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

MIGRATION AND INTERNATIONAL HUMAN RIGHTS LAW | 189principle can be particularly significant in relation to detention of asylumseekers, who may have suffered torture or ill-treatment or othertraumatic experiences, sometimes with physical or mental health implications.In regard to all detained persons, particular concerns arisein relation to survivors of torture or trafficking; children and elderlypersons; or persons suffering from serious illness or disability. For example,in Farbtuhs v. Latvia, 700 the European Court held that detentionof a 79 year old disabled man violated Article 3 ECHR.The UNHCR Guidelines on Detention (Guideline 9) recommend that especiallyactive consideration should be given to alternatives to detention,for persons for whom detention is likely to have a particularly seriouseffect on psychological well-being. Such persons may include unaccompaniedelderly persons, survivors of torture or other trauma, and personswith a mental or physical disability. The UNHCR Guidelines recommendthat such persons only be detained following medical certificationthat detention will not adversely affect their health or well-being. 701Where such persons are detained, then in order to ensure compliancewith freedom from cruel, inhuman and degrading treatment, particularcare will need to be taken in relation to conditions of detention, provisionof healthcare, etc (considered further below in Section 2).In C. v. Australia, 702 the Human Rights Committee found a violationof Article 9.1 on the basis that “the State Party has not demonstratedthat, in the light of the author’s particular circumstances [a psychiatricillness], 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 temperits 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 thechild (Article 3 CRC) and the provisions of the Convention on the Rightsof the Child on detention (Article 37 CRC) require that State authoritiesconsider any alternatives to detention before resorting to this measurein order to satisfy its lawfulness under Article 5.1(f) ECHR. 703 This approachalso applies when children are accompanied by their family. InPopov v. France, the European Court ruled that, “in spite of the fact thatthey 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 consequencesof detention, initial and periodic assessments of detainees’ physical and mentalstate are required, carried out by qualified medical practitioners. Appropriate treatmentneeds to be provided to such persons, and medical reports presented at periodic reviews oftheir 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.