CPT: 15TH GENERAL REPORT
15
Guidelines on the forced return
of foreign nationals
43.
On 4 May 2005, the Committee of Ministers
adopted Twenty Guidelines on forced return*. The
origin of the Guidelines lies in Parliamentary
Recommendation 1547 (2002) on expulsion procedures
in conformity with human rights and enforced with
respect for safety and dignity. When replying to the
Assembly, the Committee of Ministers expressed
support for the idea of drawing up a code of good
conduct for expulsion procedures that “would make it
possible to lay down the various guidelines developed
by different bodies within the Council of Europe in one
pragmatic text to be used by governments when
developing national legislation and regulations on the
subject”. Terms of reference were given to the Ad hoc
Committee of Experts on Legal Aspects of Territorial
Asylum, Refugees and Stateless Persons (CAHAR) to
prepare such a code, and it was provided that this work
should be carried out in consultation with the CPT.
44.
The CPT was very glad to have been
associated with the preparation of the Twenty
Guidelines. Indeed, as from the beginning of its
activities, the Committee has been giving particular
attention to the treatment of persons deprived of their
liberty under aliens legislation. The CPT set out in its
7th General Report some of the main issues pursued by
the Committee in relation to such persons (cf
CPT/Inf (97) 10, paragraphs 24 to 36), and in its 13th
General Report described a number of principles which
it had developed as regards the forced removal of
foreign nationals by air (cf. CPT/Inf (2003) 35,
paragraphs 27 to 45).
The CPT intends to provide a comprehensive
account of its standards in relation to immigration
detainees in the substantive section of a future General
Report. For the time being, the CPT is pleased to note
that the Twenty Guidelines reflect many of the
standards already developed by the Committee, in
particular as regards conditions of detention pending
removal and the procedures to be followed in the event
of forced removal. The Committee would like to take
this opportunity to make a few remarks on certain
specific issues.
*
Document CM(2005)40 final,
accessible at http://www.coe.int/cm/
45.
Guideline 10 (1 to 3) in general supports the
principle, defended by the CPT, that persons deprived
of their liberty under aliens legislation for an extended
period should be accommodated in facilities
specifically designated for that purpose, offering
material conditions and a regime appropriate to their
legal situation and staffed by appropriately qualified
personnel. That said, it is regrettable that it was found
necessary to qualify this recommendation with the term
“normally”. It is not uncommon for CPT visiting
delegations to encounter immigration detainees who
have been held for weeks and sometimes months in
airport lounges or ordinary police stations, subject to
mediocre material conditions of detention and deprived
of any form of activity. Such situations must cease.
Similarly, the CPT is concerned by the
stipulation in Guideline 10 (4) that persons detained
pending removal should not “normally” be held
together with ordinary prisoners. In the CPT’s view, it
should be very exceptional for immigration detainees
to be held in prisons, and even in such cases they
should always be held quite separately from remand or
sentenced prisoners.
46.
The CPT welcomes the emphasis placed in
Guidelines 6 (2) and 10 (5 to 7) on the need to ensure
that persons detained pending removal have access to a
lawyer and a doctor, are able to inform their relatives
of their situation, and are informed of their legal
situation and rights. Similarly, it has noted with interest
the references in Guidelines 5(2) and 9(2) to the need
to make provision for legal aid in connection with
remedies against a removal order or detention.
In this context, the Committee wishes to
underline that the right of access to a lawyer should
apply as from the very outset of the detention period
and include the right to have a lawyer present during
interviews/hearings with the immigration and other
authorities concerned. Further, ensuring effective
access to a lawyer entails provision of legal advice in a
language understood by the immigration detainee
either directly or with the aid of a trained interpreter.
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