Tortures, cruel, inhuman or degrading treatment to refugees and asylum seekers at the reception states

Abstract

Torture is globally prohibited by a number of international human rights treaties and on regional level protected by regional instruments as well. On international level, the prohibition of torture enshrined in the Universal Declaration of Human Rights (Article 5) and the International Covenant on Civil and Political Rights (Article 7) which state that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” The most comprehensive international treaty dealing with torture is the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, due to the fact that it includes a series of crucial provisions regarding the prohibition of torture and authorizes the Committee against Torture to supervise its implementation by the 146 States, which ratified. There is “no exceptional circumstances”, which can justify torture (including war, political instability, combating terrorism or any other emergency). The principle of non-refoulement (Article 3) prohibits States to expel, return, or extradite any individual who believes is at risk of danger. Under the Convention the States are obligated to adopt international provisions in their national legislation regarding the prohibition of torture, educate the associate personnel and conduct further investigations whenever there is reasonable ground to believe that an act of torture has been committed. The Optional Protocol to the Convention against Torture (2006) is another important text which contains related provisions against torture and ill-treatment. On regional level, there are four general regional human rights treaties – in Europe, Africa, Arab countries and the America. Each of them contains a clear prohibition of torture. The most significant provision is drafted at the European Convention on Human Rights - adopted in 1950 - a regional treaty under the auspices of the Council of Europe. In Article 3 it is declaring that no one shall be subjected to torture or to inhuman or degrading treatment or punishment. In addition to these arrangements, there is a number of common measures and general standards that are highly relevant to the prevention of torture, the soft law standards, providing clear and sufficient guidelines for interpreting the terms of “cruel, inhuman or degrading treatment or punishment”, as well as implementing treaty obligations. Significant human rights violations occur in Afghanistan. In this country although there have been attempts for peace negotiations, armed conflicts continue to happen. Killings, forced disappearances by antigovernment personnel; reports of torture and cases of cruel, inhuman, or degrading punishment by security forces and antigovernment entities often occur. Moreover, serious acts of corruption are witnessed; lack of investigation and accountability for cases of violence against women. There are reported incidents of recruitment and use of child soldiers and sexual abuse of children, trafficking persons; violence targeting members of ethnic minority groups or special social groups; LGBTI community. Moreover, abductions of civilians carried out by the Taliban increased five times and the number of casualties increased six times the years 2019-2020. Inhuman and degrading treatment is an often phenomenon to all kind of detention centers with overcrowding, lack of sanitation, and limited access to medical service facilities. Domestic gender based violence occurred against women. Regarding the case of Iraq related violations prevail in this country such as unlawful or arbitrary killings, forced disappearances, torture and cases of cruel, inhuman, and degrading treatment or punishment, arbitrary and unjustified arrests, violence and threads of prosecutions against journalists and censorship. Women’s rights are legally restricted and incidents lack of investigation. The corruption of officials is a widespread phenomenon that enjoys impunity. Civilians usually face various mistreatments during interrogation, including “severe beatings, electric shocks, bathing in cold water, being hung from the ceiling by the arms and legs, death threats and threats to their families, as well as degrading treatment. Non-governmental arbitrary groups such as ISIS kept on committing genuine mishandle and outrages (killings through suicide bombings and extemporized explosive devices). Prison and detention center conditions are harsh and life-threatening with low food shortages for the inmates and physical abuse, overcrowded facilities, inadequate sanitary conditions or medical care. During their trip displaced persons face a lot of hardships (smuggling, trafficking, and risk of sinking). As soon as they arrive, government officials of the reception States has the obligation to support them, accommodate, give access to all the human rights that international human right law defines. First of all, they should investigate if any third country national have been tortured or treated inhumanly based on physical or other psychological signs. Since the 1951 Convention and its 1967 Protocol do not determine an appropriate way on how the States should implement these mechanisms obligations at the national level legislation, the UNHCR role is so important to supervise and to ensure that the provisions of these treaties are implemented when each State adopts them in its national asylum legislation. It also contributes to the interpretation and application of the treaties’ provisions with the Handbook on Procedures and Criteria for Determining Refugee Status. Greece enacted the law Ν. 4636/2019 under the Directives of the EU, regarding the recognition of third country nationals or stateless as international protection beneficiaries in order to fulfill its obligations to the treaties. This law provides directions for all the stages from the application for international protection until the recognition of beneficiaries. Defines interview procedure, evidence assessment and refers on the exclusion reasons. In relation to