Detention of third-country nationals in return procedures FRA Opinion Given the challenges to implement Article 5.2 ECHR in practice, it may be advisable to specify expressly in national legislation that the reason for detention as contained in the detention order and the procedure to access judicial review be translated in a language the detainee understands. The reasons should also be given to him/her in written form as well as read out with the help of an interpreter, if necessary. 4.2. Judicial review European Convention on Human Rights Article 5.4 Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. The right to judicial review is a “cornerstone”174 guarantee to prevent arbitrary detention. Article 9.4 of the ICCPR provides that “anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that the court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful”. A similar provision is contained in Article 5.4 of the ECHR. The Charter on Fundamental Rights of the European Union provides at Article 47 for a right to an effective remedy before a tribunal. The ICCPR as well as the ECHR require that the review extend to the lawfulness of detention and not be limited merely to its reasonableness or other lower standards. This has also been highlighted by the UN Working Group on Arbitrary Detention.175 The court or tribunal must have the authority to order the release of the person.176 Release should be immediately carried out upon the order of the court by the detaining authority without the latter having to wait for an order by the supervising authority. Before examining judicial review practices it is useful to review whether the detention is ordered by the administration or by a court. Existing practices in EU Member States show that in over half of the states 174 ECtHR, Rakevich v. Russia, No. 58973/00, 28 October 2003, paragraph 43; see also ECtHR, Shamsa v. Poland, Nos. 45355/99 and 45357/99, 27 November 2003, paragraphs 58-60. 175 See also the Report of the Working Group on Arbitrary Detention (Human Rights Council, 13th session, UN General Assembly, A/HRC/13/30, 18 January 2010), paragraph 61. 176 UN Human Rights Committee, Communication No. 560/1993, A v. Australia at 9.5. 40 the initial detention order, as well as subsequent extensions, have to be endorsed by a court, whenever the deprivation of liberty goes beyond short term arrest.177 In these cases, the administration is under the obligation to bring the case before a judge who has to endorse the deprivation of liberty. Time limits to obtain a court endorsement are normally very short, ranging from 4872 hours (and in one case four days);178 in a few countries, however, deadlines are longer.179 Another guarantee to ensure a swift processing consists in provisions that limit the possibility to postpone the court hearing.180 The map in Figure 5 shows which countries require a judge to approve the deprivation of liberty going beyond short term arrest and which countries do not. When the decision to order or extend the deprivation of liberty is taken by the immigration or police authorities, the individual has normally the right to appeal such decision to a court or tribunal.181 In Malta, the law foresees that appeals are lodged with the Immigration Appeals Board.182 In 2005 the Court of Criminal Appeal overturned 177 Cyprus, Aliens Act at Section 13.2; Germany, Residence Act at 62.4, Denmark, Aliens Act, Article 37.1; Estonia, OLPEA at Sections 18.1 and 23.1; Spain, Law 4/2000 at 62.1; Finland, Aliens Act, Article 124.1; France, CESEDA at Article 552.1; Hungary, TCN Act at 54.3; Italy, LD 286/98 at Article 14; Latvia, Immigration Law at 54.2; Lithuania, Aliens Act at 116.2; Dutch Aliens Act at 94.1; Poland, Act on Aliens, Article 104.1 and 104.2; Portugal, Act 23/2007, Article 146.1; Romania, Emergency Ordinance at Article 97.2. 178 In Estonia (OLPEA, Sections 18.1 and 23), Italy (LD 286/98 at Article 14.3), Poland (Act on Aliens, Article 101.3a) Portugal (Act 23/2007, Article 146.1) and Romania (Emergency Ordinance at 88.7 and 97.2) the judge has to validate the order within 48 hours. In France the judge must be seized within 48 hours (CESEDA at 552.1). In Denmark (Aliens Act, Article 37.1) and in Hungary (TCN Act at Article 54.3) and in Spain (Law 4/2000 at 60.1 and 62) the deadline is 72 hours. In Germany, Residence Act, Section 62.4 requires an immediate referral. In Lithuania (Aliens Act at 116.1), the court pronounces its decision during the oral hearing which should take place within 48 hours. In Finland, the court has four days to decide (Aliens Act, Article 124.2). 179 In Cyprus any detention beyond eight days has to be approved by the court (Aliens Act, Section 13.2). In Latvia, the district/city court has to endorse any detention that lasts for more than 10 days (Immigration Law, Article 54.1-2). In the Netherlands, after 28 days, the court reviews automatically any detention decision which has meanwhile not been appealed by the detainee (Aliens Act at 94.1). 180 See, for example, Finland, Aliens Act Article 125.3 which allows the postponement of a hearing only in case of special circumstances. 181 Austrian Aliens Police Act at Sections 76.7 and 82; Belgium, Law on Foreigners, Article 71; Bulgaria, Law on Foreigners, Article 46a.; Czech Republic, FORA, Article 124.5 (see also Section 200o et seq. of the Code of Civil Procedure); Greece, TCN Act, Article 76.3; Luxembourg, Immigration Law, Article 123; Sweden, Aliens Act, Chapter 14, Section 9; Slovenia, Aliens Act at Article 58.3; Slovakia, Aliens Act, Article 62. In Ireland and the UK a habeas corpus application is possible (Article 40.4 of the Irish Constitution and for the UK the Human Rights Act 1998, Sched.1, Article 5.4, but also the writ of habeas corpus under common law). 182 Malta, Immigration Act at 25A.5. While an information leaflet on how to challenge detention is provided to all detainees and contacts with NGOs can be established by detention staff, the UN Working Group on Arbitrary Detention, Report of the Working Group on Arbitrary Detention, Mission to Malta 19 to 23 January 2009 (Human Rights Council, 13th session UN General Assembly, A/HRC/13/30/Add.2, 18 January 2010, paragraph 45) reported practical difficulties in accessing the Board, indicating that the “Board has no registry or office, and there are no clear, publicly available instructions explaining where to file an application or what procedures should be followed”.