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International law draws a clear
red line between what detention
is and what it is not.

The EU and its Member States increasingly blur this distinction, by going beyond the
red line set by international obligations.

Italy Hungary Bulgaria Greece

Detention of irregular migrants and asylum-seekers under specific, exceptional circumstances is allowed by European Union. However, in the States at the EU’s main entry points of forced migration massive, inhuman or unclear forms of detention are increasingly being used as deterrence measures

this arbitrary form

of detention is called

de Facto detention

It occours without an official order from
a court or other highert authority

Focus was posed on Hungary, Bulgaria, Greece and Italy, for being the main entry points of migration, increasingly engaged
in brutal, inhuman and arbitrary practices.

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Bulgaria


"There are bed bugs in the room and cockroaches. They bite and take blood."

Detainee in Busmantsi detention centre


Recommendations to thegovernment of bulgaria
1

Bulgaria should cease its practice of detaining asylum-seekers as irregular migrants under the Return Directive. Numerous human rights bodies have recommended the country to refrain from detaining asylum-seekers (including the UN Human Rights Committee, the UN Committee against Torture, the UN Committee on the Rights of the Child, the UN Committee on the Elimination of Racial Discrimination, and the European Committee for the Prevention of Torture).


2

The government should examine all asylum applications fairly, and end the practice of processing asylum applications in pre-removal detention, while following national legislation and international standards.


3

The government should reckon all detention orders that have been found to be unlawful by the courts, hold accountable those officials who have issued such orders, and conduct regular training sessions to prevent future unlawful orders.


4

Asylum-seekers and migrants in Bulgaria should be empowered to seek compensation for unlawful detention (in accordance with Article 5(5) of the European Convention on Human Rights).


5

The State should implement all recommendations presented by the European Committee for the Prevention of Torture, concerning its immigration-related detention policies and practices.

Greece


"They caught us and they put us in a military camp. They took my smartphone and my bag with all my clothes. I said that I was from Syria so that they wouldn’t send me back. However, they gathered us and put us in a small boat and sent us back to Turkey."

Turkish adult, 30 years old


"The prison was 2x4 meters in the middle of nowhere. People were urinating, defecating, sleeping and resting, all in one room. They took the women and the children out of the room. Soon afterwards, they brought fifty more people inside. The oxygen was almost finished in the room. We tried to break the door, and this is when they came in and hit us. In the afternoon, they sent us back to the Turkish border in an illegal boat after taking all food, water, bags, belts and shoes from us."

Hiwa Dartas, Kurdish journalist (InfoMigrants)


"The toilet had no light and no running water. We didn’t have any bedsheets or pillows. There was a bed and a sponge mattress, but no covers. We didn’t shower for four days, and we used the sink to drink water. The toilets had no locks; even the walls between the toilets were not totally closed off."

Nadir, a 21-year-old from Syria,
detained at the Fylakio pre-removal center with his six-year-old niece (InfoMigrants)


"Our children can’t sleep for fear of violence."

Sara Khan, living in the Moria camp


Recommendations to thegovernment of Greece
1

Greece should respect the principle of non-refoulement (the principle that prohibits States from returning refugees to countries or territories in which their lives or freedom may be threatened). It should cease the illegitimate ("de facto") detention of persons entering its territory without documents. It should also cease the alleged unlawful automatic push-backs (informal police measures, through which asylum-seekers and irregular migrants are forced back to a neighbouring country or an external side of the border, without any administrative or judicial decision, without access to a legal counsellor, an interpreter nor the possibility to apply for refugee status).

2

Greece should not place children in immigration detention. Numerous human rights bodies have called on Greece to amend its national law and abolish immigration detention of children (the UN Committee on the Rights of the Child, the European Committee for the Prevention of Torture and the UN Committee against Torture).

3

Greece should abolish the "protective custody" of children in police stations and other places of detention.

4

The geographical restrictions imposed on asylum-seekers on the Aegean islands should be removed.

5

Greece should ensure that all migrant detainees are ensured adequate procedural guarantees, including the improvement of the detention appealing procedures (as the UN Special Rapporteur on the Human Rights of Migrants recommended). The automatic (ex officio) review procedure should be more effective, and the courts should take responsibility of properly reviewing detention orders. The t mechanism to argue the legality of detention (objection procedure) should offer a genuine possibility of challenging this measure. Lastly, legal assistance should be effectively guaranteed in order to challenge asylum detention.

6

Greece must improve the detention conditions at all its immigration detention centres, as numerous European and international rights agencies have repeatedly required.

Hungary


"We were five unaccompanied minors in the container. We could not do anything in the container apart from sleeping; there was no space to move around freely. The container was filled with beds and lockers. "

Afghan unaccompanied minor, six weeks in Röszke transit zone


"TThey didn’t tell me why we were detained. We were under constant control by the police, social workers and cameras."

Afghan man with family,
27 days in Röszke transit zone


"Even when we went to the doctors, the police escorted us. I felt like a prisoner, as if I had killed someone. The doctors did nothing; no matter what problems we had they only gave us paracetamol."

