Greece: Human Rights Watch Submission to the United Nations Committee against Torture

Introduction

This memorandum, submitted to the United Nations Committee Against Torture (the Committee) ahead of its upcoming review of Greece, highlights areas of concern that Human Rights Watch hopes will inform the Committee’s adoption of the list of issues prior to Greece’s reporting and consideration of the Greek government’s (the government) compliance with the International Convention against Torture and Cruel, Inhuman or Degrading Treatment or Punishment (the Convention).It contains information on Greece’s treatment of migrants and asylum seekers that are inconsistent with the Convention, and proposes issues that Committee members may wish to raise with the government.

Human Rights Watch has closely monitored the human rights situation in Greece and, in particular, the treatment of migrants and asylum seekers over the past six years. As part of this work, we have documented violations against refugees, asylum seekers, and migrants, including unaccompanied migrant children, and have produced reports and other documents describing our research findings. For fuller analyses, please see the Human Rights Watch reports Unwelcome Guests: Greek Police Abuses of Migrants in Athens (June 2013); Turned Away: Summary Returns of Unaccompanied Migrant Children and Adult Asylum Seekers from Italy to Greece (January 2013); Hate on the Streets: Xenophobic Violence in Greece (July 2012); The EU’s Dirty Hands: Frontex Involvement in Ill-Treatment of Migrant Detainees in Greece (September 2011); No Refuge: Migrants in Greece (October 2009); Left to Survive: Systematic Failure to Protect Unaccompanied Migrant Children in Greece (December 2008); and Stuck in a Revolving Door: Iraqis and Other Asylum Seekers and Migrants at the Greece/Turkey Entrance to the European Union (November 2008).

We urge the Committee to take into account the information provided in this submission when discussing the list of issues prior to Greece’s reporting. In particular, we recommend that Committee members request the government to provide information that demonstrates how its legal and policy reforms have contributed to concrete improvements in the treatment of migrants generally, as well as asylum seekers, unaccompanied migrant children, and other vulnerable groups.

With respect to the latter category, we encourage the Committee to follow up with the authorities on the steps taken to address concerns identified by the UN Committee on the Rights of the Child in its 2012 concluding observations on Greece with respect to children with disabilities living in the Children's Care Center of Lechaina “under inhuman and unacceptable conditions, including being systematically sedated and subject to practices such as being tied to their beds, and the use of cage beds due to a shortage of staff.”

Inadequate State Response to Xenophobic Violence

Since the Committee’s last review of Greece in 2012, and its call on the Greek authorities to “strongly combat the increasing manifestations of racial discrimination, xenophobia and related violence,” including by “prosecuting and punishing the perpetrators of such acts,” the government has failed to meaningfully address problems in Greek law and practice with respect to recording and prosecuting racist violence. We believe that the failure of the Greek authorities to prevent widespread violent attacks against migrants by gangs of Greeks, and obstacles to those seeking justice for these attacks by the police and the criminal justice system, are inconsistent with Articles 2, 12, 13, and 16 of the Convention.

Greece has seen an alarming surge in xenophobic attacks on migrants and asylum seekers in recent years, with gangs of Greeks chasing down and attacking migrants and asylum seekers, particularly in downtown Athens. Human Rights Watch interviewed 59 people who experienced or escaped a xenophobic incident, including 51 serious attacks, between August 2009 and May 2012. The Racist Violence Recording Network, an umbrella of Greek nongovernmental organizations, coordinated by the UNHCR and the Greek National Commission for Human Rights, recorded 217 racist incidents between October 2011 and December 2012, and 114 racist incidents in the first eight months of 2013.[1]

Human Rights Watch research found that the vast majority of the victims have little chance to see justice done. We found that attackers are rarely arrested and police inaction is the rule. Many victims do not report attacks to the police because of lack of trust and the police themselves actively discourage many victims from filing complaints. The police tell the victims it is not worth filing a complaint because they cannot recognize the assailants, that they should fight back themselves, or, in the case of undocumented migrants, that they could be detained and deported. Those who insist face a 100 Euro fee to file an official complaint.

The failure of the police and prosecutors to investigate properly and collect evidence on the racist motivation of a crime makes it harder for courts to apply penalty enhancements. While racist motivation was introduced in 2008 as an aggravating circumstance in the commission of a crime, giving judges the discretion to impose the maximum penalty for any given crime at the sentencing phase, the provision has been applied only once to our knowledge, in November 2013, in the nearly six years since its introduction.

