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INTERNATIONAL AND REGIONAL STANDARDS
International and European standards require that the material conditions for all persons in any form of detention-including persons subject to immigration control measures that include detention-must meet basic minimum standards that guarantee health (both physical and mental), safety, and access to social support services. Spain's obligations under international law and the European Convention on Human Rights (ECHR) also require that any deprivation of personal liberty-such as prolonged detention of migrants at the Fuerteventura and Lanzarote facilities-be governed by a basic set of procedural guarantees to ensure that a detention is not arbitrary and that detainees have an effective opportunity to challenge the legality of the detention in a court of law. Finally, asylum seekers and refugees enjoy special protection against detention-unless very specific circumstances obtain-afforded by the 1951 Refugee Convention and enshrined in guidelines developed by the United Nations High Commissioner for Refugees (UNHCR), which oversees the implementation of the convention by states parties, including Spain. Conditions of Detention and Procedural Guarantees
· Sleeping accommodations that meet basic requirements of health and hygiene including adequate sleep space, air, lighting, heat and ventilation. The European Prison Rules recommend individual cells or shared accommodation with reasonable space for each detainee and a separate bed and bedding for each detainee; · Adequate bathing and shower installations; · Proper maintenance and cleaning of all parts of a detention facility; · Provision of toilet articles as necessary for health and cleanliness; · Food of nutritional value adequate for health provided at normal times; drinking water available at all times; · Access to medical and psychiatric care and psychological support services; · Absolute prohibition against cruel, inhuman or degrading treatment or punishment; · Communication, both written and oral, with detainees in a language they can understand; · System for making complaints; · Provision for regular exercise and access to natural light and fresh air; · Provision of a library, educational programs, and access to necessary social services; · Separation of detainees in separate facilities away from convicted felons. Migrants subject to immigration detention are also guaranteed basic procedural rights under international and regional law to ensure that no person is detained arbitrarily.147 The U.N. Body of Principles for the Protection of all Persons under Any Form of Detention or Imprisonment (Body of Principles)148 state that any detained individual has the following basic procedural rights: · To be informed at the commencement of detention with information on and an explanation of his rights and how to avail himself of such rights and to receive such information promptly in a language he understands with the assistance of an interpreter, free of charge, if necessary; · "Not to be kept in detention without being given an effective opportunity to be heard promptly by a judicial or other authority;" the right "at any time to take proceedings according to domestic law before a judicial or other authority to challenge the lawfulness of their detention;" and the right to do so through proceedings that are "simple and expeditious and at no cost for detained persons without adequate means;" · To have the assistance of legal counsel, to have legal counsel assigned to him if he cannot afford his own lawyer, to receive reasonable help in obtaining counsel, to have adequate time and facilities to communicate with legal counsel, to be able to communicate in full confidentiality with legal counsel (interviews between a detained or imprisoned person and his legal counsel may be within sight, but not within the hearing, of a law enforcement official); · To have an "adequate opportunity to communicate with the outside world," including communication and visits by legal counsel and family members; · To be informed of disciplinary rules prevailing in a given detention center, to appeal any disciplinary action, and to make a request or complaint regarding treatment or detention conditions;
· To make a request or complaint regarding treatment, in particular in case of torture or other cruel, inhuman or degrading treatment, to the authorities responsible for the administration of the place of detention and to higher authorities and, when necessary, to appropriate authorities vested with reviewing or remedial powers. Many of the international and regional standards for conditions of detention and procedural protections identified above are duplicated in Spanish domestic law.149 The substandard conditions of detention in the Fuerteventura and Lanzarote airport facilities detailed in this report as well as the demonstrated inadequacy of legal and interpretation and translation services, and the paucity of information available to migrants prior to and during their detention violate many of the requirements of both internationally and regionally recognized basic minimum standards for the treatment of detainees as well as Spanish domestic law. Conditions documented by Human Rights Watch-up to forty days detention under circumstances that include severe overcrowding; an absolute bar against communication with the outside world, including lawyers and family members; lack of adequate sleeping accommodations; no access to fresh air, ventilation, or exercise; the refusal of the national police to clean the facility or provide laundering despite the absence of adequate facilities for washing or drying clothing or bed-sheets; and insufficient medical care and facilities-raise serious concerns of cruel, inhuman or degrading treatment prohibited under the ICCPR and the ECHR. Moreover, it is a fundamental principle of human rights that no one should be arbitrarily placed in detention. The Universal Declaration of Human Rights states that "no one shall be subjected to arbitrary arrest, detention or exile" and article 9 of the ICCPR declares similarly that "[n]o one shall be subjected to arbitrary arrest or detention [or] be deprived of his liberty except on such grounds and in accordance with such procedures as are established by law." Detention is considered "arbitrary" if it is not authorized by law or in accordance with law. It