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

MIGRATION AND INTERNATIONAL HUMAN RIGHTS LAW | 213
“when the detention takes place, [which] constitutes a mechanism to
avoid unlawful or arbitrary detentions from the very instant of deprivation
of liberty and, also, guarantees the right to defense of the
individual detained.” 811 The Human Rights Committee has stressed
that “one major purpose of requiring that all arrested persons be
informed of the reasons for the arrest is to enable them to seek release
if they believe that the reasons given are invalid or unfounded;
and that the reasons must include not only the general basis of the
arrest, but enough factual specifics to indicate the substance of the
complaint”, 812 bearing consequences for the respect of the detainee’s
right to habeas corpus.
The right to be informed of reasons for detention is also affirmed by
international standards and guidelines relating to the detention of migrants
and asylum seekers. The Body of Principles for the Protection
of all persons deprived of their liberty provides in Principle 11.2 that:
“a detained person and his counsel, if any, shall receive prompt and full
communication of any order of detention, together with the reasons
therefor.” Principle 13 provides that at the commencement of detention,
or promptly thereafter, a detained person should be provided with information
on and an explanation of his or her rights and how to avail
himself of such rights. 813
The UNHCR Guidelines on Detention and the Council of Europe Guidelines
on Human Rights Protection in the Context of Accelerated Asylum provide
that, if detained, asylum-seekers are entitled to receive prompt
and full communication of the legal and factual reasons of detention,
including detention orders, and of their rights and available remedies,
in a language and in terms that they understand. 814
Information provided on the reasons for detention must be in simple,
non-technical language that can be easily understood, and must include
the essential legal and factual grounds for the detention—including the
detention order—and information concerning the remedies available to
the detainee. The information provided must be sufficiently comprehensive
and precise to allow the detainee to challenge his or her detention
811 Yvon Neptune v. Haiti, IACtHR, op. cit., fn. 624, para. 105; Humberto Sánchez v. Honduras,
IACtHR, Series C No. 99, Judgment of 7 June 2003, para. 82.; Vélez Loor v. Panama, IACtHR,
op. cit., fn. 536, paras. 116, 180; Nadege Dorzema et al. v. Dominican Republic, IACtHR,
op. cit., fn. 537, para. 132.
812 Al-Gertani v. Bosnia and Herzegovina, CCPR, op. cit., fn. 606, para. 10.5; F.K.A.G. v. Australia,
CCPR, op. cit., fn. 656, para. 9.5.
813 See also, WGAD, Annual Report 1998, op. cit., fn. 643, para. 69, Guarantees 1 and 5; WGAD,
Annual Report 1999, op. cit., fn. 643, Principles 1 and 8.
814 See, UNHCR Guidelines on Detention, op. cit., fn. 633, Guideline 7; Twenty Guidelines on
Forced Return, CMCE, op. cit., fn. 510, Guideline 6; and, European Guidelines on accelerated
asylum procedures, CMCE, op. cit., fn. 119, Principle XI.5.