Children in the Mavrovouni Camp
A Consideration of a Possible Violation of Article 3 ECHR
Marcella Holz
Human Rights Bachelor Thesis 15 credits
Spring semester 2021 Supervisor: Lena Karlbrink
Abstract
This thesis aims to define the scope of Article 3 ECHR, concerning children with traumas in registration and identification camps. The interpretation of the scope of Article 3 ECHR is based on a case study of the cases Khan v France and J.R. and Others v Greece. The result of the case study in conjunction with relevant legislation is applied to the Mavrovouni camp in Lesvos, Greece. The normative approach in this thesis is combined with hermeneutic analysis. The case study shows that inadequate housing conditions are unlikely to violate Article 3 ECHR. Nonetheless, the threshold of Article 3 ECHR is broader when children are subject to the conditions. Children are internationally recognized as more vulnerable, especially when they are traumatized. In conclusion, it is to say that a violation of Article 3 ECHR can be made out in the Mavrovouni camp concerning children that live in the camp.
Keywords: Mavrovouni Camp, Kara Tepe, Mental health, Inhuman and Degrading Treatment
Table of Content
List of Abbreviations ... 5
I. Introduction ... 1
1. Background ... 1
2. Aim and Research Question ... 3
3. Methodology ... 4
3.1 Method ... 5
3.2 Material ... 6
4. Delimitation ... 7
II. Children in Camps ... 7
1. Refugee and Asylum-Seeking Children ... 7
2. Greek Camps ... 10
III. International Legal Framework ... 12
1. International Covenant on Civil and Political Rights ... 13
2. Convention Against Torture ... 14
3. Convention on the Rights of the Child ... 15
4. Convention on the Status of Refugees ... 16
5. Article 3 ECHR ... 16
IV. Jurisprudence ... 17
1. Khan v France ... 17
2. J.R. and Others v Greece ... 18
V. Analysis ... 20
1. The Merits ... 20
1.1 Merits in J.R. and Others v Greece ... 20
1.2 Merits in Khan v France ... 22
2. Evaluation ... 23
2.1 Evaluation Khan v France ... 24
3. Scope of Article 3 ECHR ... 27
VI. The Mavrovouni Camp ... 28
1. Conditions in the Mavrovouni Camp ... 29
2. Scope of Article 3 ECHR in Mavrovouni Camp ... 31
2.1 Inhuman and Degrading Conditions in the Mavrovouni Camp ... 31
2.2 Children with Mental Health Issues and Traumas in the Mavrovouni Camp... 33
VII. Conclusion ... 36
List of Abbreviations
CAT Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment
CNCDH Commission nationale consultative des droits de l´Homme
CPT European Committee for the Prevention of Torture and Inhuman
or Degrading Treatment
CRC Convention on the Rights of the Child
CSR Convention on the Status of Refugees/ Refugee Convention
ECRE European Council on Refugees and Exiles
ECHR European Convention on Human Rights
ECtHR European Court of Human Rights
EU European Union
GCR Greek Council for Refugees
ICCPR International Covenant on Civil and Political Rights
OHCHR UN Human Rights Committee
PTSD Post-traumatic stress disorder
RIC Reception and Identification Center
UNHCR United Nations Refugee Agency
UNICEF United Nations Children´s Fund
1
I. Introduction
The southern European border states are since the peak of arriving refugees in 2015 challenged with the numbers of people entering European territory. This creates crowded refugee camps and reception and identification centers (RIC) in which basic rights as sanitation and health care often cannot be guaranteed. Such conditions can be especially harmful to children who are traumatized by previous life events. Further, it might entail a violation of the right to prohibition from inhuman or degrading treatment.
1. Background
The United Nations High Commissioner for Refugees (UNHCR) claims that in 2020 worldwide more than 26.3 million people were fleeing from their country of origin.1 Many refugees, especially from African and Arab countries, aim to seek refugee status on European territory. According to the 1951 Refugee Convention is “a refugee” an individual who is “unable or unwilling to return to their country of origin owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion.”2 Refugees are protected by the Refugee Convention. Contracting parties to the convention must fulfill their obligation to offer such protection. In the years between 2014 and 2020, 5 571 300 million asylum applications have been lodged in Europe3. The peak of this refugee movement towards Europe was in 2015. European media and politicians were fast to call the occurrence “refugee crisis”. Nonetheless, the term “crisis” focuses on the negative influence and additional work that European countries have with rising numbers of refugees – and not “crisis” concerning the right violating and often life-threatening situations in the home countries of the refugees. This created a shift of perception in the host states.4 Stigmatization,
growing right-wing political parties, and media discourses increased the repudiation of European citizens towards incoming refugees.5
The European Council states that since 2015 the most irregular arrivals in Europe have been recorded on the eastern route, which implies all irregular arrivals in Bulgaria, Cyprus, and
1 UNHCR, Figures at Glance, Global Trends, Forced Displacement in 2019, United Nations High Commissioner
for Refugee, June 2020, pp.2.
22 UNHCR, What is a Refugee?, The UN Refugee Agency, https://www.unhcr.org/what-is-a-refugee.html, last
accessed: 20.03.2021.
3 Asylum Statistics, Eurostat Statistics Explained,
https://ec.europa.eu/eurostat/statistics-explained/index.php/Asylum_statistics, last accessed: 15.04.2021.
4 A. Lems, K. Oester & S. Strasser, Children of the Crisis: Ethnographic perspectives on unaccompanied
refugee youth in and en route to Europe, Journal of Ethnic and Migration Studies, Routledge, 2019, 46:2, pp.
315.
5M. Krzyżanowski, A. Triandafyllidou & R. Wodak, The Mediazation and the Politization of the “Refugee
2 Greece.6 Several Greek islands close to the Turkish sea border have tempted thousands of
refugees to enter the Greek border over the sea. Since 2014 there have been 1 202 863 million sea arrivals in Greece7. Especially the Aegean islands have been overwhelmed with the high
numbers of refugees that arrived over the years. Currently, the islands host 14 800 refugees and asylum seekers. Asylum seekers have applied for protection but have not yet been permitted the official refugee status8. This rapid increase in smaller areas as the Aegean Islands increases the negative tensions in society and political decisions. According to the UNHCR, are 26% of the refugee children – out of which the majority is younger than 12 years old.9 Furthermore, most refugees arrive on the island of Lesvos. How overwhelming the high numbers of arriving refugees are can be seen in the Moria refugee camp. The camp was originally designed with capacities for 3 000 people, however, due to the large numbers of refugees on the island, the camp hosted at times more than 20 000 refugees. The overstrained capacities resulted in deficiencies of housing and sanitation conditions for all residents. 10 The Council of Europe Commissioner on Human Rights was alarmed after a visit in 2019 by the unhygienic and overcrowded conditions in the refugee camp and urged to address the bad conditions. She claimed, ignoring the dramatic conditions will lead to “tragic events”.11
In 2020, the already critical situation in the camp aggravated due to two “tragic events”. First, the global COVID-19 pandemic that has inter alia reached Lesvos. Second, a campfire in September, which has gravely destructed the campsite and caused the 12 500 inhabitants to lose their residence.12 Thus, Greek authorities built with military help an emergency campsite – the Mavrovouni camp (also known as Kara Tepe 2). The camp is a reception and identification camp. In this thesis, the term “refugee camp” will include RICs. RICs are temporary accommodation centers. Most camps on Lesbos are RIC´s (often called “hotspots”) and differ
6 European Council, Infographic- Migration flows: Eastern, Central and Western routes, Council of the
European Union, https://www.consilium.europa.eu/en/infographics/migration-flows/, last accessed: 15.04.2021.
