Habeas corpus

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Habeas Corpus (English pronunciation [⁠ heɪbiːəs kɔːpəs ⁠] ; Latin for "you shall bring the body") or writ of habeas corpus is a legal act on the Habeas Corpus Act back of the 1679th It is used, among other places, in England and Wales and, with a somewhat different meaning, in the United States.

This demands that a suspect must be brought before a judge within a short period of time and prohibits repeated arrests for the same offense. Detention without legal proceedings is therefore excluded.

In United States law , it is an instrument to obtain the release of a person from unlawful custody.


The legal institution comes from medieval English law . Habeas Corpus were the introductory words to detention test orders in the Middle Ages . The Habeas Corpus Act in England made the two words a term for the right of arrested persons to an immediate trial in court . Long after the Magna Carta and shortly before the Bill of Rights , this law was a historic step towards the rule of law in 1679 .

In medieval and absolutist England it was considered a prerogative of the king, through his judicial officials in the Shires make sheriffs to make arrest, people. The arrested person was then able to apply to be brought to a court to examine the legality of the arrest. The orders issued by the royal court to the sheriff on this request to bring the prisoner to court began, depending on the reason for the investigation, with the words:

  • habeas corpus ad subjiciendum - you should bring the person to make them an object (an interrogation, an accusation)
  • habeas corpus ad testificandum - you are to bring the person to get a testimony

Habeas is the 2nd person singular subjunctive from habere (to have, in this case: bring), corpus (body, in this case: person) is in the accusative singular. With the words "Praecipimus tibi quod corpus X. in prisona nostra sub custodia tua detentum ... habeas coram nobis" ("We order you to bring person X., who is being held in our prison under your care, before us" ) the court instructs a law enforcement officer on behalf of the king (= "we") to bring the prisoner to court. This instruction is called writ of habeas corpus” in English , the request of the detainee or his legal representative for a detention check is accordingly called “petition for a writ of habeas corpus” .

In England, Charles I abused arrest warrants by extorting payments from wealthy citizens with the threat of having them locked up if they refused to pay. Despite the Petition of Right issued by Parliament against this practice in 1628 , the king soon reverted to it. In 1641 Karl, who was in dire financial straits because of an uprising by the Scots and Irish, had to agree to a new parliamentary decree that only permitted arrests with appropriate justification. After the English Civil War (1642–1649), which culminated in the execution of Charles I, and the Commonwealth regime under Oliver Cromwell (1649–1660), Charles II came to power. This king, too, soon resumed the practice of arbitrary arrests, with opponents mostly being brought to areas outside of England where these restrictions did not apply. On May 27, 1679, during a period of weakness in his rule, Charles II was forced to sign the Habeas Corpus Amendment Act , which tightened the previous regulation. If the detainee presented a writ of habeas corpus , the king or the sheriff could no longer suppress this application by issuing an arrest warrant or delay the detention review. The detainee had to be brought before a judge within three days (or ten or twenty days if they were further away from the place of justice) and could not be taken out of the country under any circumstances. To give greater weight to the Habeas Corpus Act , officials were threatened with heavy fines if it was violated.

United States Constitution

The US Constitution of 1789 stipulated that the right to judicial review could only be temporarily suspended in the event of a riot or invasion if public safety so required. Abraham Lincoln made use of it during the Civil War in order to be able to hold southern soldiers as prisoners of war even without evidence of concrete acts of violence. In 2006, this right was abolished by Congress for non-US citizens classified as “ unlawful combatants ”, this classification being at the discretion of the government authorities and no objection to it was possible. The abolition took place against the background of denying the prisoners of Guantánamo a judicial review of their detention, but potentially affected all foreigners. After the attempt at reintroduction in 2007 failed in the Senate, the ruling was approved by the Supreme Court on June 12, 2008 in the Boumediene v. Bush declared unconstitutional, so that foreigners suspected of terrorism also have the right to have the legality of their imprisonment examined in civil courts.

December 31, 2011 signed by President Barack Obama , the National Verteidigungsbevollmächtigungsgesetz for the fiscal year 2012 ( NDAA ) "serious concerns". It allows the arrest of suspected terrorists by the military and indefinite detention in military prisons without trial, legal assistance or appeal. A shipment abroad or handover to foreign legal entities is possible. Arrests on US soil as well as US citizens are said to be carried out by non-military forces. In addition to numerous national and international media, the American Civil Rights Union and the American section of Amnesty International , among others, have sharply criticized the law.


Web links

Wikisource: Habeas Corpus Act  - Sources and full texts (English)

Individual evidence

  1. ^ Habeas Corpus Act of 1679
  2. ^ Karen L. Schultz: Habeas Corpus . In: American Jurisprudence . 2nd Edition. tape 39 .
  3. Habeas Corpus Act 1679 (PDF; 428 kB) The National Archives . Retrieved on October 4, 2013: "... after Service of Habeas Corpus, with the Exception of ..."
  4. ^ A brief history of habeas corpus . British Broadcasting Corporation . March 9, 2005. Retrieved October 4, 2013.
  5. "... that whenever any person or persons bring up a" habeas corpus "addressed to any sheriff, then within three days the said official must present the body of the detained party before the Lord Chancellor or the judges or barons of the said court of to whom this "writ" has run out, bring or have brought, unless the detention of the said party is over 20 miles away from the place where this court sits or will sit, and if beyond the distance of 20 miles and not over 100 miles, then within 10 days of the submission (of the "writs") and no longer ... " - " ... that whensoever any person or persons shall bring any habeas corpus directed to any sheriff ... that the said officer ... shall within three days ... bring or cause to be brung the body of the party so committed ... before the lord chancellor ... or the judges or barons of the said court from whence the said writ shall issue, unless the commitment o f the said party be in any place beyond the distance of twenty miles from the place ... where such court ... is or shall be residing, and if beyond the distance of twenty miles and not above one hundred miles then within the space of ten days of such delivery and not longer ... " , Habeas Corpus Act 1679 (quoted from The Founders' Constitution, University of Chicago )
  6. Some court decisions on the subject are listed in the Habeas Corpus article in the Lectric Law Library's Lexicon.
  7. Basic decision - Bush criticizes judge for Guantanamo ruling in Spiegel Online of June 12, 2008
  8. Obama signs defense bill, pledges to maintain legal rights of terror suspects . Washington Post. Retrieved December 31, 2011.
  9. Commentary: Trampling the Bill of Rights in Defense's Name. ( January 6, 2012 memento on the Internet Archive ), The Kansas City Star, December 14, 2011.
  10. ^ C. McGreal: Military given go-ahead to detain US terrorist suspects without trial , The Guardian, December 14, 2011.
  11. D. Parvaz: US lawmakers legalize indefinite detention , Al Jazeera, December 16, 2011.
  12. ^ Ilya Kramnik: New US Defense Act curtails liberties not military spending ( Memento from November 15, 2017 in the Internet Archive ), Voice of Russia, December 28, 2011.
  13. ^ A. Rosenthal: President Obama: Veto the Defense Authorization Act , The New York Times, November 30, 2011.
  14. ^ B. Gray and T. Carter: The Nation and the National Defense Authorization Act, World Socialist Web Site, December 27, 2011.
  15. ED Kain: The National Defense Authorization Act is the Greatest Threat to Civil Liberties Americans Face . In: Forbes. 5th December 2011
  16. Obama Signs NDAA . ACLU. December 31, 2011. Accessed December 31, 2011.
  17. ^ "Trust me" is not enough of a safeguard, says Amnesty International, as President Obama signs the NDAA into law . January 1, 2012. Retrieved January 1, 2012.