Greece - Single-Member Misdemeanours Court of Igoumenitsa, 2012, Case No 682/2012

Facts:

The defendants, 15 third-country nationals, were held in the detention facilities of the Thesprotia Police Department in Igoumenitsa for the purposes of enforcing the administrative decision for their removal from Greece on account of their illegal (sic) entry and/or possession/use of fake travel documents.     It was shown that their detention – of duration ranging from 9 days for the first of the defendants, to 45 days in the case of the last defendant – has been carried out under ‘deplorable and highly dangerous’ conditions. Specifically, the cell they were held in was never cleaned, and even the most basic rules of hygiene were not respected – there was only one chemical toilet in the same space they were sleeping, no water outlets, and the detainees were suffering from lice, flees, scabies, typhus, skin diseases and other conditions. Furthermore, more than 30 people were held in a space of a total surface of 15.00 m2. As a result, there was not enough room for everyone to lay down on the ground at night (no beds were provided) and sleep. Finally, the defendants were detained 24/7, without permission to leave the facilities, exercising, entertainment, or yard time. On 30/09 to 01/10/2012 they escaped.

Decision & reasoning:

The Court decided that the defendants committed the crime of escaping custody (art. 173 Greek Penal Code). Their act was unlawful, and, in principle, criminally attributable to each one of them. However, the Court also found that their detention was carried out in violation of articles 3, 8, and 13 of the ECHR on the prohibition of torture and inhuman or degrading treatment or punishment, respect for private life, and the right to an effective remedy, as well as article 2 of the Greek Constitution on respect for the value of human life. Taking into account the duration and the conditions of the detention, it held that they escaped in order to avoid a serious and otherwise inescapable danger that was threatening their health, without fault on their part. Hence, the initial criminal responsibility for the (unlawful) act of escaping custody had been negated and, according to article 32 of the Penal Code, they were found to be innocent.

Outcome:

The defendants were found to be innocent.

Observations/comments:

The Court focuses on detention conditions and their compatibility with the ECHR and the Greek Constitution, and fails to examine compliance with the conditions laid out in article 15 of Directive 2008/115/EC on detention for the purpose of removal, such as the proportional application of the measure and the existence of less coercive means that can be applied effectively in this specific case. It, thus, avoids expressing an opinion on the general terms of placing a person in detention within the context of migration law.                                                                                                                                            

Moreover, the Court finds the defendants not guilty, citing article 32 PC on emergency which excludes criminal responsibility. This article, however, refers to criminal responsibility – not the unlawful character of the act – and is applicable when the damage caused by the unlawful act is of a similar magnitude to the damage that was threatened against the perpetrator. The Court does not seem to perform the balancing act required but, instead, begins its judgement with the assertion that the defendants committed an unlawful act. Taking into account, however, the facts of the case as accepted by the Court, the nature of the rights violated, and the hierarchically superior rules of the Constitution and the ECHR that were breached by the State, the application of article 25 PC (on emergency that excludes the unlawfulness of the act when the damage threatened is considerably superior than the one caused by the perpetrator) appears to be justified.

This case summary was written by Zoi Anna Kasapi, LL.M. in Human Rights Law, Queen Mary, University of London.                                                                  

The summary was proof read by Stefania Kokkosi.