18 GREECE IRREGULAR MIGRANTS AND ASYLUM-SEEKERS ROUTINELY DETAINED IN SUBSTANDARD CONDITIONS seekers as a measure of last resort, after justifying in each individual case that it is a necessary and proportionate measure that conforms with international law. Amnesty International is also concerned about the incompatibility of amended Article 76(1) of Law 3386/2005 with international human rights and refugee law and with the Greek Constitution, since it allows for the deportation of recognized refugees and asylum-seekers and irregular migrants solely on the grounds that they have been prosecuted for a crime punishable by as little as three months imprisonment. Amnesty International believes that the amended provision is contrary to Article 33(2) of the Refugee Convention which makes an exception to the non-refoulement prohibition only in circumstances in which “there are reasonable grounds for regarding the refugee as a danger to the security of the country in which he is, or who having been convicted by a final judgment of a particular serious crime, constitutes a danger to the community of that country”. A crime which attracts a three-month imprisonment cannot be considered a particularly serious crime. Furthermore, deportation on the basis that someone has been prosecuted but not yet convicted for a crime is contrary to the principle of the “presumption of innocence”, which is enshrined in the Greek Constitution and international human rights treaties, such as Article 6(2) of the ECHR, which guarantees the right to fair trial. 56 3.3. CRIMINALIZATION OF IRREGULAR MIGRATION Various UN bodies, including the Office of the High Commissioner for Human Rights (OHCHR) and the Special Rapporteur on the human rights of migrants, have opposed the treatment of irregular migration, including entry, exit or stay, as a criminal offence.57 In its recent report, the Working Group on Arbitrary Detention has noted that “migrants in an irregular situation have not committed any crime. The criminalization of irregular migration exceeds the legitimate interests of States in protecting its territories and regulating irregular migration flows”.58 UN human rights experts have repeatedly stressed that states must not criminalize irregular entry. They have criticized the use and introduction of criminal penalties, including associated detention, for failure to comply with immigration regulations and the use of immigration status as a basis for a criminal conviction or as an exacerbating circumstance for any offence, resulting in discriminatory penalties. Criminalization of irregular migration is seen as inconsistent with human rights protection. Such measures promote xenophobic attitudes, and undermine access to asylum. Legislation in Greece allows for criminal sanctions, including imprisonment, for irregular entry into and exit out of the country. Article 83 of Law 3386/2005 stipulates that thirdcountry nationals can be sentenced with imprisonment for at least three months and a substantial fine (of at least €1,500) for irregular entry or exit.59 According to Article 83(2), the Public Prosecutor of the Magistrates Court, with approval from the Public Prosecutor for the Court of Appeal, may refrain from initiating criminal proceedings for such acts, in which case he or she shall immediately notify the police or port authority of this decision, so the latter may immediately and forcibly remove the third-country national to the country of origin or descent. If they cannot be removed immediately, the relevant authority shall refer them to the competent administrative authority for deportation on the basis of Article 76 of the same Law.60 Amnesty International July 2010 Index: EUR 25/002/2010