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United Nations
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A/HRC/27/48/Add.2
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General
Assembly
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Distr.: General
Original: English
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Human Rights Council
Twenty-seventh session
Agenda item 3
Promotion and protection of all human rights, civil,
political, economic, social and cultural rights,
including the right to development
Twenty-seventh session
Agenda item 3
Promotion and protection of all human rights, civil,
political, economic, social and cultural rights,
including the right to development
Report
of the Working Group on Arbitrary Detention
Addendum
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Summary
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The
Working Group on Arbitrary Detention undertook a visit to
21 to |
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In
the present report, the Working Group commends the Government of Greece for a
number of positive initiatives, particularly legislative reforms, to improve
the situation of deprivation of liberty. It found positive developments in,
inter alia, the area of migration and asylum. The Working Group also notes
the work carried out by the police and the Hellenic Coast Guard in combating
trafficking in human beings.
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During
its visit, the Working Group found that the legislative developments were not
always followed by effective implementation in practice.
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With
regard to criminal justice, there is a constitutional provision that establishes
that pretrial detention may not exceed a period of one year in the case of
felonies and six months in the case of misdemeanours. The Working Group,
however, observed the relatively long periods spent by the accused in
pretrial detention, sometimes several years. This is one of the main reasons
for the serious overcrowding in Greek prisons, which has intensified and is now
a chronic problem.
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 The border shared with |
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The
Working Group noted with concern the policy of the Government of Greece of
systematically detaining all irregular migrants detected entering Greek territory,
including families and unaccompanied minors. It highlights the excessive
duration of detention of both irregular migrants and asylum seekers for up to
18 months if the person refuses to cooperate or if there are delays in
obtaining the necessary documentation. In many instances, refusal to
cooperate or the delays in obtaining necessary documentation could not be
attributed to the migrant in question but rather to the consular authorities,
or to legal or practical obstacles.
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The
Working Group points out that the non-application of alternatives to
detention, lack of effective judicial review, and the excessive length of
detention may render the detention of an individual arbitrary.
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In
most detention facilities visited by the Working Group, conditions were well
below international human rights standards, including in terms of severe
overcrowding. In detention centres for asylum seekers, the conditions are
often appalling and unhygienic, and facilities were in a poor state of
repair.
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During
its visit, the Working Group also learned about numerous round-up operations
where the police would detain foreigners and members of the Roma community
who are Greek citizens and release them soon after without charge. In this
regard, the Working Group recalls that any detention on discriminatory
grounds constitutes arbitrary detention, and furthermore, that detention
without any legal basis also renders the detention arbitrary.
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Annex
[English only]
Report
of the Working Group on Arbitrary Detention on its visit to Greece
Contents
Paragraphs Page
I. Introduction............................................................................................................................................. 1
– 3 4
II. Programme of the visit............................................................................................................................ 4
– 9 4
III. Institutional and legal frameworks.................................................................................................... 10
– 41 5
A. Political, administrative and judicial
structure....................................................................... 10
– 16 5
B. International human rights obligations.................................................................................. 17
– 20 5
C. National legislation.................................................................................................................... 21
– 22 6
D. Judicial guarantees.................................................................................................................... 23
– 27 6
E. Deprivation of liberty of mentally ill
persons........................................................................ 28
– 30 7
F. General background on migration........................................................................................... 31
– 41 7
IV. Findings ............. 42 – 108 9
A. Positive aspects......................................................................................................... ............... 42 – 45 9
B. Criminal justice........................................................................................................................... 46
– 60 9
C. Detention of migrants in an irregular
situation...................................................................... 61
– 80 10
D. Detention conditions................................................................................................................. 81
– 92 14
E. Procedural safeguards............................................................................................................. 93
– 102 15
F. Alternatives to detention................................................................................................................ 103 17
G. Unaccompanied minors......................................................................................................... 104
– 107 17
H. Conscientious objection........................................................................................... ..................... 108 17
V. Conclusions..................................................................................................................................... 109
– 117 18
VI. Recommendations........................................................................................................................... 118
– 134 19
I. Introduction
1.
The Working Group
on Arbitrary Detention conducted an official visit to Greece 31
January 2013 , following an invitation received
from the Government. The delegation was composed of Mads Andenas (Norway
Vladimir Tochilovsky (Ukraine
Vladimir Tochilovsky (
2.
The Working Group
thanks the Government of Greece for its invitation to the Working Group and for
its full cooperation throughout the visit. It also thanks the Office of the United
Nations High Commissioner for Refugees (UNHCR) and the representatives of Greek
civil society for their support during the visit.
3.
Throughout the
visit and in all respects, the Working Group enjoyed the fullest cooperation of
the Government and all authorities contacted, which provided the delegation
with all the information required and arranged all the meetings it requested.
4.
The Working Group
held various meetings with representatives of the State, and expresses its
appreciation for the valuable information they provided. It met with senior
authorities from the executive, legislative and judicial branches of the State,
including the Minister for Public Order and Citizens’ Protection, the Alternate
Minister of the Interior, the Deputy Minister for National Defence, the
Secretary-General for Anti-Crime Policy of the Ministry of Justice,
Transparency and Human Rights, the Director of the First Reception Service, the
Chief of the Hellenic Coast Guard of the Ministry of Shipping, Maritime Affairs
and the Aegean; the Head of the Legal Department of the Ministry of Foreign
Affairs, the Head of the Department on Protection of Refugees and Asylum of the
Ministry of Labour, Social Security and Welfare, and senior officials of
various ministries and local authorities on the Aegean island of Samos, in
Orestiada and in Thessaloniki.
