大法官解釋 釋字第708號 |
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| 公佈日期： |
| 解釋爭點 |
| 外國人受驅逐前由移民署為暫時收容，未有即時司法救濟；又逾越暫時收容期間之收容，非由法院審查決定，均違憲？ |
| [10]或因法條構造不同，大法官歷來解釋是並不區分人身自由之「剝奪」（Entziehung, depriviation）與「限制」(Beschränkung, restriction)。參見釋字第三八四號、第三九二號、第五八八號解釋。 [11]See ECHR §5(emphasis added): 1.Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a)the lawful detention of a person after conviction by a competent court; (b)the lawful arrest or detention of a person for noncompliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law; (c)the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; (d)the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority; (e)the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants; (f)the lawful arrest or detention of a person to prevent his effecting an unauthorized entry into the country or of a person against whom action is being taken with a view to deportation or extradition. 2.Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him. 3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial. 4.Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. 5.Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation. [12]See ICCPR §9(emphasis added): 1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law. |
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