V. Detention of Unaccompanied Children

The routine detention of unaccompanied children is a fundamental dysfunction at the heart of the way the Greek immigration and social welfare systems address the challenge of caring for unaccompanied migrant children. According to international standards, the detention of children should only take place in exceptional cases, as a last resort and should be limited to the time strictly necessary.[152] However, there is a serious shortage of sufficient and adequate accommodation for all unaccompanied children in Greece, including migrants and asylum seekers. The Ministry of Health funds or co-funds approximately 200 care places only. Even though this shortage is one possible reason for the prolonged detention of unaccompanied children, the practice of detaining children only adds to children's risks and vulnerability. Furthermore, once these children are released from detention they are basically dumped onto the streets with at best minimal assistance and at worst nothing at all. This exposes them to other serious risks, and is analyzed in the next chapter.  

Greek law does not prohibit or regulate the administrative detention of children who enter Greece without valid papers and the authorities detain unaccompanied children either after arrival or when found without valid documents for anything from a few hours to several days or months. The reasons for keeping children for longer or shorter periods appear to be arbitrary.

The detention of unaccompanied migrant children is administered on the same legal basis as that of adults, which means that the authorities may detain a third-country national without valid papers for the purpose of deportation.[153] Once a deportation order is issued, police may continue to detain a person for up to three months, if they believe that he or she might escape or is considered a danger to public order.[154] If a foreigner does not fall within either category, the person is released with a written order to leave the country within thirty days.[155] On August 1, 2008, Greek authorities were holding a total of 269 children in administrative detention throughout the country.[156]

The authorities, however, told Human Rights Watch that they have no means of deporting certain foreign nationals, such as Afghans and Somalis, because their embassies do not cooperate.[157] Where it is not possible to enforce deportation for these groups, there appears to be no legal ground that would permit administrative detention. That notwithstanding, children who enter Greece from Turkey through the Evros border region, as well as those who are sent to detention centers in the same area, are regularly detained for the full three months.

Children may face additional risks in the detention centers in which they are placed by the authorities. In some centers, children are held together with adults, contrary to international standards, and some children interviewed by Human Rights Watch were subject to ill-treatment at the hands of fellow adult detainees. Furthermore, detention conditions in some facilities where unaccompanied children are held amount to inhuman and degrading treatment.[158] Children in administrative detention are not entitled to legal aid free of charge and rarely have access to pro bono lawyers. Public prosecutors entrusted to act as their temporary guardians believe that they cannot challenge children's detention.[159]

Recently adopted legislation does specify that the detention and confinement of children who seek asylum should be avoided.[160] However, as has been described in the previous chapter, this is a minority of migrant children.

Duration of Detention

Human Rights Watch has not managed to identify any coherent rationale for why children are detained for longer or shorter periods. On Lesvos Island, where a majority of children interviewed by Human Rights Watch entered Greece, the length of their detention appears to be dependent on how many days prior to a "release day"–the day authorities process migrant's release from detention–a child entered the country. The day Human Rights Watch visited Lesvos Island authorities released a group of unaccompanied boys who had spent between three and 12 days in detention.[161] A care center for unaccompanied children opened on the island in July 2008 and offers police officials an alternative to detaining them. Despite this available alternative, authorities continue to hold children behind bars for several weeks and in conditions that are far below minimum standards.[162]

Twelve-year-old Sharzad P. and her 16-year-old brother Sardar P. from Afghanistan were detained in the Kyprinou facility in Fylakio when we interviewed them:

We have been here for 65 days.… Someone informed us that we would stay here for three months, the police told me that. We don't agree to stay for three months.… I want to be released and I don't want to stay longer.[163]

Twelve-year-old Sharzad P. shared her cell with about six adult women with whom she was unable to communicate. Before being detained for more than two months in that facility, the two siblings told us they had been held in a border police station for 11 days. Their temporary guardian had not been informed[164] during that time and the chief of police in Orestiada told us that migrants would usually spend only "two to three days" in border police stations.Twelve-year-old Sharzad P. described that place as follows: "I didn't have a bed, only a blanket. The blanket was dirty and there were a lot of bugs-bugs that bite. We were bitten during the night. We couldn't sleep. We were scratching our skin all the time."[165]

During our visit to the Amygdaleza detention facility for unaccompanied boys, the responsible police officials explained that two boys were held longer than others: "Right now there are two teenagers without declaration of their country of origin. We keep them for a longer time."[166] One of them, 14-year-old Abdullahi Y., told us that he was Somali and caught at the airport with a fake Swedish passport.[167] It is not apparent why the police deemed it impossible to determine their nationality, and how their situation differed from that of other children without valid documents.

Multiple Detentions

Unaccompanied children who have not filed an asylum application, who have fallen out of the asylum system, or who have had their applications denied have no regular status while in Greece.[168] As such, they are subject to repeated detention.

