International Commission of Jurists (ICJ) and European Council for Refugees and Exiles (ECRE) v. Greece, Complaint No. 173/2018
The European Committee of Social Rights determined that the Greek government failed to provide certain human rights protections to accompanied and unaccompanied migrant children living on the Greek mainland and islands. The decision declared that many fundamental human rights obligations States have under the European Social Charter extend to all migrant children residing within those States, regardless of their immigration status.
The International Commission of Jurists (ICJ) and the European Council for Refugees and Exiles (ECRE) alleged that migrant children in Greece and on the Greek islands have been deprived of their rights that are guaranteed within the Revised European Social Charter (hereinafter “the Charter”). These include the rights to housing compatible with human dignity; social, legal, and economic protections; health; social and medical assistance; and education. The European Committee of Social Rights found that the Greek government violated Articles 31§§1 and 2, 17§1, 7§10, 17§2, and 11§§1 and 3 of the Charter. Migrant children, regardless of their immigration status, fall within the scope of these Articles of the Charter and are owed protection of their fundamental rights to life, physical and psychological integrity, and human dignity. The majority of migrant children covered by this complaint were refugees or asylum-seekers.
The violations of Article 31§§1 and 2 of the Charter regard the right to housing. The Committee determined that both accompanied and unaccompanied migrant children endure significant overcrowding, sanitation, and safety issues on the islands’ reception and identification centers. Unaccompanied migrant children experience homelessness and inappropriate long-term accommodation on the mainland. The Committee found that “the exceptional nature of the situation resulting from an increasing influx of migrants and refugees and the difficulties for a State in managing the situation at its borders cannot absolve that State of its obligations under Article 31§2 of the Charter to provide shelter to migrant and refugee children, in view of their specific needs and extreme vulnerability,” and that the same applied to Article 31§1. However, the Committee determined there was no violation of Article 31§1 with regard to the provision of food.
The violation of Article 17§1 of the Charter regards the right of children to care, assistance, and protection. The Committee determined that the Greek government committed a violation of Article 17§1 for the same accommodation issues resulting in Article 31§§1 and 2 violations. The Committee also found that the Greek government has failed to provide an appropriate legal guardianship system to unaccompanied and separated migrant children, even though under Article 17§1 such a system is “a pre-condition for ensuring the best interests and the care and assistance of such children.” The current guardianship system wherein a Public Prosecutor acts as a temporary guardian results in Public Prosecutors being the long-term guardians of large numbers of children whom they cannot effectively support or advise. While Greece's new law 4554/2018 would put the government in compliance with Article 17§1 with regard to guardianship, its implementation has been delayed and so could not be determined effective as of the time of the Committee’s decision. Finally, the Committee also found a violation under Article 17§1 for the government’s practice of detaining migrant children on the ground of “protective custody.” Under “protective custody,” children may be held in police stations or closed facilities without mandatory time limits or assessment of the child’s best interests. These detentions occur due to accommodation shortages and punish children for their migratory status. The detention of unaccompanied migrant children has been criticized and found unlawful by many international bodies, including this Committee.
The violation of Article 7§10 of the Charter regards the right of children to protection. States party to the Charter have an obligation to prevent the exploitation and trafficking of street children. Because of inadequate housing and guardianship by the Greek government, many migrant children are unsupervised and living on the streets, exposing them to violence, trafficking, and exploitation. There have been allegations of violence and sexual exploitation against unaccompanied children, yet children do not have the assistance of a guardian in order to effectively report such instances. As a result, the Committee held that Greece has failed to fulfill their obligation of protecting migrant children from physical and moral dangers.
The violation of Article 17§2 of the Charter regards the right of children to a free primary and secondary education. Regardless of their immigration status, any child residing in a party State is owed a formal education comparable to that received by native-born children. Migrant children on the mainland benefit from education programs that the Greek government has implemented, but implementation on the islands has been slow. As less than one quarter of migrant children on the Greek islands were enrolled in public school as of the time of the Committee’s decision, the Committee held that Greece has failed to provide effective education to children on the Greek islands.
The violations of Articles 11§§1 and 3 of the Charter regard the right to protection of health. The Committee noted appropriate housing is a necessary preventative measure to decrease children’ risk of physical and mental health issues, and children on both the mainland and islands lack appropriate housing. On the islands, there is an ongoing shortage of medical and psychological facilities and personnel. The Committee held that Greece has failed to provide adequate health care to migrant children on the islands, as well as to children living on the streets or in “protective custody” on the mainland.
The decision is currently under follow-up examination by the Committee of Ministers of the Council of Europe. The ECSR will also consider the implementation of its decision in the framework of its own follow-up procedure. This review will take place in 2023 in the context of the examination of Greece's simplified report and will be made public at the beginning of 2024.
This case brings attention to the reality of conditions for migrants in Europe and the need for significant overhaul regarding how States provide protection for vulnerable migrant populations. The Committee ruled on this decision only two months after the Greek government ended the practice of “protective custody” for unaccompanied children.
The Committee also recalled for all States that are party to the Charter the “duty of international assistance and cooperation” to realize the rights and principles within the Charter when it comes to accompanied and unaccompanied migrant children in Greece and the Greek islands. This is significant because it gives party States a responsibility to provide assistance to fellow States to provide for the needs and rights of migrant children.
For their contributions, special thanks to ESCR-Net members: the Program on Human Rights and the Global Economy (PHRGE) at Northeastern University.