“Not guilty”, found the Court of Igoumenitsa in the case of migrants who were charged “escape from prison'”

Today, the single-judge formation of the Criminal Court of First Instance of Igoumenitsa in northwestern Greece (Μονομελές Πλημμελειοδικείο Ηγουμενίτσας) has returned a remarkable decision (Nr 682/2012) in a prosecution brought against a number of immigrants awaiting expulsion who escaped a local detention centre. The decision was taken in November 2012 for the case of almost 15 migrants who had escaped from Igoumenitsa prison only one month earlier (September 30th). As the judge ruled: “You escaped from humiliation and this is why you are free now!” Many of the in Greece detained migrants try to escape the up to 18 months reaching administrative detention but are caught sooner or later then finding themselves charged with “escape” and other criminal categories, that might put them behind the bars for even longer periods.

The facts of the case are as follows: On the night of 30 September to 1 October 2012, fifteen immigrants detained in Thesprotia Police Headquarters (for having illegally entered Greece) wrestled the guards who had entered their cell to remove the garbage and escaped. They were later apprehended and charged with escape under the Greek Criminal Code (Article 173 para 1).

The judge found that the accused had indeed perpetrated the crime of escape. However, he went on to consider the conditions of their detention for a period of up to a month and a half. His description is blood-chilling: the accused had been held in a room with only one chemical toilet, no water, no cleaning or any other form of sanitation, and they all had to sleep in that same room, which did not allow them to even lie down on the floor (it was only 15 sq m, apprx 160 sq ft, and there were no beds). The accused had not been given access to showers or clothing, and many of them suffered from lice or even typhus and other communicable diseases, as a result of the fact that they had not been able to shower or change clothes for months. The accused were limited to the tiny cell 24 hours per day, with no provision for exercise, or even a breath of fresh air.

The judge found such conditions to be in clear violation of Article 3 of the ECHR (prohibition of torture or inhuman or degrading treatment or punishment), while he also went on to state that both the conditions and the duration of detention of the accused, who were awaiting expulsion but had not been charged with any crime, was such as to also violate Articles 3, 8 (right to respect for private and family life), and 13 ECHR (right to an effective remedy). This, the judge said, constituted a state of necessity which precluded the accused’s liability for the crime of escape. The conditions in which they were held put their life and health in extreme danger through no fault of their own; the only way for them to escape that danger was to escape from detention, an act for which they could not be held criminally liable. All fifteen accused were acquitted.

From a criminal law perspective, it is interesting to note that the judge allowed a defence of necessity that does not preclude the wrongfulness of the act, but one which only precludes liability for the wrongful act that has been committed (cf Articles 25 and 32 Greek Criminal Code). This means that the act (the escape) remains wrongful (and thus police could have sought to prevent the escape) but the perpetrators cannot be held criminally liable for trying to save their own lives and health.

More interestingly, the court effectively elevated ECHR protections to criminal law defences: it clearly found that conditions of detention in violation of Article 3 ECHR constitute a situation which puts the life or health of a detained person at risk, so that the latter will not be held criminally liable for escaping. This is to my knowledge novel. It is also in line with the European Court’s mantra that ‘the Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective’. The Greek judge, in his exceptional decision, seems to have given true effect to the rights guaranteed under the ECHR in a rather spectacular and unprecedented manner.

In its decision 682/2012 the court ruled amongst others:

“This action is in its origin and until the end unfair and furthermore initially attributed to each of the perpetrators. But it was proven that the detention conditions experienced by the detained defendants until the day of their escape and specifically the first for nine days, the second for one month, the third for sixteen days, the fourth for seventeen days, the fifth for thirty days, the sixth for thirty-two days, the seventh, eighth and ninth for eighteen days, the tenth for thirty-two days, the eleventh for thirty-four days, the twelfth for thirty-one days, the thirteenth for thirty-six days, the fourteenth for thirty five days and the fifteenth for forty five days are appalling and extremely dangerous for all human beings.” (…)

“The jail in which the inmates were detained is never being cleaned or disinfected and generally not even minimum standards of cleanliness and hygiene are uphold (there is only one chemical toilet for all prisoners located inside the sleeping area, there is no water supply inside the cells, and the prisoners suffer from lice, fleas, scabies, typhoid, skin diseases and other infectious diseases or non-infectious diseases). By this way, the detention cells of the accused constitutes a serious source of infection with bacteria, viruses and other harmful microorganisms to humans. These bacteria’s development is favored by the continuous overcrowdedness with large numbers of prisoners from different countries of origin (mainly in Asia and Africa) who have to wear unwashed or unchanged clothes for weeks or even months.” (…)

“Therefore, it is estimated that they fled to prevent a serious and unavoidable by other means danger which was threatening – without being their fault – their health and, in particular, to prevent their infection from transferable infectious diseases, given the difficult access to medical care, medication and hospitalization. For this reason the initial categorisation of the (initially and finally) unjust charge of escape that they committed is deemed not guilty.” (…)

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