Download Detention - Regional Conference on Migration

Seminar on Migration Legislation
Ministry of Foreign Affairs
of Guatemala
15 – 16 February 2007
Detention
What is detention?
 According to the UNHCR definition, detention consists
in:
“confinement in severely limited or restricted spaces,
including prisons, closed camps, detention facilities or
transit areas in airports where freedom of movement is
substantially limited, where the only opportunity for
leaving said restricted area is to leave that territory.”
Justification to Detain: Use of
Detention as a Migration Policy
 As an expression of national
sovereignty;
 For justified security reasons;
 As a measure to dissuade asylum
seekers;
Specific Reasons to Detain
For the purposes of this presentation, we are talking
exclusively of the use of detention as part of the
migratory framework, as a reaction to illegal entry and
stay.
Cases of migrants, refugees or asylum seekers
committing common crimes – robbery, murder, etc –
should be treated within the framework of criminal law,
recognizing that each person in the country, regardless
of his/her legal status, is required to respect national
criminal law, under penalty of justified sanction.
How Do States Detain?
Mainly based on national laws that
allow it;
Administrative detention;
Criminal detention
International Legal Framework –
Obligations of States

Art. 9 of UDHR = Nobody can be arbitrarily detained, imprisoned or exiled;

Art. 9 of the Covenant on Civil and Political Rights Covenant on Civil and
Political Rights = Prohibition on arbitrary detention or imprisonment;

Art. 10 del Covenant on Civil and Political Rights = Right to humane
treatment with respect to the dignity inherent to a person;
This right applies equally to all persons, whether legally in the State or not

Art. 12 del Covenant on Civil and Political Rights = Freedom of movement
Applicable to persons legally in the territory, enabling limitations on certain basis
Regional Legal Framework
The American Convention on HR – The Pact of
San José:
 Art 7 (1) – Every person has a right to personal
freedom and security;
 Art 7 (2) – No person shall be deprived of physical
freedom except for causes and conditions previously
established by the Constitution or the Laws of the Party
States;
 Art 7 (3) – Nobody can be subjected to arbitrary
detention or imprisonment.
Framework for Legal and Justified
Detentions
In order to be considered legal and not
arbitrary, a detention must be:
1.
2.
3.
4.
5.
For legitimate reasons;
Necessary;
Proportional;
Subject to review (judicial);
Non discriminatory
Procedural Aspects
 Right to clear information on the basis of
detention;
 Right to question the decision to detain;
 Neutrality and independence of authority
reviewing the decision to detain;
 Right to legal assistance;
Specific Considerations for the Detention
of Migrants
Need to receive information in a language
they can understand;
Right to communicate with their
Embassies if so desired – particularly
important in the case of asylum seekers
and refugees who may fear contact with
their Embassies
Detention Conditions
In addition to the legal standards regulating the legal
framework of the decision to detain, the duration and
regular review of detention, a legal framework exists
regarding detention conditions:
 Standard Minimum Rules for the Treatment of Prisoners
(1955 and 1977);
 Body of Principles for the Protection of All Persons under
Any Form of Detention or Imprisonment,1988;
 United Nations Rules for the Protection of Imprisoned
Minors,1990
Relevant Considerations for Other Individuals
or Groups with Specific Needs
Special Cases:
 Children (under 18 years of age)
- Art 3(1) of the Convention on the Rights of
Children = higher interest of the child;
- Art 37(b) of the same Convention = detention
and imprisonment of children shall be in
accordance with the laws and used as a last
resource measure and for the shortest period
possible.
Other Cases with Specific Vulnerabilities
 Trafficked persons and victims of traffic
- For these persons, the priority objective should
be their protection and not their detention;
- International law on these issues seeks to
ensure detention for crimes committed against
traffickers and not for their victims;
 Stateless persons
Specific Considerations Relevant to the
Detention of Asylum Seekers
There are certain specific situations relevant to asylum that
States should take into consideration:
 Art 14 (1) of UDHR – right to seek and
enjoy asylum;
 Art 31 – prohibition of sanction for illegal
entry of refugees arriving directly from
territories where their life or freedom
were threatened
UNHCR Policy on Detention of
Asylum Seekers
UNHCR position is that detention of
asylum seekers is inherently undesirable;
Should be avoided whenever possible;
Detention should not be used as an
obstacle to asylum – persons detained
have a right to their requests for asylum
to be duly considered, even access to
legal assistance, if necessary.
Exceptional Circumstances
Regardless of its policy against the detention of asylum
seekers, UNHCR recognizes situations where detention is
justified:
 To verify identity;
 To determine the elements on which the asylum request is based;
 In response to cases of destruction of documents or use of false
documents;
 To protect national security or public order.
Decision No. 44 of the UNHCR Executive Committee in 1986
regarding detention of refugees and asylum seekers; UNHCR
Guidelines on criteria and standards applicable to the detention of
asylum seekers, February 1999
Detention Monitoring
 Joint responsibility of States and the international
community;
 Access by UNHCR and/or the International Committee of
the Red Cross or, as necessary, of duly authorized NGOs;
 Responsibility of UNHCR (Art. 35 of the 1951
Convention);
Recommendations of the Working Group on Arbitrary
Detention and the Sub-Commission for the Promotion
and Protection of HR.
Alternatives to Detention
Taking into account the obligation of
considering the principles of need and
proportionality, the following alternatives
to detention should be considered:
- Supervised freedom;
- Bail;
- Community custody – sponsorship or
guarantee mechanisms.