NPM and children in migrant detention centres
（點我看中文版）
Note：This article is one of the NPM TRAVELBOOK series written by Mr Pavel Doubek and invited by Covenants Watch (CW), Taiwan. The original text was written in English and was translated by Yi-Ching Tsai, CW’s researcher.
Author／Pavel Doubek (Czech scholar and lawyer formerly working at Czech NPM)
Translator／Yi-Ching Tsai (Researcher of Covenants Watch)
In the previous story, I’ve shared the experience of the Czech National Preventive Mechanism (NPM) visiting the migrant detention facility “Bělá-Jezová” twice at the outbreak of the migration crisis in 2015. It found that the conditions in which migrants lived were worse than those in prison. The deficiencies reached the level of ill-treatment and degrading treatment. To make matters worse, 147 children have been accommodated among hundreds of migrants who have suffered in poor conditions behind barbed wire!
However, the human rights issue of children in migrant centres was not a sudden occurrence since the crisis, but a serious problem that had persisted for a long time. In fact, the United Nations Committee on the Rights of the Child has constantly urged the Czech government to avoid any form of detention of asylum‑seekers under 18 years of age. The Committee even named the Bělá-Jezová detention centre in 2011 and explicitly stated that the situation there “does not meet the required standard for asylum-seeking children’s well-being and their best interests”.
In this story, I’m going to tell you more about an earlier visit by the Czech NPM to Bělá-Jezová, which was conducted in August 2014 and was followed by a series of great efforts of communicating with state authorities.
Visiting migrant children behind barbed wire
The Convention on the Rights of the Child (CRC) highlights that detention of the child shall be used only as a measure of last resort and for the shortest appropriate period of time (Art. 37 b). The UN Committee on the Rights of the Child ( “the Committee”) further stresses in its General Comment No. 6 that “detention cannot be justified solely on the basis of the child being …on their migratory or residence status, or lack thereof”. The UN Special Rapporteur on the human rights of migrants also emphasized that deprivation of liberty of children in connection with migration should never have a punitive nature.
In Czech Republic, while the law allows state authorities to detain foreign nationals older than 15 years, the law also stipulates that foreign nationals who are dependent on the care of detained foreigners can be “accommodated” together unless the care can be otherwise guaranteed. In contrast, a foreigner younger than 15 years travel alone (unaccompanied minor) cannot be accommodated in detention centre, but should be placed into diagnostic institution or children home according to the Czech law.
In practice, the police did not differentiate among the migrants, nor did the competent authority make any effort to arrange alternative care. Once a migrant family was arrested, all family members irrespective of their ages were placed together. Therefore, even infants and newborn children were accommodated, or de facto detained in the detention centre. When the Czech NPM visited the Bělá-Jezová in 2014, it found 2 children younger than 15 years and 3 unaccompanied foreigners between 15-18 years were placed in the centre, among the total of 86 migrants.
The NPM further revealed that all migrants (including very young children) were subjected to the same conditions of detention. Families stayed together in the facility surrounded by a high fence with barbed wire, and lived in similar accommodation units with windows covered with bars.
Except for the child playroom (a good place for self-promotion but unavailable most of the time due to the absence of instructor), the premises were not adapted to the needs of children. There was no playground, sandbox, climbing frames, swings, and so forth.
Policemen with dogs were patrolling external premises around the facility, while the movement between the various premises of the facility (e.g. dining room, medical centre) was only allowed with the escort of the police or a private security guard. In addition, children were under the constant supervision of the contracted private security agency.
Although adults can understand that employees of the agency are not the police, but for kids, everyone who wears like the armed security corps and acts as “guards” naturally looks like a police officer, which worsened their stress. Interviews with foreigners documented the serious impact of the prison-like environment on the emotional state of children. Case in point would be a two-and-a-half-year-old girl who started to suffer from insomnia and eating disorders and even had to start using diapers.
All of these findings were unsatisfactory by relevant international standards, such as the International Organization for Migration (IOM)’s “Guidelines for Border Management and Detention Procedures Involving Migrants” and the UN High Commissioner for Refugees (UNHCR)’s “Guidelines on the Applicable Criteria and Standards relating to the Detention of Asylum-Seekers and Alternatives to Detention” (2012).[1]In particular, the visit report elaborated by the Czech NPM referred to Resolution 2020 (2014) of the Parliamentary Assembly of the Council of Europe that expressed concerns that the detention has “…even for very short periods of time and in relatively humane conditions…negative short- and long-term effects on children’s physical and mental health.”
It also referred to the cases decided by the European Court of Human Rights regarding the right to be free from torture (Article 3 of the European Convention on Human Rights) and various sources of international law that prohibit the detention of children. The NPM concluded that the living conditions of children in the detention centre Bělá-Jezová reached the level of ill-treatment and were incompatible with Article 3 of the European Convention of Human Rights.
