ECtHR – F.H. v Greece, Application No. 78456/11

Facts:

The applicant, F.H., is an Iranian national who was born in 1987. On 16 December 2010, fleeing Iran where he feared for his life after converting to Christianity, F.H. arrived in Greece and was arrested by the police. After the applicant withdrew an application for asylum, the public prosecutor decided not to bring proceedings against him so that he could be returned to Iran via Turkey.

F.H. was held at the Feres detention centre until a removal decision was issued. He was then transferred to the Venna detention centre, where, following a visit by the Greek Council for Refugees, he expressed his wish to apply for asylum. Though his application was registered, he was transferred to another detention centre, but the removal procedure was suspended. F.H. applied for accommodation as an asylum seeker.

Following the Office of the United Nations High Commissioner for Refugees (UNHCR) opinion on F.H.’s asylum application, the Greek authorities rejected his asylum application on credibility grounds. F.H. appealed against this decision and was released pending the examination of the appeal. He then went to Athens, where a lack of accommodation meant that he was forced to live on the street.  Due to structural deficiencies in the Regional Asylum Office of Attica, the applicant tried without success to renew his residence card and thus was unable to work, have access to health care and to rent an apartment.

Relying on Article 3 (prohibition of torture and inhuman or degrading treatment), the applicant alleged that the conditions of his detention in the various centres and his living conditions after release constituted inhuman and degrading treatment.

Relying on Article 3 in conjunction with Article 13 (right to an effective remedy), he alleged in particular that there had been no effective remedy by which to complain of his detention conditions. Relying on Article 5 (right to liberty and security), he also complained that his detention had been unlawful.

Decision & reasoning:

Article 3

Detention conditions

The ECtHR recalled that in order to fall under Article 3 of the Convention ill-treatment must attain a minimum level of severity. The threshold level is relative and must be dealt with taking “… all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim”

The ECtHR also noted that measures involving deprivation of liberty are inevitably linked to suffering and humiliation. Although the Court stated that this is an unavoidable state of affairs which, in itself as such, does not infringe Article 3

Given the findings which it reached in previous judgments (Siasios and Others v. Greece, Vafiadis v. Greece, Shuvaev v. Greece and Tabesh v. Greece), and those contained in the reports of various national and international institutions who visited the centres during the period in question, the ECtHR considered that the applicant was detained in unhygienic conditions characterisedby overcrowding. These conditions amounted to degrading treatment and thus were incompatible with Article 3 of the Convention.

Applicant’s living conditions after release

The ECtHR relied on its previous findings in M.S.S v Belgium and Greece on applicants living in conditions of poverty and destitution as a homeless person in Greece. It considered that only a thorough examination of the application could have stopped the situation of the applicant. It concluded that there was a lack of action on the part of the authorities to resolve the situation and thus violated Article 3 of the Convention.

Article 13 in conjunction with Article 3

The ECtHR also found a violation of Article 13 in conjunction with Article 3 because the applicant did not have an effective remedy at his disposal to challenge his detention conditions.

The ECtHR found the second complaint of the applicant under Articles 3 and 13 in relation to the risk of removal to Turkey and Iran inadmissible due to the non-exhaustion of domestic remedies.

Article 5

As regards the applicant’s complaint under Article 5(1)(f), the ECtHR recalled, that any deprivation of liberty should be justified only for as long as deportation proceedings are in progress. If such proceedings are not prosecuted with due diligence, the detention will cease to be permissible (Chahal v. the United Kingdom). The ECtHR noted that in the present case, the applicant had been released after 6 months of detention pending the examination of the appeal. In addition having already concluded a violation of Article 3 for the detention conditions in Feres, Venna, Soufli et Fylakio centres, the ECtHR did not find it necessary to reassess detention conditions under Article 5(1)(f). Thus the ECtHR dismissed the complaint under Article 5(1)(f).

Finally, regarding Article 5(4) the ECtHR observed that the Greek Administrative Court refused to release the applicant due to the following reasons:  the applicant had no travel documents, he could not prove his identity, he had no stable social relations in Greece, he could not work legally and therefore there was a risk of absconding. Thus, the ECtHR stated that the Administrative Court had sufficiently reviewed the lawfulness of the detention and dismissed the complaint under Article 5(4) of the Convention.

Outcome:

Violation of Article 3 – with respect to the applicant’s conditions of detention;

Violation of Article 3  – with respect to the applicant’s living conditions after release;

Violation of Article 13 in conjunction with Article 3;

No violation of Article 5 § 1;

No violation of Article 5 § 4;

Just satisfaction: EUR 8,500 (non-pecuniary damage).

Observations/comments:

For further information:

• Asylum Information Database (AIDA) (a project of ECRE in partnership with Forum Refugiés Cosi, the Hungarian Helsinki Committee and the Irish Refugee Council), Country Report: Greece,
• ECRE & ICJ Joint Submissions to the Committee of Ministers of the Council of Europe in the case of M.S.S. v. Belgium and Greece(Application no. 30696/09)

Other sources:

Council of Europe report: Report  to the Government of Greece  on the visit to Greece  carried out by the European Committee  for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) from 19 to 27 January 2011.

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

Report submitted by the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Manfred Nowak following his visit to Greece from 10 to 20 October 2010.

Report of the Special Rapporteur on the human rights of migrants, François Crépeau.