Speech by Christos Giakoumopoulos
Conference organised jointly by the Council of Europe, the European Commission and the European Migration Network
4 April 2019, Strasbourg
Special Representative, Tomas Bocek
Deputy Director-General, Simon Mordue
Ambassadors and other Dignitaries,
Ladies and Gentlemen,
and welcome to Strasbourg.
It is an honour for me to address you and engage with you on the important topic of this Conference. I am looking at almost 200 people in this room, and I know for a fact that each and every one of you has a significant contribution to share. In and of itself, just bringing all of you here together in a single space is worthwhile, as it can inspire collective endeavours and future action.
We have a tight schedule ahead of us with varied speakers from diverse backgrounds packed in a single day. I am, therefore, committed to staying brief, because I want to listen to all of you. It is yours to have time to exchange ideas, insights and experiences so that things can move forward.
To begin with, let me echo Tomas Bocek in thanking our co-organizers – the European Commission and the European Migration Network. I would in particular like to thank Simon Mordue and his team for this joint endeavour. The Commission and the Council of Europe cannot always agree on everything, but if we continue in the same constructive spirit as we do here, then we are bound to achieve success, even on a topic as difficult and challenging as migration.
In a handbook that the Drafting Group on Migration and Human Rights just concluded last week – under the mandate of the Council of Europe Steering Committee for Human Rights – three straightforward questions are asked:
First, why should we apply alternatives to detention?
Second, what types of alternatives can potentially be considered?
And, third, how might we make these alternatives work in practice?
The way I see it, we will throughout the day hear your expert answers as to the “what” and “how”. So, let me briefly ponder “why”.
What Tomas Bocek just described, of course, already gives us ample reasons for “why”. Sadly, Tomas is not alone in his findings: He is backed by multiple others. Varied international instances, including Council of Europe monitoring bodies, have over the years repeatedly reported that migrants continue to be detained in at times appalling conditions. We get consistent evidence from a range of different perspectives. The detrimental and long-lasting effects on the human psyche are just one of many dimensions at stake.
During its visits, the Council of Europe’s anti-torture Committee – the CPT – has repeatedly noted that immigration detainees are at a particular risk. It has furthermore found that vulnerable persons – including those in situations of extreme vulnerability such as children, pregnant women or nursing mothers – have been held in poor conditions. The CPT has reflected that meaningful alternatives to detention must be found .
The principle of detention as a measure of last resort is endorsed by all the international organisations present here. It is enshrined not only in varied international instruments but also in national law in a number of Member States. This principle has likewise been affirmed as a general human rights standard by the European Court of Human Rights in respect of vulnerability. In particular, the Court applies a strict test when examining cases of children detained for immigration-related reasons. In such cases, the authorities are required to verify whether their placement in detention is a measure of last resort for which no alternative is available.
In the context of the execution of the Court´s judgments, experience has shown that effective alternatives to the detention of migrants are crucial to ensure that deprivation of liberty remains a measure of last resort. Execution of Judgments also shows that a comprehensive system of effective alternative measures can provide answers to one of the significant challenges facing Member States today, namely, reconciling the individual right to liberty and security with the State’s legitimate security concerns.
The right to freedom and security is a fundamental pillar of what we call our civilization. Recourse to immigration detention is, however, in consistent demand and calls for increased detention capacity are quite frequent. In some places, open centres are turned into closed facilities. We have likewise witnessed a number of amendments making it easier for law enforcement authorities to detain in the context of migration.
But parallel to this development, there is growing interest in implementing more lenient measures so that detention can be avoided. Member States are increasingly engaging in the field, and we see innovative, original and effective work being carried out by civil society, local and national authorities, national human rights institutions and international organisations. There is willingness and openness to advance, and a growing commitment to turn promise into practice. The best results are, without exception, those where collaboration and cooperation is at the heart of operations.
This is, of course, what brings us here today. We want to focus on what works and what is done well, and how it is made to happen.