5.
The Working Group
also met with Members of Parliament, the Ombudsman, representatives of the
National Commission for Human Rights, and representatives of bar associations,
international organizations and Greek civil society.
6.
With regard to
the judiciary, the Working Group met with a Magistrate of the Supreme Court of
Civil and Penal Law (Areios Paghos), the Vice-Public Prosecutor of the Supreme
Court of Civil and Penal Law, the President of the High Court of Athens, the
Head of the Public Prosecutors Office of the High Court of Athens, the
Vice-Public Prosecutor of the Court of Appeals of Athens and with first
instance judges and prosecutors.
7.
The Working Group
visited a number of places where persons are deprived of their liberty. It
visited the Korydallos Prison, including its psychiatric ward, in Athens Thessaloniki Athens island of Samos Turkey
8.
The Working Group
points out that it was allowed to visit all places of detention that it had
requested.
9.
The Working Group
also met with representatives of United Nations agencies. The visit concluded
with a debriefing with the Government on the preliminary observations of the
Working Group, and a press conference.
III. Institutional and legal
frameworks
A. Political,
administrative and judicial structure
10.
Greece
11.
The country has a
solid judiciary, composed of independent magistrates and judges. The
Constitution guarantees the independence of judges and prosecutors. The
judicial system consists of three levels of criminal courts - first instance
judges (divided into misdemeanour and felony divisions), appeals courts and the
Supreme Court of Justice – as well as three levels of civil courts - first
instance judges, appeals courts and the Supreme Court of Justice - and an
examining magistrate system.
12.
There is a
military jurisdiction, not only for military offences, but for any offence against
the Penal Code, the Military Penal Code or any special penal legislation committed
by a member of the armed forces (army, navy or air force), including the coast guard.
It is composed of military judges and military prosecutors. Defence lawyers are
civilians. Sentences issued by military courts are served in civilian prisons.
13.
The Ministry of Justice, Transparency and
Human Rights is responsible for the correctional system. All police forces are
under the authority of the Ministry of Public Order and Citizens’ Protection
and the Ministry of Justice are also responsible for the protection of
migrants.
14.
The Greek Ombudsman
and the National Commission for Human Rights are mandated to protect and
promote human rights. There are five deputy ombudsmen at the Ombudsman’s office:
one for human rights; one for children’s rights; one for health care and social
welfare; one for State-citizen relations; and one for quality of life issues.
15.
The National
Commission for Human Rights, created in 1998, is an independent advisory body
directly subject to the Prime Minister, operating in accordance with the Paris
Principles. It has “A” status accreditation with the International Coordinating
Committee of National Human Rights Institutions. The Commission is composed of representatives
of labour unions, political parties civil society organizations and of six ministries.
Committee members are requested to, inter alia, submit comments on bills.
16.
The Prison
Inspectorate is a semi-autonomous body headed by a judge that inspects prisons
and makes recommendations.
B. International
human rights obligations
17.
According to article
28, paragraph 1 of the Constitution, international treaties ratified by Greece
18.
With regard to
the protection of human rights, Greece
19.
Greece
20.
Greece has
adhered to the Convention on the Prevention and Punishment of the Crime of
Genocide, the Convention relating to the Status of Refugees and the Protocol
thereto, the Convention relating to the Status of Stateless Persons, the Geneva
Conventions and the Protocols additional thereto, the fundamental conventions
of the International Labour Organization, the Rome Statute of the International
Criminal Court and the Protocol to Prevent, Suppress and Punish Trafficking in
Persons, Especially Women and Children, supplementing the United Nations
Convention against Transnational Organized Crime.
C. National
legislation
21.
The Constitution
guarantees respect for and protection of the value of the human being (art. 2);
full protection of life, honour and liberty, irrespective of nationality, race
or language, religious or political beliefs for all persons living within Greek
territory (art. 5, para. 2); and the inviolability of personal liberty (art. 5,
para. 3). Furthermore, the Constitution provides for freedom of opinion,
expression, speech and the press.
22.
The Constitution
prohibits torture, any bodily maltreatment, impairment of health or the use of
psychological violence, and any other offence against human dignity, which is
punishable as provided by law (art. 7, para. 2). Every person is entitled to
receive legal protection by the courts and may plead before them his or her views
concerning personal rights or interests, as specified by law (art. 20, para. 1).
The right of a person to a prior hearing also applies in any administrative
action or measure adopted at the expense of the person’s rights or interests
(art. 20, para. 2).
D. Judicial guarantees
23.
The Constitution
prohibits arbitrary arrest and detention: no person may be arrested or
imprisoned without a reasoned judicial warrant, which must be served at the
moment of arrest or detention pending trial, except when caught in the act of
committing a crime (art. 6, para. 1). The Constitution also guarantees respect
for the right to a fair trial.
24.
Trials are public, although judges may order
restrictions on press coverage. Defendants have the right to counsel. Strict
rules of evidence apply in court, and witnesses are subject to cross examination.
Bail is sometimes available for those who have committed minor offences,
including minor drug offences. Depending on the seriousness of the offence, a
detainee may be held in remand for up to one year. Detainees are not allowed to
make or receive telephone calls, but may write and receive letters. They are
allowed one visit a week, and have unlimited access to their defence lawyer.
25.
Defendants enjoy
the presumption of innocence and may appeal a court decision to a higher court.
Juries are generally used in felony cases, although the law allows for the denial
of the right to a jury in cases of violent terrorism. Defendants may present
witnesses and evidence on their behalf, and question witnesses testifying against
them. They have access to evidence relevant to their cases held by the authorities
.
