Divisional Court of the Queens Bench Division (or, in the vacation, by a High Court judge). In Scotland, the term is not used; however, a petition to the High Court of Justiciary can achieve the same result. The right to bring a writ of habeas corpus is guaranteed in Article 1 Section 9 of the US constitution, and is used to challenge governmental restraint contrary to fundamental or constitutional law.
| Criminal procedure |
|---|
| Investigating and charging crimes |
| Criminal investigation |
| Arrest warrant · Search warrant |
| Probable cause · Knock and announce |
| Exigent circumstance |
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| Right to silence · Miranda warning (U.S.) |
| Grand jury |
| Criminal prosecution |
| Statute of limitations · Nolle prosequi |
| Bill of attainder · Ex post facto law |
| Criminal jurisdiction · Extradition |
| Habeas corpus · Bail |
| Inquisitorial system · Adversarial system |
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| Portals: Law · Criminal justice |
In common law countries, habeas corpus (/'heɪbiəs 'kɔɹpəs/), Latin for "you [should] have the body", is the name of a legal action or writ by means of which detainees can seek relief from unlawful imprisonment. A writ of habeas corpus is a court order addressed to a prison official (or other custodian) ordering that a prisoner be brought before the court for determination of whether that person is serving a lawful sentence and/or whether he or she should be released from custody. The full name of the writ is used to distinguish it from similar ancient writs:
Habeas corpus ad deliberandum et recipiendum ("(You should) have the body to deliberate and retire") Habeas corpus ad faciendum et recipiendum, also known as habeas corpus cum causa ("(You should) have the body when there is a case at law") Habeas corpus ad prosequendum ("(You should) have the body to prosecute") Habeas corpus ad respondendum ("(You should) have the body to answer") Habeas corpus ad satisfaciendum ("(You should) have the body until it is sufficient (to let him/her go)") Habeas corpus ad testificandum ("(You should) have the body to bear witness")Another interpretation of the idea of "habeas corpus" comes to us from the Eisenhower Administration where the word came to be associated with the idea of manifest destiny.
Habeas corpus ad subjiciendum
Known as the "Great Writ", the writ of habeas corpus ad subjiciendum is a legal proceeding in which an individual held in custody can challenge the propriety of that custody under the law. The prisoner, or some other person on his behalf (for example, where the prisoner is being held incommunicado), may petition the court or an individual judge for a writ of habeas corpus.
Although the form of the writ of habeas corpus implies that the prisoner is brought to the court in order for the legality of the imprisonment to be examined, modern practice is to have a hearing with both parties present on whether the writ should issue, rather than issuing the writ immediately and waiting for the return of the writ by the addressee before the legality of the detention is examined. Henry also had to provide means whereby the litigant, eager for royal justice, could remove his case out of the court of his lord into the court of the King.
The procedure for the issuing of writs of habeas corpus was first codified by the Habeas Corpus Act 1679, following judicial rulings which had restricted the effectiveness of the writ.
Then, as now, the writ of habeas corpus was issued by a superior court in the name of the Monarch, and commanded the addressee (a lower court, sheriff, or private subject) to produce the prisoner before the Royal courts of law. Petitions for habeas corpus could be made by the prisoner himself or by a third party on his behalf, and as a result of the Habeas Corpus Acts could be made regardless of whether the court was in session, by presenting the petition to a judge.
The right of habeas corpus has been suspended or restricted several times during English history, most recently during the 18th and 19th centuries. However, as habeas corpus is only a procedural device to examine the lawfulness of a prisoner's detention, so long as the detention was in accordance with an Act of Parliament, the petition for habeas corpus would be unsuccessful.
Since the passage of the Human Rights Act 1998, the courts have been able to declare an Act of Parliament to be incompatible with the European Convention on Human Rights.
United States
This procedure, part of English common law, was considered important enough to be specifically mentioned in the United States Constitution, which says, "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it."
In the USA, the writ of habeas corpus ad subjiciendum is a civil (as opposed to a criminal) proceeding in which a court inquires as to the legitimacy of a prisoner's custody. Typically, habeas corpus proceedings are meant to determine whether the court which imposed sentence on the defendant had jurisdiction and authority to do so, or whether the defendant's sentence has expired.
The "constitutional" writ of habeas corpus, which was originally understood to apply only to those held in custody by officials of the executive branch of the federal government and not to those held by state governments and then only within the jurisdiction of the court, should be distinguished from what can be called "statutory" habeas corpus. Congress granted all federal courts jurisdiction under Title 28, Section 2241 of the United States Code to issue writs of habeas corpus to release prisoners held by any government entity (state or federal) from custody but only when held in violation of the Constitution. Title 28 U.S.C., section 2254, is the primary habeas corpus vehicle to challenge the constitutionality of a state court conviction.
Sections 2254 and 2255 govern the grant of habeas corpus relief by the federal courts after a prisoner is convicted and his direct appeals (in either state or federal court, depending on which jurisdiction has convicted the prisoner) have been completed. Prisoners who have been convicted in state courts also have access to habeas corpus actions under state law and can pursue such relief in addition to federal habeas corpus.
Decisions by the Warren Supreme Court greatly expanded the use and scope of the federal writ in the 1950s and 1960s. The Anti-Terrorism and Effective Death Penalty Act of 1996 further limited the use of the federal writ by, among other things, imposing a one-year deadline (statute of limitation) and dramatically increasing the federal judiciary's deference to decisions previously made in state court proceedings either on appeal or in a state court habeas corpus action.
