thomas straub registry lawyer, european court of human rights

Thomas Straub

Registry Lawyer, European Court of Human Rights

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)

Deprivation of liberty or restriction of movement?

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)

Detention based on law

Two distinct purposesTo prevent unauthorized entryWhen 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

Article 5 § 1 (f): Immigration Control

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)

Prevention of unauthorized entry

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

“Arbitrariness test” (Saadi)

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: Saadi v. UK [GC]

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: After Saadi…

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 fast-track process

Detention of asylum-seekers on entry and the “good faith” test

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)

Closely connected to purpose

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

Place and Conditions of Detention

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)

Inappropriate Place/Conditions

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

Saadi v. UK: seven days in appropriate conditions (no violation)

Kanagaratnam v. Belgium: Three months coupled with inappropriate conditions (violation)

Length of detention for purposes of determining asylum claim

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

Vulnerable persons

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

Rahimi v. Greece

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

Detention for deportation or extradition

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)

If deportation may breach Art. 3

“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.

Art. 5 § 2: Right to be informed

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

Right to judicial review: Art. 5 § 4

- 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)

Effective access to review

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)

Adversarial proceedings

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)

Legal assistance

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

“ … shall be decided speedily…”

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

Speedy review: Due diligence

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)

Right to effective remedy: Art. 13

Thank you very much for your attention!!

Thomas.Straub@echr.coe.int