In focus: lawfulness of detention and the European Court of Human Rights Forty-seven out of the 57 participating States of the OSCE fall under the jurisdiction of the European Court of Human Rights. It is well established in the Court’s case-law under the sub-paragraphs of article 5 § 1 of the European Convention on Human Rights that any deprivation of liberty must, in addition to falling within one of the exceptions foreseen in the Convention, be “lawful”. Where the “lawfulness” of detention is in issue, including the question whether “a procedure prescribed by law” has been followed, the Convention lays down the obligation to conform to national law. Compliance with national law is not, however, sufficient: article 5 § 1 requires in addition that any deprivation of liberty should be in keeping with the purpose of protecting the individual from arbitrariness (para. 67 Saadi v. UK9) It was highlighted throughout the discussions that additional safeguards against arbitrary detention apply to children and other individuals with specific vulnerabilities who, to be able to benefit from such protection, should have access to an assessment of their vulnerability and be informed about respective procedures. Lack of active steps and delays in conducting the vulnerability assessment may be a factor in raising serious doubts as to the authorities’ good faith.10 In focus: effective asylum procedures Asylum-seekers, refugees and stateless people face a heightened risk of arbitrary detention and specific international guarantees exist to protect them and to uphold their right to access asylum procedures and related due process standards. As regards the right to access the asylum procedure, the UN Special Representative on Migration and Refugees noted that the exercise of the right to seek asylum by a person in immigration detention requires positive state action which goes beyond the removal of obstacles to seeking asylum. The competent state authorities must identify individuals in need of international protection and ensure access to an effective and fair asylum procedure. Article 31 of the 1951 Refugee Convention specifically provides for the non-criminalization of refugees and asylum-seekers having entered or stayed irregularly. This is based on general recognition of the reality that people in need of international protection in many cases are, by definition, unable to produce the documents or obtain the permissions normally required to secure lawful permission to enter a country, because of the circumstances of their flight. Several participants during the conference identified the criminalization of migration in some OSCE participating States as a key issue of concern. Examples of repeated cycles of detention, release upon the payment of a fine after a certain period and renewed detention orders in cases where payments could not be made were raised during the meeting. 2. De facto deprivation of liberty: a wide scope Besides de jure detention - mostly administrative - which already bears some serious challenges, the de facto detention of migrants in places which do not fall by law under regulated detention facilities was identified as a common practice throughout the OSCE region. Participants discussed various forms of such places where migrants are deprived of their liberty in practice, even if by law they should be free to leave at will. Such places range from immigration reception centres to so-called 9 https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-84709%22]}. See ECtHR Thimothawes v. Belgium and Abdi Mahamud v. Malta. 10 8