ECtHR – J.R. and others v. Greece, Application no. 22696/16, 25 January 2018

Facts:

The applicants are three Afghan nationals who arrived in the Greek island of Chios on 21 March 2016, a day after the entry into force of the EU-Turkey Statement. They were detained in the VIAL hotspot pending their expulsion and on the grounds of a risk of absconding. The applicants raised complaints under:

• Article 3 ECHR: with regard to the conditions in the VIAL hotspot, which they alleged was very poor. According to the applicants, the hotspot was overcrowded, the food was insufficient and of very poor nutritional quality, the toilets and showers were below acceptable hygiene standards, and there was a lack of sufficient health care.
• Article 5(1) ECHR: with regard to the lawfulness of their detention and its conditions.
• Article 5(2) ECHR: as the applicants claim they did not receive information about the reasons for their detention in a language they understood.

In September 2016, one of the applicants left the hotspot and started living in a house in Chios, while the other two applicants travelled to Athens where they live in the Skaramanga camp.

Decision & reasoning:

Firstly, the ECtHR analysed the Greek government’s claim that the complaint had to be rejected due to a lack of power of attorney at the time the complaint was submitted before the Court. The lawyer, who is based in Germany and had never met the applicants in person, had been in contact with the applicants via WhatsApp. The lawyer provided the Court’s registry with copies of the messages he had exchanged with the applicants, in which they indicate their desire to have their cases taken before the ECtHR.

The ECtHR found it clear from the messages exchanged via the mobile application that the applicants wished to be represented by the lawyer before the ECtHR. At a later stage, the lawyer was able to send the Court a copy of three letters handwritten by the applicants and reiterating the lawyer’s power of attorney. Therefore, the ECtHR concluded that the complaint could not be rejected due to a lack of power of attorney.

Secondly, the Court rejected the Greek government’s plea that the applicants’ complaint under Article 5(1) ECHR had to be declared inadmissible due to a lack of exhaustion of domestic remedies. The Court ruled that, in practice, the applicants did not have an effective access to domestic remedies for different reasons, including the lack of information received in a language that they understood, the legal complexity of the information they were given, the fact that they were not assisted by a lawyer, and the general insufficiency of the legal assistance provided by NGOs in the hotspot.

Thirdly, the ECtHR noted that the applicants’ detention in the hotspot between 21 March 2016 and 21 April 2016 amounted to deprivation of liberty, whereas after that date they were subject only to a restriction of movement, since the centre became a semi-open facility. The Court also considered that the situation in question fell within the scope of Article 5(1)(f) ECHR in that the applicants had been detained with a view to their deportation, to prevent them from remaining in Greece unlawfully and to identify and register them as part of the implementation of the EU-Turkey Statement. Their detention for a month could not, thus, be considered excessive for the purposes of the necessary administrative formalities. Therefore, it found that Greece had not violated the applicants’ rights under Article 5(1) ECHR.

Fourthly, the Court found it likely that, while the applicants could have been aware that they had entered Greece irregularly, they might not have known that their situation was covered by the EU-Turkey Statement, signed just the day before their arrival.  Moreover, the ECtHR ruled that, even if they had received an information leaflet, as claimed by the Greek government, its content was not such as to provide them with sufficient details about the reasons for their arrest or the remedies available to them. More particularly, the Court found the information in the leaflet was not provided in a simple and accessible language. Therefore, the Court thus found that there had been a violation of Article 5(2) ECHR.

With regard to the applicant’s complaints under Article 3 ECHR, the Court referred to different reports by international organisations and NGOs, such as by the Greek National Commission for Human Rights, by the Greek Council for Refugees, by the Council of Europe’s Committee on the Prevention of Torture and by Human Rights Watch. The ECtHR recalled that, as in the Grand Chamber’s decision in Khlaifia and others, the Court had to take into account that the case in question occurred at the time of an exceptional and sharp increase in migratory flows, which had created organisational, logistical and structural difficulties.

The Court paid special regard to the fact that the report of the CoE’s Committee on the Prevention of Torture had not been particularly critical of the conditions prevailing in the centre, but focused mainly on medical care, the lack of adequate information and legal assistance and the poor quality of drinking water and food. In the Court’s perspective, the reported conditions had not attained the threshold of severity required for their detention conditions to be considered as inhuman or degrading treatment. Moreover, it considered the applicants’ detention short (thirty days). Therefore, the ECtHR found that there had not been a violation of Article 3 ECHR.

Finally, the Court did not concur with the applicant’s that Greece had violated Article 34 ECHR. The applicants had complained that, by summoning and questioning one of the applicants, the national authorities had intimidated him and hindered the exercise of his right of individual application. The Court reiterated that it was in principle not appropriate for the authorities of a respondent State to enter into direct contact with an applicant in connection with his or her case before the Court (Konstantin Markin v. Russia), but that not all enquiries by authorities about a pending application could be regarded as a measure of intimidation. In the case in question, the Court found that the respondent State had not failed to fulfil its obligations under Article 34 ECHR.

Outcome:

The ECtHR found that there had been no violation of Articles 3, 5(1) and 34 ECHR, but there had been a violation of Article 5(2) ECHR.

Observations/comments:

This is the first decision by the European Court of Human Rights regarding the conditions in the Greek hotspots following the implementation of the EU-Turkey Statement. While the Court does not specifically dwell on the nature of the EU-Turkey Statement, it refers to it as “an agreement concluded between the EU Member States of the European Union and Turkey” (para. 7) and also as a “declaration” (para. 39). Thus, it seems to echo the understanding of the General Court of the EU on the nature of the agreement.

Moreover, even though the ECtHR’s ruling in J.R. and others does not raise the question of whether Turkey qualifies as a “safe third country”, some commentators have interpreted the judgment as endorsing the EU-Turkey Statement as the ECtHR found that detaining migrants in order to identify and register them as part of the implementation of the Statement is compliant with Article 5(1) ECHR.

Pending communicated cases before the ECtHR in relation to the Greek hotspots and/or returns from Greece to Turkey include: Kaberi v. Greece (no. 19557/17), J.B. v. Greece (no. 54796/16), Ahmadi and others v. Greece (no. 39065/16), and  Allaa Kaak and others v. Greece (no. 34215/16).

Another element of interest in the ECtHR’s judgment in J.R. and others concerns the acceptance by the Court of a copy of WhatsApp messages exchanged between the lawyer and the applicants (only later followed by pictures and handwritten letters), as serving as powers of attorney. In this case, the lawyer had never met the applicants in person.

Relevant documents:

JR and Others v Greece: what does the Court (not) say about the EU-Turkey Statement?, Strasbourg Observers, by Annick Pijnenburg, PhD researcher at Tilburg University, available here.

Submission by the Office of the United Nations High Commissioner for Refugees in the case of J.R. and Others v. Greece (Appl. No 22696/16) before the European Court of Human Rights, available here.

Other sources:

EU-Turkey Statement, 18 March 2016, available here.

Report of the fact-finding mission by Ambassador Tomáš Boček Special Representative of the Secretary General on migration and refugees to Greece and “the former Yugoslav Republic of Macedonia”, 7-11 March 2016, available here.

Report to the Greek Government on the visits to Greece carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 13 to 18 April and 19 to 25 July 2016, available here.

Report by the Greek National Commission for Human Rights, Living Conditions in Hotspots and Accommodation Sites for Migrants and Refugees, available here.

Report by the Greek Council for Refugees on its visits to Chios, available here.

Report by Human Rights Watch, “Greece : Asylum Seekers Locked up”, available here.