26.
According to
article 87 of the Penal Code and article 371.4 of the Criminal Procedural Code,
the term of pretrial detention and the time between the arrest and the order of
pretrial detention is deducted from the sentence.
27.
Persons who have
been detained on remand and subsequently acquitted are entitled to request
compensation if it has been established in the proceedings that they did not
commit the criminal offence for which they were detained (Criminal Procedure
Code, art. 533.2).
E. Deprivation
of liberty of mentally ill persons
28.
A specific and
complete legislative framework is in force that allows for involuntary
placements in psychiatric institutions (law 2071/1992, arts. 96 to 99). A
programme on mental health reform, initiated in 1994, had the main outcome of abolishing
most psychiatric institutions. Most chronic patients now live in small
residences across the country. Psychiatric units are integrated into general
hospitals.
29.
The number of involuntary placement in
psychiatric institutions has, however, dramatically increased in recent years,
mainly as a consequence of the economic and financial crisis.
30.
Patients may only be interned in psychiatric
institutions by order of a judge. Judges must support their decision on the
basis of an analysis conducted jointly by an external psychiatrist and a
medical doctor from the psychiatric institution. According to law, the
detention is to be reviewed every two years, although this rarely occurs in
practice. The patient may only leave the institution when a release order has
been issued by a judge. Patients whose treatment has been completed receive
follow-up attention from their doctors.
F. General
background on migration
31.
Greece Turkey Europe , in large part due to
its geographical location, at the south-east border of the European Union, and
its proximity with countries that are, or have been, experiencing serious
conflict. It is estimated that up to 90 per cent of undocumented migrants from Asia and Africa enter the European Union
via Greece Turkey Prefecture of Evros
32.
Since the visit of the Working Group to Greece 1
January 2014 . The regulation maintains the main
criteria for defining the Member State
33.
From 1 August to 31 December 2012 , 3,280 immigrants and 38 traffickers were detained at the eastern sea
borders. Some 1,528 were from Afghanistan Syrian Arab Republic
34.
Persons detained
for illegal entry into Greek territory are subjected to screening by the police
force, with the support of the European agency Frontex, in order to establish
their identity and country of origin, and to take photographs and fingerprints.
They are subjected to a medical examination and, according to the laws of the
European Union and of Greece
35.
Law No. 3386/2005
governs migration, regulating the entry, residence and social integration of
third-country nationals in Greece
36.
With regard to
the situation of migrants in Greece
37.
At the time of
the visit by the Working Group, no fair and effective asylum determination
procedures system was in place. Since the visit, however, the asylum system has
undergone many changes. A new asylum service and an appeals authority were
established under Law No. 3907/2011, which came into force on 26 January 2011 . The Law provides for the establishment of a first reception service
and the adaptation of national legislation to European Union Directive
2008/115/EC on the return of irregular migrants. The Government reported that
the new asylum service, the appeals authority and the first reception service
are now fully operational. The n asylum service, which commenced its activities
on 7 June 2013 , is the first autonomous facility in Greece Athens
38.
The Working Group
was informed that, at the Attika Police Directorate in Athens
39.
During the summer
of 2012, Greece Turkey Athens Greece
40.
According to the
Government, the above-mentioned police operations had had a positive impact on
the protection of the human rights of those irregularly entering and residing
in Greece, since they allowed the police and other relevant services to
evaluate and handle more effectively the needs of immigrants in an irregular
situation, and to offer them shelter in places with decent conditions while their
cases were being examined.
41.
Although the
Government considers that the exact number of those who reside illegally in Greece Greece Greece Dublin
IV. Findings
A. Positive
aspects
42.
The Working Group
commends the Government of Greece for the positive efforts it has made,
particularly through legislative reforms, to improve the situation of
deprivation of liberty in Greece
43.
In 2011, a new first reception service was
established as an autonomous body reporting to the Ministry of Public Order and
Citizens’ Protection. Its main task is to establish first reception centres at
the borders according to international standards. When undocumented migrants
arrive in the country, the service prepares a needs assessment; migrants are identified,
and their origin and nationality determined. All persons are arriving are
sorted into a pre-established category; asylum seekers are identified then
registered. New arrivals will be informed on their lodgings, and their rights
and duties. Undocumented migrants stay at the first reception centres solely for
a short period only (a maximum of 15 days, with the possible extension of 10
days).
44.
The Working Group
also notes the work carried out by the police and the Hellenic Coast Guard in combating
trafficking in human beings.
45.
Despite these
positive achievements, the Working Group notes a number of issues that are of
particular concern and draw the Government’s attention to them. In the course
of its visit, the Working Group found that legislative developments are not
always followed up by effective implementation in practice.
B. Criminal
justice
46.
The Constitution
requires a judicial warrant for an arrest, except when it is made during the
commission of a crime (in flagrante
delicto). This provision is usually respected. The law also prohibits
arbitrary arrest orders.
47.
The police are
responsible for law enforcement and maintaining order. They are required to
bring detainees before an examining magistrate within 24 hours. The magistrate
has a maximum of 72 hours to issue a detention warrant or to order the
detainee’s release, unless special circumstances justify a two-day extension of
the time limit.
48.
Article 18 of the Penal Code divides offences
into felonies, misdemeanours and petty offences. In general terms, felonies are
punished with penitentiary sentences, misdemeanours with correctional
punishment and petty offences by fines or pecuniary penalties.
49.
