Author
National legislation provides a number of guarantees with regard to the detention of vulnerable persons, yet does not prohibit their detention. According to Article 48 IPA women should be detained separately from men[1], the privacy of families in detention should be duly respected[2], and the detention of minors should be a last resort measure and be carried out separately from adults[3]. Moreover, according to the law, “the vulnerability of applicants… shall be taken into account when deciding to detain or to prolong detention.”[4]
More generally, Greek authorities have the positive obligation to provide special care to applicants belonging to vulnerable groups (see Special Reception Needs).[5] However, persons belonging to vulnerable groups are detained in practice, without a proper identification of vulnerability and individualised assessment prior to the issuance of a detention order. In 2021 GCR has supported various cases of vulnerable persons in detention whose vulnerability had not been taken into account.
These include:
- A citizen from the Democratic Republic of Congo who was hospitalized for a period of ten days in a psychiatric clinic after he attempted to commit suicide in the detention facility. He was released after GCR submitted objections against his detention to the Administrative Court of Piraeus. [6]
- Three single women originating from Somalia, victims of sexual violence, who were detained in PRDC of Amygdaleza for two months.
- An asylum seeker originating from Cameroon, victim of torture and sexual abuse, was detained in a police station for a period of three months after being hospitalised for a period of one month.[7] After the submission of Objections against detention by GCR the Administrative Court of Athens ordered his release considering his serious mental disorder.
- An asylum seeker originating from Iran who was detained in a police station. After the submission of Objections against detention by GCR the Administrative Court of Athens ordered his release considering his vulnerable situation, the fact that he was identified as a victim of torture and the effect of the detention conditions on his mental health.[8]
Moreover, victims of torture have been placed in detention on the islands. In the case M.A. v. Greece, the person was kept in the RIC of Moria for one more month and was subsequently placed in detention, on the basis that his asylum claim had been rejected at second instance, despite an order of interim measures set by the ECtHR on 6 May 2020 to guarantee the applicant living conditions compliant with Article 3 ECHR, “having regard to his state of health and to provide the applicant with adequate healthcare compatible with his state of health.”[9]
Detention of unaccompanied children
Following criticism by international bodies and civil society actors as well as several decisions of the ECtHR, L. 4760/2020 entered into force on 11 December 2020, the possibility to detain unaccompanied children under the pretext of ‘protective custody’ has been abolished. [10] Other legal provisions that allow the detention of unaccompanied children are still in force.[11]
Since the start of the implementation of the new legislation, unaccompanied children as a rule do not remain in administrative detention and they are transferred to reception facilities. However, even in 20201 a small number of unaccompanied children, as corroborated by the official statistics has been placed in detention, in most of the cases for very short periods. At the end of 2021, 22 unaccompanied children (22) were detained at the end of 2021, in most cases for very short periods and in total, 363 unaccompanied children were kept in PRDCs countrywide during 2021.[12]
Detention following wrong age assessment
As mentioned above (Guarantees for vulnerable groups), until August 2020, two Ministerial Decisions were providing for the age assessment procedure of unaccompanied children:
- Ministerial Decision 92490/2013 laid down the age assessment procedure in the context of reception and identification procedures and
- Joint Ministerial Decision 1982/2016 provided for an age assessment procedure for persons seeking international protection before the Asylum Service,[13] as well as persons whose case was still pending before the authorities of the “old procedure”.[14]
On 13 August 2020 the Joint Ministerial Decision 9889/2020 entered into force. [15] It sets out a common age assessment procedure both in the context of reception and identification procedures and the asylum procedure. However, the scope of the JMD 9889/2020, as was the case with the previous ones, does not extend to age assessment of unaccompanied children under the responsibility of the Hellenic Police. In practice, children under the responsibility of police authorities are as a rule deprived of any age assessment guarantees set out in the relevant Ministerial Decision, and systematically undergo medical examinations consisting of left-hand X-ray, panoramic dental X-ray and dental examination in case their age is disputed. In addition to the limited reliability and highly invasive nature of the method used, it should be noted that no remedy is in place to challenge the outcome of that procedure.
As the noted by The Working Group on Arbitrary Detention “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. Persons claiming to be children are not generally represented or informed of their rights in a language that they understand during the assessment. […] Minors are thus being detained unnecessarily owing 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, particularly the presumption that a person is a child unless the contrary can be 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 the age of 18 years.” [16]
A number of cases of unaccompanied children detained as adults were identified by GCR during 2021. In a case supported by GCR, a 16-year old unaccompanied boy from Afghanistan was arrested and detained in Korinthos PRDC as an adult for more than 2 months until he was place in an accommodation facility.
Detention of families
Despite the constant case law of the ECtHR with regard to the detention of families in the context of migration control,[17] families with children are in practice detained. Among others, GCR has supported cases throughout 2021 of single-parent families, families with minor children or families where one member remained detained. For instance, there have been cases of families which remained detained for periods exceeding one month following a shipwreck before they were transferred to open accommodation facilities.
[1] Article 48(4) IPA.
[2] Article 48(3) IPA.
[3] Article 48(2) IPA.
[4] Article 48(1) IPA.
[5] Article 60 L 4636/2019
[6] Administrative Court of Piraeus, Decision ΑΡ260/2021.
[7] Administrative Court of Athens, ΑΡ873/2021
[8] Administrative Court of Athens, Decision ΑΡ695/2021.
[9] ECtHR, M.A. v. Greece, App No 18179/20, Order of 6 May 2020: Information provided by RSA, 4 January 2021.
[10] Gov. Gazette A’ 247/11-12-2020, L. 4760/2020.
[11] Article 48(2) IPA, article 118 of the Presidential Decree 141/1991 regarding “protective custody’ of unaccompanied minors, L.3907/2011.
[12] Information provided by the Directorate of the Hellenic Police, 8 March 2022.
[13] Joint Ministerial Decision 1982/2016, Gov. Gazette B’335/16-2-2016.
[14] Article 22(A)11 JMD 1982/2016, citing Article 34(1) PD 113/2013 and Article 12(4) PD 114/2010
[15] Joint Ministerial Decision 9889/2020, Gov. Gazette 3390/Β/13-8-2020.
[16] Human Rights Council, Visit to Greece. Report of the Working Group on Arbitrary Detention, A/HRC/45/16/Add.1, 29 July 2020, available at: https://bit.ly/3dPiHSX , para. 74 &76.
[17] See for example ECtHR, Mahmundi and Others v. Greece, Application No 14902/10, Judgment of 31 July 2012.