I. Torture prevention in the context of immigration detention Key challenges in the OSCE region This session looked first at legal issues, then at the conditions of detention, the specific case of children in detention, and finally focused on the monitoring challenges. A. Legal challenges 1. Legality of detention The legality of detention is the factor determining whether a person’s right to liberty has been violated or not. Due process is an important element for the reduction of the risk for torture or illtreatment, and includes an assurance of the examination of every aspect of detention, including its legality throughout the process: from the initial deprivation of liberty until the detention in specified facilities. People held under immigration detention should benefit from the same safeguards applicable to other individuals deprived of their liberty from the outset. Participants agreed that as per international standards, detention of migrants should only be used as a last resort - in case there is a likelihood of absconding, risk of committing crimes or acting against national security. However, it was found that a vast majority of OSCE participating States tend to use it as a systematic migration management measure. For the detention to be considered lawful, it must be grounded in legislation, time-bound, and the detainees must be informed about the process to be able to challenge its legality or the reasons for being detained before a competent, impartial and independent judicial body. Detainees must be informed, in written form and in a language they can understand, of the reason for their detention and the rights to which they are entitled. If necessary, the services of an interpreter should be made available. Participants found that the arbitrariness of the deprivation of liberty of migrants was a core issue that they observe on the ground. Arbitrariness in the context of immigration detention has been defined by the European Court for Human Rights as follows: “freedom from arbitrariness in the context of immigration detention […] means that such detention must be carried out in good faith; it must be closely connected to the purpose of preventing unauthorised entry of the person to the country; the place and conditions of detention should be appropriate, bearing in mind that the measure is applicable not to those who have committed a criminal offence but to aliens who, often fearing for their lives, have fled from their own country; and the length of the detention should not exceed that reasonably required for the purpose pursued”.7 Although not every arbitrary detention amounts to ill-treatment as per international law, the combination of arbitrariness, prolonged detention with no prospect of release, absence of legal safeguards and remedies, and poor detention conditions reach this threshold, as stated by the UN Human Rights Committee.8 7 8 https://www.echr.coe.int/Documents/Guide_Immigration_ENG.pdf. See Human Rights Committee, General Observation no 35- Article 9. 7