International Conference/ ‘Steps to freedom’ project
Riga, 15-16 December 2011
International Legal Framework
on Alternatives to Detention
J.E. KAUTZMANN
UNHCR Representation to the European institutions in Strasbourg
International Human Rights law
Prohibition of unlawful/arbitrary detention
Arts 3 and 9 Universal Declaration of Human Rights
Art 9(1) International Covenant on Civil and Political
Rights
Art 31 Convention relating to the status of Refugees
Art 5 European Convention on Human Rights
Art 6 EU Charter of Fundamental Rights
Other Regional instruments
International Legal Framework
International Human Rights law
Basic Principles
Lawfulness / Detention must be in accordance with &
authorized by law
Necessity /Detention must not be arbitrary – i.e. must be
reasonable, necessary, proportionate and nondiscriminatory
International Legal Framework
International Refugee Law
Article 31 – 1951 Convention relating to the Status of
Refugee
Detention should only be resorted to in cases of necessity:
– exempts refugees from being punished on account of their illegal
entry/presence, provided they present themselves without delay
to the authorities to show good cause for their illegal
entry/presence
– states shall not apply restrictions on the movements of refugees
other than those which are necessary
International Legal Framework
International Refugee Law
Executive Committee Conclusions No. 44
13 October 1986
The ExCom (…)
(b) Expressed the opinion that in view of the hardship which it involves,
detention should normally be avoided.
If necessary, detention may be resorted to only on grounds prescribed by law
1. to verify identity
2. to determine the elements on which the claim to refugee status or asylum is
based
3. to deal with cases where refugees or asylum-seekers have destroyed their
travel and/or identity documents or have used fraudulent documents in order to
mislead the authorities of the State in which they intend to claim asylum or
4. to protect national security or public order
(…)
International Legal Framework
International Refugee Law
February 1999 / UNHCR Revised Guidelines on
applicable criteria and standards relating to the
detention of asylum-seekers
Guideline 2: Asylum-seekers should not be detained
Guideline 3: Exceptional Grounds for Detention
1. cases in which identity is undetermined or in dispute
2. Preliminary interview
3. cases where there is an intention to mislead the authorities
4. cases where there is evidence to show that the asylumseeker has criminal antecedents and/or affiliations likely to
pose a risk to public order/national security
Guideline 4: Alternatives to Detention
International Legal Framework
European Human Rights Law
Article 5 European Convention on Human Rights
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:
(...) f)
the lawful arrest or detention of a person to prevent his
effecting an unauthorised entry into the country or
[first limb]
of a person against whom action is being taken with a
view to deportation or extradition.
[second limb]
International Legal Framework
European Human Rights Law
Art 5 ECHR – Deprivation of liberty (Notion)
If deprivation of liberty = Article 5 applies
- Airport transit zones
- Reception centres
Amuur v. France
Shamsa v. Poland
Merie v. The Netherlands
- UNHCR Mandate / Detention pending deportation
(failed asylum-seekers)
International Legal Framework
European Human Rights Law
Article 5 ECHR – Compatibility test
Control of the lawfulness / Quality of the law
Nolan and K. v. Russia
Control of the absence of arbitrariness (4 criteria)
Saadi v. The United Kingdom
International Legal Framework
European Human Rights Law
Art 5 ECHR – Arbitrariness criteria
The detention measure must:
- be carried out in good faith
Rusu v. Austria
- be closely connected to the purpose of preventing
unauthorized entry / in view to removal
Gebremedhin v. France
Auad v. Bulgaria
International Legal Framework
European Human Rights Law
Art 5 ECHR – Arbitrariness criteria
The detention measure must:
- respect appropriate conditions of detention
S.D. v. Greece
Tabesh v. Greece
Abdolkhani and Karimnia v. Turkey
- not exceed the duration reasonably required for the
purpose pursued
International Legal Framework
European Human Rights Law
Art 5 ECHR – Alternatives to detention
Direct references to alternatives to detention in the
recent Court’s case-law
Mikolenko v. Estonia
Raza v. Bulgaria
Auad v. Bulgaria
≠ Necessity test?
International Legal Framework
EU Asylum Law
EU Charter of Fundamental Rights
Art 6 Right to liberty and security
Art 18 Right to asylum
in due respect of the rule of the 1951 Convention
International Legal Framework
EU Asylum Law
Asylum Procedures Directive 2005/85/EC
Article 18 – prohibition against detention of an asylumseeker + speedy judicial review
Article 16(2) – legal advisor or counsellor has access to
closed areas, such as detention facilities & transit zones
Article 21(1) – UNHCR allowed to access to asylumseekers, including those in detention & in airport or
port transit zones
International Legal Framework
EU Asylum Law
Reception Conditions Directive 2003/9/EC
Art 2(k) – defines detention as “confinement of an
asylum seeker by a member state within a particular
place, where asylum seeker in deprived of his/her
freedom of movement.
Recital 10 & 13 – reception of asylum applicants in
detention should be specifically designed to meet their
needs
International Legal Framework
EU Asylum Law
Returns Directive 2008/115/EC
Applies to asylum-seekers whose claims have
been rejected
Art 15-18 codifies some well-established
principles of international law against arbitrary
detention
International Legal Framework
EU Asylum Law
CJEU jurisprudence
Interpretation of the Returns Directive:
– Kadzoev v. Bulgaria C-357/09 (30/11/2009)
– El Dridi , C-61/11 (28/04/2011)
International Legal Framework
Thank you for your attention
kautzman@unhcr.org