Contact us
Menu

Rights during
arrest, police custody and detention

Detention is an exceptional measure that may only be imposed under the strict conditions established by international law, and in full respect of the principles of legality, necessity, and proportionality. It may take various forms, including pre-trial detention, post-conviction detention, and immigration detention. International human rights law strictly prohibits arbitrary detention. Detention is considered arbitrary when it is not carried out in accordance with a legitimate purpose or the procedures prescribed by law, or when it is otherwise inappropriate, unjust, unreasonable, or unnecessary in the circumstances. Arbitrary detention has also been widely recognized as carrying a heightened risk of torture and other forms of ill-treatment. In the context of migration, OMCT’s research documented cases of arbitrary detention, the criminalization of people on the move in transit countries, and the use of immigration detention, including against children on the move and regardless of legal status.

International law

Detention is an exceptional measure that may only be imposed under the strict conditions established by international law, including full respect for the principles of legality, necessity, and proportionality. It may take various forms, including pre-trial detention, detention following conviction, and immigration detention. Pre-trial detention refers to the deprivation of liberty prior to a final judgment; detention following conviction refers to imprisonment imposed pursuant to a criminal sentence; and immigration detention refers to the deprivation of liberty of a person while awaiting decisions on their right to enter, stay, or reside in a country. Immigration detention of children is never in the best interests of the child and constitutes a violation of international human rights law.

International human rights law strictly prohibits arbitrary detention. Detention is considered arbitrary when it is not carried out in accordance with a legitimate purpose or the procedures prescribed by law, or when it is otherwise inappropriate, unjust, unreasonable, or unnecessary in the circumstances. Any decision to detain must be based on a detailed and individualized assessment. In addition, any use of detention must be accompanied by robust procedural safeguards. These include the right to be promptly informed, in a language the person understands, of the reasons for detention; access to confidential legal assistance; the possibility to notify family members; the ability to communicate with consular authorities; and the right to seek international protection.

However, OMCT’s research has documented cases of arbitrary arrest and detention carried out without respect for procedural safeguards. In the migration context, in Tunisia and Libya, people on the move are criminalized for irregular entry or stay, leading to pre-trial detention or other forms of detention, often in conditions that may amount to inhuman or degrading treatment. OMCT’s research has also documented the use of immigration detention in administrative facilities prior to return to countries of origin, including against children on the move, regardless of legal status or age.

OMCT calls on States to end the criminalization and detention of individuals on the basis of their migration status and to develop and implement effective, rights-based alternatives to detention. In the rare cases where detention cannot be avoided, conditions must fully comply with international human rights standards and ensure the dignity and well-being of those concerned. Children should never be criminalized or subjected to punitive measures, including detention, on the basis of their own or their parents’ migration status.

Case Studies

Tunisia
In Tunisia, people on the move – continue to face arbitrary arrest and detention due to their irregular entry and/or stay on Tunisian territory. OMCT’s research and documentation work highlights serious concerns regarding the lack of respect for procedural guarantees during arrest, police custody, and detention. Conditions of detention are reported to be critical, characterized by overcrowding, limited access to health care, and exposure to physical violence, discrimination, and degrading treatment. People on the move are often held without adequate safeguards, including access to legal assistance or proper identification of vulnerabilities. OMCT’s research also confirms that people on the move, including children, are detained in El Ouardia administrative detention facility prior to their return to countries of origin, without adequate procedural safeguards.
Libya
In Libya, people on the move are routinely subjected to arbitrary and prolonged detention in both official and unofficial facilities operated by state authorities and armed groups. Libyan legislation—particularly Law No. 19 of 2010 on Combating Irregular Migration and Law No. 6 of 1987 (as amended)—criminalizes irregular entry, stay, and exit. In practice, individuals are frequently detained and prosecuted for offences such as unlawful entry or residence, lack of valid documentation, or violations of residency rules. These measures are often applied without adequate due process safeguards and without distinguishing between migrants, asylum seekers, and victims of trafficking. Conditions in detention are consistently described as inhumane. Facilities are marked by severe overcrowding and limited access to food, drinking water, sanitation, and medical care, alongside a widespread absence of legal safeguards or procedural protections. Testimonies collected by human rights organizations, including the OMCT, further document systematic patterns of abuse, including physical violence, psychological abuse, extortion, forced labour, and degrading treatment. These abuses affect women, men, and children alike.
Human
stories
Ibrahim is a 13-year-old boy from Sierra Leone. He entered Tunisia with his older brother in October 2024, settling in Sfax with other Sierra Leonean citizens. In December 2024, Ibrahim was stopped by security guards alongside several other men on the move who were present that morning. Between the beginning of December 2024 and the end of February 2025, Ibrahim’s family had no news of him. No trace of Ibrahim’s arrest was found in the rehabilitation centers or at the Sfax police district, until his release from prison after more than two months in detention in Sfax for illegal entry and residence, in an adult detention center.
Useful resources: