Statewatch News Online: Greece-Italy: Detainees' rights overrule absconding and rioting charges, courts rule (1)
28 March 2012
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Greece/Italy 
Detainees'
rights overrule absconding and rioting charges, courts rule
21.01.2013
Two recent judgments in Italy
and Greece have found detainees innocent of the charges that
were brought against them by the local authorities following
escape from one migration detention centre and rioting in another.
Courts ruled that the actions of detained migrants in opposing
their detention conditions were legitimate.
Greece: Escaping
undignified conditions
The first judgment was rendered by the Criminal Court of First
Instance of Igoumenitsa, Greece, on 2 October 2012 but was only
made widely available when it was published online on 11 January
2013.
Fifteen migrants who had entered Greece illegally escaped from
the Thesprotia Police Headquarters where they had been detained
for a period ranging from 9 to 45 days. They were later arrested
and charged with escaping under the Criminal Code,[1] but the
judge ruled that their actions constituted a legitimate defence
against their "deplorable" conditions.
While the judge recognised the fact that detainees absconded,
and that this was a wrongful act, he did not agree that migrants
should be liable for this offence. Instead, the judgment geared
towards the establishment of the fact that detention conditions
were inhumane and degrading, in clear violation of article 3
of the European Convention of Human Rights.
The judgment came back to what the court described as conditions
that were "extremely dangerous for human beings": all
detainees were held together in a room measuring 3m by 5m, with
one toilet and no access to exercise, water, or sanitation. Many
of the detainees suffered from lice andsometimes typhus.
Migrants were found to have been in a situation of legitimate
defence and could not be sanctioned for trying to escape undignified
detention conditions because they were submitted to "a hardship
which exceeds the inevitable level of suffering inherent to detention."
The court found that the Igoumenista authorities had breached
Article 3 (prohibition of torture, inhumane and degrading treatment
or punishment), Article 8 (right to private and family life)
and Article 13 (right to an effective remedy) of the European
Convention of Human Rights in view of both the detention conditions,
and their detention in a police station in the absence of any
charges against them.
Academics and legal practitioners praised a "remarkable"
and "audacious" judgment" after the numerous condemnations
of Greece in recent years by the European Court of Human Rights
because of degrading and/or unlawful detention conditions of
migrants.[2]
Italy: Rioting as an act of legitimate defence
A judgment in Italy in December echoed the one handed down in
Greece just two months earlier. On 12 December 2012, a tribunal
in the town of Crotone ruled that a group of detained migrants
were acting in legitimate defence when they rioted and threw
stones at security guards. [3]
The decision came after a group of migrants detained in the Identification
and Expulsion Group (CIE) of Isola Capo Rizzuto were charged
with "destruction" and "resistance to a public
officer" under the Criminal Code. The detainees viewed their
acts as a protest against their detention and demanded to be
free.
As with the Igoumenista judgment, the court acknowledged the
facts and the damages against the detention facility, but considered
that the actions of the detainees were legitimate and they therefore
avoided sanction.
The court, basing its judgment in particular on articles 15 and
16 of the Returns directive which authorise the detention of
migrants only as a last resort, declared that detention of these
migrants was illegal under EU law since the conditions required
for detention under the directive were not met.
Reference was also made to detention conditions in the CIE as
"injurious to human dignity", in violation of Article
3 of the European Convention of Human Rights.
The court thus drew the conclusion that the detained migrants
acts constituted self-defence since their fundamental rights
were "beyond doubt" at risk.
The migrants' reaction was deemed "necessary in order to
end wrongful imprisonment" especially in the absence of
an effective remedy (the accused were never provided with interpreters
or lawyers).
The court emphasised that the risk to migrants' fundamental rights
was unavoidable because they were confronted with a situation
where they could not expect the rule of law to protect them.
Sources
[1] Group of Lawyers for the Rights of Migrants and Refugees, Greek Court Acquits Immigrants who Escaped Appalling Detention Conditions, 16 January 2013
[2] Maria Gkegka, Droits des détenus (Tribunal correctionnel grec) : Acquittement d’accusés du délit d’évasion en considération des conditions de leur détention, in La Revue des Droits de l’Homme- Centre de recherches et d’études sur les droits fondamentaux (CREDOF-Paris Ouest Nanterre-La Défense), 15 January 2013; (4 December 2012, Nieciecki c. Grèce, 11677/11; 4 December 2012, Tzamalis et autres c. Grèce,15894/09; 6 November 2012, Lin c. Grèce, 58158/10 ; 25 September 2012, Ahmade c. Grèce, 50520/09, 5 April 2011, Rahimi c. Grèce, 8687/08; 7 June 2012, R.U. c. Grèce, 2237/08; 21 January 2011, M.S.S. v. Belgium and Greece, 30696/09)
[3] Dritto Penal Contemporaneo, Rivolte degli stranieri detenuti nei CIE: una forma di legittima difesa contro la violazione dei diritti fondamentali degli internati? 7 January 2013
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