Regional Conference on Migration

Seminar on Human Rights and Migrants
ACCESS TO DETAINED MIGRANTS

 
Paper presented by the International Organization for Migration
April 1998

 

I.  Introduction

 

The ten countries of the Regional Conference on Migration have pledged in the Puebla Joint Communiqué of 14 March 1996 to “condenm violations of human rights of migrants and others, irrespective of their immigration status and to strive to eliminate such violations”.  A Plan of Action was adopted at the Vice Ministerial meeting in March 1997, one element of which was the proposal for a meeting to discuss migration policy and the human rights.  In prepartion for this meeting, Member States have received a questionnaire dealing with various rights accorded to  migrants in their respective countries, which included, inter alia, questions on access to detained migrants.  The questionnaire coverd issues of notifications, access by certain groups to detained migrants, access by detained migrants to legal assistance and particular groups, policy on detention facilities and handling of detainee property.  This paper seeks to draw together the responses to the questionnaire, while highlighting the relevant international standards on detention.

 

II.   Applicable Principles

 

Under international law, there is a substantial body o international standards and rules offering protection to detained persons.  These stem from the fundamental principle stated in Article 9 of the Universal Declaration of Human Rights:  No one shall be subject to arbitrary arrest, detention or exile.  This principle has been incorporated into a number o human rights treaties at both the global and the regional level.[1] The International Convenant on Civil and Political Rights (ICCPR) reproduces the basic guarantee found in the Universal Declaration of Human Rights.  Its Articles 9 and 10 state that All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.

No one shall be subjected to arbitrary arrest or detention.  No one shall be deprived of his liberty except on such grounds and in accordance with such procedures as are established by law.

 

Addionally, there are a number of texts[2] which provide more detailed standard and safeguards, including the Standard Minimun Rules for the Treatment of Prisoners,[3] first adopted in 1955 and then extended in 1977 to enlarge protection of persons detained without charge, the 1988 Body of Principles for the Protection of all Persons under Any Form of Detention or Imprisonment[4] and the 1990 Rules for Juveniles Deprived of Their Liberty.[5]

 

The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families[6] deals extensively with the subject of detention in its Article 16.  Arguable, this Convention is the most significant achievement in recent years as regards protection of migrants.  Its provisions attempt to reaffirm and establish basic human rights and to embody them in an instrument specifically applicable to migrants, in the recognition that these people are often in a vulnerable position.

 

Many of these instruments specifically apply to persons in administrative detention.[7]  The term ´administrative detention´ covers a range of situations outside the process of police arresting suspects and bringing them into the criminal justice system.  It occurs by administrative order, or at the sole discretion of an administrative authority without trial or charge.[8]  In most cases, detained migrants will be held under the migration legislation of the country concerned, and their detention will not always be subject to independent judicial review.  Where this is the case, it is especially important to have in place safeguards to ensure respect of the rights of the detainess.[9]

The rights and standards elaborated in such instruments as mentioned above further the aim of ensuring the protection of the detainee´s basic human rights and dignity.  International standards on detention come into play from the point of arrest.  There are minimum guarantees as regards issues such as the right to legal assistance, the requirement of notification, ant the right to equal protection before the law.  The Standard Minimum Rules for the Treatment of Prisoners, for example, details requirements regarding the treatment of detainees and lay out specific requirements which will help ensure that detainees are treated in a humane manner, and with respect for their human dignity.  They have been ´generally accepted as being good principle and practice in the treatment of prisioners and the management of institutions´.[10]


 

III.  Overview of States' Practice

 

1.  Notification

 

Article 36 (1) of the Vienna Convention on Consular Relations of 1963 provides that

With a view to facilitating the exercise of consular functions relating to nationals of the sending State:  ...

 

(b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody 'pending trial or is detained in any other matter.

