The European Committee of Social Rights: International Commission of Jurists (ICJ) & European Council for Refugees and Exiles (ECRE) v. Greece
Placing protective custody for unaccompanied children at the forefront
Outline of the Substantive Issues
On 30 November 2018, the European Committee of Social Rights (the ESR Committee), charged with supervising the obligations of Council of Europe Member States, received complaint no. 173/2018. The complaint was lodged by the International Commission of Jurists (ICJ) and the European Council for Refugees and Exiles (ECRE) with the support of the Greek Council of Refugees (GCR) regarding a series of crucial systemic flaws in Greek law, policy and practice. In detail, it challenged the alleged failure of Greece to provide asylum-seeking children - located in First Reception and Identification Centres (RICs), either unaccompanied (UAM) or accompanied by their families and/or relatives - with access to certain procedural rights as enshrined in the European Social Charter (the Charter). These included access to proper and adequate accommodation services, health, social and medical assistance, education, as well as social, legal and economic protection, as will be further discussed.
More specifically, according to the complaint, Greece had failed: 1. to prevent homelessness and provide shelter for migrant children (both UAM and accompanied) in conditions compatible with human dignity, as a result of the insufficient number of age-appropriate reception and accommodation facilities; 2. to provide accompanied migrant children (on the islands) and UAM (both on the mainland and the islands) with the special care and assistance they are entitled to, coupled with the lack of an effective guardianship system, followed by detention of children in the context of the ‘protective custody’; 3. to provide proper and child-friendly accommodation as a means of safeguarding the well-being and the full development of children; 4. to secure the social, legal and economic protection of the family unit in order to avoid the exposure of migrant children to physical and moral hazards, often caused by a severe lack of inappropriate reception/accommodation conditions; 5. to facilitate the access of migrant children to health care services that include medical and psychological care, an effective guardianship system and provision of shelter and other basic needs (food); 6. to provide migrant children on the Greek islands (both UAM and accompanied) with access to free primary and secondary education.
Hence, the complainant organisations argued that the Greek domestic policy and the overall national context irreversibly led to a violation of Articles 7(10) (right of children and young persons to protection), 11(1) and (3) (right to protection of health), 13 (right to social and medical assistance), 16 (right of the family to social, legal and economic protection), 17(1) (right of children and young persons to social, legal and economic protection), 17(2) (right of children and young persons to education), and 31(1) and (2) (right to housing). At this point it should be noted that the ESR Committee recently (on 23 May 2019) issued a similar decision on immediate measures, which required the Greek Government to provide migrant children promptly with appropriate shelter, food, water, education and medical care; to remove UAM from detention and RICs at the borders, place UAM in child-friendly and appropriate accommodation and appoint UAM with effective guardians.
The complainant organisations made a request for immediate measures and on 23 May 2019 the ESR Committee declared the complaint admissible, in accordance with Article 6 of the Additional Protocol to the European Social Charter. In its decision on admissibility, the ESR Committee invited Greece to make written submissions on the merits of the complaint, whilst suggesting that the State adopt immediate measures with a view to avoiding serious, irreparable injury to the integrity of migrant children at immediate risk. Observations were submitted and registered by the European Trade Union Confederation (ETUC) and the United Nations High Commissioner for Refugees (UNHCR) on 30 July 2019 and 23 August 2019 respectively. On behalf of the complainant organisations, ICJ and ECRE invited the ESR Committee to find that Greece has repeatedly failed to fulfil its obligations under the Charter with regard to the status of UAM and accompanied migrant children (both on the mainland and islands).
In response to these complaints, Greece argued that the alleged national context was nothing more than the result of an unprecedented increase in migration flows which exceeded the carrying capacity and preparation of the islands of the North Aegean Sea and Greece in general. Therefore, Greece asked the ESR Committee to take into consideration the extraordinary nature of the situation as well as the fact that the country was already in the process of developing a new legal and procedural framework in order to facilitate and speed up asylum procedures. Adding to the latter, the ESR Committee was asked to recognise the country’s efforts to address this unprecedented humanitarian crisis and find the complaint unfounded.
