ECtHR - B.M. v. Greece, Application No. 53608/11
| Country of applicant: | Iran |
| Court name: | First Section; European Court of Human Rights |
| Date of decision: | 19-12-2013 |
| Citation: | Application No. 53608/11 |
Keywords:
| Keywords |
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Effective access to procedures
Description
Effective access to legal and administrative procedures undertaken by UNHCR and/or States in accordance with the Asylum Procedures Directive to determine whether an individual should be recognized as a refugee in accordance with national and international law. |
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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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Procedural guarantees
Description
“In the interests of a correct recognition of those persons in need of protection … every applicant should, subject to certain exceptions, have an effective access to procedures, the opportunity to cooperate and properly communicate with the competent authorities so as to present the relevant facts of his/her case and sufficient procedural guarantees to pursue his/her case throughout all stages of the procedure.” Procedures should satisfy certain basic requirements, which reflect the special situation of the applicant for refugee status, and which would ensure that the applicant is provided with certain essential guarantees. Some of these basic requirements are set out in on p.31 of the UNHCR Handbook as well as the APD Arts. 10, 17 and 34 and include: a personal interview, the right to legal assistance and representation, specific guarantees for vulnerable persons and regarding the examination procedure, and those guarantees set out in the Asylum Procedures Directive. |
Headnote:
Greek detention conditions and lack of effective review violate Iranian asylum seeker’s Article 3 and Article 13 rights, but complaint against removal declared inadmissible and detention ruled to be lawful and non-arbitrary.
Facts:
The Applicant, an Iranian national, was a militant journalist in Iran who fled after being arrested and tortured for anti-establishment protests. Arriving in Greece via Turkey, his asylum claim was dismissed and he was detained pending deportation to Turkey in a police station and various detention centres.
He filed objections to his detention conditions, alleging lack of hygiene and overcrowding, but these were rejected. He initiated an appeal against the asylum refusal while in detention, and was then released due to the expiration of the maximum detention time period under Greek law. The Applicant failed to appear at the appeal hearing, and the appeal was therefore discontinued.
Before the ECtHR, the Applicant claimed one Article 3 violation on account of his detention conditions and the lack of effective means of challenging those conditions. Another Article 3 violation, together with Article 13, was submitted due to the risk of his removal to Turkey. Finally, he claimed the nature of his arrest and detention was incompatible with Article 5(1).
Decision & reasoning:
The Court relied on previous cases against Greece in which it concluded that the conditions in the three different centres where the Applicant had been detained amounted to a violation of Article 3. In addition, reports by the CPT, UNHCR, the Greek Human Rights Commission and the Greek Ombudsman concerning the centre where the Applicant spent most of his time in detention showed that nothing had changed in that centre since the Court’s last judgments. As the Greek Government had not provided any facts or arguments to counter these conclusions, the Court found a violation of Article 3 on account of the Applicant’s detention conditions.
The Court also found a violation of Article 13 in connection with Article 3 because the Applicant did not have an effective remedy at his disposal to challenge his detention conditions.
Concerning the Applicant’s second complaint under Articles 3 and 13 about the risk of removal to Turkey, the Court considered it inadmissible due to non-exhaustion of domestic remedies.
As regards the Applicant’s complaint under Article 5(1)(f), the Court recalled that this provision only requires that an expulsion procedure is in process with respect to the person detained and that, at the same time, only the active process of such a procedure can justify a deprivation of liberty. The Court concluded that the Applicant’s detention was not arbitrary as it was in compliance with Greek law and it did not exceed the time limits established for the expulsion of a foreign national.
Outcome:
Violation of Article 3 for detention conditions; Violation of Article 3 taken together with Article 13 for lack of effective means to challenge conditions; Complaint concerning risk of removal to Turkey inadmissible; No violation of Article 5. 8,000 Euros for non-pecuniary loss awarded.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| ECtHR - Conka v Belgium (Application no. 51564/99) |
| ECtHR - S.D. v Greece (Application no. 53541/07) |
| ECtHR - Tabesh v. Greece, Application No. 8256/07 |
| ECtHR - Kudla v Poland [GC], Application No. 30210/96 |
| ECtHR - Chalal v. the United Kingdom, Application No. 1948/04 |
| ECtHR - A.F. v. Greece, Application No. 53709/11 |
| ECtHR - Van der Ven v. the Netherlands, Application No. 50901/99 |
| ECtHR - Ramirez Sanchez v. France [GC], Application No. 59450/00 |
| ECtHR - Siasios et al. v. Greece, Application No. 30303/07 |
| ECtHR - Vafiadis v. Greece, Application No. 24981/07 |
| ECtHR - Shuvaev v. Greece, Application No. 8249/07 |
| ECtHR - Efremidze v. Greece, Application No. 33225/08 |
| ECtHR - UK v. Greece, Application No. 2237/08 |
| ECtHR - McGlinchey and Others v. the United Kingdom, Application No. 50390/99 |
| ECtHR - Dessalles v. France, Application No. 50764/99 |
| ECtHR - Takush c. Greece, Application No. 2853/09 |
| ECtHR - Horshill v. Greece, Application No. 70427/11 |
Follower Cases:
Other sources:
- European Committee for the Prevention of Torture and Inhuman or Degrading Treatment (CPT): report of 17 November 2010, drawn up following a visit from 17 to 29 September 2009, report of 10 January 2012, drawn up following a visit from 19 to 27 January 2011;
- Greece High Commissioner for Refugees United Nations reported findings from a visit to border post Soufli, carried out from 29 September to 1 st October 2010;
- 18 to 20 March 2011 National Commission for Human Rights and the Ombudsman visits to the detention centers of Evros and Rodopi departments to examine the conditions of detention of foreigners and the application of the legislation on asylum;
- ProAsyl Report April 2012 ‘Walls of Shame - The detention centers of Evros’