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Global Detention Project - Harm Reduction in Immigration Detention: A Comparative Study of Detention Centres in France, Germany, Norway, Sweden, and Switzerland (October 2018), Commissioned by the Norwegian Red Cross

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1. INTRODUCTION

In late 2017, the Norwegian Red Cross commissioned the Global Detention Project (GDP) to undertake a study comparing conditions and procedures at Norway’s Trandum Immigration Detention Centre to those at similar facilities in other European countries. The Red Cross commissioned the study because of growing concerns that needed reforms at Trandum have not been initiated despite repeated recommendations from relevant experts, in particular Norway’s Parliamentary Ombudsman. The Red Cross hopes that a comparative study of this kind can lead to positive reforms in Norway and elsewhere.

The Parliamentary Ombudsman, which is mandated to visit all places of detention in Norway in its capacity as the country’s National Preventive Mechanism (NPM), has repeatedly identified a number of worrying practices at Trandum. A common theme arising from its visits to the facility has been that while detainees generally think they are “treated with respect and receive the necessary assistance in their day-to-day pursuits,” as a 2015 Ombudsman report noted, detainees nevertheless consider themselves to be “treated as criminals” even when they have not committed any crimes. The Ombudsman concluded at the time that the facility was, inter alia, placing an “excessive attention to control and security at the expense of the individual detainee’s integrity,” employing the “same security procedures as the correctional services,” and unsuitable for children.

In March 2017, the Ombudsman made an unannounced follow up visit to Trandum, a goal of which was to examine the use of the high-security section where detainees can be placed in isolation and under restraint. In its report on the visit, the Ombudsman noted progress in some areas, but continuing problems in others. For instance, it was clear that the centre had “implemented measures to prevent the use of force and placements in the security section, such as training and practice in using preventive alternatives.” However, as during the Ombudsman’s 2015 visit, while detainees said they were treated “professionally,” the “authoritarian attitudes among some of the staff” were having negative repercussions on detainee morale that led “to the escalation of certain situations.” Among the key concerns were: continued high-frequency use of the security section including in some cases for children; questionable use of restraints and pepper spray; a high number of placements in the security section for mental health reasons; and involvement of medical personnel in decisions to place people in isolation cells, in contravention of medical ethics.

An unstated message that emerges from the Ombudsmen’s 2017 report is that while the Immigration Police and the Ministry of Justice and Public Security, which operate the facility, implemented important changes after the 2015 visit, they nevertheless showed an obstinate refusal to make some reforms that could soften the traumatic impact of detention, especially on undocumented immigrants and asylum seekers who are not being charged with crimes and who have likely suffered extreme hardship and abuses.

After the release of the Ombudsman’s 2017 report, the Norwegian Red Cross, which has an active volunteer visitation program at Trandum, decided to commission this study in an effort to identify practices elsewhere in Europe that could serve as a basis for renewing calls for reforms at the detention centre. The failure to implement some of the recommendations that the Ombudsman has repeatedly made, together with on-going tensions and incidents at Trandum, spurred the Red Cross to seek out an independent organisation with experience assessing detention regimes across different national contexts. Ultimately, the Red Cross decided to invite the Global Detention Project to submit a research proposal. A non-profit research centre based in Geneva, Switzerland, the GDP has specialised in comparative research on immigration detention systems for more than 10 years. Its research encompasses more than 100 countries and 2,000 sites of immigration detention.

The GDP’s analysis of detention systems, which is informed by international human rights norms and standards, emphasises how contrasting political and legal contexts—state-level indicators—lead to sharply different outcomes at the level of individual detention facility operations, ultimately impacting the safety and well-being of detainees. It is arguably an inexorable quality of immigration detention that it causes the individual to experience pain or injury, such as causing high levels of anxiety and stress (in some cases leading to long-term mental health problems), separating family members, reinforcing social stereotypes, or impairing asylum procedures, to name just a few of the potential harms. The specific conditions of confinement, which can be heavily impacted by the bureaucratic context of a facility, can be a particularly acute source of pain and discomfort—including everything from a facility’s internal operating rules to its quality of food and level of cleanliness. Detention decisions themselves may also violate a person’s fundamental rights, like the right to liberty and freedom from arbitrary detention, which are protected under Article 5 of the European Convention on Human Rights (ECHR) and Article 9 of the International Covenant on Civil and Political Rights (ICCPR).

To assess the multi-faceted challenges posed by different detention systems and identify areas for reform, the GDP proposed a study involving two overlapping levels of analysis: (1) at the country-wide level, a comparative assessment of national laws and regulations relevant to detention conditions and regimes—as well as differences in relevant political, institutional, and legal contexts—in a selection of peer countries in Europe, including Norway; (2) at the level of the individual detention centre, an assessment of comparable detention centres in each country taking into account material conditions of detention and the internal regime.

It seems to be an inexorable quality of immigration detention that it causes the individual to experience pain or injury. From a human rights perspective, is it possible to talk about “best practices”?

With the evidence produced from these complementary assessments, the study addresses the following key questions: In what ways has the Norwegian system met or exceeded internationally recognized standards? In what ways has it fallen short, especially when compared to the detention practices of peer countries? And what are key reform priorities going forward that may help reduce the harmful impact of detention?

This analysis is grounded in two over-arching sets of international human rights norms that are relevant to immigration detention. On the one hand, immigration detention must comply with requirements stemming from the right to liberty, laid down in Article 5 of the ECHR (ratified by Norway in 1952) and Article 9 of the ICCPR (ratified by Norway in 1972), such as the principle of lawfulness, necessity, and proportionality, the right to be notified about detention, and the right to a judicial review of detention.

Immigration detention is also subject to a set of norms and standards regulating conditions and treatment in detention. It is this second set of standards that this report focuses on. Thus, the report emphasises the standards that should be observed by states when they place a person in immigration detention, while keeping in mind concerns that efforts to “improve” detention may ultimately lead to more detention and more entrenched detention bureaucracies.

In what ways has the Norwegian system met or exceeded internationally recognised standards? In what ways has it fallen short, especially when compared to detention practices of peer countries? And what are the key reform priorities going forward that may help reduce the harmful impact of detention?

Under Article 10(1) of the ICCPR, states should treat all people deprived of their liberty with humanity and with respect for the inherent dignity of the human person. Unlike the ICCPR, the ECHR does not contain any provision explicitly addressing the treatment of detainees. Hence, the European Court of Human Rights (ECtHR) assesses the conditions and treatment in detention within the ambit of the prohibition of ill-treatment under Article 3 of the ECHR. For states to comply with these provisions, they should afford immigration detainees, like all other detainees, basic standards—including adequate space, dignified material conditions, access to adequate sanitary facilities, food, outdoors time, and contact with the outside word.

Additionally, immigration-related detention regimes should reflect the administrative character of this measure. The ECtHR has highlighted that there must be some relationship between the reasons for deprivation of liberty and the place and conditions of detention. The administrative character of immigration detention has a bearing on the place of detention, separation of different categories of detainees, and regime of detention. On this basis, the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) holds that immigration detainees should be guaranteed a regime of detention that is appropriate to their legal situation. Thus, they should be allowed to move freely within the facility and benefit from a varied regime of activities. The layout of the premises should also avoid any impression of a carceral environment. The UN Working Group on Arbitrary Detention frames these requirements as the nonpunitive character of immigration detention and urges states to ensure that immigration detention is not imposed in a penal manner.

It is against these standards that the following report has endeavoured to identify practices that may be used to develop harm reducing strategies in detention.