28 March 2012
Detainees' rights overrule absconding and rioting charges, courts rule
Two recent judgments in Italy and Greece have found detainees innocent of the charges that were brought against them by the local authorities following escape from one migration detention centre and rioting in another. Courts ruled that the actions of detained migrants in opposing their detention conditions were legitimate.
Greece: Escaping undignified conditions
The first judgment was rendered by the Criminal Court of First Instance of Igoumenitsa, Greece, on 2 October 2012 but was only made widely available when it was published online on 11 January 2013.
Fifteen migrants who had entered Greece illegally escaped from the Thesprotia Police Headquarters where they had been detained for a period ranging from 9 to 45 days. They were later arrested and charged with escaping under the Criminal Code, but the judge ruled that their actions constituted a legitimate defence against their "deplorable" conditions.
While the judge recognised the fact that detainees absconded, and that this was a wrongful act, he did not agree that migrants should be liable for this offence. Instead, the judgment geared towards the establishment of the fact that detention conditions were inhumane and degrading, in clear violation of article 3 of the European Convention of Human Rights.
The judgment came back to what the court described as conditions that were "extremely dangerous for human beings": all detainees were held together in a room measuring 3m by 5m, with one toilet and no access to exercise, water, or sanitation. Many of the detainees suffered from lice andsometimes typhus.
Migrants were found to have been in a situation of legitimate defence and could not be sanctioned for trying to escape undignified detention conditions because they were submitted to "a hardship which exceeds the inevitable level of suffering inherent to detention."
The court found that the Igoumenista authorities had breached Article 3 (prohibition of torture, inhumane and degrading treatment or punishment), Article 8 (right to private and family life) and Article 13 (right to an effective remedy) of the European Convention of Human Rights in view of both the detention conditions, and their detention in a police station in the absence of any charges against them.
Academics and legal practitioners praised a "remarkable" and "audacious" judgment" after the numerous condemnations of Greece in recent years by the European Court of Human Rights because of degrading and/or unlawful detention conditions of migrants.
Italy: Rioting as an act of legitimate defence
A judgment in Italy in December echoed the one handed down in Greece just two months earlier. On 12 December 2012, a tribunal in the town of Crotone ruled that a group of detained migrants were acting in legitimate defence when they rioted and threw stones at security guards. 
The decision came after a group of migrants detained in the Identification and Expulsion Group (CIE) of Isola Capo Rizzuto were charged with "destruction" and "resistance to a public officer" under the Criminal Code. The detainees viewed their acts as a protest against their detention and demanded to be free.
As with the Igoumenista judgment, the court acknowledged the facts and the damages against the detention facility, but considered that the actions of the detainees were legitimate and they therefore avoided sanction.
The court, basing its judgment in particular on articles 15 and 16 of the Returns directive which authorise the detention of migrants only as a last resort, declared that detention of these migrants was illegal under EU law since the conditions required for detention under the directive were not met.
Reference was also made to detention conditions in the CIE as "injurious to human dignity", in violation of Article 3 of the European Convention of Human Rights.
The court thus drew the conclusion that the detained migrants acts constituted self-defence since their fundamental rights were "beyond doubt" at risk.
The migrants' reaction was deemed "necessary in order to end wrongful imprisonment" especially in the absence of an effective remedy (the accused were never provided with interpreters or lawyers).
The court emphasised that the risk to migrants' fundamental rights was unavoidable because they were confronted with a situation where they could not expect the rule of law to protect them.
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