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Key Words Archives: Access to court

Case No. 9836/2016 before the Supreme Administrative Court of the Republic of Bulgaria, Ruling No. 10872 of 18 October 2016

The ruling concerns the right to legal representation and to a lawyer of two detained unaccompanied migrant children (12 and 14 years old) who, as minors, did not have the legal capacity to sign a power of attorney of a lawyer (this must be done by their legal representative and they had none assigned). The first instance court had not admitted for review the appeal against their detention order on the ground that the lawyer was not properly authorized by the children. The Supreme court, however, invoked the best interests of the child principle, appointed ex officio the lawyer chosen by the children as their lawyer in the case and admitted their appeal against the detention order for review.

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R.R. and Others v. Hungary, ECtHR, Application no. 36037/17, Judgment of 2 March 2021

Keeping asylum-seeking family in the transit zone amounts to detention in breach of Articles 5(1) and 5(4). Significant case, as the Court finally joined the broad consensus regarding the nature of placement in the Hungarian transit zones, contrary to the findings in Ilias and Ahmed ECtHR GC judgement, where it concluded that transit zones are not detention. The Court also found that the conditions in the transit zone amounted to a violation of Article 3. It found that given the physical conditions of the containers in which the applicants were accommodated, the unsuitability of the facilities for children, the lack of professional psychological assistance and the duration of the stay in the transit zone, the threshold of severity required to engage Article 3 had been reached.

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CJEU, FMS, FNZ, SA, SA junior v Országos Idegenrendészeti Főigazgatóság Dél-alföldi Regionális Igazgatóság and Országos Idegenrendészeti Főigazgatóság, Joined Cases no. C-924/19 PPU and C-925/19 PPU, 14 May 2020

Compulsory, indefinite placement of migrants in the transit zones qualifies as detention and is unlawful.

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Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection (recast)

The recast “Asylum Procedures Directive” is a recast of a previous Directive (Council Directive 2005/85/EC of 1 December 2005), with implementation deadline of 20 July 2015. The Directive sets up common procedures for granting and withdrawing international protection (refugee status and the protection given to people who are not refugees but who would risk serious harm if returned to their country of origin). The Directive enshrines the presumption of minority and further provides requirements on how age assessment should be carried out (art. 25).

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Human Rights Council, Report of the Working Group on Arbitrary Detention (WGAD) of 24 December 2012

The WGAD Report concerns the definition and scope of arbitrary deprivation of liberty under customary international law. The Group found that the prohibition of all forms of arbitrary deprivation of liberty is part of the international jus cogens. Detention of migrants and asylum seekers is recognized as a form of deprivation of liberty and States should ensure the same guarantees available against arbitrary arrest and detention.

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UN Human Rights Committee (CCPR), Baban v. Australia, Communication 1014/2001, Views of 18 September 2003

The UN Human Rights Committee recalled that, in order to avoid a characterization of arbitrariness, detention should not continue beyond the period for which the State Party can provide appropriate justification. Furthermore, judicial review of the lawfulness of detention under article 9, paragraph 4, of the International Covenant on Civil and Political Rights (ICCPR) is not limited to mere compliance of the detention with domestic law but must include the possibility to order release if the detention is incompatible with the requirements of the Covenant, in particular those of article 9, paragraph 1.

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