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Key Words Archives: Right to health and health care

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.

http://hudoc.echr.coe.int/eng?i=001-208406

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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.

https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=INT/CMW/GEC/9459&Lang=en

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General comment No. 35 (2014) of the UN Human Rights Committee (CCPR) on Article 9: Liberty and Security of a person

The UN Human Rights Committee stated that detention in the course of proceedings for the control of immigration is not per se arbitrary, but the detention must be justified as reasonable, necessary and proportionate in the light of the circumstances and reassessed as it extends in time.

https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/Download.aspx?symbolno=CCPR%2fC%2fGC%2f35&Lang=en

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Sh. D. and others v. Greece, Austria, Croatia, Hungary, North Macedonia, Serbia and Slovenia, ECtHR, Application No. 14165/16, Judgment of 13 September 2019

In its judgment the ECtHR reiterated the finding that States Parties to the Convention on the Rights of the Child have a positive obligation to protect and take care of unaccompanied migrant children under Article 3 ECHR and Article 20 CRC. The decision also challenged the lawfulness of the detention of migrant children on the basis of the best interests of the child principle.

https://hudoc.echr.coe.int/eng?i=001-193610

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Khan v. France, ECtHR, Application No. 12267/16, Judgment of 28 February 2019

In its judgment the ECtHR reiterated the finding that States Parties have a positive obligation to protect and take care of unaccompanied migrant children under Article 3 ECHR and Article 20 CRC. In cases concerning foreign minors, whether accompanied or unaccompanied, the child’s situation of extreme vulnerability is the decisive factor and it takes precedence over considerations relating to their status as an irregular migrant.

https://hudoc.echr.coe.int/eng?i=001-191587

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Popov v. France, ECtHR, Applications Nos. 39472/07 and 39474/07, Judgment of 19 January 2012

The European Court found that whilst mutual enjoyment by parent and child of each other’s company constitutes a fundamental element of family life, it cannot be inferred from this that the sole fact that the family unit is maintained necessarily guarantees respect for the right to a family life, particularly where the family is detained.

https://hudoc.echr.coe.int/eng?i=001-108710

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