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Key Words Archives: Procedural rights

D.K.N. v. Spain, Communication No. 15/2017, 1 February 2019

This case concerns a citizen of Ghana who arrived in Spain in an irregular manner in 2016 stating that he is a minor and presenting a Ghanaian birth certificate. The Spanish authorities deemed this document to be invalid and ordered that the applicant undergo medical testing to assess his age. On the basis of the medical test results, the applicant had been found to be over 18 years old and a removal order was issued against him. The applicant maintained that during the procedure his right to be heard under Article 12 of the Convention was violated, a claim that was not found to be sufficiently substantiated by the Committee, as through objective evidence it was observed that the assessment of his age and the decision taken occurred after a lawyer was assigned to him and at the time of the forensic medical examination he was accompanied by a teacher from the child protection centre where he was housed.

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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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