detains a third-country national, it must do so in a humane and dignified manner, respecting the
detainee’s fundamental rights in compliance with international and national law43. Detention is
regulated by the State’s national legislation and must be carried out in a specialized facility.
Article 4(16) of the Directive states that if the State does not have a specialized detention facility
and is obliged to put detainees in a state prison it must keep such detainees separate from
ordinary prisoners.44 During detention, such detainees must be allowed to contact legal
representatives, relatives, and consular authorities. Further, subject to authorization, States must
allow relevant organizations to visit facilities to ensure that they satisfy the guidelines pursuant
to the Directive. Detainees must be provided with information on the rules regarding facilities
and explanation of their rights and obligations. During detention, particular attention should be
paid to vulnerable persons and the State must provide emergency health care and essential
treatment of illness.45
States should take account of the best interests of the child, the family life, the state of
health, and the principle of non-refoulement. A State may only keep a third-country national in
detention for the purposes of a successful removal process, especially when there is a risk of
absconding or the individual avoids or hampers the removal process46. Detention must be
ordered, in writing, by either administrative or judicial authorities and include a summary of the
facts and the applicable law. When detention is ordered, the State must provide a speedy judicial
review on its lawfulness or allow the detainee to initiate proceedings and inform him/her of the
possibility of such proceedings. If the detention is deemed unlawful, the detainee must be
43
Directive 2008/115/EC of 16 December 2008 on common standards and procedures in Member States for
returning illegally staying third-country nationals [2008] L 348/98, preamble, para. 17. [hereinafter, Directive
2008/115/EC]
44
Directive 2008/115/EC, art. 4, para. 16.
45
Directive 2008/115/EC, art. 14, para. 2(a).
46
Directive 2008/115/EC, art. 15, para. 1(b).
15
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