 

Article 16(7) of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families affirms that:

When a migrant worker or a member of his or her family is arrested or committed to prison or custody pending trial or is detained in any other manner;

(a) The consular or diplomatic authorities of his or her State of origin or of a State representing the interests of the State shall, if he or she so requests, be informed without delay of his or her arrest or detention and the reasons therefore.

Although some countries did not specifically address the issue of notification of consular authorities, overall, participating States will, at a minimum, inform the relevant consular authorities if requested by the detained migrant although many States will be more proactive.

 

Guatemala, for example, while following the Convention, stated that in practice, consular officers are automatically informed when a national of their country has been detained. This is also the situation in Belize, El Salvador, Mexico and Panama.

 

Nicaragua will also notify consular officials, but specified that it does not notify the family of the detainee. Canada, although specifying that the migrant can contact consular officials, did not state whether authorities will take the initiative to inform. Honduras responded that there are no impediments for migrants to communicate with their family, friends, legal or consular representatives but also did not indicate whether the authorities would take the responsibility to notify.

 

In the US, a provision of the Code of Federal Regulations states that every detained migrant is to he informed that he or she may communicate with consular officers of the country of nationality. In addition, the regulation contains a list of certain countries whose treaties with the United States require immediate notification with the respective consular or diplomatic officers whenever nationals of those countries are detained in removal proceedings, whether or not requested by the national. Interim enforcement procedures also require consular notification when a foreign national believed to be a juvenile is taken into custody.

 

Additionally, in Mexico, following the recent publication of a law on this issue, the Instituto Nacional de Migración is obliged to notify the Comisión Nacional de Derechos Humanos of the arrival of large groups of undocumented migrants into the country. This is to ensure that the Commission takes appropriate return action and that the rights of the migrants are respected.  Mexico has also established consultation mechanisms on consular protection and other migration issues with Guatemala, Honduras, Costa Rica, El Salvador and Nicaragua.

 

2.  Access to Detained Migrants

 

Inherent in the principle of treatment with humanity is the right to correspond and visit with one's family. Article 17 of the Covenant on Civil and Political Rights states in part, "No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence ".

 

Rule 92 of the Standard Minimum Rules reads:

An untried prisoner shall be allowed to inform immediately his family of his detention and shall be given all reasonable facilities for communicating with family and friends, and for receiving visits from them, subject only to restrictions and supervision as are necessary in the good interests of the administration of justice and of the security and good order of the institution.

 

Further, rule 38 states that

(1) Prisoners who are foreign nationals shall be allowed reasonable facilities to communicate with the diplomatic and consular representatives of the State lo which they belong.

(2) Prisoners who are nationals of States without diplomatic or consular representation in the country and refugees or stateless persons shall be allowed similar facilities to communicate with the diplomatic representative of the State which takes charge of their interests or any national or international authority whose task it is to protect such persons.

 

Principle 19 of the Body of Principles states that:

A detained or imprisoned person shall have the right to be visited by and to correspond with, in particular, members of his family and shall be given adequate opportunity to communicate with the outside world, subject to reasonable conditions and restrictions as specified by law or lawful regulations.

 

Article 16(7) of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families states with reference to consular and diplomatic authorities that:

(b) The person concerned shall have the right to communicate with the said authorities. Any communication by the person concerned to the said authorities shall be forwarded without delay, and he or she shall also have the right lo receive communications sent by the said authorities without delay;

(c) The person concerned shall be informed without delay of this right and of rights deriving from relevant treaties, if any, applicable between the States concerned, lo correspond and lo meet with representatives of the said authorities and lo make arrangements with them for his or her legal representation.

 

Communication with the outside world, through correspondence and visits, is important for the protection of the detainee's rights and is also an aspect of humane treatment.

 

In Canada, legal representatives and consular officers have access to detainees at any time, as is the case in Guatemala. Guatemala stated, however, that all visitors must have sufficient identification, however, what is required is not defined.

