NATIONS UNIES

HAUT COMMISSARIAT AUX DROITS DE L=HOMME

UNITED NATIONS

HIGH COMMISSIONER FOR HUMAN RIGHTS

 

 

 

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                                                                                                                                Address:

                                                                                                                                  Palais des Nations

                                                                                                                                CH‑1211 GENEVE 10

                                                                                    

 

2 August 2002

 

 

      Dear Sir or Madam,

 

            I have the honour to write to you with reference to Commission on Human Rights resolution 2002/62 on the “Human Rights of Migrants”, requesting the Special Rapporteur on the Human Rights of Migrants to present a report to the Commission at its fifty-ninth session.

 

In this context, I would like to inform you that my forthcoming report to the Commission on Human Rights will focus on the human rights of migrants in detention. A note verbale has been sent to all States requiring specific information on this issue through a questionnaire. This questionnaire has been included in the annex for your consideration.

 

            I solicit the cooperation of your organisation in providing relevant information and materials on the issue of migrants in detention. In particular, I would appreciate receiving a response to the annexed questionnaire, with respect to the country or countries in which your organisation works. I would be very grateful if the responses that your organization can provide to the questionnaire could be transmitted by the 30 September 2002, so that they may be integrated in the Special Rapporteur’s report. This information can be sent to the Office of the High Commissioner for Human Rights, United Nations Office at Geneva, CH-1211 Geneva 10.

 

            Best regards,

 

 

 

Gabriela Rodríguez

Special Rapporteur on the Human Rights of Migrants

 

Questionnaire

 

General questions and legislative framework

 

1)    Do the laws of your country provide for the detention of migrants for breaches of migratory norms or as a result of their migratory status? Which laws contain clauses regulating their detention and what are the motives for detention? Please give full details.

 

2)    Which State body orders the detention? Which State body is competent to detain migrants?

 

3)    What alternatives to detention do the laws of your country provide for?

 

4)    What breaches to migratory laws or regulations are considered criminal offences that a migrant can be criminally tried and sentenced for?

 

5)    Do the laws of your country allow for the detention of migrants who are minors and for non-accompanied migrant minors?

 

6)    Under what circumstances or for what reasons are victims of trafficking[1] detained? Under what circumstances or for what reasons are victims of smuggling[2] detained?

 

7)    Do the laws that regulate the detention of migrants in your country, contain safeguards for the protection of the fundamental rights of migrants in detention? What safeguards do they contain? Please list.

 

Safeguards for the protection of migrants’ rights in detention

 

8)    When a migrant is detained, what measures are taken to inform him/her, in a language he/she understands, of the reasons for the detention? What measures are taken to inform him/her of the continuing state of his/her process?

 

9)    When a migrant is detained, what measures are taken to inform him/her verbally or in writing, in a language he/she understands, about his/her rights and the ways in which he/she can exercise those rights?

 

10) What measures are taken to ensure that detained migrants have access to free legal counsel and interpretation during the judicial or administrative procedures they are involved in?

 

11) Do migrants in detention have access to their consular representation? In what way and at what point in time are migrants informed of their right to contact the consular authorities of their country when they are detained?

 

12) What time limit if any, do the laws of your country establish for the detention of migrants? What measures are taken to shorten the time of detention?

 

13) What type of judicial review mechanisms does a migrant have access to when he/she contests the legality of his/her detention? Please describe these in full. Can this mechanism be used at any time during his/her detention? What is the competent body for this kind of appeal?

 

14) Do detained migrants have a right to receive visits from their family members, legal counsel and/or NGO?

 

Conditions of detention:

 

15) What type of facilities are migrants detained in? Are these facilities adequately equipped for the detention of migrants? Does your country use penitentiary facilities to detain migrants who are not under trial or have not been sentenced for a criminal offence?

 

16) Are migrants who are not under trial or have not been sentenced for a criminal offence and who are nonetheless housed in penitentiary facilities kept in separate areas from common criminals? How is this separation put into practice?

 

17) Who is in charge of administering migrant detention facilities? Is the administration under public authority or is it a privately administered service?

 

18) What type of training do those who administer migrant detention facilities receive and what are their internal codes of conduct in regard to the treatment of migrants in detention? Do these codes of conduct contain clauses prohibiting discrimination on grounds of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth other status?

 

19) What measures are taken in migrant detention facilities to guarantee that children are not separated from their families and to guarantee the right to privacy of migrants? Do specific facilities exist to house women and non-accompanied minors?

 

20) What type of education do migrant minors in detention have access to? What type of recreational activities do minors and adults have access to?

 

21) What type of medical services are available to migrants in detention?

 

22) What independent control mechanisms exist to inspect migrant detention facilities, regularly, to ensure that the conditions of detention comply to with internationally recognized standards?

 

23) In cases of abuses committed against detained migrants, what kind of complaint mechanisms are made available to migrants, in order to ensure adequate investigation of the case, sanctioning of those responsible and remedies for the victim?

 


[1] See definition of trafficking in the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the UN Convention against Transnational Organized Crime: “the recruitment, transportation, transfer, harbouring or receipt of persons , by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving and receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs;

 

[2] See definition of smuggling in the Protocol Against Smuggling of Migrants by Land, Sea and Air, supplementing the UN Convention against Transnational Organized Crime: “the procurement, in order to obtain, directly or indirectly, financial or other material benefit, of the illegal entry of a person into a state party of which the person is not a national or permanent resident”.