Detention of third-country nationals in return procedures airport.216 Establishing a neutral setting for the hearing in the detention facility may be challenging, considering that the judge will normally depend on the police to arrange access and that the foreigner may be intimidated, particularly when the same or similar rooms to those used for police interrogation are used. Review lawfulness of detention The judicial review can have a narrow or a broader scope, depending on the country. At a minimum, the judge must have the possibility to review the lawfulness of detention and the power to order the release. In Greece, before the 2009 amendments the European Court of Human Rights expressed concern that the courts did not review the lawfulness of detention.217 In Malta, the Working Group on Arbitrary Detention indicated that the Immigration Appeals Board applies a test of reasonableness of detention only, rather than examining the lawfulness of the deprivation of liberty.218 When analysing the situation more in detail, a number of factors influence the exact scope of the judicial review. These range from general considerations flowing from the domestic legal culture or constitutional principles to specific features of the immigration legislation, such as the way detention grounds are formulated or whether necessity or proportionality requirements are included in the law. Thus, in some countries the courts substantially interfere in the margin of discretion that is given to the administration to determine when to resort to detention by reviewing if the deprivation of liberty was indeed necessary and proportional.219 In other cases, the review will focus on the formal requirements, such as whether the deprivation of liberty was ordered based on grounds foreseen in the law and whether procedural rights were respected, but not examine, for instance, whether the administration has correctly balanced all factors when determining that there is a risk of absconding. 220 216 CESEDA, at Article 222.4. 217 ECtHR, S.D. v. Greece, No. 53541/07, 11 June 2009, paragraph 76. This has been corrected with the introduction of the provision in the new Article 76.3 of the Law on Entry, Residence and Social Integration of ThirdCountry Nationals on Greek Territory. 218 See UN DOC 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 at paragraph 43. See also European Commission against Racism and Intolerance (ECRI), Third report on Malta, 14 Dec. 2007 at paragraph 40. 219 Austria, Aliens Police Act, Sections 80.6 and 83.4; Ireland, Section 5(4) Immigration Act 2003. In the UK, the judge examines whether the detention is lawful as well as whether the deprivation of liberty is reasonable. 220 See, for example, Belgium, Law on Foreigners, Article 72(2). In the Netherlands, Administrative Jurisdiction Division of the Council of State [Afdeling Bestuursrechtspraak van de Raad van State], decisions 200603830/1 of 23 June 2006, decisions 200909865/1/V3, 5 February 2010 at paragraph 2.1.2 and 200908127/1/V3, 07 January 2010, at paragraph 2.3, in which the Council of State recognises the margin of appreciation of the administration, but limits the review of the courts to whether grounds for detention exist, but does not allow them to replace the weighing by the 44 In different countries, the effectiveness of the judicial review has been questioned, indicating that it is merely formal and that decisions are rendered automatically.221 A comprehensive examination of appeals statistics would be required to substantiate this. The two countries for which figures are available to the FRA indicate that the number of detention orders which are not confirmed or which are overturned by the court are quite limited. In Finland, in 2008, the district courts upheld an administrative decision to detain in 791 cases, and in only seven cases was the matter either rejected or quashed.222 In Poland, the District Court in Warsaw (first instance) upheld the deprivation of liberty requested by the administration in 202 out of 208 cases decided between 1 January and 26 June 2009, whereas out of the 15 cases reviewed by the Regional Court in Warsaw (second instance) between 1 January and 23 June 2009, detention was continued in all cases but one, due to the pregnancy of the irregular immigrant.223 FRA Opinion The right to judicial review of the detention order must be effectively available in all cases. This can best be achieved by requiring a judge to endorse each detention order, as many EU Member States already do. Moreover, measures to alleviate practical barriers restricting access to judicial review procedure should be put in place, including as regards information, language assistance, and the simplification of procedural requirements. Courts or tribunals reviewing the detention order must have the power and be adequately equipped to examine the lawfulness of detention. Reasonable deadlines should also be introduced to avoid protracted review proceedings without undermining their fairness. authorities with its own weighing. 221 For Finland, such information was provided by phone on 14 May 2009 by the Office for the Ombudsman for Minorities to the FRALEX national expert; however, it can also be found in a document by Amnesty International Finland on the detention of immigrants (8 April 2009) available at http://www.amnesty.fi/uutishuone/tiedotearkisto/2009/ ulkomaalaisten-sailoonoton-kynnysta-nostettava, [Amnesty Internationalin Suomen osaston kannanotto: Ulkomaalaisten säilöönoton kynnystä nostettava ja käytäntöjä valvottava]. See for Denmark, Grundloven og menneskerettigheder i et dansk og europæisk perspektiv, Morten Kjærum mfl., p. 265. For Ireland, see Kelly, Immigration–related detention in Ireland: A research report of the Irish Refugee Council, the Irish Penal Reform Trust and the Immigrant Council of Ireland, Dublin: Human Rights Consultants, 2005, paragraph 28. Available online at: http://www.immigrantcouncil.ie/images/3217_immigrationdetention.pdf. 222 Statistics provided by the Finnish Ministry of Justice on 26 May 2009. 223 Unofficial data collected by the researchers from the District and the Regional Courts in Warsaw on 23 June 2009. Article 121 of the Polish Act of Aliens states that women up to seven months of pregnancy can be held for the purpose of removal; after this time, pregnant women are transferred to the guarded centre.