Working Group on Arbitrary Detention:
Preliminary Findings from its visit to Greece (2 – 13 December 2019)
I. Introduction
At the invitation of the Government, the
United Nations Working Group on Arbitrary Detention (WGAD) conducted an
official visit to Greece from 2 to 13 December 2019. The WGAD was
represented by Mr. José Antonio Guevara Bermúdez (Mexico,
Chair-Rapporteur), Leigh Toomey (Australia, Vice-Chair) and Sètondji
Roland Adjovi (Benin) and accompanied by staff from the Office of the
United Nations High Commissioner for Human Rights. This is the second
official visit of the Working Group to the country, the first visit
having been conducted in 2013.
The Working Group extends its gratitude
and appreciation to the Government of Greece for the invitation to
undertake this country visit and for its fullest cooperation throughout
the visit. In particular, the Working Group met with the officials of
the Ministry of Foreign Affairs, Ministry of Citizen Protection,
Ministry of Health, Ministry of Labour and Social Affairs, Hellenic
Supreme Court of Civil and Criminal Justice, Supreme Court’s Public
Prosecutor Office, Public Prosecutor’s Office in Thessaloniki, Ministry
of Mercantile Marine and Island Policy, members of the Athens and
Thessaloniki Bar Associations; National Centre for Social Solidarity,
National Coordinator for Unaccompanied Minors, the Greek National
Commission for Human Rights and the Office of the Greek Ombudsman. The
Working Group thanks the United Nations Office of the High Commissioner
for Refugees and United Nations Children’s Fund for the support provided
prior to and during the visit. The Working Group also recognizes the
numerous stakeholders within the country who shared their perspectives
on the arbitrary deprivation of liberty, including representatives from
civil society. The Working Group thanks all of them for the information
and assistance they provided.
The observations presented today
constitute the preliminary findings of the Working Group. They will
serve as a basis for future deliberations between the five members of
the Working Group at its forthcoming sessions in Geneva. The Working
Group will then produce and officially adopt a report about its visit
that will be submitted to the UN Human Rights Council at its 45th session in September 2020.
The Working Group visited 20 places of
deprivation of liberty, including police stations; holding cells of the
Hellenic Coast Guard, immigration pre-removal detention facilities,
prisons, a detention establishment for youth, psychiatric facilities as
well as the Centre for children and young adults with disabilities in
Lechaina. It was able to confidentially interview over 150 persons
deprived of their liberty.
In determining whether the deprivation of
liberty is arbitrary, the Working Group refers to the five categories
outlined in its Methods of Work, namely: 1) when it is impossible to
invoke any legal basis justifying the deprivation of liberty; 2) when
the deprivation of liberty results from the exercise of certain rights
guaranteed by the Universal Declaration of Human Rights or the
International Covenant on Civil and Political Rights; 3) when the right
to a fair trial has been seriously violated; 4) when asylum-seekers,
immigrants or refugees are subjected to prolonged administrative
detention without the possibility of an administrative or judicial
review or remedy; and 5) when the deprivation of liberty constitutes a
violation of international law on the grounds of discrimination of any
kind.
The Working Group provides its
preliminary findings on the deprivation of liberty in the context of the
criminal justice system, migration, psychosocial disability and social
care.
II. Good practices and positive developments
Ratification of international human rights instruments
The Working Group welcomes the
ratification by Greece of the Optional Protocol to the UN Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (OPCAT) on 11 February 2014 and the designation of the Greek
Ombudsman as the National Preventive Mechanism (NPM). The Working Group
recalls that regular independent oversight over all places of
deprivation of liberty has a significant role in reducing the instances
of arbitrary detention. The Working Group calls upon the NPM to
strengthen its efforts to visit in a more regular manner all places of
deprivation of liberty across the country. The Working Group also urges
the Government to increase its efforts to engage constructively with the
NPM, especially on the implementation of the recommendations issued by
this body.
Alternatives to detention
The Government has underlined that it
applies alternative forms of detention such as the obligation to report
regularly to the authorities.
Law No. 4619/2019 has amended the Penal
Code to reduce the length of penalties and encourage the use of
non-custodial measures. Article 52 reduces the maximum penalty to 15
years for all offences, with the exception of life sentences. Sentences
in youth detention facilities vary from 6 months to 5 years if the
normal sentence applicable is up to 10 years’ imprisonment, and from 2
to 8 years for a life sentence or other sentence (article 54). Article
55 provides for community service alternatives to detention, while minor
offences only punishable by fines are no longer prosecuted.
