ECtHR – A. Y. v Greece, Application No. 58399/11, 5 November 2015

Facts:

The Applicant is an Iraqi national who left his country after receiving threats from extremists for collaborating with the US military in Iraq. He arrived in Greece in October 2010. On 13 October, he was arrested for illegal entry and detained by the Tychero police pending deportation. He was processed under the name of K. A. as a Syrian national. He attempted to claim asylum, but this was not registered by the competent authorities.  On 14 October, an order was issued for his removal to Turkey, but this was delayed as Turkey refused to admit him. On 17 October, a further detention order was issued by the Alexandroupouli police on the basis that he posed a flight risk.

After an interview with FRONTEX experts, his details were corrected by the Alexandropouli police. Subsequently, the Greek Council for Refugees (‘GCR’) requested, as his legal representatives, that his asylum claim be registered by the Alexandropouli police. The Applicant’s file shows that this claim was not registered. The GCR asked for further information on the status of his claim by way of faxes sent on 23, 24, 29 December. However, they received no response. On 22 December, Médecins sans Frontières prepared a report which diagnosed the Applicant with asthma and concluded that his condition had been worsened by his detention.

On 27 December, the Applicant brought a legal challenge against his detention on the grounds that: (a) it was unnecessary, as he had been offered accommodation in Athens by an NGO; (b) he could not be deported, because his claim was still pending; and (c) the conditions were deplorable and life-threatening in light of his asthma, particularly in terms of the overcrowding, the lack of hygiene and sanitation facilities, and the restrictions on physical exercise. On 3 January 2011, his request was granted and he was released by the administrative court in Alexandroupoli.

Decision & reasoning:

Standing

The Court established that the Applicant had standing, notably rebutting three challenges raised by the Greek Government. Firstly, it did not matter that the spelling of the Applicant’s name differed between his application for asylum and various official documents, because the authorities had already recognised his name in that form. Secondly, the application had been made within the six-month time limit, because for the purposes of Article 34, the relevant date is the date of the first letter expressing the Applicant’s intention to bring a claim. Finally, the Court held that the application was not abusive under Article 35(3)(a) because it was based on genuine facts which themselves were not contested by the Government.

Article 3

The Court held that the Applicant’s rights under Article 3 of the ECHR had been violated. The Court first noted that the parties offered conflicting accounts on the majority of the details relating to the Applicant’s detention conditions. Citing the decision in Grigorievskikh v Russia, it held that it was not necessary to evaluate the accuracy of each detail under dispute, and that the Court was entitled to find a violation of Article 3 in relation to any serious allegation which had not been refuted by the Greek Government. The Court relied on reports produced by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (‘CPT’), the National Commission on Human Rights and the Greek Ombudsman, all of which highlighted the overcrowding suffered by detainees at the Tychero border post. This was sufficient to establish a violation of Article 3.

Article 3 in conjunction with Article 13

The Court also found a violation of Article 3 in conjunction with Article 13, in relation to the failures by the Greek authorities in the processing of the Applicant’s claim. The Court first highlighted that it was essentially concerned with establishing whether or not there were effective guarantees in place to protect the Applicant from being arbitrarily deported to the country from which he had fled and where he would risk being subjected to torture and/or inhuman or degrading treatment. Where there is a potential breach of Article 3, the right to an effective remedy under Article 13 would necessarily entail:

a)       Close supervision by a national authority (Chamaïev and others v Georgia & Russia);

b)      An independent and thorough examination of all elements of the claim which might suggest a violation of Article 3 (Jabari v Turkey);

c)       A particularly speedy process (Bati and others v Turkey); and

d)      A suspensive right of appeal (Conka v Belgium, and Gebremedhin [Gaberamadhien] v France).

On the facts, the Court found that the Applicant had been exposed to a risk of deportation, first to Turkey and then to Iraq, throughout the duration of his detention. In light of the evidence submitted by the Applicant concerning his involvement with the US military in Iraq, there was prima facie a genuine and serious risk that he would be subjected to torture and/or inhuman or degrading treatment upon return to Iraq. Moreover, the Greek authorities had failed to meet their obligations under Article 13. This was because they had failed to respond to requests for information about the Applicant’s claim and had created a misleading impression that it had been registered, without conducting proper checks or providing him with reliable information. On this basis, the Court rejected the Government’s argument that the Applicant had failed to exhaust internal remedies.

Article 5(1)

The Court found no violation of Article 5(1). It held that the Applicant’s detention fell under subsection (f) as it was prescribed by domestic law, served a legitimate purpose and was not excessive in length.

Article 5(4) in conjunction with Article 13

The Court found no violation of Article 5(4) in conjunction with Article 13. It acknowledged that amendments to the national law, which entered into force in January 2011, allowed applicants to challenge the legality and material conditions of their detention before a judge. Accordingly, the requirements of Article 5(4) had been met. Furthermore, the Court held that the administrative tribunal had sufficiently examined the effectiveness of internal remedies by considering the impact of detention conditions on the Applicant’s health. Accordingly, the corresponding requirements of Article 13 had been met.

Article 5(2)

The Court found no violation of Article 5(2) because the requirements of Article 5(4) had been met.

Outcome:

The Court found a violation of Articles 3 and 13, but not of Article 5.

Observations/comments:

The decision follows a line of ECtHR cases in which detention centres in Greece have been criticised as failing to meet minimum human rights standards. See Mahammad and Others v Greece, Aarabi v Greece, A. L. K. v Greece, A. E. v Greece, F. H. v Greece and Tatishvili v Greece.

This case summary was written by Georgia Kandunias, GDL student at BPP University. 

Other sources:

Report to the Government of Greece on the visit to Greece carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 19 to 27 January 2011.

Evaluation of findings from the combined field visit of the National Commission for Human Rights and the Greek Ombudsman at detention centres for irregular migrants in Evros and Rodopi.