63
social re-adaptation of the prisoners.”235 In cases of migrants, detention and
imprisonment of persons solely for their irregular status should only be used as
necessary and proportionately in the concrete case, only admissible for the shortest
possible period of time and according to the legal purposes mentioned (supra paras.
169 and 171). In effect, by the time Mr. Vélez Loor was imprisoned, several
international organizations had ruled on the necessary separation of those persons
who are imprisoned for a violation of immigration laws from those persons who are
accused or convicted of criminal crimes.236 Therefore, the Tribunal considers that
States must provide public establishments specifically designed for that purpose,237
and if the State does not have such establishments, it must provide premises other
than those intended for persons imprisoned under criminal law.238
209. Even though deprivation of liberty often entails, as an inevitable consequence,
the breach of other human rights apart from the right to personal liberty, in case of
deprivation of liberty of persons for immigration purposes, they should be
accommodated in centers specifically designed for that purpose, “offering material
conditions and a regime appropriate to their legal situation and staffed by suitablyqualified personnel,”239 avoiding, as far as possible, the disintegration of the family
235
Article 5(6) of the American Convention establishes that: [pu]nishments consisting of deprivation
of liberty shall have as an essential aim the reform and social readaptation of the prisoners.
236
The European Court on Human Rights, in a decision of the year 2000, indicated that “it is
undesirable for prisoners awaiting deportation to be held in the same location as convicted prisoners.” Eur.
Court HR, Ha You ZHU v. United Kingdom (Application no. 36790/97) Admissibility of 12 September 2000,
folio 6. Likewise, the Rapporteurship on Migrant Workers and Their Families in the Hemisphere, in the year
2001, considered that undocumented migrants deprived of liberty for the sole fact of being undocumented
should be held “in detention centers and not in regular prisons.” Organization of American States, Annual
Report of the Inter-American Commission on Human Rights, 2000. Second Progress Report of the
Rapporteurship on Migrant Workers and Their Families, Chapter VI Special Studies, April 16, 2001,
OEA/Ser./L/V/II.111, doc. 20 rev. para. 110, Likewise, the Working Group on Arbitrary Detention, in the
year 2003, made the following recommendation "the current practice of detaining foreigners for reasons
related to immigration together with individuals charged with ordinary offences should be halted.” United
Nations, Working Group on Arbitrary Detention, Group Report, Civil and political rights, in particular the
issues related to torture and detention, E/CN.4/2004/3/Add.3, December 23, 2003, Recommendation 75.
237
The International Convention on the Protection of the Rights of all Migrant Workers and Members
of their Families, of December 18, 1990, in its article 17(3) provides that: "[a]ny migrant worker or
member of his or her family who is detained in a State of transit or in a State of employment for violation
of provisions relating to migration shall be held, in so far as practicable, separately from convicted persons
or persons detained pending trial.” International Convention on the Protection of the Rights of All Migrant
Workers and Members of Their Families. Adopted by General Assembly resolution 45/158 of 18 December
1990. Likewise, the European Committee for the Prevention of Torture and Inhuman or Degrading
Treatment or Punishment, in the year 2002, took the view that “in those cases where it is deemed
necessary to deprive persons of their liberty for an extended period under aliens legislation, they should be
accommodated in centers specifically designed for that purpose, that offer material conditions and an
appropriate system for their legal status, and whose staff is appropriately qualified. European Committee
for the Prevention of Torture and Inhumane or Degrading Treatment or Punishment (CPT), CPT Standards,
Sections of General Reports CPT Merits issues, CPT/Inf/E (2002) 1 - Rev. 2004, Chapter IV. Foreign
nationals detained under immigration legislation, extract of the 7th General Report [CPT/Inf (97) 10], para.
29.
238
Cf. In 2002, the United Nations Rapporteurship on Migrant Workers and their Families
recommended States to take measures “[e]nsuring that migrants under administrative detention are placed
in a public establishment specifically intended for that purpose or, when this is not possible, in premises
other than those intended for persons imprisoned under criminal law.” United Nations, “Specific Groups and
Individuals: Migrant Workers,” Report of the Special Rapporteur, Ms. Gabriela Rodriguez Pizarro, submitted
pursuant Order 2002/62 of the Commission on Human Rights, E/CN.4/2003/85, December 30, 2002, para.
75. i).
239
European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or
Punishment (CPT), CPT Standards, Sections of General Reports CPT Merits issues, CPT/Inf/E (2002) 1 Rev. 2004, Chapter IV. Foreign nationals detained under immigration legislation, extract of the 7th General
Report [CPT/Inf (97) 10], para. 29. In the same line, the Organization of American States, Annual Report of
the Inter-American Commission on Human Rights, 2000. Second Progress Report of the Rapporteurship on
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