7Mediterranean Situation: Greece, Operation Portal, Refugee Situations, UNHCR,
https://data2.unhcr.org/en/situations/mediterranean/location/5179, Last accessed: 15.04.2021.
8 Amnesty International, Refugees, Asylum Seekers and Migrants,
https://www.amnesty.org/en/what-we-do/refugees-asylum-seekers-and-migrants/, last accessed: 23.05.2021.
9 UNHCR, Aegean Islands: Weekly Snapshot (Week 05.04-11.04. April 2021), 13.04.2021.
10 J. Bhabha and V. Digidiki, EU Migration Pact Fails to Adress Human Rights Concerns in Lesvos - Greece,
Health and Human Rights Journal, 2020, 22 (2), pp. 292.
11 Commissioner on Human Rights, Council of Europe, Greece must urgently transfer asylum seekers from the
Aegean islands and improve living conditions in reception facilities, Country Visit, 2019.
12 European Commission, Memorandum of Understanding: Commission and support for the situation on the
Greek islands Questions and Answers, 03.12.2020,
3 from accommodations for relocation camps.13 Mavrovouni was built on the former Kara Tepe
shooting range that priorly had to be investigated for unexploded landmines. Furthermore, it is located close to the open sea, with some tents standing only 20 meters next to it. Thus, the Greek Council for Refugees (GCR) and Oxfam have reviewed the new camp site´s conditions. In a report, they stated inadequate living conditions for the 6 000 residents. People are housed in tents that cannot provide sufficient shelter from the harsh weather conditions so close to the sea.14 Furthermore, the NGO´s criticize a lack of clean or hot water, sanitation, adequate sewage system, food, and enough accessible medical assistance. The lack of ample light posed also, a threat for sexual assault or sexual- and nonsexual violence towards women and children.15 Hence, residents claimed that the camp is worse than the previous Moria camp and thereby, called it Moria 2.0.
Within the group of refugees, children are especially vulnerable. Although children receive special protection under international law, for example with the International Convention on the Rights of the Child (CRC), states can fail to protect those rights16. It is to consider that the majority of people in the camps have left their country due to war, civil conflicts, persecution, or hunger. Many children have experienced the loss of at least one close family member. Those traumatic events often burden the children with traumas, mental health issues, or post-traumatic stress disorder (PTSD) symptoms.17 In combination with inadequate housing conditions, children can experience severe mental stress and grave long-term consequences18. Due to the high numbers of refugees that Greece must deal with, it can come to violations of certain rights in the refugee camps. Article 3 of the European Convention of Human Rights and Fundamental Freedoms (ECHR) prohibits torture, inhuman or degrading treatment. It is to question if this right of children in the Mavrovouni camp is violated.
2. Aim and Research Question
It is to say that the combination of critical housing conditions and previous mental health impacts that the refugee and asylum-seeking children on Lesvos have to deal with, may cause
13 GCR, Types of Accommodations – Greece, Asylum Information Database, European Council on Refugees and
Exiles, https://asylumineurope.org/reports/country/greece/reception-conditions/housing/types-accommodation/, last accessed: 22.05.2021.
14 N. Kafkoutsou & S. Oikonomou, Lesbos Bulletin: Update on the EU “hotspot” Moria 2.0, Greek Council for
Refugees and Oxfam International, 2020, pp. 4.
15 Kafkoutsou &Oikonomou, 2020, pp.3.
16 C. Jenks, Children Rights and Childhood, Routledge, 2005, pp.122.
17 C. Watters & I. Derluyn, Wellbeing: refugee children´s psychological wellbeing and mental health, in
Research Handbook on Child Migration, by J. Bhabha, J. Kanics & D. Senovilla Hernandez, Edward Elgar Publishing Limited, 2018, pp. 370.
4 a violation of Art. 3 ECHR. However, the scope of Art. 3 ECHR is broadly discussed by legal scholars and the international community. The European Court of Human Rights (ECtHR) has dealt with several cases concerning the scope of Article 3 ECHR. In this thesis, I will conduct an analysis of case law in order to see if the defined scope will cover a right violation at the Greek borders. Therefore, my research questions will be:
How does the European Court of Human Rights define a violation of Article 3 ECHR concerning inadequate living conditions in camps? Furthermore, does the defined scope of Article 3 ECHR cover the living situation of children in the Mavrovouni camp, that deal with mental health issues and traumas?
This thesis aims to analyze the scope of inhuman and degrading treatment in regard to camp conditions and thereby, to see if children are subjected to such. My thesis will relate to human rights because the primarily used sources will be, as further discussed in the Material section, International and European conventions, treaties, and judgments that aim to protect Human Rights. Human Rights aim to protect and guarantee basic needs and rights for everyone.19 Further, children are seen as vulnerable due to their inability to protect themselves and thereby, in need of special protection.20 Nonetheless, the basic needs of children are often not satisfied in refugee camps or RICs. In addition, mental health issues require special attention and treatment.21 However, in some camps, such basic rights are not guaranteed. There has been no research conducted on the possible inhuman and degrading treatment of children in the Mavrovouni camp. Neither was research conducted on the interrelation of children's mental health status and a violation of article 3 ECHR due to housing conditions. My thesis will contribute to the field of Human Rights by connecting international law and case law to the specific case of traumatized children in the Mavrovouni camp. It will further define the scope of Art. 3 ECHR in regard to such, and thereby, set grounds for further research. Thereby, the thesis consists of academic implications that may be broadened up to further social research.
3. Methodology
In legal research different legal methods can be used. However, all legal researchers base their work on empirical data. This empirical data includes in legal research the normative legislation – conventions, statutes, treaties, etc. – and in a second instance secondary legal sources, such
19 R. Smith, Textbook on International Human Rights, Oxford University Press, 2016, pp.23. 20 D. Archard, Children: Rights and Childhood, Routledge Taylor and Francis Group, 2004, pp.71.
21 E.g., S.R. Sirin & L. Rogers-Sirin, the Educational and Mental Health Needs of Syrian Refugee Children,
5 as case law, judgments, and scholarly writings.22 The most used approach is a normative
approach, which allows the author to go beyond the norm itself and question values, moral responsibilities, and certain choices.23 The aim of this thesis poses a research question that is
best answered with a normative approach. For the textual analysis, I am going to use a hermeneutic discipline. A hermeneutical approach primarily focuses on the interpretation and analysis of legal texts, norms, or cases.24 However, this thesis will, as it is common for legal methods, not consist of a theory25. This allows me to focus on the essence of law and jurisprudence.
3.1 Method
To analyze a possible right violation, I will apply logical syllogism. Logical syllogism is reasoning in which multiple premises will be combined and analyzed. This deductive interpretation will lead to a conclusion.26 My approach in this thesis will resemble ECtHR jurisprudence. The combination of different legal and practical premises will lead to a conclusion that will show if a human rights violation in the Mavrovouni camp is conducted. The analysis of the jurisprudence of two cases of the ECtHR and the premises of a legal framework will build a scope that can be applied in the Mavrovouni camp and show if a right violation of Article 3 ECHR is conducted. A combination of logic syllogism and a hermeneutical approach allows me to examine the current legislation on the issue, by a logical combination of the legal framework and facts.
