Habeas Corpus

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Habeas Corpus

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The Advocacy Foundation, Inc. 1735 Market Street, Suite 3750 100 Edgewood Avenue, Suite 1690 Philadelphia, PA 19102 Atlanta, GA 30303 (878) 222-0450 Voice | Fax | SMS www.TheAdvocacyFoundation.org © The Advocacy Foundation, Inc. 2015 (All Rights Reserved) Habeas Corpus

Biblical Authority:

Biblical Authority 2 Isaiah 61:1 (NIV)   The Year of the LORD's Favor   1 The Spirit of the Sovereign LORD is on me, because the LORD has anointed me to preach good news to the poor. He has sent me to bind up the brokenhearted, to proclaim freedom for the captives and release from darkness for the prisoners,   Psalm 146:7   7 He upholds the cause of the oppressed and gives food to the hungry. The LORD sets prisoners free,     Hebrews 13:3     3 Remember those in prison as if you were their fellow prisoners, and those who are mistreated as if you yourselves were suffering.    Isaiah 42:7   7 to open eyes that are blind, to free captives from prison and to release from the dungeon those who sit in darkness.

Introduction:

3 Habeas Corpus is a recourse in law that may be applied before a court in cases where the unlawful detention or imprisonment of a person is suspected. A Writ of Habeas Corpus , also known as the Great Writ , is a summons with the force of a court order; it is addressed to the custodian (a prison official for example) and demands that a prisoner be taken before the court, and that the custodian present proof of authority, allowing the court to determine whether the custodian has lawful authority to detain the prisoner. Introduction

Introduction:

4 Any prisoner, or another person acting on his or her behalf, may petition the court, or a judge, for a writ of habeas corpus . One reason for the writ to be sought by a person other than the prisoner is that the detainee might be held incommunicado. Most civil law jurisdictions provide a similar remedy for those unlawfully detained, but this is not always called habeas corpus . For example, in some Spanish-speaking nations, the equivalent remedy for unlawful imprisonment is the amparo de libertad ('protection of freedom'). Introduction

Introduction:

5 Habeas Corpus has certain limitations . It is technically only a procedural remedy; it is a guarantee against any detention that is forbidden by law, but it does not necessarily protect other rights, such as the entitlement to a fair trial. So if an imposition such as internment without trial is permitted by the law, then habeas corpus may not be a useful remedy. The writ of habeas corpus is one of what are called the "extraordinary", "common law", or "prerogative writs", which were historically issued by the English courts in the name of the monarch to control inferior courts and public authorities within the kingdom. Introduction

Arbitrary Arrest & Detention:

6   Arbitrary Arrest and Arbitrary Detention are the arrest or detention of an individual in a case in which there is no likelihood or evidence that they committed a crime against legal statute, or in which there has been no proper due process of law. Arbitrarily arresting or detaining persons contradicts rule of law established in democracies as well as habeas corpus and is thereafter illegal in those regimes. Arbitrary Arrest & Detention

Arbitrary Arrest & Detention:

7 Virtually all individuals who are arbitrarily arrested are given absolutely no explanation as to why they are being arrested, and they are not shown any arrest warrant. Depending on the social context, many or the vast majority of arbitrarily arrested individuals may be held (people also get abused while in jail) incommunicado and their whereabouts can be concealed from their family, associates, the public population and open trial courts. Arbitrary Arrest & Detention

Arbitrary Arrest & Detention:

8 Administrative Detention is arrest and detention of individuals by the state without trial, usually for security reasons. A large number of countries, both democratic and undemocratic, resort to administrative detention as a means to combat terrorism, to control illegal immigration, or to protect the ruling regime. Unlike criminal incarceration (imprisonment) imposed upon conviction following a trial, administrative detention is a forward-looking mechanism. While criminal proceedings have a retrospective focus – they seek to determine whether a defendant committed an offense in the past – the reasoning behind administrative detention often is based upon contentions that the suspect is likely to pose a threat in the future. Arbitrary Arrest & Detention

International Habeas Corpus:

9 The United States inherited habeas corpus from the English common law. In England the writ was issued in the name of the monarch. When the original thirteen American colonies declared independence, and became a republic based on popular sovereignty, any person, in the name of the people, acquired authority to initiate such writs . The U.S. Constitution specifically includes the habeas procedure in the Suspension Clause (Clause 2), located in Article One, Section 9. This states that "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." Section 9 is under Article 1 which states, "legislative Powers herein granted shall be vested in the Congress of the United States ..." International Habeas Corpus

International Habeas Corpus:

10 Habeas corpus is also used as a legal avenue to challenge other types of custody such as pretrial detention or detention by the United States Bureau of Immigration and Customs Enforcement pursuant to a deportation proceeding. Other Countries that recognize Habeas Corpus include: Australia, Canada, France, Germany, India, Ireland, Italy, Malaysia, New Zealand, Pakistan, The Philippines, Scotland, and Spain International Habeas Corpus

Universal Declaration of Human Rights:

11 The Universal Declaration of Human Rights (UDHR) is a declaration adopted by the United Nations General Assembly on 10 December 1948 at the Palais de Chaillot , Paris. The Declaration arose directly from the experience of the Second World War and represents the first global expression of rights to which all human beings are inherently entitled. Universal Declaration of Human Rights