 

El Salvador responded that consular officials and IOM staff has access, as well as certain civil associations providing humanitarian assistance, but did not refer to family or friends. Honduras responded that there are no impediments for migrants to communicate with friends, family, legal or consular representatives.

 

Mexico replied that the first to have access to detained migrants are the consular officials. Thereafter, the migrant can name a person he or she trusts, who is able to establish contact with family, friends, legal representatives and NGOS. lt is not indicated why the migrant needs to go through an intermediary for such contact, and why it is not directly available.

 

In Nicaragua, the Directorate General of Migration is flexible in terms of allowing access to visitors, including family and church officials and grants access as necessary to conform to international treaties to which Nicaragua is bound. Panama responded that any person or organization interested in the situation of the detainee has access, although when and how often was not mentioned.

 

The INS Detention Standard of tie US, guarantees liberal visitation rights. Detainees held in local jails also have the right to legal counsel visits, consular communication, NGOs and family members. Access, however, may he less liberal than those held in INS facilities for security or facility management reasons. In its response, the US did not explain what was meant by 'liberal' and 'Iess liberal'.

 

 

With respect to special measures to educate local authorities, the Immigration Department of Belize has sent letters informing all authorities of the obligation to inform consular representatives of migrants, and of the obligation to inform migrants of this provision.

 

Canada replied that it works closely with local authorities, to which all changes in policy are communicated. lt has also published a pamphlet on detention policy and facilities. Guatemala affirmed that, through different departments such as the Ministerio Público, Policía, Migración, etc., it trains officials to carry out their functions with respect for the rights and obligations of persons within the territory of Guatemala.

 

Honduras informs local authorities that detained migrants must be given the opportunity to be visited by family, friends, etc. Under a programme instituted in 1995 in Mexico, migration authorities are recipients of educational activities aimed at strengthening a culture of respect for the rights of migrants and at establishing a service ethos in respect of their work. Panama ensures that persons in charge of custody centres are informed of the rights of detained migrants to have visitors.

 

The US explained that in cases where migrants are detained on immigration grounds but a local jail is used, the INS advises the cooperating agency of its policies regarding consular access, visitation and group presentations and encourages the local facility to participate in the same manner and spirit as its own facilities. Most recently, it is including specific provisions in these areas in new and renewed agreements with local detention facilities.

 

Other countries had either no specific measures and/or stated that such measures were not necessary given the short period of detention.

 

3.         Access By Detained Migrants To Legal Assistance And Particular Groups

 

Access to legal counsel is fundamental to ensuring that the rights of a detained person are respected. Article 14(b) of the ICCPR declares that a detainee must have adequate opportunity to communicate with counsel of his own choosing in order to prepare a defence but does not specifically state a right to legal assistance. However, as regards minors, the Convention on the Rights of the Child is explicit in stating in Article 3 7(d) that Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance.

 

Other instruments clearly affirm the right to legal counsel; Rule 93 of the Standard Minimum Rules state that:

"For the purposes of his defence, and untried prisoner shall be allowed to apply for free legal aid where such aid is available, and to receive visits from his legal adviser with a view to this defence and lo prepare and hand to him confidential instructions. For these purposes, he shall if he so desires be supplied with writing material Interviews between the prisoner and his legal adviser may be within sight but not within the hearing of a police or institution official”.

 

Further, the Body of Principles for the Protection of all Persons under Any Form of Detention or Imprisonment state in Principle 17 that:

1. A detained person shall be entitled to have the assistance of a legal counsel He shall be informed of his right by the competent authority promptly after arrest and shall be provided with reasonable facilities for exercising it.

 

2. If a detained person does not have a legal counsel of his own choice, he shall be entitled to have a legal counsel assigned to him by a judicial or other authority in ala cases where the interests of justice so require and without payment by him if he does not have sufficient means to pay.[11]

 

No pro bono legal assistance is provided to migrants detained in Belize, unless the person is charged with the offence of murder.  In Costa Rica, there is no free legal assistance, however, the Departamento de Defensores públicos may provide assistance to any person requesting it.