The Greek government has begun to acknowledge xenophobic violence as a serious problem and has taken some positive steps. In November 2012, the Athens prosecutor’s office appointed a specialized prosecutor to oversee hate crime cases and in January 2013, specialized police units were set up across Greece to tackle racist crimes. In November 2013, an Athens court convicted two men of racially aggravated crimes in the first known ruling in which the 2008 hate crimes statute has been applied. At this writing, parliament is examining reforms of the Greek Immigration Code that would, among other measures, grant humanitarian visas to undocumented victims and witnesses of certain crimes.

Yet, proposed reforms to the criminal code, introduced in November 2013 and still pending in parliament at this writing, to impose sanctions for hate speech and increase sanctions for incitement to violence, do not include measures to improve state response to hate violence. Greek law should include an explicit requirement that any crime that may be categorized as a violent hate crime, regardless of its nature, should prompt mandatory investigation and prosecution without requiring victims to pay a fee to file their complaint; a requirement for law enforcement officials to suspend any immigration law actions arising from the undocumented status of a victim or witness of an alleged attack, pending a prima facie assessment by a prosecutor of the merits of the complaint about the attack; and an explicit requirement for prosecutors to investigate bias as a possible motive in a crime and to present any evidence to the court.

• We urge the Committee to ask the government to provide information on concrete steps to improve state response to racist violence. In particular, we urge the Committee to request information on any legal and policy reforms to improve the scope and application of the enhanced penalty provision; ensure mandatory investigation of hate crimes without any fees to file a complaint; provide adequate training to prosecutors and police on preventing, detecting, and investigating hate crimes; and protect undocumented migrant victims and witnesses from detention and deportation.

• We further encourage the Committee to ask the government information on the number of criminal investigations for attacks against migrants in 2012 and 2013, including by the newly established anti-racism police units; the number of cases that have been brought to court; and the number of convictions in which article 79 para. 3 of the criminal code on racist motivation as an aggravating circumstance has been applied.

Abusive Police Immigration Sweeps

Since the Committee’s last review of Greece in 2012, and its call on Greek authorities to “send an unambiguous message that racist or discriminatory acts, including by police and other public officials, are unacceptable,” and to take “effective measures to prevent discrimination against and ensure protection of all minorities,” the government launched police Operation Xenios Zeus aimed at cracking down on irregular immigration and crime in Athens that has led to a widespread violation of rights. In the context of this operation, Greek police conduct abusive stops and searches and have detained tens of thousands of people presumed to be irregular migrants. People who appear to be foreigners are subject to frequent stops, unjustified searches of their belongings, insults, and, in some cases, physical abuse. Even when these individuals have documents, all too often police stop them and then transfer them to a police station where they may detain them for hours pending verification of their legal status.

We believe that the failure of the Greek authorities to prevent abuses during Operation Xenios Zeus, by ensuring appropriate training, guidance, and equipment to police officers to avoid widespread violation of rights is inconsistent with Articles 10, 11, 12, and 16 of the Convention.

Between the start of the operation in early August 2012 and June 2013—the most recent period for which government statistics are available—police stopped and took to a police station almost 124,000 people of foreign origin. Only 6,910—5.6 percent—were found to be residing unlawfully in Greece.[2]

Human Rights Watch interviewed forty-four people in February and April 2013, who had been subjected to at least one stop since the launch of Operation Xenios Zeus. Thirty-five of them had a legal right to be in Greece at the time of the stops because they were registered asylum seekers, legal foreign residents, or Greeks of foreign origin.

Many told Human Rights Watch they felt they were stopped because of their physical characteristics and gave disturbing accounts of clear targeting on the basis of race or ethnicity. We heard twelve accounts of identity checks where people described being stopped explicitly based on physical appearance, including two cases where people were not stopped themselves but witnessed what they felt was a discriminatory stop.

Police authorities say that officers determine whom to stop using their informed judgment and intelligence about where undocumented migrants congregate. However, the fact that less than 6 percent of stops have led to the identification and detention of undocumented migrants undermines this assertion and gives rise to the concern that the police may be using ethnic profiling in determining whom to stop. Intelligence-led stops should lead to a higher detection rate.

Body pat-downs and bag searches during immigration stops also appear to be routine, even in the absence of any reasonable suspicion that the individual is carrying unlawful or dangerous objects. Eighteen interviewees, including a 16-year-old child, gave us accounts of experiencing pat-downs and bag searches during police controls in the context of Operation Xenios Zeus, some involving destruction of personal items.