Offences are
prosecuted exclusively by the public prosecutor. In the case of a felony, the
public prosecutor orders an investigation, which is carried out by an investigating
judge. In the case of a misdemeanour, the public prosecutor orders a
preliminary summary investigation, carried out by an investigating official. A
direct call to appear before the court is provided for petty offences.
50.
Article 6,
paragraph 4 of the Constitution establishes that pretrial detention may not exceed
a period of one year in the case of felonies and six months in the case of
misdemeanours. In exceptional cases, the maximum duration may be extended by
six (if the sanction is 20 years of imprisonment or more) or three months,
respectively. The article also provides that exceeding the maximum duration of
detention pending trial by successive application of this measure for separate
acts referring to the same case is prohibited.
51.
A panel of judges
may release detainees pending trial, either with or without bail. The Working
Group observed, however, relatively long periods spent by the accused in
pretrial detention, sometimes as much as several years, despite the above-mentioned
constitutional provision. Courts are reportedly overburdened and understaffed.
Many judges call work stoppages to protest against salary and pension cuts, which
further increases the backlog. Lawyers complained before the Working Group that
judges make excessive use of pretrial detention, which is often too long. The
Working Group found that pretrial detainees made up 31 per cent of those
incarcerated. With regard to the police, a report issued in 2010 by the
Internal Affairs Unit noted an increase in corruption cases.
52.
According to the
practice of the Working Group, the non-application of alternatives to
detention, lack of effective judicial review, and the excessive length of
detention may render the detention of an individual arbitrary. The Working
Group was informed that, although alternative sentencing for non-violent
offenders was available, courts did not use their prerogative.
53.
Defendants have
the right to legal counsel. In felony cases, the bar association is to provide defendants
with a lawyer if they prove that they cannot afford legal counsel. Defendants
brought to court on the day following the alleged commission of a misdemeanour
may be tried immediately under an expedited procedure. Legal safeguards,
including representation by legal counsel, apply in such procedures; however,
the Working Group received allegations that such procedures may undermine the
basic rights of defendants owing to the brevity and rapidity of the trial. The
Working Group received information that the short time available limits the
ability of defendants to present an adequate defence. Government-held evidence
is not made available consistently. In addition, the law imposes excessive
restrictions on appeals.
54.
According to the
provisions of the national legislation, the presence of a lawyer is required by
law at every stage of a penal procedure. The Working Group, however, received
allegations that police agents often fail to inform detainees about their
rights to contact family members and to consult a lawyer of their choice.
Police officers often question suspects without giving them access to legal counsel.
55.
Free legal
defence is guaranteed for penal and civil cases, but not for administrative
ones. Lawyers complained that the fees were very low, sometimes not
compensating for their travel expenses, and that they were paid with
considerable delay.
56.
National law
provides for proper safeguards for persons charged with criminal offences at
the pretrial stage. Article 33 of Ministerial Decree No. 58819/7.4.2003
stipulates the procedures followed whenever a detainee cannot afford to
exercise her or his right to a defence. The Working Group, however, found
serious discrepancies between the legal requirements and the actual application
of some of these safeguards. For instance, according to national law, anyone
charged with a felony has the right to have assigned legal assistance without
payment, if the person charged does not have sufficient means to pay for it. In
felony cases, the bar association is to provide the defendants who prove that they
cannot afford legal counsel with a lawyer. Most detainees indeed indicated that
they did not have a lawyer because they could not afford one. Very few were
aware of the right to free legal assistance.
57.
A number of
detainees who had chosen to engage a lawyer at their own expense complained
that the lawyers simply took their money (between €200 and €600) then
disappeared. Information leaflets on the rights of detainees found in detention
facilities were very vague and referred only to the detainee’s right to contact
a lawyer.
58.
The presence of
an interpreter is legislated. According to the Government, efforts were being
made to cover the needs of interpretation in all relevant services by
interpreters appointed either by the State or by non-governmental
organizations. The Working Group, however, received complaints from foreigners
that they did not have access to a court-appointed interpreter.
59.
The Working Group
noted with particular concern the situation of detainees after round-up
operations carried out by police raids in the streets and public places. In
many cases, these individuals had been arrested following a racial profile;
they were not informed about their rights or about the reason for their
detention. In police stations, they were not entitled to inform their relatives
or to contact a defence lawyer.
60.
The Working Group
also received allegations that Roma experienced difficulties in gaining access to
justice, and faced long delays in civil cases. Some Roma alleged having been
victim of discriminatory attitudes and language directed against them in court.
C. Detention of migrants in an irregular
situation
61.
The detention of
migrants is regulated by Law No. 3386/2005, in the case of those detained upon
entry at an external border, and Law No. 3907/2011, which implements the
European Union Returns Directive for those detained while already residing in Greece
62.
Law No. 3386/2005 allows for the detention of
irregular migrants pending their deportation if they have infringed the
provisions of the said law (art. 76.3). Law No. 3907/2011 provides for migrants
who are subject to return procedures to be detained pending their return and
enforcement of the removal procedure, unless other sufficient, less coercive
measures can be implemented in a specific case (art. 30.1). During its visit, however,
the Working Group learned that, in practice, no “less coercive” measures exist;
migrants are routinely detained also under Law No. 3907/2011. In most cases,
the authorities consider that being in an irregular situation automatically
constitutes sufficient reason for detention.
63.
