Working Group on Arbitrary Detention statement upon the conclusion of its mission to Greece (21 - 31 January 2013)

The United Nations Working Group on Arbitrary Detention conducted a country mission to Greece from 21 to 31 January 2013, following an invitation from the Government. The delegation was composed of Mr. Mads Andenas (from Norway) and Mr. Vladimir Tochilovsky (from Ukraine). They were accompanied by two members of the Working Group’s Secretariat from the United Nations Office of the High Commissioner for Human Rights.

At the outset, the Working Group would like to thank the Government of Greece for extending an invitation to the Working Group to visit the country and for its full cooperation throughout the various stages of the visit. It would also like to thank the United Nations High Commissioner for Refugees (UNHCR) for its valuable support and assistance, both before and during the mission.

The Working Group benefited from various meetings held with State authorities and it appreciates the valuable information they have provided. The Working Group met with senior authorities from the Executive, Legislative and Judicial branches of the State, including the: Minister of Public Order and Citizens’ Protection; the Alternate Minister of the Interior; the Deputy Minister of 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, Ministry of Shipping, Maritime Affairs and the Aegean; the Head of Legal Services of the Ministry of Foreign Affairs; the Head of the Department on Protection of Refugees and Asylum of the Ministry of Labour and Social Affairs; a Magistrate of the Supreme Court of Civil and Penal Law; 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; senior officials of the various Ministries; first instance judges and prosecutors; and local authorities on the Aegean island of Samos, in Thessaloniki and in Orestiada.
The Working Group also met with the National Ombudsman; with members of Parliament, with representatives of the National Commission for Human Rights; with representatives of the Bar Associations; with representatives from international organizations; and with representatives of civil society.

The Working Group visited places where persons are deprived of their freedom in Athens, on Samos, in Thessaloniki, and in the Evros region bordering Turkey: Korydallos Prison, including its psychiatric ward, Thessaloniki Prison and Komotini Prison, police holding cells in Athens, on Samos, in Alexandroupolis and Orestiada, and a number of detention facilities for irregular migrants and asylum seekers, including Thessaloniki Detention Centre, Filakio Detention Centre and Soufli Border Guard Station in Evros, and Komotini Detention Centre in the neighbouring Rodopi regional unit. It also met and interviewed detainees in all abovementioned facilities. The Working Group would like to note that it has been allowed to visit all places of detention it had requested and to interview in private detainees of its choice, without any restriction.

With regard to its findings, the Working Group would like first to commend the Government for the positive efforts it has made, particularly through legislative reforms, to improve the situation of deprivation of liberty in Greece. In the area of migration and asylum, such positive initiatives include, in particular, the adoption of Presidential Decree 114/2010 amending the previous legislation on the asylum procedure, and setting, for a transitional period, appropriate standards and safeguards for the fair and efficient examination of applications for asylum; as well as the adoption of a comprehensive law (3907/2011) providing for the establishment of a new Asylum Service independent from the police, to gradually take over full responsibility of asylum issues, and the establishment of a First Reception Service to set up Centres of First Reception at border locations.

Notwithstanding these positive achievements, the Working Group notes a number of issues that are of particular concern and would like to draw the Government’s attention to these issues. In the course of its visit, the Working Group found that the legislative developments are not always followed by effective implementation in practice.

Firstly, while domestic law provides for proper conditions for persons deprived of their liberty, including criminal detainees, irregular migrants and asylum seekers, the Working Group found that in practice the law is not always observed. In most detention facilities visited by the Working Group, the conditions fall far below international human rights standards, including in terms of severe overcrowding. In this respect, the Working Group notes the recent decision by the Criminal Court of First Instance of Igoumenitsa which acquitted fifteen immigrants who escaped appalling conditions of detention.

In addition, the Working Group often found pre-trial and convicted detainees together in one cell, or administrative detainees, including irregular migrants and asylum seekers, together with criminal detainees, in violation of national and international standards. Detainees are being held for months in police holding cells and border guard stations, although these facilities were designed for a maximum stay of 24 hours. The Working Group notes that this situation also affects the proper preparation for the trial, given that a defendant who has a lawyer cannot communicate with him or her in private.