Police mistreatment of migrants and asylum seekers, including in the context of Operation Xenios Zeus, is a longstanding, serious problem in Greece. Almost everyone we interviewed complained of rude, insulting, and threatening behavior, four of them describing outright physical abuse. We interviewed eight other migrants and asylum seekers who experienced physical abuse at the hands of police officers during stops before the beginning of Operation Xenios Zeus or in situations outside the context of a regular immigration stop.

The Racist Violence Recording Network, recorded 43 incidents of police brutality between October 1, 2011 and December 31, 2012, against migrants and asylum seekers. The incidents concerned “duty officers who resorted to illegal acts and violent practices while carrying out routine checks,” as well as “instances where people were brought to police stations, were detained and mistreated for a few hours,” and “cases where legal documents were destroyed during these operations.”[3]

Human Rights Watch also found that migrants and asylum seekers with a legal right to be in Greece were regularly subjected to lengthy procedures, both on the street and at police stations, that amount to unjustified deprivation of liberty. Many people were held by police officers in the street, confined in police buses, and detained in police stations and the Aliens Police Division for hours without any suspicion of criminal wrongdoing. Greek authorities argue that the procedure is necessary to identify forged documents and to verify photocopies of documents, and that they do not have sufficient capacity or adequate equipment to verify the validity of identity documents on the street.

• We urge the Committee to request the government to provide information on the steps taken to ensure that all measures to identify irregular migrants during police immigrations sweeps are conducted in full compliance with national and international law prohibiting discrimination, including discriminatory ethnic profiling, ill-treatment, and arbitrary deprivation of liberty. In particular, we urge the Committee to request information on the government’s steps to develop a national strategy on combating racial discrimination by law enforcement officials that sets out concrete measures and a timetable for implementation; guidance provided to police officers participating in Operation Xenios Zeus; and disciplinary and/or criminal investigations into law enforcement officials for allegations of ill-treatment of migrants in 2012 and 2013, and the number of cases in which sanctions have been imposed as well as the nature of these sanctions.

• We further encourage the Committee to ask the government information on the number of people stopped in the streets of Athens since the start of Operation Xenios Zeus; the number of people brought to a police station for verification of their documents; and the number of people arrested for irregular entry and stay into the country.

Detention of Migrants and Asylum Seekers

Since the Committee’s last review of Greece in 2012, and its recommendation to the Greek authorities to urgently improve detention conditions for migrants and asylum seekers, and to ensure that administrative detention on the grounds of irregular entry is not applied to asylum seekers, the government continues to systematically detain migrants, asylum seekers, and unaccompanied children, often in appalling and inhuman conditions, for prolonged periods of time that we believe are inconsistent with articles 2, 11, and 16 of the Convention.

Since the launch of Operation Xenios Zeus, on August 4, 2012, the Greek government has adopted a practice of systematic and prolonged detention (of up to 18 months) for irregular migrants. Irregular migrants arrested in the streets of Athens are transferred to detention centers pending deportation.

Once in detention, those who wish to lodge an asylum application risk being detained for up to 18 months, following Greece’s extension of the permissible time for the detention of asylum seekers in October 2012.[4] Following its visit to Greece in January 2013, the UN Working Group on Arbitrary Detention expressed particular concern over this extension and the fact that potential asylum seekers viewed prolonged detention as a way to discourage them from submitting their applications.^[5]

According to UNHCR, among those rounded-up during Operation Xenios Zeus and detained in pre-removal detention centers were persons in need of international protection, who could not lodge an asylum application due to limited access to the asylum procedure. In addition, the group included third country nationals whose removal cannot be implemented for humanitarian reasons (such as serious medical conditions) or due to practical difficulties (such as inability to obtain travel documents).[6]

Greek nongovernmental organizations working with migrants and asylum seekers have confirmed to Human Rights Watch that authorities detain people without any prospect of deportation, including vulnerable groups such as unaccompanied migrant children, often in inhuman and degrading conditions.

In this respect, the Working Group emphasized at the end of its mission that it “encountered some instances where the obstacle for identifying or removing a particular migrant from the Greek territory was not attributable to him or her, including through non-cooperation of the consular representation of the third countries” and stressed that:

The imprisonment of a migrant or an asylum seeker for up to 18 months, in conditions that are sometimes found to be even worse than in the regular prisons, could be considered as a punishment imposed on a person who has not committed any crime. This appears to be a serious violation of the principle of proportionality which may render the deprivation of liberty arbitrary.[7]

International human rights bodies, such as the UNHCR and the Council of Europe, and nongovernmental organizations, including Human Rights Watch, have documented egregious conditions of detention for migrants and asylum seekers in Greece. [8] The European Court of Human Rights ruled in numerous cases, including in the case of MSS v. Belgium and Greece in January 2011, that conditions of detention for migrants in Greece amount to inhuman and degrading treatment contrary to article 3 of the European Convention on Human Rights.^[9]

We are particularly concerned that the large number of migrants apprehended in the context of Operation Xenios Zeus in combination with the government’s policy of systematic and prolonged detention, have worsened the deplorable conditions in which migrants and asylum seekers are held. We are concerned that migrants and asylum seekers, including children with families and unaccompanied migrant children, continue to be held in substandard and overcrowded facilities, including in police station cells.

