4. Procedural guarantees
Figure 5: Court endorsement of detention order, EU27
Court endorsement within a
maximum of four days required
Court endorsement required if
detention exceeds 8 to 28 days*
No court endorsement required
Note: In Cyprus, a court has to approve detention exceeding eight days; the same applies to Latvia for detention exceeding 10 days. In the Netherlands, a court
has to review the detention decision after 28 days, unless the detainee has appealed the detention order.
Source: FRA, September 2010
a decision of the Court of Magistrates, which had granted
habeas corpus review under Article 409 A of the Criminal
Code, arguing that once it was established that the
detention was lawful under the Immigration Act the
criminal courts are not competent to test whether the
detention is unlawful under any other laws.183 A judicial
review of the legality of the detention is in principle
possible under the Fundamental Human Rights provisions
in Chapter IV of the Constitution of Malta and under the
183 Report of Working Group on Arbitrary Detention, Mission to Malta,
paragraph 47, available at http://www2.ohchr.org/english/issues/
detention/docs/A-HRC-13-30-Add2.pdf.
European Convention Act.184 Such judicial review tends
however to be rather lengthy in time normally lasting
over 18 months. This may be one reason why it is rarely
used in practice.185
184 Constitution of Malta Act, Article 46; Chapter 319 of the Laws of Malta,
European Convention Act, Article 4.
185 See UNDOC A/HRC/13/30/Add.2; Human Rights Council, 13th session,
Report of the Working Group on Arbitrary Detention, Mission to Malta
19 to 23 January 2009, paragraph 48: “It takes approximately two years
for a final decision to be handed down, which exceeds the maximum
immigration detention period in terms of Government policy, as described
above. The Government referred the Working Group to other cases in
which judgment was delivered by the court of first instance within four
or five months and the appeal heard and decided within the following
41
Select target paragraph3
Connect to a paragraph
Connect to an entity
Disable highlights
Add to table of contents