A/HRC/20/24
imprisonment shall be informed at the time of arrest in a language they understand of their
rights and how to avail themselves of those rights. The Body of Principles furthermore
provides that all detained persons have the right to assistance, free of charge if necessary, of
an interpreter and a legal counsel and a prompt medical examination. They also have the
right to communicate with the outside world, in particular with family and counsel.
18.
Article 9, paragraph 4, of the International Covenant on Civil and Political Rights
provides that anyone who is deprived of his/her liberty by arrest or detention shall be
entitled to take proceedings before a court, in order that the court may decide without delay
on the lawfulness of his/her detention and order his/her release if the detention is not
lawful. The Human Rights Committee in its general comment No. 8 stated that this
provision is applicable to all deprivations of liberty, including immigration control. Article
16, paragraph 8, of the International Convention on the Protection of the Rights of All
Migrant Workers and Members of Their Families provides the same guarantees for migrant
workers and members of their families who are deprived of their liberty, and also provides
the right to have the assistance, if necessary without cost to them, of an interpreter, if they
cannot understand or speak the language used. Such guarantees are important in first
instance, but also at the appeal level.
19.
At the regional level, the right to take proceedings before a court in order to decide
on the lawfulness of detention is provided by article 7 of the African Charter on Human and
Peoples‟ Rights, article 7 of the American Convention on Human Rights, article 14 of the
Arab Charter on Human Rights and article 5, paragraph 4, of the European Convention on
Human Rights. The Special Rapporteur has been made aware of several instances where
that right has been restricted, inter alia through long delays between the beginning of
detention and the date of the first review procedure.
20.
Migrants who have been detained have the right to communicate with the authorities
of their home country, through consular or diplomatic authorities. Article 16, paragraph 7,
of the International Convention on the Protection of the Rights of All Migrant Workers and
Members of Their Families provides that when a migrant worker or a member of his or her
family is detained, the consular or diplomatic authorities of his or her State of origin or of a
State representing the interests of that State shall, if he or she so requests, be informed
without delay of his or her arrest or detention and of the reasons therefor; and the person
concerned shall have the right to communicate with the said authorities. Article 36,
paragraph 1 (b), of the Vienna Convention on Consular Relations states that, if requested,
the competent authorities of the receiving State shall, without delay, inform the consular
post of the sending State if, within its consular district, a national of that State is detained.
However, migrants who are detained need to be made aware of their right to communicate
with consular or diplomatic authorities, in order to use it. The Body of Principles for the
Protection of All Persons under Any Form of Detention or Imprisonment provides that
when a foreigner is detained, he or she shall be promptly informed of his right to
communicate by appropriate means with a consular post or the diplomatic mission of the
State of which he is a national or otherwise entitled to receive such communication. The
Special Rapporteur would however like to stress that consular authorities should only be
contacted if this is requested by the detained migrant. In particular, asylum-seekers should
not be brought to the attention of their consular authorities without their knowledge and
consent.
5.
Duration of administrative detention of migrants
21.
The Special Rapporteur has received information indicating that long-term
administrative detention of migrants, sometimes over a year, is frequent. He wishes to
emphasize that the duration of administrative detention of a migrant should be as short as
possible, and the decision to keep the person detained must be reviewed periodically. The
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