In its decision on the merits, the ESR Committee found that Greece had violated a number of binding provisions of the Charter in its treatment of migrant children. More specifically, the ESR Committee unanimously found Greece to be in violation of Article 31(1) (right to adequate housing), 31(2) (right to shelter) and 17(1) (right to social and economic protection) due to the overcrowded and substandard accommodation facilities for migrant children available on the islands, and the lack of sufficient and appropriate long-term accommodation for UAM on the mainland. According to the ESR Committee, the failure to provide suitable hosting structures to migrant children led to a clear lack of healthcare and as a result to a violation of Article 11(1 and 3) (right to protection of health), whereas the inexistence of available legal guardians for UAM and separated migrant children, so that they would be provided with effective support, confirmed a violation of Article 17(1) as well.
Additionally, Greece was found to have failed to provide migrant children both on the islands and on the mainland with adequate protection against social and moral dangers, as enshrined in Article 7(10), by exposing them to risks of abuse, violence, sexual exploitation and trafficking. Furthermore, Article 17(2) (right to education) was found to have been violated due to the existing difficulties for children on the islands to access the education system.
Lastly, the issue of UAM being placed in detention facilities in Greece under the ‘protective custody’ scheme was also referred upon extensively by the ESR Committee as a violation of Article 17(1) of the Charter. In fact, the ESR Committee placed emphasis on the issue that detention of children in police stations or in closed facilities, even for short periods of time, could never be considered as an accommodation alternative suited to the age and the needs of children.
Based on the above, the ESR Committee confirmed that Greece should immediately provide migrant children with appropriate shelter, food, water, education and medical care; to remove UAM from detention and from RICs at the borders, place them in suitable accommodation for their age and appoint effective guardians. On the matter of detention for UAM in specific, the ESR Committee stated that Greece must ensure the use of alternatives to detention for migrant children, and to ensure that UAM in police stations, pre-removal centres and RICs are provided with immediate access to age-appropriate shelters. Moreover, the ESR Committee noted that ‘immediate measures’ were exceptional, but found that they were necessary in this case given the Greek State’s failure to dispel serious concerns about the gravity and urgency of the situation of migrant children in Greece.
When it comes to detention measures being applied to UAM arriving in Greece, from a procedural point of view UAM may either be apprehended immediately upon illegal entry into the country, namely at the national borders, or on the mainland, after managing to avoid arrest upon arrival. In both scenarios, the competent Ministry must be informed accordingly, so that UAM are sent to appropriate short or long-term hosting facilities after completing a series of reception and identification procedures, as enshrined in Act 4375 of 2016 (as amended by Act 4540 of 2018 and Act 4636 of 2019), building on Act 3907 of 2011. At the time this complaint was registered, five RICs were located at the Aegean Sea and more specifically at the islands of Leros, Lesvos, Kos, Chios and Samos and one RIC facility is located in the mainland, at Fylakio, Evros, near the Greek-Turkish border, all operating under the First Reception and Identification Service of the Greek Ministry of Migration and Asylum (formerly known as Ministry of Citizen Protection).
According to the applicable law, after arriving at the RIC, UAM are deprived of their liberty within the RIC’s premises for an initial period of five days, which can be extended for up to a total of twenty-five days, until all administrative procedures are completed, unless medical reasons suggest differently, in which case the individual may be permitted to exit the RIC, albeit temporarily. This process is known as protective custody, during which UAM are to be provided with sufficient and proper care, support and child-friendly services. On the other hand, if UAM are arrested on the mainland, they are most commonly transferred to detention facilities (usually located within police departments), which was specifically referred to in the ESR Committee’s decision. In that case, according to Act 4636 of 2019, as amended, detention would apply only as a measure of last resort, meaning that other suitable hosting facilities for UAM were unavailable at that moment and only for a short period of time, namely for twenty-five days, until UAM are referred to appropriate accommodation units. However, despite the letter of the law, the reality in Greece dictates that in most cases UAM are transferred directly to detention facilities upon arrest, where they are subjected to inappropriate conditions.