Universal Declaration of Human Rights:

12 The Declaration consists of thirty articles which have been elaborated in subsequent international treaties, regional human rights instruments, national constitutions, and other laws. The International Bill of Human Rights consists of the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on Civil and Political Rights and its two Optional Protocols. In 1976, after the Covenants had been ratified by a sufficient number of individual nations, the Bill took on the force of international law. Universal Declaration of Human Rights

The European Convention Article 5:

13 The European Convention on Human Rights ( ECHR ) (formally the Convention for the Protection of Human Rights and Fundamental Freedoms ) is an international treaty to protect human rights and fundamental freedoms in Europe. Drafted in 1950 by the then newly formed Council of Europe, the convention entered into force on 3 September 1953. All Council of Europe member states are party to the Convention and new members are expected to ratify the convention at the earliest opportunity. The European Convention Article 5

The European Convention Article 5:

14 The Convention established the European Court of Human Rights ( ECtHR ). Any person who feels his or her rights have been violated under the Convention by a state party can take a case to the Court. Judgements finding violations are binding on the States concerned and they are obliged to execute them. The establishment of a Court to protect individuals from human rights violations is an innovative feature for an international convention on human rights, as it gives the individual an active role on the international arena (traditionally, only states are considered actors in international law). The European Convention Article 5

The Habeas Corpus Act of 1679 in England:

15 The Habeas Corpus Act 1679 is an Act of the Parliament of England (31 Cha. 2 c. 2) passed during the reign of King Charles II by what became known as the Habeas Corpus Parliament to define and strengthen the ancient prerogative writ of habeas corpus , a procedural device to force the courts to examine the lawfulness of a prisoner's detention in order to safeguard individual liberty and thus to prevent unlawful or arbitrary imprisonment. The Habeas Corpus Act of 1679 in England

The Habeas Corpus Act of 1679 in England:

16 In criminal matters other than treason and felonies, the act gave prisoners or third parties acting on their behalf the right to challenge their detainment by demanding from the Lord Chancellor, Justices of the King's Bench, and the Barons of the Exchequer of the jurisdiction a judicial review of their imprisonment. The act laid out certain temporal and geographical conditions under which prisoners had to be brought before the courts. Jailors were forbidden to move prisoners from one prison to another or out of the country to evade the writ. The Habeas Corpus Act of 1679 in England

The Fifth Amendment US Constitution:

17 Whether a crime is "infamous" is determined by the nature of the punishment that may be imposed, not the punishment that is actually imposed; however, crimes punishable by death must be tried upon indictments. The historical origin of "infamous crime" comes from the infamia , an extreme punishment under Roman law by which a citizen was deprived his citizenship. The Fifth Amendment US Constitution

The Fifth Amendment US Constitution:

18 In United States v. Moreland , 258 U.S. 433 (1922), the Supreme Court held that incarceration in a prison or penitentiary, as opposed to a correction or reformation house, attaches infamy to a crime. In Mackin v. United States , 117 U.S. 348 (1886), the Supreme Court judged that "'Infamous crimes' are thus, in the most explicit words, defined to be those 'punishable by imprisonment in the penitentiary.'“. While it later in Green v. United States 356 U.S. 165 (1957), stated that "imprisonment in a penitentiary can be imposed only if a crime is subject to imprisonment exceeding one year". The Fifth Amendment US Constitution

The Habeas Corpus Restoration Act of 2007:

19 A bill, provisionally called the Habeas Corpus Restoration Act of 2007 , S. 185, passed the United States Senate Judiciary Committee on Thursday, June 7, 2007. The bill would restore the right for Guantanamo captives to access the US court system under the principle of habeas corpus, a right that had been stripped from them by the Military Commissions Act of 2006. The Habeas Corpus Restoration Act of 2007

The Habeas Corpus Restoration Act of 2007:

20 Rasul v. Bush In the summer of 2004 the United States Supreme Court ruled on the habeas corpus submission Rasul v. Bush , determining that the court had jurisdiction over Guantanamo , and that detainees had a right to an impartial tribunal to challenge their detention under habeas corpus. It was a landmark decision in detainee rights. A related decision was Hamdi v. Rumsfeld (2004), which ruled that United States citizens detained as suspected enemy combatants had the right to habeas corpus challenge of their detention. The Habeas Corpus Restoration Act of 2007

The Habeas Corpus Restoration Act of 2007:

21 Detainee Treatment Act of 2005 The Detainee Treatment Act of 2005 prohibited US military and intelligence personnel from treating detainees in ways inconsistent with Armed Forces regulations. But it also restricted Guantanamo detainees from filing new writs of habeas corpus. Additionally, the act did not close off the habeas corpus submission that were already in the works. The Habeas Corpus Restoration Act of 2007

Questions & Answers:

22 Questions & Answers

Thank You!:

23 The Advocacy Foundation, Inc. 1735 Market Street, Suite 3750 100 Edgewood Avenue, Suite 1690 Philadelphia, PA 19102 Atlanta, GA 30303 (878) 222-0450 Voice | Fax | SMS www.TheAdvocacyFoundation.org Thank You!

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