Administrative detention of migrants
In accordance with its terms of reference, the European Committee on Legal Co-operation (CDCJ) is carrying out a codifying exercise on a detailed set of immigration detention rules based on existing international and regional human rights standards relating to the conditions of detention of migrants.
This activity proposal implements one of the recommendations in the 1st report of the Secretary General of the Council of Europe on the state of democracy, human rights and the rule of law 2014); this recommendation itself followed on from similar calls made by the Parliamentary Assembly and the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), and is supported by the European Commission.
Thus, upon request of the Secretary General of the Council of Europe, a feasibility study has been completed (see background document below – available in English only). The latter comments on the increasing numbers of migrants who are subject to administrative detention in Council of Europe member states and reviews the existing standards at European level, including the case-law of the European Court of Human Rights. The study notes that:
- The European Prison Rules are neither applicable to, nor adequate for the administrative detention of immigrants.
- Other existing international instruments dealing with administrative detention of immigrants are ‘scattered, inadequate, inconsistent and not effective’ in so far as they concern this question.
- There is uncertainty as to what extent instruments are applicable to certain situations involving immigrants or can be applied by analogy.
The important task of codifying existing international standards has been entrusted by CDCJ to a Committee of experts established under its authority: the Committee of experts on administrative detention of migrants (CJ-DAM).
The elaboration of the draft codifying instrument started in May 2016 and is expected to be completed in 2018.
Purpose of the codifying instrument
The objective of the draft instrument is twofold:
- Protect migrants held in administrative detention by providing them with individual guarantees on the conditions of their administrative detention (i.e. detention not based on a criminal conviction);
- Provide guidance to both national authorities responsible for the closed centres and persons working closely with migrants.
The codification into a single and specific instrument offering a coherent and clear set of international rules on the conditions of detention of migrants would avoid the risk of diverging legal regimes and help build universally applicable standards.
Consultation of key stakeholders and civil society
Given the importance of this subject regarding the fundamental values of the Council of Europe, it appeared vital that the European Committee on Legal Co-operation (CDCJ) conduct, before finalising the preparation of the future legal instrument, a wide consultation of key actors and civil society. Their point of views and experiences are essential to ensure the draft codifying instrument is complete and effective.
The consultation process will be held in two steps:
1. Written consultation
A written consultation on the draft codifying instrument is now open until 30 June 2017.
Comments, in English or French, on the draft codifying instrument available below should be sent to the CDCJ Secretariat (DGI-CDCJ@coe.int) by 30 June 2017 at the latest.
With a view to collecting the greatest number of comments possible, we would kindly ask you to disseminate this draft legal instrument among other relevant parties, inviting them to comment where possible and within the same timeframe.
Please note that this exercise is limited to the codification of existing standards. It does not aim to establish new standards.
In parallel to this written consultation, a hearing will be organised with key stakeholders on 22-23 June 2017 in the premises of the Council of Europe Headquarters in Strasbourg.
Participants will be given an opportunity to share views and experiences, and to provide input, on issues to be addressed in the draft codifying instrument.
For more information, see:
- Programme of the Hearing
- Opening remarks by Ambassador Tomáš Boček, Special representative of the Secretary General for migration and refugees
- Pointers for discussions
- 1st draft codifying instrument on the conditions of administrative detention of migrants
- Legal instruments referred to in the 1st draft codifying instrument
- Compilation of legal instruments relating to the administrative detention of migrants, refugees and asylum-seekers (extracts)
- Terms of reference of the Committee of Experts on Administrative Detention of Migrants (CJ-DAM);
- 1st report of the Secretary General of the Council of Europe on the state of democracy, human rights and the rule of law in Europe (2014);
- Factsheets of the ECHR case law on migrants in detention;
- Factsheet – immigration detention – CPT (CPT/Inf(2017)3) ;
- Feasibility study on a draft codifying instrument of European Rules on the conditions of administrative detention of migrants (2013)
- Recommendation Rec(2006)2 of the Committee of Ministers to member states on the European prison rules ant its explanatory memorandum