18 1 PROTECTING STATELESS PERSONS FROM ARBITRARY DETENTION United Nations Articles 9(3) and (4) ICCPR outline the various procedural guarantees that persons deprived of their liberty are entitled to. Article 9(3) ICCPR provides that any person detained must be brought before a judge or other authorised official of the law and shall be entitled to a trial “within a reasonable time” or be released. Article 9(4) provides that any person deprived of his/her liberty shall be “entitled to take proceedings before a Court, in order that that Court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful”. In C v Australia, the HRC stated that the exclusion of detention from judicial oversight, rendering the judiciary unable to decide if detention was in violation of Article 9(1) ICCPR, would constitute a violation of the individual’s procedural guarantees under Article 9(4) ICCPR. 56 The Working Group on Arbitrary Detention, in its 2010 report, stated that any detention must be “ordered or approved by a judge” and there should be individual, “automatic, regular and judicial, not only administrative, review of detention.” This should include a review of the lawfulness of the detention. According to the Working Group, the procedural guarantee found in Article 9(4) ICCPR “requires that migrant detainees enjoy the right to challenge the legality of their detention before a Court.”57 Thus, all detainees must be informed of the grounds for their detention and of their rights while detained, and must have access to legal assistance. Principle 10 of the UN General Assembly’s Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment provides that “anyone who is arrested shall be informed at the time of his arrest of the reason for his arrest and shall be promptly informed of any charges against him.” Principle 11 requires that any person kept in detention must have “an effective opportunity to be heard promptly by a judicial or other authority” and must be given the possibility to defend him/herself or be assisted by legal counsel. 58 According to the 2014 UNHCR Handbook on Protection of Stateless Persons “judicial oversight of detention is always necessary”59 and detained stateless persons or persons awaiting the outcome of a statelessness determination procedure must have access to legal counsel. Council of Europe Articles 5(2) – 5(4) of the ECHR set out the procedural guarantees that would apply when a person’s liberty has been deprived in accordance with Article 5(1). Accordingly, persons are entitled to be informed in a language they understand of the reasons for their arrest; are entitled to be brought before a judge or judicial officer and to face a trial; and are entitled to challenge the lawfulness of their detention before the Courts. In A and Others v UK, the ECtHR stated that a detained person has the “right to a review of the ‘lawfulness’ of his detention in the light not only of the requirements of domestic law but also of the Convention.” Furthermore, the review should be “wide enough to bear on those conditions which are essential for the ‘lawful’ detention of a person”60 under Article 5(1) ECHR and the reviewing Court must not have only advisory functions but must be competent in deciding on the lawfulness of the detention and must have the power to order release if the detention is found to be unlawful. In Al-Nashif v Bulgaria, the ECtHR made it clear that every person deprived of liberty “is entitled to a review of the lawfulness of his detention by a Court, regardless of the length of confinement.” The Court found that it is “of fundamental importance” that any deprivation of liberty should be subject to independent judicial review, since it is the “underlying purpose” of Article 5 ECHR to provide for safeguards against arbitrary deprivation of liberty.61 In Kim v Russia, the ECtHR clarified that the purpose of Article 5(4) ECHR is to “guarantee to persons who are arrested and detained the right to judicial supervision of the lawfulness of the measure to which they are thereby subjected” and there must be a remedy during the individual’s detention which can allow the person to have access to a judicial review of the lawfulness of his/her detention; said review should, when appropriate, lead to the release of the individual.62 The Court also noted that the judicial review required by Article 5(4) ECHR “cannot be said to be incorporated in the initial detention order.”63 European Union Article 13(1) of the EU Returns Directive provides that non-nationals “shall be afforded an effective remedy to appeal against or seek review of decisions related to return” before a “competent judicial or administrative authority or a competent body composed of members who are impartial and who enjoy safeguards of independence.” Article 13(2) requires that said body must have the power to review any decisions on return; this includes the possibility of (temporarily) suspending the removal proceedings. Article 13(3) requires that the individual in question must have the possibility of obtaining legal assistance and representation and linguistic assistance as well if necessary, which as per Article 13(3), must be free of charge.64 In Kadzoev, the ECJ confirmed that the individual in question should be “afforded an effective remedy to appeal against or seek review of decisions related to return before a competent judicial or administrative authority or a competent body composed of members who are impartial and who enjoy safeguards of independence.”65 Said judicial body must have the power to review any decisions relating to return, which includes the power to (temporarily) suspend the enforcement of any returns order. In Mahdi, the ECJ established that the “requirement that a decision be adopted in writing must be understood as necessarily covering all decisions concerning extension of detention” which includes not only the initial decision to detain but also any other decisions relating to the detention, such as a decision to extend the detention period”.66