Mr. Nikolaos Toskas

Ministry of Citizen Protection

January, 13, 2015          

Letter to the Greek Alternate Minister of Citizen Protection regarding Police Stop-and-Search Powers

Dear Minister Toskas,

I am writing on behalf of Human Rights Watch to share with you our analysis and recommendations with respect to Greek legislation governing police stop-and-search powers. We welcome your initiative to amend the 2005 Hellenic Police Circular-Order 7100/22/4α on “Bringing in people as a preventive and repressive action in the exercise of police powers.” However, we strongly believe that deeper reforms are necessary to limit overly broad police stop-and-search powers.

Human Rights Watch published in June 2013 the report Unwelcome Guests: Greek Police Abuse of Migrants in Athens, and in May 2015 the report Greece: Police Abusing Marginalized People. Our research documented how police in Athens conducted abusive stops and searches, and in many cases confined people in police buses and police stations for hours, including far from the city center, without any reasonable and individualized suspicion of criminal wrongdoing.

We urge you to seize this opportunity to implement reforms to ensure police stops are conducted in accordance with national and international law prohibiting discrimination, including ethnic profiling, ill-treatment, and arbitrary deprivation of liberty. These reforms should be accompanied by adequate training of police officers, a functioning independent complaints mechanism, and accountability for police abuse.

Sincerely,

Hugh Williamson

Director

Europe & Central Asia Division

Human Rights Watch

Cc:

Mr. Dimitrios Anagnostakis

Secretary General for Public Order

Ministry of Citizen Protection

 

Mr. Dimitrios Tsaknakis

Lieutenant General

Chief of the Hellenic Police

Headquarters of the Hellenic Police

 

Human Rights Watch Submission to the Ministry of Citizen Protection Regarding Police Stop-and-Search Powers

January 2016

We welcome this opportunity to submit for your consideration our recommendations as you undertake your review of Circular-Order 7100/22/4α of the Chief of the Hellenic Police on “Bringing in people as a preventive and repressive action in the exercise of police powers.” In this document we address broader concerns with police stop-and-search powers in Greece and urge deeper reforms. Our recommendations are grounded in international human rights law and informed by our in-depth research on policing practices in Athens, published in our June 2013 report Unwelcome Guests: Greek Police Abuse of Migrants in Athens, and our May 2015 report Greece: Police Abusing Marginalized People.

Abusive Identity Checks

Under Greek law, the police have broad powers to stop individuals in public areas and require them to provide proof of their identity—the identity check (εξακρίβωση στοιχείων). These powers derive from Presidential Decree 141/1991 (hereafter “P.D. 141/1991”) which defines the responsibilities and actions of the staff of the Ministry of Public Order, including of police officers.

Between May and September 2014, Human Rights Watch conducted in-depth interviews with 44 people living or spending considerable amounts of time in the center of Athens, including homeless people and people who said that they used drugs and exchanged sex for money. Thirty-six of those interviewed said they were stopped by the police almost every day, while 25 said they had been stopped for an identity check more than once on a single day. People interviewed said that police officers regularly harassed them, stopping them without any specific suspicion of wrongdoing and conducted intrusive searches.[1]

People we interviewed said they felt targeted for their appearance rather than for anything they had done. Some described physical abuse by the police, and almost all said they had been treated rudely, insulted, and threatened.

In addition, Human Rights Watch had documented in 2013 similar abuses against people perceived to be irregular migrants in the context Operation Xenios Zeus, including abusive stops and searches, police ill-treatment, and arbitrary deprivation of liberty.

Greece has the right to enforce its laws and provide safety for everyone, and the police can use profiling as a legitimate preventive and investigative tool, when for example suspect descriptions, which include ethnicity, national origin, or even style of dress and the look, are drawn up on the basis of specific, reliable information.[2] It is also legitimate to increase police patrols in areas of high criminality.

However, police officers do not have the right to presume people have committed a criminal offense solely or primarily because of the way they look, or their presence in a particular place. Profiling is discriminatory and unlawful when police systematically target certain groups for stops, even when these actions are grounded in unconscious stereotyping rather than intentional policy.[3]

Human Rights Watch believes the broad police powers of P.D. 141/1991 leave far too much discretion, in the absence of clear and detailed guidance, to police officers when it comes to choosing whom to stop for an identity check, and leaves far too much room for abuse of power.

It is a basic precept of law, well-established in international human rights jurisprudence, that laws must be sufficiently clear and well defined to limit the scope for arbitrary action and interpretation by law enforcement and judicial authorities. Legal precision is also important so that people know what conduct is prohibited and can regulate their behavior accordingly.[4]

We therefore urge you to:

  • Repeal or reform provisions in P.D. 141/1991 giving the police broad powers to conduct identity checks without any grounds, as well as searches of persons and bags, and ensure that police stop-and-search powers are always based on a reasonable and individualized suspicion of criminal wrongdoing;
  • Include a provision in P.D. 141/1991 making clear that ethnic profiling by the police and other instances of discrimination in the context of identity checks are prohibited under international and national law;
  • Reform P.D. 141/1991 to ensure that law enforcement officers have clear guidelines with respect to identity checks, including:
    • Permissible grounds, based on a reasonable and individualized suspicion of criminal wrongdoing, for conducting a police stop in the street;
    • Permissible grounds, based on a reasonable and individualized suspicion of criminal wrongdoing, for conducting a pat-down and a search of personal belongings;
    • The circumstances and manner in which law enforcement officers may stop and search children.