While the Working Group acknowledges that
these provisions are positive steps forward, it would like to emphasize
that there is still considerable scope for their implementation.
Provisions for early release
The Working Group was informed that
prisoners who have served a percentage of their sentence are eligible
for early release from detention. Under article 105B of the Penal Code,
anyone serving a sentence involving the deprivation of liberty may be
released when they have served 2/5 of the required time to be served in
the case of a sentence up to five years, and 3/5 of the required time in
the case of a sentence of between 5 to 20 years.
In addition, according to article 105B of
the Penal Code, convicts who work, attend school or participate in
vocational training are eligible for a reduction in their sentence to
reflect the time spent working or in attending these programs. While the
prisoners are not paid for this work and the Government should review
it, their participation in the scheme is voluntary. A maximum of two
sentence days is deducted from the sentence for every day of work or
education undertaken. Article 1 of Presidential Decree 107/2001 makes
similar provision for the reduction of sentences for prisoners who work
at certain prison farms and other specific penitentiary institutions.
Furthermore, certain categories of
prisoners are eligible for early release: persons above the age of 65
are eligible for a reduction in their sentence of two days for every day
spent in detention, persons above the age of 75 who are serving a
sentence of up to ten years’ imprisonment may serve the remainder of the
sentence at home with an electronic bracelet and persons who are
assessed with more than 67% of disability, he or she can be released
early after serving 1/3 of the sentence. However, the Working Group met
with one detainee aged 70, and would therefore like to encourage the
Government to ensure that these provisions are applied in practice.
The Working Group was informed that the
early release provisions are implemented across Greece and was able to
confirm this during its visits to detention facilities. For example, the
Working Group observed that, despite the challenging conditions at the
Korydallos Prison in Athens, the authorities deliver educational
programs, including for finishing high school and studying at
university, as well as various vocational project that may be used in
reducing the sentence.
The reduction of sentences under these
provisions is commendable as it provides convicts with the ability to
undertake work and gain new vocational and other skills, and contributes
to the earlier reintegration of prisoners into society. The provisions
for early release are also an important means of addressing the very
serious problem of overcrowding of detention facilities throughout
Greece. The Working Group urges the Government to continue to extend
this practice as much as possible within the prison population and other
places of deprivation of liberty.
Cooperation by the authorities
The Working Group wishes to emphasize the
full cooperation of the Government both prior to and during its visit
in terms of securing all the requested meetings with stakeholders,
provision of relevant data and information, and ensuring unimpeded
access to all places of detention. This is a strong foundation for the
Working Group to continue its dialogue with the authorities on detention
practices across Greece.
III. Deprivation of liberty in the context of the criminal justice system
Presentation before a judicial authority
The Working Group recalls that anyone
arrested or detained on a criminal charge has the right to be brought
promptly before a judicial authority. During its visit, the Working
Group ascertained that individuals are normally presented to the Public
Prosecutor within 24 hours of arrest. While this is commendable, the
Working Group considers that presentation to the prosecutorial
authorities cannot be equated with presentation to judge required under
article 9(3) of the International Covenant on Civil and Political Rights
(ICCPR). As the UN Human Rights Committee has noted, prosecutorial
authorities do not possess the requisite degree of independence to
assess the necessity and proportionality of detention. The Working Group
therefore recommends that Greece complies with its obligations under
the ICCPR.
Pre-trial detention
The Working Group recalls that, according
to article 9(3) of the ICCPR, detention shall be exceptional rather
than the general rule, and anyone detained on a criminal charge has the
right to be tried within a reasonable time or released.
The Working Group notes with concern the
widespread use of pre-trial detention in Greece. The imposition of
pre-trial detention is in practice automatic, as the individual
assessment of whether detention is necessary and proportionate does not
take place. Pre-trial detention may also be imposed for up to 18 months,
contrary to article 6(4) of the Greek Constitution, which stipulates
that detention pending trial should not exceed one year in the case of
felonies or six months in the case of misdemeanours. These periods may
only be extended for up to six months in entirely exceptional cases.
Moreover, the separation of pre-trial
detainees and convicted persons is not implemented in any of the
facilities visited. Pre-trial detainees are also subject to the same
treatment as those who have been convicted, contrary to the presumption
of innocence that all persons are entitled to prior to conviction. The
failure to separate pre-trial detainees and convicted prisoners is
contrary to article 10(2)(a) of the ICCPR and rule 11(b) of the Standard
Minimum Rules for the Treatment of Prisoners (the Mandela Rules).
