Alternatives to detention for asylum seekers and people in return procedures
Bangkok Rules),
6 October 2010,
A/C.3/65/L.5
involved and to provide for the special circumstances and particular
vulnerabilities of specific groups, including women who need
protection, girls in criminal justice system and victims of human
trafficking Rules 64, 65 and 66 respectively focus on “pregnant women
and women with dependent children,” “juvenile female offenders” and
“foreign nationals.”
Rule 57
[…] Gender-specific options for diversionary measures and pre-trial and
sentencing alternatives shall be developed within Member States’ legal
systems, taking account of the history of victimization of many women
offenders and their caretaking responsibilities.
Rule 58
[…] Alternative ways of managing women who commit offences, such
as diversionary measures and retrial and sentencing alternatives, shall
be implemented wherever appropriate and possible
United Nations Rules for
the Protection of
Juveniles Deprived of
their Liberty,
14 December 1990,
A/RES/45/113
17. Juveniles who are detained under arrest or awaiting trial ("untried")
are presumed innocent and shall be treated as such. Detention before
trial shall be avoided to the extent possible and limited to exceptional
circumstances. Therefore, all efforts shall be made to apply alternative
measures. […]
General comments by UN treaty bodies
UN Human Rights
Committee, General
comment No. 35:
Article 9, Liberty and
security of person,
30 October 2014,
CCPR/C/GC/35
18. Detention in the course of proceedings for the control of
immigration is not per se arbitrary, but the detention must be justified
as reasonable, necessary and proportionate in light of the
circumstances, and reassessed as it extends in time. Asylum-seekers
who unlawfully enter a State party’s territory may be detained for a
brief initial period in order to document their entry, record their claims,
and determine their identity if it is in doubt. To detain them further
while their claims are being resolved would be arbitrary absent
particular reasons specific to the individual, such as an individualized
likelihood of absconding, danger of crimes against others, or risk of acts
against national security. The decision must consider relevant factors
case-by-case, and not be based on a mandatory rule for a broad
category; must take into account less invasive means of achieving the
same ends, such as reporting obligations, sureties, or other conditions
to prevent absconding; and must be subject to periodic revaluation and
judicial review. […] Children should not be deprived of liberty, except
as a measure of last resort and for the shortest appropriate period of
time, taking into account their best interests as a primary consideration
with regard to the duration and conditions of detention, and also taking
into account the extreme vulnerability and need for care of
unaccompanied minors.
UN Committee on the
Rights of the Child,
General Comment No. 6:
Treatment of
Unaccompanied and
61. In application of article 37 of the Convention and the principle of
the best interests of the child, unaccompanied or separated children
should not, as a general rule, be detained. Detention cannot be justified
solely on the basis of the child being unaccompanied or separated, or
on their migratory or residence status, or lack thereof. Where
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