is also arbitrary when it is random, capricious, or not accompanied by fair procedures for legal review. Arbitrary detention has also been defined as not only contrary to law but as including elements of injustice and lack of predictability. Due to the growing phenomenon of indefinite detention of migrants and asylum seekers, the U.N. Working Group on Arbitrary Detention in 1999 developed criteria for determining whether or not the deprivation of liberty of migrants and asylum seekers is arbitrary.150 The principles mandate that a migrant or asylum seeker placed in custody "must be brought promptly before a judge or other authority" and that decisions regarding detention must be founded on criteria of legality established by law. Moreover, migrants and asylum seekers in detention must be notified in writing-in a language they understand-of the grounds for detention and the requirements for a remedy to a judicial authority empowered to decide promptly on the lawfulness of detention and to order release if appropriate. Such measures are intended to safeguard against arbitrariness and uncertainty by affording migrants and asylum seekers in detention with a requisite level of information to understand the reasons and terms of detention and to enable them to determine a course of action to challenge the detention if desired. As demonstrated above, Human Rights Watch's investigation raises serious concerns about the predictability of migrants' treatment in the Canary Islands. There is no certainty as to how long migrants will be held in detention, on what basis they will be held, or whether they will be deported or released onto the streets at the termination of their detention. Moreover, the quality of legal services and judicial oversight do not effectively provide fair procedures for legal review or fulfill Spanish law requiring the provision of counsel to all detainees. The Detention of Children
The CRC also requires heightened care for especially vulnerable children, including children who are temporarily deprived of their family environment,153 and extends specific protections to children deprived of their liberty.154 In particular, article 37 of the CRC states that detention of a child must be "used only as a measure of last resort and for the shortest appropriate period of time," and that every child deprived of his or her liberty shall be separated from adults, with the exception of unusual cases in which it is not in the child's best interest to maintain such separation. In the event that children are detained in state facilities, the CRC requires a state party to:
The detention of children in the appalling airport facilities of Fuerteventura and Lanzarote, either with or separated from their parents, as well as the removal of children from their parents' care to inadequate and insecure care facilities while their parents are detained raise serious concern that Spain's treatment of migrant children in the Canary Islands falls far short of required international standards. The Treatment of Asylum Seekers The right of every person to seek asylum is enshrined in article 14 of the 1948 Universal Declaration of Human Rights. The 1951 Convention Relating to the Status of Refugees (Refugee Convention) and its 1967 Protocol Relating to the Status of Refugees govern the protection of refugees and provide the core principle of refugee protection-nonrefoulement, the prohibition against returning a person to any territory where his or her life or freedom would be threatened.156
· The competent official (e.g. immigration officer or police officer) to whom the applicant addresses himself at the border or in the territory of a state party should have clear instructions for dealing with cases which might come within the purview of refugee protection instruments. He should be required to act in accordance with the principle of nonrefoulement and to refer such cases to a higher authority; · The applicant should receive the necessary guidance as to the procedure to be followed; · There should be a clearly defined authority-wherever possible a single central authority-with responsibility for examining requests for refugee status and taking a decision in the first instance; · The applicant should be given the necessary facilities, including the services of a competent interpreter, for submitting his case to the authorities concerned. Applicants should also be given the opportunity, of which they should be duly informed, to contact a representative of UNHCR.157 Potential asylum seekers arriving in the Canary Islands have little information on their rights or the process by which they can apply for asylum. Few have access to adequate translation or interpretation services. In addition, the lawyers available to them are generally untrained in asylum matters and unwilling to assist them in applying for asylum or to advocate on their behalf. The centralized government Office for Asylum and Refuge and the UNHCR do not currently monitor or review the local procedures or practices in the Canaries nor can local NGOs or private lawyers monitor practices in the police stations or detention facilities. Similarly, local NGOs and private lawyers are not permitted to provide information or legal services to arriving migrants who may wish to apply for asylum. International standards state that those seeking asylum generally should not be detained. Article 31 of the Refugee Convention states that governments "shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened . . . enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence." The convention goes on to state that "[c]ontracting states shall not apply to the movements of such refugees restrictions other than those which are necessary." The United Nations High Commissioner for Refugees' Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum Seekers (UNHCR Guidelines)158 also note that detention should not be used as a punitive or disciplinary measure, and that detention should not be used as a means of discouraging refugees from applying for asylum. Indeed, even if detention is not explicitly used to discourage asylum applicants but merely to discourage future immigration altogether-including asylum seekers-such a use of detention undermines the right of every person to seek asylum as guaranteed by the Universal Declaration of Human Rights. Although it is an accepted premise of international law that asylum