The Working Group urges Greece to abide
by its international obligations to ensure that pre-trial detention is
exceptional, and that persons detained pending trial are separated from
convicted persons and are subject to separate treatment appropriate to
their status as unconvicted persons.
Presumption of innocence
The Working Group recalls that everyone
charged with a criminal offence has the right to be presumed innocent
under article 14(2) of the ICCPR. The Working Group received credible
information involving non-nationals in pre-trial detention who were
detained exclusively on the basis of police testimony, including when
there was other evidence that did not support the guilt of the persons
involved. Similar instances were reported to the Working Group in cases
of drug related crimes and organised crimes. The presumption of
innocence imposes a burden on the prosecution of proving charges beyond
reasonable doubt. The Working Group urges the judicial authorities to
ensure that accused persons are afforded the right to the presumption of
innocence and a fair consideration of all available evidence when
making decisions to detain, regardless of the nationality of the
accused.
Right to legal counsel
The Working Group was informed of
numerous cases in which detainees accused of misdemeanours were not
informed of their right to legal assistance, including legal aid. In
most instances, the detainees appeared without a lawyer when brought to
the Public Prosecutor when pre-trial detention was ordered. As a result,
the detainees could not effectively defend themselves and were not
given a fair opportunity to contest the pre-trial detention. The Working
Group received information, however, that detainees who were accused of
felonies, particularly in relation to serious drug offences, were
informed of their right to access a lawyer of their choice or at no cost
if they did not have sufficient means to afford legal assistance. The
Working Group recommends that the provision of the right to legal
assistance be extended to all persons who are accused of any type of
crimes, particularly misdemeanours.
According to principle 9 and guideline 8
of the UN Basic Principles and Guidelines on remedies and procedures on
the right of anyone deprived of their liberty to bring proceedings
before a court, persons deprived of their liberty have the right to
legal assistance by counsel of their choice, at any time during their
detention, including immediately after the moment of apprehension. Upon
apprehension, all persons shall be promptly informed of this right.
Assistance by legal counsel in the proceedings shall be at no cost for a
detained person without adequate means.
The Working Group encourages the
Government of Greece to ensure that all persons shall be promptly
informed of the right to legal assistance by counsel of their choice
upon apprehension or at no cost if they cannot afford a lawyer. The
authorities must also ensure that all persons deprived of their liberty
benefit from this right at any time during their detention.
Provision of information in other languages
The Working Group recalls that, according
to articles 9(2) and 14(3)(a) of the ICCPR, every person who is
arrested has the right to be informed in a language that he or she
understands of the reasons of the arrest, and to be promptly informed of
the charges. The authorities are also required to inform the detained
person in a language that he or she understands of his or her rights,
including the right to legal counsel and to request a court to consider
the legality of the detention.
The authorities informed the Working
Group that all detained persons are informed of the reasons for their
detention, either orally or in writing. If the detained person is a
foreign national who does not understand the Greek language, care is
taken to explain their rights to them through an interpreter or a
consular authority. Individual informative sessions are provided when
necessary in special cases. Information bulletins in the language of the
detainee are also available, but were not visible in most cases. The
Ministry of Citizen Protection provided to the Working Group printed
materials with the rights of detainees explained in various languages,
but these materials do not appear to be consistently provided to
detainees.
The Working Group received numerous
reports that, owing to the lack of interpreters, detainees were not
informed in a language that they understood of the reasons of their
arrest, nor of their rights as detainees. According to article 14(3)(f)
of the ICCPR, all persons charged with a criminal offence have the
right to the free assistance of an interpreter if he or she cannot
understand the language used in court. While the challenges of providing
interpretation are considerable in a context in which persons of many
different nationalities and languages are in contact with the law, the
Working Group urges the Government to provide interpretation services to
all persons who have been deprived of their liberty.
Short trials
A fair trial requires time for the
parties to present their evidence and, in particular, for the accused
person to be given adequate time to be heard pursuant to article 14(1)
and 14(3) (b) and (d) of the ICCPR. According to several credible
reports, some criminal trials have been short, ranging from a few
minutes to a few hours and concluded in a single day. There is also
often no opportunity for the accused to address the court, while law
enforcement agents are extensively heard. This practice is in direct
violation of the rights to a fair trial, including the principle of the
equality of arms. The Working Group calls upon the Government to ensure
that the accused is given adequate time to present a defence and to
address the court.