Law No. 4075/2012 amended Presidential Decree
114/2010 and Law No. 3386/2005, providing for migrants and asylum seekers to
also be detained if they represent “a danger to public health” if they are “suffering
from an infectious disease”, “belong to groups vulnerable to infectious
diseases” or are living in conditions that do not meet “minimum standards of
hygiene”. The Working Group concurs with the Special Rapporteur on the human
rights of migrants that these measures are discriminatory and target the most
vulnerable migrants, and lead to even more stigmatization. Furthermore, the majority
of the medical problems of migrants in detention are caused by or directly
linked to their conditions of detention in Greece
64.
The police conduct large-scale round-up
operations and temporarily detain hundreds of foreigners, sometimes in crowded
and dirty conditions, while determining their residency status. The Working
Group is aware of the recent findings of the Special Rapporteur on the human
rights of migrants in relation to sweep operations in the context of operation
Xenios Zeus, which had led to widespread detention of migrants in different
parts of the country, many of whom have lived and worked in Greece
65.
Some foreigners
complained to the Working Group about the deliberate destruction of their
residence permits by police agents during routine identity checks in the street
or during house searches.
66.
The Working Group deeply regrets the policy the
Government of systematically detaining all irregular migrants detected entering
the territory of Greece
67.
The Working Group
expresses its concern that the above situation will lead to long-term detention
for most, or even all, migrants in an irregular situation detected in Greece
68.
The Working Group
regrets the excessive duration of detention of migrants – six months, which may
be extended to up to 18 months if the person refuses to cooperate or if there
are delays in obtaining necessary documentation (Law No. 3907/2011, arts. 30.5
and 30.6, and No. Law 3386/2005, art. 76.3), which is the maximum provided for
in the European Union Directive 2008/115/EC (see para. 37 above). In many
instances, the Working Group found that the refusal to cooperate or the delays
in obtaining necessary documentation could not be attributed to the migrant in
question but rather to the consular authorities or legal or practical
obstacles. The long duration has been justified as a deterrent mechanism for
other potential migrants, whether or not a durable solution can be found in
each individual case.
69.
In addition, owing to a change made in October
2012 to the provisions governing the maximum length of detention for asylum
seekers, such individuals may now be detained for up to 18 months pending a
decision on their application in Greece
70.
Furthermore, migrants whose deportation is
unlikely owing to, inter alia, the situation in their country of origin or the
non-cooperation of consular authorities, are routinely detained. This practice does
not seem to comply with the purpose of detention as stated in the law, namely,
to prepare for deportation. Law No. 3907/2011 states that when a reasonable
prospect of removal no longer exists, detention ceases to be justified and the
person concerned is to be released immediately (art. 30.4). This does not seem
to be implemented in practice. Law No. 3907/2011 further provides for a
mechanism to deal with non-removable irregular migrants in the form of issuance
of a certificate of suspension of removal (art. 24). Significant improvements
have been made by amendments to articles 74 and 99 of the Criminal Code through
the provisions of Law No. 4055/2012, introducing specific time limits for the
duration of detention of detainees who cannot be deported (18 months). Compliance
with these provisions is monitored by a judicial body.
71.
The Working Group encountered instances where
persons had been detained for long periods of time pending their deportation.
In many cases, countries of origin are reluctant or unwilling to accept their
nationals, and the implementation of the deportation order takes a long time.
Frequently, the person concerned does not have valid documentation for the
issuance of a passport or entry permit.
72.
The Working Group
found that asylum seekers were detained until their asylum procedure had been
concluded. Migrants in an irregular situation are often not informed on the
grounds or the length of their detention.
73.
Provisions should always be made to render
detention unlawful if the obstacle for identifying immigrants in an irregular
situation or carrying out removal from the territory does not lie within their
sphere; for example, when the consular representation of the country of origin
does not cooperate or legal considerations – such as the principle of
non-refoulement barring removal if there is a risk of torture or arbitrary
detention in the country of destination – or factual obstacles, such as the
unavailability of means of transportation, render expulsion impossible.
74.
Although the administrative
detention of migrants in an irregular situation does not contravene
international human rights instruments,, the principle of proportionality
requires that it be used as a last resort, permissible only for the shortest
period of time, and that alternatives to detention be sought whenever possible.
75.
The Working Group
is of view that the imprisonment of a migrant or an asylum seeker for up to 18
months in conditions that are found to be even worse than in the regular
prisons (see paras. 81 – 92 below) could be regarded as punishment imposed on a
person who has not committed any crime. This would be a serious violation of
the principle of proportionality, and may render the deprivation of liberty
arbitrary. In addition, through interviews with detainees, the Working Group
found that prolonged detention was often perceived by potential asylum seekers
as a deterrent to discourage them from submitting an application.
76.
According to domestic law, migrants in an
irregular situation may be detained for up to 18 months. The maximum period of
detention for asylum seekers awaiting a decision on their application was
recently extended from six to up to 18 months. The Working Group encountered
some instances where the obstacle for identifying or removing a particular
migrant from Greek territory was not attributable to the person, including
through non-cooperation of the consular representation of the third countries.
77.
The Working Group also found that detainees
had little or no information about why they were in detention nor of its
duration. It is the position of the Working Group that all detainees, including
irregular migrants and asylum seekers, must be informed on the reasons for
their detention and their rights, including the right to challenge its
legality, in a language they understand, and they must have access to legal
assistance.
78.
As mentioned
above, during its visit, the Working Group also learned about a number of
round-up operations where the police would detain members of the Roma community
with Greek citizens and release them soon after without charge. In this regard,
the Working Group recalls that any detention on discriminatory grounds
constitutes arbitrary detention, and furthermore, that detention without any
legal basis also renders the detention arbitrary.
79.
