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

212 | PRACTITIONERS GUIDE No. 6
left the territory of the State—he or she remains within the jurisdiction
of the State for the purposes of international human rights law (see,
Chapter 1, Section I.2). Unjustifiable use of force or violence by State
officials or private agents involved in a deportation, including excessive
or inappropriate use of physical restraints, may violate the right to life,
freedom from torture and other cruel, inhuman or degrading treatment,
or rights to respect for physical integrity. 807 Since persons undergoing
forced expulsion are deprived of their liberty, the heightened responsibility
of the State to respect and protect the rights of those in detention,
applies. Standards of the European Committee for the Prevention of
Torture on the Deportation of foreign nationals by air 808 note the high
risk of inhuman and degrading treatment involved in such deportations
and provide guidelines to ensure that use of force during deportation
is no more than reasonably necessary and that the risk involved in
particular restraint techniques is adequately assessed and taken into
account. 809
IV. Procedural protection
1. Reasons for detention
A person detained for any reason, including for purposes of immigration
control, has the right to be informed promptly of the reasons
for detention. This right is protected by Article 5.2 ECHR, Article 9.2
ICCPR, Article 7 and 8 ACHR, and Article 14.3 ArCHR. Although
Article 5.2 ECHR refers expressly only to the provision of reasons for
“arrest”, the European Court of Human Rights has held that this obligation
applies equally to all persons deprived of their liberty through
detention, including immigration detention, as an integral part of
protection of the right to liberty. 810 The Inter-American Court has
held that information on the reasons for detention must be provided
807 See, Raninen v. Finland, ECtHR, op. cit., fn. 398, para. 56; Öcalan v. Turkey, ECtHR, Application
No. 46221/99, Judgment of 12 March 2003, paras. 182–184, both finding that handcuffing
during transportation of prisoners did not normally violate Article 3 where it did not
entail the use of force or public exposure beyond what was reasonably necessary, including
to prevent absconding.
808 CPT Standards, op. cit., fn. 629, Deportation of foreign nationals by air, Extract from the
13 th General Report [CPT/Inf (2003) 35], p. 66.
809 On the use of restraints, see also, Standard Minimum Rules on the Treatment of Prisoners,
principles 33 and 34; UN Rules for the Protection of Juveniles Deprived of their Liberty,
paras. 63–64.
810 Abdolkhani and Karimnia v. Turkey, ECtHR, op. cit., fn. 627, paras. 136–137. Shamayev and
Others v. Georgia and Russia, ECtHR, op. cit., fn. 434, paras. 413–414. The Court reasoned
that since Article 5.4 and Article 5.2 are closely linked, with knowledge of the reasons for
deprivation of liberty being essential to challenge that detention under Article 5.4, and since
Article 5.4 makes no distinction between deprivation of liberty for the purposes of arrest or
for other purposes, the right to reasons for detention applies in all cases of detention.