 

Canada stated that legal aid is available to persons who are eligible; eligibility, however, is a provincial responsibility, and no examples were given on how this would he determined. In El Salvador, there is no free legal assistance, however, it was specified that in cases requiring special attention, the Procuraduría para la Defensa de los Derechos Humanos would intervene. Criteria for its involvement were not specified. Guatemala responded that the Código Procesal Penal foresees the provision of pro bono legal counsel for detainees without means.

 

Honduras responded that free legal assistance is not foreseen, although it is available. lt remarked that normally such assistance is not required, as infractions under migration regulations do not constitute a crime.

 

Mexico does not provide legal assistance to detained migrants, rather, it is the responsibility of the relevant consulate.  Court-appointed counsel are available for persons committing crimes. In Nicaragua, a detained migrant will be given access to a "barrister appointed by the court".

 

Panama responded that although the relevant government authority does not provide pro bono legal assistance, such assistance is provided by other entities, including organizations of the Catholic church, non-govermental agencies, university services and the Instituto de Defensoría de Oficio.

 

In the US, pro bono assistance and counsel is not provided by the State to detained migrants, however, pro bono and non-governmental organizations are encouraged to make presentations and provide representation to foreign nationals detained in immigration proceedings.

 

 

Belize responded that access to particular groups is facilitated through the Judge Ruies which uphold the Constitutional Rights and Freedorns, but remains the responsibility of the detainee. lt was not explained how access is facilitated.

 

Canada stated in response to the above question that the Department of Citizenship and Immigration works closely with NGOs and that detainees are informed of the assistance provided by NGOS. Representatives of such organizations are able to visit detainees during visiting hours and at the largest facility, an office has been assigned to a local NGO representative. In the larger, leased detention facilities, NGOs supply 'written material to the library.

 

In El Salvador, in cases where there are no diplomatic relations with the country of origin of the detainee, IOM officials have access to the migrant to ensure return. Honduras does not have any special provisions to facilitate access to particular groups.

 

Apart from access to consular authorities, a special programme in Mexico provides the Comisión Nacional de Derechos Humanos with access to groups of detained migrants, usually when a group of 100 or more m grants have been detained.

 

The US responded that pro bono groups, recognized to appear before the Immigration Court, are given the opportunity to make group presentations inside the detention facilities, and in certain facilities, office space and interview rooms are also provided to these groups. Further, the names and pertinent information including contact numbers of recognized groups are provided to each detainee at the time of their processing. In many facilities, free telephones are available for calls to these groups.

 

No other countries mentioned having special provisions.

 

4.              Reasons for Detention and Type of Facility

 

The presumption of innocence implies that accused persons be given treatment appropriate to their unconvicted status. The ICCPR states in Article 10(2) that:

 

a) Accused persons shall, save in exceptional circumstances, be segregated from convicted persons, and shall be subject to separate treatment appropriate to their status as unconvicted persons.[12]

 

This principle should also be extended to those persons under administrative detention, as they are not even accused of committing a crime, but may be detained based on a class they fall into, or their status, rather than as the result of any particular detrimental action.[13] Other instruments also refer to differentiation of categories of detainees: Rule 8 of the Standard Minimum Rules states:

The different categories of prisoners shall be kept in separate institutions or parts of institutions taking account of their sex, age, criminal record, the legal reason for their detention and the necessities of their treatment. Thus,

(a) Men and women shall so far as possible be detained in separate institutions; in an institution which receives both men and women the whole of the premises allocated lo women shall be entirely separate;

(b) Untried prisoners shall be kept separate from convicted prisoners;

(c)Persons imprisoned for debt" and other civil prisoners shall be kept separate from persons imprisoned by reason of a criminal offence;

(d) Young prisoners shall be kept separate from adults.

 

Principle 8 of the Body of Principles states that:

Persons in detention shall be subject to treatment appropriate to their unconvicted status.