The structure of this thesis will be based on the following steps. First, the claim that introduces the issue and legal question. My claim is that in the case of refugee and asylum-seeking children, who have mental health issues and traumas due to previous experiences in their home countries, the children experience a violation of the right of prohibition from inhuman or degrading treatment in the Mavrovouni camp. Hence, I claim that bad housing conditions can become degrading and inhuman if the child´s mental health is negatively impacted by previous traumatizing events. Previous literature will elaborate on children´s health conditions in refugee camps. The second step is the legal framework. In this section, current and applicable legislation – primary and secondary law– will be introduced and
22 M. van Hoecke, 2011, p. 11. 23 Van Hoecke, 2011, p.10.
24 J. Haage & M. van Hoecke, The Method of a Truly Normative Legal Science, in Methodologies of Legal
Research by M. van Hoecke, Hart Publishing, 2011, pp.4, 22.
25O. Guobadia & J. Pogue, From Memo to Appellate Brief, Georgetown University Law Center, The Writing
Center at GULC, 2012, pp.4.
6 examined.27 This will allow me to gain a holistic understanding of the legal framework that is
relevant for the present case of children in the Mavrovouni camp. To define a legal scope of Art. 3 ECHR the cases Khan v France and J.R. and Others v Greece will be further summarized. The cases will be analyzed in a specific approach. First, the merits of the cases in which I will analyze what reports and information the court used for its ruling. The second stage will be to analyze the evaluation of the court´s assessment. The focus will lie on the application of Art. 3 ECHR, the reasoning of the court for or against a violation, and on what grounds the court´s ruling is based. This approach allows me to evaluate where the court placed its focus for the judgment. The different evaluations of different materials can impact the court´s decision. Thereby, it is important to understand what assessments are prioritized by the ECtHR. In this stage, the normative approach of the posed research question will especially be reflected.
The last step is the application. The analysis of case jurisprudence will be combined and interpreted with the applicable legislation. The scope that I analyze will be further applied to the issue from the first step. Thereby, I will be able to answer my research question and conclude if the scope of Article 3 ECHR in regard to children with mental health issues and traumas, is applicable in the Mavrovouni camp and further if Art. 3 ECHR is violated. 28
3.2 Material
As a primary source, I use the European Convention on Human Rights. Further used primary legal material are the Convention against Torture (CAT), the International Convention of Civil and Political Rights (ICCPR), and the CRC. This will put Art. 3 ECHR in an international context and will help to define the meaning and scope of the aim and purpose of the Article itself. Secondary legal sources will be the judicial decisions from the European Court of Human Rights in the cases Khan v France and J.R. and Others v. Greece. These cases will be analyzed in regards to the merits and the courts' assessment to pinpoint the meaning of Art. 3 ECHR in the context of living conditions in refugee camps. The conditions in the camp will be based on reports by multiple non-governmental organizations. Furthermore, advisory opinions, interpretations, and previous research by scholars will be used as material. 29 For the collection of the used material, I primarily used international databases, such as HUDOC, the UN Official Document System, the Malmö library database, Libris, or Google Scholar. Nevertheless, I am
27 J. Holland & J. Webb, learning Legal Rules: A Students´ Guide to Legal method and Reasoning, Oxford
University Press, 2013, pp. 325.
28 Strong, 2014, pp. 34.
29 M. Saunders, P. Lewis, and A. Thornhill, Research Methods for Business Students, Pearson Education, Fifth
7 aware of the possibility of the chosen material being biased. Especially statements or papers conducted by states and NGOs can be biased and promote a favored outcome. Further, researchers have often biased interpretations themselves, impacted by a certain social discourse in which they grew up. The use of peer-reviewed material will support a qualitative standard and promotes an unbiased analysis.The most used keywords for the conduction of the material were: Mavrovouni Camp, Lesvos, PTSD, Refugee Children.
4. Delimitation
At this stage, I will make some delimitations, since the subject of the rights of children, refugees, and refugee camps can be discussed broadly. In this study, I will only consider mental health issues and traumas that stand in connection with previous war and violence-related experiences, e.g., PTSD symptoms. Other mental health issues or disabilities will not be reflected in this research. Additionally, with regards to children in the Mavrovouni, only children under the age of 18 years, as defined in Art. 1 CRC will be considered30. Following the previously mentioned, it will not be considered what processes occur after RICs or refugee camps, e.g., the immigration process itself or the detention of migrants. The research and analysis will not in detail consider which member states take refugees and how their treatment or right situation is during the immigration process. Neither will be considered any distribution or deportation processes. Subsequently, it is crucial to note that this research is based on the legislation and conditions as of the day of publication.
II. Children in Camps
As previously mentioned, this thesis will be based on the claim that the right from Art. 3 ECHR is violated in regard to children with mental health issues and traumas in the RIC Mavrovouni on Lesvos. To analyze this, certain prerequisites must be discussed. In this section, I will describe the situation of children in camps.
1. Refugee and Asylum-Seeking Children
According to David Archard, Locke argued, that the child is an incomplete version, that will with good upbringing and experiences form into an adult.31 The acquired knowledge will set the grounds for reasonable thinking and reasonable actions.32 Archard argues, childhood
30 Convention on the Rights of the Child, United Nations General Assembly resolution 44/25 of 20 November
1989, entry into force 1990.
31 S. Nakata, Childhood Citizenship, Governance and Policy: The politics of becoming adult, Routledge, 2015,
pp.12.
8 conceptions, as a social construct, mainly differ in boundaries, division, and dimension. This is crucial when it comes to children that have to leave their country of origin. Children that flee their country leave behind a social construct of shared norms, values, and history. Arriving in a new country also implies new cultural norms and structures. In addition, traumatic experiences, such as war and violence, can cause negative mental health issues. Violence perpetrated against children or family members can deeply traumatize children33.
Research conducted by the Migration Policy Institute on Syrian Refugee Children has shown that refugee children are at high risk of suffering from PTSD or other trauma-related behavior, such as depression or aggression, and emotional problems34. Besides, such traumas and mental health issues can impact the cognitive and educational performances of the child35. According to the authors, this may cause a high risk of being unemployed or unable to keep long-time jobs as adults36. Furthermore, in close connection to mental health issues is the lack of adequate education, which inevitably enhances the risk of mental health issues. Children who have fled to another country can be several years without being enrolled in a school or educational training. Further, the authors claim that lack of treatment of mental health issues will subsequently lead to long-term issues that will impact that child´s life throughout their lifetime.37 This is supported by Hermanns, de Jong, and Paardekooper, who conducted qualitative research on the psychological impact that War and the Refugee Situation have on children in refugee camps in Northern Uganda. For this research, the authors interviewed more than 200 children.38 The study revealed that children, who live in the refugee camps and experienced war have shown more signs of depressions, trauma, and aggression. Furthermore, they showed more signs of worry, fear, and grief. Also often perceived was PTSD.39
Furthermore, Watters and Derluyn argue that the journey to flee from the home country itself may have been hazardous and created traumas. Transportation with trucks, boats, or trains is often dangerous and life-threatening and can further support psychological traumas.40 Hence,
it is to consider that the trauma of a child is often based on multiple events. Besides war and
33 Watters & Derluyn, 2018, p. 369. 34Sirin & Rogers-Sirin, 2015, p.11. 35 Sirin & Rogers-Sirin, 2015, p. 7. 36 Sirin & Rogers-Sirin, 2015, p.11. 37 Sirin & Rogers-Sirin, 2015, pp. 13.
