Diplomarbeit

zur Erlangung eines Titels des Magister der rechtswissenschaftlichen

Fakultt an der Karl-Franzens-Universitt Graz

am Institut fr Vlerrecht und Internationale Beziehungen

ber das Thema

Case Studies on the Implementation of European Human Rights

Standards for Irregular Migrants in Detention,

eingereicht von

Rainer Eggarter (Matrikelnummer: 9813001)

Betreuerin: Ass. Prof. DDr. Renate Kicker

Graz, 06.07.2011

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Ehrenwrtliche Erklrung

Ich, Rainer Eggarter, erklre hiermit, dass ich die vorliegende wissenschaftliche Arbeit selbststndig

angefertigt und die mit ihr unmittelbar verbundenen Ttigkeiten selbst erbracht habe. Ich erklre

weiters, dass ich keine anderen als die angegebenen Hilfsmittel benutzt habe. Alle aus gedruckten,

ungedruckten oder dem Internet im Wortlaut oder im wesentlichen Inhalt bernommenen

Formulierungen und Konzepte sind gem den Regeln fr wissenschaftliche Arbeiten zitiert und

durch Funoten bzw. durch andere genaue Quellenangaben gekennzeichnet. Die wissenschaftliche

Arbeit ist noch keiner anderen Prfungsbehrde vorgelegt worden. Diese Arbeit wurde in

gedruckter und elektronischer Form abgegeben. Ich besttige, dass der Inhalt der digitalen Version

vollstndig mit dem der gedruckten Version bereinstimmt.

Unterschrift Graz, 30. Juni, 2011

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Danksagung

Diese Diplomarbeit mchte ich meinen Eltern widmen. Ihrer Geduld und Untersttzung in allen

Lebenslagen verdanke ich den Abschluss meines Studiums.

Ausserdem mchte ich mich bei meiner Betreuerin, Prof. DDr. Renate Kicker, fr ihre Hilfe,

Geduld und ausdauernde Untersttzung bedanken.

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Case Studies on the Implementation of European Human

Rights Standards for Irregular Migrants in Detention

Table of Contents:

A) Introduction 6

B) European human rights law and standards for irregular migrants in detention 8

B1) Legally binding rules in international law 8

B1a) The right to liberty and security: Art 5 ECHR, Art 9 UDHR and Art 9

ICCPR 8

B1b) The prohibition of torture: Article 3 ECHR 9

B1c) The fundamental principle of non refoulement 10

B1d) The twenty guidelines on forced return 11

B1e) The DUBLIN II Regulation 12

B2) The Committee for the Prevention of Torture ( CPT) 13

B3) The CPT standards regarding irregular migrants in detention 14

C) Case Studies in the Light of the Implementation of the Standards set by the CPT 19

C1) Greece

C1a) Visit 25/08/2005 09/09/2005 20

C1b) Visit 20/02/2007 27/02/2007 33

C1c) Visit 23/09/2008 29/09/2008 46

C1d) Visit 17/09/2009 29/09/2009 54

C1e) The public statement by the CPT concerning Greece 67

C1f) Conclusions regarding the Cooperation between the CPT and Greece 68

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C2) Italy

C2a) Visit 16/06/2006 23/06/2006 70

C2b) Visit 14/09/2008 26/09/2008 77

C2c) Visit 27/07/2009 31/07/2009 81

C2d) Conclusions regarding the Cooperation between the CPT and Italy 88

D) Conclusio 89

E) Sources 92

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A) Introduction

Migration of people has always existed in the history of human kind. Especially in the last decades

the phenomenon of a massive migrative movement of human beings from developing countries

towards industrialized nations has augmented dramatically.

Today the topic of illegal immigration has become a key issue of European politics.

Regarding the facts of economic development, globalisation and also climatic change, this

phenomenon is becoming more and more important not only to single European countries, but to

the European Community as a whole.

The European Union is facing an urgent problem in the case of how to cope with this situation as

well. European states, which are, because of their geographic position, more affected by the

migrative movement than others, urge for a common assessment of the situation.

In fact, the total numbers of immigrants who have reached the shores of for example Greece, Spain

and Italy have risen dramatically in the last 10 years.

Today, the civil societies of European states are aware of the fact of increasing immigration which

is affecting Europe, but they are not the only ones.

Political parties, mostly from the 'right wing' have discovered the topic of immigration, using it as

an argument for national policies based on inequality and discrimination.

The European Convention on the Prevention of Torture and Inhuman or Degrading Treatment or

Punishment ( ECPT) is the legal framework for the CPT a monitoring and standard setting body -

provided by the Council of Europe, for securing general standards of human rights for detained

persons.

These are human rights standards, which offer guidelines for the countries who are members of the

Council of Europe.

Civil society needs to understand that human rights do not exist only to protect some minorities

from ill treatment, but that human rights standards are functioning as a safeguard for a

democratic society itself.

In my thesis I want to take a closer look at the work of the Committee for the Prevention of Torture1

1 Further on referred to as the 'CPT' or 'Committee'

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in the countries of Greece and Italy, simply because these countries are two of the most effected

ones in the EU by irregular migration.

Which are the benefits of the work of the CPT? Did it contribute to improving human rights

standards in these countries?

Which are the single safeguards for irregular migrants in detention and which international treaties

contribute to them?

Another important aspect is, to what extent the principle of non refoulement is being respected

and put in practice by European countries, which are parties to the U.N. Convention about the

Status of Refugees and /or it's Protocol of 1967.

In my thesis I am trying to find out if / how human rights standards in this case a bundle of

safeguards, set by the CPT - are being implemented by two member states of the Council of Europe

and the European Union: Greece and Italy. This I intend to achieve by looking into the reports of

the CPT following their visits to these two countries and the states' responses which follow the

reports.

This is an opportunity to find out about the ability and willingness of states regarding the

implementation of certain human rights standards, set by the CPT.

Further on it provides at least to a certain extent comparable data regarding the quality of

cooperation of two different countries with an expert body.

The CPT' s definition of 'irregular migrants in detention': This is the term to denote persons

who have been deprived of their liberty under aliens legislation either because they have entered a

country illegally (or attempted to do so) or because they have overstayed their permission to stay in

the country in question.2

Further on it needs to be clear, that asylum seekers are not irregular migrants, although they may

achieve the same status, if their application for asylum is rejected.

2 19th General Report of the CPT's activities ( 2008 - 2009), paragraph 76

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B) European human rights law and standards for irregular migrants in

detention

B1) Legally binding rules in international law

B1a) The right to liberty and security: Art 5 ECHR, Art 9 UDHR and Art 9 ICCPR

Unlike the detainment of a person awaiting trial for being suspected of having committed a crime or

incarceration after a conviction, administrative detention means the deprivation of liberty by state

authorities without trial.

Art 5 (f) ECHR states: 1. Everyone has the right to liberty and security of person. No one shall be

deprived of his liberty save in the following cases and in accordance with a procedure prescribed by

law:

(f): the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the

country or of a person against whom action is being taken with a view to deportation or

extradition.

Administrative detention may only be ordered after an individual examination, if this measure was

necessary to ensure that a removal order was executable. Further on, the measure needs to be based

on national law and may only be ordered, if no other measure but administrative detention can

assure the execution of the removal order effectively.

Art 93 of the Universal Declaration of Human Rights ( UDHR)4 and Art 95 of the International

3 No one shall be subjected to arbitrary arrest, detention or exile.4 Adopted by the United Nations General Assembly on 10 December, 1948. 5 1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law. 2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him. 3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.

4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.

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Covenant on Civil and Political Rights ( ICCPR)6 provide, that administrative detention may only

be applied in a very restrictive way and following clear rules, not to be qualified as arbitrary arrest.

B1b) The prohibition of torture: Article 3 ECHR

One year after the foundation of the Council of Europe in 1949, the European Convention on

Human Rights was signed in Rome. It entered into force on September 3, 1953 and guarantees a

number of fundamental human rights to every person within the territory of the countries which

have ratified the ECHR.