Accordingly, they shall, when ever possible, be kept separate from imprisoned persons.

 

With one exception, all States which responded to the questionnaire separated detained migrants from criminals, not on the basis of nationality, however, rather on the reason for the detention.

 

In Belize there, is no policy differentiation on the purpose for detention or the type of facility. Migrants will he detained at police station cells for up to 72 hours, or remanded at the Department of Corrections. They are not segregated from criminal detainees as there are no separate detention facilities for migrants.

 

Canada explained that the policy to detain is made under two circumstances; firstly, where there are reasonable grounds to believe that the person poses a danger to the public; or secondly, where the person would not or is unlikely to appear for examination, determination, inquiry or removal from Canada. Further, the type of detention facility the detainee is sent to depends on the reason for detention, the characteristics of the individual, the person's history, the detention period and the facilities available in the area. Migrants are detained in facilities according to the period of detention (for a few hours, for example, the person will be detained in a holding room) and the danger posed by the person (leased or departmental facilities where there is no danger, or federal, provincial and municipal institutions if there is danger). Generally, as non-criminal detainees are held in the Department's detention facilities, they are segregated from criminals. lf, in some cases, a non- criminal detainee is held in another jurisdiction's institution, he or she will usually be separated from the criminal population or closely monitored.

 

Costa Rica responded that detention or deprivation of liberty does not exist for undocumented migrants and that only temporary deprivation of liberty exists for the purpose of documenting the person concerned

 

El Salvador responded that no differentiation of policy is made on the aim of detention. Furthermore, if a migrant is detained for having committed a crime, he or she will fall under the ordinary penal jurisdiction, and detained in a corresponding facility. Other migrants will be detained at a local centre of the National Civil Police, which are completely separated from criminal detention Facilities

 

Guatemala has facilities for pre-trial detainees which are separate from facilities for convicted prisoners. The reason for the detention, however, is not necessarily taken into account. Migrants who are detained will be placed in the pre-trial facilities unless they are able to pay bail or he kept under house arrest. Guatemala also confirmed that women and men are detained separately.

 

Honduras responded that the Direction General de Población y Política Migratoria has the authority to detain a migrant in order to verify the legality of entry, documentation and stay. lf an investigation is prolonged, or where deportation is ordered but cannot be executed immediately, the migrant is transferred, to the national police authorities. In detention, migrants will he separated from criminal detainees,

 

Mexico differentiates between administrative detention for a transgression of migration regulations, such as lacking the appropriate documents for entry into the country, and detention for the commission of a crime. Administrative detainees will he detained in facilities of the migration authorities, whereas other types of detention are carried out in facilities for persons awaiting trial. These facilities are quite separate, as required by a provision of the national Constitution.

 

In Nicaragua, migrants are first detained in local centres of the National Police. Once there has been a judicial proceeding, however, they will be sent to the Centro de Internamiento de la Dirección General de Migración y Extranjería where only migrants in an irregular situation are detained.

 

Panama responded that where a person is held for violating the migration code, detention will take place in the installations of the Dirección Nacional de Migración y Naturalización (DNMYN). Where a crime has been committed, the person will be placed in prison, under the ordinary penal jurisdiction. These facilities are quite separate, so that administrative detainees have no contact with criminals. Exceptionally, however, where DNNLYN facilities are filled to capacity and for security reasons, a detained migrant may be placed in a centre for administrative crimes, but will be held in a separate area. Panama also specified that detained women are always segregated from men.

 

In response to the first question, the US responded that for persons detained for criminal prosecutions, the Department of State has disseminated a brochure explaining the requirements of international agreements. No other information on policy differentiation was provided. Detainees are held in INS service processing centres, privately contracted detention facilities or local jails under interagency agreements. Those in the first two types of facilities are classified using systems which base their placement upon the risk they represent to themselves and others. When detained in local jails, a similar classification system is used. When separation is physically possible, the INS will request that migrants be housed separately. The US stated that this is normally pos  1sible in larger facilities.

