Guest post by Magdalena Kmak and Aleksi Seilonen. Magdalena is a Lecturer in International Law at the University of Helsinki and Aleksi is currently preparing his Master of Laws thesis, ‘Criminality-based Immigration Detention in Finland in Light of International Human Rights Standards,’ at the University of Helsinki.
The Finnish Parliament is currently debating new legislation transposing the Recast Reception Directive, including new rules on detention, into the Finnish law. This presents a good moment to reflect on detention practice so far. In this post, we share the main findings of our recently published study focusing on the practical application of the law on detention by the District Court of Helsinki.
The findings of the study highlight a number of issues which are problematic in light of national and international legal standards. These include: the proportionality assessment in detention decisions; the interpretation and application of the grounds of detention; matters concerning the conditions of dentition; and certain aspects of the right to fair and effective judicial proceedings. Here, we focus on the two most prominent findings of the study, namely the problem of fair judicial control of detention, and in particular the lack of proper reasoning, and detention in police prisons. We reflect on these findings in relation to the legal amendments currently discussed in the Finnish Parliament.
One of the most important findings of our study is the scope of the use of police prisons for the purpose of immigration detention. This practice has been justified mostly by capacity problems of, at the time, the only detention centre in Finland, but also by security reasons. The use of police prisons has, for years, been one of the most problematic aspects of the Finnish system, and difficult to reconcile with human rights and EU legislation. The practice has also been subjected to both national and international criticism. In particular, the European Commission for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), in one of its reports on Finland, considered the conditions in Pasila police prison in Helsinki as appropriate for stays no longer than 96 hours. However, our study confirmed that practically all detentions began in jail, lasting anything from days to weeks before a transfer to the detention unit. This unjustified burden went remarkably unrecognised by the court. Considering that there’s no systematic health inspection or screening for vulnerable cases in place, and also that medical evidence of detainees’ conditions is unappreciated by the court, the treatment exhibits clear disrespect of detainees’ various circumstances. Only in one extreme case of detention due to security considerations did the court decide to release the detainee after four months spent in police prison in Pasila. The situation changed recently when the government opened a new detention centre in Eastern Finland, which at least temporarily resolved the capacity problem. However, a provision allowing for the detention of migrants in police prisons due to capacity or security reasons remains in the draft law currently debated in Parliament, making such practices likely to continue in the future.
The second important finding of our study refers to the practice of the District Court of Helsinki, which is clearly failing in its obligation to give adequate considerations and reasons for decisions in immigration detention cases. The study identifies a consistent practice of the court referring to the reasons found in the police or border guard’s application for the endorsement of detention. Even though this method could, in principle, be accepted as a form of reasoning, it doesn’t free the court from its obligation to address the essential issues submitted to its jurisdiction for consideration. In particular, this practice becomes problematic in cases where the reasons provided by the detaining authorities don’t meet the standards expected from the court, such as clarity or appropriately structured legal argumentation.
Such poor quality, or the complete absence, of reasoning by the court, together with the low number of releases (about 1% of all cases), strongly suggests that the judicial review of detentions constitutes a mere formality. This is clearly problematic in situations where the law in force provides only very minimal grounds for detention, which would clearly require clarification and limitation by the court. The noted lack of judicial reasoning also makes the lawfulness of detention questionable, as recognised inter alia by the European Court of Human Rights in Lokpo and Touré v Hungary.
The new law currently debated in Parliament will arguably require the court to pay more attention to its reasoning. First, the court will need to engage in the consideration and application of new grounds for detention introduced by the law. Secondly, in case of the detention of children, the court will be required to consider the written statement of a social worker concerning the best interests of the child. Finally, if a child with a parent is being detained for more than two weeks, the court is required to reconsider continuation of detention, allow a social worker to provide an opinion, and release the minor unless special reasons exist to support further detention. It remains to be seen whether these provisions, if adopted, will improve the quality of the court’s reasoning.
How to cite this blog post (Harvard style):
Kmak, M. and Seilonen, A. (2015) Administrative Detention of Migrants in the District Court of Helsinki. Available at: http://bordercriminologies.law.ox.ac.uk/administrative-detention-helsinki/ (Accessed [date]).