Secondly, national law provides for proper safeguards for persons charged with criminal offences at the pre-trial stage. However, the Working Group found serious discrepancies between the legal requirements and the actual application of some of these safeguards. For instance, according to Greek national law, everyone, charged with a felony, has the right to have legal assistance assigned to him without payment if he does not have sufficient means to pay for it. Nonetheless, the Working Group found that in numerous instances the accused did not enjoy this right in practice. Most detainees indicated that they did not have a lawyer because they could not afford it. Very few were aware of the right to free legal assistance. Moreover, a number of detainees who had chosen to engage a lawyer at their own expense complained that the lawyers simply took their money and did not follow up on their cases. Information leaflets on the rights of detainees found in detention facilities are very vague and refer only to the right of any detainee to contact a lawyer. They do not refer to the right to free legal assistance.

With regard to migrants and asylum seekers, the Working Group recognises that administrative detention as such of migrants in an irregular situation is not in contravention of international human rights instruments. However, if there has to be administrative detention, the principle of proportionality requires it to be the last resort, permissible only for the shortest period of time and that alternatives to detention should be sought whenever possible. The practice of the Working Group demonstrates that non-application of alternatives to detention, lack of effective judicial review, as well as excessive length of such detention may render the detention of an individual arbitrary.

In this respect, the Working Group is concerned that according to domestic law, irregular migrants can be detained for a period of up to 18 months. It also notes with particular concern that the length of the maximum period of detention for asylum seekers awaiting a decision on their application was recently also extended for up to 18 months. In this respect, the Working Group wishes to emphasise that it encountered some instances where the obstacle for identifying or removing a particular migrant from the Greek territory was not attributable to him or her, including through non-cooperation of the consular representation of the third countries.
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 sometimes found to be even worse than in the regular prisons, could be considered as a punishment imposed on a person who has not committed any crime. This appears to be a serious violation of the principle of proportionality which may render the deprivation of liberty arbitrary. In addition, through interviews with detainees, the Working Group found that the prolonged period of detention was often perceived by potential asylum seekers as a deterrent in order to discourage them from submitting their applications.

The Working Group also found that these detainees had little or no information about why they were detained, and how long they would remain in detention. It is the position of the Working Group that all detainees, including irregular migrants and asylum seekers, must be informed as to the reasons for their detention and their rights, including the right to challenge its legality, in a language they understand and must have access to legal assistance.

With regard to the situation of unaccompanied minors, they are often not properly registered and are systematically detained. The Working Group notes with concern that the current national legislation does not provide for a statutory prohibition of the detention of these minors. In the course of its visit, the Working Group found that due to the limited capacity of existing reception facilities, unaccompanied minors often remain in detention for prolonged periods of time, awaiting an opening in such facilities.

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 “Xenion Zeus”, which have led to widespread detention of migrants in different parts of the country, many of whom have lived and worked in Greece for years”. In the course of its visit, the Working Group also learned about a number of sweep or round-up operations where the police would detain members of the Roma community who are Greek citizens and release them soon after without any charges. 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.

In conclusion, the Working Group would like to reiterate that it is well aware of the positive legislative changes in relation to deprivation of liberty in Greece. It encourages the Government to ensure that such developments are accompanied by effective implementation measures in strict compliance with international human rights standards. It also invites the Government to consider the issues that it has raised today.

These are the preliminary observations of the Working Group at the end of its visit. A final report on the visit will be presented to the Human Rights Council. In its report, the Working Group will submit several recommendations to the Government.

Thank you very much.

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(*) El Hadji Malick Sow is from Senegal and has been the Chair-Rapporteur of the Working Group since 2009. The other two members of the Working Group are Shaheen Sardar Ali who is the Vice-Chair (from Pakistan) and Mads Andenas (from Norway). The former Commission on Human Rights established the Working Group in 1991 to investigate allegations of arbitrary deprivation of liberty. Its mandate was extended in 1997 to cover the issue of the administrative custody of immigrants and asylum-seekers. The Human Rights Council extended the Working Group’s mandate for a further three-year period by resolution 15/18 on 30 September 2010.