As for the Council of Europe, we are pleased to see that the work of the Council of Europe Steering Committee for Human Rights is widely referenced and used both by actors on the ground as well as national and international partners. I would also like to use the opportunity to draw your attention to the work carried out by other Council of Europe entities, including the Parliamentary Assembly and its Campaign to End Immigration Detention of Children. The concrete steps of action outlined by the Council of Europe Commissioner for Human Rights remain highly relevant, as does the on-going work on children in the context of migration – such as on guardianship and age assessment – carried out by CAHENF and the children´s rights division. The Action Plan of Tomas Bocek, as we heard earlier, is in full force. All this is, of course, made possible by the extensive work and production of our international partners.
As Tomas Bocek announced, we are also particularly pleased that a new HELP-course on alternatives will be elaborated this year. From our perspective, this is a way to provide support in concrete and pragmatic ways. I trust we can rely on the wisdom in this room to further enlighten its substance and relevance.
Ladies and Gentlemen,
I noted at the beginning that I would focus on the “why” – why alternatives to detention. Let me reiterate that the why is not only a referral to the need to avoid worst-case scenarios of arbitrary detention, unnecessary suffering and harmful effects on the human psyche.
The reason to implement alternatives is also because it can be beneficial to state authorities to do so. When effectively applied, instead of resorting to detention, such measures can help authorities ensure that individuals comply with immigration procedures, which is clearly in the legitimate interest of the state. It can help ensure that individuals do not abscond or transgress the rules in place, including when they have to leave the territory. Alternatives can likewise help states in respecting their human rights obligations and avoid the risks of detention. If successful, more lenient measures may simultaneously reduce costs as compared to detention.
This may sound too good to be true – especially in the current context. But I trust that near all the international partners present here today can testify to such potential mutual benefits.
This is not to say that the journey is easy or straightforward. Clearly, it is not. But the central insight is that effective implementation with mutual benefits actually is possible. We know it is because we have concrete examples of it.
What I have personally found fascinating in the work being produced is the need for a shift in mentality: The need to shift our attention to processes of engagement with individuals rather than exclusive enforcement. Our first questions always tend to be “what” – what alternatives should we use and what restrictions can contain people?
But perhaps we are finding out that these may not be the most important questions. How we engage with the persons concerned, how we support people in complying with procedures, and how we ensure that alternative measures are suited both to the specific national context and the individuals at stake: These may be the approaches that help ensure success.
In this, we stand to learn a lot from civil society pilot projects, case-workers and other stakeholders working on the ground. I am delighted to see their place in the programme today alongside national authorities and international organisations.
Ultimately, the lessons learnt so far indicate a single message: We need to continue engaging together. As we are still in a phase of trial and error, we need to continue learning about how to apply alternatives to detention effectively through engagement and not only enforcement. We need to continue sharing the knowledge of success that is already accumulating in diverse locations in Europe and beyond. We also need to understand the reasons for failure. Above all, we need to continue applying this learning in practice. And we need to recognize that the only avenue for progress is through joint efforts and cooperation. Playing solo is of no use.
In closing, let me remind you that this event forms a part of the 70 anniversary of the Council of Europe. Seventy years ago, the Council of Europe was born partly out of the suffering of refugees in Europe and the horrific breakdown of civilization and humanity. It was born out of war and conflict, death and desperation, massive displacement and the tearing apart of families and communities. While the topic of migration may seem extremely complicated and contentious today, addressing it in humane ways forms a core of our mission. It is part of how we came into being and why we need to continue to engage: It is our duty not to shy away.
In this, every single person´s well-being counts, and every single person in this room can, in his or her way, make a difference to this effect.
Finally, as already noted, this is Tomas Bocek´s last engagement on this topic as Special Representative of the Secretary General on Migration and Refugees Let me mark the occasion by thanking him for everything that he has done. He has brought a refreshing spirit and dedication to the tasks at hand, and his Action Plan stands out for its achievements. I suggest that we give him a big hand and warm thanks. And, of course, we wish him all the best in his new endeavours.
Thank you, and have a good and fruitful day.
I would like to add this little phrase, just to smoothly reiterate that alternatives should come in the place of detention. Sometimes, authorities like to have alternatives “on top of detention” as a way of extra control.