European Committee for the Prevention of Torture
and Inhuman or Degrading Treatment or Punishment


Foreign nationals detained under aliens legislation
Extract from the 7th General Report of the CPT,
published in 1997


Preliminary remarks

CPT visiting delegations frequently encounter foreign nationals deprived of their liberty
under aliens legislation (hereafter “immigration detainees”): persons refused entry to the country
concerned; persons who have entered the country illegally and have subsequently been identified by
the authorities; persons whose authorisation to stay in the country has expired; asylum-seekers
whose detention is considered necessary by the authorities; etc.
In the following paragraphs, some of the main issues pursued by the CPT in relation to such
persons are described. The CPT hopes in this way to give a clear advance indication to national
authorities of its views concerning the treatment of immigration detainees and, more generally, to
stimulate discussion in relation to this category of persons deprived of their liberty. The Committee
would welcome comments on this section of its General Report.


Detention facilities

CPT visiting delegations have met immigration detainees in a variety of custodial settings,
ranging from holding facilities at points of entry to police stations, prisons and specialised detention
centres. As regards more particularly transit and “international” zones at airports, the precise legal
position of persons refused entry to a country and placed in such zones has been the subject of some
controversy. On more than one occasion, the CPT has been confronted with the argument that such
persons are not “deprived of their liberty” as they are free to leave the zone at any moment by
taking any international flight of their choice.
For its part, the CPT has always maintained that a stay in a transit or "international" zone
can, depending on the circumstances, amount to a deprivation of liberty within the meaning of
Article 5 (1)(f) of the European Convention on Human Rights, and that consequently such zones
fall within the Committee's mandate. The judgement delivered on 25 June 1996 by the European
Court of Human Rights in the case of Amuur against France can be considered as vindicating this
view. In that case, which concerned four asylum seekers held in the transit zone at Paris-Orly
Airport for 20 days, the Court stated that “The mere fact that it is possible for asylum seekers to
leave voluntarily the country where they wish to take refuge cannot exclude a restriction (“atteinte”)
on liberty ....” and held that “holding the applicants in the transit zone .... was equivalent in practice,
in view of the restrictions suffered, to a deprivation of liberty”.

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