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

MIGRATION AND INTERNATIONAL HUMAN RIGHTS LAW | 189
principle can be particularly significant in relation to detention of asylum
seekers, who may have suffered torture or ill-treatment or other
traumatic experiences, sometimes with physical or mental health implications.
In regard to all detained persons, particular concerns arise
in relation to survivors of torture or trafficking; children and elderly
persons; or persons suffering from serious illness or disability. For example,
in Farbtuhs v. Latvia, 700 the European Court held that detention
of a 79 year old disabled man violated Article 3 ECHR.
The UNHCR Guidelines on Detention (Guideline 9) recommend that especially
active consideration should be given to alternatives to detention,
for persons for whom detention is likely to have a particularly serious
effect on psychological well-being. Such persons may include unaccompanied
elderly persons, survivors of torture or other trauma, and persons
with a mental or physical disability. The UNHCR Guidelines recommend
that such persons only be detained following medical certification
that detention will not adversely affect their health or well-being. 701
Where such persons are detained, then in order to ensure compliance
with freedom from cruel, inhuman and degrading treatment, particular
care will need to be taken in relation to conditions of detention, provision
of healthcare, etc (considered further below in Section 2).
In C. v. Australia, 702 the Human Rights Committee found a violation
of Article 9.1 on the basis that “the State Party has not demonstrated
that, in the light of the author’s particular circumstances [a psychiatric
illness], there were not less invasive means of achieving the same ends,
that is to say, compliance with the State Party’s immigration policies”.
The European Court of Human Rights has, in practice, begun to temper
its previously inflexible approach to alternatives to detention (see,
above, section II.5.b.), with regard to migrants in situations of vulnerability.
For instance, the Court has ruled that the best interest of the
child (Article 3 CRC) and the provisions of the Convention on the Rights
of the Child on detention (Article 37 CRC) require that State authorities
consider any alternatives to detention before resorting to this measure
in order to satisfy its lawfulness under Article 5.1(f) ECHR. 703 This approach
also applies when children are accompanied by their family. In
Popov v. France, the European Court ruled that, “in spite of the fact that
they were accompanied by their parents, and even though the deten-
700 Farbthus v. Latvia, ECtHR, Application No. 4672/02, Judgment of 2 December 2004.
701 UNHCR Guidelines on Detention, op. cit., fn. 633, Guideline 9: “Because of the serious consequences
of detention, initial and periodic assessments of detainees’ physical and mental
state are required, carried out by qualified medical practitioners. Appropriate treatment
needs to be provided to such persons, and medical reports presented at periodic reviews of
their detention”.
702 C. v. Australia, CCPR, op. cit., fn. 350.
703 Rahimi v. Greece, ECtHR, Application No. 8687/08, Judgment of 5 April 2011, paras. 108–109.