28 1 PROTECTING STATELESS PERSONS FROM ARBITRARY DETENTION In Mahdi, the ECJ established that “a judicial authority deciding upon an application for the extension of detention must be able to rule on all relevant matters of fact and of law in order to determine…whether an extension of detention is justified.” If the initial detention is no longer justified, extension is not justified and the authority can “order an alternative measure or the release of the third-country national concerned.”145 In Kadzoev, the ECJ stated that Article 15(6) “in no case authorises the maximum period defined in that provision to be exceeded.”146 The ECJ considered that if “otherwise the duration of detention for the purpose of removal could vary, sometimes considerably, from case to case within a Member State or from one Member State to another” and this would be contrary to the objective of Article 15(5) and 15(6) of the Directive, since these Articles seek to establish a maximum duration of detention in all EU states.147 Other resources The International Detention Coalition in its Handbook for preventing unnecessary immigration detention stated that since detention can be traumatic and damaging on the individual who is detained, detention “must be limited to the shortest length of time possible to protect detainees’ wellbeing.” Lengthy detention periods have been shown to have longterm consequences on the former detainees, which limited “their ability to rebuild life after release”.148 ERT Guideline 38 states that detention must never be indefinite, and statelessness should never lead to indefinite detention or be a hindrance to release. Guideline 39 states that detention should be for the shortest time possible, and there should be a (reasonable) maximum time limit. Stateless persons should not be detained for longer than 6 months, and states which currently have a maximum time limit of less than 6 months should not raise it. ERT Guideline 40 states that “when calculating the total time spent by an individual in detention, it is highly desirable that time spent in detention on previous occasions is taken into consideration”149 since this would serve as a protection for the individual against becoming a victim of repeat cycles of detention. The International Commission of Jurists, in its Practitioner’s Guide, has found that “the conditions of detention are also important when considering the maximum length possible of a detention to prevent unauthorised entry.”150 The Commission also mentions that several issues can arise from the detention of stateless persons, since it is “particularly difficult to return them to their “country of origin” or to find alternative places of resettlement.” This can result in the prolonged detention of stateless persons, under the pretences of their deportation. Therefore, the “general principle… concerning the need to establish that deportation is being actively pursued, in order for detention to be justified”151 is highly relevant for stateless persons in detention. 2.8 CONDITIONS OF DETENTION Once a decision to detain has been made and persons have to endure detention for extensive periods, the environment they are compelled to live in can have a massive impact. Therefore it is of paramount importance that conditions of detention at the very least comply with minimum standards established under international law. Significantly, conditions of immigration detention must reflect its non-punitive nature. The failure to comply with international standards can result in a violation of obligations to protect the person from torture or cruel, inhuman or degrading treatment or punishment. The physical and psychological state of the detainee, the facilities at the detention centre and the amount of time the detainee is detained all have an impact in this regard. There are no special conditions of detentions that are required for stateless persons. However, as stateless persons are likely to be detained for longer periods than most, poor detention conditions can have a significant impact on the stateless. Since conditions of detention addresses the conditions in which a person is held (for example all detained persons must be held in sanitary facilities) this section will discuss generic standards for conditions of detention. United Nations Article 7 ICCPR provides that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” The Human Rights Committee, in its General Comment number 20 on Article 7, has stated that it is necessary for state parties to have safeguards for the protection of vulnerable persons, which includes detained persons. The Committee has also made it clear that in order to effectively protect detained persons, it is essential for states to hold detained persons in “places officially recognised as places of detention. Detained persons should not be kept in “incommunicado detention,”152 which means being detained and unable to communicate with friends, family, legal advisors, and medical examiners, among others. Additionally, the Committee noted that “prolonged solitary confinement of the detained or imprisoned person may amount to acts prohibited by Article 7 ICCPR.”153 Article 10(1) ICCPR provides that “All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.” The Human Rights Committee, in its General Comment number 21, stated that Article 10(1) ICCPR covers “anyone deprived of liberty under the laws and authority of the State who is held in prisons, hospitals – particularly psychiatric hospitals – detention camps or correctional institutions or elsewhere” and clarifies that states have the obligation to ensure that “the principle stipulated therein is observed in all institutions and establishments within their jurisdiction where persons are being held.”154