Arbitrary Detention

While stops can involve a relatively quick check of identity papers, we also found that people belonging to vulnerable groups, such as migrants, the homeless, people who use drugs, and sex workers, were regularly subjected to lengthy procedures, both on the street and at police stations, that amount to unjustified deprivation of liberty. This procedure, known as “prosagogi” is regulated by P.D. 141/1991 in combination with Circular-Order 7100/22/4α.

Our research has found that the police often stop and detain people who are homeless, who use drugs, and sell sex in the city center as they walk down the street, wait for a bus, or visit a day center where they can eat, clean up, or get support. We observed police in downtown Athens who appeared to be using broad stop-and-search powers to target people and to hold them for long periods under the procedure of “prosagogi,” amounting to unjustified deprivation of liberty. We found that officers held people in the street, confined them in police buses, or detained them in police stations for hours, including in police stations far from the city-center, without any reasonable and individualized suspicion of criminal wrongdoing. Police even stopped outreach workers distributing condoms in downtown Athens, and a Human Rights Watch researcher on several occasions, detaining them and strip-searching the outreach workers during one stop.

International and national law guarantee the right to personal liberty and security. To be lawful under international human rights law, the deprivation of liberty must be carried out in accordance with both formal and substantive rules of domestic and international law, including the principle of nondiscrimination, and be free from arbitrariness. Widespread detention of specific groups of people under the procedure of “prosagogi” for hours for the purpose of verifying their identity violates these provisions.

Circular-Order 7100/22/4α defines the procedure of “prosagogi” as a restriction of the freedom of movement rather than deprivation of liberty “even if these controls may include going to the police station, where the controlled person is released upon completion, within reasonable time, of the control.”[5]

Human Rights Watch believes this interpretation is incorrect, and that the procedure involves deprivation of liberty within the meaning of article 5 of the European Convention on Human Rights. Article 5 of the ECHR specifically enumerates the grounds which can justify a lawful deprivation of liberty. It includes the “arrest or detention of a person affected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offense.”

‪In the case Gillan and Quintin v. the UK, the European Court of Human Rights established that a range of criteria such as “the type, duration, effects and manner of implementation of the measure in question” must be taken into account when assessing whether a person has been deprived of their liberty.‪[6] In that case, which concerned two individuals stopped on the street under UK anti-terrorism legislation, the European Court of Human Rights concluded:

[A]lthough the length of time during which each applicant was stopped and searched did not in either case exceed 30 minutes, during this period the applicants were entirely deprived of any freedom of movement. They were obliged to remain where they were and submit to the search and if they had refused they would have been liable to arrest, detention at a police station and criminal charges. This element of coercion is indicative of a deprivation of liberty within the meaning of Article 5 § 1.[7

The fact that taking people to police stations for further verification, even when they hold identity documents, appears to be systematic for specific groups of people such as homeless people, people who use drugs, sex workers and migrants and asylum seekers suggests the procedure is not based on a reasonable suspicion of wrongdoing, but on discriminatory grounds.

The European Court of Human Rights has emphasized that “[t]he requirement that the suspicion must be based on reasonable grounds forms an essential part of the safeguard against arbitrary arrest and detention.”[8]

Circular-Order 7100/22/4α rightly requires that suspicion of criminal acts be based “exclusively on personalized evidence deriving from [the person’s] behavior,” and prohibits linking suspicion to “prejudices” based on color, ethnicity, and religion, among other grounds.[9] The circular further states that it is prohibited “to bring to a police station people, especially bound with handcuffs, while holding and producing an identity card, and when their previous behavior does not create suspicion or is not causally linked to the commission of crime.”[10] According to the law, the time should be limited to what is strictly necessary to complete the procedure.[11]

However, Human Rights Watch research in both 2013 and 2014 reports, demonstrates that frequent discriminatory police stops, harassment, and unlawful detention for hours under the procedure of “prosagogi” in central police stations for identity checks is routine.

To prevent these abuses, we urge you to ensure that Circular Order 7100/22/4α is amended to:

  • Make clear that the procedure of “prosagogi” involves deprivation of liberty within the meaning of article 5 of the European Convention on Human Rights and not merely a restriction of freedom of movement, and guarantee that all procedural safeguards to persons deprived of their liberty, such as the right to challenge the legality of their detention and treatment, apply to those subject to the “prosagogi” procedure;
  • Provide clear guidance to police officers to limit deprivation of liberty in the context of the “prosagogi” procedure. This guidance should include, at a minimum:
    • Permissible grounds for bringing a person to the police station for further verification of their identity or criminal records;
    • A requirement that any deprivation of liberty, even for a brief period of time, in the context of a stop, is based on a reasonable and individualized suspicion that the person has committed or might commit a criminal offense;
    • A requirement to provide all individuals deprived of their liberty with information about their rights in a language they can understand;
    • A requirement to inform in written all individuals deprived of their liberty of the legal basis for their detention;
    • A requirement that all people detained in the context of the “prosagogi” procedure, are given the free assistance of an interpreter if needed, and are able to request the assistance of a lawyer or other individual who can advocate on their behalf;
    • The circumstances and manner in which law enforcement officers may detain children;
    • Appropriate procedures for the care of children accompanying the individual subject to a stop.