A 10-year-old unaccompanied Somali girl who was detained at Petrou Ralli detention facility told us that within six months she was detained four times (her case is further described in chapter VII).[169] Seventeen-year-old Sami F. said he was arrested twice the same day and issued four deportation orders within eight months:

In eight months, I received four deportation orders…. When the police caught us from the street they brought me to the police station and gave me a deportation order. After two hours the police caught me again. I showed them the deportation order, the police took it badly and I was detained for seven days; after seven days they brought me here to Amygdaleza.… I asked how long I would stay but the police said they didn't know.[170]

Sixteen-year-old Mohammed W. told Human Rights Watch: "I have been arrested three days ago in Attiki. I've been here for three days, and for eight months in Greece. I have been arrested two times so far and spent 16 days in Mitilini detention camp."[171]

The repeated arrest and detention of children serves no legal purpose and has a detrimental impact on children's well-being and safety.[172] Greek authorities admit that they can not enforce many children's deportation because embassies do not cooperate, children's detention is not in their best interests, and children are rarely ever transferred to care arrangements upon release.[173] The practice of routinely and repeatedly detaining unaccompanied children is a violation of Greece's obligations under international law.[174]

Invisible Children

The failure to carry out proper age and vulnerability assessments means, as discussed in chapter II, that many children in detention are simply not recognized to be children. The practice appears to be so widespread that it is difficult to avoid the conclusion that it is deliberate on the part of the immigration authorities. Even if it is merely a failure of police officers ill-equipped and inadequately trained to work with children correctly, it indicates the systemic failure of the Greek authorities to maintain a functioning protection system. The case of unaccompanied migrant children rounded up in Patras in early 2008 is revealing.

Around 10 years ago an informal slum settlement, which has grown to consist of approximately 500 cardboard huts, developed close to the port in Patras as migrants assembled to find ways onto ferries departing Greece for Italy. Today several hundred migrants and asylum seekers stay in the settlement in squalid living conditions, among them unaccompanied children, estimated to number in the hundreds.[175]

At the end of January 2008, the local authorities attempted to destroy the camp. According to human rights activists, police and bulldozers reportedly moved into the camp and destroyed several huts.[176] Large-scale arrests of children and adults in and outside the camp were part of this operation. A number of organizations, including the UNHCR, criticized the action, in particular because no alternative accommodation for residents was provided,[177] and in early February 2008 the police halted the destruction of the camp (although persons who stayed told Human Rights Watch that the police continued to harass and arrest camp residents).

Dozens of those who were arrested in Patras in the course of this round up and afterwards were transferred to the Venna detention center, and possibly other places of detention in the Evros border region and detained for three months. Among them were an unknown number of unaccompanied children who were registered in detention centers as adults. In early 2008, the Hellenic Red Cross and UNHCR estimated that there were around 250 unaccompanied children in the camp, but it is not known how many were arrested.

Human Rights Watch sought access to the Venna detention facility in the Evros region in May 2008. We were not granted access to the cells; however, we were able to look over more than 200 entries in the registration log and briefly spoke to one detainee. The majority of persons detained were registered as Afghan, Iraqi, or Pakistani arrested in Patras or Athens.

No detainees were registered as younger than 18 and, indeed, the police officer on duty told us that no children were held at the center.[178] However, the year of birth of at least 20-30 detainees was recorded as 1990. While not evidence in itself, this seemed an unusual pattern.

More compelling evidence of unaccompanied children detained jointly with adults at Venna, and for the full three months, came from other sources. We were able to speak briefly to one detainee before authorities interrupted our conversation. He told us: "I'm 16 years old but the police wrote that I'm 18. I've been here for two months and 10 days. I was arrested in Patras. There are three other boys who are 14 and 15 years old. Their names are [names withheld]."[179]

The presence of underage boys was confirmed by a second source who asked not to be identified. A third person who was detained in Venna between February and May 2008 told Human Rights Watch: "There was a 14-year-old boy but when the police caught him he had the deportation order of his friend. His friend was registered as an 18-year-old but the police didn't care. He was small. There were more underage boys. In each cell there were four to five underage boys. I'm sure about that. They were also detained for three months."[180]

Ill-Treatment of Children in Detention

Human Rights Watch documents in a second report on Greece that, with few exceptions, detention conditions in Greece, especially in Venna, Mitilini on Lesvos Island, the border police stations in the Evros region, and in the airport, amount to inhuman or degrading treatment.[181]Greek authorities detain unaccompanied children in all of these facilities.