Article 3 ECHR the prohibition of torture - is crucial for my thesis: No one shall be subjected to

torture or to inhuman or degrading treatment or punishment.

Art 3 ECHR is forming an absolute rule, which means that it is not accessible to any kind of

reservations or exceptions. This means that every person has to be protected from torture, inhuman

treatment or punishment, who is deprived of his / her liberty.7

In detail, Art 3 ECHR is prohibiting three different types of treatment:

As torture a certain measure can be qualified, if it is a deliberate treatment, which evokes serious

and cruel suffering.8

Cases, which have been qualified as torture by the European Court of Human Rights ( ECtHR) are

for example the rape of a female detainee by the police.9

Inhuman treatment is called a measure, which causes intense mental or physical suffering. In the

case Gfgen vs. Germany ( June 2010) the ECtHR qualified it as inhuman treatment, when police

officers threatened the applicant with imminent pain for the purpose of extracting information.10

It has to be kept in mind that it greatly depends on the individual case, if a measure can be called

'inhuman treatment'. For example state of health, sex and age need to be considered if a certain

treatment was able to cause fear and humiliation. An example for inhuman treatment was seen by

the ECtHR in the case of interrogation of a detainee by the police, where a person had to stand

5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.

6 Adopted by the United Nations General Assembly on 16 December, 1966.7 UNHCR, Refugee Protection: A Guide to International Refugee Law, December 2001.8 Christoph Grabenwarter, Europische Menschenrechtskonvention, 2007, 209 ECtHR, Aydin vs. Turkey, September 25 1979, App. No. 23178/9410 http://echr.coe.int/echr/en/hudoc

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blindfolded for several hours with a high noise level.11

As degrading treatment or punishment a measure is qualified, which possibly provokes fear,

anguish and the strong feeling of inferiority and might break the physical and moral resistance.12

As degrading treatment or punishment the ECtHR qualified court ordered physical punishment.13

B1c) The fundamental principle of non refoulement

Article 33 (1) of the 1951 Geneva Convention on the status of Refugees states: No contracting

state shall expel or return (refouler) a refugee in any manner whatsoever to the frontiers of

territories where his life or freedom would be threatened on account of his/her race, religion,

nationality, membership of a particular social group or political opinion.

Article 33 (2) of the same Convention provides a number of exceptions from Art 33 (1): Basically a

refugee may be returned forcibly, if he constitutes a serious threat to the security of the country he

tries to enter, or to its community.14

It must be underlined, that the provision of Art 33 (2) is to be applied in a highly restrictive way. A

country, trying to apply this provision has to prove that there is a direct connection between the

refugee' s presence in a certain country and a national security threat to that very country.15

The European Court of Human Rights (ECtHR) and the United Nations Human Rights Committee

have interpreted the articles regarding the prohibition of torture and inhuman and degrading

treatment and punishment - namely Art 7 of the International Covenant on Civil and Political

Rights (ICCPR) and Art 3 of the European Convention on Human Rights in a way, declaring the

principle of non refoulement as an inherent part of these articles.16

11 ECtHR, Ireland vs. United Kingdom, Jan 18 1978, App. No. 5310/7112 Jim Murdoch, The tretament of prisoners European standards, 2006, p. 11913 ECtHR, Tyrer vs. United Kingdom, April 25, 1978, App. No. 5856/7214 The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable

grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.

15 Human Rights Watch, Human Rights Implications of European Union Internal Security Proposals and Measures in the Aftermath of the 11 September Attacks in the United States, November 2001, http://www.hrw.org/press/2001/11/eusecurity.htm

16 ECtHR decisions in:1.: Soering v. United Kingdom, 7 July 1989; Cruz Varas v. Sweden, 20 March 1991;

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Further on, a derogation from Art 3 ECHR or Art 7 ICCPR is not allowed under any circumstances.

This makes the principle of non refoulement an absolute rule and is also widely recognised as

common law.17

B1d) The twenty guidelines on forced return

The Twenty Guidelines on Forced Return - adopted by the Ministers of the Council of Europe on 4

May, 2005 - are meant to be a useful tool for the governments of the member states of the Council

of Europe to implement laws and best practices in accordance with international human rights

standards.18

According to these guidelines, administrative detention may only be ordered after an individual

examination, if this measure was necessary to ensure that a removal order was executable. Further

on, the measure needs to be based on national law and may only be ordered, if no other measure but

administrative detention can assure the execution of the removal order effectively.

The state must provide for the possibility of legal remedy against the order of administrative

detention. In case of such an appeal, a court must decide speedily, if the measure of detainment was

lawful. If the court denies the lawfulness of it, the detainee must be released immediately.

The length of administrative detention must be kept as short as possible. On a regular basis it should

be examined if the measure was still necessary.

At the moment of the detainment of an irregular migrant, the person must be informed rapidly about

his situation and his rights in a language he can understand.

These rights are in detail: Access to a lawyer; access to a medical doctor; the right to inform a third

2.: Vilvarajah and Others v. United Kingdom, 30 October 1991;3.: Chahal v. United Kingdom, 15 November 1996; 4.: Ahmed v. Austria, 17 December 1996;5.: TI v. United Kingdom (Admissibility), 7 March 2000;6.: Saadi v. Italy, 22 February 2008;7.: Ben Khemais v. Italy, 24 February 2009, 8.: O. v. Italy, 24 March 20099.: Sellem v. Italy, 5 May 2009. 17 UNHCR, Refugee Protection: A Guide to International Refugee Law, December 2001.18 The 20 Guidelines on forced return, adopted by the Committee of Ministers on 4 May 2005

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person of one's situation.

Regarding the detention facility, states should always keep in mind, that the detained must not be

treated like criminal suspects. Therefore the centre of detention should not have the character of a

prison and be adequately furnished and clean.

Carefully selected staff regarding language skills and adequately trained for the difficult task are

indispensable.

The detainment of irregular migrants together with criminal suspects should be avoided.

B1e) The DUBLIN II Regulation

Council Regulation (EC) No 343/2003 of 18 February 2003 ( also known as DUBLIN II

Regulation)19 is establishing the criteria and mechanisms for determining the Member State

responsible for examining an asylum application lodged in one of the Member States by a third-

country national, based on Art 78 (1)20, (2a)21 of the consolidated Treaty of the European Union -

(ex Articles 63, points 1 and 2, and 64(2) TEC22):

One of the Dublin II regulation' s main purposes was the fast determination of which member state

was responsible for an asylum application, to resolve the problem of various applications for

asylum in different EU member states.

According to this Regulation, in most cases, the responsible member state will be the one where the

asylum seeker entered the territory of the EU for the first time.

19 http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32003R0343:EN:HTML20 1. The Union shall develop a common policy on asylum, subsidiary protection and temporary protection with a

view to offering appropriate status to any third-country national requiring international protection and ensuring compliance with the principle of non-refoulement. This policy must be in accordance with the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees, and other relevant treaties.

21 2. For the purposes of paragraph 1, the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, shall adopt measures for a common European asylum system comprising:

(a) a uniform status of asylum for nationals of third countries, valid throughout the Union; 22 TEC: Treaty of the European Community.

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B2) The Committee for the Prevention of Torture ( CPT)

Article 3 of the ECHR states: No one shall be subjected to torture or to inhuman or degrading

treatment or punishment.

Based on this Article, on September 26, 1987, the member states of the Council of Europe adopted

the European Convention on the Prevention of Torture and Inhuman or Degrading Treatment or

Punishment ( ECPT).23

Article 1 of the ECPT states : There shall be established a European Committee for the Prevention

of Torture and Inhuman or Degrading Treatment or Punishment (hereinafter referred to as "the

Committee"). The Committee shall, by means of visits, examine the treatment of persons deprived of

their liberty with a view to strengthening, if necessary, the protection of such persons from torture

and from inhuman or degrading treatment or punishment.