The issue of subjecting UAM in Greece to ‘protective custody’ is a topic of discussion which has been extensively dealt with in the case-law of the European Court of Human Rights (ECtHR) where the violation of the best interests of the child principle, as enshrined in Article 3 (1) of the UN Convention on the Rights of the Child (CRC) has been clearly demonstrated. This is evident in numerous decisions, such as in M.S.S. v. Belgium and Greece (2011) and Rahimi v. Greece (2011), in which the Court focused on the violations of Art. 3 CRC, due to the dreadful detention conditions that the applicants were subjected to, coupled with the fact that the State had never examined whether UAM had been placed in detention as a measure of last resort. Similarly, both in H.A. and others v. Greece (2019) and in Sh. D. and Others v. Greece, Austria, Croatia, Hungary, North Macedonia, Serbia and Slovenia (2019), the ECtHR emphasised on the fact that the procedures of ‘protective custody’ that were applied to UAM after their illegal entry in the country, involved degrading detention conditions within police departments. These conditions inevitably caused children to feel secluded and also challenged their state of affairs, thus causing feelings of isolation from the outside world, with potentially negative repercussions on the children’ physical and mental well-being.
Interestingly, the ESR Committee’s decision on the merits arrived at a crucial time for Greece as the country is still in the process of acknowledging the problematic aspects of ‘protective custody’ and attempting to restore the country’s compliance with European Directives concerning the protection and promotion of children’s rights in the context of migration. In fact, in November 2020 the Greek Government introduced Act 4670/2020 and officially announced the overall abolishment of ‘protective custody’ for UAM, along with the establishment of national mechanisms for the protection of UAM living in precarious conditions. The recent additions to the national context, just a few months before the ESR Committee’s decision was issued, clearly depict the efforts of the Greek Government towards improving reception procedures in favour of UAM and replacing the current detention context with suitable accommodation alternatives.
Given the above, the ESR Committee’s decision is more important than ever as it successfully reveals the context of ‘protective custody’ that UAM in Greece have been experiencing in the recent past. Hence, despite the legal and administrative issues that still exist concerning the recent advancements in the letter of the law as aforementioned, the ESR Committee’s decision verifies the need for a more effective national context to be introduced so that detention practices eventually cease to pose a viable reception alternative for UAM arriving in the country irregularly, thus allowing for their rights to be protected in an adequate manner. The latter would be achieved by focusing on restructuring and strengthening the current referral pathway mechanisms in order to create policies that support the child’s best interests at arrival, as well as safeguard the path en route to all administrative processes that may follow.
Author’s most recent publications on detention processes for UAM in Greece
- Papadopoulos I (2022 - in press) Exploring the non-implementation of Art. 12 CRC in Greece; the case of unaccompanied minors in detention. ‘Contemporary societies in motion: pioneering qualitative research methods in the study of deviance and social control’ International Conference. National Centre of Social Research, Athens, Greece.
- Papadopoulos I (2021) Examining the Status of Detained Migrant Unaccompanied Minors in the Greek Context. Crossing the threshold of a new era? Border Criminologies Blog - Oxford Law Faculty - Oxford, UK. Available at https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2021/06/examining-status.
- Papadopoulos I and van Buggenhout M (2020) Giving voice to migrant children during reception and asylum procedures. Illustrations on the implementation of Art. 12 CRC in Greece and Belgium. Revista Española de Investigación Criminológica, 18(2): 1-23. Available at https://doi.org/10.46381/reic.v18i2.347.
- Papadopoulos I (2020) How protective is custody for unaccompanied minors in Greece? Protecting children’s rights within detention. In Klaassen M, Rap S, Rodrigues P and Liefaard T (Eds.), Safeguarding Children’s Rights in Immigration Law (p. 179-194). Cambridge, Intersentia. Available at https://doi.org/10.1017/9781780689814.010.
- Papadopoulos I and Pycroft A (2019) Detention as protective custody for Unaccompanied Migrant Minors: A social and legal policy overview of the Greek framework on conditions of detention, under the scope of the United Nations Convention on the Rights of the Child. In Guzik-Makaruk EM and Pływaczewski EW (Eds.), Current Problems of the Penal Law and Criminology (p. 581-597). C.H. Beck, Warsaw. Available at https://www.ksiegarnia.beck.pl/18804-current-problems-of-the-penal-law-and-criminology-aktuelle-probleme-des-strafrechts-und-der-kriminologie-ewa-guzik-makaruk.