Handboek voor begeleiders van vluchtelingen en ... - Stichting ROS

APPENDIX B
European Legal Framework Relating to Detention
• European Convention for the Protection of Human Rights and Fundamental
Freedoms (ECHR): The ECHR and its five protocols are enforced by the European
Court of Human Rights and is the treaty of reference of the Council of Europe. 45
countries have ratified the ECHR. 31 The ECHR provisions most relative to detention are:
article 3 – prohibition of torture; article 5 – the right to liberty and security; article 8 –
right to respect for family and private life.
o ECHR Article 3 (prohibition against torture): This provision prohibits torture or
inhuman or degrading treatment or punishment and is particularly relevant to
conditions of detention. In the “Greek Case,” the European Court of Human
Rights concluded that detention conditions in the Greek facility constituted a
violation of Article 3 where the conditions included overcrowding, inadequate
heating, inadequate sleeping and toilet facilities, insufficient food, recreation and
contacts with the outside world. 32
o ECHR Article 5 (right to liberty): Under this provision, detention is permitted
when a procedure is prescribed by law and only in certain cases. In the case of
administrative detention, article 5(f) permits the lawful arrest or detention of a
person to prevent him or her from entering the country without authorization or of
a person against whom deportation or extradition procedures are pending. The
European Court of Human Rights has ruled that a procedure prescribed by law
means a fair and proper procedure, conducted by an appropriate authority and free
from arbitrariness. 33
o ECHR Article 8 (right to family and privacy): This provision protects the right to
family and privacy. Therefore, where two or more family members are detained,
the authorities must avoid separating them.
Relating to the protection of liberty, ECHR article 5 provides the following rights: the
right to prompt information regarding the reasons for detention in a language which
the person understands; 34 the right to challenge detention and to legal assistance; 35
31 Albania, Andorra, Armenia, Austria, Azerbaijan, Belgium, Bosnia and Herzegovina, Bulgaria, Croatia,
Cyprus, the Czech Republic, Denmark, Estonia, Finland, France, Georgia, Germany, Greece, Hungary, Iceland,
Ireland, Italy, Latvia, Liechtenstein, Lithuania, Luxembourg, Malta, Moldova, Netherlands, Norway, Poland,
Portugal, Romania, Russia, San Marino, Serbia and Montenegro, Slovakia, Slovenia, Spain, Sweden,
Switzerland, the former Yugoslav Republic of Macedonia, Turkey, Ukraine and the United Kingdom.
32 Dougoz v. Greece, judgment of 6 March 2001. See, also, Cyprus v. Turkey, Commission report of 10 July
1976 (not providing enough food, water and medical assistance in detention centre constitutes inhuman
treatment).
33 Winterwerp v. the Netherlands, judgment of 24 October 1979; see also, Conka v. Belgium, judgment of 5
February 2002; Amuur v. France, judgment of 25 June 1996.
34 See Fox, Campbell and Harley v. the United Kingdom, judgment of 30 August 1990 (arrested person must be
told in simple, non-technical language that he can understand, the essential legal and factual grounds for arrest
and that he can challenge the decision in a court).
35 Al Nashif v. Bulgaria, judgment of 20 May 2002.
69