Monitoring Immigration Detention and Forced Return

standards and Swiss experiences

Seminar «Practical Aspects of monitoring immigration detention

and forced return»Riga 31st March 2015

Prof. Alberto Achermann, Vice President

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International mechanisms for the Prevention of Torture (I)

Optional Protocol to the Convention Against Torture (OPCAT)

18 December 2002

– A system of regular visits conducted by independent international bodies to all places of detention (art. 1)

– Set up of a National Preventive Mechanism within one year after the OPCAT enters into force or is being ratified (art. 17)

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The NCPT: National Preventive Mechanisms (NPM)

Federal law regarding the National Commission for the Prevention of Torture of 20 March 2009

In accordance with the OPCAT (18 December 2002) and in reference to the UN Convention Against Torture and other

forms of cruel, inhuman or degrading treatment or punishment.

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Mandate of the NCPT (art. 2)

a. The Commission examines the situation of detainees and regularly visits all places where persons are deprived of their liberty.

b. The Commission addresses recommendations to the competent authorities with the aim:• To prevent any form of torture, cruel,

inhuman or degrading treatment or punishment;

• To improve the treatment of persons deprived of their liberty.

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Composition (art. 5 and 6)

• The NCPT is composed of twelve members appointed for a four-year term.

• Its members have extensive experience and the necessary professional and technical skills and expertise in the fields of medicine, psychiatry, law (in particular, criminal law) or intercultural relations.

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Competences (art. 8)

• The Commission has unrestricted access to all kinds of data and information, which it needs to accomplish its mandate, namely:– Number, identity and location of all persons who are

detained;– Number and situation of all places of detention;– The treatment of detainees and the conditions of the

deprivation of liberty.

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Competences (2)• Detention: Art. 4 para. 2.

“For the purposes of the present Protocol, deprivation of liberty means any form of detention or imprisonment or the placement of a person in a public or private custodial setting which that person is not permitted to leave at will by order of any judicial, administrative or other authority”

• The Commission can access all places of detention and their facilities without notification.

• The Commission can interview detainees and all other person who might give valuable information, including prison and medical staff;

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Guiding Principles• Cooperation and constructive dialogue with

cantonal authorities with the aim to improve the conditions of detainees where necessary;

• Dialogue with federal and judicial authorities, civil society and politics

• Confidentiality of data

• NCPT has no judiciary character

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Methodology of visits• Visit of the prison/detention facility/psychiatric

institution by the NCPT• Confidential interviews and discussions with prison

and medical staff, the police and all detainees.• A draft report, including all recommendations, is

discussed with the authorities • The authorities‘ oral comments can be included in

the final version. • The authorities may come up with a written

statement in response to the report, which will be published, together with the report, on the website of the Commission

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Priorities 2012 (- 2015)

• Ensure correct detention conditions for persons detained awaiting repatriation

• Monitoring repatriation flights

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Visiting places of immigration detention

• Views from Prison Directors• Different population then in prisons

– Not Criminals, not punishment (Security)– Older– Female, often traumatised– Children – Families, Couples– Parents separated from Children placed in other

institutions

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Visiting places of immigration detention

• Vulnerability:– Poor knowledge of language

– Poor knowledge od the legal system

– Little contacts in country of stay

– Health status often unknown

– Identity unclear

– Often not represented by lawyers

– Running deadlines in asylum/expulsion procedures

– Difficulties of contacting relatives at home

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Standards in immigration detention?

• Many Standards, European and International (Dublin III, Return Directive, Rececption Conditions; Parliamentary Assembly; CPT, UN Human Rights Bodies; Case Law: ECtHR, CJEU; others)– Separation Rules – Not in prisons– Material detention conditions: humane, proportional restrictions– Information and Communication (phone, visits)– Contacts with lawyers, NGO’s– Medical Treatment

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Recent Judgements of the CJEU and the ECHR

• Bero and Bouzalmate, July 2014, based on return directive

“A Member State cannot rely on the fact that there are no specialized facilities in a part of its territory to justify detaining third-country nationals in prison pending their removal”

• Consequences? Only specialized facilities? Planning of new facilities

• Tharakel v. Switzerland, December 2014: Accommodation facilities in Italy = Question of Standards even outside detention environment

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• Standards, but:– Scattered– Incomprehensive– Inconsistent– Partly not applicable, rationae loci

• Therefore:– Great legal uncertainty – lack of legal tradition!– Big differences between States, even within States– Need for a codification of European Rules

– Need for recognized national standards

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Monitoring forced return

• Return Directive 2008/115, Art. 8 para. 6. “Member States shall provide for an effective forced-return monitoring system”

• OPCAT Mandate: Monitoring based on OPCAT/National Law, not on a special mandate

• Extreme forms of constraint – death cases

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Standards for forced return by air?

• Missing comprehensive set of standards/best practice• Twenty Guidelines on forced return of the Committee of

Ministers of the Council of Europe, 2005; • Frontex Guidelines• CPT-Standards

• Clear / detailed / national Standards?

– Expertise from Swiss Centre for Human Rights

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Standards (2)

• Art. 3 ECHR and Case Law– Proportionality of measures (immobilisation: means

and lengths) – Special restraint in cases of families / children– Medical treatment: no medication with tranquilizers,

anaesthetics etc. without consent– Degrading Treatment (tie with rope, napkins)

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Standards (3)

• Health Problems: – Medical support / medical supervision during flight– exercise during flight (thrombosis)– No means which restrain breathing– Information? – “Medical handover”

• No returns at every price!

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Forced Returns Switzerland 2008 – 2011

Level 4: Strong resistance, special flights, with captivation

Per

sons

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Monitoring in Swiss practice• Pool of Monitors• “Monitoring”

– Not intervening ! Security first

• Monitoring the whole process from the cell to the country of destination– apprehension, transport, entrance, flight, disembarkation

(Information!!!)

• Visiting persons after failed expulsion (preventive)

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Follow Up• Bi-monthly meetings with authorities (Federal office for

migration, responsible cantonal and police officer, chief doctor) to discuss critical operations, discuss improvements

• Biannual meetings with all the circles concerned (NGO’s, Swiss Medical Association, executing authorities) to discuss question of principle

• Annual reporting to the public • Developing best practice

• Welcomed by the authorities / by the police forces!

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