ECtHR – A.E.A. v Greece, Application no. 39034/12, 15 March 2018

Facts:

The case concerns a Sudanese national who arrived to Greece in April 2009. In Sudan he had been politically active and had been detained and tortured on two separate occasions. According to his account, upon his arrival to Greece he was issued with an automatic expulsion order upon his arrival and not given any information on his rights and obligations. He was subsequently detained with a view to his removal. He was, however, not considered to be at risk of absconding and thus he was later released from detention. He attempted to apply for asylum in between April 2009 and July 2012, yet despite successive attempts and the support of NGOs including recognition by the UNHCR as a refugee under their mandate his requests to apply for asylum were ignored by the authorities. As a result, he lived in destitution and had no access to social services, food, drinkable water, toilets or a residence permit. In July 2012 the Greek authorities registered his asylum application, which was rejected a year later as manifestly unfounded. He later appealed the decision. In 2015 A.E.A. left to France.  

Before the Court the applicant complains that systemic deficiencies exist in the examination of asylum applications by Greek authorities, notably a waiting time of 3 years to apply for asylum. Such deficiencies breached Article 13 read in conjunction with Article 3. Moreover, the applicant advances that he had suffered a violation of his Article 3 rights on account of the complete destitution that he found himself both before and after he had applied for asylum. 

Decision & reasoning:

With regard to the applicant’s complaint under Article 13 ECHR read in conjunction with Article 3 ECHR, the ECtHR dismissed the Government’s submissions on non-exhaustion of domestic remedies since the applicant had no appropriate and effective appeal against the inaccessibility of an asylum procedure during a lengthy period of time. Further dismissing the Government’s arguments in relation to the non-respect of the six month rule and the absence of the A.E.A’s victim status, the Court went on to reiterate its case law in respect of an effective remedy which must entail, amongst others, a thorough and rigorous examination where an Article 3 claim has been raised and an appeal with suspensive effect. The Court will also have regard in its consideration on an effective remedy to linguistic obstacles, the possibility to access necessary information, expert advice and the material conditions that the applicant may encounter.

In reference to the facts of the case, the Court notes that the evidence presented by A.E.A, including medical documentation attesting to his status as a victim of torture, demonstrated that the applicant had a prima facie case that he faced a risk of an Article 3 violation if returned to Sudan. Noting that this case concerns the impossibility of the applicant to introduce an asylum application in Athens the Court cites reports from UNHCR and several NGOs pointing to the severe difficulties faced by asylum applicants when trying to lodge their asylum applications in Greece and specifically at the Regional Asylum Office at Attica. The Court also pointed to its conclusions in M.S.S. v. Belgium and Greece on the systemic deficiencies in the Greek asylum system at that time and whilst domestic legislation had been adopted which guaranteed the suspensive effect of a remedy nothing had changed in respect of the impossibility to register a claim at Attica. 

Moreover, the Court recalled that international law under the Universal Declaration of Human Rights as well as domestic law recognised the right “to seek asylum” and that the Asylum Procedures Directive transposed into Greek law requires the authorities to “ensure that each adult having legal capacity has the right to make an application for asylum on his/her own behalf”. The Court noted that despite these explicit obligations the applicant had no possibility to make his wish to apply for asylum to the responsible authorities known since access to Attica was extremely limited, if not impossible.

The Court noted that the possibility to lodge an asylum application in practice is a prerequisite for the effective protection of those in need of international protection. If access to the asylum procedure is not guaranteed by the national authorities, asylum applicants cannot benefit from the guarantees afforded to those under the asylum procedure, leaving them subject to detention at any time. In this case, the applicant was not able to lodge an asylum application for a considerably long time due to the deficiencies in the asylum procedure at the time of the decision, thus violating his rights under Article 13 ECHR read in conjunction with Article 3 ECHR.

In respect of the the applicant's submission that his Article 3 rights had been violated, the Court noted that this case was different from M.S.S. as, after lodging his asylum application, the applicant did not request to be placed in a reception facility or to receive material assistance before the Ministry of Social Solidarity. In fact, the applicant had stated in his first asylum interview that he did not need accommodation. Therefore, the ECtHR concluded that the applicant had not sufficiently substantiated his complaint under Article 3 ECHR and declared it manifestly unfounded.

Outcome:

The Court found a violation of Article 13 read in conjunction with Article 3 and inadmissible as to the rest. 

Other sources:

Article 14(1) Universal Declaration of Human Rights

UN General Assembly, Note on international protection, 13 September 2001, A/AC.96/951

Campagne pour l’accès à la procédure d’asile, July 2012

UNHCR, Des centaines [de personnes] font la queue chaque semaine à Athènes pour demander l’asile, 23 March 2012