 

5.            Handling of Detainee's Property

 

As stated, the obligation to treat detainees with dignity and humanity guide the standards for the physical conditions of detention. This also extends to rights over one's own property. Rule 43 of the Standard Minimum Rules deals with property rights:

(1) All money, valuables, clothing and other effects belonging to a prisoner which under the regulations of the institution he is not allowed lo retain shall on his admission to the institution be placed in safe custody. An inventory thereof shall be signed by the prisoner. Steps shall be taken to keep them in good condition.

(2) On the release of the prisoner all such articles and money shall be returned to him except in so far as he has been authorized to spend money or send any such property out of the institution, or it has been found necessary on hygienic grounds to destroy any article of clothing. The prisoner shall sign a receipt for the articles and money returned to him.

(3) Any money or effects received for a prisoner from outside shall be treated in the same way.

(4) lf a prisoner brings in any drugs or medicine, the medical officer shall decide what use shall be made of them.

 

In Belize, property is handed over to and signed for by the authorities where the migrant is detained. The property is secured in envelopes which are sealed in the presence of the detainee, who also signs these envelopes, and the contents recorded in a ledger signed by the receiving officer. On release, this procedure is reversed.

 

Costa Rica responded that the handling of detainee property is not a matter for migration regulation, but did not give further details.

 

In Canada, a general inventory of the detainee's personal belongings ¡S made at the time of admissions. This is to be signed by both the detainee and the officer in charge, and the belongings will he stored during the period of detention and returned upon release. Where warranted, safety deposit boxes are made available to detainees to store their valuables.

 

In response to the above question, El Salvador reported that the National Civil Police is responsible for the personal belongings of detained migrants. An inventory is made of belongings deposited upon detention, and a control of the items is made upon release.

 

Guatemala replied that effects which may be used as evidence in a crime will be put at the disposal of the courts. Other personal belongings are deposited at the detention facility until the time of release. Alternatively, detainees can entrust belongings to third persons, at their own risk.

 

Upon detention in Mexico, detainee property is registered and kept by an authorized person. lt will he returned to the detainee at the time of release. Nicaragua indicated that an inventory of personal belongings is taken and they are kept until the time of release.

 

In Panama, migrants are usually able to retain their personal belongings while in detention. Migrants who will he returned to their country are given the opportunity to collect other belongings before leaving Panama. The cost of transportation of such goods is the responsibility of the migrant.

 

In the US, whatever the type of detention facility in which the migrant is detained, each person's property in their immediate possession at the time of arrest is inventoried, a receipt provided and securely stored. Any cash that they may have at the time is receipted and placed in an account for the individual from which they make commissary purchases. The detainee may also make authorized disbursement for legal counsel or send money to family members. Likewise, funds can be provided by family members for the detainee's use. This is also accounted for, receipted and placed in the detainee's account. In some local facilities, detainees are also permitted to retain nominal amounts of cash for commissary or telephone use. Upon release or removal, all property and any funds in the account is returned to them prior to departing the facility.

 

IV: Conclusion

 

In its training manual on human rights and pre-trial detention,[14] the Centre for Human Rights concludes that:

 

No country can claim a pre-trial detention system that could not be improved. Persons are held who could be safely released prior to trial. Persons are held for longer than should be necessary, as their cases are not given enough priority. The physical condition of facilities is often neglected because pre-trial detention is perceived as "only temporary ",- these facilities should receive more attention and better upkeep. Staff of places of detention should be made more aware of the special problems and rights of pre-trial detainees. The critical problem of over-crowding, as a cause o many of the problems facing pre-trial detainees, needs to be addressed. While implementing international standards for safeguarding the rights of pre-trial detainees will not cure all these ills, the lot of pre-trial detainees would be greatly improved if the existing standards ... were respected.