According to Article 4 of the ECPT, the members of the European Committee for the Prevention of

Torture and Inhuman or Degrading Treatment or Punishment ( CPT) are elected by the Committee

of Ministers of the Council of Europe. The number of members equals the number of parties to the

convention so there are currently 47 members of the CPT, one from each state which is party to

the ECPT.

The CPT is an expert body, obliged to visit places of detention of the member states of the Council

of Europe. These visits are made by delegations -which are consisting of several members of the

CPT, accompanied by staff and interpreters, if necessary and are usually carried out periodically

every 4 years per member state, but additional ad hoc visits are also possible, if necessary. As

defined by the Convention, places of detention are all places where people are being held against

their will by a public authority. After each visit, a report is to be drawn up about the findings,

followed by recommendations on how to improve the actual situation in detention facilities. These

recommendations are underlining the fact, that the standards, set by the CPT, are not legally

binding.

The basic principles of the work of the CPT are cooperation and confidentiality, aiming at helping

member states to improve the situation of human beings in detention, rather than condemning states

for having failed to do so on their own. Still, if a member country refuses to meet the

23 http://www.cpt.coe.int/en/documents/ecpt.htm

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recommendations made by the CPT, according to Art 10 (2) ECPT, the Committee may decide, after

the party has had an opportunity to make known it' s views, by a majority of two thirds of it' s

members, to make a public statement on the matter.

Although the report regarding the situation of detained people in the different member countries of

the Council of Europe would be confidential, almost all member states agreed to make them

accessible to the public reports and states' responses can be found on the internet.24

For a better understanding of the steady process of cooperation between the expert body of the CPT

and the single states, I'm applying the following form of writing in my thesis:

Every recommendation regarding a special topic is being followed immediately by the relevant

state's response in cursive letters.

At the end of my thesis I will try to compare the level of cooperation between the two countries

with the CPT. Are the recommendations of the expert body accepted and applied?

All the work of the Committee depends on the willingness to cooperate which the governments of

the countries show, who have signed and ratified the Convention on the Prevention of Torture.

B3) The CPT standards25 regarding irregular migrants in detention

The standards regarding the guidelines on how detained persons are to be treated and accomodated

is regularly updated by the CPT.26 Since the CPT had published its' view regarding the rights and

safeguards for irregular migrants in the 7th General Report in 1997 and after numerous visits to

places of detention for these people, the Committee has reached the opinion that Irregular Migrants

are an especially vulnerable group to various forms of ill treatment, from the moment of

apprehension, during their time in detention to when being deported.27

Although the phenomenon of massive migrative movement is a serious and difficult task in the

24 http://www.cpt.coe.int/en/visits.htm25 According to the 19th General report on the CPT's activities (2008 2009), paragraphs 77ff26 http://www.cpt.coe.int/en/docsstandards.htm27 19th General report on the CPT's activities, paragraph 75

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majority of European Council member states, there is still no comprehensive legal instrument which

would provide the standards and safeguads regarding irregular migrants in detention. Clear,

applicable rules can only be found in the 2006 European Prison Rules. These can be applied to

Irregular Migrants who are being held in prison, but it has to be pointed out that Irregular Migrants

generally shouldn't be held in prisons at all. Since according to Art 5 (1) f28 of the ECHR the

reason for the detention of an irregular migrant is completely different from the reason for the

detention of a criminal suspect or convicted offender, Irregular Migrants should never be kept in

the same facility or even the same cell with a convicted person or suspect.

In some member states of the Council of Europe, authorities apply a policy of locking up all

irregular migrants awaiting deportation, without regarding a time limit or judicial review. This

'administrative detention', according to the CPT, is opposing the case law of the ECtHR, if

authorities do not check for its' necessity in each individual case.

Either way, if administrative detention is considered necessary, the facilities for the detention of

irregular migrants should reflect the legal status and situation of this group of people. Restriction of

movement should be minimized, contact with NGOs and the outside world as well as various

activities should be made possible.29

In practice, the delegations of the CPT found irregular migrants detained in various types of

facilities: In police stations, prisons, special holding centres for Irregular migrants or holding

centres at points of entry. It has to be clarified, that a migrant who refused entry into a country and

is held in an 'international zone' of an airport, is also being deprived of his/her liberty. The argument

that such a person was not deprived of his/her liberty, since it could take any international flight to

leave, has been denied by the ECtHR:"The mere fact that it is possible for asylum seekers to leave

voluntarily the country where they wish to take refuge cannot exclude a restriction ("atteinte") on

liberty ....holding the applicants in the transit zone .... was equivalent in practice, in view of the

restrictions suffered, to a deprivation of liberty".30

Point of entry holding facilities like on international airports have been visited by delegations of the

28 1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (f): the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

29 CPT/Inf/E (2002) 1 - Rev. 2010, page 54, paragraph 2930 Amuur vs. France, judged by the ECtHR on 25 june 1996: Breach of Art (5) 1f ECHR

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CPT various times. In most occasions these facilities were completely inappropriate for the

detainment of people for more than 24 hours. Lacking means for the storage of luggage; inadequate

sanitary and washing facilities; inadequate provision of food and medical assistance were usual

deficits at these places.31

In some countries irregular migrants were forced to stay in police stations. Apart from the fact that

these places are not equipped for the detention of persons for more than 24 hours, many times the

material conditions were poor and the migrants even had to share cells with criminal suspects,

which is unacceptable for the reasons explained before. In various cases irregular migrants were

detained for more than a week or even months.32

In various cases irregular migrants were being kept in prisons. Apart from the fact that a prison

usually is not equipped for the needs of Irregular Migrants like especially trained staff it is not a

place where to keep a person who has not committed any sort of crime.33

In the view of the CPT, irregular migrants should generally be accomodated in centres specifically

designed for that purpose. These places should provide adequate material conditions, a suitible

regime and and especially trained staff which is able to assist the detained a task which is hardly

possible to be fulfilled by a normal prison guard. It is easy to understand that the personnel of such

facilities needs to be well selected and trained, regarding different languages, but also conflict

management. Many detainees might find it difficult to accept that they were being detained without

having committed any sort of crime. Also, ethnic tensions between migrants of different cultures

and nations may occur.34

Authorities also should seek to build these facilities in a way to avoid a carceral environment. The

CPT is pleased to see that various member states are following its' recommendations regarding

these special detention centres.

The basic safeguards for Irregular Migrants in detention are as for every detained person access

to a lawyer; access to a medical doctor; the right to inform a third person of one's choice about the

detention measure.35

The right to have access to a lawyer is effectively provided, if the detainee is allowed to talk to a

lawyer in private and to have him present when being interviewed by state authorities. Also, legal

31 CPT/Inf/E (2002) 1 - Rev. 2010, page 54, paragraph 2632 CPT/Inf/E (2002) 1 - Rev. 2010, page 54, paragraph 2733 CPT/Inf/E (2002) 1 - Rev. 2010, page 54, paragraph 2834 CPT/Inf/E (2002) 1 - Rev. 2010, page 54, paragraph 2935 CPT/Inf/E (2002) 1 - Rev. 2010, page 54, paragraphs 30, 31

16

advice regarding residence, detainment and deportation needs to be provided. In the case that the

detained person can not affort to pay for the legal support, free legal aid must be provided.

Access to a medical doctor means, that every migrant should be examined by a doctor or a qualified

nurse at the beginning of his/her detention. This measure is crucial not only for the detainee's

health but also for every other person at the detention site, be it detainee or staff. Regularly,

Irregular Migrants are suffering from traumas due to torture or ill treatment which they had

suffered in their countries of origin. Especially trained medical personnel should be available in a

centre for the detainment of Irregular Migrants.

Confidentiality of medical information needs to be kept in mind. The medical record of a detainee

should not be accessible by anybody else but the medical staff.

