Detention has been highlighted in recent years by a number of international and non-governmental organisations as an ineffective and inefficient tool of migration control employed by a large number of states. In 2013, the European Court of Human Rights continued to find violations of Article 5(4) of the Convention for the Protection of Human Rights and Fundamental Freedoms (“ECHR”) by various state parties and even rendered a quasi-pilot judgment in the case of Suso Musa v. Malta.
The grounds of these violations related to the lack of an effective judicial review mechanism, and, in the majority of the cases, to national procedures that did not respect the speediness requirement of Article 5(4) ECHR. The possibility of detention for a maximum period of 18 months in EU member states, established by Article 15 of the ‘Return Directive’ in 2008, has rendered even more evident the need for an effective, speedy judicial review in immigration and asylum cases.
Article 5(4) ECHR entitles a detainee to institute proceedings challenging the procedural and substantive conditions upon which his deprivation of liberty is based. The general principles applied by the Court in this regard are set out in M.A. v. Cyprus, as follows:
- Article 5(4) does not guarantee a right to judicial review of such a scope as to empower the court, on all aspects of the case including questions of pure expediency, to substitute its own discretion for that of the decision-making authority. The review should, however, be wide enough to bear on those conditions which are essential for “lawful” detention.
- The remedies must be made available during a person’s detention with a view to that person obtaining speedy judicial review of the lawfulness of his detention capable of leading, where appropriate, to his release. The accessibility of a remedy implies, inter alia, that the circumstances voluntarily created by the authorities must be such as to afford applicants a realistic possibility of using the remedy.
- The existence of the remedy required by Article 5(4) must be sufficiently certain, not only in theory, but also in practice.
- The requirement of procedural fairness under Article 5(4) does not impose a uniform, unvarying standard to be applied irrespective of the context, facts and circumstances.
- Under Article 5(4), all detainees also have a right, following the institution of such proceedings, to a speedy judicial decision concerning the lawfulness of their detention and to its termination if it proves unlawful. In this context, the Court has laid down strict standards. For example, in the cases of Sarban v. Moldova, Kadem v. Malta and Rehbock v. Slovenia, the Court concluded that time periods of twenty-one, seventeen and twenty-three days, respectively, were excessive.
- Although Article 5(4) does not require the existence of bi-level judicial review, in cases where it exists, both levels should meet the speediness requirement (Djalti v. Bulgaria, para. 64).
Of importance in this context is legal aid. Although the ECHR does not require provision of free legal aid in the context of detention proceedings, if legal representation is required under domestic law, the non-existence of legal aid raises issues of compatibility with Article 5(4) (Suso Musa v. Malta, para. 61).
In the case of Suso Musa, the Strasbourg Court took an exceptional step and adopted a quasi-pilot judgment, indicating to Malta (in the non-operative part of the judgment (para. 119 et seq.)) the necessity of general measures at the national level establishing, inter alia, a judicial- character mechanism providing for speedy and fair judicial review of migrant detention. What actually prompted the Court to act in this manner was its conclusion that the problems detected in the case could give rise to numerous other well-founded applications that would excessively burden the Court’s docket. The Court had already found a similar violation by Malta in 2010, in another case concerning migrant detention, Louled Massoud.
The above guidelines provided by the Strasbourg Court’s case law are significant, especially in a period when deprivation of migrants’, including asylum seekers’, liberty upon arrival or in view of forced return from Europe has been trivialised.