Forcible evacuation of PIKPA in contempt of Strasbourg proceedings: The timeline of a flagrant violation of legality

On 12 October 2020, the residents of the PIKPA reception facility on Lesvos, were orally informed by the coordinator of Lesvos Solidarity, the organisation responsible for the running of PIKPA, that she had received oral requests from the police to instruct the residents to leave their place of residence, due to an order from the Ministry of Labour to the Lesvos Police Department to evacuate the place by 15 October 2020. The residents asked whether the authorities had issued a document or decision addressed to them or any other relevant document to that effect. No such decision or document had been issued.

It is highlighted that the residents of PIKPA are officially recognised as vulnerable persons and have referred for placement in PIKPA on account of their vulnerability, as PIKPA was up until now considered as the most appropriate reception facility for vulnerable persons on Lesvos. Among the residents at that time were:

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• 21 particularly vulnerable unaccompanied children, accommodated in PIKPA following a Public Prosecutor order and relevant recommendation of the National Centre for Social Solidarity (Εθνικό Κέντρο Κοινωνικής Αλληλεγγύης, EKKA) and the Special Secretariat for the Protection of Unaccompanied Minors at the Ministry of Migration and Asylum. The unaccompanied children were transferred to the mainland on 16 October 2020;
• 77 asylum seekers and refugees, including 32 children and persons with particular vulnerabilities e.g. people with severe disabilities, cancer patients, persons with chronic illnesses such as kidney disease, victims of violence and torture, single mothers with new born babies. These persons have been referred to PIKPA for temporary accommodation by the United Nations High Commissioner for Refugees (UNHCR) in cooperation with the Reception and Identification Service (RIS) of the Ministry of Migration and Asylum.

The residents of PIKPA ran a potent risk of being transferred to the temporary camp set up in Kara Tepe (“new Kara Tepe camp”) following the destruction of the Reception and Identification Centre (RIC) of Moria, inter alia due to the fact that they had previously been placed therein prior to referral to PIKPA, and in light of official statements requiring all asylum seekers on Lesvos to enter said facility.^[1] They were thereby likely to face wholly unsuitable living conditions in the new Kara Tempe camp, particularly given their special needs. It is worth recalling that, in September 2020, the ECtHR had indicated interim measures to Greece in order to safeguard the life and physical integrity of asylum seekers with special needs residing in the new Kara Tepe camp.^[2]

On 14 October 2020, four of the residents, i.e. two single mothers with new born babies and a couple, filed a request to the ECtHR on their and their children’s behalf to indicate interim measures to Greece under Rule 39 of the Rules of Court, given the imminent, real and present risk of violations of their rights according to Article 3 of the European Convention on Human Rights (ECHR). Their cases were registered as App No 45432/20 Tenta and Ndjibu v. Greece and App No 45427/20 Abdule and others v. Greece

On 18 and 19 October 2020 respectively, the duty judge of the Strasbourg Court decided to suspend the examination of the Rule 39 request in the Tenta and Ndjibu and Abdule cases, pending receipt of information from the applicants and the respondent Government. The Court asked in particular: [3]

1. 1.  “What is the legal framework governing the present case? Is there a formal decision to remove the applicants and close the accommodation facility PIKPA at Lesvos? In the affirmative, can the applicants contest this decision before domestic courts?
   2. When the alleged removal will take place?
   3. Has an alternative solution been provided for the applicants?]”

On 25 and 26 October 2020 respectively, the Court transmitted to the applicants letters and accompanying documents from the Greek Government concerning the above applications. The applicants were requested to submit comments thereon by 30 October and 2 November 2020 respectively.

On 29 October 2020, the residents of PIKPA, including the applicants, were informed by the Lesvos Solidarity coordinator, that they would be transferred to the municipal facility of Kara Tepe (“old Kara Tepe camp”) on the very same day. The Head of the RIS had informed the Lesvos Solidarity coordinator by phone accordingly, early in morning. Subsequently, upon request, the RIS sent an email on the process of immediate transfer of all residents of PIKPA to the old Kara Tepe camp. This process was announced that very same morning, without any prior notification to the applicants or to Lesvos Solidarity.

This information, communicated to Lesvos Solidarity only orally and then by a brief email, without further notification of the new settlement of the residents, individual transfer decisions or guarantees for the safety of their rights pending the outcome of interim measures request before the ECtHR, amounts to a flagrant infringement of the applicants’ rights. In light of this, the applicants requested the immediate intervention of the Court to stop their transfer out of PIKPA, as they were asked to leave their residence within an hour and ran a real and present risk of human rights violations.

