ECtHR- S.D. v. Greece, Application no. 53541/07, 11 September 2009
| Country of applicant: | Turkey |
| Court name: | European Court of Human Rights First Chamber |
| Date of decision: | 11-09-2009 |
| Citation: | ECtHR- S.D. v. Greece, Application no. 53541/07, 11 September 2009 |
Keywords:
| Keywords |
|
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." |
|
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.” |
|
Right to remain pending a decision (Suspensive effect)
Description
According to Asylum Procedures Directive, Article 7 "Applicants shall be allowed to remain in the Member State, for the sole purpose of the procedure, until the determining authority has made a decision in accordance with the procedures at first instance set out in Chapter III. This right to remain shall not constitute an entitlement to a residence permit. Member States can make an exception only where, in accordance with Articles 32 and 34, a subsequent application will not be further examined or where they will surrender or extradite, as appropriate, a person either to another Member State pursuant to obligations in accordance with a European arrest warrant or otherwise, or to a third country, or to international criminal courts or tribunals." Art 39 APD requires applicants for asylum to have the right to an effective remedy before a court or tribunal, against a number of listed decisions. Member States must, where appropriate, provide for rules in accordance with their international obligations dealing with the question of whether the remedy shall have the effect of allowing applicants to remain in the Member State concerned pending its outcome. |
|
Well-founded fear
Description
One of the central elements of the refugee definition under Article 1A ofthe1951 Refugee Convention is a “well-founded fear of persecution”: "Since fear is subjective, the definition involves a subjective element in the person applying for recognition as a refugee. Determination of refugee status will therefore primarily require an evaluation of the applicant's statements rather than a judgement on the situation prevailing in his country of origin. To the element of fear--a state of mind and a subjective condition--is added the qualification ‘well-founded’. This implies that it is not only the frame of mind of the person concerned that determines his refugee status, but that this frame of mind must be supported by an objective situation. The term ‘well-founded fear’ therefore contains a subjective and an objective element, and in determining whether well-founded fear exists, both elements must be taken into consideration." |
|
Refugee Status
Description
The recognition by a Member State of a third-country national or stateless person as a refugee. |
|
Political Opinion
Description
One of the grounds of persecution specified in the refugee definition per Article 1A ofthe1951 Refugee Convention. According to the Qualification Directive the concept of political opinion includes holding an opinion, thought or belief on a matter related to potential actors of persecution and to their policies or methods, whether or not that opinion, thought or belief has been acted upon by the applicant. |
|
Real risk
Description
In order to be eligible for subsidiary protection, a third country national or stateless person must demonstrate that if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, s/he would face a real risk of serious harm as defined in QD Art. 15 and that s/he is unable, or owing to such risk, unwilling to avail her/himself of the protection of that country. The fact that an applicant has already been subject to persecution or serious harm or to direct threats of such persecution or such harm, is a serious indication of the applicant's well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated. |
|
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 had been a violation of Article 3 with regards to the applicant’s detention conditions in Soufli and Attiki (Petrou Rali). It further found a violation of Article 5 §§ 1 and 4 due to the unlawful detention of the applicant and the lack of remedies to challenge it.
Facts:
The applicant, a Turkish national, was arrested twice and was tortured by the Turkish authorities because of his political opinions and journalistic activities. After being released under certain conditions, he left Turkey to avoid new arrests. He entered Greece in 2007 in an irregular manner, was subsequently arrested and had allegedly requested asylum, without his request being registered by the authorities. According to the Greek authorities, he had already submitted an asylum application in 1990, which had been rejected. He subsequently applied unsuccessfully for asylum in Germany but stayed there for four years before returning back to Turkey with forged documents.
