Acts of torture are prohibited under international law, both in times of peace and war; nonetheless, an innumerable number of people are subjected to torture worldwide. Despite the limited official statistical information on how many people within the migrant populations are victims of torture (VoTs), the United Nations Office of the High Commissioner for Human Rights (OHCHR) estimates that between 5 to 35% of refugees survived torture in 2017. Given the prevalence of torture cases amongst persons forcibly displaced, many policies and procedures have been adopted to ensure VoTs have access to appropriate services and protection mechanisms.
Greece, as a state party of the UNCAT, European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, and other international conventions and a Member State of the EU, has an obligation to ensure that everyone who states or presents signs of having been subjected to torture is properly identified (Articles 41, 67 and 77 of Law 4939/2022, Article 18 of Directive 2013/32/EU, and Article 14 of UN Convention against Torture), and if recognised as VoT, obtains access to redress, including rehabilitation, and other fundamental rights (Article 14 of UN Convention against Torture).
Nonetheless, practice over the years has demonstrated serious deficiencies in the identification and certification of victims of the torture of applicants in Greece, including on Lesvos. Systematic deficiencies have been observed in the identification of vulnerabilities due to low quality of vulnerability assessments, rushed procedures and disregard of incidents of torture outside the country of origin during the asylum interview. Additionally, structural deficiencies are also observed in the specific process to certify VoTs, namely due to restrictive legislation limiting only public authorities to provide certification for VoTs in accordance with the Istanbul Protocol, whilst national authorities and bodies do not have the qualification or training and lack of interpretation to proceed with this certification. At the same time, non-governmental organisations, namely Metadrasi, hold the appropriate expertise to provide certification for VoTs according to the Istanbul Protocol and attempt to provide this certification. Nonetheless, they are not considered competent to provide this certificate, and, as a result, their certificates do not give access to rehabilitation or care, and are not binding for the Greek Authorities. In other words, the VoT certification provided by NGOs may be taken into consideration by asylum authorities for the purposes of the asylum procedure, but it is at the discretion of each decision maker. In practice, Fenix observed that different authorities, at different moments, apply their discretionary powers differently.
The deficiencies observed during the asylum procedure and VoT certification leave asylum seekers, who reported being subject to or present signs of having been subjected to acts of torture, without access to fundamental rights and guarantees, including access to special reception conditions and special procedural guarantees in line with their special needs, and access to rehabilitation and adequate care.
The failure to identify and certify VoTs has severe consequences for VoTs and amounts to violations of fundamental rights laid down by international and European law. Greece’s failure to assess and identify vulnerable asylum seekers and promptly determine and certify VoT constitutes a de facto denial of rehabilitation, a deprivation of the fundamental rights of VoT under Article 14 of the UNCAT. Additionally, the lack of effective consideration towards VoTs and respect for their special needs, especially the lack of access to specialised medical care and adequate housing, constitutes humiliating treatment that completely denies VoT acknowledgement of their human dignity, in violation of Article 16 of UNCAT. Finally, the lack of identification and certification of VoTs may also have an impact on the examination of their asylum application, especially when the safe third country or safe country of origin concepts are used. In these cases, there is a presumption of safety; thus, since the level of proof is much higher, certifications, such as the VoT certification, are fundamental to derogate the presumption. Moreover, recognised VoTs should be provided with special procedural guarantees in order to be able to enjoy their rights and comply with their obligations, therefore, cannot be expected that they will be able to fulfill their obligations, including the obligation to cooperate with the national authorities at every stage of the process. In both scenarios, vulnerable applicants may be at risk and threat of experiencing torture, ill-treatment, and any other treatment which may be in contravention of Article 3(1) of the UNCAT.
Fenix calls on the Greek Government to respect the rights and safeguards afforded to vulnerable asylum applicants, including those of VoTs, and calls the Greek Government to appropriately provide clear and effective pathways for VoTs to be identified and certified. Fenix also recommends the European Commission, as the guardian of the EU treaties, to ensure compliance with EU law, including on the Asylum Procedures Directive, the Reception Conditions Directive, the Return Directive, the European Convention of Human Rights, and the Charter of Fundamental Rights of the European Union.