We further encourage you to develop and implement the necessary technical capacity to allow police patrols to check the validity of identity documents in the street. We urge you to publicly condemn arbitrary and discriminatory detention under the “prosagogi” procedure, and ensure diligent and independent investigation and accountability for all complaints of police abuse, including for abusive identity checks.

The Impact of Policing on the Right to Health

Police round-ups documented by Human Rights Watch in 2014 interfered with the ability of people who use drugs, sex workers, and the homeless to access the health information, medical care, and other services they need, and to exercise fully their right to health. Human Rights Watch found that the policing practices documented undermined also the work of independent public agencies like OKANA (State Organization Against Drugs) and KETHEA, or nongovernmental organizations such as Praxis, Doctors of the World, or Positive Voice and its outreach program Athens Checkpoint in providing direct services to these vulnerable groups.

We therefore also urge you to:

  • Immediately cease police operations in downtown Athens that use discriminatory profiling as a preventive measure to question, arrest, or detain persons suspected of violating laws on sex work or drug use;
  • Issue a directive to all officers emphasizing the importance of sterile syringes and condoms for HIV prevention; and
  • Provide regular training for police officers specifically relating to treatment of homeless people, people who use drugs, and sex workers, including the need for non-coercive referrals to health and social services.

[1] See Human Rights Watch report “Greece: Police Abusing Marginalized People,” May 2015.

[2] For detailed discussion of when profiling is legitimate, see Open Society Justice Initiative, Ethnic Profiling in the European Union: Pervasive, Ineffective, and Discriminatory, May 2009, http://www.opensocietyfoundations.org/sites/default/files/profiling_2009... (accessed March 25, 2013); European Network Against Racism, Factsheet on Ethnic Profiling http://www.opensocietyfoundations.org/sites/default/files/Factsheet-ethn... (accessed March 25, 2013); and FRA, “Understanding and Preventing Discriminatory Ethnic Profiling: A Guide,” October 2010, http://fra.europa.eu/sites/default/files/fra_uploads/1133-Guide-ethnic-p... (accessed January 7, 2016).

[3] FRA, “Understanding and Preventing Discriminatory Ethnic Profiling: A Guide,” p.13; OSJI “Profiling Minorities: A Study of Stop-and-Search Practices in Paris,” June 2009, p. 19, http://www.opensocietyfoundations.org/sites/default/files/search_2009063... (accessed January 7, 2016).

[4] There are examples of good practices. The UK Police and Criminal Act gives police the power to stop, search, and detain someone only on the basis of a “reasonable suspicion” of wrongdoing. The accompanying Code of Practice explains that: “Reasonable suspicion can never be supported on the basis of personal factors alone without the supporting intelligence or information. For example, person’s colour, age, hairstyle or manner of dress, or the fact that he is known to have a previous conviction for possession of an unlawful article, cannot be used alone or in combination with each other as the sole basis on which to search that person. Reasonable suspicion cannot be based on generalizations or stereotypical images of certain groups or categories of people as more likely to be involved in criminal activity. A person’s religion cannot be considered as reasonable grounds and should never be considered as a reason to stop and search an individual.” Code of Practice, Section 2.2. This circumscribed power and detailed guidance contrasts with the overly-broad stop and search powers under UK counterterrorism legislation, which gave rise to significant abuse and evidence of ethnic and religious profiling. For a detailed analysis, see Human Rights Watch report, Without Suspicion: Stop and Search under the Terrorism Act 2000 (New York: Human Rights Watch, July 2010), https://www.hrw.org/reports/2010/07/05/without-suspicion-o.

[5] Circular-Order 7100/22/4α, para. 7, of the Chief of the Hellenic Police on “The adductions of people as a preventive and repressive action in the exercise of police powers,” June 17, 2005, http://www.sefeaa.gr/oi-prosagwges-atouwn-ws-prolhptikh-kai-katastaltikh... (accessed March 21, 2013).

[6] European Court of Human Rights, Gillan and Quintin v. the UK, judgment of January 12, 2010, available at www.echr.coe.int, para. 56.

[7] Ibid. para. 57.

[8] European Court of Human Rights, Gusinskiy v. Russia, judgment of May 19, 2004, available at www.echr.coe.int, para. 53.

[9] Circular-Order 7100/22/4α, para 14(a).

[10] Circular-Order 7100/22/4α, para. 14(b).

[11] P.D. 141/1991 (A-58/1991), art. 74 para. 15 (i).