ECtHR - Herman and Serazadishvili v. Greece, Applications Nos. 26418/11 and 45884/11
Keywords:
| Keywords |
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Detention
Description
"Restriction on freedom of movement through confinement that is ordered by an administrative or judicial authority(ies) in order that another procedure may be implemented. In an EU asylum context, this means confinement of an asylum seeker by a Member State within a particular place, where the applicant is deprived of his or her freedom of movement. This may occur during any stage of or throughout the asylum process, from the time an initial application is made up to the point of removal of an unsuccessful asylum seeker. In an EU Return context, Member States may only detain or keep in a detention facility a third-country national who is the subject of return procedures in order to prepare the return and/or carry out the removal process, in particular when: (a) there is a risk of absconding; or (b) the third-country national concerned avoids or hampers the preparation of return or the removal process. Any detention shall be for as short a period as possible and only maintained as long as removal arrangements are in progress and executed with due diligence." |
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Effective remedy (right to)
Description
A general principle of EU law now set out in Article 47 of the Charter of Fundamental Rights: "Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.” “[It] is based on Article 13 of the ECHR: ‘Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.’ However, in Community law the protection is more extensive since it guarantees the right to an effective remedy before a court. The Court of Justice enshrined the principle in its judgment of 15 May 1986 (Case 222/84 Johnston [1986] ECR 1651; see also judgment of 15 October 1987, Case 222/86 Heylens [1987] ECR 4097 and judgment of 3 December 1992, Case C-97/91 Borelli [1992] ECR I-6313. According to the Court, this principle also applies to the Member States when they are implementing Community law. The inclusion of this precedent in the Charter is not intended to change the appeal system laid down by the Treaties, and particularly the rules relating to admissibility. This principle is therefore to be implemented according to the procedures laid down in the Treaties. It applies to the institutions of the Union and of Member States when they are implementing Union law and does so for all rights guaranteed by Union law.” |
Headnote:
Detention conditions in Greece contrary to Article 3 of the Convention; Lack of effective review of the lawfulness of detention in violation of Article 5 § 4 of the Convention.
Facts:
The applicants are nationals of Indonesia (first) and Georgia (second) who were arrested in August 2010 and detained pending removal for being in Greece without a valid residence permit. Their asylum applications and appeals against detention were rejected. In December 2010, the second applicant’s release from detention under the sub-directorate of the Aliens Police in Thessaloniki was ordered by a Greek court. In February 2011 the first applicant was released on expiration of the six-month time limit, having spent four months in Thessaloniki (Kordelio) police custody and then two months in the detention center of Petrou Ralli. Both complained to the ECtHR that their detention conditions were contrary to Article 3 (prohibition of inhuman or degrading treatment) ECHR and that their detention was unlawful and failed to allow for effective review, under Article 5(1) (right to liberty) and 5(4) (right to a speedy decision on the lawfulness of detention) ECHR.
Decision & reasoning:
On the basis of previous judgments of the ECtHR concerning these detention facilities at a similar time, and given the corroboration of the applicants’ accounts with reports of the Committee for the Prevention of Torture, Amnesty International and UNHCR, the ECtHR found a violation of the applicants’ rights under Article 3.
The lack of facilities for personal hygiene, the lack of privacy in cells, and the three square metres of personal space were especially noted with regard to the first applicant. Regarding the second applicant, the ECtHR approved reports of inadequate recreation provision, overcrowding, and the lack of food.
Regarding the lawfulness of detention, the ECtHR concluded that, due to the failure of the Greek authorities to make the necessary arrangements with the Indonesian authorities for the issuance of travel documents, Greece had fallen short of due diligence and had therefore violated Article 5(1)(f). The ECtHR however ruled that the second applicant’s rights under the same article were not violated, since contact had been diligently made with the Georgian authorities, which justified the duration of detention.
The ECtHR finally found for both applicants a violation Article 5(4), concerning the lack of effective review of the lawfulness of detention. The ECtHR noted that the applicants’ detention took place before the entry into force of an amendment to Greek law explicitly providing for the review of detention legality. On the basis of previous judgments concerning detention prior to this amendment, the ECtHR found that the judicial authorities had an inadequate power to review detention, restricted as they were to reviewing solely on the grounds of risk of flight and danger to public order.
Outcome:
Violation of Article 3 (degrading treatment) – in respect of both applicants, on account of their conditions of detention
Violation of Article 5 § 1 – as regards Ms Herman
No violation of Article 5 § 1 – as regards Mr Serazadishvili
Violation of Article 5 § 4 – in respect of both applicants
Just satisfaction: EUR 8,000 each to Ms Herman and Mr Serazadishvili (non-pecuniary damage), and EUR 2,000 to both applicants jointly (costs and expenses)
Relevant International and European Legislation:
Cited Cases:
| Cited Cases |
| ECtHR - S.D. v Greece (Application no. 53541/07) |
| ECtHR - Tabesh v. Greece, Application No. 8256/07 |
| ECtHR - Kudla v Poland [GC], Application No. 30210/96 |
| ECtHR - Baranowski v Poland, Application No. 28358/95 |
| ECtHR - Dougoz v. Greece, Application No. 40907/98 |
| ECtHR - Riad and Idiab v. Belgium, Application Nos. 29787/03 and 29810/03 |
| ECtHR - Labita v. Italy [GC], Application No. 26772/95 |
| ECtHR - A.A. v. Greece, Application No. 12186/08 |
| ECtHR - Van der Ven v. the Netherlands, Application No. 50901/99 |
| ECtHR - Ramirez Sanchez v. France [GC], Application No. 59450/00 |
| ECtHR - UK v. Greece, Application No. 2237/08 |
| ECtHR - Horshill v. Greece, Application No. 70427/11 |
| ECtHR - Bygylashvili v. Greece, Application No. 58164/10 |
| ECtHR - C.D. and Others v. Greece, Application Nos. 33441/10, 33468/10 and 33476/10 |
| ECtHR - Saadi v. United Kingdom, no. 13229/03, 29 January 2008 |
| ECtHR - Gebremedhin (Gaberamadhien) v France, Application No. 25389/05 |
| ECtHR - Chkhartishvili v. Greece, Application No.22910/10, UP |
| ECtHR - Samaras and others v. Greece, Application No.11463/09, UP |
| ECtHR - Aleksandr Makarov v. Russia, Application No. 15217/07, UP |
Follower Cases:
Other sources:
The European Commission’s for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) report on its visit to police stations and detention centres for foreigners in Greece in 2008
CPT report on its visit from 17 till 29 September 2009 to the police station or detention centres for foreigners in Greece
Amnesty International Report 2010,«Irregular migrants and asylum seekers are routinely detained in substandard detention conditions in Greece»
UNHCR Report on Greece, November2010