seekers should not, in general, be detained, the Refugee Convention does permit states to detain asylum seekers in certain limited circumstances. Thus, "[i]n time of war or other grave and exceptional circumstances," states may take "provision[al] measures" to detain asylum seekers, "pending the determination that the person is in fact a refugee and that the continuance of such measures is necessary in the interests of national security." The UNHCR Guidelines further elaborate the instances in which asylum seekers may be detained: (i) to verify identity; (ii) to determine the elements on which the claim for refugee status or asylum is based; (iii) in cases where refugees or asylum seekers have destroyed their travel and/or identity documents or have used fraudulent documents in order to mislead the authorities of the state in which they intend to claim asylum; or (iv) to protect national security or public order. However, under the exception regarding the determination of the elements of a claim, the guidelines state that "[t]his exception . . .cannot be used to justify detention for the entire status determination procedure, or for an unlimited period of time." According to the Guidelines, any other reason for detaining asylum seekers, such as its use as part of a policy to deter future asylum seekers, is contrary to principles of international law. The guidelines emphasize that "detention [should] only be imposed where it is necessary and reasonable to do so and without discrimination. It should be proportional to the ends to be achieved and for a minimal period."159 The general principle stands that asylum seekers should not be detained. Alternative, non-custodial monitoring mechanisms, such as reporting requirements, should be employed as a matter of first course. Detention should only be used under exceptional circumstances and when it is prescribed by national law in conformity with international standards. Moreover, detention should be applied strictly on a case-by-case basis with a thorough review of an individual asylum seeker's circumstances. In cases where asylum-seekers are detained, UNHCR Guideline 4 enumerates minimum procedural safeguards, guaranteeing the right to challenge the lawfulness of the deprivation of liberty and to make contact with the local UNHCR office, other agencies, and a lawyer, including the provision of means to make such contact. Human Rights Watch's investigation reveals that the right to apply for asylum in the Canary Islands is rife with procedural and practical barriers that frequently prevent potential asylum seekers from making a claim for asylum before or during detention. Consequently, few applications for asylum are filed in the Canary Islands, particularly on the smaller islands of Fuerteventura or Lanzarote, and potential asylum seekers are detained in one of the old airport facilities along with other arriving migrants. As they do not have the means even to apply for asylum in the first place, they are certainly deprived of the means to make contact with the local UNHCR office, other agencies, or a lawyer other than the duty-lawyer assigned the first day of their arrival. Finally, duty lawyers and police often impose a prohibitive burden of proof on asylum seekers that further bars access to protection. 142 Adopted August 30, 1955, by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders; ECOSOC Resolutions 663 (July 1957) and 2076 (May 1977). 143 Council of Europe, Committee of Ministers Recommendation No. R(87)3, adopted on February 12, 1987. 144 According to Nigel Rodley, former U.N. Special Rapporteur on Torture and current member of the U.N. Human Rights Committee:
Nigel Rodley, The Treatment of Prisoners Under International Law, (Oxford University Press: New York, 1987), p. 222. Spain has ratified the ICCPR and the U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. 145 General Comment No. 15, "The Position of Aliens under the Covenant," in United Nations Human Rights Instruments, Compilation of General Comments and General Recommendations adopted by Human Rights Treaty Bodies, HRI/GEN/1/Rev4, February 7, 2000, p.98, para. 7. 146 European Court of Human Rights, Dougoz v. Greece, 40907/98, March 6, 2001. 147 ICCPR Article 9 and ECHR Article 5 guarantee the rights to liberty and security of person and provide, among other things, any person deprived of her or his liberty with an effective opportunity to challenge the lawfulness of a detention before a court. In its General Comment No. 8, the U.N. Human Rights Committee interpreted ICCPR Article 9 to include "all deprivations of liberty, whether in criminal cases or in other cases such as...immigration control." United Nations Human Rights Instruments, Compilation of General Comments and General Recommendations adopted by Human Rights Treaty Bodies, HRI/GEN/1/Rev.4, February 7, 2000, p. 88, para. 1. The European Court of Human Rights has ruled that migrants in detention enjoy the basic procedural guarantees enshrined in ECHR Article 5, including the right to effective review of the legality of their detention by a court. See Dougoz v. Greece, 40907/98, March 6, 2001. 148 Adopted by U.N. General Assembly Resolution 43/173, December 9, 1988. 149 See Law No. 8/2000 (Regarding the Rights and Freedoms of Foreign Nationals Living in Spain and their Social Integration) in combination with Section 2.a (Internment Centers for Foreigners), Articles 127-132 of the law's Regulations for the Application of Spanish Law on Foreign Nationals. 150 United Nations Commission on Human Rights, Report of the Working Group on Arbitrary Detention, E/CN.4/2000/4, December 28, 1999, Annex II, Deliberation No. 5, "Situation Regarding Immigrants and Asylum Seekers," which can be found at http://www.unhchr.ch/Huridocda/Huridoca.nsf/0811fcbd0b9f6bd58025667300306dea/39bc3afe4eb9c8b480256890003e77c2?OpenDocument#annexII, (accessed February 6, 2002). 151 Convention on the Rights of the Child (CRC), Article 3(1), G.A. Res. 44/25, U.N. Doc. A/RES/44/25 (adopted November 20, 1989; entered into force September 2, 1990). 156 Refugee Convention, Article 33. 157 United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, HCR/IP/Eng/REV.1, Geneva, January 1992, p. 31. 158 United Nations High Commissioner for Refugees, Revised Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum Seekers, Geneva, February 1999.
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