The high number of unaccompanied migrant minors detained in ‘protective custody’ in police station cells and pre-removal detention centers across Greece has been a matter of vehement legal and political critique on a national, European and international level.
According to Greek authorities, ‘protective custody’ is legally embedded in Article 118 of Decree no. 141/1991, which provides for ‘protective custody’ for ‘people who had disappeared voluntarily or involuntarily and who, because of their age, or their mental or intellectual condition, are dangerous to public order or are exposed to dangers.’
The case for the illegality of the practice is enshrined in the case of H.A. and Other v Greece, where the European Court of Human Rights (ECtHR) held unanimously that the practice violates three Articles of the European Convention.
Firstly, it violates Article 3 (prohibition of inhuman or degrading treatment). The Court found that the police stations had features, which could make detainees feel lonely (no outer courtyard for walks or physical exercise, no catering facility, no radio or television for communication with the outside world) and were not suited to lengthy periods of imprisonment.
Secondly, it violates Article 13 (right to an effective remedy). The available domestic remedies, namely an appeal to the public prosecutor, were deemed as ineffective: firstly, the report drawn up in the domestic procedure had not mentioned, as required, the date of the end of the ‘protective custody’ period and secondly, over six months after the applicants had filed a criminal complaint, the public prosecutor had shelved that complaint.
Thirdly, it violates Article 5 §1 (right to liberty and security). Article 118 of Decree no. 141/1991 that the authorities had applied had not been intended for unaccompanied minor migrants and did not provide for any time-limit. Furthermore, it violates Article 5 §4 (to a speedy decision on the lawfulness of a detention measure). The public prosecutor at the region’s Criminal Court, who was the applicants’ statutory guardian, had not put them in contact with a lawyer and had not lodged an appeal on their behalf for the purpose of discontinuing their detention to speed up their transfer. Moreover, as they had not officially been given the status of detainee, the applicants had been unable to bring a case before the Administrative Court in order to challenge their detention.
Undoubtedly, Greece has set a bad precedent on the treatment of unaccompanied migrant minors, especially in relation to its ‘protective custody’ practices, and still has a lot to do. However, two current policy developments suggest a promising shift in the treatment of unaccompanied migrant minors.
On the national level, a Special Secretariat for unaccompanied children was created under the Ministry of Migration and Asylum. This initiative has been effective and productive. Indicative of the initiative’s effectiveness and productivity is the following comparison. In November of 2019, only in Moria, more than 1200 unaccompanied minors were located outside from Reception and Identification Centers, in completely precarious conditions. Today, not only are there no minors outside of those Centers, but all of them have been moved from the (perilous) Moria camp to the mainland – a process that was further catalyzed by the Moria fire. In addition, EU relocation schemes are actively pursued, with 1600 unaccompanied minors being currently relocated to other EU member states for family reunification or better integration purposes. In the same spirit, a new law on migration and asylum was voted on May 8, which decreases the time that an unaccompanied child can be detained from 45 to 25 days.
On the European level, the new Migration Pact, introduced by the Commission on the 23rd of September, can also be an opportunity for Greece to foster an environment that is more respectful of unaccompanied migrant minors. The new Pact’s reference to the heightened duty of care of states towards migrants in vulnerable situations, and especially unaccompanied minors, is a positive change from the previous Pact’s silence on the matter. The Pact remains to be agreed upon by the European Parliament and Council, but the foundations for desirable change have been set on the policy agenda of the EU.