This is a procedure that aims to remedy an illegal detention. It is a right that the malaysian phone numbers detainee has. He can ask the Court to determine whether his detention has been carried out under the legally established conditions. It does not work like a magic spell nor does it serve to make the police release you if you invoke it.
Through this procedure, any person illegally detained may be immediately placed at the disposal of the competent judicial authority.
The Habeas Corpus Procedure
Organic Law 6/1984, of May 24 , regulates this procedure. It is an organic law because it regulates a fundamental right .
The following have the legitimacy to initiate this procedure:
The person deprived of liberty, his/her spouse or person with a similar emotional relationship, descendants, ascendants, siblings and, where applicable, with respect to minors and incapacitated persons, their legal representatives.
The Public Prosecutor's Office.
The Ombudsman.
It may be initiated, ex officio, by the competent Judge.
When is a person considered to be illegally detained ? Article 1 of the Organic Law gives us the answer.
a) Those who are detained by an authority, agent thereof, public official or private individual, without the legal assumptions being met, or without having complied with the formalities provided and requirements demanded by law.
b) Those who are illegally detained in any establishment or place.
c) Those who are detained for a period longer than that stipulated in the laws, if after said period they are not released or handed over to the Judge nearest to the place of detention.
d) Those deprived of liberty whose rights guaranteed to all detained persons by the Constitution and procedural laws are not respected.
How Habeas Corpus is initiated
The procedure shall be initiated, except when it is initiated ex officio, by means of a written document or appearance , and the intervention of a lawyer or solicitor is not mandatory. The Judge shall examine the concurrence of the requirements for its processing and shall forward it to the Public Prosecutor's Office . Subsequently, by means of an order , he shall agree to initiate the procedure, or, where appropriate, shall deny the request as it is inadmissible.
Before issuing a decision, the Judge will hear the person deprived of liberty (or his legal representative or lawyer, if he has appointed one), as well as the Public Prosecutor's Office; in the same act, he will hear the authority, agents or public official who detained him. The evidence provided by the parties will be collected and within 24 hours , the Judge will issue a decision.
Completion of the procedure
The Judge, by means of a reasoned ruling, will adopt one of the following resolutions:
The proceedings are archived and it is declared that the detention is in accordance with the law.
If it is considered that the circumstances of art. 1 are met, the order will determine one of the following measures : release; that the person be kept in custody but in a different establishment or under the custody of different persons; that the person arrested be brought before a court immediately (if the legally established period has already elapsed).