38 P. Paardekooper, J.T.V.M. de Jong & J.M.A. Hermanns, The Psychological Impact of war and The Refugee
Situation on South Sudanese Children in Refugee Camps in Northern Uganda: An Exploratory Study, The
Journal of Child Psychology and Psychiatry and Allied Disciplines, Cambridge University Press, 1999, Vol. 40, No. 4, p. 531.
39 Paardekooper, de Jong & Hermanns, 1999, pp. 529, 533. 40 Watters & Derluyn, 2018, pp. 370.
9 violence, also consequences, such as poverty, dangerous journeys, continuing violence, and social marginalization.41
This claim is supported by a study on displaced Rohingya children in a Bangladesh refugee camp. The study has shown, that the children that have been previously exposed to “severe or frequent violence” have a higher tendency to generate mental health issues.42 The authors argue that the majority of the screened children showed emotional symptoms, e.g., unhappy, worried, depressed.43 Furthermore, the death of family members had impacted the children´s ability to fit into a group.44 Ehnholt and Yule argue that refugee children are experiencing several disturbing events that continue with the arrival in the host state45. Mollica further claims that the continuation of such disturbing events will aggravate serious mental health illnesses that will require long-lasting and intense therapy46.
Foka, Hadfield, Pluess, and Mareschal conducted a study on children in Greek camps. The questionnaires they used showed that many children have traumas of different forms and further, are continuously in disadvantageous circumstances. Poverty, no or just few access to health care and education, and personal challenges (such as insecurity) were impacting the children´s daily life and thereby, their mental health.47 Àngel Essomba´s claims that untreated health physical and mental issues will impact the child´s development and further, its development of a “personal identity”.48 Kadir, Battersby, Spencer, and Hjern claim that refugee children are often in severe need of professional health care due to special needs that differ from those that non-refugee children might have.49 The authors place the focus on the health issues of refugee children. Despite a high risk of Female Genital Mutilation and more drug-resistant
41Watters & Derluyn, 2018, pp. 371.
42 N. Z. Khan, A. Begum Shilpi, R. Sultana, S. Sarker, S. Razia, B. Roy, A. Arif, M.U. Ahmed, S. Chandra Saha
& H. McConachie, Displaced Rohingya Children at High Risk for Mental Health Problems: Findings from
refugee camps within Bangladesh, John Wiley & Sons, Child Care Health Development, 2019, Vol. 45, p. 29.
43Khan, Begum Shilpi, Sultana, Sarker, Razia, Roy, Arif, Ahmed, Chandra Saha & McConachie, 2019, pp.31. 44 Khan, Begum Shilpi, Sultana, Sarker, Razia, Roy, Arif, Ahmed, Chandra Saha & McConachie, 2019, p.33. 45 K.A. Ehntholt & W. Yule, Practitioner Review: assessment and treatment of refugee children and adolscents
who have experienced war-related trauma, Journal of Child Psychology and Psychiatry, 2006, 47(12), pp. 1197.
46 R.F. Mollica, C. Poole, L. Son, C.C. Murray, & S. Tor, Effects of War Trauma on Cambodian refugee
adolescent´s functional health and mental health status, Journal of the American Academy of Child and
adolescent Psychiatry, 1997, 36 (8), pp. 1100.
47 S. Foka, K. Hadfield , M. Pluess & S. Mareschal, Promoting well-being in refugee children: An exploratory
controlled trial of positive psychology intervention delivered in Greek refugee camps, Development and
Psychology, Cambridge University Press, 2020, pp. 2.
48 M. Àngel Essomba, The Right to Education of Children and Youngsters from Refugee Families in Europe,
Intercultural Education, Routledge, 2017, 28:2, pp. 213.
49 A. Kadir, A. Battersby, N. Spencer and A. Hjern, Children on the move in Europe: a narrative review of the
evidence on the health risks, health needs and health policy for asylum seeking, refugee and undocumented children, BMJ Paediatrics Open, 2019, p.13.
10 bacteria infections, refugee and asylum-seeking children showed higher numbers in mental health issues.50
Bhabha supports these claims.51 Additionally, Bhabha argues, to have an irregular
migration status can be used as leverage against the use of e.g., medical treatment. Certain social institutions are obliged to report people with irregular migration statuses. According to Bhabha and Ceriani Cernadas, such irregular statuses promote “invisibility” before a state and advocate the violation of rights.52 Thereby, Bhabha applies Agamben´s theory of the “normalized state of exception” to refugee camps. Agamben´s theory describes a camp (in Agamben´s writings concentration camps) and argues that inside those camps the normal judicial order does not apply. He claims that within the camp, the sovereign can rule with absolute power and regardless of any protecting laws – subjected to the sovereign.53 Bhabha claims, children in the refugee camps at European borders live in states of exceptions – in areas in which the international laws to protect all children have not reckoned anymore.54 However, Bhabha states that refugee children have certain economic and social rights that are binding for contracting states. Those rights imply mental and physical health as well as primary education.55 Nonetheless, it is to question if such rights exist and if so, if they are applicable. In the later section “Legal Framework” I will come back to this question.
2. Greek Camps
Afouxenidis, Petrou, Kandylis, Tramountanis, and Giannaki, argue that with the creation of the Schengen agreements and the enforcement of the Maastricht Treaty, external European borders were strengthened. The relief on internal European borders has increased the ambition to protect and observe external borders.56 Of particular importance is, according to the authors, the
establishment of FRONTEX. Furthermore, it is argued that while the European Union (EU) is officially protecting, supporting, and accepting refugees, states apply on a domestic level more
50 Kadir, Battersby, Spencer & Hjern, 2019, pp.3, 6, 11.
51 J. Bhabha, Arendt´s Children: Do Today´s Migrant Children Have a Right to Have Rights?, Human Rights
Quaterly, John Hopkins University Press, 2009, Vol.31, No. 2, p. 443.
52 Bhabha, 2009, p. 419; P. Ceriani Cernadas, The Human Rights of Children in the Context of International
Migration, in International Handbook of Children´s Rights, edited by W. Vandenhole, E. Desmet, D. Reynaert
& S. Lembrechts, Routledge, 2015, p. 350.
53 G. Agamben, Homo Sacer: Sovereign Power and Bare Life, Meridian, Stanford University Press, 1995, pp.
91, 123, 187.