In 2010, the
Government elaborated a plan of action on asylum and migration management (see
para. 67 above), which was aimed at regulating the situation through the
establishment of three different centres: first reception centres, operated by
civilians; detention centres and pre-removal centres. The plan was subsequently
revised in December 2012 with the objective of establishing an effective
response to the migration challenges faced by the country. The revised plan
focuses on the new autonomous asylum ervice, which reports directly to the
Minister for Public Order and Citizens’ Protection.
80.
With regard to migrants
in a regular situation, the Working Group was informed that there were 140,000
files pending at the Directorate of Naturalization and Migration of the
Ministry of the Interior.
D. Detention conditions
81.
Although domestic
law provides for proper conditions for persons deprived of their liberty, the
Working Group found that, in practice, the law is not observed. In most
detention facilities visited by the Working Group, the conditions were well
below those required by international human rights standards, and were severely
overcrowded. In detention centres for asylum seekers, the conditions were often
appalling and unhygienic, and facilities were in a poor state of repair. Long-term
detention was often the result of delays due to lack of cooperation of the consular
authorities of the detainee’s home country.
82.
In this respect,
the Working Group notes the decision of January 2013 of the Criminal Court of
First Instance of Igoumenitsa to acquit 15 immigrants who had escaped from a
detention facility mainly to flee the appalling conditions of detention they
were forced to endure.
83.
The Working Group
often found pretrial and convicted detainees together in the same cell, or
administrative detainees, including migrants in an irregular situation and
asylum seekers, held with criminal detainees, in violation of relevant national
and international standards. Detainees were held for months in police holding
cells and border guard stations, even though these facilities were designed for
a maximum stay of 72 hours. The Working Group notes that this situation also
affects the proper preparation for the trial, given that defendants cannot
communicate with counsel in private.
84.
Migrants in an
irregular situation are detained for up to several months in various
establishments, such as police stations, border guard stations and coast guard
facilities, which are clearly not suitable for long-term detention. Some
dedicated migration detention centres do exist, some of which are converted
military camps or police academies. As common standards are not applied, the
detention conditions and the safeguards available vary significantly according
to the facility and the location.
85.
The Working Group
visited a significant number of detention facilities for irregular migrants and
asylum seekers. In general terms, detention conditions in all facilities were
inappropriate. Migrants were locked in their cells for most of the day, with no
activities to keep them occupied. Several of the detention centres did not have
an outdoor area.
86.
In some of the
detention facilities, the migrants had limited access to toilets; some had no
artificial lighting, so that, in winter, detainees were in the dark as of the
early afternoon. Most of the detention facilities visited lacked heating and
hot water, and detainees complained about insufficient and poor quality food,
lack of soap and other hygiene products, and of insufficient clothing, shoes
and blankets. The Working Group met with several detainees who had visible
health problems but who had not received appropriate medical care. It noted the
urgent need for specialized staff in each detention facility, including
doctors, nurses, psychologists, social workers and interpreters.
87.
The detention
centres in the Evros region, particularly Fylakio, were overcrowded and run by the
police. Although the detention centre for migrants and asylum seekers in Thessaloniki
88.
It should be
noted that, in 2012, the rate of detention of migrants in an irregular
situation was 22.63 per cent lower than in 2011 (76,878 persons in 2012 against
99,368in 2011). In 2013, detention of migrants in an irregular situation
dropped by a further 44.06 per cent (with detentions down to 43,002).
89.
In general terms,
overcrowding in Greek prisons has increased and is now a chronic problem. At 1 September 2011 , Greek prisons were at a 151.7 per cent of their maximum capacity,
with 12,479 inmates (including 4,254 pretrial detainees) crammed into 8,224
available places. The number of inmates continues to rise. According to the
Ministry of Justice, Transparency and Human Rights, in January 2010, Greek
prisons held 11,364 inmates. By 1 November 2012 , this number had
risen to 13,147 (including711 women detainees).
90.
At the time of
the visit of the Working Group, Thessaloniki
91.
The Korydallos
and Halkida prisons reportedly rejected additional inmates owing to serious
overcrowding. Korydallos has room for 800 inmates, but was holding 2,345
detainees in very poor conditions of detention at the time of the visit of the Working
Group. Although Komotini prison has a maximum capacity of 100 inmates, the Working
Group found 327 detainees during its visit, including 74 in pretrial detention.
In many detention centres, there is no separation between pretrial and convicted
detainees.
92.
In one police
station visited in Thessaloniki
E. Procedural safeguards
93.
According to the
Government, representatives of UNHCR and non-governmental organizations dealing
with migration issues are granted access to detention facilities where they may
interact freely with migrants and provide them with legal assistance. The
Working Group received information, however, that detainees were allowed limited
contact with their families, limited access to legal assistance and consular
services and little or no professional interpretation services.
94.
In general, the
detainees whom the Working Group met had little or no information in a language
they could understand about the reasons for detention, its duration or the
right to challenge their detention and deportation, despite the fact that article
76.3 of Law No. 3386/2005 provides for the right to be informed about the
reasons for detention in a language that that the detainee understands. While
some detention centres had information posted on the walls near the entrance or
in booklets, information was rarely available inside the cells or anywhere
else. Those who had applied for asylum often had no information about the
status of their case, and others could not apply for asylum from the detention
facility.
95.
