Universal-MigrationHRlaw-PG-no-6-Publications-PractitionersGuide-2014-eng

MIGRATION AND INTERNATIONAL HUMAN RIGHTS LAW | 179
2. Detention must have a clear legal basis in national
law and procedures
An essential safeguard against arbitrary detention is that all detentions
must be adequately prescribed by law. This reflects the general human
rights law principle of legal certainty, by which individuals should
be able to foresee, to the greatest extent possible, the consequences
which the law may have for them. The need for legal certainty is regarded
as particularly vital in cases where individual liberty is at stake. 642
The principle of prescription by law has two essential aspects:
• that detention be in accordance with national law and procedures;
• that national law and procedures should be of sufficient quality to
protect the individual from arbitrariness. 643
For detention to have a sufficient basis in national law, the national
law must clearly provide for deprivation of liberty. In Abdolkhani and
Karimnia v. Turkey, 644 the European Court of Human Rights held that
a law that required non-nationals without valid travel documents to
reside at designated places did not provide sufficient legal basis for
their detention pending deportation. Laws imposing deprivation of
liberty must be accessible and precise. 645 Its consequences must be
foreseeable to the individuals it affects. The law must provide for time
limits that apply to detention, and for clear procedures for imposing,
reviewing and extending detention. 646 Furthermore, there must be a
clear record regarding the arrest or bringing into custody of the individual.
647 Legislation which allows wide executive discretion in authorising
or reviewing detention is likely to be considered an insufficiently precise
basis for deprivation of liberty. 648 The Inter-American Commission
on Human Rights has stressed that “[t]he grounds and procedures by
which non-nationals may be deprived of their liberty should define with
642 Medvedyev v. France, ECtHR, op. cit., fn. 51, para. 80.
643 Čonka v. Belgium, ECtHR, op. cit., fn. 570, para. 39; Amuur v. France, op. cit., fn. 45,
para. 51. See also, Servellón-García et al. v. Honduras, IACtHR, Series C No. 152, Judgment
of 21 September 2006, paras. 88–89; Yvon Neptune v. Haiti, IACtHR, op. cit., fn. 624,
para. 98. See also, UN Working Group on Arbitrary Detention (WGAD), Annual Report 1998,
UN Doc. E/CN.4/1999/63, 18 December 1998, para. 69, Guarantee 2; WGAD, Annual Report
1999, UN Doc. E/CN.4/2000/4, 28 December 1999, Annex II, Deliberation No. 5 “Situations
regarding immigrants and asylum-seekers”, Principle 6; WGAD, Annual Report 2008, op. cit.,
fn. 624, paras. 67 and 82.
644 Abdolkhani and Karimnia v. Turkey, ECtHR, op. cit., fn. 627, para. 133.
645 Amuur v. France, ECtHR, op. cit., fn. 45, para. 51
646 Abdolkhani and Karimnia v. Turkey, ECtHR, op. cit., fn. 627; Vélez Loor v. Panama, IACtHR,
op. cit., fn. 536, para. 117.
647 Tehrani and Others v. Turkey, ECtHR, Applications Nos. 32940/08, 41626/08, 43616/08,
Judgment of 13 April 2010; Nadege Dorzema et al. v. Dominican Republic, IACtHR, op. cit.,
fn. 537, para. 131.
648 Rafael Ferrer-Mazorra et al. v. USA, IACHR, op. cit., fn. 395, paras. 222 and 226.