Detention Without Judicial Review: Constitutional Limits and Remedies
On 10 March 2025, police in Luanda arrested João Miguel without a warrant, alleging he was found in possession of a stolen motorcycle. He was held at a police station for 72 hours before being presented to the Public Prosecutor. The prosecutor ordered his continued detention pending investigation, and he was not brought before a judge until 20 March 2025-10 days after arrest. João’s lawyer filed a habeas corpus petition on 15 March, but the court only scheduled a hearing for 25 March. The Constitution of Angola (Article 30) states that anyone deprived of liberty must be brought before a judge within 48 hours, and that preventive detention cannot exceed 90 days without judicial review. The lawyer argues that the detention is unlawful and that the delay violated João’s fundamental rights.
1. Identify the constitutional rights violated and explain whether the 48-hour rule was breached.
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The 48-hour rule in Article 30 of the Constitution of Angola requires that anyone arrested be brought before a judge within 48 hours. João was arrested on 10 March and only appeared before a judge on 20 March, 10 days later. This is a clear breach. Additionally, the prosecutor’s order for continued detention without immediate judicial review violates the right to liberty and security. The delay in the habeas corpus hearing (filed 15 March, hearing 25 March) further undermines the right to effective judicial protection. The violations include: (1) right to liberty and security (Article 30), (2) right to be informed of charges and to prompt judicial review, and (3) right to effective remedy (Article 29). The 48-hour rule was breached because the first judicial presentation occurred after 10 days, not within 2 days.
2. What should the court do with the habeas corpus petition, and what remedies are available?
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The court should grant the habeas corpus petition because the detention is unlawful due to the failure to comply with the 48-hour rule. The court must order João’s immediate release unless the prosecution can justify the delay with exceptional circumstances (none are present). The court should also declare the detention from 12 March onwards unlawful. Remedies include: (1) immediate release, (2) compensation for unlawful detention under civil liability of the state, and (3) disciplinary or criminal action against the officials responsible for the delay. The court should also ensure that any evidence obtained during the unlawful detention is excluded if it violates fair trial rights. The hearing on 25 March should be expedited, but the court can decide the petition on the papers if the facts are clear.