Thomas Straub
Registry Lawyer, European Court of Human Rights
Deprivation of liberty or restriction
of movement?
Amuur v. France:
holding in airport transit zone for 20 days (Art. 5
applicable); see also: Mahdid and Haddar v. Austria
Nolan and K. v. Russia:
locked in holding cell at airport for nine hours
(Art. 5 applicable)
Riad and Idiab v. Belgium:
held in airport transit zone for more than ten days
without providing for basic needs (Violation of Art.
3 and Art. 5)
Detention based on law
Legal certainty: Provision must have quality of “law“, be
accessible, clear and foreseeable:
 Administrative circular not sufficient (Amuur v. France)
 Must be published and accessible to public (Nolan and
K. v. Russia; Khlaifia and Others v. Italy: readmission
agreement)
 Maximum period of detention must be laid down in
legislation (Mathloom v. Greece)
Article 5 § 1 (f): Immigration Control
Two distinct purposes
 To prevent unauthorized entry
 When action is being taken with a view
to deportation or extradition
For the relationship between the two limbs,
see Suso Musa v. Malta and Nabil and
Others v. Hungary
Prevention of unauthorized entry
 For adults with no particular
vulnerabilites in principle no necessity
test (but see Nabil and Others v. Hungary
§ 41)
 Instead test of arbitrariness: four
cumulative requirements (Saadi v. UK
[GC] § 74)
“Arbitrariness test” (Saadi)
 Detention carried out in “good faith“
 Detention closely connected to purpose
listed in Art. 5 § 1 (f)
 Place and conditions of detention must
be appropriate
 Length of detention should not exceed
that reasonably required for the
purposed pursued
Detention of asylum-seekers on
entry: Saadi v. UK [GC]
 Applicant sought asylum on his arrival at the
airport
 Granted temporary admission, at liberty for
first three days, returned to the airport on
daily basis for processing of asylum claim
 After the third day, detention for seven days in
a fast-track center for the quick processing of
asylum application
Detention of asylum-seekers on
entry: Saadi v. UK [GC]
 Temporary admission to enter country
after applying for asylum did not amount
to “authorized“ entry under Art. 5 § 1 (f)
 Detention of asylum seekers can be
permissible under Art. 5 § 1 (f)
 11:6 votes: no violation; dissenting
opinions worth reading
Detention of asylum-seekers on
entry: After Saadi…
Suso Musa v. Malta (2013, § 97):
 Saadi should not be interpreted as always
allowing detention of asylum seekers under
first limb of Art. 5 § 1 (f)
 If national law authorizes entry or stay
pending an asylum application, Art. 5 § 1 (f)
ceases to apply – there is no “unauthorized“
entry that could be prevented
Detention of asylum-seekers on
entry and the “good faith” test
Saadi v. UK: test satisfied
 Detention center in question specifically
set up for speedy administration of
asylum claims
 Saadi had been selected to go there as
his application seemed ripe for the fasttrack process
Closely connected to purpose
Detention must be and remain closely
connected to purpose of Art. 5 § 1 (f)
Detention for fast-track processing of
asylum claim closely connected to
“prevention of unauthorized entry“ (Saadi
v. UK)
Place and Conditions of Detention
 Asylum seekers did commit no criminal
offence by entering the country, rather they
fled their countries, most often for fear of
their lifes.
 Detention must be in appropriate
place/conditions, i.e. not in a prison or the
like, but in a place specifically adapted to
asylum seekers and their needs
 If detention not in appropriate
place/conditions, may be a violation of not
only Art. 5 § 1 (f), but also of Art. 3
Place and Conditions of Detention
Example of appropriate place/conditions (Saadi v.
UK [GC])
 center specifically adapted to hold asylum
seekers
 various facilities for recreation, religious
observance, medical care and, importantly,
legal assistance
Inappropriate Place/Conditions
Kanagaratnam v. Belgium:
Woman detained with her three children in a
closed facility designed for adults in same
conditions as adults for three months:
 Children: violation of Art. 3 and Art. 5 § 1 (f)
 Mother: violation of Art. 5 § 1 (f), no violation
of Art. 3
Cf.:
- Mubilanza Mayeka and Kaniki Mitunga v. Belgium
- Muskhadzhiyeva and Others v. Belgium
Inappropriate Place/Conditions
Rahimi v. Greece:
 Unaccompanied child (15 years old) detained for two
days in detention center for adults with poor hygenic
conditions (violation of Art. 3 and Art. 5 § 1 f)
Yoh-Ekale Mwanje v. Belgium:
 Delay in determination and provision of appropriate
treatment for woman with HIV in advanced stage
(violation of Art. 3)
Inappropriate Place/Conditions
Popov v. France:
 Family with two children (5 months; 3 years) for two
weeks in administrative detention center which was
authorised to accommodate families:
 Violation of Art. 3 regarding children (iron-frame beds
and automatic doors dangerous; hostile atmosphere;
no play areas or activities for children; perception of
time by children)
 Violation of Art. 5 § 1 (f): no alternatives to detention of
children considered
Inappropriate Place/Conditions
Mahmundi and Others v. Greece:
 Highly pregnant woman, four children, detained in container in
very poor conditions, for 2-3 weeks, without any specific
(medical etc.) supervision despite their particular vulnerabilities
(Violation of Art. 3)
Aden Ahmed v. Malta:
 Single woman with particular vulnerability - fragile health and
personal emotional circumstances (previously experienced
miscarriage in detention) - detained for over 14 months, lack of
female staff, lack of access to open air and exercise, cold
conditions (violation of Art. 3 – cumulatively)
Length of detention
 Excessive length of detention renders
detention arbitrary under Article 5 § 1 (f)
 What is “excessive length”? No
maximum time-limit prescribed in the
text of Article 5 § 1 (f) – depends on the
particular circumstances of the individual
case.
Length of detention for purposes of
determining asylum claim
 Saadi v. UK: seven days in appropriate
conditions (no violation)
 Kanagaratnam v. Belgium: Three months
coupled with inappropriate conditions
(violation)
Vulnerable persons
There is as test of necessity/proportionality
– part of “good faith” test
 Alternatives to detention need to be
considered
 Consideration of circumstances of the
individual case
Rahimi v. Greece
No “good faith“ – violation Art. 5 § 1(f)
 Detention order appeared to have resulted from automatic
application of the legislation
 The authorities had given no consideration to the best interests of
the applicant as a child (15 years old) or his individual situation as
an unaccompanied child
 No examination of necessity of detention or less drastic
alternatives
Cf. Popov v. France
Detention for deportation or
extradition
 No deportation of asylum seekers prior
to final decision on asylum claim (R.U. v.
Greece)
 If authorities mislead asylum seekers
with a view to arresting and
subsequently deporting them, this is
contravention of general principles of
ECHR (Conka v. Belgium)
Detention for deportation or
extradition
 Due diligence required – only if “action
[is] being taken with a view to
deportation” the detention is lawful
 Detention unlawful if there is no realistic
prospect of removal
If deportation may breach Art. 3
 Under Art. 5 § 1 (f) arguments to the effect
that the deportation breaches international
refugee law will not be examined (M v.
Bulgaria)
 But if otherwise established that
deportation would breach Art. 3, detention
cannot be based on Art. 5 § 1 (f). Rejection
of balancing argument in relation to
national security (A and Others v. UK)
Art. 5 § 2: Right to be informed
 “Promptly”
-
Not necessarily directly at the time of the arrest
-
May vary depending on circumstances of the case (e.g.
need for interpreter)
-
76 hours “not promptly” (Saadi v. UK [GC])
-
Rule of thumb: within a few hours
Art. 5 § 2: Right to be informed
„ …in a language which he/she understands … of the
reasons of his/her arrest…“
-
Initially oral elaboration of reasons may suffice
(Conka v. Belgium: telephone loudspeaker)
-
Non-technical language
Purpose of the right to be informed:
Ability to effectively exercise right to judicial review
under Art. 5 § 4. Person must practically understand.
Right to judicial review: Art. 5 § 4

