FREEING UNACCOMPANIED CHILDREN FROM DETENTION: A VICTORY BUT THE OBJECTIVE IS STILL FAR AWAY
This article has been authored by Aviral Agrawal and Shiwansh Tripathi, students of B.A., LL.B. at NALSAR, Hyderabad and WBNUJS, Kolkata respectively.
On November 18, the government of Greece announced that they will end the longstanding practice of detaining unaccompanied migrant children in jail cells. However, the matter is far away from reaching its objective. The quick response to repeal the provision and also an increase in shelter capacity is the utmost urgent requirement to protect the human rights and dignity of these unaccompanied migrant children. Additionally, Greece as of now stands in violations of the treaties signed with the EU as well as UN conventions like the Convention on the Rights of Child. The announcement will hopefully steer the Greek Government in accordance with the international law on detention of unaccompanied children.
Background of Child Detention in Greece:
The practice of protective custody is enshrined in Article 118 of Decree no. 141/1991. It provides for ‘protective custody’ for ‘people who have 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.’ Under the said law, children can be placed under protective custody until they are referred to appropriate reception facilities or until they are reunited with the persons responsible for them. According to various reports, children were subjected to torture and sexual violence in detention centres or jails.
Legal Status and Ground Reality:
The European Court of Human Rights in February 2019, in the case of H.A. and others, v. Greece, unanimously held that practice of such detention violates various statutes of the European Convention. Furthermore, it held that it violates Article 3 of the Convention which prohibits inhuman and degrading treatment. The Court opined that detaining such children in police stations would make them feel lonely and the absence of outer courtyard and no place to physical exercise would halt their development. This is in itself a violation of Article 10 of the Convention on the Rights of the Child. The Court further held that it violated Article 13 of the Convention which provides for right to an effective remedy. It further violated Article 5(1) of the Convention which provides for right to liberty and security. Additionally, Article 118 of the Convention which the authorities applied did not provide for any limit for which such children can be detained.
The Greek Government, after the judgement, reduced the period of detention from 45 to 25 days. However, according to various international obligations on Greece, detention itself is not justifiable. Under international law, binding European directives, and Greek national law, the detention of unaccompanied children is mandated only as a measure of last resort and that too in exceptional circumstances, and for the shortest appropriate period. The migration of children from other European countries puts a responsibility on shoulders of the Greek Government to manage all of this. Article 20 CRC, read in accordance with the provisions of Article 22 CRC, implies that the States are obligated to arrange for alternative care for unaccompanied children outside their country of origin. The United Nations New York Declaration for Refugees and Migrants, adopted in 2016, specifically mandates for UN Member States commit to stop using detention for the purposes of determining migration status. The actions of the Greek government before the announcement stood in direct contravention of all these abovementioned provisions.
In response, the Greek government in November 19 launched the ‘No Child Alone’ campaign to protect such children from exploitation and criminality. The Prime Minister promised that they will improve the conditions of camps and also transfer such children from jails to protective camps with adequate facilities. However, the Greek government also stated that they cannot tackle the problem alone and other European Nations didn’t come forward to help them. In March, 2020, following the Greek government's request for support under Article 78(3) of the Treaty on the Functioning of the European Union (TFEU) and the European Commission has launched a new relocation scheme to further boost up the process of relocation of unaccompanied minors from the islands of Greece to the territories of other EU Member States.
The situation of COVID-19 worsened the crisis even more. The cells or camps where children were detained were unsanitary, unhygienic and even overpopulated leading majority of them susceptible to the disease. Many international organizations raised concern over this and suggested relocating children to a more suitable and safe place. But the Greek government largely failed on this front. During the time of COVID-19, a study published on March 31 indicated that there were 331 children in police custody awaiting transfer to a shelter. However, as of November 18, no unaccompanied migrant children remain in police custody. The announcement of ending the detention is a vital step in stopping this inhuman and illegal practice of detaining unaccompanied children. This will also help the Greek Government to align their provisions in line with their international obligations.
The step by the Greek government is a welcoming step, however, there are more actions required to protect further violation of these crucial rights. First, Greece should act quickly to repeal the legal provisions that allow children to be detained in such protective custodies. It should increase its shelter capacity, find alternatives to detention, and establish a functional and comprehensive foster family system. This will go in long way to protect human rights of these unaccompanied migrant children. The future of the world, these children, should not be subjected to such detention and quick steps should be taken at the earliest to protect the rights of these children. Additionally, other European states should speed up family reunification for children with relatives in their territories and should relocate unaccompanied asylum-seeking children.