Overcrowding of detention facilities
The Working Group notes that severe
overcrowding remains an issue in most detention facilities, which are
over capacity. The Working Group is of the view that overcrowding could
be resolved by reducing the use of pre-trial detention, establishing new
separate facilities for remanded persons and implementing alternative
measures to detention.
Conditions of detention
During its visits to facilities in which
people are deprived of their liberty, the Working Group noted that the
conditions were in some instances better for Greek nationals than other
foreign nationals. For example, at some prison facilities, the wards in
which Greek nationals are detained appear to be significantly less
crowded than other wards in which other nationals are housed, with a
higher number of non-European nationals detained in each cell. In
addition, several non-Greek detainees from other regions reported
serious health issues, including physical and psychosocial disabilities
that require urgent medical attention that has not been granted by the
authorities.
The Working Group was, however, also
informed of other cases of vulnerable individuals and groups who had
received appropriate individualised treatment from the authorities,
including persons who were accused of or had committed serious sexual
offences that require protective measures and LGBTI persons. The Working
Group invites the Government to ensure consistent application of
individualised treatment in all places of detention.
Furthermore the Working Group is
concerned that, in general, the medical services located in prisons are
understaffed, which could result in a higher risk of deaths in custody.
According to rule 24 of the Mandela Rules, prisoners should enjoy the
same standard of health care that is available in the community, and
should have access to necessary health care services free of charge
without discrimination.
Having visited detention facilities
related to the criminal justice system, including police stations and
prisons, the Working Group considers that they do not generally meet
international standards, particularly the Mandela Rules, due to
overcrowding, lack of adequate cleaning and sanitary services, and
inadequate or non-existent health services. The lack of satisfactory
conditions of detention often impacts upon a detainee’s ability to
participate in his or her criminal proceedings and to present an
effective defence and appeal. It is therefore important for the
Government to address the conditions within detention facilities as a
matter of priority.
Monitoring of places of detention
The Working Group identified a general
lack of awareness among detainees as to how to submit a complaint in
relation to their detention and the conditions in which they are held.
There is no visible mechanism in places of deprivation of liberty, such
as a telephone number or relevant contact details, to present claims to
the Greek Ombudsman on violations of human rights. Many detainees also
reported that there were few, if any, visits to their places of
detention by relevant monitoring mechanisms. The Working Group urges
Greece to consider establishing a hotline for reporting in the prisons,
to display such information throughout, and provide sufficient funding
for regular and independent monitoring and oversight of places of
detention.
IV. Detention of persons in the context of migration
The Working Group recognises the
challenges involved in respecting international human rights standards
in the current context of mass migration into the country and the
arrival of large numbers of people seeking international protection.
Following the closure of the borders at the Balkan corridor and the
adoption of the EU-Turkey statement in March 2016, the administrative
detention of migrants has significantly increased. As a result, in 2017,
68,112 persons were arrested for illegal entry or stay in Greece;
93,367 in 2018; and, as of 2 December 2019, 98,019 in 2019. As of 5
December 2019, 2 257 asylum seekers are detained in pre-removal
detention centres (PRDCs) and 1273 persons are further detained in
police stations.
The Working Group visited ten facilities
in which asylum seekers may be or are deprived of their liberty,
including police stations, border guard stations and cells maintained by
the Hellenic Coast Guard, reception and identification centres (RICs)
and PRDCs. It identified serious problems that may lead to the arbitrary
and prolonged deprivation of liberty, including the inadequate
individual assessment of the appropriateness and necessity of detention;
detention exceeding in practice the maximum three-month period provided
by law for asylum seekers due to the delays in registration of asylum
applications, and detention in inappropriate facilities such as police
stations that are not suitable for the long-term detention, including of
asylum seekers. Equally, the Working Group identified gaps in the
provision of interpretation and legal aid, resulting in the lack of
access to judicial remedies against the detention decisions. It
furthermore notes with particular concern the policy of geographical
restriction on the movement of asylum seekers from the islands and the
lack of awareness of the consequences of breaching this restriction,
namely placement in a PRDC.
Right to seek asylum
According to the Government, the Hellenic
Police has been given clear orders to respect the right of detainees to
submit an application for international protection and to exercise the
legal remedies provided for by the law. The authorities claim that no
foreign citizen in detention who has applied for international
protection may be returned, until his/her application has been examined,
since Greece fully respects the 1951 Geneva Convention relating to the
Status of Refugees as well as the procedures laid out in EU Directive
2013/32/EU, incorporated into national law.
