ECtHR: V.M. v Poland Intervention in a case concerning immigration detention of children and family

On 19 June 2023, the International Commission of Jurists (ICJ), the European Council for Refugees and Exiles (ECRE), and the AIRE Centre have submitted a joint third-party intervention before the European Court of Human Rights (ECtHR) in the case of V.M. and Others v. Poland. The case concerns the detention of a child and her family seeking asylum in Poland.

The application concerns the on-going detention of V.M. and her two minor children (born in 2012 and in 2015), Armenian nationals, at a guarded centre for foreigners, pending their asylum and deportation proceedings. The applicants were detained upon arrival. V.M., who was pregnant with twins at the time suffered a miscarriage three weeks after their detention took place.

The intervening organizations, the ICJ, ECRE, and AIRE Centre presented an analysis of international and EU standards on deprivation of liberty, age assessment, and the right to access to effective judicial review and the right to an effective remedy under Articles 3, 5, and 53 of the European Convention of Human Rights (ECHR).

The analysis focuses on the obligations under Article 3, specifically the requirement that States ensure no individual within their jurisdiction are subjected to ill-treatment. Specifically, in the context of the administrative detention of children, the Court has previously determined that a violation of Article 3 happens on the basis of three factors: the child’s age, the length of detention, and the unsuitability of the premises given the specific needs of the children. The interveners also submit that a violation can also occur if the situation is detrimental to the physical or mental condition, or avoidable suffering of a certain intensity, or an immediate risk of such detriment or suffering.

Under Article 5, which guards against arbitrary detention, the intervening organizations underscored that detention measures must be non-automatic and should be implemented in good faith. According to robust case law, children should not be detained arbitrarily, and when children are detained in unsuitable conditions, this may in itself be sufficient to find a violation of Article 5(1), whether or not they are accompanied by an adult. As such, the detention of families will always be incompatible with Article 5(1)(f), both as regards to the parents and accompanying children, if the authorities have not taken all the necessary steps to limit the detention. Additionally, in the case of vulnerable adults, such as those who have been subjected to serious psychological or sexual violence, including gender-based and/or domestic violence, detention will be arbitrary under Article 5(1) where they are detained despite availability of other less coercive measures and whether the State knew or ought to have known that detention will detrimentally affect their state of health.

Lastly, the intervention raises the Article 53, which prohibits a construction of Convention rights which would limit the human rights and fundamental freedoms ensured under any other agreement to which the respondent State is a party. Specifically, it is important to consider relevant provisions of EU law, such as the Charter of Fundamental Rights of the European Union and the Reception Conditions Directive, as well as international law, such as the CRC, including its General Comments, the UNHCR Guidelines on Detention, GR no. 32 of CEDAW, GREVIO, or the Istanbul Convention. This intervention implores the Court to take account of these relevant international and regional agreements.

Read the full text of the intervention here.

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