E. Detention of Specific Groups: Detention of Vulnerable Persons This section explores the legal grounds for detaining certain vulnerable groups identified within our client base on Kos. We have identified most of these groups based on the IPA: Articles 20(3), 39(5)(d), and 58(1), which are transposed from Article 20 Directive 2011/95/EU, define ‘vulnerable persons’ to include unaccompanied or unmarried minors, immediate relatives of shipwrecked people, people with disabilities, the elderly, pregnant women, single parents, children, victims of human trafficking, people with serious illnesses, people with mental disabilities, and people who have been tortured, raped or have experienced other serious forms of psychological, physical or sexual violence, such as victims of genital mutilation. Similarly, the RD defines vulnerable persons to include unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence.112 While this section explores whether the authorities can detain vulnerable persons in the first place, Section 2 looks more closely at whether the detention conditions on Kos violate their rights. However, for vulnerable groups the questions of when persons can be detained and when detention conditions violate their rights are closely connected. This is because, the ECtHR considers detention to violate Article 5 § 1 ECHR whenever the conditions violate Art. 3 ECHR.113 Further, a certain form of detention is already considered unlawful under Greek Law, if special preconditions for vulnerable persons are not met. For example, if Article 48 (3) IPA requires that families are detained separately from other people in detention, this – a contrario – means, that where they cannot be detained separately, the detention as such is unlawful. Because these two issues are interconnected, they cannot be neatly separated. Accordingly, certain issues related to the detention conditions are already raised in the following section on grounds for detention. 1. Legal Preconditions a. Under EU and Greek law Although both Greek and EU law implicitly allow the authorities to detain vulnerable asylum seekers and rejected asylum seekers, both legal systems impose additional standards that must be met for the detention to be lawful.114 In general, when assessing whether asylum seekers or vulnerable rejected asylum seekers should be detained, both legal frameworks require authorities to conduct an individualized assessment that takes into account a person’s specific vulnerabilities.115 EU and Greek asylum law require that the health, including mental health, be the primary concern of the competent authorities. Under EU Law, Article 11 RCD provides further guarantees for vulnerable persons in detention. Since their health, especially their mental health, is particularly at risk due to the situation of detention, Article11 RCD declares this to be a priority concern of national authorities and prescribes regular reviews of whether adequate support is being provided (para. 1). When detention is ordered, authorities must ensure regular monitoring and adequate support that accounts for the person’s physical and mental health.116 Both EU and Greek asylum law provides additional protections to women, stating, for example, that they must be housed separately from men.117 Greek and EU law 112 Art. 3 (9) Directive 2008/115/EC. 113 ECHR, Judgement of 05/11/2015, No. 58399/11, A.Y. v. Greece, para. 88. 114 See Art. 48 L. 4636/2019, Art. 11 2013/33/EU, Art. 16 2008/115/EC, Art. 31 L. 3907/2011. 115 Art.31 (1) L. 3907/2011, Art.15 (1), 16 (3), 17 RD and Art. 8 (2), Art.11, RCD, Art.46 (1) L. 4636/2019. 116 Art. 11 (1) Directive 2013/33/EU, Art. 46 (1) L. 4636/2019. 117 Art. 11 (1) Directive 2013/33/EU, Art. 48 (5) L. 4636/2019. 16 DETENTION OF MIGRANTS ON THE ISLAND OF KOS