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Report for the European Parliament Directorate General Internal

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Report for the European Parliament Directorate General Internal

    IP/C/LIBE/FWC/2005-22

    Immigration and Integration

    DG Internal Policies of the Union, Directorate C Citizens’ rights and Constitutional

    Affairs.

    BRIEFING PAPER III: ORDER FORM No IP/C/LIBE/OF/2005-167.

REPORT FOR THE EUROPEAN PARLIAMENT:

    DIRECTORATE GENERAL INTERNAL POLICIES

    OF THE UNION

    A TYPOLOGY OF DIFFERENT TYPES OF

    CENTRES IN EUROPE

    By Elspeth Guild

    TABLE OF CONTENTS

    EXECUTIVE SUMMARY ................................................................................................................ i INTRODUCTION ............................................................................................................................. 1

     1. WHICH LAWS GOVERN THE IMPLEMENTATION OF CENTRES? ................................... 1

    2. WHO IS PLACED IN THESE CENTRES? .............................................................................. 4 3. WHAT TYPES OF CENTRES ARE MISSING? ...................................................................... 6 4. RECOMMENDATIONS .......................................................................................................... 6 ANNEX 1. DETENTION CENTRES IN THE MEMBER STATES .................................................. 7 BIBLIOGRAPHY ........................................................................................................................... 10

    EXECUTIVE SUMMARY

    There has been an increase in the use of detention of foreigners in EU Member States over 1the past four years. The sources and political discussion regarding this change of policy has given rise to substantial concern in civil society. Researchers, policy makers and non-governmental organisations have expressed concern at the stigmatisation of foreigners which accompanies and is expressed in their detention. The European Parliament itself has already commissioned and received a detailed report on the return of foreigners from EU Member States (Hailbronner: 2005) which includes substantial information on this issue. In this paper we seek to examine three issues around the detention of foreigners in the EU: the law that governs camps; who is found in the camps; and what types of camps are missing. The starting place of this examination is the law of the European Union what are the

    parameters within which national law applies and how does national law comply with those parameters.

     1 Intrand & Perrouty (2005).

    i

    REPORT FOR THE EUROPEAN PARLIAMENT:

    DIRECTORATE GENERAL INTERNAL POLICIES OF THE UNION

    A TYPOLOGY OF DIFFERENT TYPES OF CENTRES IN EUROPE

    Elspeth Guild

    INTRODUCTION

    The detention of foreigners is closely associated with two policy concerns of Member States: first the treatment of asylum-seekers whose applications have been rejected either after a full consideration of their applications or on formal grounds (such as the Dublin II regulation); secondly, the treatment of foreigners irregularly on the territory of the Member States. The two concerns are related in that in many jurisdictions, asylum-seekers whose applications have been rejected are classified as foreigners irregularly on the territory of the Member States. Indeed, this category may well include a majority of such persons, though this is not clear and there do not appear to be any official comparable statistics on the matter among the Member States. Further, persons who are irregularly on the territory of the Member States are presented, in the policy making of a number of Member States, as persons likely to „abuse‟ the asylum system by making „late‟ claims for asylum on their

    detection by the national authorities. This essay will not consider the asylum laws of the Member States nor the EU measures that are being adopted in pursuit of the common European asylum system. We will focus here on detention of foreigners, the places and the law surrounding detention.

    One complicating feature of detention of foreigners is the intersection of administrative and criminal law. As an increasing number of Member States have adopted laws which criminalise undocumented entry and presence on the territory, foreigners who are found in such positions are detained, charged, convicted and sentenced to further detention on the basis of criminal law. Administrative detention, that is detention without the sanction of criminal law, remains important and is the focus of this essay. An analysis of the criminal law of the Member States on the detention of persons following and in compliance with sentencing has been dealt with to some extent in the European Commission‟s Consultation

    Paper: Procedural safeguards for suspects and defendants in criminal proceedings.

    Another field of concern of the EU which has direct consequences in the field of detention are the measures to combat trafficking in persons. Under this rubric further criminal offences have been created which result in the detention of foreigners. The emphasis on combating trafficking has also had the consequence of encouraging the allocation of resources to tracking foreigners irregularly present on the territory, the simplest category of trafficked persons to address.

    1. WHICH LAWS GOVERN THE IMPLEMENTATION OF CENTRES?

    The EC Treaty does not contain any provisions on the detention of foreigners. The draft Constitutional Treaty does not propose the addition of any new provisions as regards detention of foreigners. The Treaty on European Union provides in Article 29 for the development of common action in the fields of police and judicial cooperation in criminal matters and the prevention of trafficking in persons. Thus at the present time EU law does not directly address the question of detention of foreigners. However, EC law does regulate the administrative detention of foreigners who are nationals of the Member States and thus citizens of the Union. As regards such a foreigner, a French national in the Netherlands who, in so far as he was exercising rights under the Treaty and thus came within the material

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    scope of EC law was doing so either as a citizen of the Union or a service recipient under Article 49 EC, the European Court of Justice held “detention and deportation based solely

    on the failure of the person concerned to comply with legal formalities concerning the monitoring of aliens impair the very substance of the right of residence directly conferred by Community law and are manifestly disproportionate to the seriousness of the 2infringement.”

    The only EC secondary legislation which addresses the issue of detention so far is the 3Reception Conditions Directive applying to asylum seekers. Article 7 entitled residence

    and freedom of movement, sets as the principle that asylum seekers may move freely within the territory of the Member States or within an area assigned to them. Further “when it proves necessary, for example for legal reasons or reasons of public order, Member States may confine an applicant to a particular place in accordance with national law.”