the issue of prohibition of cruel, torture, inhuman or degrading treatment, it provides examination of the incident, sufficient medical care including therapy for those with special needs and disabilities. Subsidiary protection status is granted for those who are in danger of serious damage. Those affected individuals applications are examined under the accelerated asylum procedure and in absolute priority, due to their vulnerability. Although Greek law 4636 ratifies the international legal framework, accepting the international standards, interpreting them under the Directives of the EU in order to follow a common European policy it seems that it is not always possible to maintain the standards according to the provisions in the implementation. There are recordings of violations of Article 3 of the European Convention even since 1994 at the detention center of Koridallos. Recent recordings seem that the situation has not been improved respecting the living conditions of refugees and asylum seekers. The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) is the most authoritative and monitoring mechanism, investigating violations of the universal legislation. CPT conducts yearly audit visits aiming to inspect living condition of refugees and asylum seekers. Their reports of 2018 until 2020 were not in favor of Greece. The same results are documented at the latest report of METAdrasi NGO on December 2021. A detainee in the pre-departure center of Moria claimed that on the 1st of April of 2018 four police officers entered his cell and beat him. The same happened to an unaccompanied minor in Orestiada again by police officers. A numerous related claims of police violence to third-country nationals at detaining centers have been recorded. CPT allegations recommend that Greece needs legislative action for the implementation of the rules; investigation of police officers’ brutality, disciplinary and criminal confronting, and special training of all the government personnel. It is disappointing that after a series of CPT’s audit visits and its reports, not much changed regarding Greece’s refugee policy and their living conditions. CPT was forced to a public statement in order to convene Greek government revealing its unacceptable cooperation and lack of confronting with the legislation – a historic remarkable movement that is used only in very rare cases. Concluding, the law 4636/2019 does not always respond to the requirements of EU Directives and it constitutes in some cases an incorrect interpretation. When fundamental human rights are violated and federation mechanism is proved ineffective to maintain its obligations under the treaties, there are times that beneficiaries take control of the situation and burst out against their harsh living conditions. The recent example of the massive burning Moria’s accommodating camp which was housing three times its capacity became broadly known. What could be effective solutions preventing violations and combating ill-treatment? Illegal migration should be eliminated by intense and direct measures that should be enacted. The securitization of the borders with stricter patrolling would face this illegal and dangerous movement. Complying with the regulations respecting and promoting effectively the legal framework would be another solution, then continue with investigating all allegations of tortures and interviewing victims by adopting an official system for recognition and recording tortures, cruel, inhuman or degrading treatment. Lastly, there could be a series of training public officials to conduct legal research, drafting reports, informing legislation, policies, reviewing, monitoring and evaluating practices. Above all, an effective control mechanism requires cooperation with international mechanisms. National Human Rights Institutions (NHRIs) are instruments contributing in facing tortures, inhuman or degrading treatment. Their counseling role governments promotes and protects human rights, performing as a bridge between civil society and the state, linking the responsibilities of states to the rights of citizens. They connect international human rights treaties with regional legislation. Respecting the issue of combating fundamental human rights violations it is mandatory to examine cases of impunity. Fight the lack of monitoring detention centers and supervising public official. The history of impunity of violations which remain unpunished is the reason why certain situations continue to happen. States are responsible to brought perpetrators to justice in a court of law in order to apply punishment. Concluding, flows of people are forced to migrate, due to a variety of reasons regarding their dignity and their fundamental human rights violations. In many cases, they are facing the same conditions at the Reception State with those left behind. Torture is prohibited under international law and on regional level; it is non-derogable and can never be justified. Cruel, inhuman or degrading treatment or punishment is also absolutely prohibited and non-derogable. After asylum seekers enter the receiving State territory, that State is obliged under the treaties to maintain the international provision for the asylum seekers. However, sometimes this is not possible with the solely existence of regional legislation - in this case Greek law 4636/2019 - and violations still happen at the accommodating camps. CPT’s yearly audit visit reports recommend certain law amendments and suggest that there is much place of improvement. Lastly, in order to prevent and combat incidents of violation, suggested solutions are: the elimination of illegal migration, the securitization of borders, complying with the regulations, training public officials, benefit from the role National Human Rights Institutions (NHRIs) and overcoming impunity. This on-going situation for refugees accepting ill-treatment must end. Maybe integration is the path we need to cross - alongside with the investment in an educational system which incorporates refugee and migrants.