Afghan unaccompanied minor, three months in Röszke transit zone


"Psychologically we were in trouble there. Even to this very day I am afraid, and hardly believe that finally I am free."

Iraqi couple 11.5 months in Tompa transit zone


"4-5 police officers always stand behind the door. Sometimes they even shouted at the children who were playing in the yard and told them to go back to their containers. The police were not nice. It felt as if we were prisoners.

Afghan woman, 3 months in Röszke transit zone


"During the 11 months in Tompa we hardly got any clothes, although we asked. I asked for a winter coat but I didn’t get it. The Red Cross told me that they only had raincoats and had no money to buy winter coats. In the end, one of the social workers gave me a jacket."

Iraqi couple 11.5 months in Tompa transit zone


"There were many social workers, but they only played with their mobiles. They did not speak English and could hardly tolerate the children. The school was more like a playroom. The teacher came for like an hour: 'they just pretend as if they do something. Everything is symbolic here.'"

Afghan man with family, 3.5 months in Röszke transit zone


"There was a teacher who came to the transit zone on the weekdays to teach us, but it was pointless because she did not speak English and we had no interpreter. This way we had nothing to do; we were sitting around and thinking a lot – mostly about bad things – during the day. We also slept a lot because we had nothing else to do. We went out sometimes to play football but the guards took the ball away from us so we could not play anymore."

Afghan unaccompanied minor, 1.5 months in Röszke transit zone


"Everyone in the transit zone felt nervous and upset, because they were closed. People were getting aggressive because they had been there for a long time."

Afghan man with family. 27 days in the Röszke transit zone


"The doctor gives the same pills to everyone, so why should I go to see him, even if I have a problem?"

Afghan man with family, 27 days in Röszke transit zone


Recommendations to thegovernment of Hungary
1

Hungary should refrain from automatically confining asylum applicants in the transit zones s (as recommended by the UN Human Rights Committee).

2

Hungary should accept the opinion of the UN Working Group on Arbitrary Detention that the transit zones are indeed places of detention for asylum-seekers. Therefore, it should begin conducting individual assessments before ordering detention. Hungary should also ensure all detainees due access to procedural guarantees and judicial review, and impose mandatory time frames on the duration of detention. It should also ensure that detention measures are used only as a last resort and for the shortest period of time necessary.

3

The government should improve the detention conditions in the transit zones. This includes ensuring that detainees have effective and meaningful contact with the outside world; eliminating the incarceration-like features of these structures ; providing meaningful activities and outdoor space, as well as a minimum 4m2 of living space per person in a multiple-occupancy cell (excluding furniture); ensuring proper ventilation and offering living quarters that ensure the right to a private life; giving single women accommodation in a separate sector, and offering adequate services for victims of sexual and gender-based violence.

4

Hungary should not detain vulnerable asylum-seekers, especially single women, children, people with disabilities, unaccompanied minors, or ill people.

5

Children and their families should never be detained. They should instead be provided appropriate care in facilities especially designed for children (according to the guidelines provided by the United Nations High Commissioner for Refugees and the UN Committee on the Rights of the Child).

6

The government should reverse its decision to block access to detention centres to experts and civil society organisations with relevant experience, so that they may conduct monitoring visits and inspections, including inside the transit zones.

Italy


"We've been here for 8 days, I’m aware about the rules and we are provided with what we need even if we cannot call anyone…and we don’t know where we’ll be transferred… for this I hope to leave early."

Tunisian adult 37 years old


"We can move when we want, no one forces us to standstill, but we must respect the fences. I feel detained, because I've been here for 10 days and nobody tells me when I can go out to go to my mother who is in Ferrara. The space in which I can move remains limited, I do not feel completely free. At the beginning I did not understand why I was here, then they explained it to me even though I still do not know why they do not let me go. At the beginning I thought I was arrested and that was the reason why they were taking my fingerprints"

Tunisian minor 15 years old


"I thought I was detained here because at the beginning I had been arrested, they put handcuffs but I did not understand why and what we have done. Then they explained to me that this is a centre where they must recognize us before letting us free. But I still do not understand why they brought us with handcuffs here!"

Tunisian minor 16 years old

Recommendations to thegovernment of Italy
1

Italy should limit long detention periods for the purpose of identification and nationality verification at hotspots (as recommended by the UN Human Rights Committee and the UN Committee on the Elimination of Racial Discrimination). Asylum-seekers should never be confined inside these hotspots for more than 30 days, after which they should be released...

2

Law Decree 113/18 turned the illegitimate ("de facto") detention at hotspots into a legal and legitimate (de jure) detention. Government officials must establish detailed rules on the implementation of this new form of detention, and lawyers must be given access to the facilities in the same manner as in the pre-removal detentions centres (CPRs). The government must also take steps to ensure that the guarantees and protections provided at CPRs (in line with the recast Reception Conditions Directive) are respected at the hotspots. The identification of any vulnerability must be carried out prior to detention, upon the person’s arrival, and must be taken into account when considering to apply detention measures.