54 Bhabha, 2009, pp. 431. 55 Bhabha, 2009, p. 439.
56 A. Afouxenidis, M. Petrou, G. Kandylis, A. Tramountanis & D. Giannaki, Dealing with a Humanitarian
Crisis: Refugees on the Eastern EU Border of the Island of Lesvos, Journal of Applied Security Research,
11 rules that decrease refugee rights.57 Miguel Àngel Essomba argues, a reason for the
discrepancies is the high pressure on the border states, who in return will react with hardened migration policies.58 Afounxenidis, Petrou, Kandylis, Tramountanis & Giannaki support this
claim and argue that as part of one of the main routes to Europe, Greece has received high numbers of refugees all along. In response, Greek authorities have placed migration policy under the jurisdiction of the Ministry of Citizen Protection. However, the authors argue that this ministry´s main responsibilities are security issues. By placing the responsibility on this specific ministry for internal security, Greece has shown that the dominant attitude towards migration policy perceives refugees as a threat59. As result, the authors observed in Lesbos a lack of basic infrastructure in refugee camps, restricted access to health care, and inappropriate housing conditions.60
In November 2020 the European Committee for the Prevention of Torture and Inhuman and Degrading Treatment and Punishment (CPT) released a report after a visit to other campsites and detention centers in Greece. In this report, the committee emphasized the importance to grant migrants and asylum seekers access to lawyers or legal assistance. Equally emphasized is the necessary access to health care services. Such must be available, according to the CPT, in all facilities – including detention and reception and identification centers. After the visits of several detention centers, the CPT criticized the limited and overcrowded space of people detained with inter alia 1,5 m² or less per person.61 Furthermore, the committee critically noted the conditions in regards to insufficient sanitation and hygiene within the camps or cells62. With a lack of protection from the cold, no heating, and humid containers for people, the CPT argued that the conditions within the camps may pose a violation of inhuman and degrading treatment under Art. 3 ECHR.63 In addition, the CPT noted, people within the camps receive
no or barely information concerning their status or procedure that impacts their future. The conditions in the camp in combination with the detention in a camp are especially critical in regards to children. Such can have impacts on a child´s development and further cause
57 Afounxenidis, Petrou, Kandylis, Tramountanis & Giannaki, 2017, pp. 10. 58 Àngel Essomba, 2017, p. 208.
59 Afounxenidis, Petrou, Kandylis, Tramountanis & Giannaki, 2017, pp. 21. 60 Afounxenidis, Petrou, Kandylis, Tramountanis & Giannaki, 2017, pp. 31. 61 CPT Report, November 2020, §§ 27-30.
62 CPT Report, November 2020, §§30. 63 CPT Report, November 2020, §§ 30, 36, 40.
12 psychological issues.64 Thereby, the CPT cannot support the detention of children in camps in
such conditions – up to a month or longer 65.
François Crépeau, the special rapporteur on the human rights of migrants, had in 2016 a country visit to Greece, where he met with organizations, and politicians to get an overview of the situation of refugees and asylum-seeking people in Greece. In 2017, the report was submitted to the Human Rights Council. In the report, it was stated that the reception and identification centers, especially on the Aegean Islands are burdened with overcrowded facilities that lack sufficient sanitation, food, and health care. Furthermore, he described the tents in which people had to reside. He argued those were insufficient to protect people from the weather conditions and lack of appropriate interior.66 In addition, he argued that people in the camp felt increased states of insecurity.
Serious overcrowding in reception and identification centers and official and unofficial camps on the mainland substandard living conditions, and a lack of adequate food, health care, and information have led to anxiety, depression, confusion, and frustration among the migrant population both on the mainland and on the islands.67
According to Crépeau, such conditions are especially concerning for the children in the camps since it leaves them at a higher risk to be victimized and exposed to violence or exploitation68.
III. International Legal Framework
International hard law sets the primary source in legal approaches. Nonetheless, the interpretation of legal doctrines must be compatible with the guidelines for the interpretation of legal law and treaties. Those are set in the Vienna Convention on the Law of Treaties (VCLT). In Article 31(1) VCLT states that any treaty shall be interpreted under the principle of good faith, in regard to its ordinary meaning, its teleological aim, and within its systematic context.69 To analyze the legal framework relevant to the present case, I primarily relied on the teleological and ordinary interpretations of different UN bodies. At a later stage, I will add a systematic interpretation, following Art. 31(1)(2) VCLT.
64 CPT Report, November 2020, § 47. 65 CPT Report, November 2020, § 32.
66 Report of Special Rapporteur on the human rights of migrants on his mission to Greece, Human Rights
Council, A/HRC/35/25/Add. 2, June 2017, § 57.
67 A/HRC/35/25/Add. 2, § 63. 68 A/HRC/35/25/Add. 2, §90.
13 The ECHR offers protection of human rights across the 47 member states of the Council of Europe. Within the ECHR some rights are of great importance and thereby, called absolute rights. Absolute rights cannot be derogated or violated under any circumstances, including the exceptions that states can make under Article 15 ECHR.70 Article 3 ECHR, the right to prohibition from torture, degrading, and inhuman treatment is according to the ECtHR such an absolute right. The ECtHR argued that Art. 3 ECHR preserves one of the fundamental principles of democratic societies and further, the underlying values of the ECHR. An exception of the absolute right in Art. 3 ECHR is thereby, incompatible with the Convention under all circumstances.71 Migrants and refugees are not specifically mentioned in the ECHR. However, Ciara Smyth argues that Article 3 ECHR offers special protection for migrants that cannot be found elsewhere in the ECHR.72 In the following section, I will give an overview of the international legal framework that enshrines the right from Article 3 ECHR and will put its meaning in international relations.
1. International Covenant on Civil and Political Rights
The International Convention on Civil and Political Rights (ICCPR) prohibits degrading or inhuman treatment in Article 7. However, the ICCPR is only binding for states that have ratified the convention. Greece has ratified the convention in 1997.73 Furthermore, Greece has not made a reservation of Article 7 ICCPR, which implies that the article is binding for Greece74. Thereby, Greece has a legal obligation to protect and uphold the rights from the ICCPR and apply those within the domestic legal framework.75
70Y. Arai-Yokoi, Grading Scale of Degradation: Identification of the Threshold of Degrading Treatment or
Punishment Under Article 3 ECHR, Netherlands Quarterly of Human rights, Netherlands Institute of Human
Rights, 2003, Vol. 21:3, 386.
71 ECtHR Case, Soering v United Kingdom, Application No. 14038/88, 1995.
72 C. Smyth, The Jurisprudence of the European Court of Human Rights relevant to Child Migrants, in Research
Handbook on Child Migration by Bhabha, Kanics & Senovilla Hernandez, Edward Elgar Publishing, 2018, p. 141.
73Ratification Status for Greece, UN Treaty Data Base, OHCHR,
https://tbinternet.ohchr.org/_layouts/15/TreatyBodyExternal/Treaty.aspx?CountryID=68&Lang=EN, last accessed: 28.04.2021.
74Treaties, United Nations Treaty Collection,
https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&clang=_en, last accessed: 28.04.2021.
75 C. Harland, The Status of the International Covenant on Civil and Political Rights (ICCPR) in the Domestic
Law of State Parties: An Initial Global Survey through UN Human Rights Committee Documents, The Johns
14
2. Convention Against Torture
The Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT) entered into force in 1987 and was ratified by 83 states – inter alia Greece76.
The Convention aims to prevent and protect from torture. Article 2 CAT states the absolute and
jus cogens obligation for states to refrain and prevent torture. However, in Article 16(1) CAT,
the Convention broadens the scope of CAT and obliges member states to the convention to also prevent cruel, degrading, and inhuman treatment. Following this article, state parties are obliged to prevent any degrading or inhuman treatments committed by public authorities and officials. Furthermore, Art. 16 (1) Sentence 2 CAT implies that Art. 10, 11, 12, and 13 CAT are also applicable in cases of cruel or inhuman treatment. Articles 10 and 11 constrain parties to train all personnel that deals with the interrogation, detention, or any other form of arrest.
Greece has made no reservations to the CAT and has acknowledged the qualification of the Committee against Torture77. The Committee against torture serves as a monitoring body and observes the implementation of the Convention. In 2008, the Committee released General Comment No. 2 which discusses and specifies the scope and implementation of Article 2 CAT. The Committee states in §3 a broad scope for the application of Article 2 CAT. According to the Committee, the prevention of ill-treatment poses an absolute right, which is not alterable.78 Nonetheless, it is to question to whom and where the norm applies?