The Hellenic Coast Guard signed a
Memorandum of Understanding with the UNHCR in Greece in September 2014,
which was renewed in 2018. The Memorandum aims at protecting and
safeguarding the fundamental rights of migrants and refugees, in
accordance with the requirements of international, European and national
law. Furthermore, representatives of civil society have access to all
detention areas. This also applies to representatives from other actors
involved in migration and refugee matters, such as the UNHCR.
According to the Greek authorities,
foreign citizens under detention are provided with “Information Notes”
so that they are informed in a language they understand of their rights
regarding detention and the asylum procedure. The presence of an
interpreter is also a standard procedure and efforts are made to cover
the interpretation needs of all departments involved, with interpreters
appointed by the Government or provided by NGOs.
During its on-site visits and interviews,
the Working Group observed that many detainees either did not
understand their right to apply for asylum and/or the procedure involved
in doing so, with some individuals incorrectly believing that the
process was initiated when they were fingerprinted. There is no
established scheme for providing legal aid during the first instance
asylum application, and interpretation was not consistently provided,
with asylum seekers relying on second-hand information from fellow
applicants.
The Working Group was informed that no
information is provided by the police to the detainees on their right to
apply for international protection or the procedural stages; such
information is only provided by non-government actors. No further
information appears to be provided regarding the detention time limits.
In addition, both the original detention decisions and their reviews
following ex-officio review by the judicial authorities are only drafted
in Greek. Most PRDCs do not have interpretation services for most
languages, and when interpreters exist, they do not undertake the
interpretation of all procedural steps, documents and everyday issues,
especially taking into consideration the high number of detainees in
many PRDCs.
Furthermore, some persons who had been
detained on separate criminal charges but were also applying for asylum
experienced significant barriers to pursuing their claims when they were
unable to attend their interviews with the Asylum Service. In addition,
the Working Group was informed that these criminal charges could affect
determination of the asylum claim.
The right to seek asylum is recognised
under article 14(1) of the Universal Declaration of Human Rights. In
addition, as the Working Group recognised in its Revised Deliberation
No. 5, the right to personal liberty is fundamental and extends to all
persons at all times, including migrants and asylum seekers irrespective
of their citizenship, nationality or migratory status. All detained
migrants must have access to legal representation and interpreters.
Protective custody
According to the Government, article 19
of Presidential Decree 220/2007 obliges the competent authorities, such
as the Reception and Identification Service, the Asylum Service and the
Police, to undertake all the necessary measures for the representation
of unaccompanied minors. This entails the competent authorities
informing the Prosecutor for Minors or, when there is no such
Prosecutor, the Prosecutor at the local First Instance Court, who acts
as a temporary guardian. Moreover, Law 4554/2018, which will enter into
force on 1 March 2020, foresees that all unaccompanied minors in Greece
are appointed a professional guardian.
According to article 118 of Presidential
Decree 141/1991, children can be placed under protective custody until
they are referred to appropriate reception facilities or until they are
reunited with the persons responsible for them. Protective custody under
Greek law does not always amount to detention but, in practice, it has
mostly been implemented through the detention of children in pre-removal
detention facilities or police stations. In some cases, children have
been placed under protective custody in hospitals, also under the care
or supervision of police forces.
According to data from the National
Centre for Social Solidarity (EKKA), as of 30 November 2019, there were
257 children held in protective custody. EKKA prioritises unaccompanied
minors in administrative detention for placement in alternative
emergency accommodation or proper shelters. However, the Government
points to the considerable lack of such places in order to cover the
needs of all unaccompanied minors in Greece. The Working Group was
informed that while the number of unaccompanied minors in the country
has reached approximately 5000, there are 1376 places in long-term
accommodation and 840 in short term accommodation.
The Working Group confirmed the existing
substantial burden on shelter facilities, resulting in many
unaccompanied children being held in protective custody in unacceptable
conditions in facilities that are not appropriate for the detention of
children, such as police stations and pre-removal facilities on the
mainland. Although officials appear to be providing the best support
available in the circumstances, the Working Group noted that some
children were being held for prolonged periods (ranging from a few days
to more than two months) in conditions similar to those of criminal
detention, especially in police stations. These children were being held
together with adults, in dark cells, with no access to recreational or
educational activities, and no information on what would happen to them
in future. There is no maximum time limit on the period in which a child
may be held in protective custody.