    Thus the starting place as regards an analysis of the law applicable to all the Member States governing the implementation of detention centres is in other international instruments applicable to all Member States and which must be respected by them as part of EU law. This leads directly to the European Convention on Human Rights. Regarding the intersection of EU law and the ECHR, there has been much written which does not need to be repeated here. Suffice it to note that Article 6(2) TEU provides that “The Union [including the European Community] shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms …

    and as they result from the constitutional traditions common to the Member States…”

    The power to detain foreigners under the ECHR is specified in Article 5(1) “No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: … (f) the lawful arrest or detention of a person to prevent his effecting an unauthorized entry into the country or of a person against whom action is being taken with a view to deportation or extradition.” Unless these conditions are met, the individual‟s 4detention will be unlawful under the ECHR. The European Court of Human Rights (ECtHR)

    has held as regards this aspect “Considering whether the applicant‟s detention was "lawful" for the purposes of Article 5 ? 1, the Court noted that [the applicable national law] provided for the detention of an alien on condition that the execution of an administrative order for expulsion taken by the Minister of Public Order was pending, and that the alien was considered to be a danger to public order or might abscond. However, the applicant‟s expulsion was a judicial and not an administrative decision and the applicant was not 5considered a danger to public order or likely to abscond.” The Member State, Greece, was

    held in violation of Article 5(1).

    Regarding the implementation of places of detention (i.e. camps) the key law which applies to all the Member States is Article 3 ECHR, the duty of states to protection the individual 6from torture inhuman or degrading treatment or punishment, in conjunction with Article 5,

    the right of the individual to challenge the lawfulness of the detention. Regarding Article 3 and the detention of foreigners, the ECtHR held in respect of a foreigner detained on account of his irregular presence in Greece: “In the light of the above, the Court considered that the

     2 C-215/03 Oulane, European Court of Justice, 17 February 2005. 3 Directive 2003/9 laying down the minimum standards for the reception of asylum seekers. The European Parliament proposed amendments to the Asylum Procedures Directive to expressly limit detention but the proposals were rejected by the Council. 4 See for instance the decision of the European Court of Human Rights (ECtHR), Conka v Belgium, no. 51564/99, 5 February 2002. 5 Dougoz v. Greece, European Court of Human Rights, 6 March 2001 6 Which is also found in the EU Charter of Fundamental Rights.

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    conditions of detention of the applicant in the Alexandras Police Headquarters and the Drapetsona detention centre, in particular the serious overcrowding and absence of sleeping facilities, combined with the inordinate length of his detention, amounted to degrading 7treatment contrary to Article 3.”

    Thus the law which applies to all Member States regarding the implementation of detention in camps consists of two distinct parts: first: detention is prima facie contrary to the principle of liberty of the person and must be justified on the basis of Article 5(1) ECHR; secondly, the conditions of detention must not constitute torture, inhuman or degrading treatment as prohibited by Article 3 ECHR and interpreted by the ECtHR.

    Turning then to the national level, the legal provisions on the places of detention of foreigners may be found in a variety of different acts and measures. There are three key determining criteria as to where these provisions are found:

    First, is the detention carried out on the basis of criminal law and within the criminal law structures or administrative law? Where the legal framework regarding the operation of the place of detention depends on the criminal law of the Member State it provides a strong legal framework regarding the conditions of detention as these will apply also to nationals of the state. Where detention is carried out on the basis of administrative law, foreigners are detained separately from nationals of the state and the regime may be operated by a variety of 8different actors, such as private companies (the UK) or the military (Malta). The legal

    regimes of places of detention (civil: criminal/administrative, military) are not mutually exclusive and often apply concurrently to different types of detention within one state. Secondly, under the national legislation, are the places of detention open or closed? They are considered to be open when the individuals who are required to reside there are able to leave at will or within reasonable confines. These camps are more frequently referred to as reception centres and are among those foreseen in the reception conditions directive. Less concern has been expressed about this type of centre than in respect of those which are closed. The legal framework for this type of camp is most often found around asylum laws and 9provisions. Closed detention is where the individual required to reside there is not permitted to leave the confines of the camp at will. This type of camp is clearly covered by Article 5 ECHR as it is prima facie a restraint on liberty of the person. It is for the state to justify the restraint on the basis of the permissible grounds of detention.

    Thirdly, what are the control mechanisms in respect of places of detention? The regulation of the lawfulness of detention takes place primarily in three ways through challenge by the

    individual detained (including here NGOs which may act on behalf of or in place of the detained individual) (e.g. UK), through continuous monitoring by an appointed judge (e.g. Germany) or through an established monitoring mechanism with responsibility for visiting and reporting on the conditions of detention. Applications for habeas corpus or bail are the main ways of challenging detention and in relation to which the legality of detention is established. Monitoring of detention centres by specialised agencies, parliamentary representatives and NGOs is also a critical control mechanism regarding the nature and operation of camps. The mechanisms of control constitute one of the important ways of determining the situation of foreigners in the camp and structuring the legality of the camp.

     7 Dougoz v. Greece, European Court of Human Rights, 6 March 2001. 8 The camp at Sangatte, France, (closed by the French authorities in 2002) presented a rather sui generis form of camp as it was not established by national law but rather tolerated and it was