The Committee states that the obligations arising from Article 2 CAT are exclusively obligations towards the state. Further, the obligations must be applied in the complete territory of the state.79 But who is protected by the regulations under CAT? The Committee against
Torture has stated in General Comment No. 2 that the regulations apply to all citizens and non-citizens. Thus, the regulations are to be applied by states without any form of discrimination. Especially marginalized groups need, according to the committee, special protection since those are at a higher risk to be ill-treated or tortured. As an example, for marginalized groups, the Committee names refugees and asylum seekers.80
76Convention Against Torture, United Nations Treaty Collection,
https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-9&chapter=4&clang=_en, last accessed: 02.05.2021.
77 Declaration on Torture, UN Treaty Collection.
78 General Comment No. 2, Article CAT, Adopted by Committee against Torture, CAT/C/GC/2, 2008, §§ 3. 79 General Comment No. 2, CAT, §§ 3, 7, 15, 16.
15
3. Convention on the Rights of the Child
The Convention on the Rights of the Child aims to apply protection, participation, and provision for children. The CRC is the most ratified convention.81 Article 2(1) CRC implies that states
“shall respect and ensure the rights outlined in the present Convention to each child within their jurisdiction without discrimination of any kind”82. In 2005 did the Committee on the Rights of the Child adopt General Comment No. 6, which explicitly obliges states to protect and guarantee children´s rights to all children. §12 thereby includes refugee children, asylum seekers, and migrant children.83
Thus, states who have signed the CRC must take appropriate measures to allow children to enjoy their rights from the convention.84 However, the host state has the freedom to interpret “appropriate measures” to its understanding. This allows room for interpretation and a margin of appreciation. One cannot forget that the perception of what is in the best interest of a child is, will change throughout history, social environment, and culture.85 To minimize negative impacts and achieve the best possible outcome despite certain deviances, all articles of CRC underlie the best interest principle of Article 3 CRC. According to Art. 3(2) CRC, has the state the primary responsibility to care for and protect children. Article 22(1) CRC states that refugee children and children who seek asylum shall receive adequate protection as set forth in the convention. Art. 22(2) CRC states that the protection for refugee children must be equal to the treatment of other and national children. With Article 27 (1) CRC, state parties recognize their obligation to provide “a standard of living adequate for the child´s physical, mental, spiritual, moral, and social development”86. Article 37 (a) CRC prohibits the subjection to cruel, inhuman, or degrading treatment and obligates states to prevent such. This article is enhanced by General Comment No. 8 of the Committee on the Rights of the Child. Following this statement, the Committee has argued in General Comment No. 15 that it is the state´s responsibility to guarantee adequate housing with security to health, food, drinking water, and adequate sanitation87.
81 G. Tait and M. Tambyah, Children´s Rights, Educational Research and the UNCRC, edited by J. Gillett-Swan
and V. Coppock, Symposium Books, 2016, pp.124.
82 Article 2, United Nations Convention on the Rights of the Child, 1989.
83 General Comment No. 6, Treatment of unaccompanied and separated children outside their country of origin,
Committee on the Rights of the Child, CRC/GC/2005/6, 2005.
84 A. Lems, K. Oester & S. Strasser, Children of the Crisis: Ethnographic perspectives on unaccompanied
refugee youth in and en route to Europe, Journal of Ethnic and Migration Studies, Routledge, 2019, 46:2, p.319.
85 M. Freeman, Commentary on the United Nations Convention on the Rights of the Child – Article 3, University
College London, Martinus Nijhoff Publishers, 2007, pp. 27.
86 Article 27(1), United Nations Convention on the Rights of the Child, 1989.
16
4. Convention on the Status of Refugees
The 1951 Convention on the Status of Refugees (CSR) aims to protect refugees and outlines legal obligations for states that have ratified the convention. In Article 7(1) CSR the convention binds member states to treat refugees in the same manner as aliens in the host state are treated in general. This norm also applies to the housing conditions for refugees. Article 21 CSR states that the housing conditions for refugees shall be as favorable as possible, nonetheless, not less than the conditions for other aliens, who are in the same circumstances as refugees in the host state.
5. Article 3 ECHR
Embedded in international regulations that prohibit torture, or cruel, inhuman, and degrading treatment, Article 3 ECHR is independent of international decisions and recommendations regarding the implementation or scope of Article 3 ECHR. However, the Article is legally binding towards all member states of the Council of Europe that have signed the Convention. This includes the right of individuals to claim a right violation, as stated in Art. 34 ECHR. The jurisdiction of the ECtHR extends, according to Art. 32 ECHR, to matters of application and interpretation of the Convention and its protocols. Court decisions are binding and final, if not further referred to the Grand Chamber. The Grand Chamber´s judgments are final immediately.88 Nonetheless, the decisions by the court are relative and differ from case to case.89 In addition, it is to note that “the Convention is a living instrument”, which must be interpreted according to present standards and practices90.
In accordance with Articles 16 CAT, 7 ICCPR, and 37 CRC is the main responsibility from Article 3 ECHR vested in the state. The state is obligated to prevent all forms of torture or inhuman and degrading treatment91. However, there is no official or legal definition of the
term inhuman and degrading treatment. Thereby, to question is what inhuman and degrading treatment includes? What is regarding today´s standards within the scope of Article 3 ECHR? Are bad housing conditions in a RIC a violation of Article 3 ECHR? To define this scope, I will in the following analyze the material and reasoning used by the judges in the two cases of the ECtHR.
88 Article 42, 44 (2) ECHR.
89 P.J. Duffy, Article 3 of the European Convention on Human Rights, The International and Comparative Law
Quarterly, Cambridge University Law, 1983, pp. 320.
90 Duffy, 1983, p. 323; Council of Europe, A living instrument, The courts Public Relation Unit, European Court
of Human Rights, 2020, pp. 5.
17
IV. Jurisprudence
Previous case law is crucial in the elaboration and analysis of legal texts. To understand a certain legal problem, the analysis of case law can help to create a legal structure that sets guidelines. Also, it may outline customary law. Customary law are rules that are generally practiced but not stated in international legal text.92 An examination of previous judgments can transform legal vocabulary into a scope of a certain law that reaches beyond the linguistic meaning.93 The analysis of the cases Khan v France and J.R. and Others v Greece will help me to create such scope of Article 3 ECHR. These cases are relevant for this study as they discuss Art. 3 ECHR and its implications in the situations described. Further, both cases include important elements that will be of great importance in the later analysis of a right violation in the Mavrovouni camp. The cases discuss camp situations that are similar to the conditions that can be found in the Mavrovouni camp. The differences in both cases allow me to analyze a certain threshold of Article 3 ECHR. Further, both cases have no separate or dissenting opinions by judges, which strengthens consents over the judgment. The analysis of the material and judgments by the court combined will allow me to interpret a holistic understanding of the scope of Article 3 ECHR that I further can apply to the Mavrovouni camp.
1. Khan v France
In September 2015, the afghan minor Khan arrived in the southern part of a refugee camp close by Calais in France94. The camp was also called “jungle” or “the heath”, comprising thousands of migrants. He claims that the housing conditions were critical, with most people sleeping in huts or tents. Food and drinking water were inadequate. Insufficient waste systems posed an additional health risk for the overcrowded camp.95 On the 12.02.2016, the prefect of the camp
announced that due to “reasons of security, health and human dignity” the southern part of the heath will be evacuated after the 23 of February96. Thereupon, on 19.02.2016, the NGO Cabane
Juridique lodged an application for a provisional placement of the minor applicant Khan.