Furthermore the Working Group was
informed that the prosecutor, as institution responsible for the care
and security of the children under protective custody, does not visit
the children in the detention facilities.
In February 2019, the European Court of
Human Rights found that the automatic placement of unaccompanied
asylum-seeking children under protective custody in police facilities,
without taking into consideration the best interests of the child,
violated article 5(1) of the European Convention on Human Rights (ECHR).
The Working Group urges the Government to uphold its obligations under
the Convention of the Rights of the Child and ECHR by putting an end to
the detention of children under the protective custody scheme in police
stations or other facilities related to the criminal or immigration
systems.
The Working Group invites the Government
to ensure that the best interest of each child is prioritized and that
children who enter the country in an irregular manner are not detained
and are placed in facilities appropriate to their age. As the Greek
Ombudsman has observed, this could be achieved by transitioning to
community-based care, foster care, supported independent living, and the
gradual reduction of institutional structures.
Age assessment
According to article 14(9) of Law No.
4375/2016, whenever there is doubt as to whether a third-country
national or stateless person is a minor, an age assessment shall be
undertaken and, until the assessment ruling is issued, the person is
presumed to be a minor. In addition, according to article 6 of the Joint
Ministerial Decision 92490/2013, age assessment of persons claiming to
be minors is to be conducted in three consecutive stages consisting of:
clinical examination by a paediatrician; psychological and social
evaluation by qualified experts, and medical examination of skeletal
age. Article 6(8) of the Decision provides for procedural guarantees
throughout the age assessment, including guaranteeing that the person is
represented throughout the procedure, obtaining of consent for the
examinations, and ensuring that the primary consideration is the best
interest of the child.
The Working Group notes that these
provisions are not being applied in practice. At present, the police
reportedly rely primarily on x-ray and dental examinations under the
third step of the age assessment procedure, and these examinations are
not sufficient to accurately assess a person’s age. Persons claiming to
be children are reportedly not generally represented or informed of
their rights in a language that they understand during the assessment.
In order to challenge the outcome of the assessment, the person must
submit an appeal to the Secretariat of the RIC within 10 days of
notification of the decision, which poses difficulties for persons based
within a RIC who cannot access relevant documentary proof of their age
within such a short timeframe. In addition, the assessment procedure
appears to be ad hoc and only applies to persons undergoing reception
and registration procedures, as well as those who have applied for
international protection. The guarantees applicable to age assessment do
not apply to unaccompanied children who are in protective custody under
the responsibility of the Hellenic Police.
As a result, unaccompanied minors and
other children are being detained unnecessarily due to inaccurate
assessment procedures, and are treated as and detained with adults. The
Working Group recommends that the authorities consistently apply the
guarantees outlined above when conducting age assessments, particularly
the presumption that a person is a child unless the contrary can be
conclusively proven. The Working Group reiterates the Greek Ombudsman’s
call to the Government in 2018 to put a complete end to all
administrative detention of migrants under 18.
Vulnerability assessment
Greek law does not prevent the detention
of vulnerable individuals or groups. However, the law contains
guarantees for such individuals. According to article 14(8) of Law No.
4375/2016 and article 11(2) of Law No. 3907/2011, vulnerable people
include unaccompanied minors; persons with disabilities; elderly
persons; pregnant women; single parent families with children, victims
of torture or other serious form of psychological, physical, or sexual
violence or exploitation (for example, persons with post-traumatic
stress disorder), and victims of trafficking. The vulnerability of an
individual must be assessed by the Reception and Identification Service
prior to registration of an asylum application or during the asylum
process, and is used in determining whether to detain or prolong
detention.
The determination of vulnerability is
critical to the immigration and asylum procedures, at least until the
new law on international protection enters into force which no longer
associates the vulnerability assessment with the type of asylum
procedure to be followed. Currently, when a person is determined to be
part of a vulnerable group specified in the legislation, the
geographical restriction to remain on the island at which he or she
arrived or was received is lifted, and the person can travel freely
within Greece without risk of arrest. The consideration of asylum
applications is also reportedly faster for those persons who are
recognised as belonging to a vulnerable group under the regular asylum
procedure.
Persons who are vulnerable are, however,
detained in practice, and the Working Group was informed of cases in
which individuals did not undergo a proper identification of
vulnerability and individualised assessment prior to the issuance of a
detention order. There are also delays between the time of arrival and
the conducting of vulnerability assessments due to the understaffing and
lack of medical and psychosocial experts. The Working Group urges the
authorities to prioritise the hiring of sufficient experts, particularly
in the islands, to carry out vulnerability assessments and to ensure
that they are conducted in every case.