For the purpose of fighting torture and ill treatment by state authorities, medical personnel needs

to record the results of medical examinations in every case of alleged ill treatment. Even if the

detainee does not claim having been ill treated, but the results of a medical examination give

reason to believe that maltreatment may have occurred, the relevant judicial authorities need to be

informed.

The right of informing a third person of his/her choice about his situation includes the detainees

right to maintain contact with the outside world. That means that NGOs and relatives must be

allowed to visit the detainee. Also, these persons should be allowed to make phone calls for that

purpose authorities should allow newly arriving migrants to keep their mobile phones if they have

one.

When arriving at a detention centre, every detainee should be informed about his rights in a

language he/she understands. To achieve this, the CPT recommends state authorities to provide

documents providing this information in languages which the arriving migrants usually understand.

Further on, authorities should draw up a detention order for every detainee which is to be kept

available at the centre the individual migrant is detained.

The CPT also recommends that authorities draw up clear house rules at the detention centres in

various languages. That measure is known to facilitate greatly both the detainees stay and the work

of staff. Clear rules and possible disciplinary sanctions need to be known and explained before

being executed. A possibility to appeal against a measure should be installed as well.

The CPT encourages member states to install independent monitoring bodies. These should be

17

allowed to visit the centres of detention for Irregular Migrants frequently and without previous

notice and to talk to the detainees in private. Such an independent body could monitor the overall

situation of the detained people regarding their basic rights as well as the material conditions.

The prohibition of torture and ill treatment, provided by Art 3 ECHR includes, that a state must

not return an irregular migrant to a country where he/she is running a serious risk of being tortured.

Any communications addressed to the CPT in Strasbourg by persons alleging that they are to be

sent to a country where they run a risk of being subjected to torture or ill-treatment are immediately

brought to the attention of the European Commission of Human Rights36 . The Commission is better

placed than the CPT to examine such allegations and, if appropriate, take preventive action.

If an immigration detainee (or any other person deprived of his liberty) interviewed in the course of

a visit alleges that he is to be sent to a country where he runs a risk of being subjected to torture or

ill-treatment, the CPT's visiting delegation will verify that this assertion has been brought to the

attention of the relevant national authorities and is being given due consideration. Depending on the

circumstances, the delegation might request to be kept informed of the detainee's position and/or

inform the detainee of the possibility of raising the issue with the European Commission of Human

Rights (and, in the latter case, verify that he is in a position to submit a petition to the Commission

). 37

Anyway, the CPT's job is rather to check, if the legal process and structures within a member state

provide a guarantee that a migrant is not being sent to a country where he might suffer torture or ill

treatment. That includes that a decision ordering the deportation of a person is appealable and that

state authorities have the necessary information about the human rights situation in a third country

in question.

Having in mind these guidelines the CPT cannot tolerate the policy of intercepting refugee boats at

sea and returning them to Africa, which is currently being applied by certain member states. Such a

policy must be qualified as a breach of the crucial principle of non refoulement. Especially, if the

refugees are sent back to a country which is not party to the 1951 Geneva Convention to the status

or refugees.

Regarding the execution of expulsion orders, the CPT had to remind the member states that certain

36 Since 1 November 1998: "European Court of Human Rights"37 CPT standards: CPT/Inf/E (2002) 1 - Rev. 2010, page 56, paragraph 33

18

measures are completely unacceptable. The force and measure applied by state outhorities must not

be extensive. Beatings to enforce a person to enter a plane or to punish him/her for not having done

so are completely unacceptable. Gagging is known to be a highly dangerous measure from the

medical point of view and can not be accepted having in mind medical ethics.38

Finally, regarding the detainment of children, the CPT wants to make it clear that the detention of a

minor39 is hardly ever justified. Due to Art 3 (1)40 of the UN Convention on the Rights of a Child, a

detention order against a minor just because of the absence of a residence status, is unacceptable.

Member states need to have in mind the special vulnerability of children, especially if they are not

accompanied by parents, relatives or other persons taking care of them.

Specifically trained personnel should interview the child of course in a language it can understand

assessing the child's vulnerabilities due to violence, trafficking or traumas. Access to legal help

should be provided in a fast and simple way. In case the child is unaccompanied a representative

should be named, taking care of the child's needs such a process needs to be controlled regularly.

In places for the detainment of children, a regular presence of psychologists and social workers is

crucial. Mixed gender staff and the separation from adult inmates showed positive results regarding

the social climate in such facilities.

Of course, if a child is separated by it's parents or other relatives, separating them should be

avoided.

C) Case Studies in the Light of the Implementation of the Standards set by

the CPT

In this chapter I am trying to show in detail how the CPT is developing it's standards regarding the

treatment of irregular migrants in detention. The specific recommendations regarding a single place

of detention in the visited state is immediately followed by the state' s response in case there was

38 13th annual report on the CPT's activities, Strasbourg, 10 September, 2003 paragraphs 32ff39 Which means: Younger than 18. In case of doubt, the person should be treated like a minor.40 1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of

law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

19

any.

By presenting the information in this way I believe that the reader can get a good impression on

how time consuming and sometimes frustrating the work of the delegations must be. Still, various

positive results which are achieved during the years show that the Committee in some cases only

by formulating recommendations achieves far more than someone would have expected.

Going into detail, in the reports and governmental responses regarding Greece, the reader will find a

lot of information about irregular migrants being detained in police and border guard stations a

policy which is being systematically critizised by the CPT.

Italy, on the other hand, is showing a different approach regarding the detainment of irregular

migrants: Not only that irregular migrants are generally being detained in specific centres, apart

from other detained people like criminal suspects, but also by the fact that in Italy NGOs - instead

of employees of the state like in Greece - are running the centres of detention for irregular

migrants. In detail, the UNHCR representative' s role is to identify and to assist potential asylum

seekers, the IOM representative's task is to provide information about the Italian immigration

legislation and to assist in voluntary repatriations. The Red Cross representative' s job is to take care

of unaccompanied juveniles and other general humanitarian tasks.

C1) Greece

C1a) Visit 27/8/2005 09/09/2005

Police headquarters and stations, which were only supposed to hold criminal suspects for short

periods, are also in use for prolonged detainment of irregular migrants.41

In general, the conditions in police headquarters and stations still have to be called less than

satisfactory. In some cases the situation can even be called inhuman and/or degrading. The CPT' s

recommendations in previous visits had generally been the same, regarding occupancy rates,

material conditions, hygiene and the possibility of exercise.

The current situation is being qualified as having slightly improved, compared to previous visits, but 41 CPT/Inf (2006) 41, Paragraph 23

20

still there's a lot of work ahead, according to the CPT.42

At Athens Police Headquarters ( 3rd floor Juvenile Department), Chios Town , Corfu Town,

Komotini Town police stations , the situation of detainees was being qualified as acceptable in the

case of a short stay. Only basic repair work to ensure the functioning of of the lighting and showers

was necessary in some cases.43

On the opposite, Alexandroupolis Police Station offered hardly any access to natural light and the

sanitary installations were extremely dirty. Mytilini Police Station was described as acceptable in

the case of short period stays, if the hygienic situation would be improved (clean blankets, cleaning

of detention area, enlargement of toilet area).

The Committee was told by the Greek authorities, that both stations, Mytilini and Alexandroupolis,

were to be closed within a year after the visit.

At Athens Police Headquarters (7th floor) and Drapetzona Police Station improvements compared to

the visit in 2001 could be noticed.

Still, since these places are not suitable for prolonged stays, for example because of the lack of

outdoor exercise, the CPT was concerned about the fact that in August 2005, 55 irregular migrants

had spent more than 3 days in these facilities and one even 22 days.

Drapetzona Police Station seemed to be used almost only for detaining irregular migrants and was

constantly overcrowded. The lack of reading materials, television, outdoor exercise, was worsening

the situation even more.

