Authorization of deprivation of liberty by judicial authorities in the recast Reception conditions Directive proposal (ICJ OBSERVATIONS)

 

April 2017

The Commision proposal of the Reception Conditions Directive (recast) COM(2016) 465 final has been published by the European Commission on 13.7.2016. On 23 February 2017, the amendments[1] have been tabled in the European Parliament on the draft report by Sophia in ‘t Veld from 18 January 2017, the Rapporteur of the recast Directive.

The ICJ supports the amendments especially when it comes to its proposals on detention. In particular in the sense that detention or other restrictions of movement that may cumulatively amount to deprivation of liberty should always and only be ordered by judicial authorities (the proposed amendments 10, 30-33, 93-95, and 243-246 regarding Recital 20, Article 8.1, 9.2 and 9.3 of the proposal in particular).

The right to liberty and security of the person is protected under international human rights law (Article 9 ICCPR, Art 5 ECHR), and means that, as a general rule, asylum seekers should not be detained, except where detention can be justified as a necessary and proportionate measure for a legitimate purpose in the specific circumstances of the case. Asylum seekers may have already suffered imprisonment and torture in the country from which they have fled and therefore, the consequences of detention may be particularly serious, causing severe emotional and psychological stress and may amount to inhuman and degrading treatment.

Under international human rights law, it is established that asylum seekers should only be detained, as a last resort, in exceptional cases and where non-custodial measures have been proven on individual grounds not to achieve the stated, lawful and legitimate purpose. Detention must not be imposed arbitrarily, it must be lawful, necessary, and applied without discrimination. Judicial authorization, as well as judicial review, of detention provides an important safeguard against arbitrariness.

The Parliamentary Assembly of the Council of Europe has clearly stated in its Resolution 1707 (2010) on Detention of asylum seekers and irregular migrants in Europe, para 9.1.3, that “detention shall be carried out by a procedure prescribed by law, authorised by a judicial authority and subject to periodic judicial review.

It has been also established in international law that there is a right to judicial review of any form of detention, and that such review must always be of a judicial nature[2] UNHCR guidelines also require both automatic review of detention and regular automatic periodic reviews thereafter, and a right to challenge detention.[3]

 Taking account of the complexity of the assessment of whether a deprivation of liberty is justifiable as necessary and proportionate in the individual case of an asylum seeker and of the seriousness of the impact on human rights of deprivation of liberty, the ICJ considers that authorization by a judicial authority would always be preferential in cases of detention or other serious restrictions of movement.

 NOTES

[1] See Amendments 1-51:; Amendments 52-295:; Amendments 296-543:

[2] see European Court of Human Rights in Öcalan v. Turkey, para 70; Human Rights Committee in C. v. Australia, para 8.2-8.3; HRC General Comment No. 35, Article 9 (Liberty and security of person), UN Doc. CCPR/C/GC/35 (2014), para 18).

[3] Guideline 7: “(iii) to be brought promptly before a judicial or other independent authority to have the detention decision reviewed. This review should ideally be automatic, and take place in the first instance within 24–48 hours of the initial decision to hold the asylum-seeker. The reviewing body must be independent of the initial detaining authority, and possess the power to order release or to vary any conditions of release. (iv) following the initial review of detention, regular periodic reviews of the necessity for the continuation of detention before a court or an independent body must be in place, which the asylum-seeker and his/her representative would have the right to attend. Good practice indicates that following an initial judicial confirmation of the right to detain, review would take place every seven days until the one month mark and thereafter every month until the maximum period set by law is reached. (v) irrespective of the reviews in (iii) and (iv), either personally or through a representative, the right to challenge the lawfulness of detention before a court of law at any time needs to be respected. The burden of proof to establish the lawfulness of the detention rests on the authorities in question. As highlighted in Guideline 4, the authorities need to establish that there is a legal basis for the detention in question, that the detention is justified according to the principles of necessity, reasonableness and proportionality, and that other, less intrusive means of achieving the same objectives have been considered in the individual case.”

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