Alternatives to detention for asylum seekers and people in return procedures 3. Alternatives to detention: selected case law The European Court of Human Rights (ECtHR) has found in a number of cases that Member States have violated the European Convention on Human Rights through arbitrary detention where less coercive measures could have been used. The following table presents selected judgements from the ECtHR, citing the relevant paragraphs (the text in italics indicates a FRA translation into English when the judgement is only available in French), and thereafter quotes two judgements by the Court of Justice of the EU and four communications by the United Nations Human Rights Committee (HRC). Case Relevant excerpt from the judgement European Court of Human Rights (ECtHR) Louled Massoud v. Malta, No. 24340/08, 27 July 2010 68. Moreover, the Court finds it hard to conceive that in a small island like Malta, where escape by sea without endangering one's life is unlikely and fleeing by air is subject to strict control, the authorities could not have had at their disposal measures other than the applicant's protracted detention to secure an eventual removal in the absence of any immediate prospect of his expulsion. 69. In the light of the above, the Court has grave doubts as to whether the grounds for the applicant's detention – action taken with a view to his deportation – remained valid for the whole period of his detention, namely, more than eighteen months following the rejection of his asylum claim, owing to the probable lack of a realistic prospect of his expulsion and the possible failure of the domestic authorities to conduct the proceedings with due diligence. Rahimi v. Greece, No. 8687/08, 5 April 2011 109. Yet, in this present case, by ordering the claimant's detention the national authorities did not in any way look into the question of his best interest as a minor. Moreover, they did not examine whether the claimant’s placement in the Pagani detention center was a measure of last resort and if they could substitute a less drastic measure so as to ensure his deportation. These factors raise doubts in the eyes of the Court, as to the good faith of the authorities during the implementation of the detention measure. Yoh-Ekale Mwanje v. Belgium, No. 10486/10, 20 December 2011 124. […] In spite of this situation, the authorities did not consider a less severe measure, such as a temporary residence permit, so as to safeguard the public interest of detention and avoid the continued detention of the claimant for seven additional weeks. 125. In those circumstances, the Court fails to see the connection between the detention of the claimant and the aim pursued by the Government to remove him from the territory. Popov v. France, Nos. 39472/07 and 39474/07, 19 January 2012 119. […] The Court finds, as in the above-cited case of Muskhadzhivyeva and Others, that, in spite of the fact that they were accompanied by their parents, and even though the detention centre had a special wing for the accommodation of families, the children’s particular situation was not examined and the authorities did not verify that the placement in administrative detention was a measure of last resort for which no 16

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