At Kypseli Police Station improvements could be noticed regarding the basement detention area,

compared to the CPT's previous visit in 2001. Still, access to natural and artificial lighting and

ventilation had to be quoted as insufficient. The efforts made to achieve hygiene and cleanliness

could not be seen as satisfactory, but the Committee's biggest concern regarded the situation that

irregular migrants were being kept in their cells for periods up to three months, without the

possibility of activities like the access to an exercise yard.44

A situation which could be described as amounting to inhuman and/or degrading treatment was

found at Omonia Police Station in Athens. The detention area in the 1st floor, with an official

capacity of 34 persons, was in a bad condition. With hardly any fresh air due to an inefficient

42 CPT/Inf (2006) 41, paragraph 2243 CPT/Inf (2006) 41, paragraph 2444 CPT/Inf (2006) 41, paragraph 24

21

ventilation system, a lack of natural light and poor artificial light, the atmosphere was hot and

humid, with the cells in semi-darkness. Male detainees claimed that at night they had no access to

the toilet. Since the in-cell toilet was broken and due to the lack of call bells in the cells it was

impossible to call a guard to open the cell door at night time. Female detainees complained that they

had to drink from the toilet due to the lack of food and water. Four detainees had been there for 75

days, while they had no access to an outdoor exercise yard or any other activities.

Finally, the delegation noted a pair of handcuffs in a holding room above the detention area

attached to a bench. A handcuffed person would be forced to take a very uncomfortable position or

lie down on the floor.45

In their response to the report of the CPT, the Greek authorities described the detention area at

Omonia Police Station as a newly built facility with ventilation, air condition, baths, toilets and

access to natural and artificial light. Since the number of occupants was being watched closely all

the time, overcrowding was being impeded effectively by the measure of redistribution to other

centres of detention when necessary.46 The pair of handcuffs, the delegation of the CPT had found

in the holding room above the detention centre, had already been removed.

Like Police Headquarters, Border Guard Police Stations were considered only as acceptable for

short period stays by the Committee.

In detail, the toilets and showers of Tychero and Iasmos were dirty, but the detention areas were in a

good condition and had good access to natural light and ventilation. In Soufli the hygienic and

material conditions were fine. In contrast, at Ferres Border Guard Station, various problems were

encountered: The sanitary area was filthy and there were only 12 mattresses for 15 detainees at the

day of the CPT' s visit. Also, the delegation noted that there were no heating devices for the winter

time at Ferres and Iasmos.

Like in the case of Police headquarters and stations, at Iasmos and Ferres especially women and

family groups appeared to be forced to stay in these places for up to 3 months. An unacceptable

situation, since these facilities lack the equipment and the outdoor areas for such kind of use.47

Regarding the detention areas at Tychero, Iasmos, Soufli and Ferres, the Greek authorities

responded, that all four centres had already been equipped with a functioning heating device and

45 CPT/Inf (2006) 41, paragraph 2546 CPT/Inf (2006) 42, page 11 47 CPT/Inf (2006) 41, paragraph 27

22

that every arriving person was now being handed over cleaning items and provided clean bedding.48

As an example for Greek Holding Facilities for Aliens, the delegation visited the Hellenikon

holding centre for irregular migrants. Compared to previous visits, when the CPT criticized the state

of furniture, the temporary lacking of hot water and the filthiness of the Hellenikon centre49, the

CPT noted the installation of plinths to put the mattresses on50. Further, next to the old structure

there had been built a new facility with a capacity of 123 persons on 213 square meters. Having in

mind that the CPT is considering that each detainee in a multi-occupancy cell should be given the

space of 4 square meters, the occupancy rate in the new centre is far too high.

Access to fresh air, natural and artificial lighting was satisfactory, but clean bedding was not

provided since many of the mattresses appeared to be old and dirty. The fact that also in this new

building the toilet was installed outside the detention cells, causes the same problems as in other

centres: At night access to sanitary installations is difficult and in general each detainee going to the

toilet requires a guard accompanying him / her.

Still, the major problems found were the lack of useful activities and distraction and no health care

service.51 Finally, the delegation found a small cell of the size of 3,5 square meters. Since a cell of

this size was too small to accommodate a detainee for a longer period, it asked the Greek authorities

to explain what this cell was being used for.

The Greek authorities responded, that the Hellenikon holding Centre had already been provided

with new mattresses as requested by the delegation. The detainees were regularly given the

opportunity to outdoor exercise, when the weather was fine. The 3,5 square meter cell the

delegation found at Hellenikon, was only being used for storing clothing items, not as holding cell

for a detainee.52

The holding areas at Athens International Airport were described as clean and in a good material

state. The fact that these facilities were originally planned and built for short term stays is the reason

why there is, like in many other Greek detention facilities for irregular migrants, no exercise yard

for the detainees who have to stay for longer periods.

48 CPT/Inf (2006) 42, page 1149 CPT/Inf (2002) 31, paragraph 32 50 CPT/Inf (2006) 41, paragraph 2851 CPT/Inf (2006) 41, paragraph 2952 CPT/Inf (2006) 42, page 12

23

The situation in the cell block of the Terminal, which is sited one and a half kilometres away from

the airport, was much more worrying: The nine cells, each measuring 9,5 square meters, had only

one plinth each, which indicates that these cells must have been planned for only one person, while

in practice the official capacity was 5 persons per cell. This number is already too high, keeping in

mind that there should not be less than 4 square meters per detainee.

In practice, in the month of May 2005 up to 9 persons were forced to stay in one cell. Also, the

sanitary facilities were outside the cells, and detainees were complaining that access to a shower

was very limited and that guards did not react rapidly when detainees needed to get to the toilet.

The smell in this detention area made the detainees' s complaints very credible.53

The government's response to the report of the CPT did not make any reference to the situation at

the Holding Areas at Athens International Airport.

During its stay in Athens, the CPT had the chance to visit a new centre of detention, named Petro

Rali special holding facility, which was due to be opened54 on 27 September 2005, only a few days

after the visit.

Petro Rali was built for a capacity of 560 persons, 380 of them supposed for irregular migrants.

The CPT was concerned, that this whole new facility did not meet most of the Committee' s

recommendations regarding centre's of detention for irregular migrants.

The fact that there were no communal spaces, difficulties to reach the exercise yards and a carceral

atmosphere in the visiting area, preventing any physical contact, made the CPT believe, that in

Petro Rali, like in many other places of detainment of irregular migrants in Greece, detained

persons will be forced to spend most of the day in their cells. Further, there were neither in-cell

sanitary installations, nor call bells.

The CPT' s comment on this new site of detention was clear: The CPT considers the Petro Rali

facility as a missed opportunity for the Greek administration to construct an appropriately designed

centre for the administrative detention of aliens.55

For the purpose of avoiding an atmosphere of a prison, the Committee recommended the Greek

authorities to provide access to radio and television, further to reading materials and other forms of

distraction and recreation.

53 CPT/Inf (2006) 41, paragraph 3054 CPT/Inf (2006) 41, paragraph 3555 CPT/Inf (2006) 41, paragraph 36

24

The Greek response to the CPT' s arguments regarding Petro Rali consisted in pointing out that the

recently finished facility met the technical and medical basic needs of a place of detention, like the

installation of a ventilation system, 13 card-phones for the detainees or the fact that detained

persons were provided articles for their personal hygiene like toothbrushes, soap and shampoo.

The lack of call bells in the cells was not considered as a problem, since the detainees would be

under constant surveillance by the staff anyway.

Regarding health care at the Centre a medical team was on duty four days a week and every

detainee was planned to undergo a lung check once a month. Also, a personal medical file was to

be opened on each detainee.

The Greek authorities made no reference to the CPT' s worry that Petro Ralli was never meant to

meet the special needs for the administrative detention of aliens.

Since the surveillance of the coastal areas is the duty of the Greek Coast Guard, it is also part of it' s

responsibility to stop and detain persons for short periods, who entered Greek territory without

permission, until they can be transferred into police custody.

The CPT visited two Establishments under the Ministry of Merchant Marine, namely in Chios

and Mytilini. For the purpose of being able to attend larger numbers of irregular migrants arriving at

once, Chios Port Authority acquired a container of 28 square meters, lacking any kind of furniture.

