Ε. Conclusions Findings Recommendations
companied minors is a truly inevitable situation, which, as
such, and with its existence alone does not entail, by itself,
infringement of Article 3 of the European Convention on
Human Rights (ECHR) and Article 22 of the International
Convention on the Rights of the Child (ICRC), the particular
conditions of its implementation, when not complying with
a humane and dignified treatment, constitute corresponding
violations and cancel the protective nature of the declared
purpose of the measure. In addition, the extension of detention beyond the reasonable time, even if due to the lack
of accommodation spaces, inevitably underlines the forced
nature of the measure, rendering it excessively onerous and
disproportionate to its purpose.
It is known that the sovereign rights of each state include the
decision not only for the stay but also the removal of thirdcountry nationals, based on rules which the state itself has
laid down. However, both the rules and their implementation
cannot go beyond the perimeter imposed by respect for
human dignity and the mandates of international, EU and
national law.
A typical example are forced returns, which are a European
policy (Return Directive 2008/115/EC, Law 3907/2011).
In the difficult, by definition, subject of the restriction of
personal liberty for those third-country nationals that
enter or stay without legal residence permit in the country,
the presence of the Greek Ombudsman is a guarantee for
transparency in the police’s actions and respect for the
fundamental rights of the people involved. This is achieved
by carrying out external monitoring on a sampling basis at
each stage of the procedure of detention in view of return,
and the removal operation, by road, sea or air. Issues of
proportionality in the means of restraint, humane treatment,
information provided to the irregular migrants on the
procedure and their rights in a language they understand,
communication with their family or a lawyer, respect for
family unity and the dignity of the returning individuals, are
substantial guarantees of the law, and external monitoring
ensures that they are complied with in practice. There
are however cases where the treatment of the returning
third-country nationals does not always comply with the
relevant specifications, as mentioned above in Chapter A5.
The purpose of the Ombudsman is to lay down a common
basis of understanding with each administrative body, that
respect for rights is an integral part of an efficient returns
system.
90
The consolidation of the belief that a state governed by
the rule of law does not allow obscure fields of action to be
created, is a key factor for the democratic legitimisation
of police action, especially during a period when returns
and readmissions from our sea borders tend to intensify,
according to the European Commission’s action plan. For
this reason, in cases such as those mentioned above (see
Chapter A5), of the Syrians included for readmission to
Turkey and the Iraqi women who were intended for inclusion
in readmission, in October 2016, even though they
stated that they had expressed an intention for an asylum
application, the Ombudsman asked for a specific time frame
of the internal investigation by the General Inspector, which
is pending for around 4 months. And this to leave no margin
for any impressions to be formed that the purpose of return
for the State can lead to discounts on basic guarantees
and fundamental rights, such as the right of international
protection from non-refoulement.
Even when the refugees and the migrants are living in
freedom, the adverse living conditions observed during
the 2015-2016 period, make the protection of their
fundamental rights so difficult that in certain cases they may
be seen even as cases of inhuman and degrading treatment.
The belief that human rights are simply theoretical
constructions, and do not create corresponding obligations
for the state is reflected vividly in the case of the verification
of minority, where, even though there is a legislative
provision for its diagnosis procedure, the mechanistic and
deficient compliance deprives an indefinite number of minors
from third countries of the protection they are entitled to.
Unfortunately the mandate with overriding legislative power
(Article 3 ICRC, Law 2201/1992), to evaluate as a priority
the child’s interest in all decisions related to it, whether taken
by legislative bodies, administrative authorities, or public or
private organisations of social protection, does not appear
to provoke the required reflexes in the Administration.
A main expression of all the above is the disregard of the
presumption of minority each time it is doubted or even
when the relevant claim is made by the interested party, and
the insistence to treat this party as an adult.
In direct contrast, we refer to the issue of the integration of
refugee children in education. The child’s right to education,
as established in the CRC (Article 28 of Law 2101/1992)
and the Constitution (Article 16), was one of the main
challenges of the Greek society, after the massive entry into
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