ECtHR- A.A. v. Greece, Application no. 12186/08, 22 July 2010
| Country of applicant: | Palestinian Territory |
| Court name: | European Court of Human Rights First Chamber |
| Date of decision: | 22-07-2010 |
| Citation: | ECtHR- A.A. v. Greece, Application no. 12186/08, 22 July 2010 |
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.” |
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Inhuman or degrading treatment or punishment
Description
A form of serious harm for the purposes of the granting of subsidiary protection. The Trial Chamber of the International Criminal Tribunal for the Former Yugoslavia in Celibici defined cruel or inhuman treatment as ‘an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, that causes serious mental or physical suffering or injury or constitutes a serious attack on human dignity.’ “Ill-treatment means all forms of cruel, inhuman or degrading treatment or punishment, including corporal punishment, which deprives the individual of its physical and mental integrity." |
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Refugee Status
Description
The recognition by a Member State of a third-country national or stateless person as a refugee. |
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Material reception conditions
Description
“Reception conditions that include housing, food and clothing, provided in kind, or as financial allowances or in vouchers, and a daily expenses allowance.” |
Headnote:
The European Court of Human Rights held that there was a violation of Article 3 of the Convention with regards to the applicant’s living conditions in the detention centre of Samos and the authorities’ lack of diligence to provide him with the appropriate medical assistance. Furthermore, it found a violation of Article 5 para 1 and 4 regarding the lawfulness of his detention and his right to liberty.
Facts:
The applicant, a Palestinian national, entered the Greek territorial waters after fleeing the refugee camp he had been living in Lebanon and was arrested by the maritime police while his boat was sinking. He was transferred to the island of Samos, where he expressed his will to apply for asylum, which was not registered by the authorities. On the same day, the Police authorities of Samos ordered his detention. Subsequently, the prosecutor of Samos ordered his return to his country of origin. After the refusal of the authorities to register his demand for asylum, he submitted a new asylum application, which was registered this time. Subsequently, the decision of return of the applicant was suspended until the adoption of a decision on his demand for asylum. He was later released and his application was rejected due to lack of proof of risk of persecution on the grounds of religion, nationality or political opinion in his country of origin.
Invoking Article 3, the applicant complained about the ill-treatment by the maritime police during his arrest as well as about the conditions at the Samos detention centre. Furthermore, he complained under Article about the lack of information on the possibility of appealing and the lack of assistance of a lawyer or interpreter. He also complained about the lawfulness of his detention under the same article.
Decision & reasoning:
Turning to the complaint under Article 3 about the conditions of the detention centre in Samos where he was detained for three months, the Court noted that his allegations corresponded to reports of international and Greek organisations. More specifically, the Commission, the LIBE Committee, UNCHR Greece and ProAsyl confirmed the overcrowding, the poor hygiene conditions, the lack of infrastructure for leisure or meals and the inappropriateness of sanitary installations [58-60]. Therefore, the Court considered the applicant’s detention conditions in Samos combined with the duration of three months as treatment contrary to Article 3 [62]. As to the personal treatment of the applicant, the Court, taking into account the general situation of the applicant’s health and the living conditions in the detention centre of Samos, considered that the delays of the authorities to react to the demands of the applicant for a doctor had consequences up to the level of severity required by Article 3 of the Convention [64]. Therefore, it found a violation of this provision because of the living conditions in the detention centre and the authorities’ lack of diligence to provide him with the appropriate medical assistance [65].
With regards to the complaint under Article 5 para 4, the Court underlined that the domestic law did not provide for the examination of the lawfulness of the detention of the applicant, being limited to the examination of the detention on the grounds of risk of absconding or of danger to public order [73]. Concerning the request for suspension, the Court highlighted that the applicant should benefit from a lawyer who, provided with the power of attorney duly certified by the authorities, had to go to Syros and file the objections of the applicant. In view of the present circumstances, the living conditions and the organisation in the detention centre of Samos, the efficacy of this measure was only theoretical [78]. Therefore, the Court concluded that there had been a violation of Article 5 para 4.
As to the complaint under Article 5 para 1 (f), the Court noted that the applicant remained in detention despite the fact that the procedure of his return was suspended. Not being able to be deported until the examination of his claim for asylum, his detention was deprived of legal basis in domestic law. As the Court underlined, the applicant was released tardily on the sole ground that the maximum duration of his detention was reached [92]. In the absence of other serious reasons justifying the extension of detention, the Court considered that the period of detention of the applicant after the registration of his asylum application was not necessary for the pursued purpose [93]. Therefore, it concluded that the detention of the applicant was not legal in the sense of Article 5 para 1 (f) of the Convention and there was a violation of this provision [94].
However, it rejected the applicant’s complaint under Article 5 para 2 as inadmissible, in compliance with Article 35 §§ 3 and 4 of the Convention [99].
Outcome:
Violation of Article 3
Violation of Article 5 para 1 and 4
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| ECtHR - S.D. v Greece (Application no. 53541/07) |
| ECtHR - Amuur v. France, Application No. 19776/92 |
| 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 - Winterwerp v. the Netherlands, Application No. 6301/73 |
| ECtHR - Witold Litwa v. Poland, Application No. 26629/95 |
| ECtHR - Dougoz v. Greece, Application No. 40907/98 |
| ECtHR - Riad and Idiab v. Belgium, Application Nos. 29787/03 and 29810/03 |
| ECtHR - Van der Ven v. the Netherlands, Application No. 50901/99 |
| ECtHR - Ramirez Sanchez v. France [GC], Application No. 59450/00 |
| ECtHR - Fressoz Roire v. France [GC], Application No. 29183/95 |
| ECtHR - Dalia v. France, Application No. 26102/95 |
| ECtHR - Mahdid and Haddar v. Austria, Application No. 74762/01 |
| ECtHR - Tsivis v. Greece, Application No. 11553/05 |
| ECtHR - Vaden v. Greece, Application No. 35115/03 |
| ECtHR - Saadi v. United Kingdom, no. 13229/03, 29 January 2008 |
Follower Cases:
Other sources:
ProAsyl- Group of Lawyers for the Rights of Refugees and Migrants, Athens, The truth may be bitter, but it must be told, October 2007
Committee on Civil Liberties, Justice and Home Affairs - Report of the delegation of LIBE of the European Parliament on the visit to Greece (Samos and Athens) on 14-15 June 2007, 17 July 2007
European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), Report to the Greek Government on the visit to Greece carried out by the CPT from 4 to 16 April 2013, 16 October 2014
Council of Europe, Resolution 1707(2010) Of The Parliamentary Assembly Of The Council Of Europe, 28 January 2010