Opportunity to challenge detention and removal decision
The Greek authorities have pointed out
that the right of foreign citizens to challenge the measure of detention
in case of expulsion was provided for in article 76 of Law 3386/2005, a
right that can be exercised anytime during the duration of the
detention.
The Working Group was informed that
asylum applications are submitted before the Asylum Service in the first
instance. If the application is rejected, the applicant can appeal the
decision in the second instance before an Independent Appeals Committee
under the Appeals Authority. An appeal must be lodged within five days
at border procedures. Legal aid funding for lawyers is only provided on
appeal and, if a person did not have their own lawyer during the initial
first instance hearing, taking into consideration that the Asylum
Service lawyers do not suffice to cover all demands, it is practically
impossible to find a lawyer within the prescribed time in order to
prepare for the appeal.
Asylum seekers may also lodge an
application for annulment of the second instance decision before the
Administrative Court of Appeals within 60 days from the notification of
the decision. However, the effectiveness of this legal remedy is
severely undermined by a number of obstacles, including that a lawyer
can only file the application for annulment. No legal aid is provided in
order to challenge a second instance negative decision on an asylum
application and the capacity of NGOs to file this application is very
limited taking into account the number of persons in need of
international protection in Greece. In addition, the application for
annulment does not automatically suspend deportation, and there is no
guarantee that the applicant will not be removed during lengthy delays
in hearing the matter.
The Working Group urges the Government to
expand the availability of publicly funded legal aid so that persons
seeking international protection can access legal advice at all stages
of the process from the time of filing their application until a final
determination is made.
Support to lawyers and human rights defenders
In its 2013 report, the Working Group has
recommended that lawyers and civil society organizations, as vital
stakeholders who must be protected, should be ensured full access to all
detention facilities, and a systematic, independent monitoring system
should be established for them.
The authorities have informed the Working
Group of the National Mechanism for the investigation of incidents of
ill treatment, arbitrary conduct in the discharge of duties or misuse of
power by law enforcement and detention facility agents that has been
established by article 56 of Law 4443/2016 within the Greek Ombudsman.
The National Mechanism is a supplementary mechanism to the independent
functions of the judicial system and of the internal procedures of
security forces disciplinary bodies, which will further guarantee that
such incidents are fully and effectively investigated by an independent
authority.
Pushbacks at the Greece-Turkey border
The Working Group was informed that some
newly arrived persons in the Evros region are arrested, detained in very
poor conditions, and summarily returned across the Greece-Turkey land
border without being given the opportunity to apply for international
protection in Greece. In some cases, individuals had made previous
attempts to cross the border, but were forcibly removed to Turkey in
each case. Pushback practices are not permitted under Greek law and are
contrary to the right to seek asylum. The Working Group is therefore of
the view that detention for this purpose has no legal basis. The
Working Group urges the Government to put an immediate end to pushbacks
and to ensure that such practices, including any possible acts of
violence or ill-treatment that has occurred during such incidents, are
promptly and fully investigated.
Legislative amendments and the announced policy on migration
The Working Group also takes note of the
entry into force of parts of Law No. 4636/2019 on 1 November 2019, with
other provisions entering into force from 1 January 2020. The new
provisions appear to introduce more restrictive procedures that may
compromise the general legal principle that detention of asylum seekers
is exceptional and should only be resorted to where provided for by law
and where necessary to achieve a legitimate purpose.
According to article 46 of Law 4636/2019,
persons applying for international protection can be detained, if
necessary, regardless of whether they apply for asylum while in
detention or not. In addition, the Asylum Office will no longer provide a
recommendation regarding the detention to the police, but only
information.
The Working Group is also aware that the
new law will extend the maximum detention period from 3 to 18 months,
which may reach 36 months if added to immigration detention. This
appears to treat the detention of migrants and asylum seekers as the
rule and not the exception. The Working Group is concerned that these
provisions are not in line with the principle of proportionality,
necessity and reasonableness, which should govern measures of
deprivation of liberty.
The Working Group is aware of the
Government’s plans to establish five new centres in order to create more
space to accommodate asylum seekers. It is not clear whether and to
what extent these centres will be closed so that residents are in effect
deprived of their liberty. The Working Group received numerous
allegations that the facilities, as created by the new law and in
accordance with the Government’s policy, will be closed ones, as opposed
to open centres such as the existing RICs. The authorities have argued
that the term closed only means that the entrance and exit of the centre
will be controlled.
