4. Procedural guarantees 4. Procedural guarantees To reduce the risk of unlawful or arbitrary detention, human rights law foresees a number of procedural safeguards. This chapter will touch upon these. It will first look at the right to be informed of the reasons for the deprivation of liberty. Subsequently, it will examine the authority ordering detention and judicial review guarantees as well as legal assistance. A final section will be devoted to the right to asylum and the possibility to submit an asylum application for persons in detention. Safeguards regarding children are addressed in Chapter 6. 4.1. Right to be informed European Convention on Human Rights Article 5.2 Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him. The right of every detainee to be informed of the reasons for their deprivation of liberty is laid down in Article 9.2 of the ICCPR as well as Article 5.2 of the ECHR. Both provisions underline that such information shall be provided ‘promptly’. In Saadi v. UK, the European Court of Human Rights found that a delay of 76 hours in providing reasons for detention was too long.164 The information provided shall also include the procedure to challenge the detention order.165 Without this, it would render the habeas corpus guarantees included in Article 9.4 ICCPR and Article 5.4 ECHR meaningless. Translation or interpretation plays an important role in the context of pre-removal detention, as in many cases the detainee’s command of the host country language may be limited or non-existent. In this context, Article 5.2 ECHR sets a very clear requirement, whereby the information has to be provided in a language which the person understands. In principle, the duty to inform the person about the reasons for detention in a language that he or she understands can be found in all European Union countries, either in general human rights documents as in 164 ECtHR (Grand Chamber), Saadi v. UK, No. 13229/03, 29 January 2008, paragraph 84. 165 European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, Twenty years of combating torture, 19th annual report, paragraph 86. See the recent report to the Human Rights Council by the UN Working Group on Arbitrary Detention (Human Rights Council, 13th session UN General Assembly, A/HRC/13/30, 18 January 2010), paragraph 61. the UK166 or in the aliens act as is in Poland.167 However, in practice this requirement becomes often challenging to comply with, as detention orders are often not translated into a language that the person understands. The following examples give an illustration of the different types of obstacles that may exist. In Austria, information on remedies against a detention decision is contained in the detention decision itself which is only in German and not in the information leaflet which has been translated into some 40 languages.168 Finnish law provides for an immigrant to be notified of a decision concerning him/her either in his/her mother tongue or in a language which, on reasonable grounds, he/she may be expected to understand. This is lower than the requirement by the ECHR (‘a language he understands’).169 Existing literature suggests that in Hungary detention decisions are only issued in Hungarian.170 In Ireland, irregular immigrants receive no written notification of the fact that they have the right to bring court proceedings to challenge the validity of their detention.171 More generally, as regards interpretation, in Latvia, there have been several cases when detainees were provided with an interpreter to the court who did not speak the language which the person could understand.172 More proactively, in Luxemburg the police does not limit itself to notify the foreigners in writing in the language which it is reasonable to assume that he/she understands. The notifying officer also draws up a report which contains among other things a statement by the foreigner that he/she has been informed of his/her rights as well as the language in which the detainee made his/ her statements. The detainee is asked to sign the report, but if he/she refuses to sign, the report states the reasons for the refusal. The report is sent to the ministry with a copy being given to the detainee.173 166 UK, Human Rights Act 1998 c.42 (09.11.1998), Sched. 1, Art. 5(2). 167 Act on Aliens at Article 105.2. 168 Human Rights Advisory Board, Rechtsschutz für Schubhäftlinge, pp. 15-18. 169 Finnish Aliens Act, Section 203(5). 170 J. Mink, (2007) Detention of asylum seekers in Hungary, Legal framework and practice, Budapest: Hungarian Helsinki Committee, p. 41. General information leaflets are, however, provided by the police in different languages. 171 Kelly, Immigration–related detention in Ireland: A research report of the Irish Refugee Council, the Irish Penal Reform Trust and the Immigrant Council of Ireland, Dublin: Human Rights Consultants, 2005, pp. 40-41, available online at: http://www.immigrantcouncil.ie/images/3217_ immigrationdetention.pdf. See also Jesuit Refugee Service – Europe, Becoming vulnerable in detention, p. 238. 172 Information of the LCHR obtained from its case work in February – May 2008 and in the framework of the project on ‘Legal Assistance for Asylum Seekers – Precondition for Improvement of The Quality of Asylum Procedure in Latvia’ funded by the European Refugee Fund (January–December 2009) in April–May 2009. 173 Luxembourg, Immigration Law at Article 121. 39