Strasbourg, 19 September 2001
CommDH(2001)19
Original version in French
RECOMMENDATION
OF THE COMMISSIONER FOR HUMAN
RIGHTS
CONCERNING
the rights of aliens wishing to
enter a Council of Europe member State and the
enforcement of expulsion orders
The Commissioner for Human Rights, acting in
accordance with Resolution (99) 50 of the Committee
of Ministers on the Council of Europe Commissioner
for Human Rights adopted on 7 May 1999 (“the
Resolution”),
Having noted during his various trips and visits
to Council of Europe member States that a problem
common to most of them is the precarious legal and
humanitarian situation of aliens wishing the enter
their territory;
Recalling that this problem has already been the
subject of many studies at the Council of Europe
and, in particular, several recommendations of the
Committee of Ministers;
Noting, however, that there has been no
significant improvement in the situation since the
adoption by the Committee of Ministers of
Recommendation R(94)5 on “guidelines to inspire
practices of the member States of the Council of
Europe concerning the arrival of asylum-seekers at
European airports”;
Recalling that the conditions in which
asylum-seekers and other people are held in airport
waiting areas have been the subject of a number of
surveys carried out by the European Committee for
the Prevention of Torture and Inhuman or Degrading
Treatment or Punishment (“the CPT”);
Bearing in mind the work currently being carried
out by the Parliamentary Assembly’s Committee on
Migration, Refugees and Demography to produce a
report on “Rendering more humane the procedures for
expelling illegal immigrants and rejected asylum
seekers”;
Recalling the seminar organised by the
Commissioner for Human Rights on “Human rights
standards applying to the holding of aliens wishing
to enter a Council of Europe member State and to the
enforcement of expulsion orders”, which took place
from 20 to 22 June 2001 in Strasbourg;
Recalling that the seminar was attended by
representatives of national and international NGOs,
government experts, representatives of professional
trade unions, including the Association belge des
pilotes de lignes (Belgian association of airline
pilots), representatives of the United Nations High
Commission for Refugees, as well as members of the
Council of Europe’s Parliamentary Assembly, the
Registry of the European Court of Human Rights, and
the Secretariat of the CPT;
Recalling that during the seminar the
participants studied the legal framework and
practice with respect to foreigners arriving at the
border of a member State, particularly in relation
to the European Convention for the Protection of
Human Rights (“the ECHR”), the 1951 Convention
relating to the Status of Refugees, and the relevant
provisions of the Charter of Fundamental Rights of
the European Union;
Considering that Article 3e of the Resolution
states that the Commissioner for Human Rights shall
“identify possible shortcomings in the law and
practice of member States concerning the compliance
with human rights as embodied in the instruments of
the Council of Europe, promote the effective
implementation of these standards by member States
and assist them, with their agreement, in their
efforts to remedy such shortcomings”;
Bearing in mind Article 8-1 of the Resolution,
Would like to issue the following recommendations:
I. Rights of aliens on their arrival at the
border of a member State
1. Everyone has the right, on arrival at the
border of a member State, to be treated with respect
for his or her human dignity rather than
automatically considered to be a criminal or guilty
of fraud.
2. On arrival, everyone whose right of entry is
disputed must be given a hearing, where necessary
with the help of an interpreter whose fees must be
met by the country of arrival, in order to be able,
where appropriate, to lodge a request for asylum.
This must entail the right to open a file after
having being duly informed, in a language which he
or she understands, about the procedure to be
followed. The practice of refoulement “at the
arrival gate” thus becomes unacceptable.
3. As a rule there should be no restrictions on
freedom of movement. Wherever possible, detention
must be replaced by other supervisory measures, such
as the provision of guarantees or surety or other
similar measures. Should detention remain the only
way of guaranteeing an alien’s physical presence, it
must not take place, systematically, at a police
station or in a prison, unless there is no practical
alternative, and in such case must last no longer
than is strictly necessary for organising a transfer
to a specialised centre.
4. Detained foreigners must be given the right to
contact anyone of their choice in order to notify
that person of their situation.
II. Detention conditions
5. As far as possible, member States should bring
their national legislation into line in terms of the
procedural guarantees available to foreigners being
held and the maximum period of detention permitted
at each stage of the proceedings.
6. Member States should avoid holding
unaccompanied minors, pregnant women, mothers with
young children, the elderly, and people with
disabilities in waiting areas. Where appropriate,
unaccompanied minors must be placed in specialised
centres, and the courts immediately informed of
their situation. Members of the same family should
not be separated.
7. Aliens held pending authorisation of entry
must be placed in a specialised centre, and under no
circumstances during their detention must they be
placed with ordinary prisoners. The same applies to
aliens awaiting enforcement of an expulsion order
except, of course, in the case of persons expelled
on having served their sentence and persons detained
at the border with a view to being extradited.
8. All detainees, however long they are held,
must have the right to emergency medical care as
required by their state of health.
9. On no account must holding centres be viewed
as prisons.
10. Governments must guarantee maximum
transparency in respect of how holding centres
operate, by ensuring at least that independent
national commissions, ombudsmen and NGOs, lawyers
and close relatives of detainees have access to them.
In particular, their operation must be regularly
monitored through the courts.
11. It is essential that the right of judicial
remedy within the meaning of Article 13 of the ECHR
be not only guaranteed in law but also granted in
practice when a person alleges that the competent
authorities have contravened or are likely to
contravene a right guaranteed by the ECHR. The right
of effective remedy must be guaranteed to anyone
wishing to challenge a refoulement or expulsion
order. It must be capable of suspending enforcement
of an expulsion order, at least where contravention
of Articles 2 or 3 of the ECHR is alleged.
III. Implementation of explusion measures
12. Where forced expulsion is unavoidable, it
must be carried out with complete transparency in
order to ensure that fundamental human rights have
been respected at all stages.
13. The best way to avoid using methods which
might traumatise both those being expelled and those
responsible for enforcing expulsion orders is to
have the person concerned agree to return
voluntarily.
14. When expulsion orders are to be enforced, it
is crucial at every stage of the procedure to inform
the persons concerned of what lies ahead so that
they can prepare themselves psychologically for
their return. In accordance with Article 4 of
Protocol No 4 to the ECHR, collective expulsion is
prohibited.
15. Threats must not be used to persuade persons
subject to an expulsion order to board any form of
transport. The wearing of masks making it impossible
to identify staff executing forced expulsion orders
must be banned outright.
16. Holding centre staff and immigration and
expulsion officers must receive proper training so
as to minimise the risk of violence.
17. The following must be prohibited outright:
- use of any means which may cause asphyxia or
suffocation (adhesive tape, gags, helmets, cushions
etc) and use of incapacitating or irritant gas; use
of restraints which may induce postural asphyxia
must also be avoided;
- use of tranquillisers or injections without
prior medical examination or a doctor’s prescription;
18. For safety reasons, the use during aircraft
take-off and landing of handcuffs on persons
resistant to expulsion should be prohibited.
The Commissioner for Human Rights invites the
authorities of the member States of the Council of
Europe to take account of these recommendations when
drawing up and applying their legislation and
practices in this field.