ECtHR- A.E. v. Greece ( Application no 46673/10), 27 February 2015

Facts:

The facts of the case relate to an Alevi Kurd who entered Greece from Turkey on 10 September 2009 with false documents (appearing with the name A.C.) due to fear of prosecution in Turkey because of his dissenting political activity. On the same day, he was arrested at the border post of Thermi (Thessaloniki) and referred to the prosecutor at the Criminal Court of Thessaloniki. No criminal prosecution was exercised for his return to Turkey by the Criminal Court of Thessaloniki but the competent officer of the Thessaloniki foreign police ordered his detention for a maximum period of three days, until the delivery of the decision concerning his expulsion. On 11 September 2009 the applicant was interviewed by the police. He allegedly asked for political asylum but his request was not registered by the authorities and nor had he received any information brochure on his rights and possible remedies to challenge the decision of his expulsion.

On 13 September 2009, his retention was ordered for a period of six or twelve months, the latter would be enforced where he refused to cooperate with the authorities or the finalisation of travelling documents from his country of origin was prolonged. One day after, the applicant was transferred to the Police Directorate of Thessaloniki where he lodged orally, with the assistance of his lawyer, an asylum application.

Four days later, he filed an appeal against the decision of his expulsion and on 21 September 2009 his appeal was rejected by the director of the police of Thessaloniki. On 8 October 2009, the applicant entered objections in the administrative court, by virtue of article 76 para 3 of the law 3386/2005 against his detention, invoking his qualification as an asylum seeker and the risk of being tortured because of his political activity in Turkey if expelled to that country. On the same day, his objections were rejected by the president of the administrative court.

On 19 January 2010, during his interview at the Administrative Committee of Refugees, the applicant submitted documents which prove the fragile situation of his health, his dissenting political activity in Turkey and the risk he faces if expelled to that country. His request for asylum was again dismissed. However, the Director of the Aliens Police granted him subsidiary protection under the Article 18 of the Presidential Decree No. 96/2008.

Decision & reasoning:

The Court noted that, unlike the case Efremidze v. Greece (Application no.  33225/08),the applicant was held in the premises of the police Thermi for a very short period, ie for four days, before being transferred to the premises of the executive subcommittee of the Thessaloniki foreign police.In addition, it recalled CPT’s report, published on 30 June 2009, according to which the premises of the border police of Thermi offered generally good conditions of detention [28].Consequently, the Court concluded that the applicant's detention in the above premises cannot be regarded as contrary to Article 3 of the Convention.

Taking cue from Tabesh v. Greece (Application no. 8256/07), the Court reiterated the Amnesty International report of 2010 that reported the overcrowding, the impossibility of recreational activities and the inadequacy of meals offered at the subcommittee of the Thessaloniki foreign police[26]. Moreover, the Court noted that in its public statement in January 2011 for Greece, the CPT noted that despite the promises of the Greek authorities that in future irregular aliens would be placed in detention centres specifically designed for that purpose, the facilities of the police and border guard were receiving an increasing number of foreigners in irregular situation in much worse conditions than those described [27]. In the light of the above, the Court considered that the continuation of the applicant's detention in the premises of the executive subcommittee of Thessaloniki foreign police caused him considerable suffering and amounted to degrading treatment, within the meaning of Article 3 of the Convention.

With regards to the applicant’s complaint under article 5 para 1 of the Convention, the Court noted that in the first place, the applicant’s detention was based on Article 76 of Law no. 3386/2005, serving the purpose of preventing his irregular stay on the Greek territory and ensured the possibility of his expulsion.

The court acknowledged that the applicant’s expulsion was not possible immediately due to administrative procedures, however it recalled that according to article 13 of the Presidential Decree no. 90/2008, the request for asylum from a person already detained had to be examined in priority [22]. With regard to the length of detention, the Court recalled that in the context of Article 5 § 1 f), only the conduct of the eviction proceedings justifies the deprivation of liberty under this provision and that if the procedure is not conducted with due diligence, the detention ceases to be justified. Taking into account that the Government did not present any specific reasons for delaying the examination of the asylum application, the Court considered the amount of time (4 months) for the examination of the case, excessive. In view of the above, the Court considered that the domestic authorities did not act with due diligence to achieve the purpose of the applicant's expulsion. There has therefore been a violation of Article 5 para 1 f) of the Convention.

With regard to the complaints under article 5 para 4, the Court noted that the fourth paragraph of Article 76 of Law No 3386/2005 predicted at the time of the facts that the said judicial body could examine the decision of detention solely on the grounds of risk of absconding or danger to public order. This formulation was imbued with ambiguity since, as drafted, Article 76 § 4 did not grant the administrative judge the power to review the legality of the dismissal which was, according to the Greek law, the legal basis for the detention. The amendment of law no 3900/2010 para 4,giving  power to the judge to review the legality or prolongation of the detention, came into force on 1 January 2011, whereas the disputed facts took place at the end of 2009 beginning of 2010. The Court considered that these shortcomings of domestic law at the time of the facts regarding the effectiveness of the judicial review of detention pending deportation did not allow the applicant to challenge the legality of his dismissal. Therefore, they cannot be reconciled with the requirements of article 5 para 4 of the Convention.

As regards the complaint under Article 2 of the Convention, the Court noted that it did not result from the file that the applicant's life prognosis was engaged during his detention, taking into account that in the beginning of his detention he was transferred to the hospital, where it was certified that he did not suffer from acute heart problems and that he was offered medical treatment.

 As for the other complaints, the Court first noted that on 4 February 2010, the competent administrative authority granted the applicant the benefit of subsidiary international protection and he was then released on the basis of this decision. Accordingly, the Court did not find a present risk of expulsion to Turkey [64]. Therefore, it found the complaints under articles 3 and 13 to be unfounded in accordance with article 35 §§ 3 and 4 of the Convention.

 Concerning the complaint under article 5 para 2 of the Convention, the Court considered that the main complaint of the applicant concerned his incapacity to understand the content of the brochure with his rights and not the incomprehension of the reasons of his arrest. Given its conclusion under Article 5 § 4 of the Convention, it considered that this complaint must be declared admissible but that it was not necessary to decide in the light of Article 5 § 2. 

Outcome:

No violation of article 3 concerning detention in the premises of the border police of Thermi

Violation of article 3 concerning detention in the Sub-Directorate of the Aliens’ Police of Thessaloniki

Violation of article 5 para 1 (f)

Violation of article 5 para 4

No violation of article 2

No violation of article 3§5 in conjunction with article 13

Other sources:

Amnesty International, Greece Irregular Migrants And Asylum-Seekers Routinely Detained In Substandard Conditions, July 2010

European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), Report to the Government of Greece) from 23 to 29 September 2008

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 from 17 to 29 September 2009

European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), Public statement concerning Greece, 15 March 2011