The following evidence on the conditions of the Foreigners Centre (Udlændinge Center) Ellebaek constitutes of the European Committee for the Prevention of Torture and Inhumane or Degrading Treatment or Punishment (CPT) report of 2020. CPT visited Ellebaek in 2019 to investigate if the centre violated article 3 on the prohibition of torture and inhumane or degrading treatment or punishment of the European Convention of Human Rights (ECHR).
The letter to the Danish Legal Affairs Committee (Folketingets Retsudvalg) by the voluntary association Ellebaek Contact Network (Ellebæk Kontaktnetværk) and co-signed by 28 lawyers, doctors, human rights organizations, and researchers, on the conditions in Ellebaek from 2020-2023. The letter included an appendix documenting incidents experienced by asylum seekers and irregular migrants under administrative detention in Ellebaek, and a letter from researchers from Advanced Migration Studies (AMIS) at the University of Copenhagen, reviewing international research on the consequences of administrative detention, and the potentiality of violations of international law.
The migrants and asylum seekers in Ellebaek are under administrative detention under the Aliens Act article 36 if persons are at risk of disappearing while their asylum cases are being investigated or before being repatriated or deported. This could be due to migrants not having valid papers or asylum seekers who; did not show up for interrogation, submitted their case under false documents or evidence, have claimed asylum in another country party to Dublin III, or the asylum claim has been rejected.
Administrative detention of asylum seekers is allowed under the Geneve Convention of Refugees article 31(2). It can be used as long as it is done so in a proportionate manner and in compliance with international human rights; the ECHR; the EU Charter of Fundamental Rights (ECFR) on prohibition of torture and degrading treatment or punishment (articles 3/4) and the right to security and liberty (articles 5/6); the EU Return Directive 2008/115/EC; and the Geneve Convention on Refugees article 31(2).
Penalties of Illegal Entry: Violations of the Refugee Convention
Refugees.dk presented evidence of asylum seekers at Ellebaek who arrived with a false passport, that they are subjected to 40 days in prison before being placed in administrative detention. This is a violation of the Refugee Convention article 31(1), as asylum seekers cannot be subjected to penalties for their illegal entry. The international obligation to not punish asylum seekers under article 31(1) of the Refugee Convention for entering a country illegally can only be met if the asylum claim is processed before said punishment. Hence, the punishment of prison of 40 days violates not just article 31(1), but also violates the Danish state’s obligation to ensure and protect the asylum seeker’s human rights.
Placing asylum seekers, who have served a criminal detention for entering Denmark with a false passport, and thereafter placed under administrative detention, could be argued to violate double jeopardy under human rights ECFR and ECHR. While double jeopardy is only valid for being punished for the same crime twice, and hence does not apply to administrative detention, the reason for placing the asylum seeker in Ellebaek is so closely related to why they were put in criminal detention; which raises the question of whether the placement in Ellebaek is purely administrative.
The criminalization of aliens in Ellebaek and the conditions of the centre, which de facto constitutes a prison, and is deemed worse than Danish prisons by CPT will be presented in this article, in addition to the placement of asylum seekers in Ellebaek after criminal detention violating double jeopardy, as the detention in Ellebaek constitutes criminal detention for the same crime the asylum seeker was placed in prison.
Prison-Like Conditions and Gender Discrimination
Ellebaek is managed by the Danish Correctional Service (Kriminalforsorgen) whose main purpose is to manage Danish prisons. The custodial staff are prison officers, managing Ellebaek as a closed prison. The old military barracks looks similar to a prison; the detainees’ rooms being locked at night, having bars in front of their windows, the barracks being separated by gate partitions, the centre being surrounded by a double 4-meter-tall fence with barbed wire on top, on-ground shells that make noise when you walk on them, and extensive video surveillance outside and inside the barracks, with the exception of in the detainees’ rooms.
While persons placed under administrative detention have the right to access their personal mobile phones, also recognized by the High Court (Østre Landsret), the Danish Correctional Services manages the centre as a prison, and punishes detainees with 15 days in an isolation cell if they’re in possession of a phone. CPT critiqued in 2014 and 2020 the lack of regular access to the migrants’ personal mobile phones, as they are not in prison, they should have meaningful contact with the outside world. The migrants can use a payphone, which according to the Contact Network has a bad connection, and the Contact Network and CPT reported the detainees found it too expensive. Ø reported to the Contact Network that when the phone broke in summer 2020, they went 10 days without a payphone before it was replaced.
CPT reported that migrants detained lacked information on the circumstances of their detention, house rules, and general information in languages the detainees understand, to which the Ministry of Justice announced that it would make a ‘“picture and web-based tool” for informing detained migrants who speak neither Danish nor English about daily routines and activities’. However, the detainees don’t have access to the internet in Ellebaek, which raises the questions on how a web-based information system will reach the detained.
The limited access to open air was reported by the Contact Network and CPT. CPT reported that females had less access to open air than their male counterparts, as women had 30 minutes per day and men had up to 1.5 hours. CPT argued that everybody should have free access to outdoor areas, and at a minimum 2-hour per day. CPT failed to address the gender discriminatory practices, which Ellebaek cannot excuse with lack of staff, and is in violation of ECFR article 23 on equality between women and men.
CPT also report that the living conditions of the migration detention centers is similar to that of a prison while prison rules applied to all detained migrants even when migration detainees are neither suspected nor they been convicted of any crime. CPT adds that living conditions at Ellebaek are “much poorer than the conditions in any of the prisons visited”.
Arbitrary Punishment and Threats by Danish Authorities
The prison style management of Ellebaek is further visible in the use of isolation cells, excessive use of force, and verbal abuse of the detainees. CPT had been made aware of racist remarks made by the prison officers, including referring to the detainees as “monkies”. CPT called on the Danish authorities to remind its staff that “detained migrants are to be treated with respect and that all forms of ill-treatment, including verbal abuse, are unacceptable and will be sanctioned accordingly”.
While CPT reprimanded the Danish Correctional Services in 2020, the Contact Network could report multiple incidents over the course of 2020-2023 of incidents like these continuing. The use of isolation cells for small incidents is considered by AMIS to be “in transparent and arbitrary forms of de facto punishment”, which has also been part of the critique from CPT. Many of these incidents could have been prevented if Ellebaek had sufficient medical staff, used interpreters more regularly, and trained the prison officers in dealing with migrants rather than criminals.
Conditions in Ellebaek Deteriorating Physical and Mental Illnesses: Lack of Medical and Socio-Psychological Support Resulting in Permanent Damages to Health and Attempts of Suicide
The detention of vulnerable persons such as victims of torture, trafficked women, physically or mentally ill persons, or the elderly is under heavy critique. The Contact Network and CPT identified all of the above being detained in Ellebaek. CPT argued that the medical investigation into vulnerabilities should be conducted before the foreigners are subjected to detention, as the majority of the foreigners at the centre suffer from serious physical or mental illnesses, and hence should not be in Ellebaek.
The letter from AMIS argued that extensive research indicates that detention can cause or decrease physical and mental well-being, especially when the duration of the detention is unknown, there is a lack of effective communication, the detainees having pre-existing health problems, and a lack of access to appropriate healthcare. This amounts to increased levels of depression, sleep issues, anxiety, PTSD, self-harm, and suicides, and aggravates existing trauma for torture or trafficking survivors. All the issues that research has indicated as possible consequences have been identified by the Contact Network at Ellebaek.
Refugees.dk and CPT reported that the screening of vulnerabilities conducted by a police officer and a nurse is superficial, and access to doctors, psychologists, and torture investigation is very limited and with long waiting lists. CPT reported that the initial screening was conducted while the police was still present, and that other detainees sometimes were used as interpreters, which breaches medical confidentiality and acts as a barrier for the migrants to open about their medical past, physical or mental. The Contact Network also reported that the limited access to doctors and psychologists results in prescriptions of anti-depressives, anti-psychotic medicine, and sleeping medicine, but without an examination to address the root causes. Further, it is up to the prison officers, without medical training, to determine when the foreigner is so sick that they must be treated at a psychiatric department or a hospital.