According to deliberation
No. 5, Principle 1 of the Working Group, any asylum seeker or immigrant, when
held for questioning at the border, or inside national territory in the case of
illegal entry, must be informed at least orally and in a language that he or
she understands of the nature of and grounds for the decision refusing entry at
the border, or permission for temporary residence in the territory, that is
being contemplated with respect to the person concerned. In Principle 2 of deliberation
No. 5, the Working Group pointed out that any asylum seeker or immigrant must
have the possibility, while in custody, of communicating with the outside
world, including by telephone, fax or electronic mail, and of contacting a
lawyer, a consular representative and relatives.
96.
Migrants may be detained
on the decision of the competent police authority (Law No. 3386/2005, art.
76.2); no automatic judicial review of the decision is provided for. Although
migrants may present an objection to their detention (Law No. 3386/2005, art.
76.3 and Law No. 3907/2011, art. 30.2), it is not automatic, and no direct
review of the lawfulness of the detention is provided for.
97.
Moreover,
objections must to be submitted in writing and drafted in Greek. Access to an
interpreter and lawyer is not guaranteed, which makes any objection to the
detention virtually impossible, particularly given that detention and
deportation orders are written in Greek.
98.
Law No. 3907/2011
introduced an automatic judicial review of the legality of detention (art.
30.3); however, it regulates only the extension of detention and not the
detention per se. The review is conducted automatically, with no reference to
the specificities of each case, and the fact that the migrant has not yet been expelled
constitutes sufficient grounds for the judge to extend the period of detention.
99.
In its deliberation
No. 5, Principle 6, the Working Group stated that the decision must be taken by
a duly empowered authority with a sufficient level of responsibility and must
be founded on criteria of legality established by the law. Furthermore, in Principle
8 of the same deliberation, the Working Group specified that notification of
the custodial measure must be given in writing, in a language understood by the
asylum seeker or immigrant, stating the grounds for the measure; it should set
out the conditions under which the asylum seeker or immigrant must be able to
apply for a remedy to a judicial authority, which will make a prompt decision on
the lawfulness of the measure and, where appropriate, order the release of the
person concerned.
100.
Some of the migrants who had engaged private
lawyers complained that the lawyers would simply take their money and not
follow up on their cases. The Working Group heard these allegations from several
migrants in different detention centres. It urges the Greek authorities to take
these allegations seriously and to find a solution to the problems relating to
effective legal representation of detained migrants.
101.
Although the treatment
of vulnerable groups (such as women, single-parent families and unaccompanied
minors) is a subject of particular concern for the relevant services, the
Working Group notes with concern the insufficient training and sensitization of
staff in detention centres on international human rights law principles and
standards, as well as on principles relating to the rights and treatment of
persons deprived of their liberty, with respect to both detention conditions and
safeguards.
102.
Regular
independent monitoring of all detention facilities is crucial to ensure the
implementation of international standards. In this respect, the Working Group
welcomes the recent ratification by Greece territory of Greece
F. Alternatives to detention
103.
As noted above,
despite the fact that Law No. 3907/2011 provides for the detention of migrants
only when less coercive measures cannot be implemented, in practice, no such
measures exist, and irregular migrants are systematically detained. The Working
Group strongly urges the Greek authorities to undertake an individual
assessment of the necessity of detention in each case, in accordance with
international human rights standards and its own laws. Non-custodial measures
should always be considered before detention.
G. Unaccompanied minors
104.
Under Greek law,
adolescents aged between 13 and 18 years may be held criminally responsible,
even though their acts will always be considered misdemeanours rather than
felonies. The law requires that educational and therapy measures be preferred
instead of correctional ones. Minors are detained solely in the case of
commission of serious crimes. Their detention is always under the supervision
of a prosecutor. Individuals aged between 18 and 21 years are considered young
adults.
105.
Law No. 220/2007,
which also incorporates European Union Directive 9/2003/EC, applies to unaccompanied
minors, stipulating that a prosecutor is to be notified of the case whether or
not the minor has submitted an asylum application. The prosecutor is appointed
temporary guardian; at a later stage, in cooperation with social services and
non-governmental organizations, another person, usually a social worker, will
be appointed the permanent guardian.
106.
During its visit,
however, the Working Group found that unaccompanied minors were often not
properly registered and were systematically detained. It notes with concern
that the current national legislation does not provide for a statutory
prohibition of the detention of minors. According to the Government, in
practice, unaccompanied minors are, after some weeks in detention centres, placed
under the responsibility of the Ministry of Labour, Social Security and Welfare
and transferred to a guest house for minors. During its visit, however, the
Working Group found that, owing to the limited capacity of existing reception
facilities, unaccompanied minors often remained in detention for a prolonged
period of time waiting for a place to become available.
107.
Unaccompanied minors
who do not apply for asylum or who were refused asylum and not granted
protective status are subject to deportation or to recurrent detention.
H. Conscientious
objection
108.
The Working Group
was informed that conscientious objectors were frequently prosecuted. On 1 February 2012 , the Athens
Military Court 11 September 1998 until 1 January 2008 , when he turned 45.
Mr. Pouliasis appeared personally before the Court to hear its decision, but
did not file an appeal before the Military Court of Appeals. According to the
Government, Mr. Pouliasis could have opted to serve alternative military
service for conscientious objectors, but had chosen not to do so.
V. Conclusions
109.
The Working Group recognizes that Greece is has
endured a difficult economic and social period owing to the financial crisis,
which has forced the Government to implement austerity measures a number of times
without adequate international support.
110.
The Working Group was informed of the positive
legislative changes made in relation to the issue of deprivation of liberty in Greece
111.
With regard to criminal justice, despite the constitutional
provision establishing limits for pre-trial detention (one year in the case of
felonies, six months in the case of misdemeanours), the Working Group observed that
accused persons often spent relatively long periods in pretrial detention, even
several years. The Working Group found that this is one of the main reasons for
the serious overcrowding witnessed in Greek prisons, which is now a chronic
problem.