Upon his (second) arrival to Greece, he was accused of using forged papers and entering the country illegally. Despite his acquittal, he was arrested again by the police and deportation proceedings were initiated. He was placed in the detention centre of Soufli, pending the decision of deportation, which was not finally taken because the authorities had registered in the meantime his asylum application. He was again arrested on the basis of a new decision of deportation and reiterated his request for asylum. He subsequently appealed unsuccessfully against the decision of deportation. His objections against his detention were also rejected by the President of Administrative Court. Subsequently, he was transferred to the detention centre of Attiki. At a later stage, the Administrative Court accepted his objections and ordered his release given that his asylum application was still pending.
Decision & reasoning:
Turning first to the complaint under Article 3 of the Convention, the Court highlighted that despite the fact that the applicant was sharing a relatively clean cell with hot water during his detention in Soufli, the fact remained that he stayed two months in barracks without the possibility of going outside, telephoning and without being able to have clean blankets and sheets and sufficient hygiene products. Likewise, in the centre in Attiki, the applicant was confined to his cell, without possibility of outdoor exercise and in conditions described as inacceptable by the CPT [51]. Adding the personal situation of torture of the applicant to this, which left important clinical and psychological scars on him, it found a violation of Article 3 of the Convention [53-54].
With regards to the applicant’s complaint under Article 5 para 1, the Court noted that the authorities did not take into consideration the applicant’s quality as an asylum seeker. The latter, not being able to be deported until the delivery of a decision on his claim, his detention was deprived of a legal basis under domestic law, at least as of May 17, 2007, when his application was formally registered. As the Court highlighted, the applicant was released tardily, when the administrative court accepted his objections [65]. Therefore, it found a violation of Article 5 para 1 (f) of the Convention [67].
Concerning the alleged violation of Article 5 para 4, the Court observed that the Greek legal system did not offer the applicant any possibility to challenge the lawfulness of his detention and thereby concluded a violation of this provision [76-77].
Conversely, the Court rejected his complaint of violation of Article 3 with regards to the administration’s decision to deport him without examining his risks of torture in Turkey, as inadmissible in compliance with Article 35 §§ 1 and 4 of the Convention.
Outcome:
Violation of Article 3 regarding detention conditions in Soufli and Attiki(Petrou Ralli)
Violation of Article 5 para 1 (f) and 4
Relevant International and European Legislation:
Cited National Legislation:
| Cited National Legislation |
| Greece - Law 3386 of 2005 on the entrance |
| Greece-Presidential Decree 61/1999 that regulates the situation of political refugees and asylum seekers |
Cited Cases:
| Cited Cases |
| ECtHR - Raninen v Finland (Application no. 20972/92) |
| ECtHR - Tyrer v UK (Application no. 5856/72) |
| ECtHR - Kudla v Poland [GC], Application No. 30210/96 |
| ECtHR - Baranowski v Poland, Application No. 28358/95 |
| ECtHR - Peers v. Greece, Application No. 28524/95 |
| ECtHR - Riad and Idiab v. Belgium, Application Nos. 29787/03 and 29810/03 |
| ECtHR - Selmouni v. France [GC], Application No. 25803/94 |
| ECtHR - Price v. United Kingdom, Application No. 33394/96 |
| ECtHR - Saadi v. United Kingdom, no. 13229/03, 29 January 2008 |
| Kalachnikov v. Russia (no. 47095/99) |
| ECtHR- Smith and Grady v. the United Kingdom, Application nos. 33985/96 and 33986/96 |
| ECtHR- Albert et Le Compte v. Belgium, Application no. 7299/75 7496/76 |
| ECtHR- Ireland v. United Kingdom, Application no. 5310/71 |
| ECtHR- Shamsa v Poland, Application no. 45355/99 |
Follower Cases:
Other sources:
Greek Ombudsman, Report of 29 October 2007 following his visit to the police post of Soufli
United Nations High Commissioner for Refugees, Letter of the Greek Office of UNHCR, 12 December 2008
European Committee 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 CPT from 20 to 27 February 2007, 8 February 2008
Council of Europe Commissioner for Human Rights’ report following his visit to Greece from 8 to 10 December 2008, 19 February 2009