Further, the NGO requested an ad hoc legal guardian for the applicant, which was by that time a 12-year-old and unaccompanied minor. The court granted the application and appointed a
92 ICRC, Customary Law and International Humanitarian Law, Red Cross Committee, Article,
https://www.icrc.org/en/document/customary-international-humanitarian-law-0, last accessed: 20.05.2021.
93 G. Samuel, Comparative Law and Jurisprudence, The Inetrnational Comparative Law Quarterly, Cambridge
University Press on behalf of the British Institute of International Comparative Law, 1998, Vol. 47 No. 4, pp. 823.
94 Khan v France, European Court of Human Rights, Application No. 12267/16, Council of Europe, HUDOC,
28.02.2019, final since 28.05.2019, paras. 1, 28.
95 Khan v France, 2019, para. 12. 96 Khan v France, 2019, para. 17.
18 guardian and the temporary accommodation of the applicant in the Child and Family Protection Department in Calais.97 However, no authorities came to take the applicant into his new
accommodation, and thereby, the hut that the applicant lived in, was destroyed and left him without any alternative housing.98 Together with many of the other people that have been displaced from the southern part, the applicant stayed in the northern part of the heath. The applicant claims that with the overcrowding of the camp, living and sanitary conditions were aggravated.99 He further claims that the clearance process itself had left him anxious and worried.
The applicant accused the French authorities to have violated the minor´s right to be prohibited from inhuman and degrading treatment in Article 3 ECHR. He claims, with the clearance of the southern camp part, the government failed its obligation to protect and take care of him. Furthermore, the conditions in the camp and the winter season in which the clearance has been imposed aggravated his situation and breached Article 3 ECHR.100 The court concluded that the applicant has experienced a violation of Article 3 ECHR.
2. J.R. and Others v Greece
In 2018 the European Court of Human Rights ruled on the matter of three Afghan nationals, who have fled to the Greek island Chios. They claimed that during their detention, in the identification and registration camp Vial, they have experienced right violations of Art. 5 (1), (2) ECHR, and Art. 3 ECHR.
On 21.03.2016 the three applicants arrived in Chios. On the same day, the three were detained and located in the identification and registration camp Vial. Shortly after, the Police director decided to detain the applicants until they can be extradited. He justified his decision to detain them by claiming they would flee if not being detained. The EU-Turkey Declaration requires the identification and registration of refugees that will be extradited.101 This restricted
the applicant´s freedom of movement. With the decision to extradite them on 24.03.2016, the right to detain the applicants in Vial was extended until the extradition.102 On the 04.04.2016 the applicants stated they wish to apply for asylum. On 15.05.2016, they were registered in the
97 Khan gegen Frankreich, German translation approved by HUDOC, Österreichisches Institut für
Menschenrechte, Jan Sramek Verlag, Newsletter Menschenrechte 1 (NWMR), 2019, p.1.
98 Khan v France, 2019, para. 32. 99 Khan v France, 2019, para. 32. 100 Khan v France, 2019, paras. 49, 50. 101 J.R. and Others v Greece, 2018, para. 112.
102 J.R. und andere gegen Griechenland, German translation approved by HUDOC, Österreichisches Institut für
19 camp. Four days later, the head of the refugee camp decided to restrict their freedom of movement for 14 days. However, this decision was not transmitted to the applicants, since Greek authorities were not able to locate the applicants in the camp103.
The camp was opened in 2015 and led by different nongovernmental organizations and the UNHCR. Nonetheless, on 20.03.2016 with the enforcement of the EU-Turkey declaration, the camp was transformed into a detention center, led by Greek authorities and the European border security organization Frontex.104 Hence, the applicants claim that inadequate food and sanitation in addition to overcrowded facilities were dehumanizing and fall within the scope of inhuman and degrading treatment or Article 3 ECHR105. Furthermore, they argue that they have not been informed adequately, as required in Art. 5 (2) about the reasons for their detention. In addition, the applicants claim that the duration and conditions of the detention were arbitrary and disproportionate. 106 One of the three applicants further, argued that his right to an individual application (Art. 34 ECHR) has been restricted by Greek authorities, who are alleged to have intimidated the applicant. The court decided that the applicants have stayed for 30 days in a closed camp. Nonetheless, after 30 days the camp was transformed into a semi-open camp. Thereby, the court only takes into account a violation within those 30 days. The court concluded that in the present case no violation of Article 3 ECHR has occurred.
This case is relevant in my analysis because it shows a threshold of Article 3 ECHR that is not met and thereby, sets conditions that must be surpassed to create a violation of Article 3 ECHR. The Khan v France case is relevant for my analysis because it deals with children in refugee camps. Especially interesting in this case is the question of responsibility that the state has towards vulnerable minors. This is a question, one will have to ask about the Mavrovouni camp. In both cases, the court described the housing conditions as inadequate. Furthermore, both campsites have been visited and reviewed by international and non-governmental organizations, which have been alarmed by the living conditions in the camps. Reports by the same or similar organizations and NGOs are available in regard to the Mavrovouni camp. Both camps were described to serve inadequate food – inadequate in a perspective of quality and quantity. The lack of adequate food and water is also claimed by people in the Mavrovouni camp. The court further held a lack of sufficient sanitation and hygiene, which raises the risk of diseases in both camps. This is aggravated by the lack of accessible healthcare. Nonetheless,
103 J.R. u.a. gg. Greichenland, 2018, p.1. 104 J.R. u.a. gg. Greichenland, 2018, p.1. 105 J.R. u.a. gg. Greichenland, 2018, p.1 106 J.R. u.a. gg. Greichenland, 2018, p.1.
20 the applicants and cases differ in other aspects. Most crucial for the cases is the age of the applicants, the duration of the stay in the camps, and the means and organization of the camps. The analysis of both cases creates a threshold of Article 3 ECHR that further will be applicable to the Mavrovouni camp.
V. Analysis
These two chosen cases for the case study set guidelines for the application of the threshold of Article 3 ECHR under the European Court of Human Rights. Case law creates, what van Hoecke calls, an artificial world107. This world sets limits, guidelines, and benchmarks for the application of law in the future. In the following, I am going to define those guidelines and limits to the scope of Art. 3 ECHR by analyzing the courts' jurisprudence.
1. The Merits
The ECtHR discusses and evaluates several facts during court trials. Such will allow the Chamber to decide on a possible right violation that considers all relevant aspects of the case. To get a better understanding, the court usually examines reports and statements from different actors.108 The material discussed during trials brings important information to the court, that the court will have to evaluate. How the material will be used and on what material the court focuses on can set benchmarks to the scope of a certain norm and is thereby relevant for the analysis of a case.
1.1 Merits in J.R. and Others v Greece
In this case, the ECtHR used several official reports and documents that described the conditions in Greece, and more specifically, the Vial camp itself. In J.R and Others v Greece the ECtHR explicitly mentioned in its ruling under the section Merits different documents on which the judgment was ultimately based109.
