E/CN.4/2004/3/Add.3
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F. Detention of foreigners
57.
Act No. 22.439 on migration, which was adopted during the military dictatorship,
authorizes the Ministry of the Interior or Migration Department to order the detention of any
foreigner whose expulsion from the national territory has been ordered. Article 40 of the Act
stipulates that “in no case may the period of detention be longer than that strictly necessary to
give effect to the expulsion of the foreigner”; that is, it does not set precise limits for detention.
Detention is enforced without the need for a judicial order. The issuance of a detention order is
an administrative matter and in practice leaves the foreigner with no chance of lodging an appeal
against it. Although it is in theory possible to appeal to a court, it is a long and onerous process
that is usually completed only after the foreigner has been expelled. The Working Group was
informed of the case of a Latin American, Alfonso Juárez Cribillero, who was unable to appeal
against the decision to detain him with a view to expelling him. In 2002, the Argentine
coastguard expelled 1,482 foreigners, and the Gendarmería Nacional 1,772. Officials told the
Working Group that the Ministry of the Interior or the Migration Department had the authority to
release detainees on bail or on parole, but only in cases where the expulsion could not be carried
out within a reasonable time.
58.
Those detained under an administrative expulsion order are kept with common criminals
in the same detention centres and police stations. The Working Group concluded that the system
for detaining immigrants in Argentina gives rise to arbitrary detention and does not comply with
the provisions of international standards in this area. There is a conspicuous absence of a law to
regulate refugee status in accordance with the Convention relating to the Status of Refugees.
VI. CONCLUSIONS AND RECOMMENDATIONS
A. Conclusions
59.
The Working Group would like to express its gratitude to the Government of
Argentina for its openness during the Working Group’s official visit. Despite the logistical
problems that arose, which, among other things, prevented the Working Group from
completing its programme with a visit to the province of Santiago del Estero, the delegation
was able to visit all the detention centres as requested and even to make unannounced visits
to various police stations and juvenile detention centres.
60.
The Working Group notes with satisfaction that one of the foundations of the new
federal Government’s policy is the defence and protection of human rights, and that the
Government has made some promising changes to policy in this area with a view to
combating impunity and corruption, and that these changes have been overdue since the
restoration of democracy.
61.
Although the Working Group noted some interesting federal initiatives to address
problems regarding arbitrary detention, it did not observe such initiatives in some of the
provinces that it visited, where measures also appear to be necessary.
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