Greece + 1 more

Detention as the default - How Greece, with the support of the EU, is generalizing administrative detention of migrants (Briefing Paper)

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EXECUTIVE SUMMARY Detention of migrants in Greece has increased considerably in recent years. Until 2020,
Greek law stated that detention could be used only as a last resort. However, as of July 2021, 3,000 migrants were in administrative detention, meaning that they were detained without any criminal charges against them.1 Of these, nearly half (46%) had been detained for more than six months.

Greece recently passed legislation making it possible for the authorities to detain people seeking asylum. This was followed by a change to the law to give the authorities the power to put non-asylum-seeking migrants into detention without examining alternative measures. Both legislative changes undermine the right to freedom of movement and threaten access to asylum procedures.

These measures brought in by the Greek government are making detention the rule rather than the exception.
This paper determines seven distinct categories of people who are being detained unfairly:

  1. People seeking asylum while already in detention.

  2. People with no papers.

  3. Asylum seekers who violate the geographical restrictions imposed on them.

  4. All asylum seekers arriving on the island of Kos.

  5. Migrants and refugees being detained before allegedly being pushed back.

  6. People seeking asylum while not in detention.

  7. Asylum seekers whose asylum applications have been impossible due to administrative deficiencies.

The duration of detention differs depending on whether the person is an asylum seeker or a non-asylum-seeking migrant. Recent changes to the law have made it possible to extend the detention period for asylum seekers to 18 months. For non-asylum seekers, detention often exceeds six months.

The Greek authorities refuse to examine alternatives to detention, even in cases where a deportation decision has been made but cannot be implemented. Turkey, for example, has been refusing returns of migrants and asylum seekers from Greece due to COVID-19 restrictions. Individuals who would have been returned are now being placed in detention instead of less harsh alternatives.

The administrative courts can decide to place or keep someone in detention in two instances: an approval to extend detention on the courts’ own initiative, and an examination of appeal by the detainee. The courts too often approve the extension of detention on their own authority, which shows a structural problem and underlines the importance of legal aid for detention cases.

Detention conditions have been strongly criticized, with the European Court of Human Rights finding that they may even violate Article 3 of the European Convention on Human Rights – i.e. the prohibition of inhuman and/or degrading treatment or punishment. This criticism has, however, fallen on deaf ears.

One in five people in detention are held for a prolonged period in police cells that were designed to hold people for just a few hours. They are locked in 24 hours a day in unacceptable conditions.

People with vulnerabilities, such as single women, children and persons with serious mental health problems, are also being detained. This is happening even though the practice of detaining children in police stations has been abolished by law due to international pressure. Children without parents or guardians are also being illegally detained.

Any discussion about alternative measures to detention must begin with the acknowledgement that the deprivation of personal freedoms should always be a last resort. While migration and asylum legislation acknowledges the possibility of alternatives to detention, in practice, the Greek authorities prioritize detention.

Alternatives to detention (such as reporting regularly to a police station – an option commonly used for suspects of criminal offences awaiting trial) are already enshrined in law. These alternatives are much more proportionate and do not violate the human right not to be detained without good reason.

This increasing tendency to opt for detention, alongside the building of five new European Union (EU)-funded ‘closed and controlled’ Multipurpose Reception and Identification Centres, is not in line with EU and Greek law. Major legislative and policy changes are needed to bring Greece back in line with the rule of law. These include:

• Ending prolonged detention in police stations.

• Ending detention for those people who do not have a real and immediate possibility of return.

• Avoiding the generalization of detention demonstrated by the construction of ‘closed and controlled’ centres.

• Ensuring detention on the grounds of public order and national security is not used to penalize asylum seeking.

• Ensuring that children are not detained.

• Mandating a short time limit for detention.

• Establishing a legislative provision for a judicial decision as a necessary condition for detention.

• Ensuring an individual assessment by the authorities of the risk of absconding.

• Ensuring the provision of effective legal aid for people in detention.