Before being admitted to Ellebaek, the detainee should have had a more throughout medical examination screening for vulnerabilities of physical and mental health, and a torture investigation, determining whether there are signs of a detainee having been subjected to torture in his past. The Amnesty Doctors Group assist with these investigations, but the waitlist is very long, e.g., a detainee had requested a torture investigation, but had been detained in Ellebaek for 13 months without receiving one or even a response from the Amnesty Doctors Group.
The Contact Network reported that the long wait for doctors resulted in physical illnesses worsening, and an increase in anxiety, depression, and self-harm directly related to the experience of incarceration. On January 2022 the Contact Network visited Ellebaek, highlighting that the protocols of screening by the nurse and officer is not just insufficient at times, but also sometimes don’t take place.
An example of the importance of torture screenings before people are detained in Ellebaek is highlighted by The Contact Network also which noted that symptoms of PTSD, depression, and anxiety, and experiencing of torture in the custody of the Moroccan police, has resulted in “a general feeling of insecurity in the presence of police and prison cell for a detainee. Serving time in Ellebaek trigger PTSD and can deteriorate the mental health of detainees.
Human rights organizations have registered several attempts of, and suicides at Ellebaek over the years. The Contact Network reported that suicidal persons did not receive psychological aid and were threatened by the prison guards with isolation.
In June 2020 the Contact Network documented a case where a detainee attempted suicide in a Danish prison before being detained in Ellebaek and after informing the officers their response was to inform the detainee that if they continued to have suicidal thoughts they will be put in an isolation cell. Having attempted suicide shortly before arriving at Ellebaek, the detainee should have been kept from being admitted to Ellebaek in the first place. Instead of being offered psychosocial support and act on their statement of suicidal thoughts, the prison officer offered the detainee to withdraw their statement without following up. This is not only negligent behaviour but also violates mandatory reporting.
CPT provided evidence of the suicidal observation rooms breaching ECHR article 3. CPT reported that people under suicidal watch would not be provided with rip-proofed clothing, as it was not available, but placed in the room naked; which constitutes degrading treatment under ECHR article 3.
To sum up, CPT concluded that “As for all persons deprived of their liberty, thorough medical admission screening is … crucial for identifying vulnerable persons such as inter alia victims of torture and persons at risk of self-harm of suicide”. The incarceration of victims of torture and the lack of or long waits for torture investigations are critiqued by the CPT report of 2020 and can constitute to inhumane and degrading treatment under ECHR article 3.
A Call for Decriminalizing Aliens
The evidence documented by the reports cited in this article indicates that even after being reprimanded by CPT in 2020, Ellebaek still uses criminal punishment for people who are detained under administrative law of the Aliens Act. Ellebaek detention centre de facto constitutes a prison with its condition and management by the Danish Correctional Services.
AMIS researchers highlight that at least criminals serving in prison have knowledge of how long they are serving, have more rehabilitation activities, and access to legal support. While Denmark can be proud of the relatively good facilities in prisons and treatment of prisoners, there must be a clear distinction between the treatment of aliens and criminals. Aliens in administrative detention should not be subjected to inhumane and degrading treatment.
The paradigm shift and turn towards an anti-immigration policy is not a deterrent measure for illegal migrants, most of the people who illegally migrate are running out of wars and tyrant authoritarian regimes; a change in the Danish government’s migration control policy and measures is of utmost priority as it is important to limit and prevent the negative effects on migrants’ health and well-being while abiding by the Danish government European and international obligations to protect and promote the rights of migrants.
The Danish government must ensure that detained migrants are dignified and provided with access to information about their legal status including in a language they understand, in addition to medical support while also training prisons and detention centers’ personnel on how to deal with detainees.
The lack of screenings to identify vulnerable persons places persons who should never had been in Ellebaek under conditions which worsen their physical and mental health to such degrees that it can be irreversible. It is under all critique that victims of torture and mentally ill persons are in Ellebaek, and even more so, that they are there without the necessary medical and psychological support that they need. The lives that have ended in Ellebaek under the administrative “care” of the Danish Government are the responsibility of the Government.