Note 1：Both standards emphasize, inter alia, that (a) detention of minors, unaccompanied or with families is to be avoided, (b) in case families with children are detained, they should not be kept in closed facilities, (c) each detainee should be treated in such a manner that takes into account the needs of a person of his or her age, (d) detained migrants have the right to education, (e) facility shall ensure adequate sanitation, food and healthcare, (f) food shall fulfill the special requirements of children, babies, pregnant/breastfeeding women and people with specific conditions such as diabetes.
Dialogue with State Authorities and further interventions
In view of the above, the NPM recommended to the Foreign Police Directorate of the Police of the Czech Republic that the police must not place families with children in the Bělá-Jezová facility. It also made several recommendations to the Refugee Facility Administration Agency (further referred as “the Agency”) in order to promptly redress the most serious deficiencies.
The Agency accepted most of the recommendations but objected to some of them. Therefore, the ombudsman turned to the Agency again in order to clarify some issues and to urge full compliance with the recommendations. The consequent response of the Agency was more promising. However, in July 2015, the Agency notified the NPM that due to an increased number of detained migrants, the implementation of the NPM´s recommendations must be suspended.
In comparison with the more “cooperative” attitude of the Agency, the Director of the Foreign Police Service refused to comply with the recommendation and held that the placement of children in the facility is in accordance with the law and that the police had no other options. Since the response of the police director showed no scope for constructive dialogue, the ombudsman turned to the Minister of Interior, the supreme authority responsible for police forces, and asked him to ensure that no children will be placed in the detention centre.
However, the minister replied in August 2015: “The fact that the alien who violates the law, is accompanied by an underage child cannot, in my opinion, lead to a different approach by the competent authorities than what is commonly applied to foreigners travelling without minors.” He also pointed out that new detention centres will be opened in the near future, which will lead to an improvement in the conditions of detention for children in detention.
These situations made it necessary for NPM to conduct follow-up visits to Bělá-Jezová in August and October 2015. As we can see from the previous story, the abovementioned deficiencies significantly deteriorated during the migration crisis, as the police continued to detain all migrants irrespective of their ages. The number of detainees soon doubled or almost tripled the centre’s original capacity of 270 beds. The conditions that were insufficient for children in the time when there were only 86 migrants, became a nightmare in time when crowded by 659 migrants. There was a serious shortage of basic living supplies, including adequate food, access to fresh water, proper clothes and shoes for children, etc.
The presence of police was significantly increased and was supported by heavy-armoured police forces with police dogs. The policemen were not only patrolling the external premises but at this time, they became a constant part of life inside the facility.
Many parents told NPM members that they feel humiliated in the eyes of their children. They did not know how to explain to their children why they were transported to the facility in handcuffs, why they must stay behind a four-meter fence and barbed wire and how long this situation would last. According to the parents, the children suffered from anxiety and even the older children woke up at night and cried. Since the children had no meaningful activities, they played by pretending to be policemen or escapees digging holes under the barbed wire fences.
The seriousness of the conditions can be further illustrated by the unusual intervention of the European Court of Human Rights. The intervention was initiated by the Czech non-governmental organization that turned to the Court and asked to provide immediate protection of detained Afghan parents with their three children, ages five, six and sixteen. The Court acted promptly and granted the interim measure within several hours, obliging the Czech government to release this family from the facility and place them to conditions compatible with the requirements of Article 3 of the European Convention on Human Rights.
Beyond detention: a long way to go
After the visits, the NPM turned to relevant authorities, including the Minister of Interior again. Unfortunately, the major recommendation not to place children to Bělá-Jezová facility was not accepted by any of them. Although the Minister did meet his promise to open more detention facilities, but the problem shouldn’t be solved in this way. Instead, the government has the responsibility to search for alternatives to detention and stop placing children there in violation of all existing international human rights obligations.[2]
With the time passing and significant decrease in the number of migrants, the problem was partially solved when facility could proceed to conduct some improvements. The NPM’s consequent visit in 2016 showed that only 9 women with no children were detained in the facility. Despite the extensive positive changes, the facility is still not an appropriate place for placement of families with children. It is quite disappointing that after the series of efforts mentioned in this story, the Czech authorities have not yet forsaken the intention to detain children in detention place. Nevertheless, it’s the NPM’s responsibility to continue monitoring and pressure for reform whenever there is a chance.
Note 2：This is also relevant to the UNHCR project “Global Strategy – Beyond Detention 2014-2019”. It underlines the need to end the detention of children; ensure alternatives to detention are available in law and implemented in practice; where detention is necessary and unavoidable, ensure the conditions of detention meet international standards. For example, access to places of immigration detention for UNHCR and/or its partners should be secured. Regular monitoring should be carried out.
References：
1. UNICEF, Implementation Handbook for the Convention on the Rights of the Child, 2002.
2. The Czech Public Defender of Rights (Ombudsman), Visits of the Facility for Detention of Foreigners Bělá-Jezová (December 2016).
3. IOM, Guidelines for border management and detention procedures involving migrants.
4. UNHCR, Guidelines on the Applicable Criteria and Standards relating to the Detention of Asylum-Seekers and Alternatives to Detention (2012)
