Fundamental safeguards against ill-treatment in the context of procedures for deportation by air of immigration detainees

The task of CPT aiming to prevent the inhuman and degrading treatment during the deportation operations of foreign nationals

During the last visits, the CPT delegations have examined the condition of immigration detainees in various custodial sitting: holding facilities, points of entry to police stations, prisons and specialised detention centres. With regarding to the transit and “international” zones at airports, there have been some discussions about the precise legal position of persons refused entry to a country and placed in such zones.

It have been affirmed that such persons are not “deprived of their liberty” as they are free to leave the zone at any moment by taking any international flight of their choice.

On the contrary, the Committee has always stated that a stay in such zones amounts to a deprivation of liberty within the meaning of art. 5(1)(f) of the European Convention on Human Rights and consequently such zones fall within the Committee’s mandate. Therefore, over recent years, CPT visiting delegations have concentrated on the condition of immigration detainees, persons refused entry to the country concerned, persons who have entered the country illegally and have subsequently been identified by the authorities, persons whose authorisation to stay in the country has expired, asylum-seekers whose detention is considered necessary by the authorities, etc.

Nevertheless, I concentrate on the question concerning to the risk of inhuman or degrading treatment in the context of procedures for the deportation of foreign nationals by air in the light of CPT’ efforts to guarantee human rights of such persons. This issue was dealt with in a section of the CPT’13^th General Report.

In this section, the Committee set out some basic rules concerning the use of  force and means of restraint used and the conditions in order to carry out such operations and some rules about  the monitoring of deportation. During its visits, the CPT delegations have examined the procedures involving forcible with an escort and some cases brought to its attention, in particular because of the death of the deported person, the extent of the means of restraint used and allegations of ill-treatment.

The CPT examined the procedure followed when the person concerned boarded the plane and during the flight, but it also monitored the detention prior to deportation, steps taken to prepare for the immigration detainee’s return to the country of destination, measures to ensure suitable selection and training of escort staff, internal and external system for monitoring the conduct of staff responsible for deportation escorts, measures taken following an abortive deportation attempt.

A number of copies of the relevant instructions, directives, statistics on deportation operations, escort assignment orders, escort assignment reports, incident reports, reports in the context of legal proceedings, medical certificates and copies of other documents have been obtained and examined by the CPT.

It also examined the  restraint equipment used during such operations and had detailed interviews with those in charge of units responsible for deportation operations and with prospective deportees met on the spot, some of whom had been brought back to holding facilities after an abortive deportation attempt.  After its visit, the CPT drew up a number of guidelines and it recommended the countries concerned to follow them.

However, the CPT has decided to group together the most important principles concerning the deportation procedures by air in order to promote widespread application of these guidelines in all States Parties to the Convention. These principles must been read in the light of a State’s fundamental obligation “non refoulment” that means not to send a person to a country where there are substantial grounds for believing that he or she would run a real risk of being subjected to torture or ill-treatment.

The use of force and means of restraint in the light of lawfulness, proportionality and appropriateness principles

“It is entirely unacceptable for persons subject to a deportation order to be physically assaulted as a form of persuasion to board a means of transport or as a punishment for not having done so”.

The CPT has noted that this rule is reflected in many of the relevant instructions in the countries visited. Some instructions examined by CPT prohibit the use of means of restraint designed to punish the foreigner for resisting or which cause unnecessary pain.

Doubtless, the CPT acknowledges that the escort staff are, on occasion, obliged to use force and means of restraint in order to effectively carry out the deportation. However, the CPT affirms that “the force and the means of restraint used should be no more than is reasonably necessary”.

The CPT welcomes the fact that in some countries the use of force and means of restraint during deportation procedures is reviewed in detail, in the light of the principles of lawfulness, proportionality and appropriateness.

Procedures to prevent positional asphyxia 

The Committee recognizes that the use of force and/or means of restraint capable of causing positional asphyxia should be avoided whenever possible and any such use in exceptional circumstances must be the subject of guidelines designed to reduce to a minimum the risks to the health of the person concerned.

In particular, during its last visits, for instance in Swiss[1] and in Belgium[2], the CPT concentrated a special attention on the techniques used by escort staff to immobilise the person to whom means of physical restraint, such as steel handcuffs or plastic strips. In most cases, the detainee will able to resist handcuffing violently.

In such cases, the escort staff usually immobilise the detainee completely on the ground, face down, in order to put on the handcuffs. Such a position, in particular with escort staff putting their weight on various parts of the body (pressure on the ribcage, knees on the back, immobilisation of the neck) when the person concerned puts up a struggle, entails a risk of positional asphyxia. Also, the use of force is applied by escort personnel when a deportee, having been placed on a seat in the aircraft, struggles and the escort staff, by applying force, oblige him/her to bend forward, head between the knees, strongly compressing the ribcage. In some countries, the use of force to make the person concerned bend double in this way in the passenger seat is, as a rule, prohibited, this method of immobilisation being permitted only if it is absolutely indispensable in order to carry out a specific, brief, authorised operation, such as putting on, checking or taking off handcuffs, and only for the duration strictly necessary for this purpose.

Prohibition of methods likely to obstruct the respiratory tracts 

In addition to the avoidance of the risks of positional asphyxia referred to above, the CPT has systematically recommended an absolute ban on the use of means likely to obstruct the airways (nose and/or mouth) partially or wholly.

Serious incidents that have occurred in various countries over the last ten years in the course of deportations have highlighted the considerable risk to the lives of the persons concerned of using these methods (gagging the mouth and/or nose with adhesive tape, putting a cushion or padded glove on the face, pushing the face against the back of the seat in front, etc.).

