ECtHR- Mahmundi and others v. Greece, 14902/10, 24 October 2012

Facts:

The applicants, five Afghan nationals, were rescued by the Greek maritime police and detained in Pagani detention centre in Lesvos, awaiting for their deportation. The two first applicants were the parents of three minor children while the second applicant was nine months pregnant. The fourth applicant was the mother of two 14 years old twins. On 25 August 2009, the Director General of the Police of Northern Aegean, taking into account the impossibility of deporting the applicants immediately, ordered the suspension of the measure under the condition that the applicants were presented on the 1st and 16th of each month at the police station of their place of residence, mentioned as 22 Solomou street, in Athens, even though the applicants underlined that this address was indicated by the authorities in an arbitrary way. In the extension order, the Director of the police of Lesvos granted them thirty days to leave Greece. They were transferred from Lesvos to Piraeus and due to the lack of place at the homeless centre, they were obliged to live in the open, at the Attiki square in Athens.

The applicants complained of their detention conditions in the detention centre of Pagani and the fact that the Greek law did not provide remedies to question the detention conditions of foreigners subject to expulsion. They also complained of the separation from their children and the impossibility of communicating between them. They further claimed a violation of Articles 3, 8, 13 of the Convention.

Decision & reasoning:

Turning first to the complaints under Article 3, the Court took note of reports of the “Doctors without Borders” and of CPT on detention conditions in Pagani, produced in the same period as the present case, reporting overcrowding, poor hygiene conditions and lack of outdoor activities, conditions that could, according to the CPT, be qualified as inhuman and degrading  [66-67]. The Court also noted that following the outcry of CPT on the living conditions in the centre, the Greek authorities informed the CPT on 26 February 2010 that the centre of Pagani had been closed and that it would be replaced by a more appropriate detention centre [68].

It further highlighted that the duration of the applicants’ detention (18 days according to the Government or 20 days according to the first, third, fourth and fifth applicant and 13 days according to the Government or 15 days according to the second applicant), in the conditions described above was enough to reach the minimum level of severity to qualify for an inhuman and degrading treatment under Article 3. Concerning especially the second applicant, the Court took into account the report of the organisation "Doctors without borders" stating that many pregnant women in their last months were detained in inhuman conditions, in overpopulated cells, without being examined by a doctor, without knowing where they will give birth and what will happen to them and their children. This situation increased their anxiety [70].

According to the Court, the suffering of the first, second and forth applicants was aggravated because of the presence of their minor children in the camp [71].

The children of the forth applicant were placed in a location for minors, although there were allegedly also adults in the same place. They were left in a cell containing only some beds and some dirty mattresses without any particular attention paid to them. The detention conditions of the children of the two first applicants, without access to medical care, without access to outdoor activities or any means allowing them to occupy themselves, were confirmed by many reports on children detention conditions in the centre [72]. Therefore, it concluded that the detention conditions described above amounted to an inhuman treatment in violation of Article 3 [74].

Moreover, given the above considerations, with regards to the issue of exhaustion of domestic remedies, the Court concluded that the State has also failed to fulfil its obligations under Article 13 of the Convention [76].

Turning to the applicants’ complaint under Article 5 para 4, the Court reiterated its findings in S.D. v. Greece, Tabesh v Greece, A.A. v. Greece concerning the deficiencies of the domestic law as to the efficacy of the judicial review of the detention in view of deportation [91]. Therefore, it found a violation of Article 5 para 4 of the Convention [92].

Regarding the alleged violation of Article 5 para 1, the Court ruled that the detention from the date of the suspension decision that lasted 20 or 22 days, was not arbitrary and therefore found no violation of Article 5 para 1 [95].

 As to the alleged violation of Article 8 in conjunction with Article 14 because of the non-registration of the new born of the second applicant at the hospital of Lesvos, the Court noted that the omissions of the Greek authorities to inform respectively the applicants and the late delivery of the certificate are not sufficient to conclude that they infringed their right to family because of their race or nationality. Therefore, it rejected this complaint as inadmissible under Article 35 §§ 3and 4 [101].

Outcome:

Violation of Article 3

Violation of Article 13

Violation of Article 5 para 4

Other sources:

Council of Europe, Resolution 1707(2010) of the Parliamentary Assembly, 28 January 2010

Council of Europe- European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), Report to the Government of Greece on the visit to Greece carried out by the CPT from 23 to 29 September 2008, 30 June 2009

Council of Europe- European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), Report to the Government of Greece on the visit to Greece carried out by the CPT from 17 to 29 September 2009, 17 November 2010

Amnesty International, Greece: Irregular Migrants and Asylum-Seekers routinely detained in Substandard Conditions, July 2010

Doctors without Borders, Migrants in Detention: Lives on Hold, 17 June 2010