International Conference/ ‘Steps to freedom’ project Riga, 15-16 December 2011

1. International Conference/ ‘Steps to freedom’ projectRiga, 15-16 December 2011 International Legal Framework on Alternatives to Detention J.E. KAUTZMANN UNHCR Representation to the European institutions in Strasbourg

2. International Human Rights lawProhibition of unlawful/arbitrary detention Arts 3 and 9 Universal Declaration of Human Rights Art 9(1) International Covenant on Civil and Political Rights Art 31 Convention relating to the status of Refugees Art 5 European Convention on Human Rights Art 6 EU Charter of Fundamental Rights Other Regional instruments International Legal Framework

3. International Human Rights lawBasic Principles Lawfulness / Detention must be in accordance with & authorized by law Necessity /Detention must not be arbitrary – i.e. must be reasonable, necessary, proportionate and non-discriminatory International Legal Framework

4. International Refugee LawArticle 31 – 1951 Convention relating to the Status of Refugee Detention should only be resorted to in cases of necessity: • exempts refugees from being punished on account of their illegal entry/presence, provided they present themselves without delay to the authorities to show good cause for their illegal entry/presence • states shall not apply restrictions on the movements of refugees other than those which are necessary International Legal Framework

5. International Refugee LawExecutive Committee Conclusions No. 4413 October 1986 The ExCom (…) (b) Expressed the opinion that in view of the hardship which it involves, detention should normally be avoided. If necessary, detention may be resorted to only on grounds prescribed by law 1. to verify identity 2. to determine the elements on which the claim to refugee status or asylum is based 3. to deal with cases where refugees or asylum-seekers have destroyed their travel and/or identity documents or have used fraudulent documents in order to mislead the authorities of the State in which they intend to claim asylum or 4. to protect national security or public order (…) International Legal Framework

6. International Refugee LawFebruary 1999 / UNHCR Revised Guidelines on applicable criteria and standards relating to the detention of asylum-seekers Guideline 2: Asylum-seekers should not be detained Guideline 3:Exceptional Grounds for Detention 1. cases in which identity is undetermined or in dispute 2. Preliminary interview 3. cases where there is an intention to mislead the authorities 4. cases where there is evidence to show that the asylum- seeker has criminal antecedents and/or affiliations likely to pose a risk to public order/national security Guideline 4: Alternatives to Detention International Legal Framework

7. European Human Rights LawArticle 5 European Convention on Human Rights Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (...) f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or [first limb] of a person against whom action is being taken with a view to deportation or extradition. [second limb] International Legal Framework

8. European Human Rights LawArt 5 ECHR – Deprivation of liberty (Notion) If deprivation of liberty = Article 5 applies - Airport transit zones Amuur v. France Shamsa v. Poland - Reception centresMerie v. The Netherlands • UNHCR Mandate / Detention pending deportation (failed asylum-seekers) International Legal Framework

9. European Human Rights LawArticle 5 ECHR – Compatibility test Control of the lawfulness / Quality of the law Nolan and K. v. Russia Control of the absence of arbitrariness (4 criteria) Saadi v. The United Kingdom International Legal Framework

10. European Human Rights LawArt 5 ECHR – Arbitrariness criteria The detention measure must: • be carried out in good faithRusu v. Austria • be closely connected to the purpose of preventing unauthorized entry / in view to removal Gebremedhin v. France Auad v. Bulgaria International Legal Framework

11. European Human Rights LawArt 5 ECHR – Arbitrariness criteria The detention measure must: - respect appropriate conditions of detentionS.D. v. Greece Tabesh v. Greece Abdolkhani and Karimnia v. Turkey • not exceed the duration reasonably required for the purpose pursued International Legal Framework

12. European Human Rights LawArt 5 ECHR – Alternatives to detention Direct references to alternatives to detention in the recent Court’s case-law Mikolenko v. Estonia Raza v. Bulgaria Auad v. Bulgaria ≠ Necessity test? International Legal Framework

13. EU Asylum LawEU Charter of Fundamental Rights Art 6 Right to liberty and security Art 18 Right to asylum in due respect of the rule of the 1951 Convention International Legal Framework

14. EU Asylum LawAsylum Procedures Directive 2005/85/EC Article 18 – prohibition against detention of an asylum-seeker + speedy judicial review Article 16(2) – legal advisor or counsellor has access to closed areas, such as detention facilities & transit zones Article 21(1) – UNHCR allowed to access to asylum-seekers, including those in detention & in airport or port transit zones International Legal Framework

15. EU Asylum LawReception Conditions Directive 2003/9/EC Art 2(k) – defines detention as “confinement of an asylum seeker by a member state within a particular place, where asylum seeker in deprived of his/her freedom of movement. Recital 10 & 13 – reception of asylum applicants in detention should be specifically designed to meet their needs International Legal Framework

16. EU Asylum LawReturns Directive 2008/115/EC Applies to asylum-seekers whose claims have been rejected Art 15-18 codifies some well-established principles of international law against arbitrary detention International Legal Framework

17. EU Asylum LawCJEU jurisprudence Interpretation of the Returns Directive: • Kadzoev v. Bulgaria C-357/09 (30/11/2009) • El Dridi , C-61/11 (28/04/2011) International Legal Framework

18. Thank you for your attention kautzman@unhcr.org