According to the CPT, by installing a proper ventilation system and providing some furniture to sit

on, this facility would be suitable for a detainment of a few hours.

The fact, that before the CPT' s visit, irregular migrants were kept in this facility for more than 24

hours or even during the weekend, had to be commented as unacceptable.56

During the visit of the current establishments, the Commission was informed, that the coast guard

was planning the construction of new, permanent, facilities replacing the old ones.

The CPT asked for a copy of these new plans.

The detention cell of the Port Authority of Mytilini had to be qualified as completely unacceptable

even for short stays of a detained person: The cell was extremely dirty, lacking natural light and

ventilation. Also, the toilet facility was not functioning. Due to this situation, the CPT

recommended the immediate closure of this facility till it' s renovation.57

56 On 21 June 2005, 25 persons spent more than 24 hours in this facility - CPT/Inf (2006) 41, paragraph 46 57 CPT/Inf (2006) 41, paragraph 46

25

Finally, a specific custody register regarding the detained individuals was lacking in the Port

Authority' s facilities.

In its response to the report of the CPT, the Greek authorities responded, that a prefabricated

dwelling had already been constructed at Chios, which met the needs of irregular migrants during

their stay. The reception centre was being kept clean, detainees were provided clean bedding. The

disinfection of the place was being undertaken on a regular basis.

Regarding the facility in Mytilini which the CPT regarded unacceptable, the Greek authorities

responded that this very facility was not being used for prolonged stays of detainees, but only for

short periods of some 2 or 3 hours. Since it had also been cleaned and renovated since the

delegation' s visit, it was regarded as acceptable again.58

The Special Holding Centres for Immigrants are functioning for the administrative detention of

immigration detainees, who are being transferred there by police and Coast Guard forces after a

short stay at Border Guard stations or the detention facilities of the Coast Guard. Irregular migrants

remain in these facilities for up to 3 months.59

In 2005 the CPT visited the holding centres of Mytilini, Peplos, Venna and Chios. According to the

current legal situation, the operational duties were divided between the Region and the Police. The

Committee noticed a lack of coordination between the regional administration - which was

responsible for the provision of hygienic products, health care and food supply - and the police

forces, who were responsible for custodial affairs60. A new Greek Law on Aliens, namely Law No

3386, was about to enter into force in January 2006, which included Article 81, which bave all the

competences regarding Alien detention centres to the national level. Further information regarding

the different competences was requested.

In its response regarding the legal situation coming into force with Article 81 of Law No 3386, the

Greek authorities reported of a meeting held on 13/06/2006 at the Ministry of Interior, Public

Administration and decentralisation with representatives of all competent state authorities

regarding irregular immigration, for the reason of setting up new Holding Centres for illegal

immigrants.

According to the government' s response, the Ministry of Public Order was responsible for the

registration and deportation of irregular migrants. The regional administrations were responsible

58 CPT/Inf (2006) 42, page 1559 CPT/Inf (2006) 41, paragraph 4860 CPT/Inf (2006) 41, paragraph 48

26

for the jurisdiction of the operation and the provision of food and medical care. No reference was

made to the lack of coordination between Greek authorities, as mentioned by the CPT.61

The CPT asked for further information regarding arrangements for the management of the foreigner

detention centres since these centres should be staffed by adequately qualified personnel. According

to the legal state of irregular migrants the situation of their accommodation should also not have the

character of a prison, and the single facilities should be clean and in good state of repair.

Instead, none of the detention centres which had been opened during the 4 years before the CPT' s

visit in 2005, met these recommendations. While in the first years of massive arrivals of irregular

migrants on Greek territory, immediate, temporary measures to cope with the new situation had

been necessary, the CPT cannot accept the ongoing ignorance of generally accepted principles and

standards regarding the treatment of irregular migrants.

Greek authorities did not respond to the questions regarding staff, nor the fact that none of the

recently opened holding centres for Aliens met the recommendations of the CPT.

Various cases of ill treatment were discovered in Venna special holding centre for aliens. In it's

report, the CPT described 3 of these cases:

One person claimed that he had been repeatedly beaten with a stick and kicked on his legs, which

the affected person alleged had happened in the six days before the Committee' s visit.

A second person claimed that he had been beaten on his shoulder and arm four days before the

CPT' s visit and a third person said that besides having been beaten with a stick on his shoulder and

back, he had also received a blow on his forehead with a knee, two days ago.

The examinations, immediately undertaken in these 11 cases by two medical members of the CPT,

showed physical proof of the accusations made.62

As a consequence of it' s findings, the CPT requested an immediate forensic - medical investigation

of the cases and transmitted the names of the 11 detained persons to the highest ranking officer of

the Rodopi police station as well as to the responsible officer at the Ministry of Public Order in

Athens, but when, only two days later ( on 6 September 2005) the Committee returned to check on

the results, it had to find out that the person with the most serious signs of maltreatment had not

61 CPT/Inf (2006) 42, page 1662 CPT/Inf (2006) 41, paragraph 52,a), b), c)

27

been examined at all. Three days later, at the end of the CPT' s visit, the results of the medical

examinations could be checked by the delegation and it was surprised to find out not only that the

results and conclusions found by the forensic medical services of Thrace were completely different

from the CPT' s findings only a few days before, but also that, although the delegation had

repeatedly claimed the examination of the detainee showing the most serious signs of ill treatment63, that very person still had not been examined at all.

In detail the the results of the medicare carried out by the Greek authorities showed signs of injuries

only in 5 of the 11 cases, presented by the CPT. Further on, the examiner dated the moment of the

infliction of these injuries some 20 to 25 days ago, which meant in all cases that the cause of all

injuries found lay before the first day of detainment on Greek soil.64

On 21 September 2005 the delegation for the 3rd time transmitted the full list of names of the

detained persons who had to be examined. The Ministry of Public order responded on 3 November

2005, saying that all the 11 migrants had been examined by state authorities, only the names had

been mixed up. During it' s follow up visit the delegation was told by the detained person, which

had shown the most serious injuries, that he had explicitly been forbidden by guards, seeing a

doctor.

Regarding the above mentioned happenings, the Committee asked the Greek authorities to comment

on

the Committee's concern, that the Greek forensic doctor recorded no injuries in respect of

six of the foreigners, when only the day before the medical members of the CPTs delegation found

that all six of them displayed recent injuries;65

it's disagreement with the conclusion in the Greek forensic medical report, that the injuries

displayed in respect of the five foreigners, occurred some 20 to 25 days prior to the examination.66

Also, the Committee pointed out, that the medical examination report, transferred by the head of

Thrace Forensic Medical Service, was lacking the minimum standards of good practice in the

field67, which should include demographic information on the patient; the patients account as to

how the injuries found were received; a detailed description of each injury and a reasoned

63 CPT/Inf (2006) 41, paragraph 52 a)64 CPT/Inf (2006) 41, paragraph 5465 CPT/Inf (2006) 41, paragraph 5666 CPT/Inf (2006) 41, paragraph 5667 CPTcf. Principles on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (General Assembly Resolution 55/89, December 4 2000).

28

conclusion as to the cause and time of the injuries.

Like in Venna, cases of ill treatment also seemed to have occurred in Mytilini Special Holding

Facility for Aliens: 2 detained persons claimed to have been beaten by a senior officer, who was not

stationed at the facility. A baton, like the one described by the detainees, was found by the

delegation in one of the facilities. When asked for an explanation, guards responded that it was only

being used to intimidate inmates.

By letters from 9 October 2005 and 12 January 2006, the Greek authorities informed the Committee

that 'Sworn Administrative Examinations' had been opened regarding the CPT' s findings of ill

treatment in Venna and Mytilini Special Holding Facilities for Aliens. The CPT was looking

forward to receiving information about the outcome of these examinations, reminding Greek

authorities of the Committee' s recommendation regarding cases of ill treatment: A special

awareness to ensure the application of a law enforcement policy, aiming at stamping out all forms

of ill treatment. This includes not only the adoption of appropriate laws, but also its serious

application in practice.68

The Greek authorities did not mention the allegations of ill treatment made by the CPT.

