6
Child-specific
procedural safeguards
To ensure that detention is not unlawful or arbitrary
and, when imposed, does not limit fundamental rights
unduly, European and international law contain a set of
procedural safeguards (see Figure 14).
Ø The most important procedural safeguards
that apply regardless of age are the rights to:
• free legal aid as a precondition to exercise
the right to an effective remedy, as the
procedures are complex, so one needs to
be familiar with domestic law to access
them effectively;249
• linguistic assistance.250
• judicial review, which is enshrined at all
three levels – the EU Charter, the ECHR
and international human rights law247 –
and expressly guaranteed by secondary
EU law;248
Alongside these general safeguards are childspecific safeguards, which are the focus of this
report.
Figure 14: Five conditions deprivation of liberty must meet to not be unlawful and arbitrary
Fundamental rights
safeguards
Clear legal basis
in national law
Based on
allowed grounds
Necessary and
proportionate
RESPECTS
PROCEDURAL
SAFEGUARDS
Conditions are
humane and dignified
Source: FRA, 2017
247 EU Charter, Article 47 (right to an effective remedy); ECHR,
Article 5 (4); ICCPR, Article 9 (4); Reception Conditions
Directive, Article 9 (3); Return Directive, Article 15 (2) (a).
248 Reception Conditions Directive, Article 9 (3); Return
Directive, Article 15 (2).
249 European Commission of Human Rights, Mohammed Zamir
v. the United Kingdom, No. 9174/80, 11 October 1983,
para. 113. See also ECtHR, Chahal v. United Kingdom
[GC], No. 22414/93, 15 November 1996, para. 130; and
ECtHR, Čonka v. Belgium, No. 51564/99, 5 February 2002,
paras. 44–45 where the Court gave considerable importance
to the lack of legal representation when determining
whether an existing remedy was to be considered
effective. Council of Europe Twenty Guidelines on Forced
Return, Guideline 9; Reception Conditions Directive,
Article 9 (6); Return Directive, Article 13 (4).
250 ECHR, Article 5 (2); Reception Conditions Directive, Article 9
(4); Return Directive, Article 12.
63
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