Those documents are inter alia reports by international bodies, such as the United Nations High Commissioner for Human Rights and the United Nations High Commissioner for Refugees. The UN High Commissioner for Human Rights states inadequate living conditions as well as inadequate food and medical care for refugees and asylum seekers in the reception centers in Chios.110 This is supported by the UNHCR, which claimed that with the entry of the
107 Van Hoecke, 2011, p. viii.
108 Questions and Answers, European Court of Human Rights, Council of Europe, pp.8. 109 J.R. and Others v Greece, 2018, p. 33.
21 EU-Turkey Deal the conditions in all reception and identification camps have deteriorated rapidly. This is caused by overcrowded camps and insufficient infrastructure in Greece. Hence, conditions especially on the islands, Lesvos, Samos, and Chios – including the Vial camp, have worsened in the past years.111 Those accusations were further supported by the UN Human Rights Committee (OHCHR)112. Other UN body reports that have been mentioned by the court
in the case J.R. and Others v Greece were the UN Committee on Economic, Social and Cultural Rights, and the UN Committee on the Elimination of Racial Discrimination. Furthermore, the CPT wrote a report after two visits to the camp. The report by the CPT states after said two visits inadequate food and water provision. Further, it especially notes a lack of adequate health care and legal assistance for people that live in the RIC Vial.113 The Committee on the Elimination of Racial Discrimination adds concerns about the length of detention of people in the camp114.
Further, in the present case, a statement by the European Commission was elaborated on. According to the European Commission, the EU-Turkey Deal increased the number of asylum applications on Greek islands. This burdened the Greek infrastructure and extended the length of asylum procedures.115 The Parliamentary Assembly of the Council of Europe resolution on the EU-Turkey Deal in 2016 mentions that human rights issues are raised. The deal challenges a fast proceeding of the application by Greek authorities and further, could create possible human rights violations concerning legal assistance and living conditions116. The Special Representative of the Secretary General of the Council of Europe supported this claim117. Further, the court used reports by NGOs, such as the Hellenic Council for Refugees
or the Association of European Judges for Democracy and Liberty. Both organizations stated in reports critical housing conditions and congestion of the Greek asylum system.118 Another
NGO that the court in the J.R. and Others v Greece case relied on, is Human Rights Watch. After a visit to the camp, the organizations noted the limited access of refugees and migrants to legal counsel and support. Also, inadequate living conditions due to overcrowded facilities were
111 J.R. and Others v Greece, 2018, para. 135. 112 J.R. and Others v Greece, 2018, para. 134. 113 J.R. and Others v Greece, 2018, paras. 54-57. 114 J.R. and Others v Greece, 2018, para. 134. 115 J.R. and Others v Greece, 2018, paras. 41-42. 116 J.R. and Others v Greece, 2018, para. 58. 117 J.R. and Others v Greece, 2018, paras. 142, 101. 118 J.R. and Others v Greece, 2018, paras. 43-53, 56-58.
22 noted.119 As arguments from the Greek defending side, the court evaluated data and information
constituted by the Greek government that shows e.g., occupancy rates of the RIC Vial120.
Furthermore, in its ruling, the court mentions previous judgments of the European Court of Human Rights. Those served as a benchmark in defining a scope of Art. 3 ECHR in the present case. Mostly, the court mentioned cases in which applicants have claimed to live in conditions that implied inhuman and degrading treatment and thereby, a violation of Article 3 ECHR. E.g., the court mentions the cases M.S.S v Belgium and Greece, Rahimi v Greece, or Tarakhel v. Switzerland to define the principles to fulfill a violation of Art. 3 ECHR.121
After the assessment of all mentioned reports and statements, the ECtHR has concluded that conditions in the Vial camp were for the applicants not severe enough to imply a violation of Art. 3 ECHR. Under section 2.2 Evaluation, I will further evaluate how the court evaluates the previously mentioned merits in the J.R and Others v Greece case. The interpretation and assessment of the available merits form a scope of Article 3 ECHR because it places more value on certain factors and statements than on others.
1.2 Merits in Khan v France
To get the court in the case Khan v France a broad overview over the claimed conditions of the camp, the court discusses several national, international, and non-governmental reports. The applicant referred in his hearing to reports made by the UN Committee on the Rights of the Child and the United Nations Children´s Fund (UNICEF). Both reports on the heath camp close to Calais note inadequate care and living conditions for unaccompanied children.122 This statement is supported by the findings of the Special Representative of the Council of Europe Secretary General on Migration and Refugees. Further, the Special Representative notes that the identification and registration for unaccompanied children lack organization and are insufficient. 123 Further, the court used descriptions made by the Conseil d´État, which stated
that minors have not been addressed enough by the French authorities. According to the Conseil d´État this “characterized a disregard of the human person”124. This supports the statement made by the non-governmental organization Commission nationale consultative des droits de
119 J.R. and Others v Greece, 2018, paras. 54, 142, 102. 120 J.R. and Others v Greece, 2018, paras. 131-133.
121 Tarakhel v Switzerland, 2014, paras. 93-122; M.S.S v Belgium and Greece, European Court of Human
Righst, Application No. 30696/09, Council of Europe, 2011, paras. 23-234; Rahimi v Greece, European Court of Human Righst, Application No. 8687/08, Council of Europe, 2011, paras. 63-86.
122 Khan v France, 2019, paras. 52, 63,70,84. 123 Khan v France, 2019, paras. 52, 84, 89. 124 Khan v France, 2019, para. 71.
23 l´Homme (CNCDH). They argued that children in the heath camp are primarily treated as aliens in the country and not as children, who need special protection. Inhuman living conditions further worry the NGO.125
The Migration Information Support Group claims that those inhuman conditions result from a systematic violation of the right from Article 3 ECHR. According to their report, children are especially vulnerable due to the young age and the insecure situation they are in.126 The Defenseur des droits (Defender of Rights) has visited both campsites multiple times and concluded that the conditions in the camps are to be seen as critical for children. He describes inadequate housing conditions. Further, he mentions the risk, especially of unaccompanied children, to be victimized due to their vulnerable situation.127 He also notes a lack of access to legal assistance and adequate care for children.128 The NGO Cabane Juridique, which supported Khan in his application for an ad hoc guardian, supports the accusations by the Defenseur and further claims, that French authorities have never aimed to improve the care system for unaccompanied children.129 Another assessment that helps the court to understand the merits of the case is a video recorded by Khan himself.130 To apply the described camp conditions and analyze if they are applicable under Art. 3 ECHR, the court further discusses previous case law. Discussed was inter alia the Rahimi v Greece case, which dealt with an application of Art. 3 ECHR in camp conditions for unaccompanied children.
After an evaluation of the discussion, the court decided that in the present case a violation of Art. 3 ECHR is given to the applicant. Nonetheless, it is to question to what extent the court relied on previous reports. Further, one must ask how the references made by the court are used to interpret Art. 3 ECHR.
2. Evaluation
In the interpretation of international law, it is especially important to understand the teleological meaning of a norm. Combined with the systematic context of a case, judges will be able to evaluate a case and conclude a judgment.131 After the arguments made by the applicants, the government representatives, and relevant third parties, the court evaluates the allegations in
125 Khan v France, 2019, paras. 60-62. 126 Khan v France, 2019, para. 63. 127 Khan v France, 2019, paras. 55-56. 128 Khan v France, 2019, para. 58. 129 Khan v France, 2019, paras. 68-69. 130 Khan v France, 2019, paras. 76, 72.
131 F. V. Kratochwil, Rules, Norms, and Decisions: On the Conditions of Practical and Legal Reasoning in