3

The government must allow the entry and identification of persons arriving at all ports (according to its obligations under the UN Refugee Convention). It must discontinue the practice of preventing the disembarkation of boats at the Italian coast, resulting in the detention of those being rescued.

INTRO

CREDITS

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The problem in brief


EU law and international human rights law allow States to detain irregular migrants and asylum-seekers under specific, exceptional circumstances. Detention (deprivation of personal liberty) is a human rights violation that causes serious hardship for those detained. However, when migrants and asylum-seekers are lawfully detained under EU guidelines, such norms include important protection safeguards. In this respect, the lawfulness of detention shall always be reviewed by an independent judge, and the State must ensure access to legal assistance to all detainees, and take into consideration their vulnerable situation during detention.
International law draws a clear red line between what detention is and what it is not. The EU and its Member States increasingly blur this distinction, by going beyond the red line set by international obligations. This problem particularly concerns the States at the EU’s main entry points of forced migration. In these countries, massive, arbitrary, inhuman or unclear forms of detention are increasingly being used as deterrence measures, that is, to prevent asylum seekers and irregular migrants from accessing protection (see for example, the concerns expressed by the United Nations High Commissioner for Refugees, International Federation for Human Rights, The Global Detention Project or the European Parliament).
This policy includes the use of arbitrary or "de facto" forms of detention (transit zones, hotspots, identification centres, closed reception centres, etc.). These structures aim to blur the line between detention and reception, and to exempt States from providing any safeguards during detention.

What is "de facto" detention?

"De facto" detention occurs when individuals are detained without an official detention order from a court or other authority. As their confinement (deprivation of personal liberty) is not categorised as detention under national law, the only possibility for them to be released is leaving to another country. This kind of detention goes against basic legal norms as it occurs without any previous examination of the person’s individual circumstances or a specific legal justification, and is not based on a thorough and accurate assessment, which would prove that detention is a necessary and proportionate measure in that given case. Additionally, those asylum seekers and irregular migrants who are detained in these establishments are deprived of the usual safeguards that would normally be applied during, such as the possibility to challenge the detention order before a competent court.

de facto detention

Where "de facto" detention takes place?

"De facto" detention is exercised in various settings:

In these situations, asylum-seekers are often completely deprived of the most and basic common law remedy, habeas corpus (i.e., the detainee’s right to be brought in front of a court,to determine the legality of his/her detention.). It is particularly striking when the reasons for breaching a person’s basic human right to liberty are (or were) delays during transfer to other reception facility (Italy and Greece), or the lack of reception centres for children (Greece). The capacity shortage and the lack of appropriate open accommodation facilities led the authorities to the flawed conclusion that it is better to arbitrarily detain human beings, than to ensure their right to liberty – a policy that has no place in a democratic society.

Detention in Hungary, Bulgaria, Greece
and Italy

The report shows that "de facto" detention of asylum-seekers upon arrival has been used in Greece, Hungary and Italy. This tool is focused on Hungary, Bulgaria, Greece and Italy, because:

It is important to note that there is little well-systemised information about these trends.
The observations from UN Treaty bodies to these countries can be found here.


Why do states resort to "de facto" detention?

Even though EU law (namely the recast Reception Conditions Directive), created a specific detention regime for asylum-seekers – the so-called "asylum detention" – Bulgaria, Greece, Hungary and Italy believed that it was necessary to resort to "de facto" detention instead. As a result, they deprive certain asylum-seekers of all detention-related human rights safeguards, or, as exemplified by the case of Hungary, the States entirely abandon the use of asylum detention, and instead "de facto" detain almost every asylum-seeker entering the country. In Bulgaria, the introduction of "asylum detention" under the Reception Conditions Directive did not lead to the discontinuation of the controversial practice of detaining asylum-seekers and treating them as removable irregular migrants.

Why do Member States prefer to use "de facto" detention, despite the existence of a specific legal framework for the detention of asylum-seekers? Is it administratively more convenient? Is it to avoid applying safeguards that guarantee the well-being and protection of human rights of asylum-seekers and irregular migrants? Is it to appeal to the general public and only to specific media outlets? In light of international human rights law, none of these justifications can be accepted as a legitimate basis for the infringement of the right to liberty.

The increased use of detention measures for asylum-seekers upon their entry into the territory is motivated by a range of practical, political, and legal concerns:

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credits & further resources

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further resources

For further resources, please refer to the materials below:

The red line project: Challenging the Erosion of Asylum Seekers’ Right to Liberty at the Borders of Europe. Key findings and recommendations. download

Best Interest Behind Bars. Leaflet for practicing lawyers on the possible breach of Article 8 of the European Convention on Human Rights when asylum-seeking families with minor children are detained. download

Looking behind bars. Leaflet for European NGOs to support their access for monitoring purposes to facilities where asylum-seekers and irregular migrants are detained. download

Testimonies from behind bars. Short leaflet on collecting testimonies from detained asylum seekers. download

Report "Crossing a Red Line". download

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