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 (that is detention not based on a criminal conviction) based on existing international and regional human rights standards relating to administrative detention.
Terms of reference were drawn up for a Committee of experts on administrative detention of migrants (CJ-DAM) to carry out the task under CDCJ's authority .
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 individuals held in administrative detention by providing them with individual guarantees on their administrative detention;
- Provide guidance to both national authorities of detention places and persons working closely with the persons held.
A codification, into a single and specific instrument, offering a coherent and clear set of international rules on administrative detention 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 ensuring the draft codifying instrument is complete and effective.
The outcome of the consultaiotnn process (written and hearing) on the 1st draft codifying insturment are available below:
- Analysis of the results of the written consultation
- Report of the General Rapporeur on the Hearing (22-23 June 2017)
For more information about the Hearing, see:
- Programme of the Hearing
- Opening remarks by Ambassador Tomáš Boček, Special representative of the Secretary General for migration and refugees
- Pointers for discussions
- Legal instruments referred to in the 1st draft codifying instrument
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. 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).
- 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);
- Compilation of legal instruments relating to the administrative detention of migrants, refugees and asylum-seekers (extracts).