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Key Words Archives: Procedural rights

Minasian and others v. the Republic of Moldova, Application no. 26879/17

In this case the European Court of Human Rights has examined the detention of children without a legal basis when they accompany their mother in detention, the inability of children to challenge the lawfulness of their detention, the domestic courts’ failure to examine whether the children’s detention was a measure of last resort and whether detention centres areappropriate for housing families with children under Article 5 § 1, 4 of the European Convention of Human Rights.

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CJEU, Bashir Mohamed Ali Mahdi case, Case no. C-146/14 PPU, 5 June 2014

The CJEU said that immigration related detention is justified only in order to prepare the return or carry out the removal process and if the application of less coercive measures would not be sufficient. Only the judicial authority should deal with the decisions concerning the detention of a third-country national (for example an extension) and it should do so following a thorough assessment of all relevant facts and circumstances in the individual case.

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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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General comment No. 5 (2021) of the UN Committee on the Protection of the Rights of All Migrant Workers and Members of Their Families (CMW) on migrants’ rights to liberty, freedom from arbitrary detention and their connection with other human rights (advanced unedited version)

The UN Committee in its General Comment understands as ‘alternatives to detention’ all community-based care measures or non-custodial accommodation solutions – in law, policy or practice – that are less restrictive than detention and which must be considered in the context of lawful detention decision procedures to ensure that detention is necessary and proportionate in all cases, with the aim of respecting the human rights and avoiding arbitrary detention of migrants, asylum seekers, refugees and stateless persons.

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