After visits to certain countries like Belgium and Swiss, the Committee has concentrated on two particular means:

-         the wearing of masks by deportation escorts;

-         the use of incapacitating or irritant gases used to remove immigration detainees from their cells in order to transfer them to the aircraft.

With regarding to the first question, in the CPT’s opinion, this practice is highly undesirable and security considerations can never serve to justify escort staff wearing masks during deportation operations. Such a method it could make it very difficult to ascertain who is responsible in the event of allegations of ill-treatment.

As regard to the other question, the Committee also has very serious reservations about the use of incapacitating or irritant gases to bring recalcitrant detainees under control in order to remove them from their cells and transfer them to the aircraft. In fact, the use of such gases in very confined spaces, such as cells, entails manifest risks to the health of both the detainee and the staff concerned.

It is necessary that staff should be trained in other control techniques like manual control techniques or the use of shields to immobilise a recalcitrant detainee.

The access to a medical examination: a fundamental guarantee

Certain incidents that have occurred during deportation operations have highlighted the importance of allowing immigration detainees to undergo a medical examination before the decision to deport them is implemented.

This precaution is particularly necessary when the use of force and/or special measures is envisaged. Similarly, all persons who have been the subject of an abortive deportation operation must undergo a medical examination as soon as they are returned to detention whether in a police station, a prison or a holding facility specially designed for foreigners. This is a relevant measure to verify the state of health of the person concerned and, if necessary, establish a certificate attesting to any injuries and could also protect escort staff against unfounded allegations.

Administration of  sedating medication: a practice unacceptable

Specific mention should be made of administration of sedating medication in the context of deportation by air of foreign nationals. In fact, during many visits, the CPT has heard allegations that immigration detainees had been injected with medication having a tranquillising or sedative effect, in order to ensure that their deportation proceeded without difficulty[3].

The CPT considers that the administration of such medication to persons subject to a deportation order must always be carried out on the basis of a medical decision taken in respect of each particular case. It means that, save for clearly and strictly defined exceptional circumstances, medication should only be administered with the informed consent of the person concerned. However, the Committee has noted in certain countries that some instructions prohibited the administration, against the will of the person concerned, of tranquillisers or other medication designed to bring him or her under control.

The right to be informed of prospective deportation

An important aspect concerns the measures applied before deportation procedures to help the immigration detainees organise their return, particularly on the family, work, etc. It is essential that immigration detainees be informed sufficiently far in advance of their prospective deportation, so that they can begin to come to terms with the situation psychologically and are able to inform the people they need to let know and to retrieve their personal belongings. The CPT has observed that a constant threat of forcible deportation hanging over detainees who have received no prior information about the date of their deportation can bring about a condition of anxiety that comes to a head during deportation and may often turn into a violent agitated state.

For this reason in some of the countries visited by CPT there was introduced a psycho-social service attached to the units responsible for deportation operations, staffed by psychologists and social workers who were responsible, in particular, for preparing immigration detainees for their deportation, through ongoing dialogue, contacts with the family in the country of destination, etc.

The quality of escort staff: a precondition for reducing the risk of ill-treatment

Particular attention is paid to the training of the escort personnel.

The Committee stresses that the escort staff must be selected with care and receive appropriate, specific training. In some countries, special training had been organised relating to methods and means of restraint, stress and conflict management, etc.

Moreover, certain management strategies had had a beneficial effect: the assignment of escort duties to staff who volunteered, combined with compulsory rotation in order to avoid professional exhaustion syndrome and the risks related to routine, and ensure that the staff concerned maintained a certain emotional distance from the operational activities in which they were involved as well as provision, on request, of specialised psychological support for staff.

Internal and external  monitoring systems: a basic requirement

The CPT observed that in many countries, specific monitoring systems had, unfortunately, been introduced only after particularly serious incidents, such as the death of deportees.

For this reason, in order to  ascertain the existence of ill-treatment  each deportation operation must be carefully documented. It means that a comprehensive file and a deportation record should be kept for all operations carried out by the units concerned. Information on abortive deportation attempts should receive special attention and, in particular, the reasons for abandoning a deportation operation, a decision taken by the escort team on managerial orders, a refusal on the part of the captain of the aircraft, violent resistance on the part of the deportee, a request for asylum, etc. should be systematically recorded. The information recorded should cover every incident and every use of means of restraint as well as handcuffs, ankle cuffs, knee cuffs, use of self-defence techniques, carrying the deportee on board.

As to other methods, for instance audiovisual, may also be envisaged, and are used in some of the countries visited, in particular for deportations expected to be problematic.

In addition, surveillance cameras could be installed in various areas, for instance, corridors providing access to cells, route taken by the escort and the deportee to the vehicle used for transfer to the aircraft. It is also beneficial if each deportation operation where difficulties are foreseeable is monitored by a manager from the competent unit, able to interrupt the operation at any time.

In some of the countries visited, the CPT found that there were spot checks, both during preparations for deportation and during boarding, by members of internal police supervisory bodies. What is more, in an admittedly limited number of cases, members of the supervisory bodies boarded aircraft incognito and monitored the deportee and the escort until arrival at the destination. The CPT can only welcome these initiatives, which are all too rare at present in Europe.

Further, the CPT wishes to stress the role to be played by external supervisory including judicial authorities, whether national or international, in the prevention of ill-treatment during deportation operations. These authorities should keep a close watch on all developments in this respect, with particular regard to the use of force and means of restraint and the protection of the fundamental rights of persons deported by air.