ECtHR- AL.K. v. Greece, Application no. 63542/11, 11 March 2015
| Country of applicant: | Iran |
| Court name: | European Court of Human Rights First Chamber |
| Date of decision: | 11-03-2015 |
| Citation: | ECtHR- AL.K. v. Greece, Application no. 63542/11, 11 March 2015 |
Keywords:
| Keywords |
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Delay
Description
Failure to act within a certain period of time: often with regard to undue, unreasonable or unjustifiable delay. According to Article 23 of the Asylum Procedures Directive, Member States must process applications for asylum in an examination procedure in accordance with the basic principles and guarantees of Chapter II of the Asylum Procedures Directive ensuring that such a procedure is concluded as soon as possible, without prejudice to an adequate and complete examination. Where a decision cannot be taken within six months, Member States shall ensure that the applicant concerned is either: (a) informed of the delay; or (b) receives, upon his/her request, information on the time-frame within which the decision on his/her application is to be expected (but such information is not an obligation for the Member State to take a decision within that time-frame.) |
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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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Reception conditions
Description
The full set of measures that Member States grant to asylum seekers in accordance with Directive 2003/9/EC. |
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Access to the labour market
Description
Per Art 26 QD: Member States must authorise beneficiaries of international protection status to engage in employed or self-employed activities subject to rules generally applicable to the profession and to the public service immediately after the status has been granted. In the case of refugee status, Member States must ensure activities such as employment-related education opportunities for adults, vocational training and practical workplace experience are offered under equivalent conditions as nationals. In the case of subsidiary protection the same may be offered under conditions to be decided by the Member States. Per Art. 11 RCD: "Member States shall determine a period of time, starting from the date on which an application for asylum was lodged, during which an applicant shall not have access to the labour market. If a decision at first instance has not been taken within one year of the presentation of an application for asylum and this delay cannot be attributed to the applicant, Member States shall decide the conditions for granting access to the labour market for the applicant." |
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Accommodation centre
Description
Any place used for the collective housing of asylum seekers. |
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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 case examined the allegations of an Iranian national that his detention conditions at the border posts of Feres and Soufli resulted in a violation of Article 3 of the Convention (prohibition of inhuman and degrading treatment). It further examined whether the applicant’s living conditions after his release resulted in degrading treatment in violation of Article 3.
Facts:
The applicant, an Iranian national, entered Greece on 13 November 2010, and was arrested the next day by the police officers of the borders of Feres and then detained pending his expulsion.
On 20 November 2010, the Police director of Alexandroupoli ordered his expulsion and the continuation of his detention for a period not exceeding six months, on the grounds that he risked absconding. On 25 November 2010, he was transferred to Alexandroupoli where he applied for asylum. On 17 January 2011, he unsuccessfully raised objections against his detention before the Administrative Court of Alexandroupoli.On an unspecified date, he was transferred to the border post of Soufli.
On 5 March 2011 his asylum application was rejected by the police direction of Orestiada. He was notified of this decision on 19 April 2011 and appealed against it on 20 April 2011.
He was released on 16 May 2011, two days after the period of six months provided by the law no. 3386/2005. After his release, the applicant lived as a homeless person, under precarious conditions. On 5 December 2011, the authorities renewed his "receipt" for asylum for three months and not six months, despite the fact that he needed a card mentioning the latter duration of validity in order to obtain a tax identification number and a work permit or to be able to find a job.
The applicant complained of his detention conditions in Feres and Soufli border posts and of the situation of absolute destitution in which he found himself after his release. He further denounced the impossibility of an examination of his asylum claim within the legal time limit of three months starting from his detention, constituting violation of article 5 of the Convention.
Decision & reasoning:
Taking cue from CPT’s, UNHCR’s as well as the Greek Ombudsman’s reports on the detention conditions at Soufli and Ferres, the Court observed that the dire situation hadn’t changed since the examination of the cases A.F. v. Greece and B.M. v. Greece. Taking into account that the Greek Government did not present any argument to contradict these findings, the Court concluded that the applicant’s detention in Soufli and Ferres amounted to inhumane and degrading treatment in the sense of Article 3 of the Convention.
With regards to the conditions after release and referring to Tarakhel v. Switzerland (no 29217/12) and M.S.S. v. Belgium and Greece, the Court highlighted the vulnerability of asylum seekers and the lack of essential provisions leading to degrading and humiliating conditions in Greece. Concerning the present case, it concluded that the authorities did not properly take into account the vulnerability of the applicant as an asylum seeker and held them responsible, due to their passivity, for the conditions in which the applicant found himself, living on the street, destitute, without access to sanitation and not having any means for providing for his basic needs. It considered that such living conditions, combined with the prolonged uncertainty in which he stayed and the total lack of prospect of his situation improving, had reached the level of severity required by Article 3 of the Convention.
The Court further noted the difficulty associated with renewing the asylum “receipt” and the lack of practical use of a “pink card” given the lack of accommodation places and hurdles associated with the employment system.
With regards to both Article 5 and 13 the Court held that the applicant had not adhered to the 6 month time limit specified in the Rules of the Court and therefore rejected them in compliance with article 35 §§ 1 et 4 of the Convention.
Outcome:
Violation of Article 3 (inhuman and degrading treatment) – as regards the applicant’s conditions of detention in Soufli and Feres border posts
Violation of Article 3 (degrading treatment) – as regards the applicant’s living conditions after his release from detention.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| ECtHR - Tabesh v. Greece, Application No. 8256/07 |
| ECtHR - Kudla v Poland [GC], Application No. 30210/96 |
| ECtHR - Peers v. Greece, Application No. 28524/95 |
| ECtHR - Riad and Idiab v. Belgium, Application Nos. 29787/03 and 29810/03 |
| ECtHR - M.S.S. v Belgium and Greece [GC], Application No. 30696/09 |
| ECtHR - Ananyev et al. Russia, Application Nos. 42525/07 and 60800/08 |
| ECtHR - A.F. v. Greece, Application No. 53709/11 |
| ECtHR - B.M. v. Greece, Application No. 53608/11 |
| ECtHR - C.D. and Others v. Greece, Application Nos. 33441/10, 33468/10 and 33476/10 |
| ECtHR - R.U. v. Greece, Application No. 2237/08 |
| ECtHR - Rahimi v. Greece, Application No. 8687/08 |
| ECtHR - De los Santos and de la Cruz v. Greece, Applications Nos. 2134/12 and 2161/12 |
| ECtHR - Tarakhel v. Switzerland, Application no. 29217/12 |
| ECtHR - Barjamaj v. Greece, Application No 36657/11 |
| ECtHR – F.H. v Greece, Application No. 78456/11 |
| Kalachnikov v. Russia (no. 47095/99) |
| Varnava and others v. Turkey [GC], nos16064/90, 16065/90, 16066/90, 16068/90, 16069/90, 16070/90, 16071/90, 16072/90 and 16073/90 |
Follower Cases:
| Follower Cases |
| ECtHR – A.E.A. v Greece, Application no. 39034/12, 15 March 2018 |
Other sources:
European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT),Report to the Government of Greeceon the visit to Greece carried out by the CPT from 19 to 21 January 2011, 10 January 2012