Section 3: De facto detention in the CCAC
3.1 De Facto Detention of Children
Children, both accompanied and unaccompanied, are routinely de facto
detained in CCAC. In the first chapter on specific safeguards and protections
for "vulnerable applicants of international protection" within the CCAC, we
referred to the Article 11(2) RCD requirement that minors should only be
detained as a last resort and in separate facilities with access to play and
recreational activities. The possible detention of minors is maintained within the
EU asylum acquis, but must satisfy a significantly higher threshold in order to
justify the deprivation of liberty (Article 5, ECHR) and risk of torture or inhuman or
degrading treatment (Article 3, ECHR). As a substantive, fundamental and
interpretive legal principle, the ‘best interest of the child’ aims to ensure the full
and effective enjoyment of rights in the UN Convention on the Rights of the
Child.[104]
Several ECtHR cases have determined that the detention of families, in
otherwise generally ‘adequate’ conditions, nevertheless amounted to a violation
of Article 3, due to the age of the children, and the duration and conditions of
detention.[105] In A.M. and Others v France, the detention of two children (aged
2.5 and 4 months) with their mother was found in violation of Article 3, as they
were separated only by a net and exposed to significant noise disruptions from
the loudspeaker announcements.[106] All efforts should be made to release
minors, especially unaccompanied minors, as soon as possible. In this regard, it
should be assumed that the Greek state also has an obligation to identify
unaccompanied children (UACs) as soon as possible and to act as quickly as
possible once an applicant declares themselves to be a minor.
It is essential to stress from the outset that for over a year, until November 2022,
both accompanied and unaccompanied children were de facto detained in the
quarantine zones of the CCAC (see Section 3.2 below). While the situation was
challenging for everyone who was detained, the situation was particularly
critical for children as their age was not assessed until after the quarantine
___
[104] UN Convention on the Rights of the Child 1989, Article 3. See also, European Commission. n.d.
best interests of the child (BIC). Available here.
[105] Majcher and Gionco for PICUM. 2022. Immigration Detention and De Facto Detention: What
does the law Say? Available here.
[106] A.M. and Others v France [2016] ECHR (App No. 24587/12).
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