ECtHR – E.A. v. Greece, Application No. 74308/10, 30 July 2015

Facts:

The applicant, E.A., an Iranian national, was a state agent in Iran. Opponent to the regime, he was arrested, detained and subjected to torture. He was then sentenced to jail. His term in jail finished, he decided to leave Iran. He arrived in Greece on 2 August 2010, where he maintains he applied for political asylum, which the authorities did not register.

On 4 August, the applicant appeared before the Alexandroupoli criminal court prosecutor, who decided to expel him back to Iran – which was however not done. On 5 August, the Alexandroupoli police chief decided to place the applicant in temporary detention. On 8 August, he ordered his expulsion for breach of Article 83 of Law no. 3386/2005, as well as his continued detention to prevent him from fleeing.

On 12 August, the applicant was transferred to the Venna border police premises. On that day, he reiterated, through the Greek Council for Refugees, his wish for his asylum application to be registered, which the Council sent again on 23 and on 25 August.

According to the applicant, on 21 August policemen visited him and made him sign a document, the content of which he did not understand, and told him that he would be freed in a few days. But on 25 August, the applicant was transferred to the Soufli border police premises, where his representatives visited him and told him that the document which he had signed expressed his wish not to submit his asylum application.

On 26 August, he submitted a new written asylum request, which the authorities registered. On the same day, he asked the Social Security ministry to find him a housing facility in accordance with Decree no. 220/2007.

On 3 September, following his objections against his detention, the Alexandroupoli administrative court held that his detention was lawful and rejected his objections.

On 8 October, the administrative court, examining new objections from the applicant against his detention, decided to lift his detention and gave him 30 days to leave Greece.

On 2 November, the Alexandroupoli police director rejected his asylum application and ordered the execution of the expulsion decision within sixty days.

The applicant then left Greece for Sweden, where he was granted refugee status.

He lodged an application with the ECtHR on 9 December 2010, alleging violations of his rights under Articles 3, 3 and 13 combined, 5(1), 5(4), and 5(2) ECHR.

Decision & reasoning:

Article 3 ECHR concerning the conditions of detention

Given its findings in previous cases against Greece involving detention conditions of foreigners in the Soufli and Venna detention centres where the applicant was detained for two months, and in which it had found violations of Article 3, in particular B.M. v. Greece (2013) and F.H. v. Greece (2014) which concerned roughly the same period as in this case, the Court found that the applicant had been detained in conditions of overpopulation and appalling hygiene, incompatible with Article 3, and which constituted degrading treatment. The Court therefore held that there had been a violation of Article 3 concerning the applicant’s conditions of detention.

Articles 3 and 13 ECHR concerning the allegation of a lack of effective remedy against the conditions of detention

The Court found a violation of Article 13, combined with Article 3, for three reasons. First, Law no. 3386/2005, put forward by the Government in its defence, did not enable the Greek courts to examine the conditions in foreigners’ detention centres, nor did it enable them to order release in light of these conditions. Second, the Court noted that in its decision of 3 September 2010, the administrative court had not undertaken any specific analysis of the conditions of detention of the applicant. Third, the Court also noted that in its decision of 8 October 2010, the administrative court, despite its decision to release the applicant, had not responded to his arguments concerning his conditions of detention, and it is not clear either from the case whether the inappropriate nature of the detention in the eyes of the judge had been only for future detention, or included past detention of the applicant.

Considering that the notion of an effective remedy implies an in-depth and effective investigations on the part of the State, the Court held that the remedy used by the applicant, based on Article 76 of Law no. 3386/2005, had not constituted an effective one for the treatment endured, and therefore found a violation of Article 13 combined with Article 3.

Articles 3 and 13 ECHR concerning the allegation of failings of the asylum procedure and the risk of being sent back to Turkey and then Iran

With regards to the second part of this claim – that the applicant had risked being expelled to Turkey and then Iran – the Court noted that he left Greece for Sweden before being notified of the decision on his asylum application. The Court thus held that the applicant was not a victim in this sense, and rejected this part of the claim.

Concerning the first part of the claim about the asylum procedure, the Court first established that the applicant could, in a defendable way, argue that his return to Iran would breach Article 3, in light of the fact that he had produced copies of articles written by him and explained in detail the reasons of his departure from Iran, and that the Swedish authorities had acknowledged the risk he faced in Iran by granting him refugee status.

With regards to Article 13, the Court noted that in M.S.S. v. Belgium and Greece, it had already found failings in the Greek asylum system, and in particular relating to access to the procedure of examination of asylum applications, which was being challenged here. The Court then observed that the facts here confirmed such failings. Indeed, despite having been informed on multiple occasions of the wish of the applicant to submit an asylum application, the authorities had not registered this request before 26 August 2010, and then rejected it in the first trial through a stereotypically written decision. Finally, the Court remarked that Decree no. 114/2010, put forward by the Government as it provides for a remedy, was introduced after the applicant had left Greece.

The Court concluded that the applicant could not be blamed for not having exhausted domestic remedies, rejecting the argument of the Government of non-exhaustion. The Court therefore held that Article 13 combined with Article 3 had been violated, by virtue of the failings of the Greek asylum system.

Article 5(1) ECHR concerning the allegation of arbitrary detention

The Court started by considering that the detention of the applicant fell under Article 5(1)(f) as it was meant to prevent him from illegally staying on Greek territory and ensure his potential expulsion.

Regarding the duration of detention, the Court then found that a period of two months was not excessive for the accomplishment of the administrative formalities with a view to expulsion, which moreover justified his deprivation of liberty under Article 5(1)(f).

As for the asylum request, the Court found that while it could suspend the execution of the expulsion decision, it could not do the same for the detention decision.

Finally, having already found a violation of Article 3 with respect to the conditions of detention, the Court did not think it necessary to re-examine these under Article 5(1)(f).

The Court thus found that the detention of the applicant had not been arbitrary and that it could not be considered to have been irregular for the purpose of Article 5(1)(f).

Article 5(4) ECHR concerning the allegation of inefficiency of judicial review of the applicant’s detention

The Court first noted that the wording of Article 76 of Law no. 3386/2005, which provided for the examination of a detention decision, was ambiguous as Article 76(4) did not expressly enable the judge to examine the lawfulness of the expulsion which, under Greek law, constituted the legal motive for the detention.

The Court then remarked that Law no. 3900/2010, which amended Article 76(4) of Law no. 3386/2005 so that it would enable the judge to review the lawfulness of the detention, came into effect on 1 January 2011, in other words after the contentious facts, which happened between August and October 2010.

Finally, as for the facts of the case, the Court noted that in its decision of 3 September 2010, the administrative court had rejected the applicant’s objections regarding his detention without taking into account his asylum application and without examining the conditions of his detention.

The Court concluded that the failings of domestic law at the time concerning judicial review of his detention with a view to expulsion were incompatible with Article 5(4), which had therefore been violated.

Article 5(2) ECHR concerning the applicant’s allegation that he was not informed in a language which he understood of the grounds for his detention and the remedies available against it

In light of its above finding of a violation of Article 5(4), the Court held that it did not need to examine whether there had been a violation of Article 5(2).

Outcome:

Application partially successful. The Court found violations of Articles 3, 3 and 13 combined, and 5(4), but rejected allegations of violations of Articles 5(1) and 5(2).

The Court awarded the applicant EUR 6,500 in respect of non-pecuniary damage, EUR 1,230 for costs and expenses in domestic proceedings, and EUR 615 for costs and expenses in these proceedings.

Observations/comments:

This summary was written by Emily Claire Procter, GDL student at BPP University, London.

Other sources: