Anand Grover, UN Special Rapporteur on the Right to the Highest Attainable Standard of Health
OHCHR - Palais Wilson
United Nations Office at Geneva
CH-1211 Geneva 10
Dear Mr. Grover:
We are writing to call your attention to two issues of urgent and serious concern in Greece: (1) the administrative detention and compulsory medical testing of immigrants and asylum seekers based on health status and (2) the arrest, criminal prosecution and compulsory HIV testing of sex workers.
In April 2012, Greece amended its immigration law to permit detention of migrants and asylum seekers in broad circumstances, justified as public health measures. Human Rights Watch considers that the law includes a provision that violates human rights standards, including the right to health, to remain free of cruel, inhuman and degrading treatment or punishment, to protection against arbitrary detention, and against discrimination on HIV and other status grounds. The matter is urgent because the law is in force and apparently being used.
We are sending this complaint to request that you send an urgent appeal to the Government of Greece:
1) to amend the new provision of the immigration law (and in the interim, suspend its implementation) to ensure its obligations under international and domestic law to protect the right to health, to remain free of cruel, inhuman and degrading treatment or punishment, to protection against arbitrary detention, and against unlawful discrimination based on status grounds; and
2) to investigate the procedures and consequences of arrests of sex workers, including police and public health authority action to expose confidential health information and impose criminal charges based on HIV status.
Greece's Immigration Law Amendments of April 2012
The immigration law provision, adopted on April 2012 (Law 4075/11.04.2012), amended article 13 of Presidential Decree 114/2010 on the "establishment of a single procedure for granting the status of refugee or of beneficiary of subsidiary protection to aliens or to stateless persons in conformity with Council Directive 2005/85/EC on minimum standards on procedures in Member States for granting and withdrawing refugee status (Law 326/13.12.2005)."
The amendment provides for detention of migrants and asylum seekers if they represent a "danger to public health." According to the provision, a migrant or asylum seeker can be detained on the grounds that he or she represents a danger to public health, when he or she "suffers from an infectious disease;" "belongs to groups vulnerable to infectious diseases," with assessment permissible on the basis of country of origin, status as an intravenous drug user or a sex worker; or is "liv[ing] in conditions that do not meet minimum standards of hygiene." There is a 90-day maximum detention time limit, unless the person is already in detention pending deportation in which case a total of 180 days’ detention is permitted. Like other grounds of detention, the new public health grounds can be appealed.
The amendment also provides for mandatory health examinations and appropriate hospitalization for individuals in these categories.
The government justified this amendment as a public health measure, stating that "the high concentration of illegal immigrants, particularly in Athens and other major urban centers creates serious risks to public health considering their living conditions (miserable living spaces, prostitution, drug use, etc.), and infectious diseases necessarily transported from their home countries."
This provision is problematic and incompatible on numerous human rights grounds. First, the detention of a person on grounds of nationality or country of origin is arbitrary and unlawful detention, as is detention of a person on a status ground (i.e. that they are a drug user, or a sex worker) as opposed to the commission of any criminal conduct. Moreover, in so far as the provision envisages the detention of sex workers, there is no clarity on when or how authorities will, if at all, make a determination as to whether the individual is voluntarily undertaking sex work or is a victim of forced sex work, and therefore a victim of trafficking. In addition, whilst detention on public health grounds is permissible under international law it is subject to certain requirements including that it must be necessary and proportionate, appropriate to achieve a clear public health aim, and non-discriminatory. The Greek provision would not appear to comply with any of the conditions. Furthermore, this provision appears to be a HIV-related restriction on entry, stay and residence which is discriminatory in that it assumes people living with HIV, sex workers and people who use drugs pose a public health threat based only on their health status, social status and country of origin.
Human Rights Watch also notes that mandatory testing raises concerns about the right to security of the person and bodily integrity.
Arrest, Detention, and Publication of Confidential Information of HIV-positive Sex Workers
We would also like to draw your attention to the recent arrest of as many as 31 alleged sex workers in Athens between April 29 and May 4, 2012, allegedly for having unprotected sex with customers while HIV positive.
Between April 29 and May 4, 2012, the Service of the General Police Directorate of Attica and the Center for Disease Control and Prevention carried out joint actionsin the center of Athens, to identify sex workers in open spaces and in illegal brothels. Law 2734/1999 on "sex workers and other provisions" provides that "sex workers are required to hold a work permit under the conditions that he/she is older than 18 years old; is single, widowed or divorced; does not suffer from sexually transmitted or other infectious diseases; does not suffer from any form of mental illness and is not a drugs user; and he/she has not been convicted by final judgment for murder, seduction of children, including facilitating debauchery, child pornography, forced prostitution, trafficking, sexual abuse with a minor for remuneration, robbery and extortion, and violation of the provisions of the laws on arms and drugs." Persons holding a work permit shall, "every fifteen days, undergo a medical examination." Furthermore, persons engaging in sex work without holding a work permit or without being subjected to the necessary health examination are "punishable with imprisonment of up to two years and a fine." In addition, a sex worker that engages in "sexual intercourse while knowing that he/she has a sexually transmitted or other infectious disease, shall be punished with imprisonment of up to one year unless the act is punished more severely by another provision."
Reportedly as many as 31 women (alleged to be sex workers) were arrested and face criminal charges of causing intentional grievous bodily harm, a felony, or of attempted bodily harm, a misdemeanor, after being tested and found HIV positive. The Hellenic Police and media outlets subsequently published and broadcast personal data, photographs and information from their medical records of their HIV-positive status from the Greek Center for Disease Control and Prevention. According to the police, the Center for Disease Control and Prevention supplied the Greek Police with the sensitive personal data that were subsequently made public after a Prosecutor’s order.
According to media reports, most of the women stated to the prosecutor that they were "drug addicts" who sold sex on occasion and were unaware they were carrying the HIV virus. All of the women are reportedly detained pending trial, and sixteen have been remanded to the hospital of Attica’s high-security Korydallos Prison.
Human Rights Watch considers that the actions of the police, and of the Government, violate human rights protected under international law. They also are inconsistent with sound, ethical public health practice and will likely serve to undermine efforts to protect and promote public health.
Detaining individuals in order to conduct forced medical procedures, including testing for HIV, violates the right to security of the person, a right guaranteed under both the International Covenant on Civil and Political Rights (Article 9) and the European Convention on Human Rights (Article 5). Forcible testing is also a violation of bodily integrity and autonomy. The UN’s expert health agencies have affirmed that HIV testing should only be done with informed consent, meaning testing must be both informed and voluntary; furthermore, testing should be accompanied by pre- and post-test counseling and the confidentiality of test results should be guaranteed. In addition, forcibly testing someone for HIV is a violation of both bodily integrity and privacy. Disclosing by press release that some of those detained by police have tested HIV-positive, which is medical information that should be held confidential, implicates all those who were detained and whose identities and photos were broadcast by the media. The disclosure exposes sex workers and others to potential violence. Such excessive invasions of privacy serve no legitimate objective.
The conduct of police and the government has also violated the right to privacy of those detained. The International Covenant on Civil and Political Rights (Article 17) prohibits arbitrary interference with a person’s privacy. The International Covenant on Economic, Social and Cultural Rights (Article 12) guarantees protection of the confidentiality of personal health information, as part of the right to the highest attainable standard of health. The European Convention on Human Rights (Article 8) guarantees the right to respect for private and family life, and further prohibits any public authority from interfering with this right except as is necessary in a democratic society in order to achieve such objectives as protection of health or protection of the rights and freedoms of others.
Limits on some human rights protected under the International Covenant on Civil and Political Rights and the European Convention on Human Rights may be permitted in some cases, including in pursuit of public health objectives. (There is no permissible limitation on the right to be free from inhuman or degrading treatment or punishment; this right is "nonderogable".) However, any such limitations may not be arbitrary, unreasonable, or discriminatory. Furthermore, they must respond to a "pressing public or social need", pursue a "legitimate aim" and be proportionate to that aim. It is difficult to see how mass arrest, criminal prosecution, forcible testing and broadcasting the identities of sex workers responds to any pressing public need, or that these infringements of human rights could be seen to serve a legitimate aim or be proportional in achieving any such aim.