Hours later, the applicants were informed that a collective decision on the transfer of all the residents of PIKPA had been issued and  transmitted to Lesvos Solidarity following repeated requests from the coordinator. However, the collective decision was not notified to them and did not provide any possibility of appeal before an authority or court. The decision announced the transfer process and the authorities were present to execute it. The applicants in Tenta and Ndjibu and Abdule asked for the notification of relevant decisions to them and their legal representative invoked the process before the Strasbourg Court. Furthermore, the Lesvos Solidarity coordinator asked, via email to the competent authorities, for the relevant decisions to be notified to all residents in line with the principle of legality, and for the opportunity to be given to them to organise their transfer in due time, compatibly with their dignity and needs, bearing in mind the situation and COVID-19 related restrictions in the old Kara Tepe camp. The RIS replied that it was not necessary to issue individual decisions, without however responding to the request or providing information on the proceedings for the notification of the collective transfer decision. Many residents, including the applicants in Tenta and Ndjibu were further worried, as they were asked to immediately leave PIKPA while their children were at school. Later that day, the members of the RIS, as well as police officers and Hellenic Army vehicle drivers, who had come to collect and transfer the residents, left the PIKPA premises.

On 30 October 2020 at 06:30, the residents of PIKPA, including the applicants, were woken up by police officers entering at PIKPA camp without prior notice and were asked to pack their belongings and to follow orders for their immediate transfer. Upon waking up, they understood that special police forces (Μονάδες Αποκατάστασης Τάξης, MAT) were present in the camp and that the gate was under their surveillance.  They contacted their lawyers, who arrived after a while but were not allowed entry. Until then, and while this process was underway, no relevant decision had been notified to them. The applicants’ representatives had informed the ECtHR on this forcible transfer, asking for the immediate intervention of the Court to stop the process and to provide interim measures in order for the applicants’ rights and guarantees for safety and dignity to be respected.

The applicants had also informed the Court on an intervention of the Greek Ombudsman on 26 October 2020, asking the Greek authorities to comply with legal standards, as requested by the Court. The Greek Ombudsman had: (a) requested the administration to take into consideration the specific needs of the vulnerable residents; (b) had pointed out that a possible removal of the residents would cause serious problems, in particular due to their vulnerability, and that their impending transfer to a reception centre offering lower standards would amount to a reduction or even interruption of material reception conditions;[4](c) warned about the interruption of the children’s schooling and participation in educational, in violation of national and international law; and (d) noted that the reasons leading to the use of the PIKPA facilities for reception of asylum seekers on Lesvos in 2015 remained valid, calling on the authorities to consider and ensure the safety and health of the residents, due to their vulnerability and specific needs under the COVID-19 pandemic.Nevertheless, the Greek authorities respected neither the recommendations of the Greek Ombudsman nor the process before the Strasbourg Court.

The applicants were transferred to the old Kara Tepe camp on 30 October 2020. The collective decision for their transfer was never notified to them and no interpretation services were provided throughout the transfer, while their lawyers, who remained until late afternoon hours outside Kara Tepe, were denied access.

Accordingly, the applications for interim measures before the ECtHR were rendered without object (άνευ αντικειμένου), since the Government proceeded to the forcible removal of all PIKPA residents, including the applicants, before the expiry of the deadline set by the Court for the completion of the proceedings before it. Such an action demonstrates unprecedented contempt for the Court’s procedure. In light of this, the legal representative of the Tenta and Ndjibu applicants withdrew the application, whereas the representative of the Abdule applicants sent comments on the Government’ s documents and practice, asking the Court for more time to send additional information on the current reception conditions in the old Kara Tepe camp. The representative of the applicants could not provide the Court with information on their reception conditions, since lawyers were denied access to Kara Tepe on 30 October 2020 and the Lesvos Solidarity personnel offering psychosocial assistance to the applicants were also denied access thereto on 2 November 2020. The representative of the Abdule applicants was informed that the children residing until 30 October 2020 in PIKPA did not attend school on 2 November 2020, while it appears that their change of residence has created difficulties in this regard.

As for the Government’s submissions, the applicants in Abdule stressed that:

• • Neither the collective decision on transfer of all PIKPA residents nor any other relevant decision on transfer or reception conditions was notified to them, and no possibility was offered to appeal before an authority or court;
  • The claim made by the Government to the effect that relocation of the applicants to the mainland was not possible due to the pending examination of their asylum application was not accurate, given that the law makes specific provision for lifting the geographical restriction on the islands as regards vulnerable applicants.^[5]In addition, the use of that possibility was warranted by the obligation to afford appropriate treatment and reception to vulnerable applicants.^[6]
  • The old Kara Tepe camp, where the applicants were transferred, is set to close down by the end of 2020.^[7]

Finally, on 4 November 2020, the duty judge of the ECtHR decided, in the circumstances, not to indicate interim measures to the Greek Government and informed that the applicants’ comments had been transmitted to the Government for information. The Court stated, however, that if the circumstances in the new refugee camp so require, the applicants can come back with a new Rule 39 request.

The Government acted in unprecedented contempt of proceedings before the ECtHR by proceeding to the forcible removal of all PIKPA residents, including the applicants, before the expiry of the deadline set by the Court for the completion of the procedure to rule on the interim measure request.