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

198 | PRACTITIONERS GUIDE No. 6
one or more independent national mechanisms for the prevention of
torture and cruel, inhuman or degrading treatment or punishment with
powers of access to detention centres. 736
1. Appropriateness of place of detention
International guidance stipulates that, except for short periods, detained
migrants should be held in specifically designed centres in conditions
tailored to their legal status and catering for their particular needs. 737
Under the particular scheme of Article 5 ECHR, holding a detainee in
a facility which is inappropriate in light of the grounds on which he or
she is held (for example for the prevention of unlawful entry or pending
deportation under Article 5.1(f)) may also violate the right to liberty. 738
So for example, it has been held that holding a child asylum seeker with
adults in a facility not adapted to her needs, violated the right to liberty.
739 A similar rationale would be likely to apply to the long-term use of
prisons or police cells for immigration detention.
In general, under international human rights law, the detention of migrants
in unsuitable locations, including police stations or prisons, may
lead or contribute to violations of freedom from torture or cruel, inhuman
or degrading treatment. 740 In relation to particular classes of
migrants, it may also violate other international standards, including, in
the case of minors, requirements to act in the best interests of the child
under the CRC. International and regional standards as well as conclusions
of UN treaty bodies and the UNHCR consistently recommend
that asylum seekers or other migrants should not be detained in police
or prison custody. The length of time for which someone is held in a
detention facility is often relevant to whether the detention amounts to
ill-treatment. For example, while detention of a migrant at an airport
may be acceptable for a short period of a few hours on arrival, more
prolonged detention without appropriate facilities for sleeping, eating
or hygiene could amount to ill-treatment. 741 This has been recognised
736 See, Articles 3, 17–22, OPCAT.
737 CPT Standards, op. cit., fn. 629, p. 54, Extract from 7 th General Report [CPT/Inf (97) 10],
para. 29; European Guidelines on accelerated asylum procedures, CMCE, op. cit., fn. 119,
Principle XI.7: “detained asylum seekers should normally be accommodated within the
shortest possible time in facilities specifically designated for that purpose, offering material
conditions and a regime appropriate to their legal and factual situation and staffed by suitably
qualified personnel. Detained families should be provided with separate accommodation
guaranteeing adequate privacy.” See also, Vélez Loor v. Panama, IACtHR, op. cit., fn. 536,
para. 209.
738 Aerts v. Belgium, ECtHR, Application No. 25357/94, Judgment of 30 July 1998, para. 46.
739 Mayeka and Mitunga v. Belgium, ECtHR, Application no 13178/03, Judgment of 12 October
2006.
740 Under Article 7 and 10.1 ICCPR; Article 3 ECHR; Article 5 ACHR; Article 5 ACHPR.
741 CPT Standards, op. cit., fn. 629, p. 54.