Alternative measures prevent serious consequences that detention may have on the physical and mental health of migrants and asylum seekers, and Montenegrin legislation needs to develop international standards in this area.
This was assessed at the press conference “Legal and practical aspects of effective alternatives to detention in the context of migration”, organized by the Center for Democracy and Human Rights (CEDEM), in cooperation with the Ombudsman, and in cooperation with the project “Effective alternatives to detention in the context of migration”. : exchange of experiences and applications “, implemented by the Council of Europe.
The project coordinator at CEDEM, Ognjen Markovic, pointed out that the use of alternatives to immigration detention is necessary in order to respect international human rights standards in certain cases, including, as he stated, the relevant jurisprudence of the European Court of Human Rights.
“Alternatives can prevent serious consequences, which detention can have on the physical and mental health of migrants and asylum seekers, especially those who belong to one of the vulnerable categories,” Markovic said.
According to him, one of the biggest challenges in the field of migration in the context of the growing influx of migrants and illegal crossing of border crossings and illegal stay on the territory of one state, is ensuring respect for the dignity of each individual and his personal freedom and security.
“It is prescribed by Article 5 of the European Convention on Human Rights and Fundamental Freedoms, with careful examination of all circumstances during the restriction of that freedom, detention and detention,” Markovic explained.
He said that international standards in the field of respect for the rights of foreigners in Montenegro, in the context of restricting freedom of movement and introducing alternative measures to detention, have been incorporated into national legislation, emphasizing that they are not sufficiently developed, “especially alternative measures prescribed by international legal instruments “.
Namely, although alternative measures are, for the first time, defined in the new Law on Foreigners, which is an extremely large step compared to the previous one, and which meet the standards of European legal regulations, we cannot say that the legal framework is fully harmonized with international standards, when it comes to prescribing other alternative measures that are not legalized in the Montenegrin legal system, “said Markovic.
The Protector of Human Rights and Freedoms of Montenegro, Šućko Baković, assessed that Montenegro has largely harmonized the legislation in that area with international standards, reminding that it has passed the Law on International and Temporary Protection of Foreigners and amended the Law on Foreigners.
“According to available information, an average of 120 to 130 migrants spend the night in Montenegro. “Expressed migrations and displacements represent a great challenge for the states, as well as for Montenegro and its institutions, and especially from the aspect of respecting the human rights of migrants,” Baković pointed out.
According to him, that is why everyone is obliged to take steps in accordance with the mandate, in order to enable them to overcome the process as easily as possible, “in accordance with the standards of accession in the protection of migrants, defined in numerous UN documents. Council of Europe and the European Union, which form part of international human rights law, international humanitarian and refugee law.
Baković pointed out that the Analysis of the Steering Committee for Human Rights points to the standards of the European Court of Human Rights and other bodies regarding immigration detention and deprivation of liberty and alternatives to detention.
On je ukazao da se u Analizi navodi da se alternativama preveniraju ozbiljne posljedice koje pritvor može imati na fizičko i psihičko zdravlje migranata i tražioca azila.
“It is justifiably emphasized that the detention of vulnerable people, especially children, is especially problematic in terms of respect for rights and welfare,” Bakovic said.
Lilja Gretarsdottir, Deputy Head of the Department of Independent Human Rights Bodies in the Directorate for Human Rights and the Rule of Law in the Council of Europe, presented the analysis “Legal and Practical Aspects of Effective Alternatives to Detention in the Context of Migration”. find that alternative measures are underused.
“They could be used much more, and that is because reading Europe is still learning how to implement alternatives and how to implement commitments for alternative approaches,” Gretarsdottir said.
According to her, some of the gaps consist in quality decision-making.
“The point is that this is not done on an individual basis, as it should be, when a person is placed in custody. It is not possible to accurately assess whether a person is vulnerable or not and to adjust the treatment accordingly. It is not enough to accurately assess whether people are being detained and why they are being detained, “Gretarsdottir explained.
She said that alternative measures should rely on the least restrictive measures “as much as possible and in order to be effective”.
“Alternatives are determined by law, and Montenegro has taken concrete steps in this direction, and should be subject to judicial review. “Alternative measures should ensure dignity and respect for fundamental rights,” Gretarsdottir said.
She pointed out that children are very vulnerable groups and that the recommendation is that the state must apply alternative measures, and not detention when it comes to that category.
Gretarsdottir indicated that detention would be avoided and there are a number of options, stating that in practice these are different measures applied jointly.
“There is not just one magic solution. Each case must be defined individually, which suits him. There is a great focus on the type of alternative and it would be ideal for the state to have a list of alternatives to rely on, but that list cannot be final, because it is necessary to work on a case-by-case basis with migrants and asylum seekers, assuming they are not criminals. is Gretarsdottir.
She believes that the focus should be not only on the implementation of the measure, but also on the way the measure is implemented.
Milica Vesović, project manager in the Department of Independent Human Rights Bodies in the Directorate for Human Rights and Rule of Law in the Council of Europe, said that the project is multilateral and covers 47 member states of the Council of Europe.
“Montenegro was chosen as a very positive area, given that there is a Law on Foreigners that meets the standards of the Standing Committee on Human Rights, which made the analysis. “We started in the Balkan part of Montenegro with the idea of expanding to other member states – Macedonia, Bosnia and Herzegovina, Serbia, given that migrants who are in transit pass here,” said Vesovic.
She said that the goal of the project is to make the standards available and to raise the capacities and knowledge that exists on that topic, both to the general public and the structure from the state administration.
Independent expert of the Council of Europe, Mario Nenadić, reminded that the countries of the region have formed centers for foreigners, passed laws on foreigners, asylum, bylaws, have free legal aid, assessing that now it is a matter of individualization of each case.
“Each individual detention needs to be approached individually, to assess all conditions and circumstances, to see if it is an individual or a family, always keep in mind Article 5 of the European Convention on Human Rights. Therefore, detention must have alternatives, which must be prescribed by law and individualized, “Nenadic pointed out.
The Deputy Protector of Human Rights and Freedoms, Zdenka Perović, believes that Montenegro has experience with alternative measures, “although we have not summarized or systematized this knowledge in order to present it as such.”
“We are very familiar with family accommodation. Our institutions have a lot of experience with field work, with specific cases. “We should systematize knowledge and experience, in order to extract positive sides and gaps from them,” said Perović.