Following inspections at three detention centers in August 2013, the Greek Ombudsman called on authorities to improve detention conditions and overhaul the country’s immigrant and asylum procedures. Following her visits, the Ombudsman noted that the “indiscriminate and serious restrictions on foreigners’ personal freedom for a period of time of an uncertain end has become the rule.”[10]

• We urge the Committee to ask the government to provide detailed information on open reception facilities for asylum seekers and members of vulnerable groups, such as migrants with disabilities, victims of trafficking, and unaccompanied children; measures to provide alternatives to detention pending deportation; and steps to avoid detention of individuals with no prospect of deportation.

• We further encourage the Committee to ask the government to provide detailed information on the number of asylum seekers in detention facilities across Greece, including in police detention cells; the number of unaccompanied migrant children present in Greece, and the number of those children in detention facilities; the average time of detention of irregular migrants pending deportation; and a list of nationalities of migrants detained pending deportation, as well as information on the government’s plans for irregular migrants rounded-up during Operation Xenios Zeus, who have not been deported after the expiry of the 18 months maximum of detention.

Detention on Public Health Grounds

Since the Committee’s last review of Greece in 2012, and its call on the Greek government to repeal the provision permitting detention of migrants and asylum seekers on public health grounds, the government has failed to take appropriate action to bring its laws in line with the Committee’s recommendation and international human rights law. In 2013, the authorities reinstated a separate law mandating HIV testing, which has enabled a number of serious human rights abuses against socially marginalized people in the past. We believe that these laws are inconsistent with articles 2 and 16 of the Convention.

To our knowledge, Law 4075 of April 2012 providing for the detention of migrants and asylum seekers on public health grounds is still in force. The law permits the detention for up to 18 months if a migrant or asylum seeker represents a danger to public health when: he or she suffers from an infectious disease; or belongs to groups vulnerable to infectious diseases (with assessment permissible on the basis of country of origin); is an intravenous drug user or a sex worker; or lives in conditions that do not meet minimum standards of hygiene. Detention on public health grounds can be appealed.

Human Rights Watch is concerned that the detention of a person on such grounds is discriminatory and thereby constitutes arbitrary and unlawful detention. Detention on the determination that the migrant or asylum seeker has an infectious disease is a form of discrimination on the basis of that person’s health status. Where the grounds of detention are satisfied on the basis that the person is vulnerable to infectious diseases because of their nationality or country of origin, such detention is a form of discrimination on the basis of national identity. Detention on the grounds that a person is a drug user or a sex worker is inherently arbitrary and vague and is detention of a person on the basis of a status (i.e. that they are a drug user, or a sex worker) as opposed to the commission of any criminal conduct.

Whilst detention on public health grounds is permissible under international law, it must in all cases be necessary, proportionate, appropriate to achieve a clear public health aim, and nondiscriminatory. The Greek law does not comply with any of these conditions.

Forced HIV Testing

Health Regulation No. GY/39A “Amendments That Concern the Restriction of the Transmission of Infectious Diseases,” states that mandatory health examinations, as well as isolation and compulsory treatment, will be required for diseases of public health importance. The regulation includes a long list of such diseases, including influenza, tuberculosis, malaria, polio, syphilis, hepatitis, and other sexually transmitted infections, including HIV.

The regulation specifies certain groups as a priority for testing, including people who use intravenous drugs and sex workers, undocumented migrants coming from countries where such diseases are endemic, and people living in conditions that do not meet “minimum standards” of hygiene, including the homeless. The regulation also states that the government will respect international human rights conventions and protocols, which very strictly limit the use of mandatory testing, isolation, and compulsory treatment.

The regulation does not specify how the mandatory testing will be carried out. But it gives police the authority to assist in enforcing isolation, restriction quarantine, hospitalization, and treatment.

The regulation was first introduced in April 2012, repealed in April 2013, and then brought back into force on July 1, 2013. Human Rights Watch staff met with ministry of health officials, including deputy minister of health Zetta Makri, in December 2013 and we were told that the regulation is under revision to reflect concerns raised by UNAIDS and human rights organizations. At this writing, the problematic regulation was still in force.

