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and the right to compensation for persons deprived of their liberty in violation of the
ECHR. The ECHR makes no specific mention of time limits for administrative
detention. However, the Court has ruled that continued detention is not justified
where expulsion or deportation proceedings are not carried out with due diligence. 36
Finally, it should be noted that article 2 of Protocol 4 to the ECHR provides free
movement for those persons lawfully in the territory of a State and the right to choose
one’s residence. Since states are bound by law to respect the principle of nonrefoulement
and all persons have the right to seek asylum protection, it follows that
asylum seekers with a pending application are lawfully within a country pending final
adjudication of their claims. 37
• Charter of Fundamental Rights of the European Union: Under article 45 of the
Charter, freedom of movement is granted not only to EU citizens, but may also be granted
to third country nationals legally resident in the territory of a Member State. National
legislation determines who is legally residing in the territory but refugees are not
considered illegal where there are no grounds for their removal. 38
• Standards of the European Committee for the Prevention of Torture (CPT
Standards): Article 1 of the European Convention for the Prevention of Torture and
Inhuman or Degrading Treatment or Punishment provided for the creation of a committee
to visit places of detention to ensure compliance with its provisions. The Secretariat of
the CPT forms part of the Council of Europe’s Directorate General of Human Rights. In
several of its General reports, the CPT has described some of the substantive issues it
addresses during its visits to places of detention. The CPT Standards represent updated
substantive sections of those reports providing guidance on issues dealing with policy
custody, imprisonment, training of law enforcement personnel, health care services in
prisons, foreign nationals detained under aliens legislation, involuntary placement in
psychiatric establishments and juveniles and women deprived of their liberty. The
standards addressing foreigners discuss the following issues: safeguards during detention,
safeguards during expulsion proceedings and implementation of expulsion orders.
• EU Council Directive on minimum standards for the reception of asylum seekers
(2003): This directive instructs Member States on reception standards they must put in
place for refugees and asylum seekers in their territories. These standards also apply to
refugees and asylum seekers in detention.
• Council of Europe Recommendation Rec (2003) of the Committee of Ministers to
member states on measures of detention of asylum seekers: This resolution, adopted
by the Council of Europe on April 16, 2003, cautions governments to use detention only
under very narrow circumstances.
• Council of Europe – Twenty Guidelines on Forced Return: In May 2005, the
Committee of Ministers of the Council of Europe adopted these guidelines, which address
36 Bozano v. France, judgment of 18 December 1986.
37 See article 31 of the Geneva Convention (states should not penalize the unlawful entry or stay of refugees);
see, also, Commentary on the Refugee Convention 1951, published by the Division of International Protection of
the UNHCR, 1997: “If a refugee is allowed to establish himself in a country and takes up residence there, he is
lawfully staying in the country.”
38 Commentary on the Refugee Convention 1951, published by the Division of International Protection of the
UNHCR, 1997: “If a refugee is allowed to establish himself in a country and takes up residence there, he is
lawfully staying in the country.”
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