- Parliamentary Assembly
- Assembly debate on 22 June 2016
(24th Sitting) (see Doc. 14079,
report of the Committee on Legal Affairs and Human Rights, rapporteur:
Lord Richard Balfe). Text adopted by
the Assembly on 22 June 2016 (24th Sitting).
1. The Parliamentary Assembly stresses
the importance of the right to liberty and security guaranteed in Article
5 of the European Convention on Human Rights (ETS No. 5, the Convention).
No one shall be deprived of his or her liberty except in the cases
enumerated in the closed list of Article 5.1.
Recalling its Resolution
on the detention of asylum seekers and irregular
migrants in Europe, the Assembly stresses that under Article 5.1.f
of the Convention administrative
detention in immigration cases is only allowed if it is based on
a precise, accessible legal framework ensuring that such detention
has a prompt procedural purpose and respects protective standards
such as certainty (including maximum duration) and necessity (being
a means of last resort to carry out entry controls or to ensure expulsion
effectively), all under the authority of a court of law.
3. The Assembly is concerned that administrative detention has
been abused in certain member States to punish political opponents,
obtain confessions in the absence of a lawyer and/or under duress,
or apparently to stifle peaceful protests.
Regarding administrative detention as a tool to prevent terrorism
or other threats to national security, the Assembly:
4.1 recalls that purely preventive
detention of persons suspected of intending to commit a criminal offence
is not permissible under Article 5 of the Convention as interpreted
by the European Court of Human Rights;
4.2 points out that mere restrictions (as opposed to deprivation)
of liberty are permissible under Article 2 of Protocol No. 4 to
the Convention (ETS No. 46), in the interests of national security
or public safety and for the prevention of crime;
4.3 notes that detention of persons suspected of constituting
a threat to national security can be permissible as pretrial detention
when there are reasonable grounds to believe that such a person
has already committed a criminal offence, including specific offences
criminalising certain preparatory acts for especially serious crimes
or acts aimed at supporting terrorist activities, for example the
funding of, or propaganda or recruitment for a terrorist organisation.
The Assembly therefore calls on all member States concerned
to refrain from:
5.1 using administrative
detention as a tool for the management of migration, beyond the
narrow purposes permissible under Article 5 of the Convention;
5.2 placing political opponents, human rights activists or
journalists in administrative detention in order to coerce or persuade
them by other means into confessing to a criminal offence;
5.3 placing peaceful protesters, or persons intending to participate
in peaceful protests, in administrative detention in order to prevent
them from taking part in a given protest or to deter them from participating
in such protests in the future.
The Assembly encourages all member States to make use of available
tools respecting human rights in order to protect national security
or public safety, and to prevent crimes, including acts of terrorism.
In particular, the Assembly recommends:
6.1 the use of restrictions of liberty falling short of detention,
such as restraining persons suspected of constituting a risk for
national security from visiting certain places, or even obliging
them to remain within a certain area in order to disrupt potentially
dangerous activities; such restrictions could be enforced if need
be by electronic tagging devices;
6.2 the adoption, as needed, and the systematic enforcement
of laws criminalising certain preparatory actions for especially
serious crimes, or actions aimed at supporting terrorist activities,
such as the funding of, or propaganda or recruitment for, a terrorist
organisation, as foreseen in the Council of Europe Convention on
the Prevention of Terrorism and its Additional Protocol (CETS Nos.
196 and 217).
7. In applying alternative measures to administrative detention
as specified in paragraph 6 above, the Assembly urges all member
States to use the utmost restraint.
In particular, the Assembly stresses that all restrictions
to liberty must be:
8.1 based on
a clear, predictable legislative authorisation ensuring that they
are necessary in a democratic society for the legitimate purpose
8.2 respectful of the principle of non-discrimination, on
any grounds specified in the European Convention on Human Rights
and its protocols;
8.3 open to timely challenge before a court of law as specified
in Article 5 of the Convention.
Criminal law provisions aimed at penalising preparatory and
other ancillary acts in support of terrorism must fulfil the requirements
of Article 7 of the Convention (no punishment without law); in particular,
they must be clear and predictable. Any pretrial detention ordered
in enforcing such provisions must respect the principles laid down
by the Assembly in Resolution
on the abuse of pretrial detention in States
Parties to the European Convention on Human Rights.