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

MIGRATION AND INTERNATIONAL HUMAN RIGHTS LAW | 201
of immigration detention and the holding of ever-larger numbers of
migrants, often in overcrowded facilities, 753 poor or overcrowded conditions
of detention for migrants have regularly been found by international
courts and human rights bodies to violate the right to be free
from cruel, inhuman or degrading treatment. Although detention by its
nature imposes a certain level of hardship, the general principle to be
applied is that conditions of detention should be compatible with human
dignity and not subject detainees to a level of suffering beyond that inherent
in detention. 754 Furthermore, economic pressures or difficulties
caused by an increased influx of migrants cannot justify a failure to
comply with the prohibition on torture or other ill-treatment, given its
absolute nature. 755
a) Cumulative effect of poor conditions
The cumulative effect of a number of poor conditions may lead to violation
of the prohibition on ill-treatment. 756 Furthermore, the longer the
period of detention, the more likely that poor conditions will cross the
threshold of ill-treatment. The test is an objective one, and can be met
irrespective of whether there had been any intent on the part of the
authorities to humiliate or degrade. 757 The prohibition on cruel, inhuman
or degrading treatment places an obligation on State authorities to
ensure that those whom they deprive of liberty are held in humane conditions;
the onus cannot be placed on detainees themselves to take the
initiative to seek access to adequate conditions. 758 Whether conditions
are cruel, inhuman or degrading must also be seen in the context of the
individual—it may depend on the sex, age or health of the individual
detainee. For those held in immigration detention, it is also relevant
that they are not charged with or convicted of any crime, which should
be reflected in the conditions of detention and facilities at the detention
centre. 759
753 CPT Standards, op. cit., fn. 629, Safeguards for Irregular Migrants Deprived of their Liberty,
Extract from the 19 th General Report [CPT/Inf (2009) 27], p. 61, paras. 85–89.
754 S.D. v. Greece, ECtHR, Application No. 53541/07, Judgment of 11 June 2007, para. 45;
M.S.S. v. Belgium and Greece, ECtHR, op. cit., fn. 324, para. 221. See also, “Juvenile Reeducation
Institute” v. Paraguay, IACtHR, op. cit., fn. 752, paras. 151–155.
755 M.S.S. v. Belgium and Greece, ECtHR, op. cit., fn. 324, paras. 223–224.
756 Dougoz v. Greece, ECtHR, Application No. 40907/98, Judgment of 6 March 2001; Z.N.S.
v. Turkey, ECtHR, Application No. 21896/08, Judgment of 19 January 2010; Charahili v.
Turkey, ECtHR, op. cit., fn. 743; M.S.S. v. Belgium and Greece, ECtHR, op. cit., fn. 324,
paras. 230–233.
757 Riad and Idiab v. Belgium, ECtHR, Applications Nos. 29787/03 and 29810/03, Judgment of
24 January 2008, para. 107.
758 Ibid., para.103.
759 See CPT Standards, op. cit., fn. 629, Safeguards for Irregular Migrants Deprived of their Liberty,
Extract from the 19 th General Report [CPT/Inf (2009) 27], p. 61, paras. 85–89; M.S.S.
v. Belgium and Greece, ECtHR, op. cit., fn. 324, paras. 231–233.