Take the example of facilities within the port premises used by the port police in Patras. We were told that until an earthquake in early June 2008, port police detained migrants, including unaccompanied children, in overcrowded detention cells where sewage leaked into rooms. One adult who had been held in such conditions had a visible open and infected wound on his leg following his detention for 11 days.[182]

Although we were told that port police in Patras tend to detain unaccompanied children for shorter periods than adults, Daoud A. explained to us: "Inside the jail there is no rule. Sometimes the young boys stay longer, sometimes not. You never know when you will get out."[183] Since the earthquake the port police detain migrants, including unaccompanied children, in an empty metal container.[184]

Greek law requires the separation of adults from children in detention.[185] The Amygdaleza detention center was opened in April 2008 as a special facility for unaccompanied boys. In all other detention centers, however, boys are rarely separated from men in detention and girls are never separated from women in detention. Boys in the Mitilini detention center are separated from men if their number does not exceed available space. In the Kyprinou detention facility in Fylakio, only the sleeping compartments for boys are separated from those for men, but they share a common courtyard. None of the other detention centers, including the brand-new center on Samos Island has separate sleeping compartments for underage boys or girls.

Keeping children and adults together in detention puts children at an increased risk of abuse and ill-treatment. A global study on violence against children found that children detained in the same cells with adults are at risk of violence, including sexual violence.[186] Fifteen-year-old Nurullah F. told us he was made to sleep on the floor in the police lock-up on Kos Island by fellow adult detainees:

I stayed there for 10 days. We were three persons in one cell… there was one bed only. Two slept in that bed and I slept on the floor. I had one blanket. I used half of it as a blanket and half as a bed…. I couldn't sleep in that place. The floor was concrete and it was humid. When I put my blanket on the floor I was cold at night. The other two were older than me so I always had to sleep on the floor.[187]

Sixteen-year-old Sobir S. told us that he was beaten in Avlona prison by a fellow inmate: "An Albanian detainee inside the cell hit me into my eye. I was injured and still have a headache. Some of these others were criminals, robbers and murderers…. I was the youngest."[188]

The separation of children from adults is a key safeguard to protect children from violence and ill-treatment in detention.

A further crucial measure of protection in any detention setting is a confidential complaints mechanism. We asked a senior police official in the newly renovated Amygdaleza detention facility for unaccompanied children how boys could file a confidential complaint, in case of acts of violence by staff or peers.[189] He told us: "if a child has a problem he can write a message to the responsible authority here. Every morning the officer goes to the rooms and asks if anybody has a complaint."[190] Boys told us they had never even been given paper and a pen, except for the day of our visit, when they were tasked to make drawings. Furthermore, many are illiterate and no interpreters are employed in the center.[191]

Legal Standards Governing the Detention of Children

The Convention on the Rights of the Child limits the administration and duration of detention for children. Their detention must be lawful, for the shortest appropriate time, and may be used only as a measure of last resort.[192] The Convention stipulates that the best interests of the child shall be a primary consideration in all actions taken by authorities, which includes the administration of detention.[193] The Committee on the Rights of the Child, the body that oversees the Convention's implementation, has specified that "[unaccompanied] children should not, as a general rule, be detained," and that "detention cannot be justified solely […] on their migratory or residence status, or lack thereof."[194] 

The Convention on the Rights of the Child as well as the International Covenant on Civil and Political Rights oblige states parties to separate adults from children in detention.[195] The European Court of Human Rights held in Mubilanzila Mayeka and Kaniki Mitunga v. Belgium that the prolonged detention of an unaccompanied child jointly with adults amounted to inhuman or degrading treatment.[196]

Besides the obligation to separate children from adults in detention, a number of procedural safeguards apply to children who are detained. The Convention on the Rights of the Child mandates states parties to provide detained children "the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty…"[197]

Not only were children interviewed by Human Rights Watch rarely granted their right to assistance, but authorities' policy of transferring children to detention centers in the Evros border region reduces the likelihood of exercising this right down to almost zero. Very few pro bono workers are available in Greece and those, as well as NGO service providers, are rarely able to travel to the Evros region.

Both the Convention on the Rights of the Child and the International Covenant on Civil and Political Rights (ICCPR) prohibit the arbitrary detention of children.[198]  The United Nations Working Group on Arbitrary Detention, defined detention as arbitrary, amongst other things, "when it is clearly impossible to invoke any legal basis justifying the deprivation of liberty," or if detention "is of such gravity as to give the deprivation of liberty an arbitrary character."[199]

The UN Human Rights Committee, which oversees implementation of the ICCPR, has examined the practice of indefinite detention of asylum seekers in Australia.[200] The Committee emphasized that the concept of arbitrariness should not be equated with "against the law" but must also include such elements as "inappropriateness and injustice." It noted that to avoid being arbitrary, detention should not continue beyond the period for which a State can provide appropriate justification. It also pointed out that detention could be considered arbitrary if "it is not necessary in all the circumstances," for example to prevent flight, and that "the element of proportionality becomes relevant in this context."

In the context of Greek detentions, where the lawful deportation of child is not feasible, then to continue to detain such children would appear to be unjustified and disproportionate, and so could be deemed arbitrary detention.