ECtHR - Aarabi v. Greece, Application no. 39766/09, 2 April 2015

Facts:

The case relates to a Palestinian child who had grown up in an UNWRA camp in Lebanon and had later fled to Greece by boat where he was subsequently arrested and detained with a view to his expulsion for irregular entry into Greece.

Notwithstanding that the claimant was under 18 and had lodged an asylum application, he was transferred to Thessaloniki and later placed in a detention centre at the Greek-Turkish border.

Following on from legal representation highlighting that the applicant had been transferred, unaccompanied, to the north of Greece, that the detention conditions violated Article 3 of the ECHR and that no attention had been paid to the applicant’s request for asylum, the applicant was later released and placed in NGO accommodation.

Decision & reasoning:

With regards to the admissibility of the case, in which the Greek Government claimed that the applicant had not exhausted all domestic remedies, the Court noted that as it appears from his file, the applicant did not submit any appeal against his expulsion and his detention.

Moreover, the Court took note of the fact that article 76 para 4 of the law 3386/2005 did not grant judges the power to examine the legality of the dismissal, which was, according to the Greek law, the legal basis for detention. The fact remains that the competent judicial body could examine the decision of detention on the grounds of risk of absconding or of danger to public order.

 Accordingly, from his detention pending deportation, the applicant could have challenged the legality of his detention citing the lack of risk of absconding if released and / or that he did not constitute a danger to public order.

Additionally, from 28 July 2009 the applicant was formally represented by a lawyer; she lodged a report to the Ombudsman and the United Nations High Commission for Refugees. She could have also been able to challenge the lawfulness of his detention judicially.

As for the period before and during detention on the island of Chios, the Court noted that, as also admitted by the applicant; a lawyer from the prefecture of Chios visited the detention center in Mersinidi to offer detainees free legal advice on the asylum procedure twice a week. He could have contacted her in order to challenge the legality of his detention before theCourt.

Concerningthe minor age of the applicant during his arrest and whether the authorities could reasonably be aware of this and act accordingly, the Court found that they acted in good faith when dealing with this question, as evidenced from the following facts:

On the one hand, apart from the applicant’s name and age, in the report he signed also appear the names of other individualswho were declared minors to the authorities and registered as such. The Court could not a find a particular reason for the applicant not to be registered as a minor if he had himself stated this fact to the competent authorities.

On the other hand, the Court took note of the immediate reaction of the authorities to transfer the applicant to an accommodation for minors once they were informed of the applicant’s real age. Therefore, the Court examined the applicant’s complaints on his detention conditions as complaints raised by an adult at the time of the events, namely until 30 July 2009.

Regarding the conditions in detention in the police headquarters of Thessalonica and the police station of Agios Athanassios in Thessalonica, the Court noted that the applicant was detained in the local police for a duration of two days. In addition, the applicant did not put forward specific arguments concerning his particular situation in the above mentioned police station that could lead to the conclusion that the conditions of his detention undermined his right to dignity. The same can be observed for the detention centre in Tychero and the island of Chios, where he was detained for three and two days respectively.

On the issue of overcrowding in the centre of Mersinidi raised by the applicant, the Court also noted that the Government recognized that the centre of Mersinidi had exceeded its accommodation capacity during the period in dispute. At the same time, it does not appear from the file that the applicant individually had less than 3 m2 of personal space in his cell, which may be sufficient to establish a violation of article 3 of the Convention (Ananyev and others v. Russia (Application nos 42525/07 and 60800/08). Furthermore, the Court considered that the decision of the domestic authorities to transfer on 26 July 2009, a number of people including the applicant, to a detention centre in northern Greece demonstrated their intention to improve rapidly the material conditions of detention to which the applicant was subjected.

Finally, the Court took note of the report of the Special Rapporteur of the United Nations on torture and other cruel, inhuman or degrading treatment during his visit to Greece in October 2010 which stated that conditions at the detention centre of Mersinidi were adequate, in respect of article 3 of the Convention.

Outcome:

The Court concluded that there has been no violation of article 3 of the Convention regarding the applicant's detention conditions in local police stations and detention centres in which he was held pending deportation.

On the complaint based on article 5 para 1 and 4, the Court noted that the applicant did not exhaust domestic remedies and therefore dismissed the complaint  as manifestly unfounded pursuant to article 35 para 3(a) and 4 of the Convention.

As regards to the applicant’s complaint of  deficiencies in the examination of his asylum application and his exposure to inhuman treatment if  expelled to Turkey, the Court rejects this part of the complaint under articles 3 and 13 of the Convention as manifestly ill-founded pursuant to article 35 para 3(a) and 4 of the Convention.

Observations/comments:

The Court made reference to reports of International organizations describing the detention conditions in Greece.

In particular, as far as the detention centres where the applicant was held, focus was paid to the findings of the Committee for the Prevention of Torture (CPT) and the reports of the Special Reporter of the United Nations’ visits to Greece.

According to the CPT’s report on Greece from 17 to 29 September 2009, the cell in the building of the Port Authority of Chios (4, 6 m²) was adequate for detaining individuals for short period of time, as in the present case.

The UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment, Manfred Nowak, in his statement from his visit in Greece (10-20 October 2010) noted that the detention conditions of Mersinidi could be described as adequate.

Other sources:

European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment

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 17 to 29 September 2009

Reportto the Government of Greeceon the visit to Greece carried out by the European Committeefor the Prevention of Torture and Inhumanor Degrading Treatment or Punishment (CPT)from 19 to 27 January 2011

European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT)Public statement concerning Greece

Amnesty International’ report “Greece: Irregular Migrants and Asylum-Seekers routinely detained in substandard conditions”,July 2010

Report submitted by the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Manfred Nowak Mission to Greece, 4 March 2011

UN Special Rapporteur on Tortureand other cruel, inhuman or degrading treatment or punishment, Manfred Nowak Mission to Greece, 10-20 October 2010