The material conditions of the Special Holding Facilities in Peplos, Mytilini, Chios and Venna

were described by the delegation as at least unsatisfying.

In detail:

Peplos is a former industrial warehouse complex with an official capacity of 70 persons. At the time

of the delegation' s visit the number of detainees was 128. The facilities were very dirty, without a

working heating system and with broken windows. Because of its bad state of repair, only one

shower could be used and there was no warm water. Blankets and mattresses were dirty and bug

infested, due to overcrowding, some of the inmates had to sleep next to the leaking toilets or

showers, while others didn't even have a mattress at all. During the day, detainees were allowed

only to spend very little time outside their cells, approximately less than an hour per day.69

Regarding the hygienic situation the delegation was told by the authorities that the inmates

themselves were responsible for keeping their living area clean, while there was partly even a total

lack of hygienic articles like detergents, toothpaste or toothbrushes. For example, inmates were

68 CPT/Inf (2006) 41, paragraphs 58, 16, 1769 CPT/Inf (2006) 41, paragraph 60

29

forced to share even toothbrushes, an unacceptable situation regarding the risk of transmissible

diseases like HIV. Also, clothes and shoes were not being provided by state authorities, but charity

organisations, on an irregular basis.

Mytilini, also a former industrial complex, had a capacity of 200. The number of detainees was

varying, holding 588 at 1 January 2005, 602 in the middle of the same month and 437 on 31

January 2005. At the time of the delegation' s visit the number of inmates was only 112. Male

detainees were held in 4 large concrete facilities, which were in a bad state of repair and very dirty.

Like in Peplos, the delegation found broken windows and no working heating device. Also, the

sanitary installations were defect. Female detainees were kept in 2 dormitories, which were in a

good state of repair, but out of sight and hearing of the guards. Further on there were no call bells

installed. The state of mattresses and blankets provided to male and female detainees was as bad as

at Peplos and there was hardly any possibility to spend time outside the cells. Since it was seen as

the inmates' s job to keep their living space clean, due to a steady shortage of detergents and other

cleaning products, the sanitary installations were filthy. Finally, the CPT found that detainees were

lacking clothing. Some detainees even had to share one pair of shoes, clearly a result of the current

policy that only private organisations were providing clothing and shoes from time to time.

Due to the situation found at Peplos and Mytilini the delegation felt the need to act according to

Article 8 (5) of the Convention.70

The Greek authorities answered in 2 letters from 9 November 2005 and 12 January 2006, saying

that at Peplos, the heating device, the broken windows and the toilets had been repaired as

requested. Still, there was no information regarding Mytilini.

The situation at Venna was better than at Peplos and Mytilini. The Centre with a capacity of 400

held 92 people at the time of the delegation' s visit. The facilities for men consisted of 6 containers,

adjacent to an outdoor exercise yard. Still, the detainees were kept in their cells for several days in a

row without a possibility to use the outdoor yard. The separate building for female detainees had an

outdoor exercise yard too, but the detainees were allowed to use it only when female guards were

present. Also, there was no warm water.

70 If necessary, the Committee may immediately communicate observations to the competent authorities of the Party concerned.

30

Chios Temporary Reception Centre consisted of 12 furnished containers, each divided into 3 small

rooms as living area, a toilet and a shower. The centre was planned for a maximum capacity of 120,

holding 127 people at the time of the delegation' s visit. The material and hygienic situation

appeared to be acceptable, but detainees claimed that there was too little and too bad food.

Sometimes there was also no drinking water available.

The CPT called the Greek authorities to improve the situation at each of the 4 visited Centres of

Detention, so they would meet the basic material standards for Irregular Migrants in Detention,

regarding hygiene, clothing, footwear, food and clean water.

In its response the government of Greece answered to the recommendations made by the CPT about

Mytilini, saying that all repair jobs regarding broken windows, sanitary installations and the

heating system were being carried out under the authority of the Prefecture Administration of

Lesbos. Clean bedding had also been taken care of.71

The recommendations for the Holding Centres of Chios, Venna and Peplos were not being

mentioned.

Great deficits had to be noted by the delegation regarding the Health Care Regime in the holding

centres visited. In the four centres, only at Venna there were a doctor and a nurse employed on a full

time basis. In Mytilini, Chios and Peplos, medical staff only visited the facilities 2 times a week for

a few hours.

Medical staff in the delegation found various inmates suffering from skin diseases, tooth ache and

other injuries.. Having in mind the high number of detained people in the different Centres, the

number of medical staff, attaining these people, was far too low.72

Also, the delegation was very worried about the fact, that a general regime of medical examination

of irregular migrants, when getting into custody of state authorities, was missing. The example of a

border guard at Evros, who fell ill of a transmissible disease shows the urgency of this problem.

With this policy, state authorities are putting at risk not only the health of their executive personnel,

but of the civil society as a whole, not to speak of the irregular migrants.

71 CPT/Inf (2006) 42, page 1672 CPT/Inf (2006) 41, paragraph 65

31

Finally, not one of the 4 centres visited was maintaining a regime of ongoing medical files about the

single detainees. Instead, doctors were putting down their medical findings in personal note books,

making an effective treatment of detainees impossible.

The CPT called the Greek state authorities to take their medical recommendations seriously and to

implement as soon as possible the changes needed.

The Government' s response did not go into the CPT' s recommendations regarding the Health Care

Regime in the Holding Centres visited.

A regime, like it is recommended in the Standards, set by the CPT, could not be found in any of the

establishments visited in Greece. There was no reading material, functioning television sets or any

kind of organized activities.

Regarding other Safeguards, the CPT' s attention was called by leaflets, informing the single inmate

about his rights, since in none of the leaflets there could be found the right to apply for

asylum. On the contrary, the delegation was explained various times that an immigrant could only

apply for asylum before reaching a special holding facility, although the Greek authorities had

assured, that the application for asylum would be possible from within the centres too.

In their response, the Greek authorities reassured that the application for asylum was possible not

only before reaching a special holding centre for irregular migrants, but at any time during his or

her stay on Greek soil. Regarding appeals against negative decisions, a regime of time limits had to

be respected: Within 30 days in case of a normal procedure, within 10 days in case of a speedy

process, within 5 days, if the applicant is in a transit hall of an airport, having been denied

entrance.

At Chios and Mytilini detainees had access to a telephone, but not in Venna and Peplos. Finally,

numerous complaints were made that non governmental organizations would be impeded the

access to the Holding Centres by state authorities.

Regarding these safeguards the CPT asked the state authorities of Greece for further information.

The Greek authorities answered that card-phones had been installed at Chios, Mytilini and Venna.

32

Finally, talking about the special holding centres for Aliens, the CPT referred to the staff at these

Centres: The number of personnel on duty in the four Holding Centres was completely inadequate.

At Mytilini and Chios a shift consisted of 2 police officers (with official capacities of 200 and 120

immigrants). At Peplos the number of officers on duty per shift was 5 (with a Centre's capacity of

128 immigrants).

Besides, the officers at work were regular police officers or border guards, which meant that they

had not been provided with any kind of special training to cope with the difficult tasks they were

confronted with: A great number of people from different countries with differing cultural

backgrounds and native languages. The border guards had not even received the basic training for

custodial duties. At two of the centres visited, the language barrier became explicitly noticeable, as

members of the delegation were contacted directly by detainees which asked for the possibility of a

voluntary return to their countries of origin.

The CPT explicitly recommended that the holding centres for aliens were staffed with an adequate

number of well trained staff, which were able to meet the special requirements of that job.

In their response Greek authorities did not refer to the CPT' s recommendations regarding the

staffing of the Centres of detention.

