ECtHR - H.A v Greece, Application no. 58424/11, 21 January 2016

Facts:

The applicant, H.A., an Iranian national, arrived in Greece in August 2010. He was arrested by the police and an order was made to expulse him via Turkey. Turkish authorities refused his admission. Pending his expulsion he was detained at the Soufli detention centre, initially for three days but extended from 9 August 2010 until 5 January 2011.

In November and December 2010, the applicant received legal assistance, and challenged the decision for his detention on 13 December 2010, relying on the impossibility of his expulsion and the inappropriate conditions at the detention centre. His allegations of overpopulation, lack of hygiene and access to natural light were supported by findings of the United Nations.

The first decision of the Administrative Court of Alexandroupoli on 17 December 2010 rejected the challenge on the basis that he posed a risk of absconding given that he had entered the country illegally and lacked evidence to establish his identify. The applicant successfully appealed this decision, granted by the Administrative Court of Alexandroupoli on 27 December 2010, which found his detention unlawful and the applicant was released on 5 January 2011.

Decision & reasoning:

I.                    Article 3 ECHR

On the basis of the Court’s jurisprudence and particularly previous decisions against Greece concerning the conditions of detention of foreigners in the detention centre of Soufli, as well as NGO reports, the Court held that the applicant was detained in conditions of overpopulation and poor hygiene contrary to Article 3 ECHR.

II.                  Article 5 § 1 and § 4 and Article 13 ECHR

Under domestic law the Court recalls that the maximum six-month period of detention runs from the date that the applicant and/or his lawyer has sufficient knowledge of the internal orders and not from the start of the detention as the Government alleged.

In relation to the lawfulness of his detention, the Court considered that the applicant’s initial detention was justified by Article 5 § 1 f). The progress of the expulsion procedure justifies the deprivation of liberty.  However, the Greek authorities had not taken any steps in the five months following Turkey’s refusal to admit the applicant to carry out the expulsion, failing to act with due diligence. This led to a violation of Article 5 § 1 f) ECHR.

Under Greek domestic law at the material time, the applicant had no effective judicial remedy to challenge his detention pending expulsion, in violation of Article 5 § 4 ECHR.

Article 5 § 4 is the lex specialis on the matter, so there is no need to look at the legi generali Article 13 ECHR.

Article 5 § 2 ECHR was not examined in the light of the above conclusions on Article 5 § 4 ECHR.

Outcome:

Violation of Article 3 ECHR, Article 5 § 1 f) ECHR and Article 5 § 4 ECHR.

Observations/comments:

This case summary was written by Clara Gautrais, GDL student at BPP University, UK. 

Other sources:

European Committee for the Prevention of Torture (CPT), Report to the Government of Greece on the visits carried out on 19 and 27 January 2011, 10 January 2012.

Greek National Human Rights Commission and the Mediator of the Republic, Report on visits carried out on 18 and 20 March 2011.