During the first year it was in force (from April 2012 to April 2013), the police used Health Regulation No. GY/39A to round up dozens of women alleged to be sex workers who were then forced to take HIV tests. Those found to be HIV positive—at least 31 women—were arrested and charged with causing intentional grievous bodily harm or attempted grievous bodily harm (both felonies), for allegedly having unprotected sex with customers while HIV positive.[11]

The police and media outlets published and broadcast the women’s personal data, photographs, and information from their medical records of their HIV-positive status disclosed by the Greek Center for Disease Control. At least sixteen of the women arrested during the 2012 crackdown were held in pretrial detention for six to ten months allegedly in inhuman and degrading conditions that did not meet the minimum standards of hygiene and without access to adequate medical treatment. By March 2013, those detained were ultimately either acquitted by the courts for lack of evidence or saw the charge brought against them reduced to a misdemeanor. Thirteen of the women still face trial in the coming months (end of March and September 2014), on the downgraded charge of causing intentional serious bodily harm (a misdemeanor).

• We urge the Committee to request information on the implementation of the provision permitting detention of migrants on public health grounds and an update on revisions to the health regulation mandating HIV testing and disclosure. We further urge you to request information on the steps taken by the government to ensure legal support, post-test counseling and medical care for all the arrested women, as well as information on the steps taken to investigate the causes, procedures, and consequences of the arrests, including the police and Center for Disease Control action exposing confidential health information and subjecting detainees to degrading treatment.

Collective Expulsions

Since the Committee’s last review of Greece in 2012 and its call on the Greek government to ensure full protection from refoulement, there has been mounting evidence documented by nongovernmental organizations and repeated allegations that Greek border guards engage in collective expulsions and pushbacks of migrants and asylum seekers at the borders with Turkey, as well as in ill-treatment and dangerous maneuvers that put people’s lives in danger. Such practices are inconsistent with articles 2, 3, 12, 13, and 16 of the Convention.

With the Greece-Turkey land border virtually sealed due to increased patrols, including by Frontex, and the construction of a 12.5-kilometer fence, more and more asylum seekers and migrants of all nationalities, including those fleeing the conflict in Syria, are setting off from the Turkish coast to reach Greek islands in the Aegean Sea. According to official statistics, 11,447 people made this journey in 2013, compared with 3,651 in 2012.[12]

Human Rights Watch, Amnesty International, Pro Asyl, and the UNHCR have heard numerous direct accounts of life-threatening maneuvers by the Greek Coast Guard to force boats back to Turkey.[13]

In mid-January 2014, Council of Europe Human Rights Commissioner Nils Muižnieks expressed serious concern on “the large number of reported collective expulsions by Greece of migrants, including a large number of Syrians fleeing war violence, and allegations of ill-treatment of migrants by members of the coast guard and of the border police,” and called on the Greek authorities to end collective expulsions of migrants and asylum seekers trying to reach Greece and to “carry out effective investigations into all recorded incidents.”[14]

On January 20, 12 women and children died off the Greek island of Farmakonisi, in what survivors allege was an illegal pushback operation in poor weather. Survivors told the UNHCR that a Greek Coast Guard vessel was towing the boat carrying 28 Afghans and Syrians back toward the Turkish coast at high speed in bad weather conditions when the boat capsized.[15]

The Farmakonisi incident prompted Council of Europe Commissioner for Human Rights Nils Muižnieks, European Union Home Affairs Commissioner Cecilia Malmström, the UNHCR, and nongovernmental groups to urge Greek authorities to conduct an independent inquiry.

According to Greece’s Merchant Marine minister, Miltiadis Varvitsiotis, who exercises political oversight for the Hellenic Coast Guard, the judicial authorities are investigating the incident and the conditions of the rescue.[16]

• We urge the Committee to request information on disciplinary and criminal investigations into all recorded incidents of collective expulsions, pushbacks, ill-treatment, and dangerous maneuvers by the Greek Coast Guard on Greece’s sea and land borders with Turkey, including the Farmakonisi incident, as well as about steps taken to end and prevent the recurrence of such incidents and ensure that all measures to identify irregular migrants at Greece’s land and sea borders with Turkey are conducted in full compliance with human rights and refugee law. We further urge you to request information on the steps taken to establish an independent complaints mechanism covering the action of all law enforcement authorities, in accordance with the Committee’s and other rights bodies’ recommendations to the government.