C1b) Visit 20/02/2007 27/02/2007

According to paragraph 7 (1) of the Convention73, the CPT returned to Greece in February 2007.

Before going into detail, the report talks about the facts that many recommendations made by the

CPT in its last report in 2005, had already been included in earlier reports, like the apparent absence

of consequences for executive personnel in the case of allegations of ill treatment.

Like in the report of 2005, the Greek authorities were informed that in case the CPT' s

recommendations were not put into practice, the Commission would have to take action according

to Art 10 (2) of the Convention.74

Since 25 recommendations of the 2005 report remained without response, on December 18, 2006,

the president of the CPT, Silvia Casale, sent a letter to the permanent representative of Greece,

73 Art 7 (1): The Committee shall organise visits to places referred to in Article 2. Apart from periodic visits, the Committee may organise such other visits as appear to it to be required in the circumstances.

74 Art 10 (2): If the Party fails to co-operate or refuses to improve the situation in the light of the Committee's recommendations, the Committee may decide, after the Party has had an opportunity to make known its views, by a majority of two-thirds of its members to make a public statement on the matter.

33

asking for further information.

Regarding police establishments the president was criticising, that most recommendations for

safeguards against ill treatment in police custody remained unmentioned in the Greek

Government' s response.

The Greek authorities' s response to the CPT' s recommendations regarding foreigner holding

centres was also mentioned in the letter: The contradictory explanations given by Greek authorities

and Thrace Medical Forensic service regarding the cases of alleged ill treatment in Venna Special

Holding Centre were not put in question in the Government' s response the delegation' s concerns

were completely ignored. Besides calling attention to this incident, the president asked for further

information on newly planned special holding centres for immigrants, which had been mentioned in

the response to the 2005 report, meeting the special needs of irregular migrants in detention.

Until 8th of February, 2008, when the report about CPT' s visit from 20/2/2007 27/2/2007 was

finished, no response had been received, except for a letter from the Greek minister of Justice,

answering to some other of the CPT' s recommendations from the 2005 visit.

In their response from 8th of February 2008, the Greek authorities made reference to the letter of the

president of the CPT, saying that since there had been no time limit for answering the letter and

since high level talks between the Greek authorities and representatives of the CPT were about to

be held in February 2007, the content of this very letter was understood as agenda for this meeting.

During the 2007 visit, the delegation was granted immediate access to the establishments visited,

ending with constructive consultations with the Minister and the Secretary General of Public

Order, the Secretary General of the Ministry of Justice, the Director General of the Prison Service

and other senior officials of the Ministries of Foreign Affairs, Justice and Public Order.

Although the cooperation with state officials was qualified as good, the case of a possible victim

of ill treatment, detained at Omonia Police Station, called the attention of the CPT: The man was

threatened with his immediate deportation by the Commander of the Station in case he wouldn't tell

the delegation that he no longer wanted to see a doctor.

In the response to the report, the Greek authorities argued that since the delegation' s visit

happened without prior notice, and the delegation' s conversation with the detainees took place

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without the commander of the station present at the time of the interview, there had been no

possibility that the commander could have threatened the detainee.

The death of a detained person in police custody - also at Omonia police station raised the

delegation' s attention. When members of the CPT wanted to look into the files regarding the death

of the inmate, the same Commander of the station removed certain papers from the file. These

incidents had to be called a clear breach of Art 375 and Art 8 (2d)76 of the Convention. Following

these incidents, the CPT called the Government of Greece to make it's law enforcement officials

fully aware of of the obligations of the parties to the Convention.77

The Greek authorities had a different point of view: According to the Government' s response the

Commander of the police station was offering all relevant documents about the detainee who had

died in custody. When the president of the delegation asked to see also the Commander's personal

documents regarding the case, the Commander requested to write down the controversial

documents in order to be proved - assured that none of the documents was concealed; however, the

delegation's members denied the official notation and made do with improvised notes.78

The CPT felt the need to call the Greek Government' s attention to the Commission' s impression,

that there seems to be no office in any Ministry of Greece, holding the responsibility to maintain

steady contact with the CPT. Instead, officials seemed to be appointed for each visit, holding this

post only for short terms, which makes an ongoing, constructive cooperation impossible.

Regarding this topic, the Greek authorities answered that the relevant office is the D3 department

at the Greek ministry for foreign affairs, which is responsible for OSCE and Council of Europe

affairs.

Various allegations of torture and other kinds of ill treatment were found by the delegation during

it' s visit:

75 In the application of this Convention, the Committee and the competent national authorities of the Party concerned shall co-operate with each other.

76 Art 8 (2): A Party shall provide the Committee with the following facilities to carry out its task: (d): other information available to the Party which is necessary for the Committee to carry out its task. In seeking such information, the Committee shall have regard to applicable rules of national law and professional ethics.

77 CPT/Inf (2008) 3, paragraph 7 78 CPT/Inf (2008) 4, paragraph 2 e

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A detained person at Alexandroupoli p olice station said, that he had received several punches to his

body and head by police officers. Further on his trousers were pulled down, followed by threats of

an Officer to rape him. The situation came to a halt with a Senior Officer's intervention after loud

protesting of the detainee, but beatings continued after this Senior Officer had left the room again.

In an other case an employee of the Greek police told the delegation of him witnessing how a

foreign detainee had been beaten by Police Officials. When a few days later he accompanied this

very detainee to court, neither the judge, nor the detainee' s lawyer made any comments on the

visible injuries of the detained person.

Regarding the CPT' s finding at Alexandropouli, the Government responded: By virtue of an order

of the Head of the Administrative Support Branch, the Police Division of Alexandroupoli was

ordered to investigate the accusations about a foreign detainee' s assault at the Police Station of

Alexandroupoli. The case is still pending. It stays unclear, to which of the cases this response is referring to.

These and several other cases made the CPT repeat with urgency, what it had already requested

from Greek authorities in it' s visit reports in 2005 and before: A thorough and determined policy to

fight ill treatment of people in police custody.

In detail, this means that whenever a case of alleged ill treatment is coming to light, the case has

to be investigated properly. Judges and prosecutors have to have a close eye on signs of torture and

ill treatment and request medical examinations whenever necessary.

As a second step it is indispensable, that a member of state authority, who has tortured a person in

state custody, faces harsh consequences for his actions.

A climate of impunity for these officials would impede any positive effect of Greece' s campaign to

stamp out ill treatment, committed by state authorities.

Further on, the delegation found various cases of persons in detention, who claimed to have been

beaten in custody showing clear signs of these beatings. Still, without the intervention of the

delegation' s doctors, there wouldn't have happened a medical examination, nor a documentation of

these allegations, not to speak of a medical treatment of the injuries, by Greek authorities.

The case of a Bangladeshi national at Petru Rali detention centre could be named an alarming

example: When the delegation' s doctors examined the person, various injuries could be found,

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giving great credibility to the detainee' s telling of having been ill treated by police officers at

Athens International Airport, when refusing to be deported. The delegation requested his immediate

treatment at a hospital, but when returning to see the detainee two days later, they had to learn that

the detainee still remained without treatment, after 3 doctors at the hospital had examined the

detainee, concluding that the patient showed no injuries at all.79

Again, the delegation insisted that the detainee was being sent to a hospital for treatment. This time

the delegation accompanied the person to the hospital and during the examinations by 4 different

doctors, which this time came to the unanimous conclusion, that the Bangladeshi national showed

injuries, which were giving great credibility to the allegations of ill treatment.

Like in previous visits, the delegation had to experience that in Greece, a presumed victim of ill

treatment apparently had very little chance of receiving the necessary medical treatment for his

injuries, since in the current case the delegation had to intervene even two times to achieve a normal

medical treatment for the detainee. The report of the CPT is even telling about a police officer,

trying to influence a doctor during the examination of the detainee, even though members of the

delegation were present in the same room.

Since things like that had already been to be experienced by the delegation in previous visits, the

CPT recommended, that the Greek authorities take appropriate steps to ensure that threats and