It is important to recall some key provisions, particularly those included in the European Convention on Human Rights, on the right to liberty and security of person, and guarantees against arbitrary deprivation of liberty, as measures which amount to detention often administrative are used against migrants and asylum seekers in many OSCE countries.

The European Convention for the protection of human rights and fundamental freedoms describes a number of cases when a person can be deprived of liberty but with procedure prescribed by law. Amongst the cases are “the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a against whom action is being taken with a view to deportation or extradition.” Thus the possibility of depriving a person of his/ her liberty not in connection with a criminal offence and as a consequences (or in prevision) of a trial for such offence, for instance in connection with a unlawful crossing of 9national borers, is acceptable, albeit with strong guarantees. A judicial ascertainment of the case however must be celebrated with the shortest possible delay guarantees. The ascertainment must be undertaken by judges or other officer authorised by law to exercise judicial power. Article 5.4 states that a person deprived of his/her liberty is entitled to take proceedings to check on the lawfulness of his/her detention and in case this is found to be unlawful, to be freed without delay; those who have been unlawfully detained have the right to reparations.

Protocol n.4 to the Convention and to the first Protocol (in force since 1968) prohibits the collective expulsion of foreigners. Therefore, decision to collectively expel foreigners even if illegally or unlawfully present in the territory of a State member to the European Convention would breach this article of the Protocol to the Convention.

Article 1 of protocol 7 to the European Convention (entered into force in 1988) sets guarantees on expulsion orders against foreigners in a State who has acceded to the Convention and to the Protocol. A foreigner who is regularly resident in a signatory State can not be expelled unless after a lawful decision. In any case the foreigner must be able to oppose the decision, to have a full examination of his/her case and to have appropriate legal counsel before the competent authority or one or more persons delegated by such authority to hear the case. Paragraph two states that the exercise of such rights may e lawfully impeded, i.e. the foreigner may be expelled prior to the exercise of the rights enunciated in article 1, f the expulsion is made necessary by public order or national security considerations.

Of key importance for the application of norms guaranteeing against arbitrary behaviours by public officers or authority are norms against discrimination. Article 14 states that the enjoyment of the rights and freedoms enshrined in the Convention must be guaranteed without discrimination on the grounds of sex, creed, race, language, national or social origin etc.

Finally art. 8 of the Convention on protection of family life, as it has guided jurisprudence including by the European Court of Human Rights, on family reunion and on rights of migrants and their close relatives to continue their contact as members of the same family.

Analysis provided by: Antonella C. Attardo PhD (History of Law), Italy.