Right of detainee to actively seek a prompt judicial review
of detention and to be released if there is no lawful basis

Lex specialis to Art. 13 while person is in detention (if the
question relates to legality of detention only; if complaint
about conditions of detention under Art. 3, then Art. 13 is
relevant)

Examination of the procedural and substantive conditions
of the detention

Guarantees of procedural fairness
Effective access to review
- Information about available remedies (leaflet
in a language the detainee does not
understand: violation, Rahimi v. Greece)
- If deportations expedited in a way that lawyer
is unable to mount an Art. 5 § 4 challenge
before actual deportation: violation (Conka v.
Belgium)
Adversarial proceedings
Equality of arms contentious in cases relating
to national security (use of confidential
material)
-
Concerns of national security do not remove detention
from judicial review (Chahal v. UK)
-
Not all documents must necessarily be shared, but
detainee must have sufficient information to be able
to effectively challenge lawfulness of detention (A and
Others v. UK)
Legal assistance
 Generally required if this is necessary for the
right under Art. 5 § 4 to be effective given the
circumstances of the case (person concerned,
language, complexity of procedure etc.)
 Rahimi v. Greece: Applicant unable in practice
to contact a lawyer (violation)
“ … shall be decided speedily…”

Opportunity for legal review must be provided soon
after person is taken into detention

The review proceedings must be conducted with due
diligence (determination) in light of circumstances of
each case (e.g. cause for delays)

Relevant period ends with final decision as to the
detention
Speedy review: Due diligence

Kadem v. Malta: 17 days for one level of jurisdiction
(violation)

Sanchez-Reisse v. Switzerland: 31 and 46 days,
respectively, for two levels of jurisdiction: violation

Khudyakova v. Russia: 18 days for first instance,
another 36 days for appeal instance: violation
Right to effective remedy: Art. 13
 In relation to lawfulness of detention, Art. 5 § 4 is
lex specialis (and contains more far-reaching
guarantees than Art. 13)
 Art. 13 is relevant only if:
- the conditions of detention amount to
treatment in breach of Art. 3
- the person wishes to challenge legality of
detention after being released
- the purpose is to challenge the removal order /
pursue the asylum procedure (IM v. France)
Thank you very much for your attention!!
Thomas.Straub@echr.coe.int