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
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