We respectfully request that you consider the information we have presented and urge the Government of Greece to take the following actions:
- Repeal the provision of article 59 of Law 4075/11.04.2012 permitting detention of migrants on public health grounds, and pending repeal, suspend implementation of the law;
- stop forced testing of all persons - including immigrants, sex workers, drug users - and ensure all future testing for HIV and other sexually transmitted disease involves informed consent, pre- and post-test counseling, and guaranteed confidentiality of test results;
- ensure legal support and post-test counseling for all the arrested sex workers, and access to necessary medical care for those who need it;
- investigate the causes, procedures and consequences of these latest arrests, including the police and Center for Disease Control action exposing confidential health information and subjecting detainees to degrading treatment;
- repeal laws mandating HIV testing and disclosure, and redirect legislative reform and law enforcement efforts toward addressing human rights violations against people living with HIV and those whose marginalized status puts them at risk of HIV and other adverse health conditions.
Thank you for your attention to this matter.
POSITIVE VOICE, GREEK ASSOCIATION OF PEOPLE LIVING WITH HIV
EUROPEAN AIDS TREATMENT GROUP
HUMAN RIGHTS WATCH
Law 4075/11.04.2012 article 59, para. 1 [The detention of applicants in an appropriate space is exceptionally allowed when alternative measures cannot be applied for one of the following reasons:]..."d) He/she constitutes a danger to public health because he/she suffers from an infectious disease; or belongs to groups vulnerable to infectious diseases, particularly because of his/hers country of origin, or he/she uses intravenous non legal substances, or he/she is a sex worker, within the meaning of the provisions of Law 2734/1999 (A' 161), or he/she lives in conditions that do not meet the minimum standards of hygiene, such as determined by health provisions." and article 59, para. 2 [The administrative expulsion of an alien shall be allowed when]..."d) His presence on the Greek territory constitutes a danger to public health because he/she suffers from an infectious disease; or because he/she belongs to groups vulnerable to infectious diseases, particularly given the state of public health in the country of origin, or he/she uses intravenous non legal substances, or he/she is a sex worker, within the meaning of the provisions of Law 2734/1999 (A' 161), or he/she lives in conditions that do not meet the minimum standards of hygiene, such as determined by the health provisions."
Presidential Decree 114/2010 article 13, para. 4 and 5.
Law 407/11.04.2012 article 59, para. 3 " The persons referred to, in the preceding paragraphs, undergo mandatory health examination and adequate treatment. For the nursing facilities, the provision on detainees apply, as long as the conditions of their detention occur."
 Amendment 992/41 of Ministers of Citizen Protection, Mr. Michalis Chrisochoidis and Health and Social Solidarity, Mr. Andreas Loverdos for the health control of migrants, April 2, 2012.
Law 2734/1999 (A' 161), article 1, para. 1.
Law 2734/1999 (A' 161), article 2, para. 1.
Law 2734/1999 (A' 161), article 5, para. 1 and 2.
UNAIDS/WHO Policy Statement on HIV Testing, June 2004, online:
www.who.int/rpc/research_ethics/hivtestingpolicy_en_pdf.pdf; OHCHR and UNAIDS (2006) International Guidelines on HIV/AIDS and Human Rights (UNAIDS Geneva) Guideline 3 (b) "Apart from surveillance testing and other unlinked testing done for epidemiological purposes, public health legislation should ensure that HIV testing of individuals should only be performed with the specific consent of that individual" and Guideline 5 22(j) "Public health, criminal and antidiscrimination legislation should prohibit mandatory HIV testing of targeted groups, including vulnerable groups."
UN Economic and Social Council, "Siracusa Principles on the Limitation and Derogation Provisions in the
International Covenant on Civil and Political Rights," UN Doc. E/CN.4/1985/4, Annex (1985).