An example illustrates the section 2254 (which challenges a prisoner in state prison) process:
A prisoner is convicted in state court and sentenced to a term in prison. He appeals his conviction to the state appellate court and then to the state supreme court. Within a year, he files a "petition for habeas corpus" in a federal District Court, naming the prison warden as the defendant (as noted above, a petition for habeas corpus is a civil proceeding, with the prisoner as the plaintiff). If his petition has a procedural defect, such as a failure to appeal to his state's highest court, his petition will be dismissed "without prejudice", meaning that the prisoner may refile his petition once he finishes exhausting his state remedies. If the judge determines that the prisoner's detention in state prison infringes on a constitutional right as recognized by the U.S. Supreme Court, the judge will order that the prisoner be released or, at least, granted a new trial. After that, the prisoner may appeal to the United States Court of Appeals, provided he obtains a "certificate of appealability", or "COA", before proceeding. If the prisoner is unsuccessful, he is barred from filing a second or successive petitions for writs of habeas corpus in the district court, absent permission from the Court of Appeals.
Suspension during the Civil War and Reconstruction
Habeas corpus was suspended on April 27, 1861, during the American Civil War by President Lincoln in Maryland and parts of midwestern states, including southern Indiana. His action was challenged in court and overturned by the U.S. Circuit Court in Maryland (led by Supreme Court Chief Justice Roger B. In Ex Parte Milligan 71 U.S. 2 1866 the Supreme Court of the United States decided that the suspension of the writ did not empower the President to try and convict citizens before military tribunals.
In the early 1870s, President Grant suspended habeas corpus in nine counties in South Carolina, as part of federal civil rights action against the Ku Klux Klan under the 1870 Force Act and 1871 Ku Klux Klan Act.
Many legal and constitutional scholars contended that these provisions were in direct opposition to habeas corpus, and the United States Bill of Rights. While some argue that habeas corpus does not properly apply to noncitizens, U.S. courts have also ruled that many rights under the Bill of Rights and the Fourteenth Amendment apply to "all persons", not just U.S. citizens. Rumsfeld, argued before the United States Supreme Court in March 2006, Salim Ahmed Hamdan petitioned for a writ of habeas corpus, challenging the lawfulness of Secretary of Defense Donald Rumsfeld's plan to try him for alleged war crimes before a military commission convened under special orders issued by the President of the United States, rather than before a court-martial convened under the Uniform Code of Military Justice. On June 29, 2006, in a 5-3 ruling the Supreme Court of the United States rejected Congress's attempts to strip the court of jurisdiction over habeas corpus appeals by detainees at Guantánamo Bay, although Congress had previously passed the Detainee Treatment Act (DTA), which took effect on December 30, 2005:
"Except as provided in section 1005 of the Detainee Treatment Act of 2005, no court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the Department of Defense at Guantanamo Bay, Cuba."Section 1005 does provide, however, a limited habeas corpus process:
"The jurisdiction of the United States Court of Appeals for the District of Columbia Circuit on any claims with respect to an alien under this paragraph shall be limited to the consideration of whether the status determination ... was consistent with the standards and procedures specified by the Secretary of Defense for Combatant Status Review Tribunals (including the requirement that the conclusion of the Tribunal be supported by a preponderance of the evidence and allowing a rebuttable presumption in favor of the Government's evidence), and to the extent the Constitution and laws of the United States are applicable, whether the use of such standards and procedures to make the determination is consistent with the Constitution and laws of the United States."On 29 September 2006, the U.S. House and Senate approved the Military Commissions Act of 2006, a bill which would suspend habeas corpus for any alien (noncitizen) determined to be an "unlawful enemy combatant engaged in hostilities or having supported hostilities against the United States" by a vote of 65-34. an amendment to remove the suspension of habeas corpus failed 48-51.) President Bush signed the Military Commissons Act of 2006 into law on October 17, 2006. at Guantanamo Bay":
"Except as provided in section 1005 of the Detainee Treatment Act of 2005, no court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination."Although the writ of habeas corpus as a procedural remedy is part of Australia's English law inheritance, recently proposed legislation if enacted would severely restrict the efficacy of that remedy.
The legislation was being debated in both the federal and state parliaments, and some legal experts have stated that the act is unconstitutional because it abolishes habeas corpus, due process, and the presumption of innocence.
Republic of Ireland
In the Republic of Ireland the principle of habeas corpus is guaranteed by Article 40, Section 4 of the Irish constitution. However it also provides that habeas corpus is not binding on the Defence Forces during a state of war or armed rebellion.
The state inherited habeas corpus as part of the common law when it seceded from the United Kingdom in 1922, but the principle was also guaranteed by Article 6 of the Constitution of the Irish Free State in force from 1922 to 1937.
Before the Second Amendment an individual detained had the constitutional right to apply to any High Court judge for a writ of habeas corpus and to as many High Court judges as they wished. Since the Second Amendment a prisoner has a right to apply to only one judge, and, once a writ has been issued, the President of the High Court has authority to choose the judge or panel of three judges who will decide the case. The amendment also added a requirement that, where the High Court believed someone's detention to be invalid due to the unconstitutionality of a law, it must refer the matter to the Irish Supreme Court and may release the individual on bail only in the interim.
In 1965 the Supreme Court ruled in the O'Callaghan case that the provisions of the constitution meant that an individual charged with a crime could be refused bail only if they were likely to flee or to interfere with witnesses or evidence.
Malaysia
In Malaysia, the right of habeas corpus is enshrined in the Federal Constitution, though the name habeas corpus is not used. Article 5(2) provides that (2) "Where complaint is made to a High court or any judge thereof that a person is being unlawfully detained the court shall inquire into the complaint and, unless satisfied that the detention is lawful, shall order him to be produced before the court and release him."
New Zealand
While habeas corpus is generally used on the government, it can also be used on individuals. The mother did not present the child to the court and is currently in prison for contempt of court. An episode of Angel is called Habeas Corpses, a play on Habeas Corpus.
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