Detention of third-country nationals in return procedures
The Spanish Ombudsman identified inadequate
communication between interned immigrants and
their legal advisers as one of the main obstacles to an
effective judicial review of internment measures,235
whereas an NGO raised that legal representative
appointed ex officio very often do not make contact with
the interned immigrant for several days.236 In Romania,
the Jesuit Refugee Service expressed concern about
the lack of funds for NGOs providing legal assistance to
detained immigrants.237 In Estonia, applications for free
legal assistance have to be submitted in the Estonian
language.238 NGOs contracted in Austria to provide
return counselling in all pre-removal detention facilities,
do not offer legal assistance or referrals to lawyers. 239
In other cases, finding names of lawyers to contact
may be difficult, as usually no access to the internet is
available.240
Rules governing visits, communication and
correspondence with lawyers can also considerably
impact on the effectiveness of judicial review. While
restrictions to receive visitors do normally not apply
(or not apply to the same degree) to lawyers or
consular staff,241 and correspondence with lawyers
should in theory not be supervised or screened,242
detainees may often lack the means or knowledge
to contact a lawyer. Only in a few countries do the
authorities bear the costs of calls or correspondence
235 See Informe sobre asistencia jurídica a los extranjeros en España,
Defensor del Pueblo, Madrid, text in Spanish available at: http://www.
defensordelpueblo.es/ index.asp?destino=informes2.asp.
236 APDHA (2009): Observaciones iniciales de la Asociación Pro-Derechos
Humanos de Andalucia al quinto informe periódico del estado español
presentado al Comité de derechos humanos en lo relativo a la inmigración, in
Spanish, available at: http://www.apdha.org/media/inmigraAPDHAONU.pdf.
237 Jesuit Refugee Service, Detention News 2007-2008: Romania, available
at: http://detention-in-europe.org/images/stories/docs/dvproject/news/
detention%20jrs%20romania%20may%202008.pdf.
238 State Legal Aid Act, Section 12(5) which allows only persons who have
a residence or citizenship of another EU Member State to use English
language, Riigikantselei (15.07.2004) Riigi Teataja I, 56, 403.
239 See Section 1a (8) Anhalteordnung (AnhO) [Order of the Federal Minister
of the Interior concerning the Detention of Persons by the Security
Authorities and by Agents of the Public Security Service], Austria/BGBl
II 128/1999, last amended by BGBl II 439/2005 (22.12.2005). Unofficial
English translation by UNHCR available at: http://www.unhcr.at/fileadmin/
unhcr_data/pdfs_at/information_in_english/Detention_Regulation.pdf.
240 See Jesuit Refugee Service – Europe, Becoming vulnerable in detention,
2010, pp. 73 and 75.
241 See, for example, Austria, Detention Regulations [Anhalteordnung] at
21.3; Spain, Law 4/2000 Article 62bis; Netherlands, Penitentiary Principles
Act (Penitentiaire beginselenwet), 18 juni 1998 at 38.7 which stress that
visits by lawyers should take place in a confidential setting. According to
information received by the FRA, in Luxembourg lawyers and diplomatic
representatives can see the detainee once a day.
242 See, for example, Austria, Detention Regulations, at 20; Dutch Penitentiaire
Beginselenwe at 37.1(i) and 39.4 (which only allows checks to establish the
identity of the lawyer); Swedish Aliens Law, Chapter 11, Section 10.
46
with a lawyer.243 In some facilities detainees are not
allowed to keep their mobile phones,244 thus limiting
the possibilities to be contacted by or to contact a
lawyer.
Effective access to legal assistance is a key safeguard of
the right to a judicial review of pre-removal detention.
More comprehensive research would be needed to
identify the different types of obstacles existing in law
and in practice as well as to document best practices on
how these have been addressed by States. In the absence
of a comparative overview, advantage should be taken of
the experiences collected at national level.
FRA Opinion
In light of the variety of obstacles that irregular
migrants need to overcome to access legal assistance,
EU Member States are encouraged when reviewing
their aliens or immigration laws to enter into a
dialogue with civil society organisations as well as bar
associations in order to find pragmatic legislative and
practical solutions to the obstacles encountered which
are non-discriminatory and remain in compliance with
international obligations.
Furthermore, detailed comparative research on
whether legal assistance is accessible in practice should
be undertaken covering all European Union countries.
243 As an illustration, in Belgium, the detainee has the right to contact his/
her lawyer every day free of charge from 8.00 – 22.00, see Article 63 of
Royal Decree of 2 August 2002 (published on 12 September 2002). In
Luxembourg they can call their lawyer free of charge once per day. In
Austria, where correspondence is for the purpose of contacting relatives,
legal representatives, representatives of the pre-removal detainee care
service, authorities or diplomatic or consular representatives, costs
of postage shall in such cases be borne by the authority, Detention
Regulation at Section 20.2.
244 See Footnote 210.
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