112.
Arbitrary detention in Greece
113.
The Working Group is of the view that much remains to
be done to ensure full respect for the human rights of migrants and asylum
seekers in Greece
114.
The Working Group found that a detention period of 18
months for undocumented migrants was excessive, particularly in the light of
the very harsh conditions in detention centres, including those in the Evros
region.
115.
The imprisonment of a migrant or an asylum seeker for
up to 18 months in conditions that are usually found to be even worse than in
the regular prisons could be considered a punishment imposed on a person who
has not committed any offence. This appears to be a serious violation of the
principle of proportionality and may render the deprivation of liberty
arbitrary.
116.
Failure to apply alternatives to detention, lack of
effective judicial review and the excessive length of detention may also render
the detention of an individual arbitrary.
117.
With regard to the vast number of round-up operations leading
to the detention by the police of foreigners and members of the Roma community (including
those who are Greek citizens), the Working Group recalls that any detention on
discriminatory grounds constitutes arbitrary detention and furthermore, that
detention without any legal basis may also render the detention arbitrary.
VI. Recommendations
118.
In the light of the information received and the concerns
expressed, the Working Group make recommends that the Government of Greece
(a) Reform
the judicial system to guarantee that all persons in pretrial detention receive
a fair and speedy trial;
(b) Consider
the possibility of decriminalizing certain offences, reducing prison sentences,
and applying non-custodial measures in order to combat the severe overcrowding
in prisons and the inappropriate utilization of police stations to hold
detainees for periods beyond 72 hours;
(c) End the
policy of systematic detention of all migrants in an irregular situation, and
instead explore alternatives to detention. Detention should be a measure of
last resort, limited to cases where there is a risk of the person absconding or
when the person poses a threat to her or his own security or public security. The
duration of detention should be limited to the minimum time necessary to carry
out removal or other proceedings. Less coercive measures should always be
considered before resorting to detention, in accordance with Law No. 3907/2011;
(d) Significantly
improve detention conditions and procedural safeguards, and develop appropriate
regulations for all detention facilities, in accordance with international
human rights standards. In particular, it should:
(i) Systematically inform detained migrants in writing, in a language that they
understand, of the reason for their detention, its duration, their right to
have access to a lawyer, the right to promptly challenge their detention, and
to seek asylum;
(ii) Ensure that all migrants deprived of
their liberty are able to contact promptly their family, consular services and
a lawyer, free of charge;
(iii) Ensure that all detained migrants have
access to proper medical care, an interpreter, adequate food and clothes,
hygienic conditions, adequate space to move around and access to outdoor
exercise.
119. The Working
Group also recommends that:
(a) At the
time of detention, detainees be provided in writing, in a language they understand,
with the grounds for their detention, clearly and exhaustively defined;
(b) Detainees
be provided with a written explanation of their rights and how to exercise them.
120. The legality of detention must
be open for challenge before a court, and a regular review should be conducted within
a fixed time limit. Each decision to detain should be reviewed to confirm its
necessity and compliance with international legal standards by means of a
prompt oral hearing by a court or similar competent independent and impartial
review, accompanied by appropriate legal aid. In the event that continued
detention is authorized, detainees should be able to initiate further
challenges against their detention.
121. Detainees
should be held in special immigration detention centres in conditions
appropriate for their status, and not together with persons charged with or
convicted of criminal offences (unless so charged or convicted themselves).
122. Detainees
should be given adequate access to their legal representatives, relatives and
officials of UNHCR.
123. The
Government should limit the use of detention to appropriate cases, such as of
asylum seekers whose application has been rejected after the asylum
determination process (namely, when the incentive to abscond has increased) or
where removal is imminent and there are reasons to believe it cannot be
effected unless the individual is detained. The power to detain should not be
exercised if the person concerned is, on the basis of substantiated evidence,
fully integrated into the society from which that person’s removal is sought.
124. Alternative
and non-custodial measures, such as reporting requirements, should always be
considered before resorting to detention.
125. Detaining
authorities should be required to establish a compelling need to detain that is
based on the personal history of each individual asylum seeker.
126. Any
review body should be independent of the detaining authority.
127. Specialized
non-governmental organizations, UNHCR and legal representatives should have
access to all places of detention.
128. All
staff members of detention facilities should receive training on the special
situation and needs of asylum seekers in detention.
129. Effective
measures should be taken to ensure that migrants have full access to lawyers
and interpreters to appeal deportation decisions, and to prevent the refoulement
of persons in need of international protection.
130. The Government should refrain
from detaining unaccompanied minors and families with children, in conformity
with the principles of the best interests of the child and of family unity.
131. The
Government should continue to facilitate, where possible, the voluntary return
of migrants who are willing to return to their countries, as opposed to deportation
proceedings, in full accordance with international human rights law.
132. Lawyers
and civil society organizations should be ensured full access to all detention
facilities, and a systematic, independent monitoring system should be
established for them.
133. All
detained persons claiming protection concerns should be adequately informed of
their right to seek asylum and be able to file an asylum application and
communicate with UNHCR, lawyers and civil society organizations.
134. The
Government should strengthen, through the provision of competent staff and
resources, the Office of the Ombudsman and the National Commission for Human
Rights in order to allow them to effectively accomplish their mission of human
rights protection and promotion for all, including migrants, regardless of
their administrative status, including by undertaking regular unannounced
visits to detention facilities throughout national territory.
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