 

These remarks are often also valid for those persons under administrative detention or pending deportation.  The answers to the questionnaire show the diversity of States´ practice in this field:  the purpose is not draw final conclusions out of a limited and incomplete review, but to encourage States to learn from each other´s experience and practice.  Is is hoped that by presenting the responses of the questionnaire, the members of the Regional Conference of Migration will be able to assess their standards comparatively, and in the context of international principles, in order to further respect of the rights of migrants.



[1] Regional human rights instruments incorporating this principle include the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms, the 1981 African Charter on Human Rights and People´s Rights and the 1969 American Convention on Human Rights.

[2] Each one of the instruments mentioned were adopted by consensus by UN Member States, and therefore although not strickly legally binding (except insofar as some rules they contain reflect customary international law), have a certain authoritative weight.  Tootell, Huhes and Petrasek, The relevance of Key UN Instruments for Detained Asylum Seekers” in Hughes, J and Liebaut, F (eds) Detention of Asylum Seekers in Europe:  Analysis and Perspective, Martinus Nijoff, 1998 at 183.

[3] First United Nations Congress on the Prevention of Crime and the Treatment of Offenders:  report by the Secretariat, (United Nations Publication Sales No.  1956.IV.4) annex I.A.

[4] General Assembly resolution 43/173 of 9 December 1988, annex.

[5] General Assembly resolution 45/113 of 14 December 1990, annex.  These Rules regulate the management of facilities where juveniles are held (applying to persons under the age of 18 years) and cover detention for any pupose, including administrative detention.

[6] Adopted by the General Assembly resolution 45/158 of 18 December 1990.

[7] Tootell, Hughes and Petrasek (supra note 2) write that The scope of Article 9 here is clarified by the HRC [Human Rights Committe] in its General Comment 8/16 which, in the light of the narrow interpretations sometimes given by States Parties, explicity states that “paragraph 1 is applicable to all deprivations of liberty, whether in criminal cases or in other cases, such as… immigration control”.

[8] Williams, P Treatment of Detainees:  Examination of issues relevant to detention by the United Nations Human Rights Committee.  Henri Dunant Institute, Geneva, 1990, at p. 73.

[9] Although not specifically the subject of this presentation, it is worth noting that as regards refuges and asylum seekers, it has been accepted that they should not normally be detained.  Any detention of these persons should be resorted to only on grounds prescribed by law:-

To verify identity; to determine the elements on which the claim to refugee status or asylum was based; to deal with cases where refugees or asylum seekers had destroyed their travel and/or identification documents… in order to mislead the authorities of the State in which they intended to claim asylum; or to protect national security or public order [Conclusion No.  44 (XXXVII) of the Executive Committee of UNHCR (Official Records of the General Assembly, Forty-first session, Supplments No.  12A (A/41/12/Add.1), para 128; HCR/IP/2/Eng/REV.1991 (1992), p.96), para (b)].

[10] See Williams, supra note 7, at p. 40

[11] The Human Rigths Committee has recongnized that the right to counsel means the right to effective counsel, and that the person providing legal representation must be qualified to represent the accused.  While holding that, although article 14 (3)(d) of the Convenant on Civil and Political Rights does not guarantee a right to choose one´s own  appointed counsel, it does require a State to take measures to ensure that appointed counsel provides effective representation for the accused. (Paul Kelly v.  Jamaica (253/1987) 8 April 1991).

[12] The Human Rights Committee has held that this provision requires that convicted and unconvicted persons be kept in separate quarters but need not be kept in separate buildings.  (Larry James Pinkey v Canada (27/1978), 29 October 1981.

[13] For example, when an individual is detained for the purpose of verifying identity.

[14] Human Rights and Pre-Trial Detention:  A Handbook of International Standards relating to Pre-Trial Detention, Professional Training Series NO.  3, Centre for Human Rights Crime Prevention and Criminal Justice Branch, New York and Geneva, 1994.