It is important for the Government to
ensure that any new centres remain open and do not reinforce the
practice of detaining asylum seekers. However, the plans also reportedly
include the creation of centres for unaccompanied minors staffed by
doctors and psychologists, which may be a positive development if they
are not closed centres.
V. Deprivation of liberty in the context of psychosocial disability and social care
The Working Group was informed that
psychosocial disabilities, including depression and anxiety disorders,
are increasingly common in Greece as a result of the economic crisis in
recent years. The Ministry of Health has committed to prioritising the
deinstitutionalisation of persons with psychosocial disabilities
whenever possible, which is a commendable approach and has resulted in
community-based care being made available to more individuals. For
example, the Dromokaiteio Psychiatric Hospital in Attica provides
hospices, boarding houses, and supported-living apartments to allow
persons who would otherwise have required hospitalisation to live
independently in the community.
With regards to the care institution for
children and young adults with disabilities in Lechaina, the Working
Group would like to encourage the Government to continue with the
deinstitutionalisation process and, in the meanwhile, to provide it with
sufficient financial and material resources and personnel including
doctors, nurses, auxiliary personnel, as well as occupational therapists
and physiotherapists, in order to enable the institution to fully
comply with the Convention on the Rights of Persons with Disabilities.
However, psychiatric clinics and units
within hospitals continue to receive a large number of involuntary
admissions, with approximately 60% of admissions at Dromokaiteio
Psychiatric Hospital being of an involuntary nature. According to the
Ministry of Health, there were 8,300 involuntary commitments in 2018
across Greece out of a total 21,500 cases of psychiatric
hospitalisation. The procedure for involuntary admission is problematic
in several respects, including the fact that police officers are
frequently required by an order of the Public Prosecutor to arrest
persons who have been reported by relatives or neighbours to be
suffering from a psychosocial disability, rather than the arrest being
carried out by appropriately qualified medical personnel. In addition,
according to Law 2071/1992, following an assessment of the mental health
of such individuals, a court must consider the involuntary admission
within 10 days. However, lengthy delays are reportedly common before a
judge hears the matter, and when the matter is heard, the proceedings
are usually not conducted in the presence of the individual concerned,
or of his or her legal counsel. Finally, while involuntarily admitted
individuals are given a statement of their rights upon admission,
including the right to legal representation, they frequently do not have
access to a lawyer to challenge their mental health assessment either
because they do not have capacity to contact legal counsel or were
unaware of or unable to understand this right.
A draft law is currently being developed
in relation to the deprivation of liberty of persons with psychosocial
disabilities, and the Working Group urges the Government to address
these issues as part of the development of that legislation. Such
reforms could include the automatic release of involuntarily admitted
individuals if their case cannot be reviewed by the courts within the
statutory deadline of 10 days, and ensuring that a guardian is appointed
in cases where the individual is lacking capacity to represent him or
herself or is unable to seek the assistance of a lawyer.
According to the information received,
some individuals are detained involuntarily for prolonged periods, in
some cases for years, because they are experiencing mental and/or
physical health conditions. This is often because the individuals have
no other family or other support in the community. While this can be an
invaluable means of providing social care, such cases must remain under
regular review by the courts so that the involuntary admission does not
become indefinite deprivation of liberty against the will of the
individual concerned.
Finally, the Working Group was informed
that the legal basis for the involuntary admission of persons with
psychosocial disabilities in private clinics is not clear due to the
absence since 1992 of a Ministerial decision covering private
facilities. It is important that this gap in the law is addressed as
soon as possible, given the increasing use of private clinics due to
insufficient capacity to house individuals in public facilities. The
Ministry of Health should also conduct regular visits to all places
where persons with psychosocial disabilities are held, whether private
or public facilities, in order to monitor the length and conditions of
involuntary admission and to bring cases that may amount to arbitrary
deprivation of liberty to the attention of the Public Prosecutor and the
courts.
Conclusion
These are the preliminary findings of the
Working Group. The Working Group is mindful of the complexity of the
legal framework and the current challenges in relation to the
deprivation of liberty in a variety of settings in Greece. It looks
forward to engaging in a constructive dialogue with the Government of
Greece in the coming months, while determining its final conclusions in
relation to this country visit. The Working Group acknowledges with
gratitude the willingness of the Government to invite it to Greece and
notes that this is an opportunity for introducing reforms to address
situations that may amount to arbitrary deprivation of liberty.
